Mr.Shantanu Basu Vs. Uoi and ors. - Court Judgment

Excerpt:
$~26 * in the high court of delhi at new delhi % date of decision : april 18, 2013 + w.p.(c) 2503/2013 mr.shantanu basu ..... petitioner represented by: mr.a.k.thakur, advocate with mr.r.k.mishra, advocate versus uoi & ors. represented by: ..... respondents ms.h.hnunpull, advocate for r-1 coram: hon'ble mr. justice pradeep nandrajog hon'ble mr. justice v. kameswar rao pradeep nandrajog , j.(oral) cm no.4744/2012 allowed; subject to just exceptions. w.p.(c) 2503/2013 1. the petitioner has two issues. the first pertains to the office memorandum dated february 16, 1971 which requires that inquiries under ccs (cca) rules, 1965 should be entrusted to officers who are sufficiently senior to the officers whose conduct is being inquired. the second is to be permitted a legal practitioner as the defence assistant at the inquiry.2. the petitioner is a member of the indian audit and accounts service. he is of the year 1984 batch. the inquiry officer is one shri v.ravindran, an officer of the indian audit and accounts service, but of 1983 batch. both hold equivalent posts.3. the view taken by the central administrative tribunal is that under the ccs (cca) rules, 1965 anybody can be appointed as the inquiry officer.4. the sweeping statement made by the tribunal cannot be accepted for the reason the purpose of an inquiry is to bring out the truth and this would mean that the inquiry officer should be a person who can act without any fear and has no debts or favours to repay. a subordinate officer cannot be the inquiry officer against his superior officer for the reason the superior office may be the initiating officer or the accepting officer pertaining to his acrs, and this may influence the inquiry officer.5. in the instant case we find that shri v.ravindran is senior to the petitioner. the non-binding office memorandum relied upon by the petitioner lays down a guiding principle that the inquiry officer should be senior to the officer whose conduct is under inquiry. seniority does not mean higher in rank. the draftsman of the office memorandum would be expected to know the different between seniority and post. if the intention was to require that the inquiry officer should be in the higher post, it would have been so worded.6. on the second subject, suffice would it be to state that law regulates representation during inquiries and has been settled by the supreme court. nobody has a right to be represented through lawyers before domestic foras, unless by way of exception the situation so warrants. for example, if the presenting officer is a law graduate, the defence may claim a right to be represented by a legal practitioner. or, when complicated issues of law and/or facts arise for determination.7. the tribunal has held that the petitioner has not been able to show as to what complicated issues of law and/or fact arise for consideration. we have repeatedly asked learned counsel for the petitioner as to whether other than using the jargon that complicated issues of law and fact arise in view of the charge-sheet issued, can he point out any one such complicated issue arising. learned counsel has been able to show none.8. at this stage learned counsel states that as observed by the tribunal, let the petitioner be permitted to make a representation to the disciplinary authority on the two points urged by him. but when questioned, why was the writ petition filed and why is the counsel is arguing the two points and not praying that the petition be dismissed as not pressed, counsel reiterates the two submissions and seeks a decision.9. the petitioner cannot eat a cake and have one too. the writ petition is dismissed in limine but without any order as to costs. cm no.4743/2013 dismissed as infructuous. (pradeep nandrajog) judge (v. kameswar rao) judge april 18 2013 skb

Judgment:
$~26 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : April 18, 2013 + W.P.(C) 2503/2013 MR.SHANTANU BASU ..... Petitioner Represented by: Mr.A.K.Thakur, Advocate with Mr.R.K.Mishra, Advocate versus UOI & ORS. Represented by: ..... Respondents Ms.H.Hnunpull, Advocate for R-1 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE V. KAMESWAR RAO PRADEEP NANDRAJOG , J.

(Oral) CM No.4744/2012 Allowed; subject to just exceptions. W.P.(C) 2503/2013 1. The petitioner has two issues. The first pertains to the Office Memorandum dated February 16, 1971 which requires that inquiries under CCS (CCA) Rules, 1965 should be entrusted to officers who are sufficiently senior to the officers whose conduct is being inquired. The second is to be permitted a legal practitioner as the Defence Assistant at the inquiry.

2. The petitioner is a member of the Indian Audit and Accounts Service. He is of the year 1984 batch. The Inquiry Officer is one Shri V.Ravindran, an officer of the Indian Audit and Accounts Service, but of 1983 batch. Both hold equivalent posts.

3. The view taken by the Central Administrative Tribunal is that under the CCS (CCA) Rules, 1965 anybody can be appointed as the Inquiry Officer.

4. The sweeping statement made by the Tribunal cannot be accepted for the reason the purpose of an inquiry is to bring out the truth and this would mean that the Inquiry Officer should be a person who can act without any fear and has no debts or favours to repay. A subordinate officer cannot be the Inquiry Officer against his superior officer for the reason the superior office may be the initiating officer or the accepting officer pertaining to his ACRs, and this may influence the Inquiry Officer.

5. In the instant case we find that Shri V.Ravindran is senior to the petitioner. The non-binding Office Memorandum relied upon by the petitioner lays down a guiding principle that the Inquiry Officer should be senior to the officer whose conduct is under inquiry. Seniority does not mean higher in rank. The draftsman of the Office Memorandum would be expected to know the different between Seniority and Post. If the intention was to require that the Inquiry Officer should be in the higher post, it would have been so worded.

6. On the second subject, suffice would it be to state that law regulates representation during inquiries and has been settled by the Supreme Court. Nobody has a right to be represented through lawyers before domestic Foras, unless by way of exception the situation so warrants. For example, if the Presenting Officer is a Law Graduate, the defence may claim a right to be represented by a legal practitioner. Or, when complicated issues of law and/or facts arise for determination.

7. The Tribunal has held that the petitioner has not been able to show as to what complicated issues of law and/or fact arise for consideration. We have repeatedly asked learned counsel for the petitioner as to whether other than using the jargon that complicated issues of law and fact arise in view of the charge-sheet issued, can he point out any one such complicated issue arising. Learned counsel has been able to show none.

8. At this stage learned counsel states that as observed by the Tribunal, let the petitioner be permitted to make a representation to the disciplinary authority on the two points urged by him. But when questioned, why was the writ petition filed and why is the counsel is arguing the two points and not praying that the petition be dismissed as not pressed, counsel reiterates the two submissions and seeks a decision.

9. The petitioner cannot eat a cake and have one too. The writ petition is dismissed in limine but without any order as to costs. CM No.4743/2013 Dismissed as infructuous. (PRADEEP NANDRAJOG) JUDGE (V. KAMESWAR RAO) JUDGE APRIL 18 2013 skb