Delhi High Court
Mr. Manohar Dewani vs Lt. Governor Of Delhi, ... on 1 December, 2006
Author: J Malik
Bench: J Malik
JUDGMENT
J.M. Malik, J.
1. The only question raised in this writ petition is whether the petitioner should be represented by an advocate during his appeal preferred before the Appellate Authority, Lieutenant Governor, respondent No. 1. The facts germane to the present writ petition are as follows. The petitioner was working as Executive Engineer in the Municipal Corporation of Delhi, City Zone. He was dismissed from service by Commissioner, MCD, respondent No. 2, under Section 95(2)(b) read with Regulations 9(ii) of the DMC (Control and Appeal) Regulations 1959. Aggrieved by that order, the petitioner preferred an appeal before Lieutenant Governor. The petitioner wanted to appear before the Appellate Court along with his advocates Mr. Vasudev Lalwani and Mr. S.K. Kapoor but they were not permitted to plead the case of the petitioner. Under these circumstances, it has been prayed that the Appellate Court be directed to hear the appeal of the petitioner through his counsel and he be restrained from deciding the appeal of the petitioner.
2. I have heard counsel for the parties. Learned Counsel for the petitioner vehemently argued that the petitioner has constitutional right to be defended by an advocate. He, however, very fairly admitted that there is no rule which authorises any advocate to represent the petitioner before the appellate authority. He submits that there is no rule which debars the petitioner, therefore, the petitioner should be permitted.
3. Arguments urged by counsel for the petitioner are bereft of force. Swamy's - CCS (CCA) Rule (Rule 14) 8 (a) is reproduced as follows:
The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, 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, having regard to the circumstances of the case, so permits:
Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the Inquiring Authority having regard to the circumstances of the case, and for reasons to be recorded in writing so permits.
Rule applicable to the petitioner runs as follows:
5. The Disciplinary Authority may nominate any person to present the case in support of the charges before the Inquiring Authority. The municipal officer or other municipal employee may present his case with the assistance of any other municipal officer or employee approved by the Disciplinary Authority, but shall not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits.
4. In Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors. , it was held:
27. The basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right to representation is available only to the extent specifically provided for in the Rules.
5. Again in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi 1993 SCC (LandS) 360, same view was taken.
6. In Indian Overseas Bank Officers' Association and Anr. v. All India Vijaya Bank Officers' Association and Anr. 2001 (II) LLJ 1417, it was held:
6...This aspect has been the subject matter of consideration by this Court on several occasions and it has been categorically held that the law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulations and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation. (N. Kalindi and Ors. v. Tata Locomotive and Engineering Co. Ltd. Jamshedpur : 1960-II-LLJ- 228; Dunlop Rubber Co. (India) Ltd. v. Their Workmen ; Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi and Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors. . Irrespective of the desirability or otherwise, of giving the employees an opportunity facing charges of misconduct in a disciplinary proceeding, to ensure that his defense does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself.
7. Thus here lies the rub. However, it is ordered that Appellate Court will decide the appeal expeditiously. The writ petition has no force and the same is therefore dismissed.
