Holding

The discretion under Rule 7(5) must be exercised to permit legal representation when the charges are serious and the presenting officer is legally trained, and denial of such representation violates natural justice.

Summary

The appellant, J.K. Aggarwal, a Company Secretary of Haryana Seeds Development Corporation Ltd., faced a disciplinary inquiry that could lead to his dismissal. He sought permission to be represented by a lawyer under Rule 7(5) of the Haryana Civil Services (Punishment and Appeal) Rules, 1952, but the inquiry authority denied the request. The High Court dismissed his writ petition, prompting an appeal to the Supreme Court on the ground that denial of legal representation violated natural justice. The Court held that while representation by counsel is not an absolute right, the discretion under Rule 7(5) must be exercised to prevent an unequal fight, especially when the presenting officer is legally trained. Consequently, the Court found the refusal of counsel to be a mis‑exercise of discretion and ordered that the appellant be allowed a lawyer to cross‑examine witnesses, with the inquiry to be completed within a month. The appeal was allowed.

Issues considered

Whether a government servant facing a disciplinary inquiry that may result in dismissal is entitled to legal representation under Rule 7(5) of the Haryana Civil Services (Punishment and Appeal) Rules, 1952.
Whether the denial of permission to engage a lawyer amounts to a violation of the principles of natural justice.
Whether the discretion vested in the inquiry authority under the Rules was exercised properly.

Legislation cited

Haryana Civil Services (Punishment and Appeal) Rules, 1952s. Rule 7(5)

Subjects

disciplinary inquirynatural justicelegal representationcivil service rulesRule 7(5)dismissalpresenting officergovernment servantdiscretion

Judgment

J.K. AGGARWAL A
v.
HARYANA SEEDS DEVELOPMENT CORPORATION LTD.
AND ORS.

SEPTEMBER 5, 1990
B
[M.N. VENKATACHALIAH AND K.N. SAIKIA, JJ.)

Haryana Civil Services (Punishment and Appeal) Rules, 1952-
Rule 7(5)-Charges likely to result in dismissal of delinquent Govern-
ment servant in inquiry-Representation by counsel whether permitted
in the disciplinary proceeding. C

Civil Service-Disciplinary proceeding-Presenting Officer
trained in /aw-Denial of representation by counsel to delinquent
Government servant-Violates natural justice.
D
Words and Phrases-' Legal Adviser', 'Lawyer'-Con_truction of.

A disciplinary Inquiry was Initiated against the appellant, who
~ was the Company Secretary of the Corporation on certain charges
which if established might lead \o his dismissal from service.

Inquiry-Authority, rejected the appellant's prayer made at the E
initial· stage of the Inquiry for permission to engage the services of a
lawyer.

Before the High Court, appellant challenged the Inquiry pruceed-
lngs on grounds of denial of natllral justice.
F
The High Court dismissed the Writ-Petition in-limine against
which this appeal was f'ded.
'
Allowing the appeal, this Court,

HELD: 1. The right of repreaentadon by a lawyer may not In aU G
cases be held to be a part of natural justice. No general principle valid In
all cases can be enunciated. [I.SC-DJ

In the present-case, the matter Is guided by the Provisions of Rule
7(5) of the CivilSer:vfces(Ponlshment& Appeal) Rules, 1952. [17C]
H

13
14 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

The Rule Itself recognises that where the charges are so serious as
A to entail a dismissal from service, the Inquiry-authority may permit the
services of a lawyer. This rule Vests a discretion. In the matter on
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
B defence by reason of the appellant being pitted against a presenting-
officer, wholstrainedlnlaw. [17G-H, ISA]

In the Inquiry, the Respondent-Corporation was represented by
its Personnel and Administration Manager, who Is stated to be a man of
law. 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
C denial of natural justice. [17G, 18G]

Pett v. Grehound Ra/ing Association Ltd., [1969] 1QB125; Petfs
case No. 2, 1970(1) QB 46: Enderby Town Football Club Ltd. v.
Football Association Ltd., [1971] Chancery Div. 591; C.L. Subrah-
D ·maniam v. Collector of Customs, Cochin, [1972] 3 SCR 485, referred.

Board of Trustees of the Port of Bombay v. Di/ip Kumar, [1983] l
SCR 828, followed.

2. Legal Adviser and a lawyer are for this purpose somewhat
E liberally construed and must Include "whoever assists or advises on
facts and In law must be deemed to be In the position of a legal
adviser." [18A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4632
of 1990.
F
From the Judgment and Order dated 15.1.1990 of the Punjab
and Haryana High Court in Civil Writ Petition No. 13704 of 1989.

M.K. Garg for the Appellant.

G Vishnu Mathur and Ms. Madhu Tewatia for the Respondents.

The following Order of the Court was delivered:

We have heard Sri Lekhi, learned Senior Advocate for the appel-
lant and Sri Tewatia, learned Senior Counsel for the first-Respondent.
H Special leave granted.
l.K. AGGARWAL v. H.S.D.C. 15
)
2. Appellant was the Company Secretary of the Haryana Seeds
A
Development Corporation Ltd., a Government Company. The short
question in this appeal is whether in the course of the disciplinary
inquiry initiated against the appellant by the Corporation on certain
charges, which if established might lead to appellant's dismissal from
service, appellant was entitled to engage the services of a legal-
practitioner in the conduct of his defence. The proceedings in the B
inquiry attract and are regulated by the Haryana Civil Services
(Punishment. and Appeal) Rules, 1952.

Inquiry-Authority, by his order dated 8.8.1989 rejected the prayer
made by the appellant even at the initial stage of the inquiry for
permission to engage the services of a lawyer. Before the High Court,
appellant challenged the proceedings in the inquiry on grounds of
c
denial of natural justice. The High Court dismissed the Writ-Petition
in-limine.

3. 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 D
cases can be enunc.iated. 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:

"I should have thought, therefore, that when a man's repu- E
tation or livelihood is at stake, he not only has a right to
speak by his own mouth. He has also a right to speak by
counsel or solicitor."

(See: Pett. v. Greyhound Racing Association Ltd.; [1969] 1
QB 125) F

But this was not followed by Lyell Jin Pett's case No. (2), [1970] 1 QB
46.

But .the learne.d Master of Rolls, however, reiterated his earlier
view in Pett's case in Enderby Town Football Club Ltd. v. Football G
Association Ltd., [1971] Chancery Div. 591:

"ls a party who is charged before a domestic tribunal
entitled as of right to be legally represented? Much
depends on what the rules say about it. When the rules say
nothing, then the party has no absolute right to be legally H
16 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A represented? It is a matter for the discretion of the tri-
bunal. They are masters of their own procedure: and, if
they, in the proper exercise of their discretion, decline to
allow legal representation, the courts will not interfere
............................ In many cases it may be a
good thing for the proceedings of a domestic tribunal to be
B
conducted informally without legal representation. Justice
can often be done in them better by a good layman the~ by
a !J.ad lawyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . But I would emphasise that the discretion must
be properly exercised. The tribunal must not fetter its dis-
cretion by rigid bonds. A domestic tribunal is not at liberty
c to lay down an absolute rule: 'We will never allow anyone
to have a lawyer to appear for him.' The tribunal must be
ready, in a proper case, to allow it. That applied to anyone
in authority who is entrusted with a discretion. He must not
fetter his discretion by making an absolute rule from which
he will never depart .... That is the reason why this court
D intervened in Pett v. Greyhound Racing Association Ltd.,
[1969] 1 Q.B. 125. Mr. Pett was charged with doping a
dog-a most serious offence carrying severe penalties. He
was to be tried by a domestic tribunal. There was nothing
in the rules to exclude legal representation, but the tribunal
refused to allow it. Their reason was because they never
E did allow it. This court thought that that was not a proper
exercise of their discretion. Natural Justice required that
Mr. Pett should be defended, if he so wished, by counsel or
solicitor. So we intervened and granted an injunction. Sub-
sequently Lyell J. thought we were wrong. He held that
Mr. Pett had no right to legal representation: see Pett v.
F Greyhound Racing Association (No. 2) [1970] 1 Q.B. 46.
But I think we were right. May be Mr. Pett had no positive
right, but it was case where the tribunal in their discretion
ought to have allowed it. And on appeal the parties
themselves agreed it. They came to an arrangement which
permitted the plaintiff to be legally represented at the
G inquiry: see (1970) 1 Q.B. 67. The long and short of it is
that if the court sees that a domestic tribunal is proposing
to proceed in a manner contrary to natural justice, it can
intervene to stop it. The court is not bound to wait until
after it has happened: see Dickson v. Pharmaceutical Society
Great Britain, [1970] A.C. 403, 433, per Lord Upjohn."
H
,.
J.K. AGGARWAL v. H.S.D.C. 17

In C.L. Subramanium v. Collector of Customs, Cochin, [1972) 3 SCR
485 this Court did not accept the enunciation in Pett's case. Referring A
to Pett's case it was observed:

" .... The rule laid down in Pett's case has not commended
itself to this Court. In Kalindi and Ors. v. Tata Locomotive
and Engineering Co. Ltd. a question arose whether in an B
enquiry by management into misconduct of a workman, the
workman was entitled to be represented by a representa-
tive· of the Union. Answering this question this Court
• observed that a workman against whom an enquiry is being
heid by the management has no right to be represented at
such an enquiry by a representative of the Union though
the employer in his discretion can and may allow him to be c
so represented .... "

4. In the present case, the matter is guided by the Provisions of
Rule 7(5) of the Civil Services (Punishment & Appeal) Rules 1952
which says: D

"7(5) Where the punishing authority itself enquires into
any charge on 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 E
officer" to present on its behalf the case, in support of the
charge or charges.

The person against whom a charge is being enquired
into, shall be allowed to obtain the assistance of a Govern-
ment servant, if he so desires, in order to produce his F
defence before the enquiring officer. If the charge or
charges are likely to resulc in che dismissal of the person
from the service of the Government, such person may, with
the sanction of the enquiry officer, be represented by
counsel."
(Underlining Supplied) G

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. 'fhe rule itself recognises 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 discre- H
I
18 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A lion. 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 reason of the appellant being
pitted against a presenting-officer who is trained in law. Legal Adviser
and a lawyer are for this purpose somewhat liberally construed and
B must include "whoever assists or advises on facts and in law must be
deemed to be in the position of a legal adviser". In the last analysis, a
decision has to be reached on a case to case basis on the situational
particularities and the special requirements of justice of the case. It is
unnecessary, therefore, to go into the larger question "whether as a 4
sequel to an adverse verdict in a domestic enquiry serious civil and
C pecuniary consequences are likely to ensue, 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 v. Dilipkumar, [1983] 1
SCR 828. However, it was held in that case:
D
" . . . . . . . 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
E this request would amount to denial of a reasonable
request to defend himself and the essential principles of
natural justice would be violated ..... "
(p. 837)

5. On a consideration of the matter, we are persuaded to the
F 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
G defend, himself competently; but as was observed by the learned
Master of Rolls in Pett' s case 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.

H The question remains as to the manner of remedying the situa-
,
J.K. AGGARWAL v. H.S.D.C. 19

tion. Some circumstances require to be noticed in this behalf. The A
inquiry was proceeded with and as many as 13 witnesses have been
examined. The Examination-in-Chief as well as such cross-examina·
tion as the appellant himself attempted are on record. They shall
remain part of the record. The Examation-in-Chief of these witnesses
is not vitiated by a reason alone of the cricumstance that the appellant
B
did not then have the assistance of a lawyer to cross-examine them.
The situation could be remedied now by tendering the witnesses for
further cross-examination by a lawyer to be engaged by the appellant.
In order that further protraction of the inquiry proceedings is avoided
as required the appellant to state the names of the witnesses he wants
to be so tendered for further cross-examination. Appellant has filed a
list of eight such witnesses. viz., J .L. Sah Thulgharia, Production c
Manager; Joginder Singh, Sr. Scale Stenographer, D.M. Tyagi, Execu-
tive Engineer; Vakil Singh, Ex-driver; B.P. Bansal, Chief Accounts
Officer; Randhir Singh, Manager (Personnel) and R.S. Malik, Ex-
Managing Director. The further proceedings of the inquiry shall be
commenced on 20th October and continued from day to day.
D.
There shall be no necessity for the inquiry-authority to issue
,_ fresh notices to the appellant in respect of the further proceedings on
that day. 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
E
to cross-examine these witnesses and to address argutnents. 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. The inquiry shall be completed within one
month from 20th of October 1990. The appeal is disposed of accord-
ingly. No costs.
F

.I
V.P.R . Appeal allowed.