Case ID: 3061

Judgment:
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 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 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 12(1) 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. 1/63 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 1/1/63 Est. Cus Custom House	 Cochin 3 17th September 1963 From The Assistant Collector of Customs	 Appraising Department	 Customs House	 Cochin 3 TO Shri C.L. 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. 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 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 Ltd.(4). 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 case(1) has not commended itself to this Court. In Kalindi and ors. vs 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 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 anr.(3). 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 i.e. 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. 1/1/63/Estt Cus. No. 16 Customs Quarters Willingdon island	 P.O. 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. 1/1/63 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 15(5). 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 15(5) 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 15(5). 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. S.C. 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 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 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	 HELD:(i) 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 L1031SupCI/72 486 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] (ii)There had been a clear violation of rule 15(5) 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.