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You may visit following blogs:
- 'Quality Concepts and ISO 9001:2008 QMS Awareness' at http://iso9001-2008awareness.blogspot.in/
- 'ISO 9001 QMS Awareness' Blog in Hindi at http://iso9001awareness.blogspot.in/
- 'EMS Awareness' Blog at http://emsawareness.blogspot.in/
- Blog on 'Forthcoming ISO 9001:2015 QMS Awareness' at http://qmsawareness.blogspot.in
With best wishes,

Saturday, August 24, 2013

FREQUENTLY ASKED QUESTION - 11



Whether in all cases charge-sheeted employees would be allowed to be represented by lawyers in departmental inquiries? If not, when would a refusal to allow an employee to be represented by a lawyer in a departmental inquiry amounts to violation of the principles of natural justice?

The question as to whether the rules of natural justice entitle an employee to be represented by a lawyer or by a union representative as his defence representative in departmental inquiry proceedings is not free of difficulty. In fact, initial view was that retention of the simplicity of procedure was necessary in departmental inquiries as such, the involvement of lawyer in such proceedings was strongly disapproved because it was felt that it would contribute increased formality and delayed hearings. Though legal representation is not an essential element of natural justice in all cases and even the courts generally do not actively encourage participation by lawyers in departmental inquiries. Courts in many cases held the view that denial of legal representation to a charge-sheeted employee would not vitiate the inquiry. The courts also observed that where in a departmental inquiry the charge-sheeted employee is pitted against a legally trained mind, if the charge-sheeted employee seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of reasonable request to defend him and the essential principles of natural justice would be violated. As such, though ordinarily courts discourage the involvement of legal practitioners in departmental inquiries in order to avoid delay and complexities, nonetheless, the court cannot ignore that in exceptional cases a representation by lawyer is necessary, for otherwise there may be failure of the inquiry itself and a denial of a proper and effective defence. Sometimes in departmental inquiries, charges made against the charge-sheeted employee are very serious in nature viz. charges of misappropriation, fraud, etc. Offences of misappropriation and fraud are not so simple in nature and involve serious question of law that require to be properly dealt with. Therefore, the adequate adjudication of the question will necessitate the help of persons who are legally trained and if the delinquent employee is not permitted to be represented in the departmental inquiry by a lawyer, he will be prevented from making an effective and proper defence and thereby, ultimately, the principles of natural justice will be violated.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority