Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 483 (MP)

M. P. SHARMA v. DISTRICT AND SESSIONS JUDGE

2002-05-02

DIPAK MISRA, UMA NATH SINGH

body2002
ORDER Dipak Misra, J. The correctness of the order dated 22-1-2002 passed in W.P. No. 308/2002 by the learned single Judge has been called in question in this appeal invoking the clause 10 of Letters Patent. The facts which are essential to be stated to appreciate the factual scenario are that the petitioner was appointed as a LDC in the office of the District and Sessions Judge on 19-10-1959. He was promoted to the post of UDC in the month of April, 1980. He joined as Nazir in the District Court Jabalpur on 10-5-1989. As time rolled by, he was superannuated on 29-11-1997. As pleaded, on the date he was bidding adieu to his job, he was served with the charge-sheet vide Annexure P-1. The charge-sheet covered seven articles of charges. What happened thereafter is not of much consequence and need not be dwelled upon by us. It is not disputed that an enquiry officer was appointed to enquire into the charges levelled against the petitioner. The presenting officer in the rank of Superintendent of Office was appointed. In the meantime when the Departmental proceeding was in continuance a criminal case No. 1242 was instituted against him for an offence punishable u/s 409 of the Indian Penal Code. At this juncture, the petitioner filed three applications vide Annexure P-2 to P-4 before the enquiry officer seeking three reliefs, namely, the enquiry proceeding should be kept in abeyance till the criminal case is over; the relevant documents which were mentioned in the application should be supplied to him; and that he may be permitted to engage a" legal practitioner to defend his case. The enquiry officer negatived all the prayers of the petitioner. Being dissatisfied the petitioner invoked the extraordinary jurisdiction of this Court for quashment of the order passed by the enquiry officer. Before the learned Single Judge it was contended that when the charges levelled against him and criminal prosecution stand on a similar footing the departmental proceeding should be stayed otherwise gross prejudice would be caused to him. It was also putforth that if the relevant and requisite documents were not supplied to him that would violate sacrosanct principle inhered in audi alteram partem and hence, a command may be issued to supply the documents which find mention in Annexure P-2. It was also putforth that if the relevant and requisite documents were not supplied to him that would violate sacrosanct principle inhered in audi alteram partem and hence, a command may be issued to supply the documents which find mention in Annexure P-2. It was also contended before the learned single judge that the enquiry officer is in the rank of Additional District Judge and the presenting officer is an office Superintendent and in view of the obtaining factual matrix petitioner should be allowed to engage a legal practitioner. The learned Single Judge elaborately adverted to the seven charges levelled against the petitioner and came to hold that scope of the departmental enquiry in respect of the charges concerned and scope of criminal prosecution in respect of offence u/s 409 of Indian Penal Code are in different realms and there is no justification for granting stay of further proceeding before the enquiry officer. As far as the second facet is concerned the learned single Judge directed the petitioner should be supplied the certified copies of the relevant documents. While so directing he added a qualifier that the enquiry officer has to be guided by the principle of relevancy of documents and should not accede to prayer of the petitioner if the document is not really required for the purpose of fair and proper enquiry. As far as the last limb of prayer is concerned, the learned single Judge expressed the view that seeking to be represented by the legal practitioner in the departmental enquiry is not an absolute right and the case at hand did not warrant such an engagement. Being of this view the learned single Judge dismissed the writ petition. Impugning the aforesaid order it is submitted by Mr. Vivek Rusia, learned counsel for the petitioner that if the departmental proceeding is not stayed the petitioner would be compelled and constrained to disclose its defence in the departmental proceeding which would cause serious prejudice to him in the criminal trial and such a situation is not envisaged in law. To buttress his submission, he has placed reliance on the decision rendered in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., . We may hasten to add here that the aforesaid decision was also placed reliance upon before the learned Single Judge. To buttress his submission, he has placed reliance on the decision rendered in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., . We may hasten to add here that the aforesaid decision was also placed reliance upon before the learned Single Judge. Before we refer to the aforesaid decision in detail we may profitably refer to the decision rendered in the case of Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, wherein after referring to the cases of The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, , Tata Oil Mills Co. Ltd. Vs. Its Workmen, and Jang Bahadur Singh Vs. Baij Nath Tiwari, the Apex court came to hold as under: 6. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual-situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline. In the instant case the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court's order of injunction which had been affirmed in appeal. In the instant case the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court's order of injunction which had been affirmed in appeal. On a perusal of the aforesaid exposition of law it is graphically clear that their Lordships of the Apex Court gave emphasis on the aspect that the criminal action and disciplinary proceeding must be grounded on the same set of facts. It is worthwhile to refer to the decision rendered in the case of State of Rajasthan Vs. B.K. Meena and others, the Apex Court expressed the view as under: 14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is 'that the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability', or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is also not an invariable rule, it is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be - and should not be - delayed unduly. The ground indicated in D.C.M. and Tata Oil Mills is also not an invariable rule, it is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials are persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly even reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly accordingly to law. It is not also in the interest of administration that person accused of serious misdemeanour should be continued in office indefinitely, i.e., for long in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above. Keeping the earlier decision in view a three Judge Bench of the Apex Court in the case of Mohd. Usuf Miya (supra) opined that the purpose of departmental enquiry and prosecution is different and cover distinct aspects. It was expressed by their Lordships that if the criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society for breach of which law has booked him whereas in contradistinction a departmental enquiry is initiated to maintain discipline in the service and efficiency of public service. In that context their Lordships opined each case requires to be considered in the backdrop of its own facts and circumstances. Eventually the Apex Court laid down the dictum as under: ..........The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as the criminal trial. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof...... The present factual matrix has to be tested on the anvil of the aforesaid enunciation of law. We have carefully perused the charges levelled against the petitioner. They relate to non-handing over the charge; depositing the amount in excess; not keeping properties in proper condition for enabling their identification; non-availability of certain properties in Malkhana and not handing over the entire charge and the goods. Thus the charges related and pertained to gross misconduct and gross negligence. We have carefully perused the charges levelled against the petitioner. They relate to non-handing over the charge; depositing the amount in excess; not keeping properties in proper condition for enabling their identification; non-availability of certain properties in Malkhana and not handing over the entire charge and the goods. Thus the charges related and pertained to gross misconduct and gross negligence. In the case of B.K. Meena (supra) the Apex Court has observed that in cases where grave charges have been levelled, an endeavour should be made to put the departmental proceeding to an end as expeditiously as possible. We have diverted for a while just to indicate that charges are quite grave and the petitioner who was in charge of Malkhana was charge-sheeted in the year 1997. Now coming back to the issue it is perceivable that the charges levelled against the petitioner are totally in a different realm where as the criminal prosecution has been launched u/s 409 of the Indian Penal Code. In the guise of pending of criminal trial a delinquent officer cannot take recourse to maladroit effort to keep departmental proceeding in abeyance in a case of this nature. The charges are grave and serious. It is inconceivable that a departmental proceeding should be stayed so that eventually a Sisyphean attempt by the Department is made to arrive at the conclusion so that a delinquent employee (if ultimately charges are proved) does get scot free with the passage of time. In view of this we are not impressed by the submissions raised by Mr. Rusia and we concur with the opinion expressed by the learned single Judge. It is next contended by Mr. Rusia that though the learned single Judge directed for supply of the documents, the same has not yet been supplied by the enquiry officer. In this aspect we only reiterate the observations made in paragraph six of the impugned order and command the enquiry officer to follow the same in proper spirit so that the petitioner's grievance gets mitigated. Mr. Vivek Rusia has submitted that he has not been given copies of the order sheets in quite promptitude. A copy of the order sheet, if applied for by the petitioner, shall be given by keeping in view the concept of immediacy in the case of this nature. Mr. Vivek Rusia has submitted that he has not been given copies of the order sheets in quite promptitude. A copy of the order sheet, if applied for by the petitioner, shall be given by keeping in view the concept of immediacy in the case of this nature. The last aspect which emerges for consideration is whether the learned single Judge is correct in negativing the contention of the petitioner for engagement of a legal practitioner. Assailing the conclusion of the learned single Judge Mr. Vivek Rusia, learned counsel for the petitioner has commended us to the decision rendered in the case of C.L. Subramaniam Vs. Collector of Customs, Cochin, . The learned counsel has submitted that two Judge Bench of the Apex Court referred to Rule 15(5) of Central Civil Services (Classification, Control and Appeal) Rules, 1967 and came to hold that refuse to grant opportunity to the Government servant violates the enquiry. To appreciate the aforesaid submissions of Mr. Rusia we have carefully perused the judgment. In the said case their Lordships referred to the aspect that the disciplinary authority did not appreciate the factual scenario in proper perspective. Eventually in paragraph 22 their Lordships came to hold as under: 22. It is needless to say that R. 15 is a mandatory rule. That rule regulates the guarantee given to Government servants by and large have no legal training. At any rate, it is nobody's case that the appellant had legal training. Moreover when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why Rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate cases by a legal practitioner. After so holding the Court proceeded to state that the appellant therein has not been afforded reasonable opportunity to defend himself. That is why Rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate cases by a legal practitioner. After so holding the Court proceeded to state that the appellant therein has not been afforded reasonable opportunity to defend himself. In our considered opinion the aforesaid decision is distinguishable as in that case a ground was made out that the petitioner there was pitted against a trained prosecutor and further, as perceivable from paragraph one the enquiry officer had not afforded the appellant therein, to have the assistance of another government servant. The learned counsel has also placed reliance on the decision rendered in the case of The Board of Trustees of the Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, . In the aforesaid case the employer was represented by legally trained officer in the inquiry and the request of the employee to engage a lawyer was refused. In that context the Apex Court held that reasonable opportunity should have been given to the employee. As the factual exposition was quite different in the aforesaid case we do not experience any difficulty to distinguish the aforesaid decision. In this regard we profitably refer to a three Judge Bench decision rendered in the case of Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi, wherein their Lordships after discussing the entire gamut of the case law in paragraphs 11 and 12 held as under: 11. A delinquent appearing before a Tribunal may feel that the right to representation is implied in the larger entitlement of a fair hearing passed on the rule of natural justice. He may, therefore, feel that refusal to be represented by an agent of his choice would tantamount to denial of natural justice. Ordinarily it is considered desirable not to restrict this right of representation by counsel or an agent of one's choice but it is a different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the enquiry. Representation through counsel can be restricted by law as for example, section 36 of the Industrial Disputes Act, 1947, and so also be certified Standing Orders. Representation through counsel can be restricted by law as for example, section 36 of the Industrial Disputes Act, 1947, and so also be certified Standing Orders. In the present case the Standing Orders permitted an employee to be represented by a clerk or workman working in the same department as the delinquent. So also the right to representation can be regulated or restricted by statute. Such provisions in fact serve to underline the importance attached to the right to representation. In Maclean vs. Workers' Union Maugham, J. observed that counsel have no right of audience before a Tribunal. However, in Pett. vs. Greyhound Racing Association Ltd. (No. 1) the court of appeal was dealing with an appeal from an interlocutory injunction restraining the Greyhound Racing Association Ltd, from holding an enquiry on the question whether drugs had been administered to Pett's dog. The rules of the club to which the trainer had agreed did not prescribe the procedure to be followed at such an enquiry and did not exclude legal representation. The procedure in fact followed was to allow the trainer to be present, to hear the evidence and to question the witnesses. The trainer sought to be represented by counsel and solicitor at the enquiry but the track stewards decided not to allow legal representation. On appeal from the grant of an interlocutory injunction restraining the enquiry from being held unless the right to representation was conceded, the court of appeal held that prima facie the trainer was entitled to an oral hearing and the enquiry being one of serious importance to him, to be represented at it by counsel and solicitor. The court held that he was entitled not only to personally appear but also to appoint an agent on his behalf, and so was entitled to appoint counsel and solicitor to represent him. Lord Denning, M.R while admitting that such a right may not be conceded in minor matters felt that since the enquiry was one of serious consequences to Pett, Prima facie he was entitled to counsel and solicitor. This is what the learned Judge observed: The plaintiff is here facing a serious charge, he is charged either with giving the dog drugs or with not exercising proper control over the dog so that some else drugged it. If he is found guilty, he may be suspended or his licence may not be renewed. This is what the learned Judge observed: The plaintiff is here facing a serious charge, he is charged either with giving the dog drugs or with not exercising proper control over the dog so that some else drugged it. If he is found guilty, he may be suspended or his licence may not be renewed. The charge concerns his reputation and his livelihood. On such an enquiry I think that he is entitled not only to appear by himself but also to appoint an agent to act for him. In taking this view reliance was placed on the observation of Sterling, J. in Jackson and Co. vs. Napper to the following effect: Subject to certain well-known exceptions every person who is sui juris has a right to appoint an agent for any purpose whatsoever and that he can do so when he is exercising a statutory right, no less than when he is exercising any other right. This principle was applied to hearing before an Assessment Committee in Queen vs. Assessment Committee of St. Mary Abbotts, Kensington wherein it was held that as the ratepayer had a right to appear and be heard and as there was no prohibition from appearing by an agent a surveyor could appear for him. However, when Pett case came up for trial, Lyell, J. found it difficult to confirm the prima facie view of Lord Denning, J. in view of the Privy Council decision in University of Ceylon vs. E.F.W. Fernando Lyell, J. refused to concede that legal representation before a Tribunal constituted an elementary feature of fair dispensation of justice. See Pett. vs. Greyhound Racing Association Ltd. In Enderby Town Foot Ball Club Ltd. vs. Football Association Ltd. a rule of the Football Association prohibited clubs which appealed to it against decisions of County Football Association from being legally represented. The appellant having appealed to the Football Association sought an injunction to prevent the appeal being heard unless it was allowed legal representation. While Fenton Atkinson L.J. and Cairns L.J. were inclined to take the view that the clubs might exclude legal representation by an absolute rule, Lord Denning, M.R. posed the question: 'Is a party who is charged before a domestic tribunal entitled as of right to be legally represented?' and answered it by saying 'much depends on what the rules say about it'. He then proceeded to add that when the rules are silent, then the party has no absolute right to be legally represented; it is a matter left to the discretion of the tribunal which must be properly exercised. He then observed: It may be a good thing for the proceedings on a domestic Tribunal to be conducted informally without legal representation. Justice can often be done in them better by a good layman than by a bad lawyer. It can, therefore, be seen that Lord Denning did not strictly adhere to the view expressed by him in Pett (No. 1) case, he felt that the right to representation depends on the discretion of the Tribunal which must be genuinely exercised and explained. In Pett case he had intervened because the Greyhound Racing Association Ltd. had developed an inflexible practice of refusing representation regardless of the seriousness and complexity of the charges levelled against a delinquent. In R. vs. Race Relations Board, Ex parte Selvarajan the question of legal representation though not strictly in issue was discussed by Lord Denning, M.R. generally and it was observed that there was a duty to act fairly although each body could lay down its own procedure. He also observed that what fairness requires would depend on the nature of the investigation and the consequences it may have on person affected by it, thereby keeping open for courts in any particular case to grant the right of legal representation. Again in Maynard vs. Osmond a police constable claimed a right to be legally represented when appearing before his chief constable. This was spurned by the Court of appeal which held that the Police (Discipline) Regulations, 1965 made under the Police Act, 1964 expressly provided for representation only by another policeman. Lord Denning, M.R. held that the regulations were entirely fair since the prosecution was presented by a police constable not a lawyer, and the delinquent could be effectively represented by another police officer because of his knowledge of the inner working of the police force. From the above decisions of the English Courts it seems clear to us that the right to be represented by a counsel or agent of one's own choice is not an absolute right and can be controlled, restricted or regulated by law, rule or regulations. From the above decisions of the English Courts it seems clear to us that the right to be represented by a counsel or agent of one's own choice is not an absolute right and can be controlled, restricted or regulated by law, rule or regulations. However, if the charge is of a serious and complex nature, the delinquent's request to be represented through a counsel or agent could be conceded. Yet in another decision rendered in the case of Bharat Petroleum Corporation Ltd. Vs. Maharashtra General. Kamgar Union and Ors, the Apex Court held that an employee has no right to be represented in the Departmental Enquiry by another person or lawyer unless the service rule provides for the same. It was further expressed that the right to be represented is available to the extent specifically provided for in the rules. In view of the aforesaid exposition of law, there remains no scintilla of doubt that to engage a legal practitioner in a departmental proceeding is not an absolute right. It is conditioned by the rules governing the field. Sub-rule (8) of Rule 14 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 reads as under: 14.(8) The Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits. On a scrutiny of the aforesaid rule it is discernible that a delinquent employee can take the privilege of engaging a legal practitioner if the presenting officer appointed by the disciplinary authority is a legal practitioner or the disciplinary authority having regard to the circumstances of the case so permits. The aforesaid rule can be dissected into two parts. If the presenting officer is legal practitioner the employee has a right to seek assistance of a legal practitioner. The choice rests with him. Other one is a discretion conferred on the disciplinary authority and he has power to permit the delinquent employee to have the assistance of the legal practitioner if the circumstances of the case so warrant. We shall first deal with the first facet. It is not disputed by Mr. The choice rests with him. Other one is a discretion conferred on the disciplinary authority and he has power to permit the delinquent employee to have the assistance of the legal practitioner if the circumstances of the case so warrant. We shall first deal with the first facet. It is not disputed by Mr. Rusia, learned counsel for the petitioner that the presenting officer is a Deputy Superintendent in the office of the District Judge. Indubitably he cannot be termed as a legal practitioner. Once the condition precedent in that aspect is not satisfied we are of the considered opinion that no right flows in favour of the petitioner and choice has to be smothered. In fact, the choice melts. The second aspect is whether the disciplinary authority in the case at hand should have permitted the petitioner to have the assistance of legal practitioner. The learned single Judge has opined that no intricate question of law is involved and the petitioner is working was 'Najir'. A person functioning as 'Najir' for a considerable length of time is expected to have gathered enough experience to understand the charges and what is meant by them and how he should defend himself and, if we permit ourselves to say so, no question of law is involved in the departmental proceeding. Thus the effort made by Mr. Rusia to gather support from the various decisions and the Rule actually do not improve his stance. In view of this, we conclude and hold that it is not a fit case where the circumstances warrant engagement of a legal practitioner. In view of our preceding analysis we are not impressed by any of the submissions made by Mr. Rusia and we concur with the findings recorded by the learned Single Judge. We may hasten to add here that though we have not interfered with the order passed by the learned Single Judge we have directed, as it was prayed before us by Mr. Rusia, copy of the order sheet passed on each date, if applied for, shall be supplied to the petitioner in quite promptitude. Consequently, judgment of the learned single judge is affirmed without any order as to costs.