Representation by lawyer in a departmental inquiry:
The question often arises as to whether the delinquent should be
allowed to hire the services of the lawyer for the purpose of effective
representation in a departmental inquiry. This would depend upon the
“language of the statutory rules” governing the departmental inquiries.
And generally, the rule making authority bestows the discretion upon the
Disciplinary authority, either to allow the delinquent to engage a
lawyer, or to decline. There is however, no blanket rule or a precedent
to the effect that a delinquent should be allowed the services of
lawyers in every departmental inquiry.
What the judiciary has interpreted is that if the charge or an
allegation being faced by the delinquent is very serious, or where the
documentary evidence is voluminous requiring expert skill to examine and
to cross examine the witnesses, or where there may appear substantial
issues relating to proper interpretations, or where the inquiry officer
and or the presenting officer are legally trained to conduct such
quasi-judicial inquiries and developed an art of examining and cross
examining the delinquents, the judiciary would normally allow the
delinquent, a representation by a lawyer in such categories of cases.
As far as the legal position is concerned, it may be stated that in
United States, the legal representation is permitted to secure fair play
in action in view of the provision of “due process clause” under the
Constitution coupled with the fact the administrative procedure Act
makes such right effective and meaningful. Australia is more liberal and
it accepted the same as a rule before the tribunals. England covers up
the same as rule of “natural justice”.
The assistance of lawyer is permitted throughout the world. The
reason to allow the representation by lawyer in a complicated
departmental inquiry against an employee is to secure “fairness in
action” and to grant an effective opportunity of defence.
Lord Denning in Pett’s Case1 observed that:
“I cannot accept this connotation. The Plaintiff is here facing a
serious charge. He is charged either with giving the dog drugs or with
not exercising proper control over the dog so that someone else drugged
it. If he is found guilty, he may be suspended or his license may not be
renewed. The charge concerns his livelihood. On such an inquiry I think
that he is entitled not only to appear by himself but also appoint an
agent to act for him. Even a prisoner can have his friend.. 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 by counsel or solicitor.”
Even in India, the assistance of lawyer is now accepted as a “due
process”. The Indian Supreme Court has had an opportunity to interpret
the principle of fairness enshrined under Article 14 of the Constitution
of India and it has specifically laid down that no action of the
Government should be unjust, unfair, unreasonable or arbitrary.
Comparatively, the new judicial dimension followed the line indicated by
Lord Denning in the foregoing cases. Here, the discretion is made
subject to judicial review. The review is undertaken on various factors.
They have now said that not exercising such discretionary powers would
violate the principles of natural justice.
Every Governmental body or institution has its own set of rules that
provide discretionary jurisdiction to the authorities either to allow or
not to allow the assistance of lawyer. Taking the illustration of
service jurisprudence, the manner is provided as to how the inquiry
should be conducted and how to exercise the discretion for extending
permission to hire a lawyer. Rules provide that normally the employees
may be allowed to retain a representative of their choice, but in harder
cases, even the lawyers are also permitted to be engaged in a
departmental inquiry.
Justice D. A. Desai in case of the Board of Trustees of the port of
Bombay2 had the occasion to interpret Regulation 12 (8) of the Bombay
Port Trust Employees’ regulations of 1976. The said regulation reads
like this:
“The employee may take the assistance 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) of Section 2 of the Trade
Unions Act, 1926 (16 of 1926) of the union to which he belongs, to
represent the case on his behalf, but may not engage a real precaution
practitioner for the purpose unless the said Presenting Officer
appointed by the disciplinary authority, having regard to the
circumstances of the case, so permits.”
The Court observed that:
“Where in an inquiry 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.
Supreme Court approvingly quoted Lord Denning and held that:
“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…”
And lastly the Court in Para 12 observed that: -
“In our view we have reached a stage in our onward march to fair play in action.”
Thus the Indian Supreme Court has accepted that refusal to permit a
lawyer in a domestic inquiry would offend the “principles of natural
justice”. Setting finally, the Court employed the clinching language
that “We have reached a stage in our onward march to fair play in
action.” And while deciding the issue, the Court ruled that when the
delinquent is to suffer serious civil or pecuniary consequences, such
request would be reasonable and must be entertained.
In A. J. Vaswani3 the facts were gross arising out of Custom
Department where the officers developed an art of examining and cross
examining the variety of persons and discharging quasi-judicial
functions. Due to complicated issues in inquiry, the Court held that
non-granting of such assistance in departmental inquiry suffers from
serious infirmity of principles of natural justice. That shall mean that
where the facts are so complicated or a trained officer is conducting
the inquiry such assistance is fundamentally covered under the
well-founded principles of natural justice.
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