IMPORTANT POINT
Legal representation in disciplinary proceedings is contingent upon the Presenting Officer being a legal practitioner, as per Rule 9(5) of the Assam Services (Discipline and Appeal) Rules, 1964.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr.M.K.Choudhury, learned Senior Counsel assisted by Mr. M.Sharma, learned counsel for the petitioner and Mr. P.J.Phukan, learned Standing Counsel, Gauhati University.

2. The petitioner’s prayer in this writ petition is to direct the respondent No.2 to allow the petitioner to engage a Legal practitioner as a Defence Assistant in the departmental proceeding which has been initiated against him, vide Memorandum of Charge dated 23.10.2024.

3. The petitioner’s counsel submits that the Inquiry Officer appointed by the Disciplinary authority, which is the Executive Council of the Gauhati University headed by the Vice-Chancellor, is a Retd. Indian Police Service (IPS) Officer, having a law degree and as such, it was imperative that the petitioner should be allowed to engage a legal practitioner as a Defence Assistant, to have a level playing field.

4. The petitioner’s counsel has relied upon the judgment of the Supreme Court in the case of Ramesh Chandra vs- Delhi University, reported in (2015) 5 SCC 549 and the case of J.K.Agrarwal –vs Haryana Seeds Development Corporation Ltd. & ors reported in (1991) 2 SCC 283, in support of his submission that there is likelihood of the combat being unequal in the departmental proceeding, entailing in a miscarriage or failure of justice, besides denying a real and reasonable opportunity of defence to the petitioner. Accordingly, the petitioner/delinquent officer should be allowed to engage a legal practitioner as his Defence Assistant.

5. The petitioner’s counsel submits that the petitioner had submitted a letter dated 16.01.2025 to the Inquiry Officer on the first day of the proceedings of the departmental proceedings i.e. on 16.01.2025. By the said letter, the petitioner informed the Inquiry Officer that he had engaged a legal practitioner as his Defence Assistant. However, the Inquiry Officer did not allow the petitioner to avail the assistance of Defence Assistant and instead the Inquiry Officer started examining three witnesses on the said day. The petitioner, however, did not cross-examine any witness on the said day. The petitioner’s counsel submits that the next date of appearance of the petitioner before the Inquiry Officer in the Departmental Proceedings is fixed for 27.01.2025. He submits that unless the petitioner is allowed to avail the assistance of a legal practitioner as his Defence Assistant and allowed to cross-examine the witnesses, there is a likelihood of failure of justice.

6. Mr. P.J.Phukan, learned Standing Counsel for the Gauhati University, on the other hand, submits that the departmental proceeding has been initiated against the petitioner under the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as ‘ the 1964 Rules’). He submits that the right of the petitioner to avail the service of a Legal practitioner as his Defence Assistant would arise, only when the Presenting Officer appointed by the Disciplinary authority is a legal practitioner. He submits that no right accrues to the petitioner to avail the service of a legal practitioner when the Inquiry Officer is only having a law degree. In the present case, the Inquiry Officer is not a legal practitioner and only has a law degree. He also submits that Presenting Officer in the present case does not have a law degree and as such, no right accrues to the petitioner for availing the service of a legal practitioner as a Defence Assistant, in terms of Rule 9(5) of the 1964 Rules. In support of his submission, the learned counsel for the respondent University has relied upon the judgments of the Supreme Court in the case of J.K.Agrarwal (supra) and in the case of Cipla Ltd. & Ors –vs- Ripu Daman Bhanot & anr. reported in (1999) 4 SCC 188.

7. I have heard the learned counsels for the parties.

8. What is not denied by either of the parties is t