Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 19 (ORI)

Dushashan Bag v. State Of Odisha

2021-01-11

BISWANATH RATH

body2021
JUDGMENT This matter is taken up through Video Conferencing. 1. Heard Mr. S.P. Swain, learned counsel for petitioner and Mr. R. Mishra, learned AGA for O.Ps. 2. Short question involved herein is as to when the Rule 15(5) of the Orissa Civil Services (C.C.A) Rules, 1962 hereinafter in short be called as 'the Rules, 1962' permits a Government servant to take assistance of a legal practitioner to present his case before the inquiring authority and when the Disciplinary Authority has already permitted the delinquent to take assistance of a legal practitioner, whether the inquiring officer is justified in rejecting the claim of the petitioner in the matter of engagement of legal practitioner on behalf of him? 3. Taking this Court to the plea taken in the communication vide Annexure-7 Mr. Swain, learned counsel for petitioner submitted that since the Department is examining Officers higher in position than the petitioner appearing as department witnesses, petitioner being a Constable is feeling insecure to crossexamine and/or putting questions to the witnesses(s) and it is, only on this context, the delinquent prayed for taking assistance of legal practitioner. 4. Mr. Mishra, learned AGA, however, taking this Court to the provision at Rule 15(5) of the Rules, 1962 submitted that the permission to engage a legal practitioner arises only in the event the Department takes assistance of the legal practitioner, though however, did not dispute to the subsequent part in the Rule 15(5) of the Rules, 1962 authorizing the Disciplinary Authority to permit the Government Servant to be represented by a legal practitioner in special contingency. Taking this Court to the facts of the case and the reasons assigned by the Disciplinary Authority Mr. Mishra, learned AGA submitted that considering this aspect, the Disciplinary Authority has permitted the petitioner to take assistance of a legal practitioner and thus submitted that the order of the inquiring officer appears contrary to the direction of the Disciplinary Authority. Mr. Mishra, learned AGA, however attempted to justify the impugned order on the premises that since the disciplinary authority doesn't take assistance of legal practitioner, therefore the delinquent cannot be permitted to take assistance of a legal practitioner. 5. In the circumstance, Mr. Mishra, learned AGA submitted that there is no fault in the impugned order requiring interference of this Court. 6. 5. In the circumstance, Mr. Mishra, learned AGA submitted that there is no fault in the impugned order requiring interference of this Court. 6. Considering the rival contentions of the parties, this Court finds, at the first instance in disposal of a Writ Petition bearing No.24249 of 2020, this Court by order dated 24.09.2020 has passed the following order: 'The petitioner has filed an application / representation, vide Annexure-9, before the Disciplinary Authority to allow him to engage a Defence Assistant in D.P. No.11 of 2019 initiated against him on the basis of a criminal proceeding. The said representation / application vide Annexure-9 is still pending before the authority concerned. Regard being had to the facts and submission and the nature of relief sought for by the petitioner, without going into the merit of the case, this Writ Petition is disposed of directing the concerned Disciplinary Authority to dispose of the representation of the petitioner vide Annexure-9 on merit within a period of eight weeks from the date of receipt of a certified copy of this order / true soft copy of the order available in High Court's Website. The Disciplinary Authority is further directed to satisfy the demand of law that, in the Disciplinary Proceeding opportunity of effective hearing should be afforded to the delinquent. The petitioner is directed to supply a certified copy of this order / true soft copy of this order available in the High Court's Website along with a copy of the writ petition containing all the Annexures to Opposite Party Nos.3, 4 & 5 for convenience and reference to Annexure-9.' 7. On reading of the aforesaid order this Court finds, there is scope provided to the authority by the direction of this Court for considering the request of the petitioner. It is, at this stage of the matter, looking to the request of the petitioner vide Annexure-7 this Court finds, petitioner has a clear stand of feeling insecure to cross-examine the official witnesses who ranked higher to the petitioner. It is, at this stage of the matter, looking to the request of the petitioner vide Annexure-7 this Court finds, petitioner has a clear stand of feeling insecure to cross-examine the official witnesses who ranked higher to the petitioner. Taking the request of the petitioner vide Annexure-7 into consideration, it appears, after the direction of this Court the disciplinary authority vide communication dated 20.10.2020 has passed the following order : 'With reference to your representation on the subject cited above, it is to intimate that in obeying the order of Hon'ble High Court in W.P.(C) No.24249 of 2020 to satisfy your demand for engagement of Defense Assistant you are allowed for the same as per Rule laid down vide Rule 14(8) of the CCA Rules regarding appointment of a Defense Assistant and of her provision thereof. On the above circumstance you are informed to submit the name and detail particulars of the Defense Assistant you wish to be engaged for further action at this end. Your reply should reach to the undersigned within 15 days from the date of receipt of this letter.' It is, at this stage of the matter this Court also takes into consideration the provision at Rule 15(5) of the Rules 1962, which since relevant for the purpose, is quoted hereunder: 'The disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the 'inquiring authority'). The Government Servant shall have the right to engage a legal practitioner to present his case if the person nominated by the disciplinary authority as aforesaid, is a legal practitioner. The inquiring authority may also having regard to the circumstances of the case, permit the Government servant to be represented by a legal practitioner.' On reading the above provision and for the permission being granted by the authority by the order at Annexure-10 this Court observes, the permission granted by the Disciplinary Authority, on the request of petitioner, has to be read conjointly and this direction of the Disciplinary Authority must be construed to be allowing the delinquent to take assistance of the legal practitioner, which appears to be in terms of Rule 15(5) of the Rules, 1962. It is here observed, once the provision is made asking the Disciplinary Authority to take decision in such matter, the Disciplinary Authority being the inquiring authority has permitted the delinquent in such matter The inquiring officer has no further scope to interfere in the same. This Court here also observes, in terms of Rule 15(5) of the Rules, 1962 and reasons involved, the petitioner is also otherwise entitled to such benefit. It is, in the circumstance, this Court finds, the decision of the inquiring officer depriving the delinquent in taking assistance of a legal practitioner in spite of being permitted by the provision at Rule 15(5) and also by the order of the Disciplinary Authority, is bad. This Court thus interfering in the impugned order vide Annexure-11 sets aside the same and permits the petitioner to take assistance of the legal practitioner in the disciplinary proceeding faced by him and also in the ongoing inquiry proceeding. In the event the inquiry proceeding is still continuing, petitioner is directed to bring the order of this Court to the notice of the inquiring officer along with the name of the legal practitioner to assist him in the inquiry proceeding and take the next date of posting of the matter for the purpose of cross-examination of Official witnesses and also for submission purpose. With the aforesaid observation and direction the Writ Petition succeeds. As restrictions are continuing due to COVID-19, petitioner(s) may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.