BOARD OF TRYSTEES OF THE PORT OF BOMBAY v. DILIPKUMAR RAGHAVENDRANATH NADKARNI 8 AND OTHERS

The Judgment of the Court was delivered by A

DBSAI, J. No Special leave granted.

We heard Mr. F. S. Nariman for the appellant and Dr. Y.S. Chitale for the first respondent. With ihe consent of parties we 0 p·roceed to dispase of the appeal. , , A charge-sheet was drawn-up against the first respondent for tbe alleged misconduct and an Enquiry Officer was appointed to hold the enquiry against the first respondent. Before the enquiry opened, the first respondent submitted a request seeking permission c t- to engage a legal practitioner for his. defence. The Chairman of the appellant rejected this request and simultaneously appointed two · officers, namely, Shri R..K. Shetty and Shri A.B. Chaudhary, Legal Adviser and Junior Assistant Legal Adviser respectively of the appellant as Presenting Offic~rs before the Enquiry Officer, A copy of this letter was endorsed to the first respondent with a foot note D that bis. request for permitting him to appear through a legal practi- tioner in the enquiry has been rejected by the Chairman. As a · sequel to the rejection of bis request, the first respondent out of compelling necessity submitted a request tbat Sbri V.V. Nadkarni" .. be permitted to appear in bis defence• which appears to have. been granted. The enquiry opened on April 13, 1976. On May 8, 1976 E Bombay Port Trust Empl_oyees Regulations 1976 came into force. Regulation 12(8) reads as under : ·

"12(8) : The,employee may _take the assis_tance of any other employee or, if the employee is a class III or a Class IV employee, of an "Office Bearer" as defined in Clause (d) (I of Section 2 of the Trade Unions Act, 1926 (16 of 1926) of the union to which he belongs, to present the case on his behalf, but may not engage a legal practitioner for the pur· pose unless the said Presenting Officer appointed by th~ disciplinary authority is a legal practitioner, or, the disci· plinary authority, having regard to the circumstances of the case. so permits.'!- .' It may be mentioned that the date on which the aforemen- _tioned regulation came into force, the second out of 25 witnesses for 1 the employer was in the witness box. It may as well be mentioned -H that even after the Regulation 12 (8) came into force, neither the Enquiry Officer nor ·the Chairman of the appell~nt thought .fit to

832 Stil>RllMll COURT REPORTS · [1983] I li.C.R. A review the earlier decision so as to enable the first respondent to appear through a legal practitioner. At the end of the enquiry, the first respondent was dismissed from service.

The first respondent challenged the legality and validity of the order of dismissal in Misc. Petition No. 705 of 1979 in the High B Court of Judicature at Bombay. A learned Single Judge.of the High () Court by his judgment and order dated September 13, 1982 quashed and set aside the order of dismissal, inter alia, holding that while appointing two Presenting Officers both legally trained,'.the Chairman of the appellant failed to afford a reasonable opportunity to the first c respondent to defend himself by refusing him permission to appear through a legal practitioner and the principles of natural justice are violated. An appeal being 0.0.C.J 594 of l 982 by the appellant was dismissed in limine by a Division Bench of that High Court. Hence this appeal by Special leave .. ----t D We were not inclined to grant !eave to appeal in this case, but as we want to clear a legal misconception we thought fit to hear. ie~rned counsel on either side and to dispose of this appeal by . a. • short judgment.

The narrow question which we propose to examine in this appeal is. whether where in a disciplinary enquiry by a domestic tribunal, the employer complaining misconduct appoints legally trained person as Presenting-cum-Prosecuting Officer the denial or refusal· of a request by the delinquent employee seeking permission . to engage a legal practitioner to defend him at the enquiry, would constitute such denial of reasonable opportunity to defend one self and thus violate one of the essential principles of natural justice which would vitiate the enquiry ?

The time honoured and traditional approach is that a dom~~tic enqu'iry is a. managerial function and that it is best left to manage- ment without the intervention of persons belonging to legal profes· sion. This approach was grounded on the '{iew that a domestic . tribunal holding an enquiry without being unduly influenced by strict rules of evidence and the procedural jagger-naught should hear the •. delinquent employee in person and in .such an informal enquiry, the B delinquent officer would be able to defend himself. The essential assumption underlying this belief is questionable but it held the field for some time and there. are decisions of this Court in Brooke Bond

OOARD OF TRUs1EES v. DILIPKUMAR (Desai, 1.). 833

India (Pvt.) Ltd. v. Subba Raman (S) and A11r.(1) and DUnlop Rubber Co. v., Workmen('), in which it bas been held· that in a disciplinary enquiry before a domestic tribunal a person accused of misconduct has to conduct his own case and therefore as a corollary it cannot be said that in such an ·enquiry against . a workman natural justice demands that he ought to be represented by a representative of his Union much less a member of the legal profession_. While buttres- B sing this approach, an observation was made that unless rules · prescribed for holding the ·enquiry do not make an enabling provision that the workman charged with misconduct is entitled to be repre· · sented by a legal practitioner, the Enquiry Officer and/or the ·employer would be perfectly justified in rejecting such a request as it. would vitiate the informal atmosphere of a 'domestic tribunal. A c strikingly different' view was sounded . by Lord Denning in Pet v. Greyhound· Racing Associatzon Ltd;(3), wlierein the concerned authority directed an enquiry to be held into the withdrawal of a traiqer's dog from a ra<;e at .a stadium licensed by the National Greyhound Racing Club. The rules of the GJub did not prescribe · .the procedure to be followed in such an_ enquiry, and there was D negative provision excluding a legal practitioner from such . an enquiry. The procedure for enquiry was the routine one of exami- nation and cross-examination of the witnesses. The licensee charged with misconduct sought permission to be represented ·by counsel and Solicitor at the enquiry, . which· request was turned down by track - \ ' E stewards. When the inatter reached the Court of Appeal, Lord .Denning observed as und'er :

"I should have thought, therefore, that when a: man's reputation or livelihood is at stake, he not only has a right to speak by his own .mouth. He has also a right to speak by cpunsel or solicitor."

The trend therefore is in the direction of permitting a person who is likely to suffer serious civil or pecuniary consequences as a 'result of an enquiry, .to enable him to defend himself adequately, he may be permitted to be represented by a legal practitioner. But we want to be very clear that we do not want.to go that far in this case because it is not necessary for us to do so. The all importap.i question : where as a sequal .to an adverse verdict in a domestic enquiry serious I I (!) [1961] 2 Labour Law Journal 417. H (2) [1965] 2 SCR 139. (3) [1968] 2 All E.R. 545.

834 SUPREME COURT REPORTS [1983) l 9.c.a.

A civil and pecuniary consequences are likely to ensue, in order to enable the person so likely to sulfer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner is kept open.

B We concern ourselves in this case with a narrow question whether where in such a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting·cum·Prosecuting Officer to repre- sent the employer by persons who are legally trained, the delinquent employee, if he seeks permission t.o appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the delinquent employee had not been afforded a c reasonable opportunity to defend himself, thereby vitiating one of the essential principles of natural justice.

Even in a domestic enquiry there can ·be very serious charges and adverse verdict ·may completely destroy the future of the delin: / D quent employee. The adverse verdict may so stigmatize him that his · •.

future would be bleak and bis 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 be combines the role of a Presenting-cum-Prosecuting Officer and an Enquiry Officer a.Judge and a prosecutor rolled into .E one. In the past it could be said that there was an informal atmos- phere before such a domestic tribunal and that strict rules of evidence and pitfalls of procedural law did not bamstrin~ the enquiry by such a domestic tribunal. We have moved far away from this stage. The situation ·is where the . empfoyer· has on his payrolls labour F officers, legal advisers -lawyers in the garb of employees 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 to the delinquent employee to be represented by a legal practitioner, the matter would bdn the dis- G . cretion 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 permit- ted to .appear through a legal practitioner. Why do we say so ? H Let us recall the nature of enquiry, who held it, where it is held and whafis the atmosphere ? Domestic enquiry is claimed to be a managerial function. A man of the establishment dons the robe of

BOARD OF TRUSTEES . - v. DILIPKUMAR (Desai, J.) 835

a Judge. it is held in the establishment office or a part of it. Can it even. be compared to the adjudication by an impa1tial arbitrator or a court presided over by an unbiased judge. The enquiry officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained ·minds on behalf of employer simultaneously denying that ·opportunity to delinquent employee. The weighted scales and tilted balance can· only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for court_s alone, it applies. with equal vigour and rigour to all those who must be responsible for fair play c in action. And a quasi-judicial tribunal cannot view the matter with equanimity. on inequality of representation. This Court in M. H. Hoscot v. State of Maharashtra(') clearly ruled that in criminal 1 trial where prosecution is in the hands of public prosecutor, accused, for adequate representation, must have legal aid at State cost. · This will apply mutatis mutan{iis io the present situation. D

We are faced with the situation where when the enquiry commenced the rules neither provided for permitting the delinquent employee to be represented by an advocate· nor an embargo was placed on such appearance. The rules were silent on this point: But E · the Chairman of the appellant while rejecting the request of the first ......... respondent seeking permission to appear through a legal· practitioner simuUaneously· ·appointed M/s. R.K. Shet.ty and A. B. Chaudhary, Legal Adviser and 1unior Assistant Legal Adviser respectively, in the employment of the appellant as Presepting.cum-Prosecuting Officers; \ Wliat does this signify ? The normal inference is that according to F the Chairman of the appellant the issues that would arise in the enquiry were such complex issues involving intricate legal proposi- tions that the Enquiry Officer would need the assistance of Presen- ting-cum-Prosecuting Officers. And look at the array of Jaw Officers of the appellant appointed for this purpose. Now examine the approach of the Chairman. While he .directed two of his law officers to conduct the enquiry as prosecutors, he simultaneously proceeds to ' deny such legal representation to the d~lincjuent employee. when be declined the permission .to the fir~t respondent to appear through a legal practitioner. Does this disclose a fair attitude or fair play in H OJ [19781 3 sec 544.

836 SUPREME COURT REPORTS tt983] 1 s.c.i. A action ? Can one imag ine bow the scal~s were weighted 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 Post Trust while the first respondent was asked either to fend for himself in person or have the assistanc.e of another employee .• 8Uch as Nadkarni who is not shown to be a legally trained person B but the delinquent employee cannot engage legal practitioner at hia 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 Chairmall of the appellant was not precluded from grant-

c ing a request because the rules did not enact an inhibition. Therefore apart from general propositions, in the facts of this case, this enquiry would be a ·one sided enquiry weighted against the' delinquent Officer · and would result in denial of reasonable opportunity to defend him· self. He was pitted against the two legally trained minds and one - bas to just view the situation where a person not admitted to the 'benefits of niceties of law is pitted against two legally trained minds 0 and then asked to fend for himself. In such a situation, it does not require. a l'ong argument to convince that the delinquent employee . was denied a reasonable opportunity to defend himself and the con- . clusion arrived at would be in violation of one of the essential principles of natural justice, namely, that a person against whom ·enquiry is held must be· afforded a reasonable opportunity to defend E himself. '

Are we charting a new course? The answer 'is obviously in the negative. In C.L. Subarmaniam v. Collector of Customs, Cochin(') a Government employee requested the Enquiry Officer to permit him to appear through a legal µractitioner and even though, a F trained public prosecutor was appointed as Pre.senting Officer, this request was turned down. When the matter reached this Court, it was held that the enquiry was in breach of the principles of natural justice. The order of the domes!ic tribunal was sought to be ,, sustained on the submission that sub-rule 5 of rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 that G " .............. TheGovernment Servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority but may not engage a legal practitioner for the purpose unless the person nominated by ihe Disciplinary Authority as afore- said is a legal practitioner or unless the Disciplinary Authority, H (I) [1972] 3 SCR 485.

BOARD OF TRUSTEES v. DILIPKUMAR (Desai, J.) . 83 7 . ' .

having regard to the circumstances ·of the case, so permits." The A submission was that it is a matter within the discretion of the - Enquiry Officer whether· to grant permission and more so because the relevant rule fetters the claim to appear through a legal practi- tioner. Negativing this contention, this Court held that the·fact that the c3seagainst the appellant was being handled by a trained pro· secutor was by itself a good ground .for allowing ~he appellant to B engage a legal practitioner to defend him lest the scales should be weighted against him. This conclusion was recorded after reference . to. the earlier decisions in Brooke Bond India (Pvt) Ltd, v. Subba Ramman (S) and Anr; and Dunlop Rubber Co. v. Workmen. Reference was made 'to Pet's c~se, referred to earlier, hut it is observed that this case bas not commended itself to this Court.. The_ c earlier cases of this Court were distinguished. In our view we have reached a stage in our onward march to fairplay in action that where in an 'enquiry before a domestic tribunal the delinquent ·officer is pitted against a legally trained mind, if be seeks permission to· appear . • through a legal practitioner the refusal to grant this request would amount to ·denial of a reasonable request to defend himself and the D essential principles of natural justice would be violated. This view has been taken by a learned Single Judge and while dismissing the appeal in//mine.approved.by the Division Bench of the High Court commen.ds to us. Therefore, this appeal is liable to be -dismissed ..

. .,; . We would reach. the same conclusion for a different reason :1together. The first respondent while submitting a reply to the E

charge-sheet dated 14th April 1975 requested tl:ie Chairman of the appellant to permit him assistance ot an advocate at the enquiry. This request was refused and the decision was conveyed by the Dock Jl1anager as per his ieiter dated March 197 5. The enquiry opened F on April 13, 1976. By May 8, 1976 evidence of only one out of 25 witnesses of th~ employer was offered and the second· ,witness was under examination. On that date Bombay Port Trust Employees. (Regulation) 1976 admittedly came into force. The relevant regula- tion 12(8) is extracted herein before. The latter portion of the regulation practically borrows the language of sub·rule (5) of rule 15 G . . ' referred to herein before, in that it provides that the delinquent ' officer may not engage a legal practitioner for the purpose unless the 'Presenting Officer appointe~ by the Disciplinary Authority is the 7- .... legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits. Now the first respondent had H already submitted his request for appearing through a legal practi- tioner at the enquiry. This eminently just request was turnCd down

838 SUPREME COURT REPORTS (1983] I S.C.R.

A on untenable grounds, and to make matters worse for the delinquent . employee two law officers of the appellant were appointed Presenting- cum-Prosecuting officers. ·Assuming that in the absence of rules the Chairman has a discretion which was required to be exercised wisely yet taking shelter behind legal facade it was exercised against the first respondent because be was not under any statutory obligation to B grant this request. However, when Regulation 12(8) came intoforce the situation materially altered and t!Je large number of witnesses almost all except one were examined after the Regulation came into force and which made it obligatory to grant the request of the first re.spondent because the regulation provided granting of permission to appear and defend by a legal practitioner once the department was c represented by legally trained minds. A very feeble submission was made by Mr. Nariman that after the Regulation 12(8) came into force; the request was not. renewed. In our opinion, that is ~ardly relevant. The unjustly refused request was already there and obliga- tion under the regulation coupled with fairplay in action demanded that the employer should have suo motu reviewed his order refusing , D the request. In fact one can go so far as to say that the Enquiry Officer in order to be fair and just, whenever he finds the employer appointing legally trained persons as Presenting·cum-Presecuting Officers must enquire from the delinquent employee before commen- cement of enquiry whether he would like to take assistance of a legal practitioner. The option then is with the delinquent employee.' In E this connection, we would like to refer to a weighty observation on this point where despite constitutional inhibition this Court conceded . such a right: In <.K. Roy v. Union of India(') the learned Chief Justice while rejecting the contention tbat a detenu should be entitled to appear through a legal adviser before the· Advisory Board obser- ved that Art. 22 (3) (b) makes it clear that the legal practitioner F should not pe permitted to appear before an Advisory Board for any party. · Wbile noting this constitutional mandate, the learned Chief Justice proceeded to exa.mine, what would be the effect if the depart- ment is represented befor~ the Advisory Board by a legally trained person. It was held tbat in sucb a situation despite the inhibition of Art. 22(3)(b) the fair procedure as contemplated by Article 21 G requires that a detenu be permitted to appear by a legal practitioner. Thus spoke the learned Chief Justice :

"We must.therefore make it clear that if the Detaining Authority or the Government take the aid of a legal practi-.

(I) [1982] 2 SCR 272 @ 345,

BOARD OF TRUSTEES v. DILJPKUMAR (Desai, J.) 839

tioner or a legal adviser before the Advisory Board, the A ' •,.-,/ • detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that • Officers of the Government in the concerned· departments often appear before the Board and assist it with a ·view to justifying the detention orders. · If that be so, we must clarify that the Boards should not permit the authorities to B do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such Officers are not "legal practiiioners" or legal Advisers."

A.nd this view was" taken as flowing from Art. 21 which mandates that no one shall be deprived of bis life or liberty except in accor- c dance with the procedure prescribed by law. The expression 'life' :does not merely connote animal existence or a continued drudgery through life. The expression 'life'· bas a much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adver- sely affect reputation or livelihood of a persJn, some of the finer D graces of human civllisation which make life worth living ·would be jeopardised and the same can be put fo j~opardy only by .Jaw which inheres fair procedures.· In this context one can recall the famous . words of Chapter II of Bhagwad Gita :

Sambhavitasya Cha Kirti Marnadati Richyate E Therefore in this case, there can be no doubt that for the additional reason that afier the Regulation 12(8) came into force, the first respondent should have been given a reasonable <;>pportunity to appear through legal practitioner and failure on their part had vitiated the enquiry. For these reasons, this appeal fails and is F

----- 1 dismissed with costs quantified at Rs. 2,000.

· . Now, we may note the consequence of this decision. As tl)e decision reached by the domestic tribunal is held to be vitiated on the groun'd that the enquiry was he.Id in violation of the principles of natural justice on the ground that the first respondent was n~t afford- G ed a reasonable opportunity to defend himself, the High Court was justified in quashing the order of dismissal. The sequel to our order ' would certainly mean that it would be open to the appellant to continue the enquiry. But it must be. expedited. We therefore direct that while continuing the ·enquiry, it will be open to the H appellant to treat the examination-in-chief of each witness already recorded during the enquiry as proper but all witnesses examined at

840 SUPREME COURT REPORTS i1983l i s.c.1'. A the enquiry. will have to be offered to the first respondent for cross- examination and the respondent .would be entitled to appear through • a lawyer cif his choice and even examine witnesses and participate _in the enquiry. The earlier cross-examination may also be retained as part of the record. Both sides· would be entitled .to adduce fresh evidence both document and oral, if considered necessary. Tb~ first· B respondent would be entitled to call upon the appellant to produce any document which ·he desires for effective adjudication subject to the decision of the-Enquiry Oflker about its relevance and necessity for efficient and just disposal of the enquiry. As the order of dismissal · is being set aside and the enquiry is being continued, the order suspending the first respondent!from service pending enquiry would be c revived an.d the appellant should pay subsistance allowance throughout this period and till the end of the, enquiry which would be continued hereafter after taking credit of whatever payment that had been made since the suspension order and till ioday. The payment herein directed should be made within a month from today.- • D P.B.R. Appeal dismissed.