J.K. AGGARWAL V. HARYANA SEEDS DEVELOPMENT CORPN. LTD. (1991) 2 SCC 283 : AIR 1991 SC 1221

J.K. AGGARWAL V. HARYANA SEEDS DEVELOPMENT CORPN. LTD. (1991) 2 SCC 283 : AIR 1991 SC 1221 

 

FACTS

1. Appellant was the Company Secretary of the Haryana Seeds Development Corporation Ltd., a government company. The short question in this appeal was whether in the course of the disciplinary inquiry initiated against the appellant by the Corporation on certain charges, which if established might lead to the appellant's dismissal from service, the appellant was entitled to engage the services of a legal practitioner in the conduct of his defence. 
2. The proceedings in the inquiry were regulated by the Haryana Civil Services (Punishment and Appeal) Rules, 1952. The Inquiry Authority, by his order dated August 8, 1989 had rejected the prayer made by the appellant even at the initial stage of the inquiry for permission to engage the services of a lawyer.
3. Before the High Court, appellant challenged the proceedings in the inquiry on grounds of denial of natural justice. The High Court dismissed the writ petition in limine.

 

ISSUE

Whether in the course of the disciplinary inquiry initiated against the appellant by the Corporation on certain charges, which if established might lead to the appellant's dismissal from service, the appellant was entitled to engage the services of a legal practitioner in the conduct of his defence?

 

RATIONALE

1. The right of representation by a lawyer may not in all cases be held to be a part of natural justice. No general principle valid in all cases can be enunciated. In non-statutory domestic tribunals, Lord Denning in the Court of Appeal in England favoured such a right where a serious charge had been made which affected the livelihood or the right of a person to pursue an avocation and observed.
2. In the present case, the matter is guided by the Provisions of Rule 7(5) of the Haryana Civil Services (Punishment and Appeal) Rules, 1952 which says: 

“7.(5) Where the punishing authority itself inquires into any charge or charges or appoints an enquiry officer for holding enquiry against a person in the service of the government, it may, by an order, appoint a government servant or a legal practitioner to be known as a “presenting officer” to present on its behalf the case, in support of the charge or charges. If the charge or charges are likely to result in the dismissal of the person from the service of the government. Such person may, with the sanction of the enquiry officer, be represented by counsel.” 

3. On a consideration of the matter, we are 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 rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett case that in defending himself one may tend to become “nervous” or “tonguetied”. Moreover, appellant, it is claimed, has had no legal background. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice.

 

HELD

The appellant shall appear along with his lawyer before the inquiry authority on that date and the subsequent dates to which the proceedings may stand adjourned. Appellant’s lawyer shall be entitled to cross-examine these witnesses and to address arguments. The inquiry officer shall be at liberty to refuse any prayer for adjournment which he thinks unreasonable and which in his opinion is intended to protract the proceedings.

 

COMMENTARY

If the oral evidence produced at the enquiry requires services of a lawyer for cross-examination of witnesses, or legal complexity is involved therein, or where complicated questions of fact and law arise, or where the evidence is voluminous and the party concerned may not be in a position to meet with the situation effectively or where he is pitted against a trained prosecutor, he should be allowed to engage a legal practitioner to defend him “lest the scales should be weighed against him”. These are all relevant grounds and in these circumstances, refusal to permit legal assistance may cause serious prejudice to the person concerned and may amount to a denial of reasonable opportunity of being heard.