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1967 Supreme(Ori) 26
HIGH COURT OF ORISSA
K. Ahmad, C. J. And S. Barman, J.
NARAYAN DAS - Appellant
Versus
STATE - Respondent
O. J. C. 195 Of 1964
Decided On : MARCH 24, 1967
S.C.MOHAPATRA
The right to legal representation in departmental proceedings is not absolute and depends on the facts and circumstances of each case.
Headnote:
DISCIPLINARY PROCEEDINGS - RIGHT TO LEGAL REPRESENTATION - OPPORTUNITY TO CROSS-EXAMINE WITNESSES - RULES OF NATURAL JUSTICE - DISMISSAL FROM SERVICE - VALIDITY.
Fact of the Case:
The petitioner, a Rural Welfare Inspector, was dismissed from service on the ground of alleged misappropriation of public funds. He challenged the order of dismissal on the grounds that he was not given an opportunity to be assisted by a lawyer in the departmental proceedings and that he was not given any opportunity to effectively cross-examine the witnesses.
Finding of the Court:
The court held that the petitioner was not entitled to be represented by a lawyer in the departmental proceedings as the charges against him were not so complicated as to require the assistance of a lawyer. The court also held that the petitioner was given reasonable opportunity to cross-examine the witnesses as he was given indications of the nature of evidence each witness would give.
Issues: 1. Whether the petitioner was entitled to be represented by a lawyer in the departmental proceedings? 2. Whether the petitioner was given reasonable opportunity to cross-examine the witnesses?
Ratio Decidendi: 1. The settled position in law is that it is left to the discretion of the officer holding the enquiry to allow, or refuse to allow, a lawyer to represent the delinquent officer. Hence, the mere denial of such legal help will not necessarily involve failure to observe the rules of natural justice in all cases; in considering the question of prejudice, other facts, such as the nature of the charges made against the public servant and his educational and other attainments which have a bearing on his ability to defend him-self without help, should also be considered. 2. Whether or not the officer in question has had reasonable opportunity must always depend on the facts in each case; the only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted, the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in courts of law.
Final Decision: The court dismissed the writ petition.
BARMAN, J.
( 1 ) THE Petitioner -- until lately Rural Welfare Inspector in the Tribal and Rural welfare Department, Government of Orissa -- challenges in this writ petition the order of the Government of Orissa dated November 6, 1964 by which he was discharged from service on the ground of alleged misappropriation by him of public funds under items discussed in the said order agreeing with the enquiring officer's (Additional District Magistrate Keonjhar) report in the departmental proceedings against the petitioner.
( 2 ) THE main grounds on which the said Government order is challenged are, in substance, these: Unfair discrimination in that no opportunity was given to the petitioner to be assisted by a lawyer in the proceedings before the Enquiring officer. Besides, the petitioner was also not given any opportunity to effectively cross-examine the witnesses in that copies of the previous statements by the witnesses before the Vigilance Inspector were not supplied to the petitioner in spite of request. It was submitted that the punishing authority did not apply its mind in awarding the punishment to the petitioner.
( 3 ) IN 1949, the petitioner -- a plucked Matriculate as he describes himself -- was appointed as a Laboratory Attendant in Entomological Section (under Director of agriculture), Government of Orissa. The same year, he was appointed a Sardar in the Cut-tack Farm. In 1951, he was appointed as an Agricultural Teacher. In 1956 he was appointed Social Worker under the Tribal and Rural Welfare Department of the Government of Orissa in 1959, he was promoted as Rural Welfare Inspector
( 4 ) BY an order dated October 17, 1960, the petitioner then posted at Sadar Sub-Division, Keonjhar, was placed under suspension for alleged misappropriation of public funds and illegal acceptance of gifts. On the same date. Government intimated to the petitioner the charges -- 5 in number --framed against him. namely, these:
"1. Out of an amount of Rs. 1200 entrusted to you on 4-3-57 by the district Welfare Officer, Keonjhar for making a well In Masanvilla Kolha colony, you have misappropriated a sum of Rs. 536 by submitting false vouchers. 2. You have misappropriated a sum of Rs. 2572-05 P. (the figure as subsequently corrected) out of Rs. 21,050 entrusted to you during the period from 4-3-57 till 11-9-57 for construction of Kolha Colony by submitting false vouchers. 3. By submission of false vouchers, you have misappropriated about 248 cft. out of 1034. 11 cft. of sawn timber purchased for construction of the said colony 4 The Collector. Keonjhar issued orders in his letter No. 127/d W. dated 12-1-57 that inhabitants of Dihanali (the name as subsequently corrected) village should be settled in Masanvllla Colony. You violated his orders by getting some Inhabitants of other villages settled in the said colony. This amounts to disobedience of orders of the superior authority. 5. You have allowed 7 persons belonging to villages other than Dihanal, to settle in Masanvilla Kolha Colony by taking one goat from each of them. This amounts to illegal self-gratification and dishonesty. "
In the petition, the petitioner states that he expressed his difficulty to understand charge No. 2 and prayed for clarification of the same, but he did not receive any reply. However, on May 5, 1961 in due course, the petitioner submitted his explanation to all the charges, as directed by Government.
( 5 ) IN course of enquiry, the petitioner by his letter dated May 20, 1961 requested the Enquiring Officer to give the petitioner a list of the documents to be proved and the witnesses to be examined with extract of documents and points to be proved by the witnesses; the petitioner also prayed that permission may be given to him to engage a lawyer, in view of the position that as there are many complicated charges covering over a long period and various documents, it will not be possible for the petitioner to place the facts properly for a fair decision.
( 6 ) IN r
