S. Singaravelu v. General Manager Southern Railway Madras.2. Presiding Officer Central Government Industrial Tribunal- cum

entries in the Railway records as if he has refunded the said amount ondemand for cancellation by a bona fide passenger in BPT.No.085444purported to have been issued on 22.09.1984 for 95 adults for journey on30.12.1984 in Train No.145 Navjeevan Express from Ahmedabad to Madras.The said charges were framed as the conduct of the petitioner was inviolation of Rule 3(1)(i), 3 (1)(ii) and 3(1) (iii) of the Railway Service(Conduct) Rules, 1966. The petitioner has given a detailed explanation on27.06.1987, denying the charges. According to him, on 15.12.1984, when hewas working in the Enquiry-cum-Refund Counter, he has made refund of theamount based on the cancellation made by the Cancellation Clerk along withrefund application. The said refund was made to the person, who presentedit across the counter, since the ticket was cancelled and the endorsementwas made by the Cancellation Clerk. 2 (a). The first respondent has conducted enquiry, in which 10witnesses were examined. However the case of the petitioner is that hewas not allowed to be represented by a Government servant of his choice,even though the Railway was represented by a CBI Inspector, who, accordingto the petitioner, is a legally trained person. According to him, theCancellation Clerk J. Gnaneshwara Rao, examined as P.W.1 has made anendorsement in the cancellation form and the cancellation form was notproduced before the enquiry and if it was produced before the enquiry,the petitioner would have proved that he made payment only on the basis ofthe endorsement made by the Cancellation Clerk. 2 (b). According to the petitioner, in spite of the fact that thereis no eye witness and even though in the charge it is stated that theticket was sent to an handwriting expert and name also given, no suchHandwriting Expert was examined and no such report from the HandwritingExpert was furnished to him. The Enquiry Officer, after conductingenquiry, has sent a report stating that the charges framed against thepetitioner stand established and has also suggested deterrent punishment.It was, based on the Enquiry Officer's report, the Disciplinary Authorityhas imposed the punishment of removal from service on 08.06.1988 and thesame was confirmed by the Appellate Authority on 03.07.1989. When thepetitioner filed Original Application in O.A.No.156 of 1990 before theCentral Administrative Tribunal, the same was allowed on the ground thatthe Enquiry Officer's report was not furnished to him and therefore bysetting aside the punishment, the matter was remanded back by permittingthe first respondent Railway to continue the disciplinary proceedingsafter giving a copy of the enquiry report to the petitioner. It waspursuant to the said remand, the petitioner has given further explanationon 21.11.1991, and according to the petitioner, the DisciplinaryAuthority, without application of mind, has passed order on 07.12.1992,removing him from service. 2 (c). The petitioner has preferred an appeal before the appellateauthority on 21.12.1992 and the appellate authority, without re-appreciating the material on record, by order dated 09.09.1993, hasmodified the punishment of removal from service to one of compulsoryretirement. It was challenging the said punishment of the appellateauthority, the petitioner has raised an industrial dispute in I.D.No.37 of1998 before the Industrial Tribunal, Chennai, which was subsequently https://hcservices.ecourts.gov.in/hcservices/ transferred to the second respondent Tribunal and re-numbered asI.D.No.485 of 2001. 2 (d). According to the petitioner, it was not the case of the firstrespondent Management that in the event of domestic enquiry being held asnot fair and proper, the Management would like to lead evidence to provethe charges. The petitioner has raised the point that the domesticenquiry was not properly conducted for the reason that when the Railwaywas represented by an outsider, being C.B.I. Inspector, who is alegally trained person, the request of the petitioner to have an outsiderfor his assistance, viz., a retired Government servant of his choice wasdenied by quoting Rule 9 (13) (1) (a) and (b) of Chapter Part IV Procedurefor Imposing Major Penalties under the Railway Servants (Discipline &Appeal) Rules, 1968. According to the petitioner, the denial ofpermission to him to be assisted by an outsider, viz., a retiredGovernment servant, especially in the circumstances that the Management isrepresented through a C.B.I. Inspector, who is a legally trained person,will make the domestic enquiry as a farce. It is also the further case ofthe petitioner that in the charge there are two names mentioned, one isP.S.S.P. Babu, Investigating Officer and another is D.R. Rohilla, who isan Handwriting Expert. However, the reports of the Babu, who is anInvestigating Officer on the criminal side as well as the HandwritingExpert, have not been furnished to him and therefore, the enquiry isvitiated by violation of principles of natural justice. According to thepetitioner, the Tribunal has passed an award holding that the domesticenquiry was fair and proper and the charge framed against the petitionerwas proved and as against the award of the Labour Court, the writ petitionis filed.3. The first respondent has filed a counter affidavit. It is thecase of the first respondent that the factual situation which has beenanalysed by the Enquiry Officer cannot be re-canvassed by the petitionerin the writ petition. In the counter it is also stated that in respect ofthe unlawful refund of an amount of Rs.10,070/- the petitioner hascommitted various discrepancies, which are as follows:"1.Issue of single ticket for 95 passengers whichis unusual.2.Ticket was issued from Madras to Ahmedabad for whichMessage charges of Rs.3/- were collected.3.Message No. does not tally with the Message Book.4.Train No.145 was from Ahmedabad to Madras but theticket issued was from Madras to Ahmedabad.5.Train No.145 of 30.12.84 is shown in the Ticket.30.12.84 was a Sunday, it is Navjeevan express and itwas not running on Sundays.6.The application for cancellation was not there.7.The ticket did not contain the names of 95 persons.8.The respondent conclusively submits that thepetitioner Shri. Singaravelu did not follow theprocedure for refund. "This was also pointed out in the statement of imputation sent with thecharge memo. It is the case of the first respondent that simply becausethe amount of loss has been recovered from the salary of the petitioner, https://hcservices.ecourts.gov.in/hcservices/ it does not mean that the conduct of the petitioner causing embezzlementand committing breach of orders will be scrapped. In this regard, thefirst respondent also refers to the order passed by the CentralAdministrative Tribunal in O.A.No.156 of 1990 stating that recovery ofthe amount from the petitioner's salary will not have the effect ofpreventing imposition of penalty for the loss within the meaning of Clause6(v) of the Rules. It is also the case of the first respondent that thereport of the Handwriting Expert was not at all relied upon either by theEnquiry Officer or by the Disciplinary Authority for proving themisconduct against the petitioner. 3 (a). It is the further case of the first respondent that eventhough the Management has let in 10 witnesses, the petitioner has notchosen to examine any witness nor produced any documents to prove hisinnocence. It is also the case of the first respondent that pursuant tothe order of the Central Administrative Tribunal in O.A.No.156 of 1990, acopy of the enquiry report was furnished to the petitioner and theDisciplinary Authority has considered the case on merits and the AppellateAuthority has also considered the same and awarded punishment ofcompulsory retirement by reducing the punishment of removal. As far asthe representation of the delinquent through another person, the case ofthe first respondent is that it is subject to the Service Rules. A lawyercan be permitted to be represented in the domestic enquiry only if theRules specifically provides and there is no provision under the relevantRules to provide an assistant from the lawyer to the delinquent. It isalso stated that as per the Service Rules there is no provision for anoutsider to represent the delinquent. According to the first respondent,non- production of the report of V.S.S.P. Babu, the Investigating Officeras well as the Handwriting Expert has not vitiated the enquiryproceedings, since they were not relied upon in the domestic enquiryproceedings to substantiate the charges. The first respondent would alsofurther submit that the conduct of the petitioner is so serious that it isnot only misappropriation of amount of Rs.10,070/-, but it is also bymaking false entries in the Railway records as if he has refunded theamount based on a bogus ticket stated to have been issued on 29.10.1984for 95 adults especially on a day when the Navjeevan Express was not atall running. Therefore, according to the first respondent, the chargesframed against the petitioner is proved and the same are serious andtherefore there is no defect in the enquiry proceedings and the writpetition deserved to be dismissed.4. Mr. R. Kamatchi Sundaram, learned counsel appearing for thepetitioner, would submit the following points in support of the petitioner:(i) When the first respondent Management has engaged aC.B.I. Inspector to assist the Management in thedomestic enquiry, the petitioner should have beengiven an opportunity to represent through a properperson of his choice, so as to have a right ofeffective defence. According to him, the C.B.I.Inspector is presumed to be a legally trained personand therefore to match with his representation, theemployee, viz., the petitioner should have been givenpermission for assistance of a legal practitioner. https://hcservices.ecourts.gov.in/hcservices/ He would submit that by not permitting the petitionerto have such assistance, a gross disadvantage issuffered by the petitioner and therefore, according tohim, the disciplinary proceedings are vitiated. Hehas relied upon various judgments, viz.,(a) Indian Airlines Corporation vs. N. Sundaram (1992(II) L.L.N. 811);(b) The Board of Trustees of the Port of Bombay vs.Dilipkumar Raghavendranath Nadkarni (1983 (1) L.L.J.1);(c) S. Gnanasambandam vs. Tamil Nadu CementsCorporation Ltd., (2001 (3) L.L.N. 677);(d) Chairman and Managing Director, HindustanTeleprinters Ltd., vs. M.Rajan Isaac (2005 (2) L.L.N.853).(ii)The charge memo contains the names of witnesses,including the Handwriting Expert, viz., D.R. Rohilla,Senior Scientific Officer and also P.S.S.P. Babu,Inspector of Police. It was the duty of the firstrespondent Management to furnish the copies of reportsubmitted by them. While admitting that the saidD.R. Rohilla, was not examined as witness, it is thecase of the learned counsel that the Inspector ofPolice was examined as PW.10 and therefore, it isincumbent on the part of the Railway to furnish thecopy of the report and according to him, non-furnishing of the Handwriting Expert's report isfatal to the proceedings. He would also submit thatby referring to Handwriting Expert's report, if it issupplied, the petitioner/delinquent would have beenin a better position to defend his case. Likewise, inrespect of non-furnishing of the report of P.S.S.P.Babu, Inspector of Police, who investigated thecriminal case, he submits that the same violates theprinciples of natural justice.(iii) According to the learned counsel for thepetitioner, the Disciplinary Authority has traversedbeyond the charge. According to him, the charge memodoes not say that there is manipulation of the numberof passengers from 90 to 95. While the chargerelates to improper refund of the amount under acancelled ticket, the Disciplinary Authority has gonebeyond the same to find that the petitioner hasmanipulated the number of travelers from 90 to 95.Therefore, according to him, the entire proceedingsare vitiated and these factors have not beenconsidered by the Labour Court.5. Per contra, Mrs. Aparna Nandakumar, learned counsel appearing forthe first respondent has submitted the following points:(i)As far as the legal practitioner to represent thepetitioner, she would submit that as per the records, https://hcservices.ecourts.gov.in/hcservices/ it is seen that the petitioner himself has neverasked for the assistance of a legal practitioner andhe only asked for a Government servant of his choiceand as per the relevant Rules, especially Rule 9 (13)(1) (a), the delinquent officer of the Railway canrepresent his case by assistance of any other Railwayservant including a retired Railway servant. Shewould also submit that on the facts and circumstancesof the case, there is no legal issue involved andtherefore it is not correct to state that the C.B.I.Inspector who has represented the Management is alegally trained person;(ii) As far as the report of Handwriting Expert isconcerned, her submission is that the Management hasnot relied upon the report of the Handwriting Expertor the Investigating Officer. Therefore, there wasno question to submit the said reports. In anyevent, it is her contention that the HandwritingExpert was not at all examined, but, on the otherhand, the Investigating Officer was examined and thepetitioner was given an opportunity to cross examinehim and the domestic enquiry or the departmentalproceedings are not based on the criminalinvestigation done by the said witness P.W.10;(iii) Regarding the next argument that theDisciplinary Authority has traversed beyond thecharge, the learned counsel for the first respondentwould submit that the imputation of charge itselfmakes everything clear and therefore there was noquestion of Disciplinary Authority having traversedbeyond the charge and therefore according to her, thepetitioner has availed the opportunity to the maximumpossible extent and he has participated in thedomestic enquiry throughout and in view of the samethere is no question of violation of principles ofnatural justice and therefore she submitted that thewrit petition is liable to be dismissed.6. I have heard the learned counsel for the petitioner as also thefirst respondent and perused the entire records.7. A reference to the charge framed against the petitioner dated23.07.1986 shows that the said charge was in violation of the Rules underthe Railway Service (Conduct) Rules, 1966. The charge framed against thepetitioner is as follows:"That the said Sri. S. Singaravelu, whilefunctioning as Enquiry-cum-Reservation Clerk,Reservation Office, Madras Central, Southern Railway,Madras committed misconduct and failed to maintainabsolute integrity and devotion to duty and did acts ofwhich were unbecoming of a Railway of Govt. servantinasmuch as he has granted and misappropriated anamount of Rs.10070/- in or about 15.12.84 by 18.15 https://hcservices.ecourts.gov.in/hcservices/ hours, belonging to Railway Office, by making falseentries in Railway records as if he had refunded thesaid amount on demand for cancellation by a bona fidepassenger on the passenger foil of B.P.T.No.085444purported to have issued on 29.10.84 for 95 adults forjourney on 30.12.84 in Train No.145-Navjeevan Expressfrom Ahmedabad to Madras Central in violation of Officeprocedures and he thereby violated Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Railway Service (Conduct)Rules, 1966."8. Along with the said Charge Memo, Statement of Imputation has beengiven to the petitioner, which contains details along with thediscrepancies found in Passenger Foil No.085444, on which the refund wasstated to have been made by the petitioner. The Statement of Imputationspecifically states the following discrepancies."1. Issue of single ticket for 95 passengers which isunusual.2.Ticket was issued from Madras to Ahmedabad for whichMessage charges of Rs.3/- were collected.3.Message No.MC-22/29/7/RJ of 29.10.84 is not at alltallying with the Message Book.4. Raghavan E.C.R.C who is said to have issued itnever worked in Central Station.5.Train No.145 was from Ahmedabad to Madras but theticket issued was from Madras to Ahmedabad.6. Train No.145 of 30.12.84 is shown in the Ticket.30.12.84 was a Sunday, it is Navjeevan express and itwas not running on Sundays.7. The application for cancellation was not there.8. The ticket did not contain the names of 95 persons."9. It is also true that the list of documents and witnesses reliedupon contains the name of one D.R. Rohilla, Senior Scientific Officer asWitness No.12 and one P.S.S.P. Babu, Inspector of Police as one of thewitnesses. It is also not in dispute that the said Handwriting Expert wasnot examined as his report was also not relied upon either in the domesticenquiry or by the Disciplinary Authority. Likewise, it is also not indispute that the said Babu, Inspector of Police was examined as a witness(PW.10) and reference to the proceedings shows that the report of theInspector of Police has not been relied upon for the purpose of provingthe charges. A reference to the imputation of charges show that there wasno application for cancellation and another astonishing factor is that theticket stated to have been produced before the petitioner for refund,which, according to the first respondent, was a bogus ticket and wasrelating to Train No.145 and that train was to run from Ahamedabad toMadras as Navjeevan Express. But, the ticket contains as if the TrainNo.145 is a Navjeevan Express to run from Madras to Ahamedabad. Moreastonishingly, the ticket shows that the train was to run on Sunday, viz.,on 30.12.1984 and it is not in dispute that Navjeevan Express did not runon Sunday. Moreover, the said ticket stated to have been produced beforethe petitioner relates to 95 passengers and it did not contain the names https://hcservices.ecourts.gov.in/hcservices/ of the 95 persons and therefore in such circumstances, the refund made bythe petitioner is questioned. Prima facie there is no difficulty incoming to the conclusion that bereft of the other argument that theCancellation Clerk has made endorsement and therefore, as a Refund Clerk,he has only refunded the amount, as a refunding officer, the petitionercannot say that he has no duty to find out that such train was not inexistence at all and such train was running from Madras to Ahamedabadwhile the ticket produced before him states otherwise. Therefore, thecontention as if the petitioner has only followed what was endorsed by therefund officer cannot be countenanced. Further, it is relevant to pointout that it is the case of the first respondent Management that there wasno cancellation form at all and therefore the ticket produced across thecounter to the petitioner was only a bogus ticket. The case of thepetitioner is that on that date Sri. T. Gnaneswara Rao was working in thenext counter as Cancellation Clerk and after he has made endorsement, theticket was produced before the petitioner and on the basis of thatendorsement he has made the refund. When a specific question was put bythe petitioner in cross examination to the said T. Gnaneswara Rao, he hasspecifically stated that there was no cancellation remark in the ticket.The question and answer in this regard is as follows:"Q.19. Having worked in the issue and at refundcounter, please see exhibit P.1 and say what are thedefects you are able to note?A. T.No. is mentioned as 145 whereas the ticket is forMadras Central to Ahmedabad and no cancellation remarkwere made in the ticket."Therefore, it is clear that Ex.P.1-ticket does not contain anycancellation remark, as it is elicited by the petitioner himself duringcross examination of the said Cancellation Clerk Sri.T. Gnaneswara Rao.In such circumstances, it is also clear that the stand taken by thepetitioner as if he has acted based on cancellation remark made by theCancellation Clerk and therefore there was no intentional or willful actof misappropriation and utmost negligence, cannot also be accepted.10. It is also not in dispute that throughout the domestic enquiryproceedings the petitioner has participated and in fact effectively crossexamined various witnesses examined on the side of the first respondentManagement. It is clear from the records that the petitioner has notchosen to produce any evidence to substantiate his defence. This is thefactual position. In the light of the above circumstances, I proceed toconsider the various arguments advanced by the respective counsel.11. In respect of first contention raised by the learned counselappearing for the petitioner that the petitioner was not permitted toeffectively defend his case during domestic enquiry, it is his contentionthat when the first respondent Management has permitted the C.B.I.Inspector to assist the Management, he should be presumed to be a legallytrained person and therefore, the petitioner also should have beenpermitted to be assisted by a legally trained person. First of all, thecontention that the C.B.I. Inspector, who has been appointed to assist thefirst respondent Management, is a legally trained person, is not https://hcservices.ecourts.gov.in/hcservices/ sustainable. Simply because the said C.B.I. Inspector is well versed inthe investigation in respect of the offences, he cannot be claimed to bea legally qualified person for the purpose of disciplinary proceedingslike in the present case. Admittedly, the said C.B.I. Inspector, who hasassisted the first respondent Management is not a legal practitioner andtherefore, in such circumstances,, the claim of the petitioner as if heshould have been permitted to represent through a legal practitioner isnot acceptable. Even on the factual position, in the present case, asrightly pointed out by the learned counsel appearing for the firstrespondent, the claim of the petitioner himself is that he wanted himselfto be assisted by a Government servant of his choice. Even assuming thatthe C.B.I. Inspector has been appointed as a Presenting Officer for thefirst respondent, it was never the claim of the petitioner to have theassistance of a legal practitioner. The evidence of the petitioner beforethe Enquiry Officer in this regard is very clear. The question and answerare as follows:"Q.1. A copy of the charge memorandum together withthe statement of imputations of misconduct ormisbehaviour is read over and given to you by me now.Do you understand the charge/s thoroughly? Do youadmit the charge/s? If not, are you ready to proceedwith the enquiry? Have you perused all the documentsconnected with the case?A. I understand the charges but deny the same. Thestatements/opinion of the witnesses mentioned againstitems 12 to 16 in Annexure IV of the Charge Memorandumwhich are necessary for me for my defence, I have notbeen made available to me. I request that these maybe made available and on receipt of these I amprepared to proceed with the enquiry. Again I requestEnquiry Officer to refer to my letter dated 22.7.87addressed to Sr.DCS/MAS wherein I requested that I maybe permitted to take the assistance of any Governmentservant of my choice. Inasmuch as an Inspector ofPolice of the CBI has been appointed as the PresentingOfficer in this case. "It is thereafter, the Enquiry Officer has ordered that the C.B.I.Inspector is not a legal practitioner and is only a Government Servant andas per Rule 9 (13)(1) (a) and (b) and Note 1 and 2 of the Procedure forImposing Major Penalties of Railway Servants (Discipline & Appeal) Rules,1968, he is entitled for an assistance only by a serving railway servantor a retired railway servant and it is therefore seen that subsequently,the petitioner has engaged for his assistance, one Sri K. Chandrasekaran,retired CGS/SO.12. Now referring to the relevant Rules. The Railway Servants(Discipline and Appeal) Rules, 1968 was a Rule framed as per the powersconferred under the proviso to Article 309 of the Constitution of India.In the said Service Rules, which are binding upon the petitioner, is PartIV - Procedure for Imposing Major Penalties. Rule 9(13)(1)(a) and (b) https://hcservices.ecourts.gov.in/hcservices/ speaks about the assistance to be given by the Administration during thedisciplinary proceedings and it runs as follows:"Rule 9 (13)(1)(a) The railway servant may representhis case with the assistance of any other railwayservant (including a railway servant on leavepreparatory to retirement) working under the sameRailway Administration, subject to whose jurisdictionand control he is working. He cannot engage a legalpractitioner for the purpose, unless the PresentingOfficer appointed by the disciplinary authority is alegal practitioner or the disciplinary authority havingregard to the circumstances of the case, so permits.If the railway servant is employed in the office of therailway Board, its attached office or sub-ordinateoffice, he may present his case with the assistance ofany other railway servant (including a railway servanton lease preparatory to retirement), employed in theoffice of the Railway Board, attached office or sub-ordinate office, as the case may be, in which he isworking.(b) the Railway servant may also present his case withthe assistance of a retired Railway servant, subject tosuch conditions as may be specified by the Presidentfrom time to time by general or special orders in thisbehalf."13. There are two foot notes in the said Rules, which also run asfollows: Note:(1) A non-gazetted railway servant may take theassistance of an official of a Railway Trade Union,recognised by the Railway Administration under whichthe railway servant is employed to present his casebefore an inquiring authority but shall not engage alegal practitioner for the above purpose except in thecircumstances brought out in clause (a). An officialof a Railway Trade Union shall not be allowed to appearon behalf of an alleged delinquent railway official inconnection with a disciplinary case pending againstthat official, to present his case favourably before aninquiring authority unless he has worked as such in arecognised Railway Trade Union for a period of at leastone year continuously prior to his appearance before aninquiring authority for the above purpose and subjectto the condition that he take no fees.(2) Nomination of an assisting Railway servant or anofficial of a recognised Railway Trade Union shall bemade within 20 days from the date of appointment ofinquiring authority and it shall not be accepted if atthe time of nomination the assisting Railway servant orthe official of a recognised Railway trade union has https://hcservices.ecourts.gov.in/hcservices/ more than three pending disciplinary cases in which hehas to assist."Therefore, a reading of the Rule shows that a Railway servant has a rightto represent his case with the assistance of other railway servant,including a retired railway servant. That apart, the Rule is clear thatthe delinquent cannot engage a legal practitioner, unless the PresentingOfficer appointed by the Disciplinary Authority is a legal practitioner.Therefore, there is no difficulty in coming to the conclusion in this casethat since the officer appointed by the first respondent to assist theManagement, who is a C.B.I. Inspector cannot be termed as a legalpractitioner and he was also not a legal practitioner. As such, there isno question of right on the part of the petitioner to claim a legalpractitioner to assist him. Further, the Service Rules specificallyenable the petitioner only to engage a person working in the Railwayestablishment including a retired person. Therefore, the contentionraised on behalf of the learned counsel appearing for the petitioner thatthe petitioner has not been permitted to represent through legally trainedperson deserved to be rejected, since the petitioner is bound by thespecific Rules.14.In the case of Indian Airlines Corporation vs. N. Sundaram (1992(II) L.L.N. 811), the Division Bench of this Court while dealing withIndian Airlines Employees Standing Orders (Regulations) ConcerningDiscipline and Appeals, had to deal with Standing Order 32, which reads asfollows:"An employee may be permitted, if he so desires, tohave, 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. Nooutside representation shall be permitted in anycircumstances. "In that case, one Assistant Manager (Personnel), who was a legallyqualified and well trained in disciplinary proceedings, was availed by theManagement as a Presenting Officer. When the delinquent has requested forrepresentation through a lawyer, that was rejected. It was in thosecircumstances observed that, "the Corporation did have the services of alegally qualified and trained person, who had considerable experience inthe conduct of disciplinary proceedings." The Division Bench has furtherheld that the delinquent therein was in a disadvantageous position whilemeeting such a Presenting Officer, who was well qualified, and held thatthe delinquent was entitled for relief. However, on the factual situationin this case, I do not think that the said judgment has any applicationsince the Presenting Officer appointed in the present case is not a legalpractitioner or legally qualified person and he was a C.B.I. Inspector.15. The reference made by the learned counsel appearing for thepetitioner to the judgment of the Supreme Court rendered in the Board ofTrustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni(1983 (1) L.L.J. 1) also has no application. That was a case where theissue involved was that the Rule governing the employees was silent about https://hcservices.ecourts.gov.in/hcservices/ the assistance to the employees in the domestic enquiry and there was noinhibition to the employee to be defended by legal practitioner. In suchcircumstances, the Supreme Court has held that the rejection of suchrepresentation for assistance by the delinquent is not proper.16. Again, the judgment relied upon by the learned counsel appearingfor the petitioner in S. Gnanasambandam vs. Tamil Nadu Cements CorporationLtd., (2001 (3) L.L.N. 677) has no application to the facts of the case,since that was relating to a case where the Enquiry Officer appointed bythe respondent Management was a Law Graduate and on such factualsituation, a decision was arrived at to equate with such a qualifiedperson the delinquent employee should be provided with equally effectiveassistance.17. Again, the judgment of the Division Bench of this Court renderedin Chairman and Managing Director, Hindustan Teleprinters Ltd., vs.M.Rajan Isaac (2005 (2) L.L.N. 853) has no application since there also itwas a case where the employer's representative was legally trained person.18. In a recent judgment of the Supreme court in National SeedsCorporation vs. K.V. Rama Reddy (2007 (1) SCC (L&S) 512), in almost anidentical situation, the option to be assisted by another employee wasgiven as per the National Seeds Corporation (Conduct, Discipline andAppeal) Rules, 1992. The Supreme Court has held that refusal by theemployer to permit engagement of a legal practitioner is not prejudicialto the interest of the delinquent employee. Rule 31(7) of the above saidRules, which was involved in the said case was almost synonymous to thepresent Rules, which are relied upon by the first respondent Management.While construing the said rule, the Supreme Court had to refer to a Rulein the Railway Establishment Code as that of the present Rule involved.The Supreme Court has held as follows:"6. The rival submissions have to be tested inthe background of Rule 31(7) of the Rules. The samereads as follows:Rule 31(7) - The employee may take the assistance ofany other employee working in the particular unitwhere the employee is working/was working at the timeof happenings of alleged changes to which the inquiryrelates or where the inquiry is being conducted topresent the case on his behalf but may not engage alegal practitioner for the purpose unless thepresenting officer appointed by the disciplinaryauthority is a legal practitioner or the disciplinaryauthority having regard to the circumstances of thecase, so permits.7. The law in this country does not concede anabsolute right of representation to an employee indomestic enquiries as part of his right to be heardand that Page 4331 there is no right to representationby somebody else unless the rules or regulation andstanding orders, if any, regulating the conduct of https://hcservices.ecourts.gov.in/hcservices/ disciplinary proceedings specifically recognize such aright and provide for such representation (See N.Kalindi v. Tata Locomotive & Engg. Co. Ltd. (AIR 1960SC 914), Dunlop Rubber Co. (India) Ltd. v. Workmen(AIR SC 1392), Crescent Dyes and Chemicals Ltd. v. RamNaresh Tripathi (1993 SCC (L&S) 360), and IndianOverseas Bank v. Indian Overseas Bank Officers'Association and Anr. (2002 SCC (L&S) 1043).8. "27. The basic principle is that an employeehas no right to representation in the departmentalproceedings by another person or a lawyer unless theService Rules specifically provide for the same. Theright to representation is available only to theextent specifically provided for in the Rules. Forexample, Rule 1712 of the Railway establishment Codeprovides as under:The accused railway servant may present his case withthe assistance of any other railway servant employedon the same railway (including a railway servant onleave preparatory to retirement) on which he isworking.28. The right to representation, therefore,has been made available in a restricted way to adelinquent employee. He has a choice to be representedby another railway employee, but the choice isrestricted to the Railway on which he himself isworking, that is, if he is an employee of the WesternRailway, his choice would be restricted to theemployees working on the Western Railway. The choicecannot be allowed to travel to other Railways."Therefore, the contention asif the petitioner was not permitted to havean effective defence on comparison with the representative of the employerhas to be rejected as it was done by the Industrial Tribunal.19. The reliance placed by the learned counsel appearing for thepetitioner, on the judgment of the Supreme Court in C.L. Subramaniam vs.Collector of Customs, Cochin (1972 (1) L.L.J. 465), is also not applicableto the facts of this case. That was a case, where, while construing Rule15 (5) of the Central Civil Services (Classification, Control and Appeal)Rules, 1957, the Apex Court has held in the following terms:"The disciplinary authority may nominate any person topresent the case in support of the charges before theauthority inquiring into the charges (hereinafterreferred to as the Inquiring Authority). TheGovernment servant may present his case with theassistance of any Government servant approved by thedisciplinary authority, but may not engage a legalpractitioner for the purpose unless the personnominated by the disciplinary authority as aforesaidis a legal practitioner or unless the disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority, having regard to the circumstances of thecase, so permits. "When the Government has appointed one Mr. Shivaraman, a trained PoliceProsecutor to present the case of the Establishment, the Supreme Court hasheld that the request of the delinquent officer to be assisted by thelegal practitioner is not irrelevant.20. About the next contention regarding non-furnishing of the reportof Handwriting Expert, viz., Sri. D.R. Rohilla, Senior Scientific Officer,a reference to the entire record shows that the report of the HandwritingExpert has never been relied upon by the Tribunal or the DisciplinaryAuthority and such report has also not been produced before the Tribunal.In such circumstances, I do not think that there is any infirmity in theproceeding in non-furnishing of the said report. When the report has notbeen relied upon by the Management at all simply because he was one of thewitnesses in the charge memo, who was neither examined nor the reportrelied upon, such fact will not give any right on the part of thedelinquent to ask for copy of such report since that will be only anunnecessary formality. Likewise, the report of the Inspector of Police,who was examined as PW.10 in the domestic enquiry has not also been reliedupon anywhere, and therefore the question of submitting the copies of suchreport to the petitioner has not affected the validity or otherwise of thedisciplinary proceedings. On the other hand it is not in dispute thatthe said PW.10 was subjected to cross examine by the petitioner. Areference to the charge shows that is not a mere criminal conduct ofmisappropriation, or violation of Rules, but also patent error committedby the petitioner. On the face of it as I have enumerated above, viz.,that a ticket was produced in respect of train which was not at allrunning on the said date and in spite of it the petitioner has chosen tomake refund, which cannot be taken lightly by the establishment and insuch cases when an entry is made by the petitioner as if he has refundedthe amount of Rs.10,070/- there is no other go than inferring that it isfor the benefit of the petitioner. As pointed out by the Supreme Court inA. Sudhakar vs. Postmaster-General, Hyderabad (2006 (2) L.L.N. 540) on thetotality of the entire situation, as I have stated above by not supplyingthe said reports of the Handwriting Expert as well as the report of theC.B.I. Inspector, it has not resulted in denial of justice to thepetitioner at all. It is due to the reason that the reports are notrelied upon by the establishment and they were not relevant for thecharges framed against the petitioner at all. The Supreme Court, in theabove said case has laid down the procedural principal in respect ofArticle 311 (2) of the Constitution explaining about the proceduralrequirements to be followed in the Departmental Enquiry which are asfollows:(i)opportunity to the officer concerned to deny hisguilt and establish his innocence which means he mustbe told that what the charges against him are and theallegations on which such charges are based;(ii)he must be given a reasonable opportunity tocross-examine the witnesses produced against him andexamine himself or other witnesses on his behalf; and https://hcservices.ecourts.gov.in/hcservices/ (iii)he must be given opportunity to show cause thatthe proposed punishment would not be properpunishment to inflict which means that the tentativedetermination of the competent authority to inflictone of the three punishments must be communicated tohim. "On the facts and circumstances of the case all the said requirementshave been complied with and therefore there is absolutely question of anyinfirmity in the domestic enquiry or in the disciplinary proceedings andtherefore the findings of the Industrial Tribunal cannot be treated to beperverse and therefore, the writ petition fails and the same is dismissed.However, there will be no order as to costs.KhSd/Asst.Registrar/true copy/Sub Asst.Registrar To1. General Manager Southern Railway Madras.2. Presiding Officer Central Government Industrial Tribunal-cum-Labour Court Sasthiri Bhavan Nungambakkam, Chennai.1 cc to M/s.Balan Haridas Advocate SR.NO.42690TM (co)RD 21.7.07Pre-delivery Order inWrit Petition No.13196 of 2001