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Employee Facing Departmental Action Allowed To Engage Advocate For His Defence If Inquiry Officer Is A Legal Expert: Gujarat High Court
Udit Singh
19 Jan 2023 11:45 AM IST
In the context of departmental proceedings, the Gujarat High Court has held that a delinquent employee is entitled to engage a counsel for his defence where the inquiry officer himself is a legal expert.Allowing the plea made by one such employee, Justice A.S. Supehia observed,"In the present case, since the Inquiry Officer himself is a City Civil Judge and expert in the legal proceedings,...
In the context of departmental proceedings, the Gujarat High Court has held that a delinquent employee is entitled to engage a counsel for his defence where the inquiry officer himself is a legal expert.
Allowing the plea made by one such employee, Justice A.S. Supehia observed,
"In the present case, since the Inquiry Officer himself is a City Civil Judge and expert in the legal proceedings, the assistant of a legal practitioner for defending the case of the petitioner cannot be denied...The Apex Court has emphatically held that if any person, who possesses legal acumen is appointed as an inquiry officer in an inquiry initiated against an employee, the denial of a legal practitioner for assistance in inquiry to the charged employee will be unfair."
The court was hearing a writ petition challenging an order which denied the petitioner to engage an advocate for his defence in the inquiry. The inquiry was initiated following a complaint before Special Vigilance Officer and the Disciplinary Officer was the Principal Judge City Civil & Sessions Court.
In this backdrop, the petitioner filed an application requesting the permission to appoint an advocate to defend the proceedings, which was rejected.
At the outset, the Court observed that there is no absolute bar under Rule 9(5)(c) of the Gujarat Civil Services (Disciplinary and Appeal) Rules, 1971 in appointing a legal practitioner in the disciplinary proceedings by the delinquent.
The court relied upon Professor Ramesh Chandra v. University of Delhi, AIR Online 2015 SC 483 (2015 (5) SCC 549 where the Apex Court has observed that: “where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated......”.
In conclusion the court directed the respondent authority to permit the petitioner to engage a legal practitioner for defending himself in the inquiry. "The name of such legal practitioner shall be given to the respondent no.2-Inquiry Officer within a period of 15 days. After such name is given, the Inquiry Officer i.e. the respondent no.2 shall permit the advocate to represent the case of the petitioner in the departmental proceedings,” Court ordered.
Case Title: Divyesh Govindbhai Kunvariya v. State of Gujarat
Case Citation: 2023 Livelaw (Guj) 13
Coram: Justice A.S. Supehia
