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1996 DIGILAW 58 (ORI)

BANABIHARI MOHANTY (DR. ) v. MEMBER, DISCIPLINARY PROCEEDINGS TRIBUNAL

1996-02-14

ARIJIT PASAYAT, DIPAK MISRA

body1996
JUDGMENT : Pasayat, J. - Petitioner calls in question vires of Rule 6(2) of the Orissa Disciplinary Proceedings (Administrative Tribunals) Rules, 1951 (in short, the 'Rules'), on the ground that it offends fair play and equity. 2. A brief reference to the factual aspects would be necessary before we deal with the main contentions raised by the parties about vires of Rule 6(2) of the Rules. Petitioner is facing proceeding before the Disciplinary Proceedings Tribunal, Orissa (hereinafter referred to as the 'Tribunal') in T.R.No. 7 of 1994. He moved the Tribunal for permission to be represented by a counsel. No specific reason was indicated by him to show as to why he felt that such permission was warranted. The Tribunal by the impugned order (Annexure 1) rejected the prayer referring to Rule 6(2), holding that engagement of counsel is impermissible. 3. Petitioners stand is that the said rule offends fair play and equity, and unequals would be pitted against each other in case interpretation given by the Tribunal is accepted. Mr. S.P. Mishra, learned Additional Government Advocate on the other hand submitted that there is no infirmity in the provision, because both the prosecution and defence have been denied right to be represented through counsel. That according to him shows parity, and provision is hi consonance with fair play. 4. The Rule impugned reads as follows: "6(1) xx xx xx xx (2) The proceedings of the Tribunal shall be in camera and neither the prosecution nor the defence shall have the right to be represented by the Counsel". There is substance in the plea of learned counsel for State that no distinction has been made between the prosecution and the defence so far as right of representation by the counsel is concerned. But that is not the end of the matter. In a given case, facts situation may be complex. Large number of documents may be involved to be examined, and intricate question of law may be involved. Though as a matter of right, neither prosecution nor defence can claim to be represented through the counsel, engagement of a counsel does not appear to have been completely barred. The Tribunal, in a given case, being satisfied on consideration of materials placed before it may come to a conclusion that engagement of a counsel would be in the interest of justice, fair play and equity. The Tribunal, in a given case, being satisfied on consideration of materials placed before it may come to a conclusion that engagement of a counsel would be in the interest of justice, fair play and equity. As Salmoad put it, right is an interest recognised and protected by a rule of law. It is an interest, respect for which is duty and disregard of which is a wrong. Voltaire's immortal words are, "I do not agree with you, but I will fight for upholding your right to disagree with me till the end of my life". In the context the expression "right" has been used in Rule 6(2), it means a just or legal claim; what one has a just claim to. It is something to which one has just claim; a power or privilege vested in a person by the law to demand action of forbearance at the hands of another; a legally enforceable claim against another that the other will do or will not do a given act; a capacity or privilege the enjoyment of which is secured to a person by law. It is a liberty of doing or possessing something consistently with law. In P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another the Apex Court while considering import of the expression "enjoyment as of right", observes mat it meant that an enjoyment had not secretly or by stealthily, or by tacit sufferance or by permission asked from time to time, on each occasion or even on many occasions of using it, but an enjoyment had openly, notoriously without particular leave at the time by a person claiming to use it as a matter of right. 5. It is submitted that the Rule 6(2) is violation of Articles 19(1)(a), 21 and 39 of the Constitution. It is urged that a litigant has got a fundamental right to be represented by a counsel in any Court of law, or Tribunal, and this fundamental right, under Article 21 is a part of the litigant's life. We find no substance in the submission. No litigant has a fundamental right to be represented by a lawyer in any Court of law or Tribunal. We find no substance in the submission. No litigant has a fundamental right to be represented by a lawyer in any Court of law or Tribunal. The only fundamental right recognised by the Constitution is under Article 22(1) by which an accused who is arrested and detained in custody is entitled to consult and be defended by a legal representative of his choice. Even mere also, Article 22(3)(b) makes an exception in the case of any person arrested or detained under any law providing for preventive detention. The position has been eloquently stated by the Apex Court in Paradip Port Trust, Paradip Vs. Their Workmen Lingappa Pochanna Appelwar Vs. State of Maharashtra and Another. The former case related to Section 36(4) of Industrial Disputes Act, 1947 and the latter to Section 9-A of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1971, both relating to restriction of appearance of Advocate. It may be of relevance to take note of similar provisions in Section 13 of Family Courts Act, 1984, Section 8 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and Section 11 of National Security Act, 1980. In A.K. Roy and Others Vs. Union of India (UOI) and Others it was observed that a detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. If the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. Proviso to Section 13 of the Family Courts Act, 1984 permits the Family Courts to take assistance of amicus curiae. If the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. Proviso to Section 13 of the Family Courts Act, 1984 permits the Family Courts to take assistance of amicus curiae. With permission of the Tribunal under the Industrial Disputes Act, 1947 representation by counsel is permissible, while therefore vires of Rule 6(2) cannot be faulted, the residual question is whether there is a complete prohibition on appearance of acounsel. Reading of Rule 6(2) does not indicate complete prohibition. Legislature in its wisdom has not used words of prohibition. The words used related to "right" of the parties. They do not bar discretion of the Tribunal (sic). 6. Roleof counsel is not necessarily to further cause of his client. There is an additional duty as an Officer of the Court to see that ultimately ends of justice are furthered. A counsel can provide assistance to the Court to arrive at a just and proper decision; and in a given case as amicus curiae. It would all depend on the facts and circumstances of each case as to whether the Tribunal would deem it appropriate to grant permission to a party to be represented through the counsel. By way of illustration, we may say that if the Presenting Officer for the prosecution is qualified in law or has some specialised training in a particular branch of law the opponent who may not have that expertise would certainly be placed at a disadvantageous position. We are conscious that the enquiry to be conducted by the Tribunal is not bound by formal rules of evidence. That takes care of only a part of the problem, meaning absence of stress on technicalities. But, as provided in Rule 7(2) itself, enquiry has to be guided by rule of equity and natural justice. Whether a particular case would warrant engagement of a counsel to be in consonance with rules of equity and natural justice, has to be decided by the Tribunal on an objective of appreciation of materials to be placed by the party seeking permission to be represented by counsel. Whether a particular case would warrant engagement of a counsel to be in consonance with rules of equity and natural justice, has to be decided by the Tribunal on an objective of appreciation of materials to be placed by the party seeking permission to be represented by counsel. In a case involving intricate questions of law or interpretation of documents, or complex question of fact on which an ordinary preson would not be able to effectively throw light. Permission can be granted for being represented by a counsel. 7. Unfortunately, in the present case petitioner did not indicate any reason to buttress his prayer for permission to engage a counsel. The Tribunal therefore, was justified in rejecting prayer for permission to engage a counsel but its observation to the extent that it is not permissible under Rule 6(2) to do so has to be construed in the background of vagueness of the petition seeking permission for engagement of a counsel. If petitioner files a fresh petition indicating the reasons which according to him justify grant of permission to engage a lawyer, the case shall be considered on its own merits by the Tribunal. We express no opinion in that regard. 8. The writ application is disposed of accordingly. D.M. Misra, J. 9. I agree.