Nisha K.S v. Enquiry Officer, Office of the Assistant Commissioner, Central Tax and Central Excise, Perumbavoor Division, and Chief Commissioner, Central Tax and Central Excise

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942 WP(C).No.15398 OF 2020(Y)** ## **PETITIONER:** **NISHA K.S AGED 38 YEARS CANTEEN CLERK, W/O.SREENI, KRISHANTTUTHARA HOUSE, KADEKKURISE, NAYARAMBALAM P.O., ERNAKULAM DISTRICT - 682 509.** **BY ADVS. SRI.SAJAN MANNALI SMT.SANTHI K.PAI SMT.ANJANA M VADHYAR SRI.AADITHYAN S.MANNALI SMT.KRISHNAPRIYA B.** ## **RESPONDENTS:** **1 REEJA RAGHAVAN THE ENQUIRY OFFICER, C/O.OFFICE OF THE ASST. COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE PERUMBAVOOR DIVISION, G-ARCADE, THOTTUNGAL ROAD, PERUMBAVOOR, PIN - 683 542.** - **2 THE CHIEF COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, C.R.BUILDING, IS.PRESS ROAD, KOCHI - 18.** **R1 BY SRI.SREELAL WARRIAR, C.G.C R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)No.15398 of 2020** **2** ## **JUDGMENT** The petitioner says that she is working as a clerk in the canteen run by the Central Tax and Central Excise, in their office at I.S. Press Road, Ernakulam. She admits that she has been charge sheeted for certain allegations and that an enquiry has already been ordered. She says that, she had participated in the said enquiry and preferred Ext.P3 request before the Commissioner, Central Tax and Central Excise, requesting that she be allowed the assistance of an Advocate; and that pursuant thereto, her the learned counsel appeared before the Enquiry Officer and participated in the process, as is evident from Ext.P4 Daily Order Sheet of 04.02.2020. 2. The petitioner alleges that in spite of this, the 1[st] respondent – Enquiry, Officer who is the Disciplinary Authority, has now issued Ext.P7, dated 20.07.2020, rejecting her request for allowing her learned counsel to appear on her behalf. The petitioner, therefore, prays that Ext.P7 be set aside and her learned counsel be allowed to represent her during the enquiry proceedings. 3. I have heard Sri.Sajan Mannali, the learned counsel **WP(C)No.15398 of 2020** **3** appearing for the petitioner; as also the learned Assistant Solicitor General appearing on behalf of the respondents. 4. Sir.Sajan Mannali, began his submissions by admitting that there are no formal orders issued by any Authority on Ext.P3 request of his client; but asserted that, as is limpid from Ext.P4, the Enquiry Officer had allowed her learned counsel to appear on her behalf and put across certain questions, which were answered by the Presenting Officer. Sri.Sajan Mannali, therefore, prays that Ext.P7 be set aside and that the Enquiry Officer be directed to allow the counsel for the petitioner to appear on her behalf in the said proceedings. 5. The Assistant Solicitor General, Sri.P.Vijayakumar, on the contrary, submitted that Ext.P4 does not indicate that the counsel for the petitioner was allowed to participate in the enquiry, except that it records the submission of the petitioner that she has authorised Sri.Sajan Mannali, Advocate to represent her. He submitted that there is absolutely nothing in the said proceedings to show that this request has been conceded to, particularly because it was not for the Enquiry **WP(C)No.15398 of 2020** **4** Officer to make any such decision, since Ext.P3 had been preferred before the 1[st] respondent-Commissioner; and contented that as long as the said respondent did not make any affirmative order on the same, the petitioner cannot hold on that her counsel has been permitted to represent her. 6. After saying so, the learned Assistant Solicitor General further submitted that it is now well settled, through a series of judgments, including in _**Ramesh Chandra v. University of Delhi [2015 (1) KLT Suppl. 94(SC)] and [Vaikom Taluk Co-operative Agricultural & Rural Development Bank Ltd.No.K951 v. Anilkumar & others**_ _**[2020 (4) KHC 81 (DB)]**_ that it is only when either the Enquiry Officer or the Presenting Officer is a legally trained person or an Advocate, will a charge sheeted employee be entitled to a similar opportunity. He submitted that in this case neither the Enquiry Officer or the Presenting Officer are Advocates or even legally trained persons and therefore, that the petitioner cannot seek the assistance of a counsel as a matter of right. The learned Assistant Solicitor General, therefore, prays that this writ petition be dismissed. **WP(C)No.15398 of 2020** **5** 7. I have examined Ext.P4, which is the “Daily Order Sheet” of 04.02.2020, as recorded by the Enquiry Officer. As rightly stated by the learned Assistant Solicitor General of India, the Enquiry Officer has not recorded therein that a counsel has been permitted to appear on behalf of the petitioner, but has only recorded her submission that she has authorised Sri.Sajan Mannali, Advocate, to represent her. In fact, the Enquiry Officer could not have taken a decision to either allow the learned counsel to appear or otherwise, since, admittedly, Ext.P3 had been preferred before the 1[st] respondent by the petitioner. Therefore, as long as the said respondent had not taken any decision on Ext.P3, there was no question of the petitioner being represented by a counsel particularly, when admittedly, neither the Enquiry Officer nor the Presenting Officer are legally trained. 8. In the afore circumstances, I cannot find favour with the petitioner in asserting that she should be allowed to be represented by a counsel for her choice, especially when the applicable Regulations make it clear that no such opportunity can be given, except when the Enquiry Officer or **WP(C)No.15398 of 2020** **6** the Presenting Officer is a legally trained person; and going by the judgments afore cited, this position is reinforced without any doubt. In the afore circumstances, I find no reason to grant any of the reliefs sought for in this writ petition and I, therefore, dismiss it; however, directing the respondents to ensure that all necessary opportunities are given to the petitioner as per law and as per the extant Regulations, when the disciplinary proceedings are taken forward and completed. This writ petition is thus disposed of. **Sd/DEVAN RAMACHANDRAN JUDGE** VPK **WP(C)No.15398 of 2020** **7** ## **APPENDIX** ## **PETITIONER'S/S ANNEXURES:** **EXHIBIT P1 TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER, DATED 9.7.2019, MARKED AS EXT.P1.** **EXHIBIT P2 A TRUE COPY OF THE REPLY TO THE MEMO OF CHARGES BY THE PETITIONER DATED 14.09.2019, MARKED AS EXT.P2.** - **EXHIBIT P3 A TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE DISCIPLINARY AUTHORITY - THE 2ND RESPONDENT, DATED 24.2.2020 SEEKING TO APPOINT A LEGAL PRACTITIONER AS HER DEFENSE ASSISTANT, MARKED AS EXT.P3.** **EXHIBIT P4 A TRUE COPY OF THE DAILY ORDER SHEET OF INQUIRY PROCEEDINGS ON 4.2.2020, BEARING NO.C.N.O.11/09/1/2020- VIG. DATED 16.3.2020, ISSUED BY 1ST RESPONDENT, MARKDED AS EXT.P4.** **EXHIBIT P5 A TRUE COPY OF THE SAID LETTER BEARING NO.C.NO.II/10A/02/2019 VIG.CX.CHN, DATED 19.3.2020 OF THE 2ND RESPONDENT DISCIPLINARY AUTHORITY, BE MARKED AS EXT.P5. EXHIBIT P6 A LETTER SENT BY THE PETITIONER TO THE ENQUIRY OFFICER DATED 15.07.2020 EXHIBIT P7 A TRUE COPY OF THE ORDER FROM THE 1ST RESPONDENT INQUIRY OFFICER BEARING NO.11/9/1/2020. VIG., DATED 20.7.2020 IS MARKED AS EXT.P7 EXHIBIT P8 A TRUE COPY OF THE ORDER FROM THE 1ST RESPONDENT INQUIRY OFFICER BEARING NO.C.NO.11/9/1/2020. VIG., DATED 22.7.2020 IS MARKED AS EXT.P8. EXHIBIT P9 A TRUE COPY OF DOCUMENT NO.13.10.2001-DIR (C) GOVERNMENT OF INDIA,DATED 22.12.2004** **WP(C)No.15398 of 2020** **8** **EXHIBIT P10** **A TRUE COPY OF THE LIST OF DEPARTMENTAL CANTEENS RE-CATEGORISED AS ON 22.10.2008** **EXHIBIT P11** **A TRUE COPY OF THE REPRESENTATION/LETTER OF THE PETITIONER TO THE INQUIRY OFFICER, DATED 03.02.2020** **EXHIBIT P12** **TRUE COPY OF THE REPRESENTATIN/LETTER OF THE PETITIONER TO THE INQUIRY OFFICER, DATED 14.02.2020** ## **RESPONDENT'S/S ANNEXURES:** **ANNEXURE R1(a) TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 26.10.2009** - **ANNEXURE R1(b) TRUE COPY OF THE PETITIONER WAS FURTHER PROMOTED TO CLERK (CANTEEN) VIDE ORDER DATED 28.03.2018 OF THE JOINT COMMISSIONER (P&V)** - **ANNEXURE R1(c) TRUE COPY OF THE CIRCULAR NO.12/5/91-DIR (c) DATED 29.01.1992** - **ANNEXURE R1(d) TRUE COPY OF THE SALARY SLIP OF THE PETITIONER FOR JULY, 2020** **ANNEXURE R1(e) TRUE COPY OF THE RELEVANT PAGES OF THE 'ADMINISTRATIVE INSTRUCTIONS ON DEPARTMENTAL CANTEENS IN GOVERNMENT OFFICERS AND INDUSTRIAL ESTABLISHMENTS' OF DECEMBER, 2008 ISSUED BY DOPT** **ANNEXURE R1(f) TRUE COPY OF THE OFFICE MEMORANDUM NO.03/02/2009-DIR(CAN) DATED 05.06.2014 ANNEXURE R1(g) TRUE COPY OF THE RECRUITMENT RULES FOR CANTEEN STAFF DATED 14.02.2007 ISSUED TO DOPT ANNEXURE R1(h) TRUE COPY OF THE APOLOGY (REPORT) DATED 26.09.2018 ISSUED BY THE PETITIONER ANNEXURE R1(i) TRUE COPY OF THE INCIDENT REPORT DATED 27.09.2018** **WP(C)No.15398 of 2020** **9** **ANNEXURE R1(j) TRUE COPY OF THE LETTER SERVED ON THE PETITIONER DATED 28.01.2020 ANNEXURE R1(k) TRUE COPY OF THE LETTER SERVED ON THE PETITIONER DATED 04.02.2020**