The central legal point established in the judgment is that a charged officer is entitled to the assistance of a lawyer during a departmental enquiry, and the lawyer should be allowed to effectively defend the charged officer, including the right to cross-examine witnesses.

Heard both sides.

2. The petitioner was employed as a Grade I Police Constable. He filed the present writ petition seeking to challenge the order of the second respondent – the Deputy Superintendent of Police, Vellore Sub Division, Namakkal dated 20.07.2009 and for a consequential direction to permit the petitioner to engage a lawyer and to proceed with the enquiry pursuant to the charge memo issued by the first respondent.

3. By the impugned order dated 20.07.2009, the petitioner was informed that though he was permitted to engage a lawyer to assist him in the oral enquiry, but it is subject to the condition that the lawyer should not cross examine the prosecution witness during the oral enquiry. In effect, according to the second respondent, the lawyer should be present as an observer during the oral enquiry. Therefore, the petitioner has come forward with the present writ petition.

4. Notice was issued to the respondents. The learned Government Advocate brought to the notice of this Court the judgment of the Supreme Court in D.G.Railway Protection Force and others v. K.Raghuram Babu reported in (2008) 4 SCC 406. In the said judgment, it was stated that ordinarily in a department enquiry, the charged officer cannot be represented by a lawyer and if there is some rule which permits the charged officer to be represented by someone else, permission can be granted. Such representation cannot be claimed as a matter of right. After stating so in paragraph 11, the Supreme Court observed as follows:

"11. Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice."

5. There is no quarrel with the well known proposition of law that as a matter of right a Government servant cannot have the assistance of a lawyer. But in the present circumstances, it is not a question of the request of the petitioner being denied by the respondents. On the contrary, the petitioner was permitted to have a lawyer present during the department enquiry. But he has been asked not to cross examine the witness. This Court is at a loss to know after having permitted a lawyer as to how any restriction can be made about the role of the lawyer. In fact, the very purpose of utilising the assistance of a lawyer is to effectively defend the charged officer in the enquiry.

6. It is brought to the notice of this Court that the Government has issued an order in G.O.Ms.No.2769 Public Department dated 111. 1969 that the disciplinary authority is vested with the discretion to permit the charged officer to have the assistance of a legal counsel. Therefore, in the present case, the issue is not whether the petitioner is entitled to have the assistance of a lawyer or not. On the contrary, having permitted the assistance of a lawyer, whether the lawyer should be kept idle in the course of the proceedings. A Division Bench of the Gujarat High Court vide its judgment in Navinchandra Shakerchand Shah v. Ahmedabad Co-operative Department Stores Ltd reported in 1979 1 LLJ 60, in paragraph 18 held as follows:

"18. ... The inquiry has to be in accordance with the principles of natural justice. In such a situation apart from technicality whether permission is asked for or having not been asked for, a time has come to expect the employer or his nominee to inform the employee of his rights. If thereafter the employee does not avail of the opportunity, no grievance could be made. And here the petitioner as required by cl.(4) had a right to cross-examine witnesses. Sitting in law Courts day in and day out we know what the art of cross-examination