'A Hexagenerian Can't Be Left Tongue-Tied': Karnataka HC Allows Retd Employee To Engage Lawyer To Defend Him In Dept Enquiry Despite Prohibitory Rule

The Karnataka High Court recently set aside an order passed by the Inquiry Authority of United India Insurance Company declining to accede to the request of a former employee for engaging the services of a legal practitioner to defend him in the departmental enquiry.Justice M Nagaprasanna sitting at Dharwad bench held that the circumstances of the petitioner, particularly his age and hearing disability, outweighed the rules that prohibit engaging the services of an advocate in department enquiries.“The factors that are in favour of the petitioner for grant of such benefit far outweigh the tenor and purport of the Rule which prohibits it, more so in the light of the rules not being inflexible. Therefore, in the peculiar facts of the case, I deem it appropriate to permit the petitioner to be defended by an Advocate in the departmental enquiry, as an hexagenerian cannot be left tongue tied."The petitioner joined the service of the Company on 14-10-1982 as a Development Officer and was serving as a Divisional Manager at the relevant point in time. When the petitioner was in the cadre of Divisional Manager, he retired on attaining the age of superannuation on 31-03-2021. Two proceedings emerged before his retirement. It was alleged that the petitioner violated Company guidelines by settling several matters in a Mega Lok-Adalat. While the investigation was pending, a charge sheet was issued against the petitioner for the conduct of a departmental enquiry. A reply to the charge sheet was issued to the company on 17-12-2021. Not being satisfied with the reply submitted by the petitioner, the Disciplinary Authority appointed an Enquiry Officer to conduct the enquiry and a Presenting Officer to present on behalf of the Management. In the Departmental Enquiry, the petitioner submitted a representation requesting to engage the services of a legal practitioner for the reasons indicated in the representation. This was turned down on the very same day, on the score that the Rules do not permit to engage the services of an Advocate in the Departmental enquiry to defend a delinquent/Charge Sheeted Officer. The petitioner argued that he has a hearing disability, aged 64 years and that he was facing criminal proceedings. It is in that light he requested for engaging the services of an Advocate in the departmental enquiry. He argued that the request was turned down on the same day without application of mind on the ground that the Rules do not permit it.The company opposed the petition claiming that he was aware of the facts against him and thus would not require the assistance of an advocate to defend him in the enquiry. It was also argued that the Rules specifically prohibit the engagement of an Advocate to defend the CSO in an enquiry. The bench referred to Rule 25 (6) of the United India Insurance Company (Conduct, Discipline and Sppeal) Rules, 2014 and said, “The language of the rule is, the employee may not engage the Legal Practitioner for the purpose. Therefore, the provision though in the first blush would look mandatory, it is not that it is inflexible, it has to be interpreted on a case to case basis. In the considered view of this Court, it does not place an unambiguous embargo for engaging an Advocate as a Defence Assistant.” Then it held that the circumstance under which the petitioner had sought the assistance of a Legal Practitioner had to be considered. "The petitioner suffers a certain amount of hearing disability; he is a hexagenarian; his entire retirement benefits are withheld; he is facing two proceedings; both criminal and the impugned departmental proceeding. If all these circumstances are taken note of, including the fact that there is no co-employee who is coming forward to defend the petitioner, since he is already retired from service, they would all become factors to be taken note of for permitting engagement of a Legal Practitioner to defend the petitioner in the enquiry.”It added that though it would not be, or cannot be permitted as a matter of course, the course will have to be adopted on a case-to-case basis.Relying on the judgment of the Supreme Court in the case of Ramesh Chandra v. Delhi University (2015) 5 SCC 549, the bench said, “The petitioner would face serious civil and pecuniary consequences in the event the enquiry would go against him. What is to be noticed is, he is already driven to penury by withholding all terminal benefits. Above all, an employee, at the age of 63, who is to face a departmental enquiry along with the criminal trial becomes “tongue tied” and therefore he would require the assistance of a Legal Practitioner.” Thus it found that the factors in favour of the petitioner for grant of such benefit far outweighed the tenor and purport of the Rule prohibiting it.However, it was clarified that the defence of a lawyer cannot become a scheme to protract the enquiry proceedings. “It is needless to observe that the defence of an Advocate cannot become a ruse to protract...

'A Hexagenerian Can't Be Left Tongue-Tied': Karnataka HC Allows Retd Employee To Engage Lawyer To Defend Him In Dept Enquiry Despite Prohibitory Rule

Mustafa Plumber

Tags