Right To Be Represented By Lawyer In Domestic Enquiries

Right To Be Represented By Lawyer In Domestic Enquiries Overview

• Introduction: Right To Be Represented By Lawyer In Domestic Enquiries
• Principles of Natural Justice
• Audi Alteram Partem
• Domestic Inquiries: A Quasi-Judicial Action
• Right to be Represented by a Lawyer at Domestic Inquiries
• Analysis of Supreme Court and Delhi High Court
• Critical Analysis, Findings and Suggestions
• Conclusion and Suggestions

Introduction: Right To Be Represented By Lawyer In Domestic Enquiries

This article ‘Right To Be Represented By Lawyer In Domestic Enquiries’ aims at critically analyzing the judgements of Delhi High Court and Supreme Court related to the right to be represented by a lawyer at the domestic inquiry. The Article begins from analyzing judgements associated with the right to be represented by a lawyer at the domestic inquiry and further aims at deducing a test as to in which circumstances the denial of right will lead to violation of principles of Natural Justice. The article critically analyzes the test deduced by the Judiciary and proposes suggestions for preventing a miscarriage of Justice.

Domestic inquiry is a branch of Quasi-Judicial actions. The fundamental principles which regulate the judicial proceedings are embodied in CrPC, CPC and Evidence Act. The statutes are not applicable to the domestic inquiry or departmental proceedings but still in some way or the other, these fundamental principles embodied in statutes are applicable because these principles are based on the Principles of Natural Justice.

Audi Alteram Partem is a Latin phrase which means that ‘listen to other party’. The judgement shall not be passed against the employee without giving him an opportunity to respond to the allegations and evidence produced against him/her. The right to be represented by a lawyer at the domestic enquiry is not a vested or statutory right but only can be granted on the discretion of the enquiry officer or when it is explicitly provided in the service rules. Such findings of the may result in a threat to justice and misuse of the discretionary powers granted to the administrative authorities.

Principles of Natural Justice

In the recent years, principles of Natural Justice has emerged to specifically deal with the quasi-judicial proceedings and to ensure that the proceedings are conducted in a fair manner, in good faith and without causing any prejudice to the party whose rights are going to be affected by the decision.

Any quasi-judicial authority conducting the domestic inquiry cannot pass any judgement or decision against the party unless the party has been given a chance to be heard. ‘The principles of natural justice will come into action in the cases where any right of an individual is affected by the acts of the administration which includes legitimate expectation.’[1]

The two principles of natural justice are as follows:

• Nemo in propria causa judex, esse debet. (No one can judge a case affecting his own rights which is known as rule against bias)
• Audi alteram partem. (An opportunity to be heard shall be given to the other party and to respond to the allegations raised against him.

The latest development in the application of Principles of Natural Justice is that it is less applicable in case of delegated legislation but is highly applicable in cases of quasi-judicial actions and pure administrative actions with civil consequences.

The values of Principles of Natural Justice are not codified in India but are embedded in the provisions of the Constitution of India. It was held in the case of Ridge v. Baldwin,[2]that whenever any prejudice is likely to be caused to any person then the principles of Natural Justice will come into the application and causing such prejudice to any person will lead to violation of principles of natural justice.

Audi Alteram Partem

This principle is the basic concept of the principles of Natural justice which can be considered as pre-requisite condition for the existence of a civilised society. The principle mandates that every person shall be given a chance to be heard before passing a decision affecting his rights.

The court in BALCO Employees’ Union v. Union of India,[3] held that an inappropriate order made by the administrative authority may affect the person adversely and that is why a reasonable opportunity shall be granted to the person for presenting his case. The person shall be given an opportunity for cross-examination of the witnesses examined by the other party,[4]

The three important aspects of the principle of Audi alteram partem are as follows:

• The party against whom the action is proposed to the administrative authority must have the notice that why and what action is proposed against him.
• Such party must have been given reasonable opportunity to present his case and to respond and explain that why the proposed action should not be taken against him.
• The administrative authority must note the reasons on the basis of which the decision is reached after hearing the arguments from both the parties.

Domestic Inquiries: A Quasi-Judicial Action

The administrative authority conducting quasi-judicial proceedings has the responsibility to adhere to the principles of Natural Justice. However, it is not mandatory for the authority to comply with the statues like CPC, CrPC and other procedural laws. The non-compliance with the principles of natural justice will lead to the invalidation of the proceedings. The Court in the case of A.K. Kraipak v. UOI,[5] held that in order to determine whether the administrative authority is performing an administrative action or quasi-judicial actions, it is necessary to examine the nature and scope of the power conferred to the administrative authority.

On the other hand, in case of pure administrative actions no such legal obligation exists on the administrative authority to consider and hear the arguments of both the parties or to collect evidence from both the parties as to the grounds on the basis of which the decision is taken are left to the discretion of administrative authority completely.

The acts which are to be done for the subjective satisfaction of the administrative authority are administrative actions and acts which are required to be done for objective satisfaction are quasi-judicial actions. ‘The decisions are given by the administrative authority on the basis of the previously determined principle then it can be said as objective decisions. On the other hand, where the discretion is left to the administrative authority to decide the issue then it will be said as a subjective decision.’[6]

Right to be Represented by a Lawyer at Domestic Inquiries

There is no legal provision which clearly talks about whether there exists a right of an employee to be represented by a lawyer at domestic inquiries or not. So this question shall also be decided on the basis of principles of Natural justice as no legal provision is applicable to decide this ambiguity. The rule of giving reasonable opportunity to a person to defend his case forms part of Audi alteram partem. It is necessary to identify and explain the nature and scope of the expression ‘reasonable opportunity’ on the basis of the analysis of Supreme Court and Delhi High Court judgements for deciding whether the right to be represented by a lawyer at domestic inquiry forms part of Natural Justice.

It is difficult to form a general rule to examine whether the denial of the right to be represented by a lawyer will violate the principles of natural justice and will result in denial of the right of reasonable opportunity to present his case. Whenever an employee contends that he was denied of his right to be represented by the lawyer at the domestic inquiry, then whether he has been denied of his reasonable opportunity and whether the proceedings against him shall be vitiated or not depends upon the facts and circumstances of each case.

In case the employee is denied by the administrative authority to be represented by a lawyer at the departmental proceedings and was permitted to be represented by any officer of the union from which the employee belonged and the management was represented by the matriculate holding the diploma in mechanical engineering, then on the basis of these facts it can be held that the principles of natural justice are not violated. Though the workman was not allowed to be represented by a lawyer it will not vitiate the proceedings because the employee was a graduate and was competent to defend himself.

Additionally, the other party which was management was also not represented by a lawyer and that is why the denial of the right to be represented by a lawyer will not be considered as a denial of reasonable opportunity and the proceedings will not be vitiated.[7]

The term ‘legal practitioner’ shall not be interpreted narrowly. The court held that if the officer conducting the domestic inquiry is a legally trained person and has been dealing with such inquiries for a long time then giving the permission to the employee to represent his case through a lawyer is legitimate and denial of such right will be considered as a denial of the right to have reasonable opportunity to be heard.[8] If the employer is represented by a legal practitioner then in such case the employee cannot be denied to be represented by a lawyer and such denial would lead to the violation of principles of Natural Justice.’[9]

The Court in the case of G.R. Venkateshwara Reddy v. Karnataka State Road Transport Corp,[10] held that it depends upon the rules and regulations that whether the employee should be permitted to be represented by a lawyer or not. In case the rules and regulations prohibit the employee to be represented by a lawyer, then the permission to be represented by a lawyer can be given only when the management is represented by a legally trained person.

Analysis of Supreme Court and Delhi High Court

The Division Bench of Delhi High Court in the case of Shobha Mukherjee (Mrs.) v. UCO Bank.,[11] held that if the disciplinary proceedings or the domestic inquiry does not include any question of law or any complicated legal issue and the management is not also represented by a legally trained person then in such a situation the denial to the employee of his right to be represented by a lawyer will not lead to violation of principles of natural justice. In this case, the employee was represented by his co-employee in the departmental proceedings.

‘The right to be represented by a lawyer at domestic inquiry or departmental proceedings is not an absolute right vested into the employee against whom departmental proceedings are initiated by an administrative authority.’ [12] The employee against whom the departmental proceedings are initiated cannot be granted permission to be represented by a lawyer unless the service rules explicitly contain a provision containing such permission.[13] Representation by a lawyer in case of departmental proceeding against the employee is not a matter of right until the service rules explicitly provide for such right.[14]

In case of N Kalindi and others v. Tata Locomotive & Engineering Co Ltd, the permission for the assistance of the leader of the union in examining the evidences and in cross-examining the witnesses was denied by the administrative authority. The Court held that the departmental enquiries are not the enquiries which are to be held in Court of law and these types of enquiries involve only simple question of facts as to whether any misconduct was committed by the employee.[15] The Court further held that the person accused of the enquiry is the best-suited person conducting his case.

The accused employee can himself cross-examine the witnesses produced against him and can at the same time examine the witnesses produced in his favour. Generally, the person accused of any misconduct himself conducts his case in the domestic tribunals. The government has framed rules regarding the procedure which should be followed in the departmental enquiries against the employees but the government has not made a provision dealing with as to the right of the accused employee to be represented by anyone else in any of its rules.

The Industrial Disputes Act 1947 also lay down the procedure to which the administrative authorities must adhere in conducting the enquiries against the employees and to reduce the instance of arbitrary proceeding but it also does not provide any provision about the right of the accused employee to be represented by anyone else. The provisions of the Industrial Employment (Standing Orders) Act, 1946 and Industrial Employment (Standing Orders) Central Rules, 1946 provides for the permission to the delinquent to be represented by any other person of the union which is fair, just and reasonable. Any other person of the union will include the representative of the Union.

The Supreme Court maintained the same line of reasoning of Bharat Petroleum Corporation Ltd v. Maharashtra General Kamgar Union.[16]In this case the court held that delinquent person can seek the assistance of any other person or can be represented by any other person only in the case if it is provided by the Service rules. There is no vested right to the delinquent employee to seek the assistance or to be represented by a lawyer or any other person. Rule 153.8 of the Railway Protection Rules 1987 provides that a person can seek limited assistance of his friend at the departmental proceedings initiated against him.[17] The delinquent cannot seek the assistance of a lawyer or any other person in the examination of evidence produced by him and the cross-examination of the witnesses produced by the other party even though the right to be represented by a lawyer is provided under the service rules.

In the case of Santosh Kumar Panwar v. New Delhi Municipal Council,[18]the plaintiff was charged for committing theft and was subsequently dismissed from the services after the departmental enquiry. The trial court said that the contention of the delinquent that the prosecuting officer was a CBI officer who is well versed with the law cannot be accepted because the prosecuting officer was not a lawyer though well versed in law.

The delinquent appellant, in this case, relied upon the judgement passed in the case J.K. Aggarwal v. Haryana Seeds Development Corporation,[19] where the court held that the denial of the permission to delinquent to be represented by a lawyer at departmental enquiry affecting his rights prejudicially will lead to the violation of principles of natural justice.

The Court in the Santosh Kumar case has not accepted the contention of the appellant based on the Haryana Seeds Development Corporation case because the counsel for the appellant has failed to prove in court that any prejudice is caused to the rights of the appellant.

Recently, Supreme Court in the case of State Bank of India v. Jha Developers Private Limited,[20]it was held that under section 30 of the Advocates Act, no advocate has right to appear in front of a In-house committee. The In-House Committees are not vested with the judicial powers and it only has the administrative power to gather facts and arrive at the decision. In-house committees are not empowered to decide a lis between the parties. Thus, no lawyer can appear before the In-house committees under section 30 of the Advocates Act.

Critical Analysis, Findings and Suggestions

The Supreme Court through its various decisions including N Kalindi and others v Tata Locomotive & Engineering Co Ltd, 1960 AIR 914 has recognized the principle associated with the right to be represented by a lawyer at the domestic enquiry which is as follows:

• The right to be represented by a lawyer at Domestic Enquiries is not a vested or statutory right and it cannot be granted until and unless it is explicitly provided in a provision of service rules.
• It is the discretionary power of the enquiry officer to grant or not to grant the right to be represented by a lawyer at Domestic Enquiries.
• Denial of the right by the enquiry officer will not lead to the violations of the principle of Natural Justice.

The Supreme Court in its various decisions has held that the right to be represented by a lawyer in departmental proceedings or domestic inquiry is not a vested or statutory right and it can only be granted to the person against the proceedings are initiated in case the service rules provide a provision for granting such right. However, the Supreme Court is not correct in adopting such approach as the procedures which are to be followed at the departmental proceedings are not captured under the fixed legal statutes and legislations strictly.

Departmental proceedings and Domestic enquiries are quasi-judicial actions and the procedure adopted for conducting such enquiries must be in accordance with the Principles of Natural Justice. The Court is not correct in saying that it will be the discretion of the enquiry officer to grant the right to be represented by a lawyer because the object of applying principles of Natural Justice to quasi-judicial actions is to prevent the misuse of the discretionary power of administrative authority and to secure justice. Right to be Represented by a Lawyer prevents misuse of discretionary power.

The latest development in the application of Principles of Natural Justice is that it is less applicable in case of delegated legislation but is highly applicable in cases of quasi-judicial actions and pure administrative actions with civil consequences. No fixed statute of law or legislation can be applied for governing the procedure of departmental enquiries which are quasi-judicial actions.

A pre-decisional hearing has to be given to the parties whose rights are going to be affected by the decision of administrative authority as a matter of rule. If in any case, it is not possible to give a chance of pre-decisional hearing as it would frustrate the purpose and object of exercising power then, in that case, the parties shall be given a chance for a post-decisional hearing. The expression ‘reasonable opportunity’ shall not be interpreted narrowly and it must include the right to be represented by a lawyer in the departmental proceedings.

However, the Supreme Court in J.K. Aggarwal v. Haryana Seeds Development Corporation[21] recognized the right to be represented by a lawyer at domestic enquiry where the court held that the denial of the permission to be represented by a lawyer at departmental enquiry affecting his rights prejudicially will lead to the violation of principles of natural justice.

Conclusion and Suggestions

The latest development in the application of Principles of Natural Justice is that it is less applicable in case of delegated legislation but is highly applicable in cases of quasi-judicial actions and pure administrative actions with civil consequences. The procedure followed in conducting the proceedings of departmental enquiry which is a quasi-judicial action must have to be in accordance with the Principles of Natural Justice. The procedure which is to be followed in quasi-judicial actions is nowhere laid down in rigid legal statutes and legislation.

The Principles of Natural Justice can simply be considered as the law of common sense. The object of Principles of Natural Justice is to secure justice, prevent the miscarriage of justice and reduce the instances of misuse of power by the administrative authorities. The concept of Audi alteram partem which forms an important part of the principles of Natural Justice provides that the other party shall be given a chance to be heard.

The Supreme Court through its various decisions has recognized the principle associated with the right to be represented by a lawyer at the domestic enquiry which is as follows:

• The right to be represented by a lawyer at the domestic enquiry is not a vested or statutory right and it cannot be granted until and unless it is explicitly provided in a provision of service rules.
• It is the discretionary power of the enquiry officer to grant or not to grant the right to be represented by a lawyer at the domestic enquiry.
• Denial of the right by the enquiry officer will not lead to the violations of the principle of Natural Justice.

The Author after critically analyzing the judgement of Delhi High Court and Supreme Court on the basis of the different components of the Principle of Natural Justice and concepts of Quasi-judicial actions has reached on the following conclusions:

• The Denial of the right to be represented by a lawyer at domestic inquiry will result in a violation of principles of Natural Justice under the concept of Audi alteram partem.
• The Supreme Court is incorrect in holding that denial of the right to be represented by a lawyer in domestic enquiry will result in the violation of principles of natural justice.
• The denial of such right will result in a threat to justice, miscarriage of justice and misuse of the discretionary powers by the administrative authorities.
• The expression ‘reasonable opportunity’ used under the concept of Audi alteram partem includes the right to be represented by a lawyer at the domestic enquiry to present his case and to respond to allegations and evidence produced against him.

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Books and Articles

• L. Kumar (2010) Law Relating to Disciplinary Proceedings in Industries, Sixth edn, Delhi: Universal Law Publishing Corporation.
• W.R. Wade, Administrative Law (1967) 154.
• Krishna Keshav (2019) Administrative Law, Seventh edn., Delhi: Singhal law Publication.
• CK Thakker, Administrative Law, 2nd edn., Eastern Book Company.

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[1] Ashoka Smokeless Coal India (P) Ltd. v. Union Of India, (2007) 2 SCC 181.

[2] Ridge v. Baldwin, [1964] AC 40.

[3] BALCO Employees’ Union v. Union of India, (2002) 2 SCC 333.

[4] T.R. Verma v. Union of India, AIR 1957 SC 882.

[5] A.K. Kraipak v. Union of India, AIR 1970 SC 150.

[6] Back to Basics (September 21, 2017) Quasi-judicial Action vs. Administrative Action, Important Quasi-Judicial bodies, Available at: https://www.civilsdaily.com/quasi-judicial-action-vs-administrative-action-important-quasi-judicial-bodies/ (Accessed: November 1, 2019).

[7] C.S. Deshpande v. Govt of Maharashtra, 1991 (II) LLJ 1 (Bom HC).

[8] Escorts Limited (Tractor Division), Faridabad v Labour Court, Faridabad, (1986) 69 FJR 273 (P&H).

[9] H.L. Kumar (2010) Law Relating to Disciplinary Proceedings in Industries, Sixth edn, Delhi: Universal Law Publishing Corporation.

[10] G.R. Venkateshwara Reddy v. Karnataka State Road Transport Corp, 1995 LLR 338 (Kant HC).

[11] Shobha Mukherjee (Mrs.) v. UCO Bank, 1995 LLR 665 (Del HC) (DB).

[12] BV Nagarajachar v. Presiding officer, C.G.I.T-cum-Labour Court, 2000 LLR 619 (Kar HC).

[13] Cipla Ltd. v. Ripu Dama Bhanor, 1999 LLR 534 (SC) 1999 (II) LLN 1032: 1999 (82) FLR 225.

[14] St. Thomas Mission Hospital v. State of Kerala, 2007 LLR 610 (Ker HC): 2007 (113) FLR 937.

[15] D.G. Railway Protection Force and others v. K. Raghuram Babu, (2008) 4 SCC 406.

[16] Bharat Petroleum Corporation Ltd v. Maharashtra General Kamgar Union, (1991) 1 SCC 626.

[17] Railway Protection Force Rules 1987, rule 1530.8.

[18] ibid.

[19] J.K. Aggarwal v. Haryana Seeds Development Corporation, AIR 1991 SC 1221.

[20] State Bank of India v. Jha Developers Private Limited, (2019) 6 SCC 787.

[21] J.K. Aggarwal v. Haryana Seeds Development Corporation, AIR 1991 SC 1221.

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