Kerala High Court

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Whether Lawyers Assistance in the Departmental Proceedings is Permissible [JUDGMENT]

Service Law - Lawyer’s Assistance in the Departmental Proceedings Lawyer’s assistance can never be claimed as of right, unless specifically provided in the rules governing the enquiry.

In a case calling for exercise of discretion, the Court has to apply its mind to the materials on record for arriving at a finding as to whether discretion has been properly exercised by the employer or the enquiry officer, as the case may be, and an appropriate decision has to be taken so that reasonable opportunity, which is real, is extended to the delinquent.
Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 - Rule 28(8) - The writ petitioners shall be entitled to have the assistance of any of their colleagues in the domestic enquiries, which shall be conducted and concluded in accordance with law.
Facts of the Case
The short point arising for decision in this writ appeal is, whether the learned Judge was justified in allowing the writ petition and directing the appellants to permit the respondents 1 and 2 (hereafter the writ petitioners) to have the assistance of lawyers in the domestic enquiries they are facing on several charges of misconduct. It is not the case of the writ petitioners here that the charges are so complicated involving complicated issues of fact and law that a lawyer’s assistance is required without which the combat would be unequal. It is also not the case that the presenting officer appointed by the management is having such qualification that the writ petitioners are pitted against either a lawyer, or a law graduate, or an individual having a legally trained mind. The presenting officer here is a teacher of the school, like the writ petitioners. 
Law in regard to appointment of the employer’s lawyer as an enquiry officer to conduct enquiry - Discussed.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE
Present: The Hon’ble Justice Dipankar Datta and The Hon’ble Justice Asha Arora
CAN 1027 of 2016 in MAT 1800 of 2016
Convent of Our Lady of Providence Girls’ High School and Others 
—vs— 
Anita Nigam and Others.
For the appellants : Mr. Saikat Bose, Advocate, Mr. Sourav Chakraborty, Advocate.
For the respondents 1 and 2 : Mr. Ekramul Bari, Advocate, Mr. Suvra Prakash Lahiri, Advocate.
For the respondents 3, 4 and 6 : Mr. Tapan Kumar Mukherjee, Sr. Advocate, Mr. Shamimul Bari, Advocate.
Heard on : June 4, 2018 Judgement on : July 6, 2018 
DIPANKAR DATTA J, : 
1. While considering the application for stay filed in this intra-Court writ appeal, which is directed against the judgment and order dated 16th November, 2016 of a learned Judge of this Court on W.P. 13226(W) of 2016, the parties were heard on the merits of the appeal itself with their consent.
2. The short point arising for decision in this writ appeal is, whether the learned Judge was justified in allowing the writ petition and directing the appellants to permit the respondents 1 and 2 (hereafter the writ petitioners) to have the assistance of lawyers in the domestic enquiries they are facing on several charges of misconduct.
3. Perusal of the judgment under challenge reveals that disciplinary proceedings having been initiated against the two writ petitioners [who are teachers of the first appellant/school (hereafter the school)] by the management of the school in accordance with the “Rules related to Terms of Employment and Service Conditions of Teaching and Non Teaching Staff of the Convent of Our Lady Providence” (hereafter the service rules) framed by it (the management), they had sought for permission to have lawyers’ assistance in course of the domestic enquiries. The management refused the prayer partially by refusing the prayer for lawyers’ assistance but the writ petitioners were permitted to take the assistance of their chosen colleagues. This decision of the management was subjected to challenge in the writ petition. In the perception of the learned Judge, the service rules ordained that a staff proceeded against for imposition of a minor penalty shall not have the assistance of a lawyer; however, insofar as initiation of proceedings against a staff for imposition of major penalty is concerned, the service rules are silent. It is because of such silence that the learned Judge inferred that assistance of a lawyer, if sought to be availed of by the staff proceeded against, is not barred either expressly or by necessary implication; hence, there was no bar in permitting the writ petitioners to be assisted by lawyers of their choice. It was, accordingly, held that the management of the school illegally spurned their prayers for having such assistance.
4. Appearing on behalf of the appellants, Mr. Bose, learned advocate contended that the learned Judge misinterpreted the service rules and erroneously held that the writ petitioners were entitled to the assistance of lawyers. It was also contended that although the service rules were referred to in the charge-sheets issued against the writ petitioners as the law that would govern the disciplinary proceedings, the management subsequently corrected itself and has since been following rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereafter the Management Rules). It was further contended that permission to a teaching/non-teaching staff to engage a lawyer for rendering assistance in course of enquiry is not envisaged in Rule 28(8) of the Management Rules. It was pointed out that the writ petitioners were placed under suspension pending disciplinary proceedings and approval thereof was sought for from the West Bengal Board of Secondary Education (hereafter the Board) in terms of rule 28(9)(vii)(a) of the Management Rules. The Board having declined the prayer for approval, the orders placing the writ petitioners under suspension have been revoked and they have been allowed to resume their duties. Accordingly, it was submitted by him that the learned Judge totally misdirected himself in allowing the writ petition based on the service rules.
5. Such a contention raised by Mr. Bose raised a vital question which required an answer even before examination of the merits of the rival claims, i.e. does the school have the authority to proceed against the writ petitioners according to the service rules framed by its management or, are the Management Rules the appropriate statutory rules in accordance with which the disciplinary proceedings against the writ petitioners should be conducted. To be fair to the learned Judge, this question did not surface before His Lordship for consideration and no answer can, thus, be found in the judgment under challenge. Due assistance has been rendered by the learned advocates for the parties to guide the Court find an answer to such question, but we propose to precede the determination by briefly discussing why it is considered necessary to ascertain the position of the rules governing the disciplinary proceedings.
6. Mr. Lahiri, learned advocate for the writ petitioners, referred to and relied on the service rules framed by the management of the school, whereunder the disciplinary proceedings were initiated, and submitted that such rules had to be followed by the management in taking the disciplinary proceedings to its logical conclusion.
7. Having looked into such rules, certain glaring errors therein were noticed. This prompted us to pose further questions to the parties resulting in the emergence of the real position.
8. The school is recognized by the Board. In terms of the provisions contained in section 45(2)(d) of the West Bengal Board of Secondary Education Act (hereafter the Act), the Management Rules have been framed laying down provisions for the composition, and powers and functions of Managing Committees of Institutions. Rule 28(8) of the Management Rules confers power on a Managing Committee, subject to approval of the Board, to remove or dismiss permanent or temporary teaching/non-teaching staff by drawing up disciplinary proceedings and conducting it in the manner stipulated therein. In view of rule 28(8), we wondered as to how disciplinary proceedings could be drawn up by the school purportedly under the service rules. We were informed by Mr. Lahiri that despite grant of recognition by the Board, the Management Rules would not apply to the school in view of notification no. (641)-Edn.(S) 8B-3-69 Pt. VII dated May 23, 1974 issued by the State Government. The said notification, issued in exercise of power conferred by rule 33 of the Management Rules, contained the “Special Rules” for management of Secondary Schools established and run by a Christian Church Missionary Society (Board) Religious Society, Subsidiary Trust or their successors in law, in the State of West Bengal (hereafter the Special Rules). Incidentally, rule 33 ordained that nothing in the Management Rules “would affect the power of the State Government to frame, on the application of any Institution or class of Institutions to which the provisions of Article 26 or Article 30 of the Constitution may apply, further or other rules for the composition, powers, functions of the Managing Committee or Committees of such Institution or class of Institutions”. In the schedule to the notification dated May 23, 1974, the name of the school was listed at sl. no. 68.
9. Mr. Mukherjee, learned Additional Government Pleader was quick to react. He pointed out notification no. 1089-SE(S)/1OR-4/2007 dated August 29, 2008, whereby amendments were effected in the Management Rules. Inter alia, our attention was drawn to that part of the said notification by which rule 33 stood omitted. With such omission, he contended that the notification dated May 23, 1974 containing the Special Rules, issued in exercise of power conferred by rule 33 of the Management Rules, stood obliterated; consequently, whatever service rules the management of the school had framed availing the liberty granted by rule 15 of the Special Rules did not survive. The inescapable conclusion, according to him, is that the school continues to be governed by the Management Rules w.e.f. August 29, 2008 and not by the Special Rules.
10. We have read rule 15 of the Special Rules. It enabled the management of the school, in respect of matters not specified in the Special Rules, to “exercise powers in conformity with the general directions from the Founder Body, and also in conformity with the provisions of the rules or orders issued by the State Government or any other authority competent to do so under the provisions of any Act or rules framed thereunder”. Despite rule 11 of the Special Rules having provided the procedure for “appointment, confirmation, dismissal, appeal and termination”, the service rules too included provisions relating to drawing up of disciplinary proceedings and laid down the procedure for taking such proceedings to its logical conclusion. Though the service rules framed by the management of the school contained provisions relating to conduct of disciplinary proceedings, the same would obviously yield to the Special Rules so long the Special Rules and the service rules could be regarded to be in existence. Once the State Government has amended the Management Rules and omitted rule 33, the Special Rules and the service rules have ceased to exist in the eye of law. In view of nonexistence of the service rules with effect from August 29, 2008, findings returned by the learned Judge based on His Lordship’s interpretation of the service rules become irrelevant.
11. The submission of Mr. Lahiri, which appeared at first blush to be attractive, thus pales into insignificance in view of the contra submission of Mr. Mukherjee and the acceptance thereof by us as discussed above.
12. At this stage, a further argument of Mr. Lahiri needs to be dealt with. According to him if the service rules did not exist post August 29, 2008, the disciplinary proceedings initiated by the school against the writ petitioners on the basis thereof are void ab initio and ought to be declared as such. Reliance in this connection has been placed on the decision in Sharma Transports v. the State of Maharashtra, AIR 2011 SC 3279 for the proposition that if a particular thing is required to be done in a particular manner, it has to be done in that manner or not at all.
13. We are of the considered view that this argument is one in desperation and merits outright rejection. It is true that the disciplinary proceedings were initiated against the writ petitioners by the management of the school citing the service rules as the source of its power. It is equally true that the service rules did not exist when charge-sheets were issued and served upon the writ petitioners. However, notwithstanding that the service rules did not exist, the Management Rules did exist whereunder power could have been exercised. That apart, even if the contract of employment is silent and does not contain any provision for initiation of disciplinary proceedings, that by itself would not erode the master’s power to discipline his servant for misconduct warranting termination of employment. Bearing these principles in mind, initiation of disciplinary proceedings against the writ petitioners can be justified by reference to the Management Rules or the general laws governing master-servant relationship. Since there are statutory rules, i.e. the Management Rules, and rule 28(8) is the relevant rule governing disciplinary control, mere reference to the service rules being the source of the power for initiation of disciplinary proceedings instead of rule 28(8) of the Management Rules would not render the same vitiated. The contention of Mr. Lahiri, thus, stands overruled.
14. We would now proceed to ascertain the circumstances when a delinquent staff can legitimately claim that he ought to be granted permission to be represented by a lawyer in a domestic enquiry, by surveying the decisions of the Supreme Court on the point.
15. Considering its earlier decisions in N. Kalindi v. Tata Locomotive & Engineering Co. Ltd., AIR 1960 SC 914, Dunlop Rubber Co. (India) Ltd. v Workmen, AIR 1965 SC 1392 and Crescent Dyes and Chemicals Ltd. v. Ram Naresh : (1993) 2 SCC 115, the Supreme Court in Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union, (1999) 1 SCC 626 ruled that : 
“27. The basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right to representation is available only to the extent specifically provided for in the Rules. ****” 
16. The aforesaid decision was followed by the Supreme Court in Indian Overseas Bank v. Indian Overseas Bank Officers’ Association, (2001) 9 SCC 540. It was held there as follows: 
“6. **** The issue ought to have been considered on the basis of the nature and character or the extent of rights, if any, of an officeremployee to have, in a domestic disciplinary enquiry, the assistance of someone else to represent him for his defence in contesting the charges of misconduct. This aspect has been the subject-matter of consideration by this Court on several occasions and it has been categorically held that the law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation. …… Irrespective of the desirability or otherwise of giving the employee facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself.” 
17. Reiteration of the same proposition of law, in more or less the same words, is found in the decision in National Seeds Corporation Ltd. v. K.V. Rama Reddy, (2006) 11 SCC 645. It was held there as under: 
“7. The law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation …..” 
18. Once a question as to right of representation of a delinquent staff by a lawyer arises, the same invariably has to be answered by looking at the relevant discipline, control and appeal rules, if any, as per the dicta of the Supreme Court noticed above.
19. Since the contention of Mr. Lahiri that the service rules framed by the management of the school (whereunder the disciplinary proceedings were initiated) would provide the guiding light has not been accepted by us for reasons discussed above, we need to look into rule 28(8) of the Management Rules. Having read rule 28(8), the position seems to be clear that it does not expressly permit representation of a delinquent staff by a lawyer at the domestic enquiry.
20. However, it is the contention of Mr. Lahiri that rule 28(8) does not, either expressly or by necessary implication, exclude the application of principles of natural justice and, having regard to those decisions of the Supreme Court which lay down the law that natural justice is an inseparable ingredient of fairness and reasonableness and the principles thereof must be read into unoccupied interstices of the statute, the writ petitioners were entitled to and were rightly allowed the assistance of lawyers by the learned Judge.
21. The aforesaid contention overlooks a very vital aspect. It is true that in Mangilal v. State of Madhya Pradesh, (2004) 2 SCC 447, the Supreme Court held that whenever a statute is silent and there are no positive words in it requiring observance of natural justice, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed. In the same breath, it was also held that natural justice applies in unoccupied interstices of the statute, unless there is a mandate to the contrary. The disciplinary proceedings against the writ petitioners have not advanced too far and it is now premature to assess whether their right of defence coupled with the right of hearing are likely to be impaired or not. It is axiomatic that fair and reasonable opportunity to the writ petitioners can never be denied, but whether representation by lawyers can be claimed as a matter of right has to be considered in the light of the decisions discussed above including N. Kalindi (supra), Indian Overseas Bank (supra), Bharat Petroleum Corporation Ltd. (supra) and K.V. Rama Reddy (supra). These decisions are authorities for the proposition that unless the governing rules permit, a delinquent staff has no right to claim assistance or representation by a lawyer or any other person. Rule 28(8) of the Management Rules are silent on this aspect and, hence, the writ petitioners are not entitled in law to claim that in their defence, they should be permitted to have the assistance of lawyers of their choice.
22. Again, there are at least two decisions of the Supreme Court, if not more, which lay down the law that if the presenting officer appointed by the management to present its case before the enquiry officer is either a law graduate or is having a legally trained mind, the delinquent staff may be permitted to be represented by a lawyer. Reference in this connection may be made to the decisions in Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124 and J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd., (1991) 2 SCC 283.
23. In Dilipkumar Raghavendranath Nadkarni (supra), the Court held: 
“10. … Now if the rules prescribed for such an enquiry did not place an embargo on the right of the delinquent employee to be represented by a legal practitioner, the matter would be in the discretion of the enquiry officer whether looking to the nature of charges, the type of evidence and complex or simple issues that may arise in the course of enquiry, the delinquent employee in order to afford a reasonable opportunity to defend himself should be permitted to appear through a legal practitioner.
*** 
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.” 
24. The law laid down in such decision is thus clear : looking at the nature of charges, the type of evidence and complex or simple issues that may arise in the course of enquiry, it is the discretion of the enquiry officer to permit lawyer’s assistance. It is evolves a new test, i.e. whether the delinquent officer is pitted against a legally trained mind in the enquiry, ~ if yes, it would be denial of natural justice to turn down his prayer for permission to be assisted by a lawyer.
25. The Supreme Court in J.K. Aggarwal (supra) laid down the law in the following words: 
“8. 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 recognises 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 ‘whoever 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 caseto- 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 Port of Bombay v. Dilipkumar Raghavendranath Nadkarni ….” 
26. The facts in that case would reveal that the rule governing the enquiry recognised that if serious charges were the subject of enquiry, which could result in a dismissal from service, the enquiry officer in his discretion could permit the services of a lawyer; and, in the matter of exercise of such discretion, the likelihood of the combat being unequal, thus leading to 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, had to be considered as one of the relevant factors for permitting assistance of a lawyer.
27. However, in State of Rajasthan v. S.K. Dutt Sharma, 1993 Supp (4) SCC 61, the Supreme Court reversed the decision of the Division Bench under challenge before it and upheld the view of the learned single Judge. The contention raised before the learned single Judge and the ruling are extracted hereunder: 
“5. Another contention raised on behalf of the petitioner was that he was not permitted to engage a legal practitioner to represent him during the course of the inquiry, though the departmental nominee was a person in the rank of Deputy Superintendent of Police in the Anti-corruption Department and had remained Prosecuting Inspector for a number of years. It was contended that such action was in violation of sub-rule (5) of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The learned Single Judge in this regard held that in the present case, the case of the petitioner was that the departmental nominee in the inquiry proceedings was Shri D.C. Malik who had remained Prosecuting Inspector for a number of years, but at the time when the inquiry was held, he was holding the post of Deputy Superintendent of Police and was not Prosecuting Inspector. The request of the petitioner for engaging a lawyer was declined for the reason that no lawyer was appearing on behalf of the department. Learned Single Judge thus held that strictly speaking the petitioner could not ask for the assistance of a legal practitioner under sub-rule (5) of Rule 16, because the departmental representative was neither a legal practitioner nor a Police Prosecutor or Prosecuting Inspector. Learned Single Judge also noted that the petitioner was told that he should take the assistance of a government servant who may be in the service of the Rajasthan Government. The petitioner did not choose to exercise the said right and pleaded his own case.
*** 
8. As regards the objection that the respondent was not afforded an opportunity to engage a legal practitioner, suffice to say that Shri D.C. Malik, the departmental nominee was not a legal practitioner nor a Prosecuting Inspector at the relevant time. Further, the charges against the respondent were not of such nature that he could not defend them himself or through the departmental representative whose assistance was offered to him but which assistance he declined. We agree with the finding and conclusion arrived at by the learned Single Judge in this regard.” 
28. The position that emerges is that lawyer’s assistance can never be claimed as of right, unless specifically provided in the rules governing the enquiry and that in a case calling for exercise of discretion, the Court has to apply its mind to the materials on record for arriving at a finding as to whether discretion has been properly exercised by the employer or the enquiry officer, as the case may be, and an appropriate decision has to be taken so that reasonable opportunity, which is real, is extended to the delinquent.
29. It is not the case of the writ petitioners here that the charges are so complicated involving complicated issues of fact and law that a lawyer’s assistance is required without which the combat would be unequal. It is also not the case that the presenting officer appointed by the management is having such qualification that the writ petitioners are pitted against either a lawyer, or a law graduate, or an individual having a legally trained mind. The presenting officer here is a teacher of the school, like the writ petitioners. The ratio laid down in the decisions in Dilipkumar Raghavendranath Nadkarni (supra) and J.K. Aggarwal (supra), thus, does not aid the writ petitioners.
30. Confronted with the position that neither have the writ petitioners claimed the charges to be so serious as to merit assistance of lawyers being extended to them nor the presenting officer is a lawyer or a law graduate or is one having a legally trained mind, Mr. Lahiri contended that since the enquiry officer is a lawyer the writ petitioners are also entitled to avail the services of lawyers of their choice. He placed his trump card, i.e. a decision of more or less recent origin of the Supreme Court in Ramesh Chandra v. Delhi University, (2015) 5 SCC 549, and contended on the basis of the law laid down therein that the judgment and order under challenge should be upheld and the appeal dismissed.
31. The decision in Ramesh Chandra (supra) reveals that the petitioner, a professor of Delhi University, had been proceeded against departmentally and punished by an order removing him from service following acceptance of the enquiry officer’s report. Dismissal of a writ petition resulted in the matter being carried to the Supreme Court. The enquiry officer was a retired high court judge. The order of punishment was set aside by the Court for several reasons. After quoting in paragraphs 68 and 69 the relevant passages from the decisions in Dilipkumar Raghavendranath Nadkarni (supra) and J.K. Aggarwal (supra), which we have extracted supra, the Court held : 
“70. In view of the law laid down by this Court, we are of the view that if any person who is or was a legal practitioner, including a retired Hon’ble Judge is appointed as an enquiry officer in an inquiry initiated against an employee, the denial of assistance of a legal practitioner to the charged employee would be unfair.” 
32. Whatever has been ruled in paragraph 70 of the decision in Ramesh Chandra (supra), as evident from the aforesaid extract, appeared to us difficult to reconcile with the law declared in Dilipkumar Raghavendranath Nadkarni (supra) and J.K. Aggarwal (supra). These decisions dealt with cases where lawyers had been appointed as presenting officers, and not enquiry officers. This made us read the said two decisions again and again; however, we did not find any law being declared by the Supreme Court therein that if the enquiry officer is an individual well versed in law but the delinquent staff is not permitted to avail the services of a lawyer, despite he having asked for it, the domestic enquiry would be unfair. The Supreme Court, it is well-settled, does not examine principles of natural justice in a vacuum without reference to the relevant fact situation arising in the case [see: Punjab and Sind Bank v. Sakattar Singh, (2001) 1 SCC 214].
33. Reminded of the law so declared, we attempted to make a thorough scrutiny of the facts in the case of Ramesh Chandra (supra). The basis for the ruling in paragraph 70 is traceable to the submission recorded in paragraph 34 and the conclusions in paragraphs 66 and 67, which are quoted below: 
“34. Another ground taken by the learned counsel for the appellant was that there were illegalities in the conduct of the inquiry. According to him the appellant requested the assistance of a legal practitioner as the presenting officer as well as the enquiry officer was legally qualified person regularly engaged in disciplinary proceedings but the said request was declined. It was further submitted that the appellant was not given opportunity for examination of witness and there was no legal evidence before the enquiry officer to bring home the charges. We have gone through the inquiry report(s) submitted by the enquiry officer and other records. The aforesaid submission advanced on behalf of the appellant will be discussed at an appropriate stage.” 
*** 
“66. We are of the opinion that if an Hon’ble retired Judge of a court before his appointment as a Judge was a lawyer of any of the party (Delhi University herein), the disciplinary authority should not engage such retired Judge as an enquiry officer, as the other party may allege bias against the enquiry officer and the reputation of the Hon’ble Judge may be at stake. The University is directed not to engage any Hon’ble retired Judge of any court, who was earlier a counsel of the University as an enquiry officer to hold an inquiry against any of its employees.
67. The enquiry officer herein being a retired Judge of the High Court is a person of vast legal acumen and experience. The presenting officer also would be a person who had sufficient experience in presenting case before the enquiry officer. In this background, it is also required to consider whether an application of a delinquent employee seeking permission to be represented through a legally trained and qualified lawyer should be allowed or not.” 
34. There can hardly be two opinions that the Court did not approve the action of the Delhi University to appoint the retired judge of the Delhi High Court as an enquiry officer on the ground that the said judge prior to elevation had been a lawyer for the University. Not only that, the Court proceeded to restrain the University from appointing any retired judge to act as an enquiry officer, if such judge had previously been a counsel for the University. The reason assigned therefor seems to be that, such an appointment may give rise to an allegation from the delinquent that the enquiry officer is biased and that would be embarrassing for the retired high court judge.
35. We may observe, drawing from our experience on the Bench that, a judge of a high court who while practicing as a lawyer had either given any advice/opinion to or represented an authority (answering the definition of ‘State’ within the meaning of Article 12 of the Constitution) before any court in course of litigation, is not precluded from hearing all matters involving such authority. It is only when a matter comes up before the judge where he had the occasion to either advise the authority or represent it before some other court that propriety demands him to recuse from the matter. The reason therefor is not far to seek.
36. We can do no better than quoting Justice Frankfurter. In Public Utilities Commission of the District of Columbia v. Pollak, reported in 343 US 451 (at pg.466-67), it was succinctly observed: 
“The judicial process demands that a Judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, Judges recuse themselves. They do not sit in judgment.” 
37. The decision in Ramesh Chandra (supra) has, however, set a new norm in the case of a retired high court judge, which is quite different from the norm set for sitting high court judges. We know not whether after retirement, high court judges lose the quality of being loyal to the obligation entrusted upon them. At any rate, it is Delhi University that was restrained from appointing such of the retired high court judges as enquiry officers who had previously the occasion to represent the University and not any other university in the country.
38. We, however, do not consider it necessary to ponder why such new norm was set, applicable to retired high court judges; but, it admits of no doubt that paragraph 70 of the decision in Ramesh Chandra (supra) cannot be read divorced from paragraph 66 as well as paragraph 67 thereof wherein the Court presumed that apart from the enquiry officer, the presenting officer was also a person who had sufficient experience in presenting cases before the enquiry officer. It was in such background that the question of the petitioner being allowed permission to have the assistance of a lawyer came up for consideration and it was answered in favour of the petitioner. It is impossible and we are not inclined to conceive that if a retired high court judge is appointed as an enquiry officer to conduct a domestic enquiry, the Supreme Court would consider the delinquent to have been “pitted against” an officer trained in law or that there would be an “unequal combat” between the delinquent and the enquiry officer (the retired high court judge), rendering the enquiry unfair. Needles to observe, the combat in enquiries of the nature under consideration is between the presenting officer and the delinquent, with the enquiry officer in the position of the adjudicator.
39. Be that as it may, our reading of paragraph 70 of the decision in Ramesh Chandra (supra) is that the ruling is confined to the facts and circumstances that were before the Supreme Court and at best, it may have application in cases whenever a retired high court judge is appointed as an enquiry officer to conduct an enquiry by an employer, whom the judge had represented prior to his elevation.
40. Does the said decision have applicability even when a lawyer is appointed as an enquiry officer by the employer? To answer this question, it would be of some worth to ascertain what the law was prior to the decision in Ramesh Chandra (supra) in regard to appointment of the employer’s lawyer as an enquiry officer to conduct enquiry.
41. If we travel down memory lane to the early sixties of the last millennium, we notice that the Supreme Court in its decision in Saran Motors Private Ltd., New Delhi v. Vishwanath : 1964 (2) LLJ 139, had the occasion to consider a similar issue. It was held that no objection could validly be taken if a lawyer, who may have been engaged by the employer in other matters, is appointed an enquiry officer to conduct the domestic enquiry. Justice Gajendragadkar, speaking for the three-judge Bench, formulated the issue in paragraph 5 and answered it in paragraph 6. The said two paragraphs are extracted below: 
“5. The first question which we have to decide is whether the Tribunal was justified in holding that Mr. Chadha had a bias in favour of the appellant, and so, was incompetent to hold the enquiry. It appears that Mr. Chadha is sometimes engaged by the appellant as a lawyer in industrial matters and the respondents case was that he had been entrusted with the work of holding such enquiries on four five occasions. It is on these grounds that the Tribunal has held that Mr. Chadha was not competent to held the present enquiry.
6. In our opinion, this view is completely erroneous and cannot be sustained. We have repeatedly pointed out that domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the Tribunals must deal with the merits dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, becomes incompetent to hold a domestic enquiry. It is well known that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual as attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. It that be so, it is obviously unsound to take the view that a lawyer who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employer’s lawyer and is paid remuneration for holding the enquiry. Therefore, the first reasons given by the Tribunal for ignoring the findings of the domestic enquiry must be reversed.” 
(underlining for emphasis by us) 
42. Unfortunately, the two-judge Bench while deciding Ramesh Chandra (supra) did not have the benefit to consider the law laid down by the larger Bench in Saran Motors (supra). Importantly, in this case, we have not been shown any pleading in the writ petition that the incumbent enquiry officer has been a lawyer for the school in other matters and is likely to be biased against the writ petitioners. The decision in Ramesh Chandra (supra), in our opinion, is thus clearly distinguishable.
43. The written notes of agreement, filed by Mr. Lahiri, also reveals reliance placed by him on the decision in Transmission Corporation of A.P. Ltd. v. Sri Rama Krishna Rice Mill, AIR 2006 SC 1445. What is meant by ‘reasonable opportunity’ in the context of Article 311(2) of the Constitution has been discussed. Since we are considering a case where the writ petitioners would be proceeded against under rule 28(8) of the Management Rules, which ordains ‘reasonable facilities’ to be given to a delinquent staff to defend himself/herself, the principles laid down by a coordinate Bench of this Court in Sujit Kumar Das v. West Bengal Board of Secondary Education, 1997 (2) CLJ 497 have to be followed. We have no doubt that the management of the school shall bear in mind such principles while proceeding against the writ petitioners.
44. For the reasons aforesaid, we find little reason to accept Mr. Lahiri’s contentions. The judgment and order under challenge is unsustainable in law and hence, stands set aside. The writ petitioners shall be entitled to have the assistance of any of their colleagues in the domestic enquiries, which shall be conducted and concluded in accordance with law.
45. The appeal stands allowed, without any order for costs.
46. Photostat certified copy of this judgment and order shall be made available to the parties at an early date, if an approach in this behalf is made by them.