C. l:,, SUBRAMANIAM .

COLLECTOR OF CUSTOMS, COCHIN

February 15, 1972

(K. S. HEGDE AND K. K. MATHEW, JJ.]

Art. 311 of the Constitution read with Central Civil Services (Conduct) Rules, 1955-Rule 12(1)'-Preventive ojJicer, Customs, purchased taxis in the name of his wife after informing higher authorities-Whether

vilation of rule 12(1) Central Civil Services .(Conduct) Rules 1955- Whether denial of the assistance of a lawyer i• violation' of the Rule of th• Central Civil Services (Classification, Control and Appeal) Rules, 1951.

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 wero used 'as tax.is. Later several complaints were made against him to the effect that he was canva.Ssing 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 prov:isions Of Rule .

12(1) 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 12(1) 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 appellanj: a notice to show cause why he should not be removed from service.

The appellant submitted his explanation; but the Disciplinary Authority was not satisfied and consequently, the appellant was removed from service.

The appellant challenged the order by a writ petition which was dis missed 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 Art. 311 df the Constitution. 'Hence the order of ,..emoval was bad in law One trained police prosecutor. was appointed as the officer tn present the case before the Enquiry Officer in support of the allegations made against the appellant. Therefore, the appellant wrote to the Dis ciplinary 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,

HELD : ( i) In the facts and circumstances of the case, it was clear that the appellant bad not been afforded a reasonable opportunity to defend himself, 1be grievance of the appellant that he was pitted against a trained prosecutor w .. not considered by the Disciplinary authority.

The fact that the case against the appellant was being bandied by a trained prosecutor w.. a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against 3-L!031SupCJl72

him.

The disqiplinary authority completely ipored that circumstance.

A Therefore, that authority clearly failed to exercise the power con'ferred on it _under the rule. [490 GJ

(ii) There had been a clear violation of rule 15(5) of the Central Civil Service (Classification, Control & Appeal) Rul01 1<)57 which provides for the engi, igement of a legal practitioner in certain circumstances.

The present case -required that the appellant be given a chance to defend B himself by a legal practitioner. Since he was denied such an opportunity, the order was bad and therefore, it should be struct down. J,4<)5 HJ

Pet, v. Greyhound Racing Assn. Ltd., [1%8] 2 All E.R. 545; Kalindi & Ors. v. Tata Locomotive &, Engineering Co. Ltd, [1%0] 3 S.C.R. 407; Brooke Bond India Private Ltd. v. S11bba Ramman (S) & another, [1961] 2 L.L.J. 417, discussed and distinguished. c CIVIL APPELLATE JURISDICTION : Civil 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.

Appe/larlti appeared in person.

Gobind Dass and S. P. Nayar, for the Respondent.

The Judg1llent of the Court 'was delivered by

Hedge, J, This is an appeal by special leave. The appellant E was a Preventive Officer, Grade II, Customs Office, Cochin from June 16, 1962 lo January 31, 1963. In April 1962, he applied to the Assistant Collector of Customs, seeking permission to allow his wifo to run a taxi service. ' He was informed that no permission was necessary for his wife to operate a taxi service but he should no.I canvass any business for his wife.

Thereafter, it is said that the appellant acting on behalf of his wife purchased some

'I! 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. 1 Those complaints were enquired into.

Thereafter on March 25, 1963 the appellant was seri'ed with'. a memorandum stating that while functioning as Preventive Officer, Grade II, Cochin Customs House, during the period June 1962 to G January 31, 1963 he had contravened the provisions of rule 12(1) 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 to!<! that an enquiry will be held against him on the basis of that charge.

Sri H. T. Soares, Assistant Collector, Customs House, Cochin 8

was appointed as the Enquiry Officer.

During the pendency of the enquiry an additional grou11d in support of the charge was

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 12{1) of the Central Civil Service (Conduot) Rules, 1955. The Enquiry Officer recommended appellant's removal from service.

B On the basis of that recommendaiion 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 same was not accepted by the Disciplinary Authori'ty. In the .result the appellant was ordered to be removed from service.

The appellant challenged that order by !lleans of a petition under Art. 226 of the Constitution before the High Court of Kerala.

His writ pettion was first heard by a single judge who dismissed the same and. the order. of the single judge was affirmed by a Division Bench 6f that High Court. Hence this appeal.

The appellant personally argued his appeal.

He challenged the validity of the order J.>emoving him from service on various

grounds. As _we are of the opinion ll:hat the appellant had not been afforded reasonable opportunity to present his case and con

sequeptly the impugned order has to be struck down, we do nat think it necessary to examine other contentions advanced by the E 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 Art. 311 of the Constitution, he could not have been removed from service except after enquiry in which he had been i:iven 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, G a rule framed under Art. 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 tll'~ authority inquiring into the charges (hereinafter 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 othe purpose unless the person nominated by

the Disciplinary Authority as aforesaid is a legal praotitioner or unless the Disciplinary. Authority, having re gard to the circumstances of the case, so permits."

This rule bears upon the reasonable opportunity contemplated by Art. 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 quesiioit rt is necessary to refer, to the relevant facts.

In September 1963, one A. M. Shivaraman was appointed as the officer to present the c•se before the Enquiry Officer in sup ' port of the allega'tions made aainst the appellant. The said Shivaraman was a trained police prosecutor.

After he was ap pointed to present the case in support of the allegations made against the appellant, the appellant wrote to the Collecor of Customs, Cochin, the Disciplinary Authority on October 4, 1963 as follows :

Sir,

"From : C. L. Subramaniam, Preventive Officer,· Customs House, Cochin-3.

The Collector of Customs, Customs House, Cochin-3.

Sub : Sec. 1/63 Estt-Cus d!l'ted 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, tho~ allegll'tions 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 defenoe unless I am permitted to engage a counsel to appear and defend

me during the enquiry. Hence I request that permission G 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 aitain reiterat>ed his request for permission to engage a Counsel to liefend him in his Jetter to the Assistant Collector on

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 ithat I could get the Counsel's assistance for the inspection of documents too."

On October 17, 1963, Sri Soares, Assistant Collector of Customs wrote to foe appellant thus ;

"Secret 1/1/63 Est. Cus

Custom House, Cochin-3 17th September 1963

From:

The Assistant Collector of Customs, Appraising Department, Cu&toms House, Cochin-3

Shri C. L. Subramaniam, Preventive Officer, CuS'tol)l 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. 1/63/Estt Cus dated 14th October 1963, requesting permission for engaging a counsel to appear and defend you, during the enquiry, I am directed by the F Collector to inform you that although Shri A. M. Siyaraman is legally 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".

G It is clear from that letter that the Disciplinary Authority had overlooked the fact that the appellant sought permission to engage :a counsel not because Sivaraman was a legal practitioner but because he was trained prosecutor.

On January 6, 1964, the appellant again wrote to the Collector of Customs explaining his difficulties in def.ending himself. In H paragraph 4 of that letter, the appellant stated :

"In the nature of accusations made against me and the naoture of their widespread source the nnportance •

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 considered 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

woul!I be particularly so in the context 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 given permission to engage a legal practitioner to defend .himself.

D Therefore the question arises whether the appellant was given reasonable opportunity to defend himself in accordance with subrule ( 5) of rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. The portion of that rule that is relevant for out present purpose is the last clause which says that the Government servant may nat engage a legal practitioner for the purpose mentioned in that clause "unlss the Dis- E ciplinary Authority having regard to the circumstances of the case so permits".

The grievance of the appellant was that he was pitted against 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 l!fOund 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 th!! case against the appellant was being handled by a trained prosecutor was a good ground for allowing •the appellant G 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 H earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself.

' ''.ii.

c. L. SUBRAMAN!AM v. COLLECTOR CUSTOMS (Hegde, /.) 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 "'.hat 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 v. Greyhound Racing Association B Ltd. (1). 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 he withdrawal of a

triner'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 lirensed 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 exclµde legal representation.

The procedure in fact followed at such an inquiry allowed the trainer to be present, to hear the evidence and 10 have an opportilnity to question witnesses. The trainer sought o be represented by counsel and solicitor at the enquiry hut 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 represenred, 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 nQ! be renewed. The charge concerns his reputation_ and his livelihood.

On such an inquiry I think that he i$ entitled not only to appear by himself but also to appoint an agent to act for him. Even a prisoner can have bis friend." ·

(l) [1968] 2 All E.R, S4S.

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 spak by his own mouth. He has also a right to speak by counsel or solidtor."

B 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 pra<ltitioner excepting under certain circumstances. Hence the agency theory has no relevance no]'_ ar>! we required to consider the principles of natural justice as those principles are only relevall't when the concerned procedure is not regulated by any statute or statutory rule. The C rule laid down in Pet's case('') has not commended itself 'to this Court. In Kalindi and ors. v. Tata Locomotive and Engineering Co. Ltd. (2), 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 enquizy 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 oo so represened. 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 natqral justice demands that he should be repre9!nted by a representative of his Union. The same view was taken by this Court in Brooke Bond India (Private) Ltd. v. Subba Raman

(S) and anr.( 8 ). That view was reiterated again in Dunlop Rubber Co; v. Workmen('). ·

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 assistano! of a legal practitioner. . This con, tention is without force.

In those cases this Court considered G whether a person proceeded against in an enquiry before a domestic tribunal had a right to be represenled by someone else on the basis of the principles of natural justice. 1bereln this Court was not called upon to consider either the limits of the reasonable opportunity to defend oneself, guaranteed under Art. 311 or the scope of a statutory rule. The question th, at falls for decision in this case did not arise for decision in those cases.

(1) [1968] 2 All E.R. 545.

(2) [1960] 3 S.C.R. 407,

(3) [1961] 2 L.L.J. 417.

(4) ]1965] 2 S.C.R.139.

A The appellant supported his complaint of breach of rule 1 S ( S) 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 be appears to have made long before the date of enquiry i.e. December 5, 1963. 8 He bad also requested the Disciplinary Authority 1to 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 Tricbur only on the 28th of November, 1963 requesting him to permit Abraham Kurian to assist the appellant. . That communica- C tion wa~ not received by the Superintendent of Post Offices in time. Hence Abraham Kurian did not get the permission sought l?efore 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.

D "Sec. 1/1/63 IEstt-Cus.

; ii: From:

To:

C. L. Subramaniam,

No. 16 Customs Quarters Willingdon Island, .P.O.

Cochin-3. 4th December, 1963.

:e_reventive Officer Gr. II, Customs House, Cochin-3. ·

F The Collector of Customs & Central EJ!:cise, Custom House, Cochin-3.

Sir,

Sub-Enquiry into the work and conduct of Shri C. L.

G Subramaniam, Prevemive Offioor, Custom House, Cochin-3.

With reference to your letter dated 3rd December, 1963 I wi$h to submit as follows :

H Shri Abraham Kurian, Cbrk, Cochin Head Post Office who js to assist me in the enquiry from 5-12-1963 in connection with certain allegations pending against me has urgently applied to bis . superior :v.esterday i(Self and is awaiting permission.

As I cannot appear for the enquiry without assistance I request you Sir, to adjourn the hearing by 10 days.

Thanking you,

I remain Sir,

Yours faithfully, Sd/·, C. L. Subramaniam."

On the qa1e of the enquiry, the Enquiry Officer adjourned 'the case sine die after obtaining an undertaking from the appellant that on the next da:te 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.

O:n Deceml>r 9, 1963, the appellant wrate to the Enquiry Officer as follows :

"Sec. No. 1/1/63 Estt. Cus.

9th December 1963

From

To:

Sir,

C. L. Subramaniam.

Preventive Officer, Custom House, Cochin-3.

The Asst!. Collector of Cutoms (Apprg.), Enquiry Officer, Custom House, Cochin-3.

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 Col lector of Customs ( Apprg.), Custom House, Cochin with copy endorsed to Shri Abraham Kurian, that your communication in forming 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 ithe Senior Superintendent of Post Offices, Trichur (Superior Officer of the Government who. assists

me) sufficiently arly 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 iime 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 appel!ant.

It is not known when tha!t letter was received by the Superintendnt 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 t]]e appellant having anybody's assistance.

From •th!' facts set out above, it is clear that the Enquiry Officer di.ct 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 W!U deprived of that assistance solely because of the indifferent aititude adopted by the Enquiry Officer. Therefore we have no hesi'tation in comin.g to the conclusion that the Enquiry Officer bad clearly breached rule 15(5).

It is needless to say that rule 15 is a mandatory rule. That rule regulates the guarantee given to Government servant$ under Art. 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 ppellant •threatened his vry livelihood. Any adverse verdict against him was. bound to be disastrous to him; as it has proved to ~- In such ; a situation he cannot be expected to act calmly and with deliberation.

That is why rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by iinother

overnment servant or in appropriate cases by a legal practitioner.

For the reasons mentioned above, we think that there had been a contravention of rule 15(5). We are also of the opinion

1hat the appellant had not been afforded a reasonable opportunity A to defend himself.

Hence the impugned order is liable to be struck down and it is hereby struck down. The facts of 1his 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 1he impugned order. The appeal is B accordingly allowed. The appellant is entitled to his costs from the respondents both in this Court as well as in the High Court. s.c.

Appeal allowed.