IMPORTANT POINTS
The provisions of Rule 75(5) of Chapter XIVA of the Kerala Education Rules and hold that the said Rule prohibits the engagement of services of a legal practitioner by a teacher facing disciplinary proceedings only in circumstances where the Manager is not so represented and uphold the view of the Learned Single Judge that any other interpretation would render the Rule arbitrary and discriminatory.

JUDGMENT :

Gopinath. P., J.

The only question arising for our consideration in the above Writ Appeal is this; Should Rule 75(5) of Chapter XIVA of the Kerala Education Rules (for short 'K.E.R') be read as placing any embargo on a teacher facing disciplinary proceedings from engaging a lawyer when the Manager is represented by a lawyer in the proceedings before the Educational authorities ?

2. The appellant is the Manager of an aided Lower Primary School. Disciplinary proceedings were initiated by him against the 1st respondent. In enquiry proceedings before the Assistant Educational Officer, the appellant (Manager) was being represented by an Advocate. The request made by the st respondent for engaging an Advocate was turned down by the Assistant Educational Officer on the ground that the Rule 75(5) of Chapter XIVA of the Kerala Education Rules specifically prohibited the engagement of a lawyer by the teacher facing the proceedings. The said order of the Assistant Educational Offier was confirmed by the District Educational Officer. The 1st respondent, therefore, preferred W.P.(C)No.13053/2014 (out of which this appeal arises) inter alia challenging the provisions of Rule 75(5) of Chapter XIVA KER and seeking a declaration that she was entitled to be represented by a lawyer of her choice in the enquiry proceedings. A learned Single Judge of this Court, relying on the various judgments of the Apex Court and this Court, took the view that the provisions of Rule 75(5) cannot be relied upon to contend that even in cases where the Manager is represented by an Advocate, the delinquent teacher cannot be so represented. The learned Single Judge held that, if such a view is taken of Rule 75(5), the Rule would be arbitrary and discriminatory. The learned Single Judge therefore declared that Rule 75(5) can create an interdiction regarding engagement of a lawyer only where the Manager is not so represented. This appeal is filed challenging the aforesaid judgment of the learned Single Judge.

3. On a consideration of the matter, we cannot but hold, that the view taken by the learned Single Judge regarding the scope of Rule 75(5) of Chapter XIVA of KER is correct in law and warrants no interference whatsoever. The decisions cited before the Learned Single Judge, by the learned counsel for the 1st respondent, support the view that where the employer engages a legal practitioner it would be a violation of Natural Justice to deny the same right to the employee. We need not refer to all those judgments, in detail, but we note that in Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124 it was categorically held:-

“We concern ourselves in this case with a narrow question whether where in such a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting-cum-Prosecuting Officer to represent the employer by persons who are legally trained, the delinquent employee, if he seeks permission to appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby vitiating one of the essential principles of natural justice.”

“....................A man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a court presided over by an unbiased Judge?. The Enquiry Officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to these uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice m