Lawyer's assistance in domestic inquiries

Representation by lawyer in a departmental inquiry:

The question often arises as to whether the delinquent should be allowed to hire the services of the lawyer for the purpose of effective representation in a departmental inquiry. This would depend upon the “language of the statutory rules” governing the departmental inquiries. And generally, the rule making authority bestows the discretion upon the Disciplinary authority, either to allow the delinquent to engage a lawyer, or to decline. There is however, no blanket rule or a precedent to the effect that a delinquent should be allowed the services of lawyers in every departmental inquiry.

What the judiciary has interpreted is that if the charge or an allegation being faced by the delinquent is very serious, or where the documentary evidence is voluminous requiring expert skill to examine and to cross examine the witnesses, or where there may appear substantial issues relating to proper interpretations, or where the inquiry officer and or the presenting officer are legally trained to conduct such quasi-judicial inquiries and developed an art of examining and cross examining the delinquents, the judiciary would normally allow the delinquent, a representation by a lawyer in such categories of cases.

As far as the legal position is concerned, it may be stated that in United States, the legal representation is permitted to secure fair play in action in view of the provision of "due process clause" under the Constitution coupled with the fact the administrative procedure Act makes such right effective and meaningful. Australia is more liberal and it accepted the same as a rule before the tribunals. England covers up the same as rule of "natural justice".

The assistance of lawyer is permitted throughout the world. The reason to allow the representation by lawyer in a complicated departmental inquiry against an employee is to secure “fairness in action” and to grant an effective opportunity of defence.

Lord Denning in Pett's Case1 observed that:

"I cannot accept this connotation. The Plaintiff is here facing a serious charge. He is charged either with giving the dog drugs or with not exercising proper control over the dog so that someone else drugged it. If he is found guilty, he may be suspended or his license may not be renewed. The charge concerns his livelihood. On such an inquiry I think that he is entitled not only to appear by himself but also appoint an agent to act for him. Even a prisoner can have his friend.. I should have thought therefore, that when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by counsel or solicitor.”

Even in India, the assistance of lawyer is now accepted as a “due process”. The Indian Supreme Court has had an opportunity to interpret the principle of fairness enshrined under Article 14 of the Constitution of India and it has specifically laid down that no action of the Government should be unjust, unfair, unreasonable or arbitrary. Comparatively, the new judicial dimension followed the line indicated by Lord Denning in the foregoing cases. Here, the discretion is made subject to judicial review. The review is undertaken on various factors. They have now said that not exercising such discretionary powers would violate the principles of natural justice.

Every Governmental body or institution has its own set of rules that provide discretionary jurisdiction to the authorities either to allow or not to allow the assistance of lawyer. Taking the illustration of service jurisprudence, the manner is provided as to how the inquiry should be conducted and how to exercise the discretion for extending permission to hire a lawyer. Rules provide that normally the employees may be allowed to retain a representative of their choice, but in harder cases, even the lawyers are also permitted to be engaged in a departmental inquiry.

Justice D. A. Desai in case of the Board of Trustees of the port of Bombay2 had the occasion to interpret Regulation 12 (8) of the Bombay Port Trust Employees’ regulations of 1976. The said regulation reads like this:

“The employee may take the assistance of any other employee or, if the employee is a Class III or a Class IV employee, of an “Office-Bearer” as defined in Clause (d) of Section 2 of the Trade Unions Act, 1926 (16 of 1926) of the union to which he belongs, to represent the case on his behalf, but may not engage a real precaution practitioner for the purpose unless the said Presenting Officer appointed by the disciplinary authority, having regard to the circumstances of the case, so permits.”

The Court observed that:

“Where in an inquiry 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.

Supreme Court approvingly quoted Lord Denning and held that:

“The trend therefore is in the direction of permitting a person who is likely to suffer serious civil or pecuniary consequences as a result of an enquiry, to enable him to defend himself adequately, he may be permitted to be represented by a legal practitioner…”

And lastly the Court in Para 12 observed that: -

“In our view we have reached a stage in our onward march to fair play in action.”

Thus the Indian Supreme Court has accepted that refusal to permit a lawyer in a domestic inquiry would offend the “principles of natural justice”. Setting finally, the Court employed the clinching language that “We have reached a stage in our onward march to fair play in action.” And while deciding the issue, the Court ruled that when the delinquent is to suffer serious civil or pecuniary consequences, such request would be reasonable and must be entertained.

In A. J. Vaswani3 the facts were gross arising out of Custom Department where the officers developed an art of examining and cross examining the variety of persons and discharging quasi-judicial functions. Due to complicated issues in inquiry, the Court held that non-granting of such assistance in departmental inquiry suffers from serious infirmity of principles of natural justice. That shall mean that where the facts are so complicated or a trained officer is conducting the inquiry such assistance is fundamentally covered under the well-founded principles of natural justice.

Author: Hemang D. Rana

For DS Rana & Associates, Advocates

Hemang D. Rana & Co,

Advocates