18 Aug 2010

Right to be defended by lawyer of choice not absolute: Supreme Court

While the Constitution of India guarantees every citizen to be defended by a lawyer of his choice, the Supreme Court in a recent decision [Dinesh Chandra Pandey v. High Court of Madhya Pradesh] has declared that since in terms of the M.P. Civil Services the right to take assistance of a legal practitioner was subject to a precondition and such precondition was not met in his case, he could not be allowed to be represented by a lawyer of his choice.
The Supreme Court declared the law in the following terms;
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 the evidence in its proper perspective and has failed to accept plausible defence raised by the appellant in regard to deposit of money in the bank. The order of removal from service, thus, is based on no evidence and is required to be set aside. In support of this contention learned counsel referred to Rule 14(8) of the 1966 Rules as well as Judgment of this Court in the case of J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. [(1991) 2 SCC 283] and Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, [(1983) 1 SCR 828]. The 1966 rules are applicable to the member of judicial services of the State of Madhya Pradesh as the Government, in consultation with the High Court, has only framed one set of Rules i.e. M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 (which primarily deal with the eligibility, methodology relating to appointment to the judicial services of the States and its cadre etc. As far as the disciplinary rules are concerned, it is a common case of the parties that the above 1966 Rules are the Rules applicable to the members of judicial services. These Rules came into force from the date of their publication. They deal with power to suspend, conduct departmental enquiry, the procedure which is to be adopted in a departmental enquiry and punishments which can be inflicted upon an officer by the Competent Disciplinary Authority. While Rule 10 deals with the punishment and penalties which can be imposed on the member of the service, Rules 12 and Rule 13 deal with the Disciplinary Authority and the authority who can institute the proceedings. While Rule 14 deals not only with imposition of punishment but also gives the entire procedure which is required to be followed by the Enquiry Officer as well as the Disciplinary Authority before inflicting any punishment upon the charged officer, Rule 14(8) deals with providing of legal assistance or engagement of a legal practitioner during the course of a departmental enquiry. As the reliance has been placed by both the parties on this Rule, it will be useful to reproduce the same here: 
“Rule 14(8): The Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority 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 properly and in accordance with the settled principles of service jurisprudence. The Courts have taken a view that where expression ‘shall’ has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision. This Court in the case of Sarla Goel v. Kishan Chand [(2009) 7 SCC 658], took the view that where the word ‘may’ shall be read as ‘shall’ would depend upon the intention of the legislature and it is not to be taken that once the word ‘may’ is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in light of the settled principles, and while ensuring that intent of the Rule is not frustrated. Further, in the case of Malaysian Airlines Systems BHD (II) v. Stic Travels (P.) Ltd., [(2001) 1 SCC 509], this Court took the view that word ‘may’ in Section 11(1) of the Arbitration and Conciliation Act, 1996 is not to be construed as ‘must’ or ‘shall’, as the word ‘may’ has not been used in the sense of ‘shall’, the provision is not mandatory. In the light of these principles, we are of the considered view that the expression ‘may’, used in Rule 14(8) of 1966 Rules would have to be construed as directory and not absolutely mandatory with reference to the facts and circumstances of a given case. Of course, it would be desirable that wherever the presenting officer is a legal practitioner, the delinquent officer should be given the option and may be permitted to engage a legal practitioner if he so opts. But this Rule is hardly of any assistance and help to the appellant in the present case. The Presenting Officer was an Additional District Judge. He was possessed of similar qualification, professionally or otherwise, as was the appellant himself. The appellant could have asked for permission to engage and take assistance of any other judicial officer of that rank or of any rank that he wanted which request ought to have been considered by the Disciplinary Authority. It will be entirely uncalled for that an Additional Judge should be termed as a legal practitioner 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 Lexicon to emphasise that the expression ‘legal practitioner’ appearing in Rule 14(8) would cover even a judicial officer. He relied upon the following explanations given to this expression:
“Legal practitioner” defined (See also Advocate of a High Court; Barrister; Government pleader; Pleader; Public Prosecutor; Recognized agent) Act 18, 1879, S. 3; Act 18, 1881, S. 4(2); Act 16, 1887, S.4(16); Act 17, 1889, S 3(13); Act 23, 1923, S.2; Act 21, 1926, S.2 ‘Legal Practitioner’ means an advocate vakil or attorney of any High Court, a pleader, mukhtaro revenue agent. Act XVIII of 1879 (Legal Practitioners), S.3]” 
8. The above referred explanations clearly show that a judge in service cannot be termed as a legal practitioner, as it will mean and include only an Advocate or a vakil of Court practicing in a Court, may even be a Barrister, Special Pleader, solicitors depending on the facts of a given case. Rule 2 (e) of the Central Administrative Rules, 1987 also defines the word ‘legal practitioner’. However, it, in turn, requires that this expression shall have the same meaning as is assigned to it under the Advocates Act, 1961. In that Act the word ‘legal practitioner’ has been defined under Section 2(i) to mean an advocate or vakil of any High Court, a pleader mukhtar or revenue agent. In other words, this is an expression of definite connotation and cannot be granted an extended or inclusive meaning, so as to include what is not specifically covered. A Judge may be law graduate holding a Bachelor Degree in Law from any University established by law in India but this by itself would not render him as a ‘legal practitioner’. On the contrary, there is a definite restriction upon the Judge from practicing law. Such an implied inclusion, as argued by the appellant, would not lead to absurdity but would even offend the laws in force in India. John Indermaur, Principles of the Common Law 169 (Edmund H. Bennett ed., 1st Am.ed. 1878 explains the term as follows : 
“Legal practitioners may be either barristers, special pleaders not at the bar, certified conveyancers, or solicitors. The three latter may recover their fees, but the first may not, their acting being deemed of a voluntary nature, and their fees merely in the light of honorary payments; and it follows from this, that no action lies against them for negligence or unskilfulness.” 
9. Thus, the expression ‘legal practitioner’ is a well defined and explained term. It, by any stretch of imagination, cannot 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 the complainant neither has necessary experience nor the required skill to handle his defence in such circumstances.” This statement ex facie is not correct. The appellant must have dealt with variety of cases during his tenure as a Judge. He was fully capable of defending himself in the departmental enquiry. In the alternative he could easily ask for assistance of any senior colleague from the service if he was under pressure of any kind that the Presenting Officer was senior to him and belonged to Higher Judicial Service. He did not exercise this choice, at any stage, for reasons best known to him. However, he made an application praying for permission to engage an advocate and nothing else. Charge against the appellant was not of a very complicated nature, which a person having qualification and experience of the appellant would not be able to defend. In these circumstances, we are of the considered view that no prejudice whatsoever has been caused to the interest of the delinquent officer. These are the rules primarily of procedure, an element of prejudice would be one of the necessary features, before departmental proceedings can be held to be vitiated on that ground. The reliance placed upon the case of J.K. Aggarwal (supra) is totally unwarranted. In that case, the Court came to the conclusion that refusal to sanction the service of lawyer in the inquiry proceedings was not a proper exercise of discretion under the Rule resulting in failure of justice. The Court held that the discretion was vested in the disciplinary authority in terms of Rule 7(5) of the relevant Rules. The language of that Rule was entirely different and permission to engage a legal practitioner was relatable to the nature of the punishment which could be imposed upon the delinquent officer in the departmental proceedings. If the charges were likely to result in dismissal of the person from service, in that event, that officer may with the sanction of the Enquiry Officer be permitted to be represented through a counsel. Language of this Rule is entirely different from the language of the Rule in question in the present case. On the basis of the facts of that case and Rule 7(5) of the said Rules the Court held: 
“The right of representative by a lawyer may not in all cases be held to be a part of natural justice. No general principle valid in all cases can be enunciated. In non-statutory 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 lawyer are for this purpose somewhat liberally construed and must include “whosoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser”. In the last analysis, a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justice of the case. It is unnecessary, therefore, to go into the larger question “whether as a sequel to an adverse verdict in a domestic enquiry serious civil and pecuniary consequences are likely to ensue, in order to enable the person so likely to suffer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner” which was kept open in Board of Trustees of the Port of Bombay v. Dilip Kumar. However, it was held in that case (SCC p. 132, para 12) 
“…In our view we have reached a stage in our onward march to fair play in action 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….”
On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett case that in defending himself one may tend to become “nervous” or “tongue-tied”. Moreover, appellant, it is claimed, has had no legal background. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice.”
10. Thus, the appellant can hardly take any help from that case. Even in the case of Dilipkumar Raghavendranath Nadkarni (supra), the Board of Trustees had appointed its law officer as a presenting officer. The Presenting Officer was legally trained and experienced 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.

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