Appeal No 11 of 1971
Appeal by Special Leave from the judgment and order dated March 26 1970 of the Kerala High Court in Writ Appeal No 197 of 1968
Appellant appeared in person
Gobind Dass and section P Nayar for the Respondent
The Judgment of the Court was delivered by Hedge J
 This is an appeal by special leave
The appellant was a Preventive Officer Grade 11 Customs Office Cochin from June 16 1962 to January 31 1963
In April 1962 he applied to the Assistant Collector of Customs seeking permission to allow his wife to run a taxi service
He was informed that no permission was necessary for his wife to operate a taxi service but he should not canvass any business for his wife
Thereafter it is said that the appellant acting on behalf of his wife purchased some cars which were used as taxis
It appears that there were several complaints against the appellant to the effect that he was canvassing business for his wife
Those complaints were enquired into
Thereafter on March 25 1963 the appellant was served with  a memorandum stating that while functioning as Preventive Officer Grade II Cochin Customs House during the period June 1962 to January 31 1963 he had contravened the provisions of rule 121 of the Central Civil Services Conduct Rules 1955
The factual allegation made against the appellant was that he canvassed business for his wife
He was told that an enquiry will be held against him on the basis of that charge
Sri H T Soares Assistant Collector Customs House Cochin was appointed as the Enquiry Officer
During the pendency of the enquiry an additional ground in support of the charge was 487 served on the appellant to the effect that he himself was running the taxi service
After enquiry the Enquiry Officer came to the conclusion that the allegations made against the appellant were established and consequently he was guilty of contravening rule 121 of the Central Civil Service Conduct Rules 1955
The Enquiry Officer recommended appellant s removal from service
On the basis of that recommendation the Disciplinary Authority served on the appellant a notice to show cause why he should not be removed from service
The appellant submitted his explana tion
But the same was not accepted by the Disciplinary Authority
In the result the appellant was ordered to be removed from service
The appellant challenged that order by means of a petition under article 226 of the Constitution before the High Court of Kerala
His writ petition was first heard by a single judge who dismissed the same and the order of the single _judge was affirmed by a Division Bench of that High Court
Hence this appeal
The appellant personally argued his appeal
He challenged the validity of the order removing him from service on various grounds
As we are of the opinion that the appellant had not been afforded reasonable opportunity to present his case and consequently the impugned order has to be struck down we do not think it necessary to examine other contentions advanced by the appellant
The appellant who was a member of the civil service of the Union of India was holding his office during the pleasure of the President but in view of article 311 of the Constitution he could not have been removed from service except after enquiry in which he had been given a reasonable opportunity of being heard in respect of the charge levelled against him
This procedural guarantee is undoubtedly a valuable one
Breach of that guarantee vitiates the enquiry
Removal from service is a major penalty
Procedure for imposing major penalties is prescribed in rule 15 of the Central Civil Services Classification Control and Appeal Rules 1957 a rule framed under article 309 of the Constitution
Sub rule 5 of that rule provides The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges herein  after referred to as the Inquiring Authority
The Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority but may not engage a legal practitioner for the purpose unless the person nominated by 488 the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority having regard to the circumstances of the case  so permits
 This rule bears upon the reasonable opportunity contemplated by article 311
The validity of this rule was not challenged
Hence all that we have to see is whether the rule had been complied with
For deciding this question it is necessary to refer to the relevant facts
In September 1963 one A M Shivaraman was appointed as the officer to present the case before the Enquiry Officer in support of the allegations made against the appellant
The said Shivaraman was a trained police prosecutor
After he was appointed to present the case in support of the allegations made against the appellant the appellant wrote to the Collector of Customs Cochin the Disciplinary Authority on October 4 1963 as follows  From  C L Subramanlam Preventive Officer Customs House Cochin 3
TO The Collector of Customs Customs House Cochin 3
Sir Sub  Sec
163 Estt Cus dated 30th September 1963
In the above memorandum it is stated in paragraph 4 that Shri A M Sivaraman as the officer to present the case in support of the allegations against me before the Enquiry Officer
I understand that Shri A M Sivaraman is legally trained to conduct such prosecutions
Under such circumstances I will be prejudiced in my defence unless I am permitted to engage a counsel to appear and defend me during the enquiry
Hence I request that permission be accorded to engage a lawyer of my choice to represent and defend the charges before the Enquiry Officer
Cochin 3 4 10 1963 Yours faithfully Sd C L Subramaniam
He again reiterated his request for permission to engage a counsel to defend him in his letter to the Assistant Collector on 489 October 9 1963
Thereafter he again wrote to the Collector of Customs on October 14 1963 as follows It may help me very much too if you can grant the permission I have sought for engaging a Counsel of my choice at an early date so that I could get the Counsel s assistance for the inspection of documents too
 On October 17 1963 Sri Scares Assistant Collector of Customs wrote to the appellant thus Secret 1163 Est
Cus Custom House Cochin 3 17th September 1963 From The Assistant Collector of Customs Appraising Department Customs House Cochin 3 TO Shri CL Subramaniam Preventive Officer Custom House Cochin 3
Sub  Establishment Inquiry into the work and conduct of Shri C L Subramaniam Preventive Officer Custom House Cochin
With reference to your letter Sc
163Estt
Cus dated 14th October 1963 requesting permission for engaging a counsel to appear and defend you during the enquiry I am directed by the Collector to inform you that although Shri A M Sivaraman is illegally trained he is not a legal practitioner and hence there is no necessity for engaging a lawyer to defend you at the enquiry
Sd H T Soares Assistant Collector of Customs
It is clear from that letter that the Disciplinary Authority had overlooked the fact that the appellant sought permission to engage counsel not because Sivaraman wag a legal practitioner but because he was trained prosecutor
On January 6 1964 the appellant again wrote to the Collec tor of Customs explaining his difficulties in defending himself
In Paragraph 4 of that letter the appellant stated In the nature of accusations made against me and the nature of their widespread source the importance 490 of the informants and their intentions the varying types of witnesses supporting the charge the complicated nature of the evidence the inexperience I have in assessing the impact of such evidence and in sifting the evidence for preparing an effective cross examination and above all the lurking conspiracy of a series of persons whom I have to deal with firmly in discharging my duties as a Preventive Officer all these when con sidered can lead you to the only conclusion that if I am denied the assistance of an experienced counsel at the enquiry it would be tantamount to denial of an opportunity to defend myself and prove my innocence
This would be particularly so in the conte xt of the present enquiry where evidence have sought to be brought in by different stages and alleged incidents subsequent to the charges are sought to be proved in support of the allegations made before such incidents Despite these communications the appellant was not give permission to engage a legal practitioner to defend himself Therefore the question arises whether the appellant was give reasonable opportunity to defend himself in accordance with sub rule 5 of rule 15 of the Central Civil Services Classification Control and Appeal Rules 1957
The portion of that rule that is relevant for our present purpose is the last clause which say that the Government servant may not engage a legal practitioner for the purpose mentioned in that clause unless the Disciplinary Authority having regard to the circumstances of the case so permits
The grievance of the appellant was that he was pitted again a trained prosecutor and not that Sivaraman was a legal practitioner
The Disciplinary Authority did not consider that grievance
It brushed aside the request of the appellant on the ground that Sivaraman was not a legal practitioner a consideration which was not relied on by the appellant
The grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant
The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against him
The Disciplinary Authority completely ignored that circumstance
Therefore that authority clearly failed to exercise the power conferred on it under the rule
It is not unlikely that the Disciplinary Authority s refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend him self
491 The appellant contended that he had a right to engage a legal practitioner to defend him
He sought to spell out that right on the basis that what he could himself do he could get it done by an agent of his and a legal practitioner acting for him would only have been his agent
In support of his contention he placed reliance on the decision in Pet vs Greyhound Racing Association Ltd4
The facts of that case were as follows Track stewards of a greyhound racing stadium owned by the defendants proposed to hold an inquiry into the withdrawal of a trainer s dog from a race at a stadium licensed by the National Greyhound Racing Club
The inquiry involved the question whether drugs had been administered to the dog
The trainer held a licence from the National Greyhound Racing Club entitling him to race dogs on tracks licensed by the club and thus the result of the inquiry might involve the trainer s reputation and livelihood
The rules of the club to which the trainer had agreed when he obtained his licence did not prescribe the procedure to be followed by track stewards at their inquiries and did not exclude legal representation
The procedure in fact followed at such an inquiry allowed the trainer to be present to hear the evi dence and to have an opportunity to question witnesses
The trainer sought to be represented by counsel and solicitor at the enquiry but the track stewards decided ultimately not to allow legal representation
On appeal from the grant of an interlocutory injunction restraining the inquiry from being held unless the trainer were allowed to be represented the Court of Appeal held that prima facie the trainer was entitled to an oral hearing and the inquiry being one of serious importance to him to be represented as it by counsel and solicitor for he was entitled not only to appear himself but also to appoint an agent on his behalf and so was entitled to appoint lawyers to represent him
Lord Denning M R who delivered the main judgment of the court in the course of his judgment dealing with the decision of stewards that they will not hear lawyers observed I cannot accept this contention
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 licence may not be renewed
 The charge concerns his reputation and his livelihood
On such an inquiry I think that he is entitled not only to appear by himself but also to appoint an agent to act for him
Even a prisoner can have his friend
 1 492 Proceeding further the Master of Rolls observed 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
 This decision in our opinion does not bear on the point under consideration
Herein we are dealing with a statutory rule which prohibits the appointment of a legal practitioner excepting under certain circumstances
Hence the agency theory has no relevance nor are we required to consider the principles of natural justice as those principles are only relevant when the concerned procedure is not regulated by any statute or statutory rule
The rule laid down in Pet s case1 has not commended itself to this Court
In Kalindi and ors
vs Tata Locomotive and Engineering Co Ltd2 a question arose whether in an enquiry by management into misconduct of a workman the workman was entitled to be represented by a representative of the Union
Answering this question this Court observed that a workman against whom an enquiry is being held by the management has no right to be represented at such an enquiry by a representative of the Union though the employer in his discretion can and may allow him to be so represented
In such enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not fall to be considered and the workman is best suited to conduct the case
Ordinarily in enquiries before domestic tribunals a person accused of any misconduct conducts his own case and so it cannot be said that in any enquiry against a workman natural justice demands that he should be represented by a representative of his Union
The same view was taken by this Court in Brooke Bond India Private Ltd vs Subba Raman S and anr3
That view was reiterated again in Dunlop Rubber Co vs Workmen 4 
The learned counsel for the State relied on the decisions mentioned above in support of his contention that the appellant was not entitled to have the assistance of a legal practitioner
This contention is without force
In those cases this Court considered whether a person proceeded against in an enquiry before a domestic tribunal had a right to be represented by someone else on the basis of the principles of natural justice
Therein this Court was not called upon to consider either the limits of the reasonable opportunity to defend oneself guaranteed under article 311 or the scope of a statutory rule
The question that falls for decision in this case did not arise for decision in those cases
1 3 2  4  493 The appellant supported his complaint of breach of rule 15 5 on yet another ground
After the appellant s request for engaging a counsel was rejected he requested the Disciplinary Authority to let him have the assistance of Abraham Kurian clerk Cochin Head Post Office Cochin 1
This request he appears to have made long before the date of enquiry ie December 5 1963
He had also requested the Disciplinary Authority to move the superiors of Abraham Kurian to grant permission to Abraham Kurian to assist him 
But it appears the Disciplinary Authority wrote to the Superintendent of Post Offices who is stationed at Trichur only on the 28th of November 1963 requesting him to permit Abraham Kurian to assist the appellant
That communication was not received by the Superintendent of Post Offices in time
Hence Abraham Kurian did not get the permission sought before the date of enquiry
After learning that fact from Abraham Kurian the appellant wrote the following letter to the Collector of Customs on December 4 1963
Sec 1163Estt Cus
No 16 Customs Quarters Willingdon island PO Cochin 3
4th December 1963
From C L Subramaniam Preventive Officer Gr
II Customs House Cochin 3
To The Collector of Customs  Central Excise Custom House Cochin 3
Sir Sub Enquiry into the work and conduct of Shri C L Subramaniam Preventive Officer Custom House Cochin 3
With reference to your letter dated 3rd December 1963 wish to submit as follows Shri Abraham Kurian Clerk Cochin Head Post Office who is to assist me in the enquiry from 5 12 1963 in connection with certain allegations pending against me has urgently applied to his superior yesterday itself and is awaiting permission
494 As I cannot appear for the enquiry without assistance I re quest you Sir to adjourn the hearing by 10 days
Thanking you I remain Sir Yours faithfully Sd C L Subramaniam
 On the date of the enquiry the Enquiry Officer adjourned the case sine die after obtaining an undertaking from the appellant that on the next date of the enquiry he would go on with the case even if he was unable to get the assistance of Abraham Kurian on that date
On December 9 1963 the appellant wrote to the Enquiry Officer as follows Sec
No 1163 Estt
9th December 1963 From C L Subramaniam Preventive Officer Custom House Cochin 3
To  The Asstt
Collector of Customs Apprg Enquiry Officer Custom House Cochin 3
Sir Sub  Enquiry into the work and conduct of Shri C L Subramaniam Preventive Officer Custom House Cochin
I understand from a communication from the Senior Super intendent of Post Offices Trichur addressed to the Assistant Collector of Customs Apprg Custom House Cochin with copy endorsed to Shri Abraham Kurian that your communication informing that the enquiry was to have been held from 5 12 1963 was received by the Senior Superintendent of Post Offices only on 5th December 1963 and therefore the relief arrangement could not be made by him
Now that the enquiry is adjourned it is requested that you may be good enough to inform the Senior Superintendent of Post Offices Trichur Superior Officer of the Government who assists 495 me sufficiently early as to the date of the enquiry so that he may relieve the Government servant in time
It is humbly pointed out that unless your goodself take necessary action in time in this regard it may not be possible to get me the assistance I have requested for
Yours faithfully Sd 9 12 63 C L Subramaniam Even after getting this letter the Enquiry Officer did not fix the date of the enquiry
It appears that on December 30 1963 the Enquiry Officer fixed January 8 1964 as the date of enquiry
It is only thereafter he wrote to the Superintendent of Post Offices requesting him to permit Abraham Kurian to assist the appellant
It is not known when that letter was received by the Superintendent of Post Offices but Abraham Kurian did not get the permission sought before the date of enquiry
Therefore he was unable to assist the appellant in the enquiry
Hence the enquiry went on without the appellant having anybody s assistance
From the facts set out above it is clear that the Enquiry Officer did not afford the appellant necessary facility to have the assistance of another Government servant in defending him which assistance he was entitled to under the rule
He was deprived of that assistance solely because of the indifferent attitude adopted by the Enquiry Officer
Therefore we have no hesitation in coming to the conclusion that the Enquiry Officer had clearly breached rule 155
It is needless to say that rule 15 is a mandatory rule
That rule regulates the guarantee given to Government servants under article 311
Government servants by and large have no legal training
At any rate it is nobody s case that the appellant had legal training
Moreover when a man is charged with the breach of a rule entailing serious consequences he is not likely to be in a position to present his case as best as it should be
The accusation against the appellant threatened his very livelihood
Any adverse verdict against him was bound to be disastrous to him as it has proved to be
In such a situation he cannot be expected to act calmly and with deliberation
That is why rule 155 has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another government servant or in appropriate cases by a legal practitioner
For the reasons mentioned above we think that there had  been a contravention of rule 155
We are also of the opinion 496 that the appellant had not been afforded a reasonable opportunity to defend himself
Hence the impugned order is liable to be struck down and it is hereby struck down
The facts of this case are not such as to justify any fresh enquiry against the appellant
Hence we direct that no fresh enquiry shall be held against the appellant and he be restored to the position to which he would have been entitled to but for the impugned order
The appeal is accordingly allowed
The appellant is entitled to his costs from the respondents both in this Court as well as in the High Court
SC Appeal allowed


Summary:
The appellant a preventive officer applied for permission to allow his wife to run a taxi service
He was informed that no permission was necessary
Thereafter appellant acting on behalf of his wife purchased a few cars which were used as taxis
Later several complaints were made against him to the effect that he was canvassing business for his wife
Enquiry was made and the appellant was served with a memorandum stating that while functioning as Preventive Officer he had contravened the provisions of Rule 121 of the Central Civil Services Conduct Rules 1955
The factual allegation made against him was that he canvassed business for his wife
An Enquiry Officer was appointed
On enquiry the appellant was found guilty of contravening rule 121 of the Central Civil Service Conduct Rules 1955 and his removal from service was recommended
On the basis of that recommendation the Disciplinary Authority served on the appellant a notice to show cause why he should not be removed from service
The appellant submitted his explanation but the Disciplinary was not satisfied and consequently the appellant
was removed from service
The appellant challenged the order by a writ petition which was dismissed both by a single judge as well as by a Division Bench of the High Court
On appeal to this Court it was contended by the appellant that he was not given a reasonable opportunity of being heard in respect of the charge levelled against him and there was a violation of rule 15 of the Central Civil Services Classification Control  Appeal Rules 1957 and article 311 of the Constitution
Hence the order of removal was bad in law One trained police prosecutor was appointed as the officer to present the case before the Enquiry Officer in support of the allegations made against the appellant
Therefore the appellant wrote to the Disciplinary Authority for permission to engage a counsel to defend his case but even after a number of written requests he was not given the permission to engage a legal practitioner to defend himself
Further the appellant was denied the assistance of a government servant
Allowing the appeal HELDi In the facts and circumstances of the case it was clear that the appellant had not been afforded a reasonable opportunity to defend himself
The grievance of the appellant that he was pitted against a trained prosecutor was not considered by the Disciplinary authority
The fact that the case against the appellant was being hand led by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against 3 L1031SupCI72 486 him
The disciplinary authority completely ignored that circumstance
Therefore that authority clearly failed to exercise the power conferred on it under the rule
490 G iiThere had been a clear violation of rule 155 of the Central Civil Service Classification Control  Appeal
Rules 1957 which provides for the engagement of a legal practitioner in certain circumstances
The present case required that the appellant be given a chance to defend himself by a legal practitioner
Since he was denied such an opportunity the order was bad and therefore it should be struct down
1495 HI Pet
vs Greyhound Racing Assn
Ltd  Kalindi Ors
vs Tata Locomotive  Engineering Co Ltd   Brooke Bond India Private Ltd vs Subba Ramman S  another  discussed and distinguished