TMI Blog2010 (7) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... s-II and J.M.F.C. Raipur had a Bank account in State Bank of India Account No. SB/8833, the balance whereof swelled from ₹ 2170.01 to ₹ 35036.92 paise within the period from January 1984 to 6th May, 1985, his explanation in this behalf having been found unconvincing considering the disproportionateness of the said increase in his bank balance to his salary income and pattern and frequency of deposits the said increase in balance is capable of no other reasonable explanation than that of illicit gains as the source of money which renders his integrity gravely doubtful. 2. The allegations were denied by him and on 30 th January, 1989 he submitted that he owns 37 acres of land in Bilaspur and has agricultural income to the extent of ₹ 50,000/- p.a. It is out of this agricultural income that he has been depositing amounts in the bank and has not committed any violation of service regulations or other offence which would attract disciplinary action against him. The competent authority decided to conduct a regular departmental enquiry and appointed Shri G.R. Pandya, District Sessions Judge, Raipur as enquiry officer. Besides appointing an enquiry officer, the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f removal from service, as confirmed by the appellate authority, was challenged by the appellant by filing a Writ Petition being Misc. Petition No. 3847 of 1992 in the High Court which also came to be dismissed by the Ld. Single Judge vide its order dated 1st July, 2003. Still dissatisfied with the judgment of the Court, Letter Patent Appeal was filed which also met the same fate and was dismissed by the Division Bench of the Madhya Pradesh High Court vide order dated 17th December, 2004. The legality and correctness of this order has been challenged by the appellant in the present appeal under Article 136 of the Constitution. 4. As would be evident from the above narrated facts, the charge against the appellant was a very limited one. In fact, the deposit of the amount in the bank was not disputed by the appellant. However, he rendered the explanation that he had agricultural land from where he was getting ₹ 50,000/-p.a. as income and had, therefore, deposited these amounts in the bank during the period stated in the charge sheet i.e. between January, 1984 to May, 1985. He had also taken up the stand before the Courts that while he was functioning as a Civil Judge (Class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no plausible explanation for depositing the money in the bank at such short intervals, no fault can be found with the finding of the Enquiry Officer. Referring to the behaviour of a common prudent person/agriculturist, the income from agriculture could hardly be on day-to-day basis. It was nobody's case that vegetable or allied crop was being grown on the land in question. In normal course, the money would be available to agriculturist only when the crop is harvested and sold in the market. No such evidence had been produced by the appellant during the course of enquiry. Thus, no interference is called for. 6. The challenge to the impugned order is, primarily, on two grounds. Firstly, the appellant had asked for assistance of a legal practitioner which had been unfairly denied to him. Denial of assistance of a legal practitioner tantamount to violation of principles of natural justice as well as M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short 1966 Rules ), and, as such, the entire departmental proceedings as well as the impugned order of punishment are vitiated. Secondly, the enquiry officer as well as the High Court have not appreciated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits. 7. The bare reading of this Rule shows that the Government servant may take the assistance of any other Government servant to represent his case but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the authority is a `legal practitioner' or the disciplinary authority, having regard to the circumstances of the case, so permits. The expression `may' cannot be read as `shall'. The normal Rule is that a delinquent officer would be entitled to engage another officer to present his case. But if the presenting officer is a `legal practitioner', he may normally be permitted to engage a legal practitioner. The third category is where the disciplinary authority having regard to the circumstances of the case so permits. It is, therefore, not absolutely mandatory that the disciplinary authority should permit the engagement of a legal practitioner irrespective of the facts and circumstances of the case. There is some element of discretion vested with the authority which, of course, has to be exercised prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and, therefore, vesting in the appellant a right to engage a legal practitioner or an advocate for defending him in the departmental proceedings. It will be rather appropriate to apply the principles of contextual interpretation in the facts and circumstances of the case. In the case of Muddada Chayanna vs. K. Narayana [AIR 1979 SC 1320], it was held by this Court that interpretation of statute, contextual or otherwise, must further and not frustrate the object of the statute. In other words, the expression `medical practitioner' appearing in the Maharashtra Nurses Act, 1966 should be given a meaning in the context in which it is sought to be applied to achieve the real object of the statute. It is also to be kept in mind that while dealing with the provisions of the statute, the Court would not adopt an approach or give meaning to an expression which would produce unintelligible, absurd and unreasonable result and would render the legislative intent unworkable or totally irreconcilable with the provisions of the statute (Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd. [AIR 2003 SC 511]). The learned counsel for the appellant referred to P. Ramanatha Aiyar's Law L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Thus, the expression `legal practitioner' is a well defined and explained term. It, by any stretch of imagination, can include a serving Judge who might have been appointed as a presenting officer in the departmental proceedings. Besides this legal aspect of the matter, even on principle of fairness we do not think that the order has caused any prejudice to the appellant. The appellant could have asked for appointment of any colleague whose assistance he wanted to take and who would have been as well qualified and experienced as the presenting officer. The request of the appellant has been rightly rejected by the disciplinary authority. Furthermore, the application was made on 7th December, 1988 itself and thereafter the appellant took no steps whatsoever to challenge the order of the Disciplinary Authority declining assistance of an advocate. On the contrary, he participated without any further protest in the entire departmental enquiry and raised no objections. The Enquiry Officer conducted the proceedings in a just, fair manner and in accordance with rules. In fact, there is no challenge to that aspect of the matter. In the application, the appellant had stated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory domestic tribunals, Lord Denning in the Court of Appeal in England favoured such a right where a serious charge had been made which affected the livelihood or the right of a person to pursue an avocation and observed: I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel or solicitor. But this was not followed by Lyell, J. in Pett case (No.2) It would appear that in the inquiry, the respondent-Corporation was represented by its Personnel and Administration Manager who is stated to be a man of law. The rule itself recognizes that where the charges are so serious as to entail a dismissal from service the inquiry authority may permit the services of a lawyer. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reasons of the appellant being pitted against a presenting officer who is trained in law. Legal Adviser and a la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in handling departmental enquiries, it was in those circumstances that this Court found, as a matter of fact, that there was violation of principles of natural justice and that a legally expert person has been permitted to be engaged by the delinquent worker. In that case the provisions similar to the present provisions also came into force during the pendency of the departmental proceedings. The Court remanded the matter and directed re-conducting of the departmental enquiry with specific liberty to the workman to cross-examine all the witnesses afresh in accordance with law. The facts of that case are thus entirely different from the case in hand wherein no such ground is made out. Firstly, the petitioner himself was equally qualified and trained as the presenting officer and/or he could even ask for assistance for a fellow colleague with similar experience and status as that of the presenting officer which he choose not to do. Having given up the right, he cannot now be permitted to turn back and raise a grievance in that regard. This contention of the appellant is without any merit. 11. Coming to the other aspect of the case, that there is perversity in appreciation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo different places. There is a specific column relating to income from agriculture. In that form it was filled in by the appellant as `uncertain' (anishchit). This return had been filed on 27 th March, 1985. In other words, on that date he did not know whether he had earned any amount from the agricultural income or not. The period in question was January, 1984 to May 1985, thus, for the substantial period, he was fully aware of his income received from agricultural activity but he still chooses to keep it vague and not declare his true income in the return. Now, in the departmental proceedings and in the reply to the charge-sheet, he submitted that there was an income of more than ₹ 50,000/- p.a. and that he owned 37.53 acres of land in village Bilaspur at two different places. It is again strange that he did not disclose in his reply that this was a land jointly owned with his brothers and family members and what was the extent of his holding individually. In the return, he himself claimed one-third share in the property. The total land indicated at two different places being 26 acres + 18 comes to 44 acres and one third of which, merely 14 acres approximately, would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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