PETITIONER: C. L. SUBRAMANIAM Vs. RESPONDENT: COLLECTOR OF CUSTOMS, COCHIN DATE OF JUDGMENT15/02/1972 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. MATHEW, KUTTYIL KURIEN CITATION: 1972 AIR 2178 1972 SCR (3) 485 1972 SCC (3) 542 CITATOR INFO : RF 1976 SC1686 (22) F 1983 SC 109 (12) D 1983 SC 454 (5) RF 1991 SC1221 (3) ACT: Art. 311 of the Constitution read with Central Civil Services (Conduct) Rules, 1955---Rule 12(1)--Preventive officer, Customs, purchased taxis in the name of his wife after informing higher authorities--Whether violation of rule 12(1) Central Civil Services (Conduct) Rules 1955-- -Whether denial of the assistance of a lawyer is violation of the Rule of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. HEADNOTE: 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 Art. 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. v. Greyhound Racing Assn. Ltd., [1968] 2 All E.R. 545; Kalindi Ors. v. Tata Locomotive & Engineering Co. Ltd, [1960] 3 S.C.R. 407; Brooke Bond India Private Ltd. v. Subba Ramman (S) & another, [1961] 2 L.L.J. 417, discussed and distinguished. JUDGMENT:
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.
Appellant appeared in person.
Gobind Dass and S. 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 Art. 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 Art. 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 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 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 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 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 v. 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) [1968] 2 All E.R. 545.
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. 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 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.
v. Subba Raman (S) and anr.(3). That view was reiterated
again in Dunlop Rubber Co. v. 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 Art. 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) [1968] 2 All E.R. 545.
(3) [1961] 2 L.L.J. 417.
(2) [1960] 3 S.C.R. 407.
(4) [1965] 2 S.C.R. 139.
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. Cus.
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 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 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.
497