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2005 DIGILAW 130 (JHR)

Bharat Coking Coal v. Sasanka Sekhar Sen

2005-02-11

N.N.TIWARI

body2005
ORDER Narendra Nath Tiwari, J. 1. Nobody appeared on behalf of the respondents. 2. Heard Mr. A.K. Mehta, learned counsel for the appellant. 3. At the time of admitting this appeal, the following two substantial questions of law were framed : (i) Whether supply of a copy of the departmental enquiry report was necessary while passing an order of dismissal? (ii) Whether the petitioner has a mandatory right to be defended by a counsel of his choice in the departmental proceeding? 4. This appeal arose out of the suit which was instituted by the respondents against the appellant. The respondents-plaintiffs sought a decree declaring that the purported enquiry against him is illegal, malacious and without jurisdiction and that no action can be taken on the basis of the said enquiry. The plaintiff- respondent had also prayed for an injunction restraining the defendant from taking any action against him on the basis of the said enquiry and on the basis of the charge sheet dated 12.7.1997 served on him. 5. The plaintiffs case was that he was an employee/workman of Gunuadihi Colliery, posted as a bill clerk prior to the nationalization of the colliery. After the nationalization he became an employee of the B.C.C.L., subject to the provisions and terms and conditions of the said Company, The plaintiff was, subsequently, promoted as a cashier. In the meanwhile, a departmental proceeding was initiated against him on the allegation of misconduct. The plaintiff had raised objection against the maintainability of the departmental enquiry and had also complained that he was not given reasonable opportunity to represent himself in the said enquiry and there was violation of principle of natural justice, the enquiry report was not served on the plaintiff in spite of his requests and as such the enquiry report was vitiated in law. The defendant-appellant-Company had contested the suit by filing written statement. Besides the usual pleas and grounds of law, it was averred that the reasonable opportunities were given to the plaintiff and there was no violation of the principle of natural justice in conducting the domestic enquiry. The dependent also denied the other allegations and contended that the suit was not maintainable and was liable to be dismissed. 6. Learned trial Court framed several issues. All the issues were decided in favour of the defendant-appellant. The dependent also denied the other allegations and contended that the suit was not maintainable and was liable to be dismissed. 6. Learned trial Court framed several issues. All the issues were decided in favour of the defendant-appellant. While deciding the main controversy it was held that there was no violation of the principles of natural justice, though there were some defects yet reasonable opportunity was given to the plaintiff to defend himself. The trial Court concluded that plaintiff was not entitled to any relief. The plaintiffs suit was dismissed. 7. Aggrieved by the said judgment and decree of the trial Court, the plaintiff preferred title appeal in the Court of the District Judge, Dhanbad. The appeal was also contested by the appellant-Company. The appeal was finally heard and decided by the 1st Additional District Judge, Dhanbad who reversed the findings and set aside the judgment and decree of the trial Court. The Appellate Court held that the principle of natural justice was violated as the copy of the enquiry report of the domestic enquiry was not supplied to the plaintiff-respondent and that he was not given permission to engage a lawyer of his choice to properly represent him. 8. Mr. A.K. Mehta, learned counsel appearing on behalf of the appellant, submitted that so far the first substantial question is concerned, it is now no more res Integra. Learned Counsel placed his reliance on a decision of the Supreme court rendered in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. and submitted that the Constitution Bench of the Supreme Court has already held that the right to get a copy of the enquiry report has been held mandatory for the first time in Md. Ramjan Khan's case and the same is applicable with prospective effect. The said decision came in 1991, while in the instant case the enquiry was concluded on 26.8.1974. Obviously at that time there was no such mandate of law and it was not imperative to supply a copy in view of the aforesaid decision of the Constitution Bench of the Apex Court. It can not be, therefore, held that enquiry in the instant case was vitiated for not supplying a copy of the departmental enquiry report. 9. Obviously at that time there was no such mandate of law and it was not imperative to supply a copy in view of the aforesaid decision of the Constitution Bench of the Apex Court. It can not be, therefore, held that enquiry in the instant case was vitiated for not supplying a copy of the departmental enquiry report. 9. So far the second substantial question is concerned, learned counsel submitted that no delinquent has vested right to be defended by a counsel of his choice in a departmental proceeding. The provision for representation through an advocate in a departmental proceeding is provided in the respective service rules and regulations. The plaintiff-respondent neither pleaded nor brought anything on record to demonstrate that there was any such provision in the service rule/regulation by which the plaintiff was governed. According to Mr. Mehta there is no such mandatory provision in the concerned service rule which provides for engagement of an advocate in the departmental proceeding and in absence of such mandatory provision it can not be held that a delinquent has an indefeasible right to be defended by a counsel of his choice. 10. From perusal of the records, I find that there is no material on record in support of the plaintiffs-respondents' claim of his right to engage a counsel of his choice in the domestic enquiry. It is now well established that the provision for engaging a counsel in a departmental proceeding is subject to the service rules applicable to the delinquent and in absence of such mandatory rule, it can not be held that the departmental enquiry was vitiated for not allowing the plaintiff to engage a counsel of his choice in the said domestic enquiry. 11. In view of the above discussions, I hold that the law laid down by the Supreme Court in Md. Ramjan Khan's case having prospective application of non-service of a copy of the enquiry report to the plaintiff of this case does not amount to violation of principle of natural justice and on that ground the departmental proceeding can not be held to be null and void. Ramjan Khan's case having prospective application of non-service of a copy of the enquiry report to the plaintiff of this case does not amount to violation of principle of natural justice and on that ground the departmental proceeding can not be held to be null and void. So far the second question relating to right to be defended through a counsel is concerned, no such rule/regulation has been brought on record and it can be held that the impugned enquiry report was vitiated for not granting permission to the plaintiff-respondent to engage a counsel of his choice. 12. This appeal is accordingly allowed. The judgment and decree of the learned lower Appellate Court is set aside and the judgment and decree of the trial Court is restored. However, there shall be no order as to costs. Appeal allowed.