SHARMA, J. - (1.) THE petitioner appellant hereinafter to be called as "the petitioner") employed as a Development Officer, Branch-II with the respondent National Insurance Company and was posted in the Divisional Office at Udaipur. He was charge sheeted on 8. 9. 1999 and the respondent No. 3 was appointed as enquiry officer, but before regular inquiry could proceed the petitioner apprehending injustice at the instance of enquiry officer, moved an application before the competent authority with a request to change the enquiry officer. THE competent authority declined his request and the respondent No. 3 continued as enquiry Officer. THE petitioner's further request for appointment of Shri K. C. Shukla as his Defence Assistant was also declined.
(2.) FEELING aggrieved by the action of the respondents in not changing the enquiry officer and disallowing the participation of Shri K. C. Shukla as his defence nominee on the ground that he is a retired employee and that a retired employee cannot be allowed to represent the delinquent, the petitioner preferred a writ petition bearing No. 3864/2000. The learned Single Judge after hearing learned counsel for the parties and considering the documents on record partly allowed the writ petition, thereby accepting the prayer of the petitioner for change of enquiry officer and refusing to allow a retired employee participate in the enquiry proceedings as the petitioner's defence assistant. Hence this special appeal. Mrs. Naina Saraf, learned counsel appearing on behalf of the petitioner contended that the petitioner is legally entitled to seek the assistance of a retired employee of the respondent company to defend him during the enquiry proceedings and the learned Single Judge has rejected the aforesaid prayer by wrongly interpreting Rule 25 of the Rules. She has vehemently submitted that a retired employee can very well be allowed to participate as a defence assistant for the delinquent even as per the provisions of sub-rule (6) of Rule 25 of the Rules. Learned counsel then submitted that while disallowing the prayer of the petitioner to allow him to engage a retired employee in his defence, the learned Single Judge has given very narrow interpretation to the word "employee". She has submitted that the only intention of the rules making authority was that legal practitioner should not be allowed to participate as defence assistance in the enquiry proceedings, and, therefore, the delinquent may take the assistance of any employee except a legal practitioner. She has submitted that a perusal of the language of Rule 25 (6) would make it clear that there cannot be any impediment in taking the assistance of a retired employee. The rules should be given wider interpretation. If two reasonable interpretation are possible, the court should adopt reasonable and just construction. In support of her argument, learned counsel has a relied upon a decision of this court in Devi Ram vs. The Union of India (1 ). It has also been submitted by the learned counsel for the petitioner that the petitioner has been subjected to hostile discrimination inasmuch as Shri K. C. Shukla, whom the petitioner wanted to engage his defence assistant has been allowed to appear as a defence assistant in the departmental enquiry against one Shri Anil Baxi. On the other hand, Mr. Alok Sharma, appearing on behalf of the respondents No. 1 and 2 has controverted the aforesaid arguments and submitted that the petitioner has no legal or vested right to ask for the services of a retired employee as a defence assistant to assist him in disciplinary proceedings against him in the light of the language of sub rule (6) of Rule 25 of the Rules. which specifically provides that an employee may take assistance of any other employee but may not engage a legal practitioner for the purpose. He submitted even if the rule does not specifically restrict a retired employee of the company to be engaged as a defence assistance to assist the delinquent, it is not for the court to rectify the same by making its own addition. He has also submitted that since Mr. Shukla stood retired, he cannot be considered to be an employee of the respondent company. For an employee it is essential that relationship of master and servant should exist with the employer. In support of his above submission learned counsel has placed reliance on ESI Corporation vs. Tata Engineering & Locomotive Company Ltd. (2), & P. M. Patel & Sons vs. Union of India
(3.) AS regards the argument of the learned counsel for the petitioner about violation of Article 14 & 16 of the Constitution of India, learned counsel for the respondent submitted that any illegality, if committed should not be allowed to be perpetuated. He submitted that if any illegality or irregularity has been committed by the respondent company in allowing the services of a retired employee as a defence assistance in some other case, the petitioner cannot claim the same illegality or irregularity on the ground of denial. In support of his submission, learned counsel has referred to a decision of the Apex Court in Gursharan Singh & Others vs. New Delhi Municipal Committee & Others We have considered the rival contentions of the learned counsel for the parties and have perused the impugned order of the learned Single Judge and the record of the case. The only question that arises for consideration of this court is, as to whether a retired employee of the company can be permitted to appear as a defence assistant to defend the delinquent in the inquiry proceedings? ;