AN ARTICLE ON NATURAL JUSTICE, PART XIV

SOME REFLECTIONS IN INDUSTRIAL AND SERVICE JURISPRUDENCE : THE SCOPE OF THE PRINCIPLES OF NATURAL JUSTICE IN DISCIPLINARY PROCEEDINGS :

AN APEX JUDICIAL DICTUM : PART – XIV?

AJAY KUMAR SAMANTARAY, EX-CENTRAL LABOUR SERVICE

PRELUDE : The esteemed readers are aware that there is no law or rules which regulate disciplinary proceedings against the delinquent employees. The disciplinary enquiries are conducted solely on the basis of the principles of natural justice. I have already penned more than a dozen of articles on domestic enquiry, disciplinary proceedings and proportionality of punishment.

??????????? On 8 July 2010 a case came up before the Hon’ble Supreme Court concerning a Judicial Officer in Madhya Pradesh who was removed from services on the charge of amassing disproportionate assets beyond known source of his income. During the course of enquiry he had demanded the assistance of a legal practitioner to defend him in the domestic enquiry which was declined. He raised a plea that there has been denial of the principles of natural justice in his case. Now the question before us is :

IF A DELINQUENT HAS BEEN DENIED THE ASSISTANCE OF A LEGAL PRACTITIONER IN THE DOMESTIC ENQUIRY, CAN IT BE SAID THAT THE PRINCIPLES OF NATURAL JUSTICE HAS BEEN VIOLATED ?

??????????? In order to know the answer to the above question it is intended to discuss the following case – law :

THE CASE-LAW :

DINESH CHANDRA PANDEY vrs. HIGH COURT OF MADHYA PRADESH AND OTHERS, [2010 (127) FLR 760 : 2010 (3) LLN 661], DoJ : 8 JULY 2010?

FACTS OF THE CASE :

??????????? One, Shri Dinesh Chandra Pandey was appointed to the post of Civil Judge in the Madhya Pradesh Judicial Service (Class II) on 27 January 1982. After completion of his training period, he joined as a Civil Judge at Dhamtari on 12th September 1982. During his tenure as Civil Judge certain irregularities were noticed by the higher authorities and on 7th December 1988, a chargesheet was served upon him, primarily, on the ground that he possessed disproportionate assets to his known source of income. He was served with a charge – sheet containing two articles of charges. One out of the two charges was not proved while the other charge (charge no. 1) stood proved against him. It would be quite pertinent to know the detail of the imputation which reads as follows :

“That the said Shri. D. C. Pandey while his posting as Civil Judge, Class II and JMFC, Raipur has a bank account in State Bank of India, Account No. SB/8833, the balance whereof swelled from Rs. 2170.01 to Rs. 35036.92 paise within the period from January 1984 to 6th? May 1985, his explanation in this behalf having been found unconvincing considering the disproportionateness of the said increase in his bank balance to his salary income and pattern and frequency of deposits and the said increase in balance is capable of no other reasonable explanation than that of illicit gains as the source of money which renders his integrity gravely doubtful.”

??????????? Shri Dinesh Chandra Pandey, the delinquent denied the allegations and submitted on 30 January 1989 that he owns 37 acres of land in Bilaspur and has agricultural income to the extent of Rs. 50,000/- per annum. It is out of this agricultural income that he has been depositing amounts in the bank and has not committed any violation of service regulation or other offence which would attract disciplinary action against him. The competent authority decided to conduct a regular departmental enquiry and appointed one, Shri. G. R. Pandya, District and Sessions Judge, Raipur, as enquiry officer. Besides appointing an enquiry officer, the High Court also appointed Shri. Ram Krishna Behar, Additional Judge as Presenting Officer. During the course of enquiry, the delinquent made an application for permission to engage a legal practitioner to assist him in the departmental enquiry. The said request was declined by the High Court vide order, dated 4th December 1989. The appellant participated in the enquiry and the enquiry officer submitted his report on 4th April 1990 and returned the finding of guilt against the appellant. The concluding paragraphs of the report read as follows:

“Shri. Pandey was saving Rs. 600 per month out of his salary and therefore, this amount was quite insufficient for making such a large saving. Mere saying of Shri. Pandey received the amounts frequently from his mother is not sufficient. Something more was required to explain the deposits. This type of explanation was already given by Shri. Pandey during the preliminary enquiry and was already found unsatisfactory, hence further opportunity was given to Shri. Pandey, by holding this enquiry to give reasonable and convincing explanation regarding the source of his income. I am sorry to say that Shri. Pandey could not assess the seriousness of the matter and went on repeating that the money was sent by his mother. The mother of Shri. Pandey as well as the customers who had purchased the produce or the messenger who used to being the money frequently from Bilaspur to Raipur have not been examined. Under these circumstances, bald statement of Shri. Pandey that money was received by him from his mother does not appear to be correct. Thus, I come to the conclusion that charge No. 1 regarding the frequent deposits made by Shri. Pandey within a span of short period is proved against him.”

??????????? The Disciplinary Authority, on receiving the enquiry report, issued a show cause notice to Shri. Pandey on 16th March 1991 informing him that finding of the enquiry officer on Art (1) had been accepted and as to why punishment should not be imposed upon him to which he submitted a detailed reply. The Disciplinary Authority vide its order dated 10th June 1992, opined that the stand taken by the delinquent was not satisfactory and consequently, imposed the punishment of removal from service. The delinquent, then preferred an appeal against this order before the Governor which also came to be dismissed vide order dated 3rd February 1993. The order of removal from service, as confirmed by the appellate authority, was challenged by the delinquent by filing a writ petition (no. 3847 of 1992) in the High Court which also came to be dismissed by a learned Single Judge vide order dated 1st July 2003. Following the dismissal of the writ petition, the delinquent filed a Letter Patent Appeal which was also dismissed on 17 December 2004.

APPEAL BEFORE THE SUPREME COURT

??????????? Having felt aggrieved by the order of the Division Bench of the High Court the delinquent approached the Hon’ble Supreme Court by filing Civil Appeal No. 2622 of 2005.

Appreciation of Facts :

??????????? The? Hon’ble Supreme Court, while taking up the appeal for adjudication, stated that from the facts of the case, the charge against Shri. Dinesh Chandra Pandey was a very limited one. In fact, the deposit of the amount in the bank was not disputed by the delinquent. However he rendered the explanation that he had agricultural land from where he was getting Rs. 50,000 per annum as income and had, therefore, deposited these amounts in the bank during the period stated in the chargesheet, i.e. between January 1984 to May 1985. He had also taken up the stand before the Courts that while he was functioning as a Civil Judge (Class II). Dhamtari in December 1982, a crime had taken place in which one Shri. Pandari Rao Pawar, Advocate and one of his nephew were involved. They had caused serious injuries to the brother of Shri. H. L. Warde the then Judicial Magistrate, 1st Class, Dhamtari who had lost his one eye in the assault. A case under Sections 294, 325, 506-B of IPC was registered. The delinquent, as the Civil Judge at that point of time, rejected their bail application and did not succumb to the pressure brought in by the advocate which resulted in enquiry between the parties. It was also alleged that the said advocate filed a complaint on 9th December 1982 against the delinquent stating therein that one witness Dayaram Sahu in Criminal Case No. 1153 of 1986 under Section 325/34, IPC was directed to be handcuffed without any justification and later on the delinquent was transferred from Dhamtari and posted to Raipur. As such there was a different motive for taking disciplinary action against the delinquent than what was apparent from the record of the disciplinary proceedings. According to him (the delinquent judicial officer) he was possessed by sufficient means as he had income from salary as well as agricultural activity. In light of the facts given by him, there was no occasion to frame any charge against him. Further, the contention is that none of the article of charges have been proved against the delinquent in accordance with law.

Arguments on behalf of the respondents :

??????????????????????? The Counsel, on behalf of the respondents advanced the following counter – arguments :

(i)???????? That the Hon’ble Supreme Court should not reappreciate the evidence.(ii)????? That the enquiry officer, the disciplinary authority, the learned Single Judge and even the Division bench have accepted the fact that the delinquent had been rightly charged with Art 1, which stands proved and, as such, no interference is called for on merits or even on the question of quantum of punishment.

(iii)?????? That in terms of Government Servants Conduct Rules, 1985, which are applicable to the members of the Judicial Service in the State of Madhya Pradesh, a Government? Servant who either fails to file a return prescribed in sub – rule (i) or files a return for any year, which does not fully disclose all the property that is required to be indicated or otherwise or conceals any such property would amount to misconduct.

(iv)?????? That the enquiry office examined all the relevant aspects and after being satisfied that there was no plausible explanation for depositing money in the bank at such short intervals, no fault can be found with the finding of the enquiry officer. Referring to the behaviour of a common prudent person, the income from agriculture could hardly be on day to day basis. It was nobody’s case that vegetable or allied crop was being grown on the land in question. In normal course, the money would be available to agriculturist only when the crop is harvested and sold in the market. No such evidence had been produced by the delinquent during the course of enquiry.

THE CHALLENGE OF THE ORDERS:

??????????? The delinquent challenged the order mainly on two grounds as follows :

??????????? 1.?????? He had asked for assistance of a legal practitioner which had been unfairly denied to him. Denial of assistance of a legal practitioner tantamount to violation of the principles of natural justice as well as M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 and, as such, the entire departmental proceedings as well as the impugned order of punishment are vitiated.

??????????? 2.?????? The enquiry officer as well as the High Court have not appreciated the evidence in its proper perspective and has failed to accept plausible defence raised by the delinquent in regard to deposit of money in the bank. The order of removal from service, thus is based on no evidence and is required to be set aside. In support of this contention reliance was placed on the following authorities :

??????????? (a)????? Rule 14 (8) of M. P. Civil Services (Classification, Control and Appeal) Rules 1966.

??????????? (b)????? J. K. Agarwal vrs.Haryana Seeds Development Corporation Ltd. [(1991) 2 SCC 283]

??????????? (c)??? Board of Trustees of the Port of Bombay vrs. Dillipkumar Raghavendranath Nadkarni and others [1983 (1) LLN 314]?

??????????? In this context, it would be quite pertinent to extract the proviso of Rule 14 (8) of M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 which read as under :

“Rule 14 (8) : The Government Servant may take assistance of any other Government Servant to present the case on his behalf, but may not engage a legal practioners for the purpose unless the presenting officer appointed by the disciplinary authority is a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits.”

INTERPRETATION OF RULE 14 (8) :

??????????? The Hon’ble Supreme Court proceeded to interpret Rule 14 (8) of M. P. Civil Service (Classification, Control and Appeal) Rules, 1966. It stated that a bare reading of Rule 14 (8) shows that the Government Servant may take the assistance of any other Government Servant to represent his case but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the authority is a "legal practitioner” or the disciplinary authority, having regard to the circumstances of the case, so permits. The expression “may” cannot be read as “shall”. The normal Rule is that a delinquent officer would be entitled to engage another officer to present his case. But if the presenting officer is a “legal practitioner”, he may normally be permitted to engage a legal practitioner. The third category is where the disciplinary authority having regard to the circumstances of the case so permits. It is, therefore, not absolutely mandatory that the disciplinary authority should permit the engagement of a legal practitioner irrespective of the facts and circumstances of the case. There is some element of discretion vested with the authority which, of course, has to be exercised properly and in accordance with the settled principles of service jurisprudence. The Courts have taken a view that where expression “shall” has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with the other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision. The Hon’ble Supreme Court, in the case of Sarla Goel vrs. Kisan Chand [(2009) 7 SCC 658], took the view that where the “may” shall be read as “shall” would depend upon the intention of the legislature and it is not to be taken that once the word “may” is used, it per se would be directory.? In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in light of the settled principles, and while ensuring that intent of the Rule is not frustrated. Further, in the case of Malayasian Airlines System BHD (II) vrs. Stic Travels (Private) Ltd. [(2001) 1 SCC 509] the Hon’ble Supreme Court took the view that word “may” in S. 11 (1) of the Arbitration and Conciliation Act, 1996 is not to be construed as “must” or “shall”, as the word “may” has not been used in the sense of “shall”, the provision is not mandatory. In the light of these principles, the Supreme Court told that it is of the considered view that the expression “may” used in Rule 14 (8) of 1966 Rules would have to be construed directory and not absolutely mandatory with reference to the facts and circumstances of a given case. Of course, it would be desirable that wherever the presenting officer is a legal practitioner, the delinquent officer should be given the option and may be permitted to engage a legal practitioner if he so opts. But this rule is hardly of any assistance and help to the appellant in the present case. The presenting officer was an Additional District Judge. He was possessed of similar qualification, professionally or otherwise, as was the delinquent himself. The delinquent could have asked for permission to engage and take assistance of any other judicial officer of that rank or of any rank that he wanted which request ought to have been considered by the disciplinary authority. It will be entirely uncalled for that an Additional Judge should be termed as a legal practitioner and, therefore, vesting in the delinquent a right to engage a legal practitioner or an advocate for defending him in the departmental proceedings. It will be rather appropriate to apply the principles of contractual interpretation in the facts and circumstances of the case. In the case of Muddada Chayanna vrs. K Narayana [AIR 1979 SC (1320), it was held by the Hon’ble Supreme Court that interpretation of statute, contextual or otherwise, must further and not frustrate the object of the statute. In other words, the expression “medical practitioner” appearing in Maharashtra Nurses Act, 1966 should be given a meaning in the context in which it is sought to be applied to achieve the real object of the statute. It is also to be kept is mind that while dealing with the provisions of the statute, the Court would not adopt an approach or give meaning to an expression which would produce unintelligible, absurd and unreasonable result and would render the legislative intent unworkable or totally irreconcilable with the provisions of the statute [Bhavnagar University vrs. Palitana Sugar Mills (Private) Ltd : AIR 2003 SC 511]?

Reference to Lexicography on “Legal Practitioner” :

??????????? The Counsel for the delinquent referred to the word “Legal Practitioner” as defined / explained in Law Lexicon by P Ramanatha Aiyar which is as follows :

‘Legal practitioner’ defined (See also Advocate of a High Court; Barrister; Government Pleader; Public Prosecutor; Recognized Agent) Act 18, 1879 S. 3; Act 18, 1881 S. 4 (2); Act 16, 1887, S. 4 (16); Act 17, 1889, S. 3 (13); Act 23, 1923, S. 2; Act 21, 1926, S. 2.

‘Legal Practitioner’ means an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent, Act XVIII of 1879 (Legal Practitioners), S. 3.

??????????? The lexicographical explanations clearly show that a Judge in service cannot be termed as a legal practitioner as it will mean and include only an advocate or a vakil of Court? practicing in a Court, may even be a Barrister, Special Pleader, Solicitor depending on facts of a given case, Rule 2 (e) of the Central Administrative Tribunal Rules, 1987, also defines the word “legal practitioner”. However, it in turn, requires that this expression shall have the same meaning as is assigned to it under the Advocates Act, 1961. In that Act the word ‘legal practitioner’ has been defined under S. 2 (i) to mean an advocate or vakil of any High Court, a pleader mukhtar or revenue agent. In other words, this is an expression of definite connotation and cannot be granted an extended or inclusive meaning, so as to include what is not specifically covered. A Judge may be law graduate holding a Bachelor Degree in law from any University, established by law in India but this by itself would not render him as a “legal practitioner”. On the contrary, there is a definite restriction upon the Judge from practicing law. Such an implied inclusion, as argued by the delinquent, would not lead to absurdity but would even offend the laws in force in India. John Indermaur, Principles of Common Law 169 (Edmund H. Bennet ed., 1st Amed. 1878) explains the term as follows :

“Legal Practitioner may be either barristers, special pleaders not at the bar, certified conveyancers, or solicitors. The three latter may recover their fees, but the first may not, their acting being deemed of a voluntary nature, and their fees merely in the light of honorary payments; and it follows from this, that no action lies against them for negligence or unskillfulness.”?

??????????? The above explanation on the term “legal practitioner” is a well defined and explained term. It, by no stretch of imagination, can include a serving Judge who might have been appointed as a presenting officer in the departmental proceedings. Besides this legal aspect of the matter, even on principles of fairness it cannot be thought that the order has caused any prejudice to the delinquent. He could have asked for appointment of any colleague whose assistance he wanted to take and who would have been as well qualified and experienced as the presenting officer. The request of the delinquent has been rightly rejected by the disciplinary authority. Furthermore, the application was made on 7 December 1988 itself and thereafter the delinquent took no steps whatsoever to challenge the order of the disciplinary authority declining assistance of an advocate. On the contrary, he participated without any further protest in the entire departmental enquiry and raised no objections. The enquiry officer conducted the proceedings in a just, fair manner and in accordance with rules. In fact, there is no challenge to that aspect of the matter. In the application, the delinquent had stated that the complainant neither has necessary experience nor the required skill to handle his defence in such circumstances.” The statement ex facie is not correct. The delinquent must have dealt with variety of cases during his tenure as a Judge. He was fully capable of defending himself in the departmental enquiry. In the alternative he could easily ask for assistance of any senior colleague from the service if he was under pressure of any kind that the presenting officer was senior to him and belonged to Higher Judicial Service. He did not exercise this choice, at any stage, for reasons best known to him. However, he made an application praying for permission to engage an advocate and nothing else. Charge against the delinquent was not of a very complicated nature, which a person having qualification and experience of the appellant would not be able to defend. In these circumstances, the Hon’ble Supreme Court told that it is of the considered view that no prejudice whatsoever has been caused to the interest of the delinquent officer. These are the rules primarily of procedure, an element of prejudice would be one of the necessary features, before departmental proceedings can be held to be vitiated on that ground. The reliance placed upon the case of J. K. Aggarwal (vide supra), is totally unwarranted. In that case, the Court came to the conclusion that refusal to sanction the service of lawyer in the inquiry proceedings was not a proper exercise of discretion under the Rule resulting in failure of justice. The Hon’ble Supreme Court held that the discretion was vested in the disciplinary authority in terms of Rule 7 (5) of the relevant Rules, The language of that Rule was entirely different and permission to engage a legal practitioner was relatable to the nature of the punishment which could be imposed upon the delinquent officer in the departmental proceedings. If the charges were likely to result in dismissal of the person from service, in that event, that officer may with the sanction of the enquiry officer be permitted to be represented through a counsel. The language of this Rule is entirely different from the language of the Rule in question in the present case. On the basis of the facts of that case and Rule 7 (5) of the said Rules it was held as follows :

“The right of representative 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 purpose an avocation and observed :

??????????? 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 also has a right to speak by counsel or solicitor.”

??????????? But the above observation of Lord Denning was not followed by Lyell, J in Pett case (No. 2)

It would appear that in the inquiry, the respondent Corporation was represented by its Personnel and Administration Manager who is stated to be a man of law. The rule itself recognizes that where the charges are so serious as to entail a dismissal from service the inquiry authority may permit the services of a lawyer. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reasons of the appellant being pitted against a presenting officer who is trained in law. Legal advisor and a lawyer are for this purpose somewhat liberally construed and must include ‘whosoever’ assists or advises on facts and in law must be deemed to be in the position of a ‘legal advisor’. In the last analysis, a decision has to be reached on a case to case basis on the situational particulars and the special requirements of justice of the case. It is unnecessary, therefore, to go into the larger question “whether as a sequel to an adverse verdict in a domestic enquiry serious civil and pecuniary consequences are likely to ensure, in order to enable the person so likely to suffer 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”. Which was kept open in Board of Trustees of the Port of Bombay vrs. Dillip Kumar [1983 (1) LLN 314]. However, it was held in that case in Para 11, at page 320 as follows:

“…..In our view we have reached a stage in our onward march to fair play in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he 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 essential principles of natural justice would be violated…….

??????????? On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the enquiry 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 (vide supra), that in defending himself one may tend to become ‘nervous’ or ‘tongue-tied’. 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.”

??????????? After referring to the aforestated case – law, the Hon’ble Supreme Court stated that the said case – law can hardly be of any help to the delinquent. Even in the case of Dillipkumar Raghavendranath Nadkarni [1983 (2) LLN 314], the Board of Trustees had appointed its law officer as a presenting officer. The presenting officer was legally trained and experienced in handling departmental enquiries, it was in those circumstances that the Hon’ble Supreme Court found, as a matter of fact, that there was violation of principles of natural justice and that a legally expert person has been permitted to be engaged by the delinquent worker. In that case the provisions similar to the present provisions also came into force during the pendency of the departmental proceedings. The Court remanded the matter and directed reconducting of the departmental enquiry with specific liberty to the workman to cross – examine all the witnesses afresh in accordance with law. The facts of that case are thus entirely different from the case in hand wherein no such ground is made out. Firstly, the petitioner himself was equally qualified and trained as the presenting officer and / or he could even ask for assistance for a fellow colleague with similar experience and status and that of the presenting officer which he chose not to do. Having given up the right, he can not now be permitted to turn back and raise a grievance in that regard. This contention of the appellant is without any merit.

On Appreciation of Evidence :

??????????? The Hon’ble Supreme Court, then, proceeded to examine the other aspect of the case, that there was perversity in appreciation of the evidence in the impugned judgment under appeal. It was noticed by the Hon’ble Apex Court that the finding of facts arrived at by the enquiry officer was not interfered with by the learned Single Judge as well as the Division bench of the M. P. High Court, it is hardly permissible for the Hon’ble Supreme Court to disturb such findings of fact in exercise of its jurisdiction under. Article 136 of the Constitution of India. Besides that it must be noticed that the conduct of the delinquent can hardly be appreciated in regard to deposit of money in the Bank regularly during the entire period of 1984-85. The Department had showed that the deposits have been made and the bank balance of the delinquent, on a particular date, was beyond the known sources of his income to which the delinquent raised a defence that he owned the land and the income received was an agricultural income. However, he produced no evidence during the departmental enquiry to show that some person was making payment to him and / or some person was depositing the money in the bank so received from agricultural activity in every 2-3 days. Once a person is carrying on agricultural activities like the delinquent, the obvious result thereof would be that there would be persons who would be carrying on agricultural activities on the land on his behalf, would be harvesting the crops and then selling the same on his behalf and that there would be persons who would be buying such crops and disposing the crops in the open market directly or indirectly. Thus, there persons would have been easily available to the delinquent to be produced in departmental enquiry to substantiate his defence. No such effort was ever made by the delinquent. Non – examination of these witnesses and non – production of necessary documents must lead to draw an adverse inference against the delinquent. In any case, the delinquent cannot take advantage of that fact and contend that the inquiry officer failed to appreciate evidence in its correct perspective. It was also noticed by the Hon’ble Supreme Court that during the course of hearing the original personal file of the delinquent was called for where he had filed property returns to the department. In the property return for the year 1984-85, which is the relevant year, the delinquent was shown to have 1/3rd share in the agricultural land located at two different places. There was a specific column relating to income from agriculture. In that form it was filled in by the delinquent as “uncertain” (anischit). This return has been filed on 27 March 1985. In other words, on that date he did not know whether he had earned any amount from the agricultural income or not. The period in question was January 1984 to May 1985, thus, for the substantial period, he was fully aware of his income received from agricultural activity but he still chose to keep it vague and not declare his true income in the return. Now, in the departmental proceedings and in the reply to the charge-sheet, he submitted that there was an income of more than Rs. 50,000 per annum and that he owned 37.53 acres of land in village Bilaspur at two different places. It is again strange that he did not disclose in his reply that this was a land jointly owned with his brothers and family members and what was the extent of his holding individually. In the return, he himself claimed one third share in the property. The total land indicated at two different places being 26 acres + 18 comes to 44 acres and one – third of which, merely 14 acres approximately, would be the land owned by him and not 37 acres as claimed. This, itself shows that the delinquent had not approached the Court with clean hands and did not disclose true facts which were known to him alone. In the departmental enquiry proceedings, he took incorrect defence contrary to his return and failed to discharge the onus placed upon him. In the departmental enquiry, the delinquent produced no income tax returns to show that in addition to his salary, he had other sources of income to what was the extent of income from these sources. In his written statement of defence he never took up the plea that any such returns were filed and he made no effort to bring on record the copies of such income tax returns, if at all filed. The delinquent officer could have stated in his statement if he was not filing any return and reason thereof. It was obligatory on the part of the delinquent officer to disclose all such relevant facts which were only within his personal knowledge. He belongs to a service which is looked upon by the public at large as a service cadre of high integrity and professional values. The Judges are expected to apply stringent social and moral values to their standard of living. It was expected of the delinquent to disclose all true and correct information and documents in his power and possession before the enquiry officer. It was not required of him to withhold relevant material and take such a defence which could not be substantiated during the course of departmental enquiry. Having failed to produce relevant documentary evidence as well as examine the witnesses, the delinquent cannot argue that the disciplinary authority or the Court have not appreciated the evidence in its correct perspective. The Supreme Court stated that it is unable to accept the contention of the delinquent that the findings are based on no evidence or are perverse in any manner whatsoever.

THE VERDICT :

??????????? The appeal filed by the delinquent officer was dismissed.

THE ASSUMPTIONS :

01.?????? Taking assistance of a legal practitioner/lawyer in domestic enquiry is not a vested right of the delinquent. The employer would be at liberty to refuse the assistance of a legal practitioner if the Presenting Officer in an enquiry is not a legally trained person.

02.?????? If a delinquent claims certain benefit in a domestic enquiry, he/she should provide proper evidence to substantiate his/her claim. A mere bald statement would not be sufficient or acceptable to the Enquiry Officer.

03.?????? Denial of assistance of a legal practitioner to a delinquent, when the Management does not have a legally trained person as presenting officer, would not amount to violation of the principles of natural justice.

DISCLAIMER : The idea/opinion expressed in this write-up are of the Author’s own and should not be substituted for professional advice.

[AKS : 24 July 2011 : NCHC,Mumbai]

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