Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1419 (GAU)

Bhushan Das v. Gauhati High Court

2017-11-09

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. P Katakey, learned counsel for the petitioner. Also heard Mr. UK Nair, learned Senior counsel for respondent Nos. 1, 2 and 3 and Mr. TC Chutia, learned State counsel. The petitioner in this case is serving as a Peon in the Court of the learned Chief Judicial Magistrate, Goalpara. FIR dated 31.03.2017 was lodged against the petitioner on the complaint of the Head Assistant of the office regarding missing of certain case records, which resulted in Goalpara PS Case No. 129/2017. It is stated that the petitioner was also arrested in connection with the aforesaid Police Station case and, accordingly, he was suspended from service by the order dated 10.04.2017. 2. A departmental proceeding being DP No. 2/2017 was drawn up against the petitioner. On an apprehension that the presenting officer in the enquiry would be a person, who would be a man of law, the petitioner has preferred this writ petition praying for a direction that he also be allowed to present his case through a legal practitioner. 3. The petitioner had made an application for being allowed to be represented by a legal practitioner before the enquiry officer, which stood rejected. Consequently, this writ petition has been preferred. In course of the proceeding, a question for determination has arisen that if the presenting officer in the departmental proceeding would be a man of law, in the event, if the petitioner is not allowed also to be represented by a man of law, certain prejudice may occur to him. Ordinarily, it is an accepted position that a delinquent has no right to be represented by a legal practitioner, unless of course, the departmental proceeding is being conducted and presented by a legal practitioner. 4. In the aforesaid premises, the consideration before this Court would be as to whether the petitioner is also entitled to have his case presented by a legal practitioner as the presenting officer on behalf of the department would be a man of law. 5. It is pointed out by Mr. 4. In the aforesaid premises, the consideration before this Court would be as to whether the petitioner is also entitled to have his case presented by a legal practitioner as the presenting officer on behalf of the department would be a man of law. 5. It is pointed out by Mr. UK Nair, learned Senior counsel that in his representation for being allowed to be represented by a legal practitioner, the petitioner has taken two grounds, where the first ground was that in the departmental proceeding, the case of the department would be presented by a man of law and the second ground was that during his custodial detention, the petitioner had suffered to an extent that he is physically not in a position to defend himself. The second ground in seeking a legal practitioner is found to be unacceptable to the Court. But, however, as regards the first ground the same merits certain consideration. 6. In J.K. Agarwal v. Haryana Seeds Development Corporation reported in (1991)2 SCC 283 , the Hon'ble Supreme Court in paragraph 8 had held that as the presenting officer of the department would be a man of law, there is a likelihood of the combat being unequal, entailing a miscarriage or failure of justice and it would also be a denial of a real and reasonable opportunity of defence by the delinquent, who would be against a presenting officer, who is trained in law. 7. The Hon'ble Supreme Court was also of the view that a decision in this regard has to be reached on a case to case basis on the situational particularities and the special requirements of justice in the case. Accordingly, in paragraph 9, it was held that the Court was persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rules resulting in a failure of natural justice. 8. In the case at hand, the department would be represented by a judicial officer, inasmuch as, the departmental proceeding has been initiated in the office of the learned CJM, Goalpara. 9. In this respect, Mr. Nair, learned Senior counsel refers to two decisions of the Hon'ble Supreme Court wherein it has been held that a judicial officer is not a legal practitioner. 9. In this respect, Mr. Nair, learned Senior counsel refers to two decisions of the Hon'ble Supreme Court wherein it has been held that a judicial officer is not a legal practitioner. In Dinesh Chandra Pandey v. High Court of Madhya Pradesh & Anr., reported in (2010) 11 SCC 500 , the expression legal practitioner was considered and explained where it has been held that a sitting Judge of the High Court is not a legal practitioner. Again in Ramesh Chandra v. Delhi University reported in (2015) 5 SCC 549 in paragraph 70 it has been held that if any person, who is or was a legal practitioner, including a retired Judge of a High Court is appointed as an enquiry officer in an inquiry initiated against the employee, the denial of assistance of legal practitioner to the charged employee would be unfair. 10. Considering the aforesaid propositions of law and also considering the fact that the judicial officer is likely to be appointed as a presenting officer on behalf of the department would be a man of law, an equitable and a fair proposition would be that the petitioner be also allowed to be represented by a man of law of his choice. In the event of a denial to allow the petitioner to engage a man of law, the presentation of the case on behalf of the petitioner would be seriously prejudiced and he would be up against the authorities who would be unequal to him. 11. In course of the hearing, the learned counsel for the parties were requested to arrive at a consensus as regards the particular person, who would be a man of law to represent the petitioner in the disciplinary proceeding to be held against him. Accordingly, Mr. P. Katakey, learned counsel for the petitioner has referred the name of Md. Anowar Hussain, a legal practitioner in the Court of the learned Chief Judicial Magistrate, Goalpara to be the representative of the petitioner to present his case, to which, Mr. Nair, learned Senior counsel has no objection. In view of the above, in the departmental proceeding to be held against the petitioner in DP No. 2/2017, the petitioner is allowed to be represented by Md. Anowar Hussain, legal practitioner in the Court of the learned Chief Judicial Magistrate, Goalpara as his defence assistance. 12. Nair, learned Senior counsel has no objection. In view of the above, in the departmental proceeding to be held against the petitioner in DP No. 2/2017, the petitioner is allowed to be represented by Md. Anowar Hussain, legal practitioner in the Court of the learned Chief Judicial Magistrate, Goalpara as his defence assistance. 12. However, it is made clear that this order has been passed in the particular facts and circumstances of the case and should not be construed to be a precedence in future for all cases, inasmuch as, provided by the Hon'ble Supreme Court in JK Agarwal's case (supra), a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justice of the case. In terms of the above, this writ petition stands disposed of.