INDIAN AIRLINES CORPORATION Vs. N SUNDARAM

JUDGEMENT

(1.) THE writ appeal is directed against the order of the learned Judge in W.P.No.6208 of 1981. THE appellants in this writ appeal are the respondents writ petition. THE respondent in this writ appeal is the petitioner in the writ petition. It convenient if we adopt the designations allocated to the parties in the writ petition while refer to them in this judgment of ours.

(2.) THE petitioner, who was in the employ of the Indian Airlines Corporation, hereinafter referred to as the Corporation, was charge-sheeted in the disciplinary action on counts (i) unauthorised absence, (ii) giving false information, and (iii) leaving station/country without permission. We need not go into the details of the charges purpose of disposing of this writ appeal. THE charge-sheet was issued on 6.6.1979. petitioner submitted his explanation on 30.6.1979. On 25.6.1979 the Enquiry Officer appointed. Not only that, one Mr.R.Pushpavanam, the Assistant Manager, Personnel Services, Madras, was appointed as the Presenting Officer. On 10.10.1979 the Officer issued the notice for enquiry. THE petitioner replied on 13.10.1979 in the following terms: "Please refer to your Memo No.HYD:PER: D15:5638, dated 10th October, 1979 delivered me on 12th afternoon. I am unable to accept the date as intimated due to the inadequate notice of time. Further I propose to go on leave from the 26th to 31st October, 1979 which necessary application has been submitted to the concerned officials in September itself. I have to bring to your kind notice a major point. THE presenting officer who is to conduct the case on behalf of the management is well trained in conducting disciplinary proceedings. He has got legal qualifications also. If a person with a legal background qualifications in law and with a training to conduct disciplinary proceedings is to represent the management it would be necessary that an employee is also allowed to have assistance. Since none of the employees whom I can approach for the purpose representing me as a "friend" in the disciplinary proceedings is possessed of qualifications or equal training it has become necessary that I should be allowed to have assistance of a lawyer to defend my case and to prove my innocence, without such assistance I will be gravely prejudiced. I therefore chose Mr.M.N.Krishnamani, Advocate, No.41, Law Chambers, Madras High Court, Madras-1, to whom necessary facilities maybe granted to assist me as my friend during enquiry. Any notice about the enquiry proceedings may be sent with adequate notice of as I have to arrange for Mr.Krishnamani to travel from Madras to the venue of the enquiry by contacting him at Madras. Thanking you,". THE response on the side of the respondents came by the letter, 31.10.1979/2.11.1979, and the contents of the said letter also needs extraction as follows: "This has reference to your letter dated 13.10.1979 on the appointment of Presenting Officer vide our Memo No. MAA:GM: ADMN:l-6/l 1685, dated 25.9.1979. Mr.Pushpavanam, who been appointed as Presenting Officer, is a permanent employee of the Corporation and fact that he. is legally qualified is only incidental. As you are already aware, as per Standing Orders (Regulations) concerning Discipline and Appeals, applicable to you, you be entitled to have the assistance of a friend who is a permanent employee of Corporation, under your own arrangement. You are not permitted to have the assistance any outsider. THE very purpose of holding an Enquiry is to find out if the charges levelled against you are proved or not proved. You are given full opportunity to present your case defence before the Enquiry Officer, who is an impartial person." On 16.11.1979 the petitioner wrote back as follows: "I acknowledge under protest your memo No.13124, dated 2.11.1979 rejecting my request to have the assistance of a legally qualified person to defend myself. In the absence of any other alternative, although I am convinced that it is totally inadequate, I chose Mr.M.S.Dinakar, Traffic Superintendent, Madras Airport as my friend assist me during the enquiry proceedings. Necessary facilities may therefore please be granted to Mr.Dinakar to visit Vijayawada render me assistance as a "friend" during the enquiry. Thanking you,". On 23.11.1979 the choice of Mr.M.S.Dinakar by the petitioner as put forth in his letter 16.11.1979 was acceded to On 18.1.1980 the petitioner wrote a letter to the Enquiry Officer in the following terms: "I had decided to boycott the above enquiry on the following grounds: (1) Whereas the management is represented by a Presenting Officer who has had education and sufficient training, I am not being allowed the assistance of a legally qualified or trained person to assist me as a "friend" (2) THE enquiry is being held in the offices of the Station Manager, IA, Vijayawada where there is not only lack of privacy but there is every chance of unwanted disturbances during proceedings through telephone calls and frequent movement of staff (3) THE enquiry begins late in the afternoon whereby an adjournment may be necessitated resulting in delay and granting an opportunity to the Presenting Officer to represent his if adjourned and convened next day. I have, however, reconsidered the matter and have decided to attend the enquiry protest. Although it is totally inadequate to face the proceedings without the assistance of a qualified or experienced person, I choose Mr.S.Ramanathan, Technical Assistant at Airlines, Hyderabad, as my friend in view of refusal by management to allow a lawyer defend me. Necessary facilities may be granted to Mr.Ramanathan when he approaches Personnel Department at Hyderabad for the facilities. As for the venue of the enquiry, may I hope that the Enquiry Officer will reconsider decision after a personal appraisal of the situation? Thanking you." It is found from the records that the enquiry, in fact, did take place on 26.2.1980 27.2.1980 and the petitioner participated in the enquiry along with Mr.S.Ramanathan. petitioner even in the course of the enquiry proceedings has been voicing forth a grievance with regard to his being put to a disadvantage on the denial of the assistance of a practitioner and the petitioner's participation in the enquiry along with Mr.S.Ramanathan was under protest. THE following extract from the enquiry proceedings prosecuted on 26.2.1980 brings out every clearly the above position. "My educational qualification being limited, i.e., a pass in the S.S.L.C. examination, essential that I have the assistance of a legally qualified person or a Lawyer. This especially so in view of the fact that the Management has a Presenting Officer who has not only legal education also requisite training in conducting disciplinary proceedings. therefore demand that I be permitted the assistance of a Lawyer." At this the Enquiry Officer advised Shri Sundaram that his request made vide his letter 13th October, 1979 had been considered by the Commercial Manager in line with provisions in the Standing Orders applicable to him (Shri Sundaram, N.) and he accordingly advised Shri Sundaram vide his letter No.MAA:CM:ADMN:l-6:13124, 31/10. 2/11-1979 that he was entitled to have the assistance of a 'friend'permanent employee of the Corporation, under his own arrangement. He had also advised that Sri Pushpavanam, who had been appointed as Presenting Officer is a permanent employee of the Corporation and the fact that he is legally qualified is only incidental. THE Enquiry Officer, therefore, asked Shri Sundaram under the circumstances, to know if he would like to have the assistance of a 'friend'who is an employee Corporation. Mr.Pushpavanam being legally qualified may be claimed as incidental, does not alter the fact. THE Enquiry Officer may know that the repeated appointment Pushpavanam as Enquiry Officer or Presenting Officer where I am concerned in connection with earlier charge-sheets is significant. As such the management has advantage qualifications, to ensure the principles of natural justice are not violated, I should also permitted similar facility. I do not have a 'friend'who is an employee of the Corporation with similar qualifications or experience. It will be totally inadequate to have some one else. the management is refusing to allow a legally qualified person from outside I am left with alternative than to choose Mr.S.Ramanathan as my 'friend'under protest." THE Enquiry Officer submitted his report and the findings of the Enquiry Officer were rendered against the petitioner and he found the petitioner guilty of all the charges levelled against him. On the basis of the findings of the Enquiry Officer and accepting the same, notice was issued on 21.7.1980 to the petitioner to show cause as to why the punishment removal from service should not be imposed on the petitioner. On 15.8.1980 the petitioner submitted his explanation. On 4.9.1980 the punishment of order of removal from service was imposed on the petitioner. THE petitioner preferred a departmental appeal 6.10.1980. This departmental appeal was rejected on 9.1.1981. THE petitioner came to this Court, impugning the original order as well as the appellate order.

(3.) IT is true that the principles of natural justice may come into play when the statute statutory rules are silent as to the procedure and no statutory provision or statutory can be struck down where it makes a provision excluding application of principles of justice. But this principle cannot be viewed in the abstract and the endeavour must be out as to how far and in what manner the statutory provision or statutory rule stated to have excluded the application of the principles of natural justice. Despite absence of any Standing Order enabling the Corporation to avail of the services Presenting Officer and that too a legally qualified and trained one, the Corporation of such services. In that context there cannot be a denial of a facility on par with the availed of by the Corporation, to the employee. How even a constitutional inhibition regard to availing of the services of a legal practitioner in the case of a person arrested detained under any law providing for preventive detention as per Art.22(3)(b) could put forth to abrogate the principles of natural justice when the Detaining Authority to gain an advantage over the detenu, while justifying the detention orders before Advisory Board by engaging a legal practitioner and the same facility is being denied detenu, has been succinctly dealt with in the pronouncement of A.K.Roy v. Union A.I.R. 1982 S.C. 710: (1982)1 S.C.C. 272:1982S.C.C. (Crl.) 152:(1982)2S.CJ. Crl.LJ. 340. The relevant passage in paragraph 94 of the pronouncement runs thus: 'We must, therefore, hold regretfully though, that the detenu has no right to appear a legal practitioner in the proceedings before the Advisory Board. IT is, however, necessary add an important caveat. The reason behind the provisions contained in Art.22(3)(b) Constitution clearly is that a legal practitioner should not be permitted to appear before Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner, but that the said facility should be denied to the detenu. In any case, this is not what the Constitution says and it would be wholly inappropriate read any such meaning into the provision of Art.22. Permitting the detaining authority or Government to appear before the Advisory Board with the aid of a legal practitioner legal adviser would be in breach of Art.14, if a similar facility is denied to the detenu. must therefore make it clear that if the detaining authority or the Government takes the of a legal practitioner or a legal adviser before the Advisory Board, the detenu must allowed the facility of appearing before the Board through a legal practitioner.'.