Prakash Joseph v. M/S Malabar Cements Ltd. and its Managing Director

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936 WP(C).No. 21429 of 2013 (C) ---------------------------- ## PETITIONER: ----------- PRAKASH JOSEPH, AGED 45 YEARS S/O.JOSEPH, LEGAL OFFICER (UNDER SUSPENSION) MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA RESPONDENT(S): -------------- 1. M/S. MALABAR CEMENTS LTD. REPRESENTED BY ITS MANAGING DIRECTOR, WALAYAR PALAKKAD, PIN - 678 624. 2. MANAGING DIRECTOR, MALABAR CEMENTS LIMITED, WALAYAR PALAKKAD, PIN - 678 624. R1,R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1,R2 BY ADV. SRI.P.GOPINATH R1,R2 BY ADV. SRI.P.BENNY THOMAS R1,R2 BY ADV. SRI.K.JOHN MATHAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21429 of 2013 (C) --------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ----------------------- EXT.P-1: TRUE COPY OF THE NOTE SUBMITTED BY THE PETITIONER ON 22.9.2008 THROUGH THE MATERIALS MANAGER TO THE MANAGING DIRECTOR, WHICH WAS APPROVED BY THE MANAGING DIRECTOR. EXT.P-2: TRUE COPY OF THE LETTER DATED 22.9.2008 OF MALABAR CEMENTS TO THE CANARA BANK. EXT.P-3: TRUE COPY OF THE LETTER DATED 23.9.2008 ISSUED BY THE MANAGING DIRECTOR, MALABAR CEMENTS TO THE CHIEF MANAGER, CANARA BANK LIMITED. EXT.P-4: TRUE COPY OF THE OBJECTION FILED BY MALABAR CEMENTS SIGNED BY THE PETITIONER FOR THE COMPANY IN I.A.NO.3778/2008. EXT.P-5: TRUE COPY OF THE NOTE APPROVED BY THE MANAGING DIRECTOR ON 1.1.2009. EXT.P-6: TRUE COPY OF THE LETTER DATED 24.6.2009 ISSUED BY THE MANAGING DIRECTOR OF THE 1ST RESPONDENT TO M/S.M.K.DAMODARAN ASSOCIATES DATED 24.6.2009. EXT.P-7: TRUE COPY OF THE LEGAL OPINION DATED 10.7.2009 OF M/S.M.K.DAMODARAN AND ASSOCIATES. EXT.P-8: TRUE COPY OF THE DRAFT CIVIL REVISIOIN PETITION TO BE FILED BEFORE THE HON'BLE HIGH COURT OF KERALA. EXT.P-9: TRUE COPY OF THE LEGAL OPINION DATED 11.2.2012 OF M/S.MENON AND PAI, ADVOCATES. EXT.P-10: TRUE COPY OF THE NOTE OF THE PETTIONER DATED 8.3.2012 TO THE MANAGING DIRECTOR. EXT.P-11: TRUE COPY OF THE NOTE DATED 14.3.2012 TO THE MANAGING DIRECTOR. EXT.P11(a): TRUE COPY OF THE ORDER DATED 3.4.2012 OF THE 2ND RESPONDENT. EXT.P-12: TRUE COPY OF THE OFFICE ORDER DATED 3.12.2009 OF MALABAR CEMENTS LTD. EXT.P-13: TRUE COPY OF THE REPORT DATED 5.1.2009 OF THE 2ND RESPONDENT. EXT.P-14: TRUE COPY OF THE REPORT DATED 19.5.2009 OF THE 2ND RESPONDENT. EXT.P-15: TRUE COPY OF THE REPORTS DATED 5.3.210 OF THE 2ND RESPONDENT. EXT.P-16: TRUE COPY OF THE NOTE REGARDING THE FILING OF THE PETITION BEFORE THE OMBUSAMAN FOR BANKS. EXT.P-17: TRUE COPY OF THE COMPLAINT FILED BEFORE THE OMBUDSMAN DATED 2.1.2009. WP(C).No. 21429 of 2013 (C) : 2 : EXT.P-18: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 24.5.2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIOINER. EXT.P-19: TRUE COPY OF THE RELY SUBMITTED BY THE PETITIONER DATED 7.6.2013 TO THE RESPONDENT. EXT.P-20: TRUE COPY OF THE PROCEEDINGS DATED 25.7.2013 OF THE MANAGING DIRECTOR. EXT.P-21: TRUE COPY OF THE REPRENSETATIOIN DATED 7.8.2013 FILED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P-21: TRUE COPY OF THE NOTE DATED 30.1.2012 PREPARED BY THE PETITIONER. RESPONDENT(S)' EXHIBITS ------------------------ ANNEXURE R1(a): TRUE COPY OF LETTER DT.22.6.04 ISSUED TO THE PETITIONER. ANNEXURE R1(b): TRUE COPY OF GOVERNMENT LETTER DT.27.12.11 ISSUED TO THE RESPONDENTS. ANNEXURE R1(c): TRUE COPY OF LETTER DT.28.2.12 ADDRESSED TO THE GOVERNMENT. /TRUE COPY/ P.S TO JUDGE ## **“C.R”** **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.21429 of 2013-C ---------------------------------------------------Dated this the 1[st] April, 2014** ## **J U D G M E N T** The petitioner while working as a legal officer of the 1[st] respondent Company, has been suspended as per Ext.P20 order on 25.07.2013. A disciplinary enquiry has been ordered, on the basis of a memo of charges which has already been served on him. The petitioner is co-operating with the enquiry. However, he complains that the proceedings are not being expedited. The petitioner is also aggrieved by the fact that the Presenting Officer at the domestic enquiry that has been ordered against him is a law graduate and a legally trained person who has been discharging the duties of a Presenting Officer regularly. Though the petitioner is also a law graduate, according to him, he is at a considerable disadvantage in the enquiry proceedings for the reason that the Presenting Officer is a **W.P(c) No.21429 of 2013-C** 2 legally trained person. The petitioner has therefore requested for being represented by a lawyer. On the said request, no decision has been taken so far. Therefore, the petitioner has sought for the issue of various orders in this Writ petition. However, he limits his relief to a right to be represented by a lawyer at the enquiry proceedings. 2. A statement has been filed by the learned counsel for respondents 1 and 2, refuting the averments made in the Writ Petition. 3. According to the learned Senior Counsel Sri Ranjith Thampan, who appears for the petitioner, the petitioner has been working as the legal officer of the 1[st] respondent company. He is at a considerable disadvantage in representing himself before the domestic enquiry. Apart from the disadvantage in presenting his own defence, he faces a further disadvantage in view of the fact that the Presenting Officer is a person trained in the duties of conducting a case. He therefore seeks permission to be represented by a lawyer at the domestic enquiry. **W.P(c) No.21429 of 2013-C** 3 4. The contentions of the petitioner's counsel are opposed by the learned counsel for the respondents. According to the learned counsel, Sri Benny P.Thomas, it has been the policy of the Company not to permit the delinquents to be represented by lawyers at domestic enquiries. If it is permitted in the case of the petitioner, that would give rise to similar requests from others who are facing such proceedings. It is pointed out that the petitioner is also a legally trained person, one who has been working as the legal officer of the 1[st] respondent. Therefore, he is well acquainted with law and legal procedures. For the above reasons, it is contended that the petitioner does not suffer from any disadvantage as contended. Apart from the above, it is pointed out that the Presenting Officer is only a law graduate who has not practised law at any time. The petitioner was a practising Lawyer before he joined the Company. Therefore, it cannot be said that the petitioner would suffer form any disadvantage by not being permitted to be represented by a 4 **W.P(c) No.21429 of 2013-C** lawyer. 5. The Senior Counsel Sri Ranjith Thampan places reliance on Section 30 of the Advocates Act, 1961, as well as certain decisions which lay down that in the context of the said provision, the right to legal assistance as well as the right of a lawyer to appear before any authority, cannot be denied. According to the learned counsel for the respondents, the said decisions have no application to the proceedings before a domestic enquiry. 6. Heard. Section 30 of the Advocates Act reads as follows: “ **Right of advocates to practise** :--Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,-- (i) in all courts including the Supreme Court; (ii) before any tribunal or **person legally authorised to take evidence** ; and (iii) **before any other authority** or 5 **W.P(c) No.21429 of 2013-C** person before whom such advocate is by or under any law for the time being in force entitled to practise.” ## (emphasis supplied) 7. According to the learned Senior Counsel Sri Ranjit Thampan the above provision has been brought into force on 15.06.2011. Consequently, all lawyers have been conferred with a right to practise before all Courts/Tribunals and such other authorities, as a matter of right. Therefore, all restrictive provisions that impinge upon the said right have ceased to be operative from the date on which the above provision has been brought into force. The domestic enquiry that has been ordered in the present case is a forum before which, every lawyer has a right to appear. Therefore, the petitioner herein has a right to engage a lawyer. Since the Enquiry Officer at a domestic enquiry is an `authority' within the meaning of Section 30 of the Advocates Act and a `person legally authorised to take evidence', no restriction on the right of a lawyer to appear ## **W.P(c) No.21429 of 2013-C** 6 could be placed by any authority including the respondents. Reliance is placed on the decision of this Court in **Saji C.P v. Union of India and Ors.** [2011(3) KHC 675] and **Latha Sumam A. v. District Collector, Alappuzha and Others** [2013 KHC 2716] to contend that, applying the said principle, this Court has held that Advocates are entitled to appear before the Family Courts under the Family Courts Act, 1994, and before the forum under the Consumer Protection Act, 1996. According to the learned Senior Counsel the same reasoning is necessary to be extended to domestic enquiries also. 8. Heard. It is agreed by the respective counsel that the Writ Petition itself can be disposed of. An examination of the provision, Section 30 of the Advocates Act extracted above shows that, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which the Advocates Act extends, before the authorities specified in the said provision. They include: 7 **W.P(c) No.21429 of 2013-C** - i) All Courts including the Supreme Court; ii) Before any Tribunal or iii) Person legally authorised to take evidence; iv) Before any other authority or person before whom such Advocate is by or under any law for the time being in force entitled to practise. 9. The above provision makes it clear that the right conferred on an Advocate to practise is available before all Courts including the Supreme Court as well as all Tribunals and also before a person legally authorised to take evidence. By the expression, 'a person legally authorised to take evidence', it is clear that the person to whom reference has been made is a person on whom the authority to take evidence has been conferred by law. A person who conducts a domestic enquiry is not a person who fits the above description. This is for the reason that he is not a person authorised by any law, to take evidence. Domestic enquiries are not conducted under any provision of law. Such enquiries are intended only for the employer to **W.P(c) No.21429 of 2013-C** 8 ascertain the facts, impartially. The same is to be conducted in compliance with the principles of Natural Justice, by providing ample opportunity to the person against whom such enquiry has been ordered, to defend himself. The proceedings of such enquiry do not carry any legal sanctity, in sharp contrast to the proceedings before a Court or Tribunal constituted by law. The Enquiry Officer is not a person competent to administer oath to the witnesses examined by him, by any law. Therefore, it cannot be said that such an enquiry is one at which Advocates have a right to appear and to conduct the proceedings. 10. A Division Bench of this Court has in **Sebastian K.Antony v. Manager, St.Albert's College, Ernakulam and Ors.** [2012 KHC 347] considered the nature of the proceedings at a domestic enquiry and set aside the proceedings. **Jet Airways (India) Ltd. v. Labour Court and Another** [2012 KHC 118] is another case in which with reference to a domestic enquiry, it has been held by another Division Bench of this Court that only material and relevant **W.P(c) No.21429 of 2013-C** 9 documents need be supplied to the person facing the enquiry. It has been held in a number of decisions by the apex court that, no right to be represented by a Lawyer at a domestic enquiry is available to a delinquent facing the enquiry. **National Seeds Corpn. Ltd. v. K.V.Rama Reddy** [(2006) 11 SCC 645] and **Bharat Petroleum Corpn. Ltd. v. Maharashtra General Kamgar Union** [1999 1 SCC 626] are decisions on the point. Therefore, the Enquiry Officer who conducts a domestic enquiry is also not an “authority before whom” an Advocate is entitled to practise. 11. In the present case, the petitioner was a practising Lawyer who had left his profession to take up employment with the 1[st] respondent. It is the case of the respondents that, the Presenting Officer at the enquiry is not a lawyer. For the above reason, there is no possibility of the petitioner suffering any disadvantage by reason of a denial of his request to be represented by a lawyer. According to the learned counsel for the respondents, many 10 **W.P(c) No.21429 of 2013-C** domestic enquiries are in progress in the establishment, where the delinquents have not been permitted to be represented by lawyers. The petitioner being well versed in legal aspects, especially taking into account the fact that he has been working as the legal officer of the Company, I am not satisfied that any prejudice would be caused to him by not being permitted to be represented by a lawyer. For the foregoing reasons, this Writ Petition fails and is accordingly dismissed. There shall however, be a direction to the respondents to complete the enquiry proceedings as expeditiously as possible and at any rate, within a period of three months from today. Sd/- ## _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/