K. Kabali vs The Assistant Security Commissioner, Railway Protection Force, Southern Railway, Madras 600003 and another

By consent of all the parties concerned the main writ petition itself is taken up for final disposal.

The petitioner has approached this Court to issue a writ of mandamus directing the respondents to permit the petitioner to engage an advocate

to appear for him in the departmental proceedings initiated against him pursuant to the charge sheet issued by the first respondent dated 9.7.96 and

direct the respondents to conduct a common enquiry in respect of the deliquents involved in the same case which is the subject matter of the said

charge sheet.

Heard the learned counsel for the petitioner as well as respondents.

Since the issue is very limited, viz., whether the petitioner may be permitted to engage an advocate to assist him during the enquiry, it is

unnecessary to refer the particulars regarding charges made against him and other proceedings.

Learned counsel appearing for the respondents by drawing my attention to Rule 153.8 of Railway Protection Force Rules, 1987 would contend

that enrolled member of the Force shall not be allowed to bring in a legal practitioner, but he may be allowed to take the assistance of any other

members of the Force. On the other hand it is the case of the petitioner that one Mr. Venkata Suryanarayana Rao, Presenting Officer for the

prosecution is a legally trained person. He has been conducting prosecution in respect of several employees of the Southern Railway in various

cases. He is well versed in the Service Rules of Railway Servants. He is from the Central Beaureau of Investigation. It is further stated that he is

working as Railway Sectional Officer in the Central bureau of Investigation. It is also asserted that petitioner does not know english and he had

studied only upto 10th standard. He expressed that he is not able to understand the contents of the charge sheet issued to him. Since the enquiry is

being conducted only in English, he made a representation to the second respondent i.e. Enquiry Officer on 4.9.1996 requesting him to permit him

to engage an advocate to appear for him in the disciplinary proceedings. The said request was not accepted, hence he has filed the above writ

petition.

In the light of the stand of the petitioner, learned counsel for the petitioner in support of his claim for assistance of an advocate relied on the

following two decisions:

Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, : and 2. Union of India v. Karunakaran Nair

1986 (1) L.L.J 124

In the first case their Lordships of the Supreme Court have held that,

If the employer is represented by a legally trained officer in the enquiry, request of the employee to have the assistance of a lawyer has to be

granted

In the later case, the Division Bench of the Kerala High Court in an identical circumstance after holding that the presenting Officer being an officer

from C.B.I. well-versed with the legal proceedings permitted the employee to have the assistance of a lawyer in the enquiry. The following

conclusion of their Lordships in the Division Bench is very relevant and the same is extracted hereunder:

It is important that in an enquiry the delinquent officer should not be denied a full opportunity to prove his innocence. Normally a lawyer has no

place in a disciplinary enquiry. But, when the presenting officer, even if he is not a lawyer, is one who is well trained in prosecution work and if the

delinquent officer cannot have the services of a legally trained person and is allowed only to have the services of a colleague of his who, in the

normal course, will not be well-versed in the subject, it goes without saying that, that will be nothing but denial of an opportunity to the officer to

defend himself in the disciplinary enquiry. The presenting officer need not be a lawyer for the delinquent officer to insist that he should be allowed

to make use of the the services of a lawyer. The presenting officer need only be a person who has got training in the techniques of a disciplinary

enquiry. In this case, the C.B.I. Inspector who was the presenting officer, in the normal course, was more than a lawyer and the denial of the

services of a lawyer to the delinquent officer was nothing but denial of natural justice to the delinquent officer, which has vitiated the whole

disciplinary enquiry. In this view of the matter, there is no reason this Court should interfere with the judgment of the learned Single Judge setting

aside the order imposing the penalty on the respondent- petitioner.

There is no dispute that in our case the presenting officer is an officer of the C.B.I. and well-versed in enquiry proceedings. In such

circumstances as observed by the Division Bench in the above referred case, I am of the view that petitioner is entitled to the assistance of an

advocate during the enquiry. It is also brought to my notice that Rule 153.8 of Railway Protection Force Rules has been challenged before this

Court and some of the writ petitions are pending even now.

Taking note of all the above aspects, I accept the case of the petitioner, consequently there shall be a direction to the respondents to permit the

petitioner to engage an advocate to appear for him in the departmental proceedings initiated against him pursuant to the charge sheet issued by the

1st respondent dated 9.7.1996. Accordingly, the writ petition is allowed to the extent mentioned above. No costs. Consequently, connected

WMP., is closed.