Holding

Denial of permission to be represented by a legal practitioner, when the employer’s presenting officers are legally trained, violates the principles of natural justice and vitiates the domestic enquiry.

Issues considered

Whether refusal to allow a delinquent employee to be represented by a legal practitioner in a domestic enquiry, where the employer’s presenting officers are legally trained, violates the principles of natural justice.
Whether the disciplinary authority has discretion to permit legal representation in the absence of a specific statutory provision.
Whether Regulation 12(8) of the Bombay Port Trust Employees Regulations 1976 obliges the authority to grant permission for legal representation once it comes into force.
Whether the domestic enquiry is vitiated and the dismissal order set aside on account of the violation of natural justice.

Legislation cited

Bombay Port Trust Employees Regulations, 1976s. Regulation 12(8)
Constitution of Indias. Article 21, s. Article 22(3)(b)
Trade Unions Act, 1926s. Section 2(d)

Subjects

Domestic enquiryNatural justiceLegal representationDisciplinary proceedingsEmployee rightsRegulation 12(8)Article 21Article 22(3)(b)

Judgment

828 ' ,.
A
BOARD OF TRYSTEES OF THE PORT OF BOMBAY

v.
DILIPKUMAR RAGHAVENDRANATH NADKARNI
8 AND OTHERS

November 17, 1982

[D. A. DBSAI, AND R. B. MISRA, JJ.J

c Departmental Proceedings-Domestic enquiry-Management appointed
legally trained officers as prosec~ting officers-Employee's request to be represented
by a legal practilioner
. .
rejected-whether violates principles of natural }ustiCe.

Natural justice-Employee denied asJistance of legal practitioner before
domestic enquiry while management engaged legally trained men as prosecuting
officers-Whether viola/es principles of natural justice.
D
The time honoured and traditional approach in regard to a domestic
enquiry in industrial disputes is that. it is a managerial funCtion which would be
best left to the management without the interven!ion of persons belonging to the
legal proression. This approach was based on the ground that a domestic·
enQuiry. should not be unduly inhibited by strict rules Of evidence and procedural
laws and t\la t in the informal atmosphere in which the enquiry is cOnducted the
E delinquent would be able to defend himself. Whatever justification there might
have been in the past for holfting this view, the positi<1n toda'y is altogether
different. Industrial establishments employ on their rolls an impressive array ·of
Jabour officers and legal advisers in the garb of employees. These officers are
appointed as presenting and' prosecuting officers for conducting the management's
case in a domestic enquiry. The enquiry officer, more often than not, is a man of
the establishment doning the robes of a judge. The enquiry is held in the establiSh·
F meat's office or part of it. Itdoes not bear any comparison to an adjudication
by an impartial arbitrator or a Court presided over by~ an unbiased judge/ Wit~
nesses are generally employees of the management which orders the enquiry. In
short the scales are weighted in favour· of the man~gement and against the·
workman. (832 G-H, 834 E'.-FJ

Se~oodly, even ia :1. dornes!ic enquiry there can be very serious charges :
G an adverse ven.lict may so stigmatiz·~ a workman that his future, both in regard to
his reputation as well as his Jivelhood, might be put in jeopardy. [834 DJ

The aphorism that "justiCe must not only be done but must be seen to be
done" is not-a euphemism !l•pplicable to courts alone; it should apply with equal
• H vigour t'o all those respo'tlsible for fairP,,lay in action. A quasi·judicial tribunal
cannot view . the situation with equanimity where there is inequ~lity of
rc~~sentatioo. [835 GJ

•
BOARD OF TRUSTEES v. DILIPKUMAR

Broo~• Bond India (Pvt) Ltd. v. Subba Ramari (S) and Anr:, [1961] 2 A
Labour Law Journal 417 referred to.

Dunlop Rubber Co. v. Workman, [1965J 2 SCR 139, referred to•
•
Pet. v. Greyhound Racing Association Ltd., [1968] 2 All E. R. 545, referred
to. 8
..

In a cbargesheet issued against the delinquent empJoyCe (respondent) for
the misConduct alleged against. him th·e management appointed its legal officer and
his assistant as presenting officers. At the same time it rejected- the employee's c
t---
request to engage a legal practitioner for his defence. Meanwhile, as the enquiry
was in progress, a regulation came into force enabling a delinquent employee to
engage a· legal practitioner if the presenting officer appointed by the discipJinary
authority is a legal practitioner. Even after the regulation came into 'force neither
the enquiry officer nor the disciplinary a:uthority reviewed ·the earJier decision
rejecting the delinquent's request to be represented by a legal practitioner. ·At
the: end of the enciuiry the respondent Was dismissed from servic~. I.)

The High Court set aside. the order of dismissal on grounds of violation of
principles of natural jtistice.

· On the question whether, where in a domestic enquiry the employer
appoints a legally trained person as piesenting.cum·prosecuting officer the
ei:iquiry would be v!tiated for vioiation of ·principles of natural jussice if the
employer rejected the delinquent's request for permission to defend him by a legal ·
practitioner.

Dismissing the appeal,

HELD : Since the delinquent employee had not been afforded a re.ason..
able opportunity to defend himself the enquiry ·is vitiated for vloJatiOn of F
principles of natural justice. [836 E]

(1) Where in an enquiry before a domestic tribunal the delinquent is _
pitted against a legally trained person and if be bad sought permission to appear
through a legal praCtitioner; refusal to grant such request· would amount to denial
of reasonable opportunity to defend bialself. [837 D] ~ G
C. L. Subramania'm v. Collector of Customs, Cochin, [1972] 3 SCR 485,
applied.

(2) Where rules governing a domestic enquiry do nqt place' an einbargo
'"t-· on the right Of the delinquent to ·be represented by a legal practitioner the matter
would be in the discretion of the enquiry officer whether, consideri~g the nature B
of the adjudication and the enquiry, the delinquent should be afforded a reason..
able op~rtunity to be represented by a· legal practitio-Der. [839 G]
830 SUPREME COURl REPORTS {1983] l s.c.n.

A (3) When an enquiry officer finds that the employer bad appointed a
legaUy traioed person as presenting officer, he mus't, before the commencement of
the enquiry, enquire froi:n the delinquent whether he would like to take the

.
a;..iltance of a legal practitioner. [838 E]
.
A. K. Roy v. Union of India, [1982] 2 SCR 272 at p. 345, referred to.

B In the instant .case when the enquiry commenced rules were silent on the
question of representatioD of the delinquent by a legal practitioner. While reject-
ing 1he delinquent's request to be represented by a legal practitioner the diJci-
p1inary authority appointed the appellant's legal officer and his assistant who
were in its employme'nt as presenting-cum-prosecuting officers, apparently on the
view that the' issues that would arise in the enquiry were such complex issues
involving intricate legal propositions of law which need the assistance of legally
Q trained person. While the employer was represented by two.legally trained persons
at the cost of the appellant, the delinquent was asked either to fend for himself or
have the assistance of another employee who was not a legatly trained person. In
the_ circumstances, the delinquent was denied resonable opportunity to defend
himself and therefore the conclusion airived at by the disciplinary authority was
in violation of one of the principles of natural justice.
D
1"hough the disciplinary authority, even in the absence of a specific pro-
vision, could haVe exercised his discretion to permit the employee to be represen~
ted by a ICgal practitioner, it was exercised against the employee on the ground
that the disciplinary authority was not under any statutory obligation to grant
such request. The regualtion, which came into force during the course· of the
enquiry, made· it obligatory for the disciplinary authority to grant permission to
E the delinquent to appear and defend himself by a legal practitioner if thC
management was represented by legally trained persons. After the regulation
came into force. ihe disciplinary authority should have Suo motu reVicwed his
earlie,r order and afforded an opportunity to the delinquent to be represented by a
legal practitioner. (838 D]

The expression 'ilifc" used in Art. 21 of the- Constitution has a wide
F meaning. It does not connote on1y existence or continued drudgery through
life. [839 CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3734 of 1982

Appeal by Special Leave from the Judgment and Order dated
the 4th November, 1982 of the Bombay High Court in Misc. Petition
.G No. 705 of 1979. ' · • ' ·

· F. S. Narimcan, A. S. Bhasania, 0.C. Mathur and D.N. Mishra '
for t.he Appellant.
H
Y.S. Chita/e, Mrs. S. Bhandare and T. Sridharan, for the Res-
pondent.
BOARD OF TRUST~ES v. bILiPKUMAR (Desai, 1.) 831

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
F 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
G 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 F
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 G
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 A
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 B
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

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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.-
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D
P.B.R. Appeal dismissed.

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