LEGAL PRACTITIONER AS A DR
A departmental inquiry is mostly carried out on the basis of the rules laid down by the management of organizations. The first and the foremost guideline to hold a departmental inquiry is to abide by the principles of 'natural justice'. It is mandatory for the IO to play fair. The IO should always keep in mind that the proceedings should be carried out properly without any arbitrariness. Fair opportunity should be given to both the parties involved in the departmental inquiry. Can an employee demand a representation by a legal practitioner as a matter of right in the departmental inquiry? On a number pf occasions courts persisted that representation is not a matter of right to the employee, however they opined that one must not forget that departmental inquiries which are undertaken are not inquiries in the court of law, and in such inquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by an employee or not is to be considered.
The right to be represented through a legal practitioner can be restricted by statutes, rules, regulations or standing orders in this regard. A reasonable extent of help and guidance must be meted out to the employee when a situation like a departmental inquiry comes up. This is because the employee is (or may be) at a disadvantageous and unequal position in industrial relations. Most often we see entire trade union system is crippled through inter-union rivalries and most employees are not aware of the legal technicalities in such inquiry proceedings. Wherein an inquiry, the charged employee is pitted against a legally trained mind, the refusal to grant him permission to appear through a legal practitioner would amount to denial of a reasonable request and violation of essential principles of natural justice.
There are certain circumstances which may warrant representation by a legal practitioner and if the opportunity is not given to the employee, this would amount to unfair labour practices and violation of natural justice. The circumstances are as follows:
(i) Where the PO is a legally trained personnel
(ii) Where the service rules confer discretion in the IO or DA to permit the charged employee to be represented by a legal practitioner
(iii) Where the facts of the inquiry case are complicated and the gravity of charges are high and the employee is not educated or skilled enough to handle such situation then a legal practitioner may be allowed to defend him.
The right of representation of a charged employee by a legal practitioner is only a small step in ensuing justice and fairness in departmental inquires.
With best wishes,
Keshav Ram Singhal
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IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority