Nainar Sundaram, J.
1. The writ appeal is directed against the order of the learned single Judge in W.P.No.6208 of 1981. The appellants in this writ appeal are the respondents in the writ petition. The respondent in this writ appeal is the petitioner in the writ petition. It will be convenient if we adopt the designations allocated to the parties in the writ petition while we 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 three counts; (i) unauthorised absence, (ii) giving false information, and (iii) leaving the station/country without permission. We need not go into the details of the charges for the purpose of disposing of this writ appeal. The charge-sheet was issued on 6.6.1979. The petitioner submitted his explanation on 30.6.1979. On 25.6.1979 the Enquiry Officer was 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 Enquiry 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 to me on 12th afternoon. lam 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 for 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 going 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 such assistance. Since none of the employees whom I can approach for the purpose of representing me as a "friend" in the disciplinary proceedings is possessed of legal qualifications or equal training it has become necessary that I should be allowed to have the assistance of a lawyer to defend my case and to prove my innocence, without such an 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 may be granted to assist me as my friend during the enquiry. Any notice about the enquiry proceedings may be sent with adequate notice of time 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, dated 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:1-6/11685, dated 25.9.1979. Mr. Pushpavanam, who has been appointed as Presenting Officer, is a permanent employee of the Corporation and the fact that he is legally qualified is only incidental. As you are already aware, as per the Standing Orders (Regulations) concerning Discipline and Appeals, applicable to you, you will be entitled to have the assistance of a friend who is a permanent employee of the Corporation, under your own arrangement. You are not permitted to have the assistance of 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 in 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 to assist me during the enquiry proceedings. Necessary facilities may therefore please be granted to Mr. Dinakar to visit Vijayawada to 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 dated 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 legal 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 case if adjourned and convened next day.
I have, however, reconsidered the matter and have decided to attend the enquiry under protest.
Although it is totally inadequate to face the proceedings without the assistance of a legally qualified or experienced person, I choose Mr. S. Ramanathan, Technical Assistant at Indian Airlines, Hyderabad, as my friend in view of refusal by management to allow a lawyer to defend me. Necessary facilities may be granted to Mr. Ramanathan when he approaches the Personnel Department at Hyderabad for the facilities.
As for the venue of the enquiry, may I hope that the Enquiry Officer will reconsider his 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 and 27.2.1980 and the petitioner participated in the enquiry along with Mr. S. Ramanathan. The 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 legal practitioner and the petitioner's participation in the enquiry along with Mr. S. Ramana than 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, it is essential that I have the assistance of a legally qualified person or a Lawyer. This is especially so in view of the fact that the Management has a Presenting Officer who has had not only legal education also requisite training in conducting disciplinary proceedings. I 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 dated 13th October, 1979 had been considered by the Commercial Manager in line with the provisions in the Standing Orders applicable to him (Shri Sundaram, N.) and he had accordingly advised Shri Sundaram vide his letter No. MAA:CM:ADMN:1-6:13124, dated 31/10. 2/11-1979 that he was entitled to have the assistance of a 'friend' who is a 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 let us know if he would like to have the assistance of a 'friend' who is an employee of the Corporation. Mr. Pushpavanam being legally qualified may be claimed as incidental, but it does not alter the fact. The Enquiry Officer may know that the repeated appointment of Sri 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 of his qualifications, to ensure the principles of natural justice are not violated, I should also be 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. As the management is refusing to allow a legally qualified person from outside I am left with no 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, a notice was issued on 21.7.1980 to the petitioner to show cause as to why the punishment of 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 on 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. Before the learned single Judge, who heard and disposed of the writ petition, the main point urged on behalf of the petitioner, coveting interference in writ jurisdiction was the petitioner was denied a reasonable opportunity of defending himself in that while the Corporation had the services of a legally qualified and trained Presenting Officer in the person of Mr. R. Pushpavanam, the petitioner, who could not secure a legally trained co-employee, was denied the leave to secure the services of a legal practitioner the only other alternative and a total imbalance crept into the conduct of the disciplinary proceedings and the principles of natural justice stood violated. The learned single Judge, countenanced this plea advanced on behalf of the petitioner. The learned single Judge repelled the contention raised by the respondents that the writ petition is not maintainable and the petitioner ought to have resorted to the remedy under the Industrial Disputes Act, 1947. As a result, the learned single Judge allowed the writ petition, quashing the impugned proceedings and further observed that it is open to the respondents to order a fresh enquiry after giving the petitioner sufficient and reasonable opportunity to defend himself. This writ appeal is directed against the order of the learned single Judge.
4. Mr. N.G.R. Prasad, learned Counsel for the respondents, would submit that there are Standing Orders (Regulations), concerning Discipline and Appeals, formulated pursuant to statutory provisions and Standing Order 32 enables the employee to have, under his own arrangements, the assistance of a friend during the course of the enquiry and such a friend must be an employee of the Corporation, and no outside representation shall be permitted in any circumstances, and in that context, that alone must rule and the principles of natural justice must be held to have been excluded so far as what has been provided by the Standing Order. Learned Counsel for the respondents would also submit that factually there was no imbalance as between the employer and the employee in the conduct of the disciplinary proceedings and the employee was not at all put to prejudice and he did have the assistance of one Mr. S. Ramanathan whose services he was allowed to avail of in the course of the conduct of enquiry.
5. Mr. Vijay Narayan, learned Counsel for the petitioner, would submit that even on the basis, the Standing Orders should take the field, when the Corporation acted besides them, in employing a legally qualified and trained person as a Presenting Officer, it will be unfair on its part to deny an equal facility to the petitioner and even though the petitioner made known to the Corporation that the petitioner could not secure the services of a legally qualified and trained person from amongst the personnel of the Corporation to assist him in the disciplinary proceedings, the Corporation was unjust and unfair in declining the request of the petitioner and falling back upon the Standing Orders. Learned Counsel for the petitioner would submit that the question of prejudice is not one to be taken note of so as to exclude the principles of natural justice and the very non-observance of the principles of natural justice is itself prejudice, and proof of prejudice independent of proof of denial of natural justice, is unnecessary. Learned Counsel for the petitioner would submit that on the facts and circumstances of the case in the prosecution of the disciplinary proceedings, there was a warrant for affording of opportunity to the petitioner to avail of the services of a legal practitioner.
6. Standing Order 32 reads as follows:
An employee may be permitted, if he so desires, to have, under his own arrangements, the assistance of a 'friend' during the course of the enquiry. Such a 'friend' must be an employee of the Corporation. No outside representation shall be permitted in any circumstances.
It may be stated that the disciplinary action should adhere to the provisions of the Standing Orders (Regulations) concerning Discipline and Appeals. In that context Standing Order 32 has got a place. By the Standing Orders the Corporation is admittedly not permitted to have the assistance of a Presenting Officer and that too a legally qualified and trained Presenting Officer. But the Corporation chose to have that facility, which obviously it could command. If one should go by the Standing Orders, then this action on the part of the Corporation had no sanction under the Standing Orders. The Corporation travelled beyond the Standing Orders to secure this facility for itself in the conduct of disciplinary action. Facility that could be availed of by the employee under the Standing Order 32 is that he could secure the assistance of a friend and that friend could only be an employee of the corporation. After having found that a legally qualified and trained person has been appointed as the Presenting Officer by the Corporation, the petitioner rightly pointed out in his letter dated 13.10.1979 the unfair position, in which he was sought to be placed. In that letter the petitioner has categorically asserted "since none of the employees whom I can approach for the purpose of representing me as a friend in the disciplinary proceedings is possessed of legal qualifications of equal training, it has become necessary that I should be allowed to have the assistance of a lawyer to defend my case and to prove my innocence; without such an assistance I will be gravely prejudiced". But the reply by the Corporation on 31.10.1979/2.11.1979 was curt and they took up a stand that Mr. R. Pushpavanam is a permanent employee of the Corporation and that he is legally qualified is only incidental and further the petitioner, as per the Standing Orders, could have only the assistance of a friend, who is a permanent employee of the Corporation. As we stated earlier, if one should strictly stick on to the Standing Orders, one should not travel beyond them. But the Corporation did travel beyond the Standing Orders and settled for itself the facility of having a Presenting Officer, who is a legally qualified and trained person. At this juncture, we would like to take note of the factual assessment of the qualifications and the experience of Mr. R. Pushpavanam done by this Court in the earlier pronouncement dealing with a similar grievance by a similar employee of the Corporation and in which case also, Mr. R. Pushpavanam was appointed as the Presenting Officer by the Corporation in the disciplinary action against that employee, by adverting to the following passage in the said pronouncement.
He is admittedly a law graduate and has acquired expertise in conducting disciplinary proceedings. Inspite of being fully aware that there is no provision in Standing Orders for a Presenting Officer to be appointed. Corporation had chosen to enlist the services of a legally trained person." vide: Pushpa Iyengar v. The Indian Airlines Corporation and Ors. (1988) 1 L.L.J. 385.
The petitioner left with no other alternative, first chose one Mr. M.S. Dinakar and later his choice was that of Mr. S. Ramanathan. Neither the services of Mr. M.S. Dinakar, though his name was suggested, his services were availed of by the petitioner - nor Mr. S. Ramanathan, who actually assisted the petitioner, was a legally qualified or experienced person, as was Mr. R. Pushpavanam, the Presenting Officer on behalf of the Corporation. At one stage, the petitioner decided to boycott the enquiry is evident from the letter dated 18.1.1980, the contents of which have been already extracted. The petitioner points out that he is at disadvantage with regard to the conduct of the enquiry, by the Corporation being represented by the Presenting Officer, who has legal qualifications and sufficient training and the petitioner is not able to secure the assistance of a legally qualified or a trained person. The choice of Mr. S. Ramanathan was done having no other alternative and there is a protest registered that it will be totally inadequate. Then the enquiry was prosecuted and it did culminate in findings of guilt being rendered against the petitioner and he has been ultimately penalized as we noted supra/Even in the course of the enquiry the petitioner was voicing forth a grievance with regard to the denial of the assistance of a legal practitioner for him as we could see from the extract from the enquiry proceedings made above.
7. It is true that the principles of natural justice may come into play when the statute or statutory rules are silent as to the procedure; and no statutory provision or statutory rule can bestruck down where it makes a provision excluding application of principles of natural justice. But this principle cannot be viewed in the abstract and the endeavour must be to find out as to how far and in what manner the statutory provision or statutory rule could be stated to have excluded the application of the principles of natural justice. Despite the absence of any Standing Order enabling the Corporation to avail of the services of a Presenting Officer and that too a legally qualified and trained one, the Corporation did avail of such services. In that context there cannot be a denial of a facility on par with the facility availed of by the Corporation, to the employee. How even a constitutional inhibition with regard to availing of the services of a legal practitioner in the case of a person arrested and detained under any law providing for preventive detention as per Article 22(3)(b) could not be put forth to abrogate the principles of natural justice; when the Detaining Authority is trying to gain an advantage over the detenu, while justifying the detention orders before the Advisory Board by engaging a legal practitioner and the same facility is being denied to the detenu, has been succinctly dealt with in the pronouncement of A.K. Roy v. Union of India . 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 through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the 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 to read any such meaning into the provision of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
8. The anxiety and vigil of the court must be to keep the balance and not to countenance the bringing in and perpetuation of an imbalance in the conduct of disciplinary proceedings. By any act of the employer, the employee should not be put to disadvantage in the conduct of disciplinary proceedings. That is the cardinal rule that must prevail and guide and there cannot be prosecution of disciplinary proceedings in derogation thereof. In Board of Trustees, Port of Bombay v. Dilipkumar , as to the nature of the domestic enquiry and the need to keep the scales even, this is what has been observed:
Let us recall the nature of enquiry, who held it, where it is held and what is the atmosphere? Domestic enquiry is claimed to be a managerial function. A man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a court presided over by an unbiased judge? The enquiry officer combines the judge and prosecutor rolled into. one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and lilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done, but must seem to be done is not an euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action.
9. An exception is being taken by the learned Counsel for the respondents to the request of the petitioner to have the services of a legal practitioner, who is not an employee of the Corporation, but an outsider, and learned Counsel for the respondents, points out that the Corporation was availing of only the services of one of its personnel, who could be a legally trained person. The petitioner exposed the factual position in his letter dated 13.10.1979 that he stood disabled because none of the employees whom he could approach for the purpose of representing him, is possessed of legal qualifications or equal training. There was no rebuttal of this stand in the curt reply which emanated from the Corporation by the letter, dated
31.10.1979/2.11.1979. The grievance of the petitioner was reiterated again on 18.1.1980, and also in the course of the enquiry proceedings; as we have already seen. When the petitioner could not secure the services of a co-employee who is/legally qualified and trained, we do not think that if he endeavours to secure the services of a legal practitioner from outside that should be frowned upon as totally untenable. In the said circumstances, it would not certainly lie in the mouth of the Corporation to say that the person whose services, it has secured is not a legal practitioner, but only one of its personnel. The Supreme Court in the pronouncement of A.K. Roy v. Union of India , did not annex significance to any such technical
designation and it was prepared to characterise even the Officers of Government who appear before the Advisory Board and assist it with a view to justifying the detention order, as only legal advisers. The following passage reflects the discussion on this aspect:
...We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not 'legal practitioners' or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser, we do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired judges of the High Court will have no difficulty in understanding this position. Those who are merely 'qualified to be appointed' as High Court Judges may have to do a little home-work in order to appreciate it.
The duty of the court must be discountenance, to discourage, to weed out, and to strike down any element of disparity, inequality and imbalance in the conduct of disciplinary proceedings.
10. Mr. N.G.R. Prasad, learned Counsel for the respondents, would submit that Mr. M.S. Dinakar, earlier suggested by the petitioner in his letter, dated 16.9.1979 is a legally trained person and even otherwise there were others in the services of the Corporation, who could be stated to be legally qualified personnel and whose services the petitioner could have availed of. This stand has come to be expressed, we find in the additional counter affidavit, which the respondents seemed to have presented in court at a very belated stage of the hearing of the case before the learned single Judge. No such stand was expressed by the respondents when the petitioner even before the commencement of the disciplinary proceedings and in the course of the disciplinary proceedings, had been voicing forth a grievance over the disadvantage faced by him on account of the Corporation appointing a legally trained and qualified Presenting Officer and the petitioner being denied an equal facility. Even otherwise by merely pointing out that there were individuals in the personnel of the Corporation, who could be stated to be legally qualified, cannot by itself bring a solace to the petitioner, because the petitioner must with confidence, be in a position to secure the services of any such personnel; and equally so, such personnel must be shown to be willing, with boldness and without any fear or apprehension over, coming within the wrath of the Corporation, on this count to, assist the petitioner in the disciplinary proceedings prosecuted by the Corporation. All these are in the realm of hypothesis and presumptions and certainly they cannot be taken note of to ignore the grievance of the petitioner, which has legitimately arisen. The answers, belatedly sought to be given, by the respondents are purely afterthoughts, and do not require any scrutiny by court to find out their factual tenability. We must record that the filing of the additional counter affidavit on behalf of the respondents, was protested to be the learned Counsel who appeared for the petitioner before the learned single Judge by making an endorsement therefor on the same. Further we do not get any indication that the learned single Judge did permit the filing of such additional counter affidavit at all.
11. Mr. N.G.R. Prasad, learned Counsel for the respondents, would submit that the petitioner did not voice forth this grievance either in his reply to the second show cause notice or in his appeal petition. The petitioner stood wounded. His immediate anxiety at those junctures should have been only to get rid of on merits, the punishment proposed and ultimately imposed by the departmental authorities. As rightly contended by Mr. Viyay Narayan, learned Counsel for the petitioner, this might prove to be an exercise in futility, because the pleas of the petitioner had been consistently rejected by the Corporation earlier. On the facts and circumstances of the case, we do not think, we should say that the petitioner totally forgot his rights. He was conscious of them throughout. We have already noted that immediately when the Presenting Officer was appointed, the petitioner put forth his stand and again at a subsequent stage, he took the very same stand with regard to denial of an opportunity to secure the services of a legally qualified and trained person to assist him in the enquiry. He protested even in the course of the conduct of the enquiry. His cry was one in the wilderness and it was not at all heeded to by the Corporation.
12. Mr. N.G.R. Prasad, learned Counsel for the respondents, would also submit that on account of the petitioner not availing of the services of a legal practitioner, the petitioner did not suffer any prejudice in the course of the conduct of the disciplinary proceedings. Prejudice is not the test to be kept in the forefront to consider as to whether reliefs should follow or not, when there is a violation of the principles of natural justice. The rule is, the very violation of the principles of natural justice is prejudice and nothing more is required to apply the rule and accord the reliefs. In S.L. Kapoor v. Jagmohan , the proposition has been discussed in the following terms.
Linked with this question is the question whether the failure to observe natural justice does not at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where oh the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it appears the non-observance of natural justice but because courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however slightly, and penalties are discretionary.
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs.
The Corporation did have the services of a legally qualified and trained person, who had considerable experience in the conduct of disciplinary proceedings. It is not claimed that either the petitioner or Mr. S. Ramanathan, who assisted the petitioner as a friend, was equal to the Presenting Officer, appointed by the Corporation. How far the petitioner could have achieved the result desired by him, namely, extricating himself from the charges if he had only the assistance of a legal practitioner, we cannot envisage and say. a positive answer one way or the other. It would be unfair to do so also. The fact, indisputable as it is, remains that the petitioner was at a disadvantage in the course of the prosecution of the disciplinary proceedings and the ultimate result went against him. He must be accorded the reliefs. We must record that the question of maintainability of the writ petition was not argued before us. The result of our preceding discussion is, this writ appeal fails and the same is dismissed. No costs.