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2018 Supreme(Del) 1681
IN THE HIGH COURT OF DELHI AT NEW DELHI
Geeta Mittal, Anu Malhotra, JJ.
Kulachi Hansraj Model School & Anr. – Appellants
Versus
Hari Om Sharma & Anr. – Respondents
LPA 26 of 2017 & CM No.912 of 2017
Decided On : 12-07-2018
For the Appellant : Mr. Rajshekhar Rao, Ms. Amita Singh Kalkal and Mr. Sameer Dawar, Advs.
For the Respondent: Mr. J.S. Bakshi and Mr. A.K. Bakshi, Advs. for Mr. Yogesh Kumar
The main legal point established in the judgment is that denial of the assistance of a legal practitioner to the charged employee during disciplinary proceedings, especially when the inquiry officer is a legally trained mind, would be in violation of principles of natural justice.
Headnote:
Natural Justice - Disciplinary Proceedings - [GITA MITTAL, J.] - [Chairman, LIC of India & Ors. v. A. Masilamani, Civil Appeal No. 8824/2012, Professor Ramesh Chandra v. University of Delhi & Ors., Port of Bombay v. Dilipkumar Raghavendranath Nadkarni] - The court found that the disciplinary proceedings violated the principles of natural justice as the employee was denied the assistance of a legal practitioner, which was held to be unfair. The court set aside the inquiry report and the order imposing the major penalty of removal from service, directing the employee to be treated as being in service but under suspension and entitled to 75% of his salary from the 4th month of the order of suspension. The court also directed that the employee be entitled to the assistance of a counsel should the inquiry proceedings be conducted by a retired judge or a legally trained mind.
Fact of the Case:
The employee, Sh. Hari Om Sharma, was dismissed from service after disciplinary proceedings initiated against him. The employee challenged the inquiry on the grounds of denial of the assistance of a legal practitioner, which the court found to have violated the principles of natural justice. The court directed the employee to be treated as being in service but under suspension and entitled to 75% of his salary from the 4th month of the order of suspension.
Finding of the Court:
The court found that the inquiry was conducted in violation of the principles of natural justice and set aside the inquiry report and the order imposing the major penalty of removal from service. The court directed the employee to be treated as being in service but under suspension and entitled to 75% of his salary from the 4th month of the order of suspension.
Issues: The main issue was the denial of the assistance of a legal practitioner to the employee during the disciplinary proceedings, which led to the violation of the principles of natural justice.
Ratio Decidendi: The court held that if the inquiry officer is a legally trained mind, the charged employee would be entitled to the services of a legally trained mind for conducting his defense, and denial of such defense officer would be in violation of principles of natural justice.
Final Decision: The court dismissed the appeal and directed the employee to be treated as being in service but under suspension and entitled to 75% of his salary from the 4th month of the order of suspension. The court also directed that the employee be entitled to the assistance of a counsel should the inquiry proceedings be conducted by a retired judge or a legally trained mind.
GITA MITTAL, J.
LPA No.26/2017
1. The appellant assails an order dated 19th October, 2016 passed by the learned Single Judge, allowing W.P.(C) No. 8144/2010 which had been filed by Late Sh. Hari Om Sharma (hereinafter referred to as the ‘employee’). By way of the writ petition, Sh. Sharma had assailed an order dated 7th September, 2010 passed by the Presiding Officer of the Delhi School Tribunal dismissing his appeal assailing the inquiry report dated 5th February, 2002 made by the Inquiry Officer after conducting disciplinary proceedings against Shri Hari Om Sharma as the order of imposition of major penalty of removal from service which had been conveyed to Sh. Sharma vide an order dated 14th August, 2002.
2. The respondent had been appointed as a Physical Education Teacher on 10th July, 1981 and confirmed as such on 12th July, 1985. He was made the Physical Education Teacher and Transport In-charge on 7th December, 1997 and w.e.f. 1st July, 1999, was promoted to the TGT Scale. There had been no complaint against him and he enjoyed 19 years of unblemished record.
3. The appellant asserts that on complaints received in the year 2000 against him, disciplinary proceedings were initiated against the respondent.
4. In contemplation of disciplinary proceedings, the respondent was placed under suspension on 24th February, 2001 with immediate effect. One Shri Singhal, a former District and Sessions Judge was the CLO of the school. The management of the school appointed Shri V.P. Kalra, a retired District & Sessions Judge as the inquiry officer. It is on the record that (and the delinquent employees contention) Shri V.P. Kalra was a close friend of the said Shri Singhal.
5. The delinquent official complained about the manner in which the inquiry officer conducted the proceedings before the Delhi School Tribunal in the brief synopsis if the appeal filed by the respondent.
6. As the Inquiry Officer was legally trained and experienced, and in the above facts, the respondent made a request to be defended by a defence counsel and to avail the assistance of an advocate.
The request of the delinquent unfolded as noted hereafter. It appears that during the inquiry proceedings, the employee made a request vide a letter dated 16th July, 2001 for certain documents and further to the effect that the disciplinary proceedings to be rescheduled at 2 p.m. for the reason that his Counsel was likely to be not available before such time as he would be busy in court. In response, the employee was informed that a legal practitioner could not be allowed as a defence assistant in the domestic inquiry and that he could take the assistance of an employee or a union representative of the institution. This request was thus declined. The respondent contended before the Delhi School Tribunal that this refusal vitiated the inquiry.
7. The submission is that the Inquiry Officer proceeded with the inquiry and submitted a report dated 5th February, 2002 finding the employee guilty of the charges with which he was charged. The Disciplinary Authority agreed with the findings of the Inquiry Officer and by an order dated 14th August, 2002 imposed the penalty of removal from service.
8. Aggrieved thereby, Sh. Hari Om Sharma filed an appeal being Appeal No. 60/2002 before the Delhi School Tribunal. This appeal remained pending before the Delhi School Tribunal for a long period of 8 years. It came to be rejected only on 7th September, 2010 and the Tribunal upheld order of removal from service was upheld.
9. The order of dismissal from service by the School as well as the order dated 7th September, 2010 of the Delhi School Tribunal was assailed by the appellant by way of W.P.(C) No.8144/2010. Inter alia, it was urged on behalf of Sh. Hari Om Sharma that the inquiry was vitiated for the reason that even though the Inquiry Officer was a retired District & Sessions Judge, a person with a trained legal mind, the services of a lawyer were not permitted for conducting his defence
