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2003 DIGILAW 870 (MAD)

P. B. Nedungadi v. The Chairman & Another

2003-06-23

D.MURUGESAN

body2003
Judgment :- The petitioner joined service of the respondent State Trading Corporation of India Limited as Assistant in the year 1956. He had completed an unblemished service of 27 years, when he was removed from service on 13.10.1983, on which date he was functioning as Deputy Marketing Manager in the Madras Office of the respondent Corporation. 2. By Charge Sheet dated 7.7.1982, the petitioner was charged that he had not done physical weighment of the Soya Bean Oil which had been stored in the Tankers belonging to Indian Molasses Company, before it was transported on 4.7.1979 to the Storage Depot at Manali, belonged to Nagpal Petro-Chem Limited. According to the respondent Corporation, there was a shortage of approximately 189.36 MT of Soya Bean Oil. The petitioner submitted his explanation on 21.7.1982 denying the charge. An enquiry was conducted, in which the respondent Corporation was assisted by an Inspector of the C.B.I. Hence the petitioner made a request for lawyer's assistance on 4.7.1983, as he was pitted against a legally trained person viz., a C.B.I. Officer. By order dated 8.9.87, the request was denied. 3. After the enquiry, the petitioner was dismissed from service by the Disciplinary Authority viz., the Chairman, on 13.10.1983. The appeal filed against that order of dismissal, before the appellate authority viz., the Board was also rejected on 5.6.1994. The petitioner filed W.P.No.11306/94 before this Court questioning the above orders. However, this Court by order dated 18.7.1989 set aside the order of the appellate authority on the ground that the said order was non-speaking one, and directed the Board to dispose of the appeal within a stipulated time. Nevertheless, the appeal was disposed of by the Chairman himself by order dated 24.2.1995 in view of the fact that in the mean time the rules were amended and the Chairman was designated as appellate authority under the Rules. 4. Both the orders of the Disciplinary Authority and the Appellate Authority have been challenged in this writ petition. 5. Though Mr.N.G.R. Prasad, learned counsel for the petitioner, would challenge the impugned orders on the ground that the copy of the written instructions supposed to have been issued to the petitioner for physical weighment of the Soya Bean Oil before loading and after loading on 4.7.1979 was not served on the petitioner. 6. 5. Though Mr.N.G.R. Prasad, learned counsel for the petitioner, would challenge the impugned orders on the ground that the copy of the written instructions supposed to have been issued to the petitioner for physical weighment of the Soya Bean Oil before loading and after loading on 4.7.1979 was not served on the petitioner. 6. Mr.N.G.R. Prasad, learned counsel for the petitioner would further submit that as per Rule 27(6) of The Employee's (Conduct, Discipline & Appeal) Rules, 1975, the petitioner is entitled to assistance of a legal practioner in the event he is pitted against a legally trained person. Though a request was made, the same was rejected without assigning any reason and the order rejecting the request of the petitioner for assistance of a legal practitioner, without assigning any reason, would itself amount to prejudice. 7. The learned counsel further submits that in any case, as against the order of the Disciplinary Authority viz., the Chairman, the appellate authority was the Board. The order of the appellate authority was set aside by this Court with a direction to the appellate Authority for reconsideration. Under the guise of the amendment to the Rules, the very same Disciplinary Authority viz., the Chairman, who by then was conferred with the power of the appellate authority, has rejected the appeal. Hence the petitioner is prejudiced as his grievance over the order of the Chairman was not considered by the Board. 8. Lastly, the learned counsel submitted that the petitioner has put in 27 years of unblemished service and the misconduct alleged is only failure to carry on the instructions. The misconduct is not one of dishonesty or misappropriation of funds belonging to the respondents Corporation. In such event, penalty of removal from service is totally disproportionate to the charges. 9. Per contra, Mr.K.V. Prakash, the learned counsel appearing for the respondent Corporation, submitted that the petitioner was aware of the instructions dated 4.7.1979, wherein it was specifically instructed that before and after the consignment was loaded in a container, it should be weighed. The said instructions have not been carried out by the petitioner. For the fault of the petitioner, there was a shortage of 189.36 MT of Soya Bean Oil, which ultimately resulted in loss of nearly 14,00,000/- to the respondents/Corporation. 10. The said instructions have not been carried out by the petitioner. For the fault of the petitioner, there was a shortage of 189.36 MT of Soya Bean Oil, which ultimately resulted in loss of nearly 14,00,000/- to the respondents/Corporation. 10. The learned counsel for the respondent/Corporation would also submit that as per Rule 27(6) of The Employee's (Conduct, Discipline & Appeal) Rules, 1975, the petitioner is entitled to the assistance of a legal practitioner only in the event the case of the Management is presented by a legal practitioner. In the absence of any Rule as to the assistance of the legal practitioner when the petitioner was not pitted against a legal practitioner, his request for such assistance need not be accepted and therefore the same was rejected. 11. Insofar as the disposal of the appeal by Chairman is concerned, he would submit that by virtue of the Amendment to the Rules, the Chairman has become the Appellate Authority by then and therefore only the Chairman has considered the Appeal and passed the Appellate Order. 12. Insofar as the last submission, the learned counsel for the respondents/Corporation submits that though the petitioner has put in 27 years of unblemished service, considering the fact that due to the lapse on the part of the petitioner in not carrying out the instructions, the Corporation was put to loss to the tune of 189.36 MT of Soya Bean Oil to the value of Rs.14,00,000/-. Considering the above fact only, the petitioner was removed from service. 13. In the light of the above pleadings, the following points were raised for consideration. 1. Whether the petitioner is entitled to legal assistance through a legal practitioner when he is pitted against a C.B.I Inspector? 2. Whether the punishment of removal is warranted on the face of the charges and whether the same is disproportionate? 3. Whether the petitioner was furnished with the copy of the instructions? 4. Whether the disposal of the Appeal by the Chairman is valid? 14. Mr.N.G.R.Prasad, the learned counsel appearing for the petitioner relied upon the following judgments in support of his first contention: 1986 II LLN 349 (VENKATARAMAN SAMBAMURTHY VS UNION OF INDIA) 2001 III LLJ SUPPL 1236 (GNANASAMBANDAM S. VS TAMIL NADU CEMENTS CORPORN LTD., CHENNAI AND ANOTHER) 1990 1 LLN 165( CHANDRAKANT VS GOVT. 14. Mr.N.G.R.Prasad, the learned counsel appearing for the petitioner relied upon the following judgments in support of his first contention: 1986 II LLN 349 (VENKATARAMAN SAMBAMURTHY VS UNION OF INDIA) 2001 III LLJ SUPPL 1236 (GNANASAMBANDAM S. VS TAMIL NADU CEMENTS CORPORN LTD., CHENNAI AND ANOTHER) 1990 1 LLN 165( CHANDRAKANT VS GOVT. OF MAHARASHTRA) A.I.R. 1972 SC 2178 (C.L. SUBRAMANIAM VS COLLECTOR OF CUSTOMS, COCHIN) He contended that when the delinquent employee is pitted against a legally trained person, he is entitled to the assistance of a lawyer. 15. Insofar as the first point, in Venkatraman Sambamurthy's case (supra), it was considered by a Division Bench of Bombay High Court that whether the Deputy Director of Khadi and Village Industries Commission was entitled to the assistance of legal practitioner in the domestic enquiry when he was pitted against an Inspector of CBI. The Division Bench observed as follows:- "The words "legal practitioner" need not be taken in their literal sense. Legal qualifications are of little import. A layman, or for that matter a C.B.I. Inspector like Inspector Ghosh would, through sheer experience as acting as prosecutor in departmental enquiries, indeed garner vast legal experience and ability without being a "legal practitioner", as commonly understood. One of us (Lentin, J.) recalls the instance of the late P.D.Shamdasani, who some 35 and odd years ago, in his own way chartered a course for himself in the Bombay High Court. He never acquired a law degree. Never even appeared for a law examination. Yet he acquired the experience and knowledge of company law to enable him to deftly argue his own cases with ability from Court to Court, right up to the Privy Council. And more often than not, with success. If Shamdasani fell foul of you, you scurried to the most expensive solicitor and buttressed yourself with an array of the most expensive legal practitioners, often to the discomfiture of both expensive solicitor and expensive legal practitioners. And much to the delight of one fledgling briefless barrister." Having held so, the Division Bench ultimately set aside the enquiry proceedings and the consequential demotion. And much to the delight of one fledgling briefless barrister." Having held so, the Division Bench ultimately set aside the enquiry proceedings and the consequential demotion. In Chandrakant's case (supra), the Nagpur Division Bench of Bombay High Court has held that when the employee had a right to be represented by a lawyer and refusal of permission to engage a lawyer vitiates the enquiry and the consequential order of removal from service cannot be sustained. In the said judgment, the judgment of the Apex Court in "C.L.Subramaniam v. Collector of Customs, Cochin ( AIR 1972 SC 2178 )" was followed, wherein it was held as follows:- "It is needless to say that rule 15 is a mandatory rule. That rule regulates the guarantee given to Government servants under Art.311, 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." In "Board of Trustees of the Port of Bombay vs. Dilipkumar ( 1983 (1) SCC 124 )", their Lordships of the Apex Court, while considering the case of refusal of an employee's request to defend himself through a legally trained person, held as follows:- "Even in a domestic enquiry there can be very serious charges and adverse verdict may completely destroy the future of the delinquent employee. The adverse verdict may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake. Such an enquiry is generally treated as a managerial function and the enquiry officer is more often a man of the establishment. Ordinarily he combines the role of a presenting-cum-prosecuting officer as an enquiry officer, a Judge and a Prosecutor rolled into one. Such an enquiry is generally treated as a managerial function and the enquiry officer is more often a man of the establishment. Ordinarily he combines the role of a presenting-cum-prosecuting officer as an enquiry officer, a Judge and a Prosecutor rolled into one. In the past it could be said that there was an informal atmosphere before such a domestic tribunal and that strict rules of evidence and pitfalls of procedural law did not hamstring the enquiry by such a domestic tribunal. We have moved away from this stage. The situation is where the employer has on his pay rolls, labour officers, legal advisers, lawyers in the garb of employee and they are appointed presenting-cum-prosecuting officers and the delinquent employee pitted against such legally trained personnel has to defend himself. Now if the rules prescribed for such an enquiry did not place an embargo on the right of the delinquent employee to be represented by a legal practitioner, the matter would be in the discretion of the enquiry officer whether looking to the nature of charges, the type of evidence and complex or simple issues that may arise in the course of enquiry, the delinquent employee in order to afford a reasonable opportunity to defend himself should be permitted to appear through a legal practitioner .......... Can one imagine how the scales were weighed and thereby tilted in favour of the prosecuting officer. In this enquiry the employer would be represented by two legally trained minds at the cost of the port trust while the first respondent was asked either to fend for himself in person or have the assistance of another employee such as Nadkarni who is not shown to be a legally trained person but the delinquent employee cannot engage legal practitioner at his cost. Can this ensure a fair enquiry? The answer is not far to seek. Apart from any legal proposition or formulation we would consider this approach as utterly unfair and unjust. More so in absence of rules,the Chairman of the appellant was not precluded from granting a request because the rules did not enact a negative inhibition. Therefore, apart from general propositions, in the facts of this cause, this enquiry would be a one sided enquiry weighted against the delinquent officer and would result in denial of reasonable opportunity to defend himself. Therefore, apart from general propositions, in the facts of this cause, this enquiry would be a one sided enquiry weighted against the delinquent officer and would result in denial of reasonable opportunity to defend himself. He was pitted against the two legally trained minds and one has to just view the situation where a person not admitted to the benefits of niceties of law is pitted against two legally trained minds and then asked to fend for himself. In such a situation, it does not require a long argument to convince that the delinquent employee was denied a reasonable opportunity to defend himself and the conclusion arrived at would be in violation of one of the essential principles of natural justice, namely, hat a person against whom enquiry is held must be afforded a reasonable opportunity to defend himself". On a combined reading of the above dictum laid down by the Apex Court as well as the pronouncement of the Division Bench of Bombay High Court, it is clear that when a delinquent employee is pitted against a legally trained person is entitled to the assistance of a legally trained person or a lawyer. 16. The Learned counsel for the respondents would rely upon a Division Bench judgment of Delhi High Court in "S.L.Tagra v. New India Assurance Co.Ltd. and others ( 1998 (2) SLR 528 )". That case arose under the rules framed under Article 311 of the Constitution of India. In that judgment, the Division Bench held that there is no right to representation as such unless the company by its Standing Orders recognises such a right namely, right to be represented through a counsel or agent. Such right could be controlled or regulated by statutes, rules, regulations or Standing Orders for that matter. In the absence of such entitlement to engage a legal practitioner under the rules, the Division Bench held that the delinquent employee has no right to have a legal practitioner. But in this case, Rule 27(6) enables the petitioner for a legal assistance. Of course, when he is pitted against a legal practitioner in view of the specific provisions of the rules, the judgment relied upon by the learned counsel for respondents does not apply to the facts of this case. 17. But in this case, Rule 27(6) enables the petitioner for a legal assistance. Of course, when he is pitted against a legal practitioner in view of the specific provisions of the rules, the judgment relied upon by the learned counsel for respondents does not apply to the facts of this case. 17. In view of the above discussions, I am of the view that the word "legal practioner" as enumerated under Rule 27(6) of the The Employee's (Conduct, Discipline & Appeal) Rules, 1975, shall also include a legally trained person. The C.B.I Officer is also a legally trained person. In that event, the petitioner is entitled to the assistance of a legal practitioner, which entitlement has been denied by the respondent. In addition to the above, when the Rules specifically provide for the delinquent officer making a request for the assistance of a legal practitioner, an obligation is cast upon the respondents to consider the request with reference to the Rules. In case the request is rejected, the respondents are under an obligation to give the reasons therefor. The order of rejection dated 8.9.1983 reads as under: STATE TRADING CORPORATION OF INDIA LTD BRACNH OFFICE: MADRAS 8-9-1983 Shri PB Nedungadi Marketing Manager STC of India Ltd Madras Dear Sir, With reference to your letter dt.3.9.1983 addressed to Shri.V. Shivaramakrishnan (CFM), Inquiry Officer, regarding engaging a Legal Practioner to be your defence Assistant, you are hereby informed that the Disciplinary Authority has not acceded to your request for engaging a Legal Practioner. As such, you may take the Assistance of Public Servant as per Rule 27(6) of Employees' (Conduct, Discipline & Appeal) 1975. Yours faithfully, Sd KP Gopalakrishnan Dy. Vigilance Officer 18. A perusal of the said Order does not indicate as to the application of mind on the part of the respondents in rejecting the request of the petitioner and that too with reference to the Rules. In my considered view failure to give reasons while rejecting the request for assistance of legal practitioner itself is prejudice caused to the petitioner. 19. An argument was advanced by the learned counsel for the respondent that the petitioner having participated in the enquiry cannot now raise the question of prejudice. In my considered view failure to give reasons while rejecting the request for assistance of legal practitioner itself is prejudice caused to the petitioner. 19. An argument was advanced by the learned counsel for the respondent that the petitioner having participated in the enquiry cannot now raise the question of prejudice. The answer to this submission is the Division Bench of this Court in the Judgment reported in 1992 II L.L.N 811 (Indian Airlines corporation (Represented by Regional Director) and another vs N. Sundaram). The relevant portion of the order reads as follows: It is true that the principles of natural justice may come into play when the statute or statutory rules are silent as to the procedure; and no statutory provision or statutory rule can be struck down where it makes a provision excluding application of principles of natural justice. But this principle cannot be viewed in the abstract and the endeavour must be to find out as to how far and in what manner the statutory provision or statutory rule could be stated to have excluded the application of the principles of natural justice. Despite the absence of any standing order enabling the Corporation to avail of the services of a Presenting Officer and that too a legally qualified and trained one, the Corporation did avail of such services. In that context there cannot be a denial of a facility on par with the facility availed of by the Corporation, to the employee. How even a constitutional inhibition with regard to availing of the services of a legal practitioner in the case of a person arrested and detailed under any law providing for preventive detention as per Art.22(3)(b) could not be put forth to abrogate the principles of natural justice; when the detaining authority is trying to gain an advantage over the detenu, while justifying the detention orders before the Advisory Board by engaging a legal practitioner and the same facility is being denied to the detenu, has been succinctly dealt with in the pronouncement of A.K. Roy vs Union of India (A.I.R. 1982 SC 710). The relevant passage in Para 94 of the pronouncement runs thus: "We must, therefore, hold regretfully though, that the 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 relevant passage in Para 94 of the pronouncement runs thus: "We must, therefore, hold regretfully though, that the 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 Art.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 Advisor Board with the aid of a legal practitioner, but that the said facility should be denied to the detenu. In any case, this is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provision of Art.22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Art.14, if a similar facility is denied to the detenu. We must, therefore, make it clear that 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 appearance before the Board through a legal practitioner". 20. In view of the above decision of the Division Bench, the contention of the learned counsel for the respondents cannot be accepted. The petitioner is entitled to succeed in the writ petition in questioning the order of the disciplinary authority. 21. In view of my above, other questions need not be gone into. 22. Accordingly, the writ petition is allowed. In view of the above finding, the question of quantum of punishment does not arise. Considering the age of the petitioner as on today viz., 75 years, to meet the ends of justice, the respondents must be directed to allow the petitioner to have the assistance of a legal practitioner and dispose of the matter as expeditiously as possible and in any case within an outer period of three months from the date of receipt of the copy of this order. Accordingly, there will be direction to the said effect. Consequently, the connected W.M.P is closed.