Legal representation in disciplinary proceedings is limited under Rule 12(6) and depends on specific conditions being met, which were absent in this case.

J U D G M E N T

K.Surendra Mohan,J:

The limited challenge of the appellant against the judgment of the learned single Judge is confined to the disallowing of his claim for the assistance of a legal practitioner to defend him at the disciplinary enquiry that is pending against him. The learned single Judge has found that the appellant does not have a right to claim the assistance of a legal practitioner to defend him in the disciplinary proceedings.

2. The appellant is working as a Law Officer in the Cochin Port Trust.

He had approached this Court by filing the writ petition challenging the disciplinary proceedings initiated against him as well as his suspension from service. He had been suspended from service on 21.2.2014 and was continuing under suspension. The learned Single Judge considered the contentions of the petitioner and found that the continued suspension of the appellant was without any justification and has therefore directed his reinstatement.

3. The counsel for the respondent submits that pursuant to the judgment of the learned single Judge, the suspension of the appellant has already been revoked and he has been reinstated in service. The disciplinary proceedings have not proceeded because of the interim order of stay granted in this case.

4. We have heard the learned Senior Counsel Sri.K.Jayakumar appearing for the appellant as well as the Senior Counsel Sri.Abraham Markos, who appears for the respondent.

5. Rule 12(6) of the Cochin Port Employees (Classification, Control and Appeal) Regulations , 1964 (hereinafter referred to for short as 'the Rules')governs the situation. Rule 12(6) of the Rules is extracted hereunder for convenience of reference:-

“12. Procedure for imposing major penalties:-

xxxxxx (6) The Disciplinary Authority may nominate any person to present the case in support of the charges before the Authority inquiring into the charges (hereinafter referred to as the Inquiring Authority). The employee may present his case with the assistance of any other employee.

[including a retired employee who retired from services not earlier than 3 years from the date of commencement of the assistance] but may not engage a legal practitioner for the purpose unless the person nominated by the disciplinary authority is a legal practitioner or unless the disciplinary authority, having regard to circumstances of the case, so permits.

[provided that an employee shall not take the assistance of any other employee who has pending disciplinary cases on hand in which he has to give assistance and that of a retired employee who has three pending disciplinary cases on hand in which he has to give assistance].”

A perusal of the above provision shows that the right to be defended by a legal practitioner is permitted only in two situations:-

(1) Where the person nominated by the disciplinary authority is a legal practitioner or (2) Where the disciplinary authority having regard to the circumstances of the case so permits.

6. In the present case, it is not in dispute that the Superintending Engineer (Mechanical) is the Enquiry Officer. According to the learned counsel who appears for the respondent, the Presenting Officer is also not a legal practitioner. Therefore, the first situation contemplated by sub-rule (6) of Rule 12 of the rules is not available in the present case. It is no doubt true that having regard to the circumstances of a case, the disciplinary authority has the power to permit an employee to be defended by a legal practitioner. In the present case, such permission has been declined. Therefore, in the present case, the appellant cannot claim that he has a right to be defended by a legal practitioner. Apart from the above, it is worth noticing that the appellant is working as a Law Officer of the Cochin Port Trust. He is a person, who is expected to be aware of the nuances of such disciplinary proceedings. Therefore, he is a person, who is competent to represent his interests, effectively even without the assistance of