Delhi High Court

Shri Santosh Kumar Panwar vs New Delhi Municipal ... on 1 June, 2011

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 01.06.211


+     R.S.A.No. 170/2002 & CM No. 461/2002

SHRI SANTOSH KUMAR PANWAR             ...........Appellant
                 Through: Mr. Vineit Malhotra, Advocate.

            Versus
NEW DELHI MUNICIPAL COMMITTEE/COUNCIL
                                    ..........Respondent
                 Through: Mr.Parag      Chaudhary,
                          Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                 Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

09.09.2002, which has endorsed the finding of the trial Judge

dated 11.10.2000 whereby the suit filed by the plaintiff seeking a

declaration to the effect that his termination order passed by the

defendant/New Delhi Municipal Council (NDMC) be declared null

and void; he deemed to be in continuous service since 08.09.1981

with consequential relief of arrears of salary had been dismissed.

2 The plaintiff was working as a junior clerk in the NDMC. On

05.09.1981 a theft was reported in the uniform store of the

Department; when the plaintiff reached the office he found that

the window glass had been broken and 81 meters of turban cloth

was missing; matter was reported; one Raghubir Singh was sitting

outside; his hand was bandaged; said Ragubir Singh lodged a false

complaint against the plaintiff that the plaintiff had taken bribe

money from Raghubir Singh; enquiry was initiated pursuant to

which the penalty of dismissal from service had been passed

against the plaintiff. Contention of the plaintiff is that in the

present case chargesheet had also not been filed; CBI had no

material to prosecute the plaintiff; however a departmental

enquiry was recommended against the plaintiff although there

was no material on record. The Enquiry Officer after framing

charges had given a finding against the plaintiff on 09.03.1984;

this enquiry had been finalized without giving opportunity to the

plaintiff to defend his case by a lawyer; the enquiry was violative

of the rules of natural justice; the order of enquiry officer was

affirmed by the Disciplinary Authority and thereafter in appeal;

contention of the plaintiff is that his service was illegally

terminated. Present suit was filed.

3 In the written statement it was contended that the plaintiff

has not come to the court with clean hands; it was pointed out

that the plaintiff was caught red handed while accepting a bribe;

CBI did not prosecute the plaintiff but had recommended a

departmental enquiry and imposition of a major penalty against

the plaintiff.

4 On the pleadings of the parties, the following six issues were

framed by 4the trial court:-

1. Whether the suspension of the plaintiff from services thereafter, departmental enquiry against him and after department enquiry the termination of the plaintiff service was illegal, violative of rules and regulations? OPP

2. Whether the plaintiff is entitled to salary and allowances from 08.09.1981 the date of his termination from services? OPP

3. Whether the plaintiff is guilty of not coming to the court with clean hands, if so its effect? OPD

4. Whether the suit is bad for non-joinder of the necessary parties.

5. Whether the suit is barred by rule 4 framed notification No. 282 education, dated 14.01.1976 amendment from time to time.

6. Relief.

5 Oral and documentary evidence was led. Both the fact

finding courts have returned a fact finding against the plaintiff

holding that there was no violation of the rules of natural justice

while conducting the enquiry. This has been dealt with while

dealing with issue No. 1.

6 This is a second appeal. It is yet to be admitted. The

substantial questions of law have been embodied on page 2 of the

body of appeal.

7 On behalf of the appellant, it has been urged that the finding

of the two courts below is illegal for the reason that time and

again the plaintiff had made a request for the services of a lawyer;

presenting officer before the Enquiry Officer was a CBI Inspector

and he was well versed and experienced in legal field; plaintiff not

having been permitted to be defended by a lawyer has

prejudicially affected his rights; this amounts to a violation of

rules of natural justice. Attention has been drawn to Rule 14 of

CCS (CCA) Rules, 1965. Reliance has also been placed upon

(1991) 2 SCC 283 J.K. Aggarwal Vs. Haryana Seeds Development

Corporation Ltd. and others to substantiate this submission. It is

pointed out that in this case where the department had been

represented by a person who was experienced in the field of law

and the services of a lawyer had not been granted to the

defendant; denial of the same had been held to be a violation of

rules of natural justice.

8 Arguments have been countered. It is pointed out that this

argument of learned counsel for the appellant has been dealt with

by the two fact finding courts below while dealing with issue No. 1

and does in no manner call for any interference.

9 The impugned judgment in this context had returned the

finding as follows:-

"11. The other contention of the learned counsel for the appellant is that the appellant was denied opportunity to engage or provide counsel by the inquiry officer and therefore the inquiry is vitiated. This contention of the ld. counsel also cannot be accepted. This contention was also raised by the appellant before the trial court which has been repelled and rightly so because the contention that the prosecuting officer was a person from the CBI is no ground to allow the services of a lawyer to the appellant. There is no allegation that the prosecuting officer was a lawyer. It is only in case the prosecuting officer is a lawyer that the appellant could claim right to be represented by a lawyer. A perusal of the record will show that the appellant has not even requested the inquiry officer for the services of a lawyer. In fact he had written letter to the Administrator for providing him the services of a lawyer. Even in the grounds of the appeal before disciplinary authority this plea was not taken. If the appellant wanted the services of a lawyer, he could have requested the inquiry officer and not the administrator for providing the same and it was only then for the inquiry officer to consider whether in the circumstances the services of lawyers could be provided or not. As discussed above that there is no assertion either before the inquiry officer or before the appellate authority or before the civil Court that the inquiry officer was requested to provide a lawyer to represent the case of the appellant and therefore this arguments will not be available to the appellant. Even if the appellant had requested the inquiry officer to provide the services of the lawyers, it was a discretion with the inquiry officer to provide the services of lawyer or not and the inquiry officer could not be compelled to provide the services of lawyer. The only thing is to be seen is that he had exercised his discretion reasonable. In similar circumstances, it was held in (1985) Service Law Reporter 710 (713) and 1985 Kerala Law Journal 194 (DB) that refusal of permission to be represented by a lawyer does not amount to violation of principles of natural justice. In this case also, the domestic inquiry was conducted in which presenting officer was Inspector of Police in CBI. The delinquent had service of a senior officer of the company for his defence. It was held that the inquiry officer was under no obligation to

accede to the request of delinquent for engaging a lawyer. Further there is no rule pointed out by the ld. counsel for the appellant which allows the engagement of a lawyer in departmental inquiry and in the absence of specific Rule requiring permission to be given to a civil servant to engage counsel to defend him in domestic enquiry refusal to grant such permission will not be a denial of reasonable opportunity. Same view had been taken in AIR 1956 Madras 460 (461), AIR 1966 Pb. 175 (178) and AIR 1974 SC 1589. Thus the finding of the inquiry officer and the procedure followed by him also cannot be faulted with on this ground also. Thus, I am entirely in agreement with the finding of the trial Judge.

10 This finding in no manner calls for any interference.

Admittedly the Enquiry Officer was not a legal man; contention of

appellant was that the presenting officer was an Inspector of the

CBI; it is not in dispute that the presenting officer although an

Inspector was not a person qualified in law; moreover both the

courts below had noted that the request for the service of a lawyer

had been made by the plaintiff to the Administrator and not to the

Enquiry Officer; it is also not his case that the services of a lawyer

are bound to be given to an employee; it is a discretionary power

depending upon the factual matrix of each case; presenting officer

not being a legal man and he not being possessed with a legal

degree; the judgment relied upon by learned counsel for the