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2009 DIGILAW 431 (JK)

Madan Lal Sharma v. Union Of India

2009-08-28

HAKIM IMTIYAZ HUSSAIN

body2009
1. Petitioner was working as Head Constable in CRPF. He was placed under suspension on a complaint lodged by one J.C. Sarkar of 27 Bn CRPF and later on was charged, tried and dismissed from service by the Commandant for offence under sections 376, 451 I.P.C. 2. The petitioner has through the medium of present petition challenged the penalty imposed on him, on a legal ground. He states that during the course of inquiry he was not permitted to engage services of a legal practitioner, as such inquiry conducted stands vitiated. 3. Respondents have in their reply stated that petitioner committed an offence under section 11 (1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955, as such a departmental enquiry was held against the petitioner affording full opportunity of being heard to him, he was dismissed from service with effect from 07th October 1997. The respondents state that petitioner was not entitled to avail the services of legal practitioner in view of sub rule 20 of Rule 14 CCS ( CC&A) Rules 1965 which provides that a delinquent Government servant against whom disciplinary proceedings have been initiated for imposition of a Major Penalty may not engage a legal practitioner to present the case on his behalf before enquiry authority, unless the presenting officer appointed by Disciplinary Authority is a legal practitioner. In the present case, the Enquiry Officer was not a legal practitioner, as such the request of the petitioner to avail the services of a lawyer was turned down. Heard. 1 have considered the matter. 4. Mr. Parihar, learned counsel for the petitioner has taken a sole ground to assail the penalty of dismissal imposed on the petitioner. Learned counsel would submit that since the petitioner was denied the services of a legal practitioner, enquiry initiated/conducted against him is vitiated. 5. Admittedly the petitioner had during the enquiry, asked for the services of legal practitioner but his request for the same was turned down. The respondents state that the petitioner was not entitled to such a concession as the enquiry officer was not a legal practitioner. The option to ask for the services of the legal practitioner can be exercised only if the Enquiry Officer is also a legal practitioner. 6. The respondents state that the petitioner was not entitled to such a concession as the enquiry officer was not a legal practitioner. The option to ask for the services of the legal practitioner can be exercised only if the Enquiry Officer is also a legal practitioner. 6. In reply to these submissions of the respondents ,learned counsel for the petitioner has relied on C.L. Subramaniam v. Collector of Customs, AIR 1972 SC 2178 and S.Y. Venkateswaralu v. Director General of Ordinance Factory 1978(1) SLR 309. 7. Supreme Court in C.L. Subramaniam ( supra) held that rule 15 is a mandatory rule. That rule regulates the guarantee given to Government servants under Article 311, the Government servant by and large has no legal training. Moreover, when a man is charged with a 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. 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. 8. Similarly in Venkateswaralu `s case, Madras High Court has held as under:- "5. We are concerned in this case with sub-Rule 8 of rule 14 which is as follows:- "The Government servant may take the assistance of any 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." 9. The rule contemplates permission being given to the petitioner for the engagement of a legal practitioner on two grounds: (1) the presenting officer happens to be a legal practitioner; or (2) the circumstances of the case warrant such an appointment. The department in this case has rejected the request of the petitioner only on the ground that the presenting officer was not a legal practitioner. But whether the circumstances of the case justified the engagement of a legal practitioner by the petitioner has not been considered at all. Therefore, it has to be taken that the sub-rule 8 of rule 14 has not been followed in this case in rejecting the petitioners request for engaging a legal practitioner. But whether the circumstances of the case justified the engagement of a legal practitioner by the petitioner has not been considered at all. Therefore, it has to be taken that the sub-rule 8 of rule 14 has not been followed in this case in rejecting the petitioners request for engaging a legal practitioner. In the case before the Supreme Court, under similar circumstances, the Supreme Court has held that there was not a fair and reasonable opportunity given to the delinquent officer in defending himself at the enquiry." 10. It would show that an employee is entitled to the services of a legal practitioner particularly when he is charged with breach of a rule having serious consequences. While examining the request of the petitioner in the present case the respondents have considered only the first aspect that the Enquiry Officer was not a legal practitioner. The second ground has not been considered by the respondents at all. They have rejected the prayer of the petitioner only on the ground that the Enquiry Officer was not a legal practitioner. It also shows that it is not that the services of a legal practitioner can be denied if the Enquiry Officer is not a legal practitioner, but the disciplinary authority has to consider the circumstances of the case also and decide whether the circumstances warrant such a concession. In R.L.Razdan v. Development Commissioner, Handicrafts & Others 1987 SLJ 17 it was held that whenever a request is made to engage a legal practitioner the Enquiry officer must apply his mind to the facts and circumstances of each case and the refusal or grant of permission to be assisted by a lawyer during the Enquiry must be decided impartially after considering all aspects of the case. The court relied on a Division Bench case of the Bombay High Court reported in 1974 (1) SLR 508, where it was held: "..... that the right to appear through a counsel or agent in a departmental Enquiry may not be absolute, but it is obvious that if a party is entitled to show cause and has a right to cross-examine the witnesses, such a right would be illusory in all but the simplest cases, if it is required to be exercised by lay persons...." 11. The circumstances in the present case, in my view, were such where the services of legal practitioner should have been provided to the petitioner and the petitioner should have been allowed to avail the services of a legal practitioner of his choice. He was facing a serious charge on the basis of which he has been dismissed from services. A major penalty has been imposed on him, as such I find declining the prayer of the petitioner to avail the services of legal practitioner has caused serious prejudice to him. On this ground I find the penalty imposed on the petitioner cannot stand. The petition is allowed and the impugned order imposing a penalty of dismissal on the petitioner is set aside. The petitioner shall be deemed to have continued in service throughout and shall be entitled to all consequential reliefs and benefits. He shall also be entitled to Rs. 2000/- as costs. Order accordingly.