{"id":132360,"date":"1972-02-15T00:00:00","date_gmt":"1972-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-l-subramaniam-vs-collector-of-customs-cochin-on-15-february-1972"},"modified":"2018-01-31T15:25:44","modified_gmt":"2018-01-31T09:55:44","slug":"c-l-subramaniam-vs-collector-of-customs-cochin-on-15-february-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-l-subramaniam-vs-collector-of-customs-cochin-on-15-february-1972","title":{"rendered":"C. L. Subramaniam vs Collector Of Customs, Cochin on 15 February, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C. L. Subramaniam vs Collector Of Customs, Cochin on 15 February, 1972<\/div>\n
Equivalent citations: 1972 AIR 2178, \t\t 1972 SCR (3) 485<\/div>\n
Author: K Hegde<\/div>\n
Bench: Hegde, K.S.<\/div>\n
           PETITIONER:\nC.   L. SUBRAMANIAM\n\n\tVs.\n\nRESPONDENT:\nCOLLECTOR OF CUSTOMS, COCHIN\n\nDATE OF JUDGMENT15\/02\/1972\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nMATHEW, KUTTYIL KURIEN\n\nCITATION:\n 1972 AIR 2178\t\t  1972 SCR  (3) 485\n 1972 SCC  (3) 542\n CITATOR INFO :\n RF\t    1976 SC1686\t (22)\n F\t    1983 SC 109\t (12)\n D\t    1983 SC 454\t (5)\n RF\t    1991 SC1221\t (3)\n\n\nACT:\nArt.  311  of  the  Constitution  read\twith  Central  Civil\nServices  (Conduct)  Rules,  1955---Rule   12(1)--Preventive\nofficer,  Customs, purchased taxis in the name of  his\twife\nafter  informing  higher authorities--Whether  violation  of\nrule  12(1)  Central Civil Services (Conduct)  Rules  1955--\n-Whether  denial of the assistance of a lawyer is  violation\nof  the Rule of the Central Civil Services  (Classification,\nControl and Appeal) Rules, 1957.\n\n\n\nHEADNOTE:\nThe appellant, a preventive officer, applied for  permission\nto  allow his wife to run a taxi service.  He  was  informed\nthat  no  permission was necessary.   Thereafter,  appellant\nacting\ton  behalf of his wife, purchased a few\t cars  which\nwere  used  as taxis.  Later several  complaints  were\tmade\nagainst\t him to the effect that he was\tcanvassing  business\nfor his wife.  Enquiry was made and the appellant was served\nwith   a  memorandum  stating  that  while  functioning\t  as\nPreventive Officer he had contravened the provisions of Rule\n12(1)  of the Central Civil Services (Conduct)\tRules  1955.\nThe  factual  allegation  made\tagainst\t him  was  that\t  he\ncanvassed  business  for his wife.  An Enquiry\tOfficer\t was\nappointed.   On\t enquiry the appellant was found  guilty  of\ncontravening  rule  12(1)  of  the  Central  Civil   Service\n(Conduct)  Rules  1955,\t and his removal  from\tservice\t was\nrecommended.   On  the\tbasis of  that\trecommendation,\t the\nDisciplinary  Authority served on the appellant a notice  to\nshow  cause why he should not be removed from service.\t The\nappellant  submitted his explanation; but  the\tDisciplinary\nwas  not  satisfied  and consequently,\tthe  appellant.\t was\nremoved from service.\nThe appellant challenged the order by a writ petition  which\nwas  dismissed\tboth  by  a single judge as  well  as  by  a\nDivision Bench of the High Court.  On appeal to this  Court,\nit  was contended by the appellant that he was not  given  a\nreasonable  opportunity\t of being heard in  respect  of\t the\ncharge\tlevelled  against him and there was a  violation  of\nrule  15  of ,the Central  Civil  Services  (Classification,\nControl\t  &  Appeal)  Rules  1957  and\tArt.  311   of\t the\nConstitution.  Hence the order of removal was bad in law One\ntrained\t police prosecutor, was appointed as the officer  to\npresent\t the case before the Enquiry Officer in\t support  of\nthe allegations made against the appellant.  Therefore,\t the\nappellant wrote to the Disciplinary Authority for permission\nto  engage  a counsel to defend his case, but even  after  a\nnumber of written requests, he was not given the  permission\nto engage a legal practitioner to defend himself.   Further,\nthe  appellant\twas denied the assistance  of  a  government\nservant.  Allowing  the appeal,\nHELD:(i) In the facts and circumstances of the case, it\nwas  clear  that  the  appellant had  not  been\t afforded  a\nreasonable opportunity to defend himself.  The grievance  of\nthe   appellant\t that  he  was\tpitted\tagainst\t a   trained\nprosecutor was not considered by the Disciplinary authority.\nThe fact that the case against the appellant was being\thand\nled  by a trained prosecutor was a good ground for  allowing\nthe  appellant to engage a legal practitioner to defend\t him\nlest the scales should be weighted against\n3--L1031SupCI\/72\n486\nhim.   The  disciplinary authority completely  ignored\tthat\ncircumstance.\tTherefore, that authority clearly failed  to\nexercise the power conferred on it under the rule. [490 G]\n(ii)There  had been a clear violation of rule 15(5) of\tthe\nCentral\t Civil Service (Classification, Control\t &  Appeal).\nRules  1957  which provides for the engagement\tof  a  legal\npractitioner  in  certain circumstances.  The  present\tcase\nrequired  that\tthe appellant be given a  chance  to  defend\nhimself\t by a legal practitioner.  Since he was denied\tsuch\nan  opportunity, the order was bad and therefore, it  should\nbe struct down. 1495 HI\nPet. v. Greyhound Racing Assn.\tLtd., [1968] 2 All E.R. 545;\nKalindi\t Ors.  v.  Tata Locomotive &  Engineering  Co.\tLtd,<\/a>\n[1960] 3 S.C.R. 407; Brooke Bond India Private Ltd. v. Subba\nRamman\t(S)  & another, [1961] 2 L.L.J. 417,  discussed\t and\ndistinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11 of 1971.
\nAppeal\tby Special Leave from the judgment and\torder  dated
\nMarch  26, 1970 of the Kerala High Court in Writ Appeal\t No.
\n197 of 1968.\n<\/p>\n
Appellant appeared in person.\n<\/p>\n
Gobind Dass and S. P. Nayar, for the Respondent.
\nThe Judgment of the Court was delivered by
\nHedge,\tJ.,  This  is  an  appeal  by  special\tleave.\t The
\nappellant  was\ta  Preventive Officer,\tGrade,\t11,  Customs
\nOffice,\t Cochin from June 16, 1962 to January 31, 1963.\t  In
\nApril  1962,  he  applied  to  the  Assistant  Collector  of
\nCustoms, seeking permission to allow his wife to run a\ttaxi
\nservice.   He was informed that no permission was  necessary
\nfor  his wife to operate a taxi service but he\tshould\tnot
\ncanvass\t any business for his wife.  Thereafter, it is\tsaid
\nthat  the appellant acting on behalf of his  wife  purchased
\nsome  cars which were used as taxis.  It appears that  there
\nwere several ,complaints against the appellant to the effect
\nthat  he  was  canvassing  business  for  his  wife.   Those
\ncomplaints were enquired into.\tThereafter on March 25, 1963
\nthe  appellant\twas served with’ a memorandum  stating\tthat
\nwhile  functioning as Preventive Officer, Grade\t II,  Cochin
\nCustoms\t House, during the period June 1962 to\tJanuary\t 31,
\n1963 he had contravened the provisions of rule 12(1) of\t the
\nCentral\t Civil Services (Conduct) Rules, 1955.\tThe  factual
\nallegation made against the appellant was that he  canvassed
\nbusiness for his wife.\tHe was told that an enquiry will  be
\nheld against him on the basis of that charge.
\nSri H. T. Soares, Assistant Collector, Customs House, Cochin
\nwas  appointed as the Enquiry Officer.\tDuring the  pendency
\nof the enquiry an additional ground in support of the charge
\nwas
\n 487<\/span>
\nserved\ton the appellant to the effect that he\thimself\t was
\nrunning the taxi service.  After enquiry the Enquiry Officer
\ncame  to the, conclusion that the allegations  made  against
\nthe  appellant\twere  established and  consequently  he\t was
\nguilty\tof  contravening  rule 12(1) of\t the  Central  Civil
\nService\t  (Conduct)  Rules,  1955.   The   Enquiry   Officer
\nrecommended appellant’s removal from service.  On the  basis
\nof that recommendation the Disciplinary Authority served  on
\nthe  appellant a notice to show cause why he should  not  be
\nremoved from service.  The appellant submitted his  explana-
\ntion.\tBut  the same was not accepted by  the\tDisciplinary
\nAuthority.   In the result the appellant was ordered  to  be
\nremoved from service.\n<\/p>\n
The  appellant challenged that order by means of a  petition
\nunder Art. 226 of the Constitution before the High Court  of
\nKerala.\t His writ petition was first heard by a single judge
\nwho  dismissed the same and the order of the single  _judge-
\nwas affirmed by a Division Bench of that High Court.   Hence
\nthis appeal.\n<\/p>\n
The  appellant personally argued his appeal.  He  challenged
\nthe  validity  of  the order removing him  from\t service  on
\nvarious\t grounds.   As\twe  are\t of  the  opinion  that\t the
\nappellant  had not been afforded reasonable  opportunity  to
\npresent his case and consequently the impugned order has  to
\nbe  struck  down, we do not think it  necessary\t to  examine
\nother contentions advanced by the appellant.
\nThe  appellant who was a member of the civil service of\t the
\nUnion of India was holding his office during the pleasure of
\nthe President; but in view of Art. 311 of the  Constitution,
\nhe  could  not have been removed from service  except  after
\nenquiry in which he had been given a reasonable\t opportunity
\nof  being  heard in respect of the charge  levelled  against
\nhim.   This procedural guarantee is undoubtedly\t a  valuable
\none.  Breach of that guarantee vitiates the enquiry.
\nRemoval\t from  service is a major  penalty.   Procedure\t for
\nimposing  major\t penalties is prescribed in rule 15  of\t the
\nCentral Civil Services (Classification, Control and  Appeal)
\nRules,\t 1957,\ta  rule\t framed\t under\tArt.  309   of\t the
\nConstitution.  Sub-rule (5) of that rule provides
\n\t      “The Disciplinary Authority may nominate\tany,
\n\t      person  to present the case in support of\t the
\n\t      charges  before the authority  inquiring\tinto
\n\t      the charges (herein-‘ after referred to as the
\n\t      Inquiring Authority).  The Government  servant
\n\t      may  present his case with the  assistance  of
\n\t      any   Government\tservant\t approved   by\t the
\n\t      Disciplinary  Authority, but may not engage  a
\n\t      legal practitioner for the purpose unless\t the
\n\t      person nominated by
\n\t      488<\/span>
\n\t      the  Disciplinary Authority as aforesaid is  a
\n\t      legal practitioner or unless the\tDisciplinary
\n\t      Authority, having regard to the  circumstances
\n\t      of the case , so permits.”\n<\/p>\n
This rule bears upon the reasonable opportunity contemplated
\nby Art. 311. The validity of; this rule was not\t challenged.
\nHence  all that we have to see is whether the rule had\tbeen
\ncomplied  with.\t For deciding this question it is  necessary
\nto refer to the relevant facts.\n<\/p>\n
In September 1963, one A. M. Shivaraman was appointed as the
\nofficer\t to present the case before the Enquiry\t Officer  in
\nsupport of the allegations made against the appellant.\t The
\nsaid  Shivaraman was a trained police prosecutor.  After  he
\nwas  appointed\tto  present  the  case\tin  support  of\t the
\nallegations made against the appellant, the appellant  wrote
\nto  the\t Collector  of\tCustoms,  Cochin,  the\tDisciplinary
\nAuthority on October 4, 1963 as follows :\n<\/p>\n
\t      “From : C. L. Subramanlam,
\n\t      Preventive Officer,
\n\t      Customs House, Cochin-3.
\n\t      TO
\n\t      The Collector of-Customs,
\n\t      Customs House, Cochin-3.
\n\t      Sir,
\n\t      Sub : Sec. 1\/63 Estt-Cus dated 30th  September
\n\t      1963.\n<\/p><\/blockquote>\n
\t      In  the  above  memorandum  it  is  stated  in
\n\t      paragraph 4, that Shri A. M. Sivaraman as\t the
\n\t      officer to present the case in support of the-
\n\t      allegations  against  me\tbefore\tthe  Enquiry
\n\t      Officer.\n<\/p><\/blockquote>\n
\t       I  understand  that Shri A. M.  Sivaraman  is
\n\t      legally trained to conduct such  prosecutions.
\n\t      Under such circumstances I will be  prejudiced
\n\t      in my defence- unless I am permitted to engage
\n\t      a\t counsel to appear and defend me during\t the
\n\t      enquiry.\t Hence I request that permission  be
\n\t      accorded\tto engage a lawyer of my  choice  to
\n\t      represent\t and defend the charges\t before\t the
\n\t      Enquiry Officer.\n<\/p><\/blockquote>\n
\t      Cochin-3, 4-10-1963
\n\t\t\t\t\tYours faithfully,
\n\t\t\t\t Sd\/- C. L. Subramaniam”.\n<\/p><\/blockquote>\n
\t      He again reiterated his request for permission
\n\t      to engage a
\n\t      counsel  to  defend him in his letter  to\t the
\n\t      Assistant Collector on
\n\t       489<\/span>
\n\t      October 9, 1963.\tThereafter he again wrote to
\n\t      the  Collector of Customs on October 14,\t1963
\n\t      as follows
\n\t      It may help me very much too, if you can grant
\n\t      the  permission I have sought for\t engaging  a
\n\t      Counsel of my choice at an early date so (that
\n\t      I\t could get the Counsel’s assistance for\t the
\n\t      inspection of documents too.”
\n\t      On  October  17, 1963, Sri  Scares,  Assistant
\n\t      Collector\t of Customs wrote to  the  appellant
\n\t      thus
\n\t      “Secret 1\/1\/63 Est.  Cus
\n\t      Custom House, Cochin-3
\n\t      17th September 1963
\n\t      From
\n\t      The Assistant Collector of Customs,
\n\t      Appraising Department,
\n\t      Customs House, Cochin-3
\n\t      TO
\n\t      Shri C.L. Subramaniam, Preventive Officer,
\n\t      Custom House, Cochin-3.\n<\/p><\/blockquote>\n
\t      Sub : Establishment-Inquiry into the work\t and
\n\t      conduct of Shri C. L. Subramaniam,  Preventive
\n\t      Officer, Custom House, Cochin.
\n\t      With  reference to your letter Sc.  1\/63\/Estt.
\n\t      Cus   dated  14th\t October  1963,\t  requesting
\n\t      permission for engaging a counsel to  appear
\n\t      and  defend  you,\t during the  enquiry,  I  am
\n\t      directed\tby the Collector to inform you\tthat
\n\t      although\tShri  A. M. Sivaraman  is  illegally
\n\t      trained,\the is not a legal  practitioner\t and
\n\t      hence  there  is no necessity for\t engaging  a
\n\t      lawyer to defend you at the enquiry.
\n\t      Sd\/- H. T. Soares,
\n\t      Assistant Collector of Customs”.\n<\/p><\/blockquote>\n
It is clear from that letter that the Disciplinary Authority
\nhad overlooked the fact that the appellant sought permission
\nto  engage  counsel  not  because  Sivaraman  wag  a   legal
\npractitioner but because he was trained prosecutor.
\nOn January 6, 1964, the appellant again wrote to the Collec-
\ntor  of\t Customs explaining his\t difficulties  in  defending
\nhimself.   In  Paragraph  4 of that  letter,  the  appellant
\nstated
\n\t      “In the nature of accusations made against  me
\n\t      and the nature of their widespread source\t the
\n\t      importance
\n\t      490<\/span>
\n\t      of  the informants and their  intentions,\t the
\n\t      varying  types  of  witnesses  supporting\t the
\n\t      charge,\tthe   complicated  nature   of\t the
\n\t      evidence, the inexperience I have in assessing
\n\t      the impact of such evidence and in sifting the
\n\t      evidence\tfor  preparing an  effective  cross-
\n\t      examination   and\t  above\t all   the   lurking
\n\t      conspiracy of a series of persons whom I\thave
\n\t      to deal with firmly in discharging my  duties
\n\t      as  a Preventive Officer, all these when\tcon-
\n\t      sidered  can lead you to the  only  conclusion
\n\t      that  if\tI  am denied the  assistance  of  an
\n\t      experienced counsel at the enquiry it would be
\n\t      tantamount  to  denial of\t an  opportunity  to
\n\t      defend  myself and prove my  innocence.\tThis
\n\t\t\t    ‘would be particularly so in the conte
\nxt of the
\n\t      present enquiry where evidence have sought  to
\n\t      be brought in by different stages and  alleged
\n\t      incidents subsequent to the charges are sought
\n\t      to  be  proved in support of  the\t allegations
\n\t      made before such incidents.”\n<\/p>\n
Despite\t these\tcommunications, the appellant was  not\tgive
\npermission to engage a legal practitioner to defend  himself
\nTherefore the question arises whether the appellant was give
\nreasonable opportunity to defend himself in accordance\twith
\nsub  rule  (5)\tof rule 15 of  the  Central  Civil  Services
\n(Classification\t Control  and  Appeal)\tRules,\t1957.\t The
\nportion\t of  that  rule that is\t relevant  for\tour  present
\npurpose\t is the last clause which say that  the\t Government
\nservant may not engage a legal practitioner for the  purpose
\nmentioned in that clause “unless the Disciplinary  Authority
\nhaving regard to the circumstances of the case so permits”.
\nThe grievance of the appellant was that he was pitted  again
\na  trained  prosecutor and not that Sivaraman  was  a  legal
\npractitioner.\tThe Disciplinary Authority did not  consider
\nthat  grievance.   It  brushed\taside  the  request  of\t the
\nappellant  on  the  ground that Sivaraman was  not  a  legal
\npractitioner, a consideration which was not relied on by the
\nappellant.  The grounds urged by the appellant in support of
\nhis  request for permission to engage a\t legal\tpractitioner
\nwere by no means irrelevant.  The fact that the case against
\nthe appellant was being handled by a trained prosecutor\t was
\na  good ground for allowing the appellant to engage a  legal
\npractitioner  to  defend  him  lest  the  scales  should  be
\nweighted against him.  The Disciplinary Authority completely
\nignored that circumstance.  Therefore that authority clearly
\nfailed to exercise the power conferred on it under the rule.
\nIt is not unlikely that the Disciplinary Authority’s refusal
\nto  permit the appellant to engage a legal  practitioner  in
\nthe  circumstances  mentioned  earlier\thad  caused  serious
\nprejudice  to the appellant and had amounted to a denial  of
\nreasonable opportunity to defend him self.\n<\/p>\n
491<\/span><\/p>\n
The  appellant\tcontended that he had a right  to  engage  a
\nlegal  practitioner to defend him.  He sought to  spell\t out
\nthat  right on, the basis that what he could himself do,  he
\ncould  get  it\tdone  by  an  agent  of\t his  and  a   legal
\npractitioner acting for him would only have been his  agent.
\nIn  support  of\t his contention he placed  reliance  on\t the
\ndecision in Pet v. Greyhound Racing Association Ltd.(4). The
\nfacts of that case were as follows
\nTrack  stewards of a greyhound racing stadium owned  by\t the
\ndefendants  proposed to hold an inquiry into the  withdrawal
\nof a trainer’s dog from a race at a stadium licensed by\t the
\nNational  Greyhound Racing Club.  The inquiry  involved\t the
\nquestion  whether  drugs had been administered to  the\tdog.
\nThe  trainer  held  a licence from  the\t National  Greyhound
\nRacing Club entitling him to race dogs on tracks licensed by
\nthe  club, and thus the result of the inquiry might  involve
\nthe  trainer’s reputation and livelihood.  The rules of\t the
\nclub,  to which the trainer had agreed when he obtained\t his
\nlicence,  did not prescribe the procedure to be followed  by
\ntrack stewards at their inquiries, and did not exclude legal
\nrepresentation.\t  The procedure in fact followed at such  an
\ninquiry allowed the trainer to be present, to hear the\tevi-
\ndence and to have an opportunity to question witnesses.\t The
\ntrainer sought to be represented by counsel and solicitor at
\nthe enquiry but the track stewards decided ultimately not to
\nallow legal representation.  On appeal from the grant of  an
\ninterlocutory injunction restraining the inquiry from  being
\nheld unless the trainer were allowed to be represented,\t the
\nCourt  of  Appeal  held that prima  facie  the\ttrainer\t was
\nentitled  to an oral hearing and, the inquiry being  one  of
\nserious\t importance  to\t him, to be  represented  as  it  by
\ncounsel\t and  solicitor,  for he was entitled  not  only  to
\nappear\thimself but also to appoint an agent on his  behalf,
\nand  so\t was entitled to appoint lawyers to  represent\thim.
\nLord  Denning, M. R. who delivered the main judgment of\t the
\ncourt  in  the\tcourse\tof his\tjudgment  dealing  with\t the
\ndecision  of  stewards\tthat  they  will  not  hear  lawyers
\nobserved
\n\t      “I   cannot  accept  this\t  contention.\t The
\n\t      plaintiff is here facing a serious charge.  He
\n\t      is charged either with giving the dog drugs or
\n\t      with  not exercising proper control  over\t the
\n\t      dog so that someone else drugged it.  If he is
\n\t      found  guilty,  he  may be  suspended  or\t his
\n\t      licence  may  not\t be  renewed.,\tThe   charge
\n\t      concerns\this reputation and  his\t livelihood.
\n\t      On such an inquiry I think that he is entitled
\n\t      not  only\t to appear by himself  but  also  to
\n\t      appoint  an  agent  to act for  him.   Even  a
\n\t      prisoner can have his friend.”\n<\/p>\n
\t      (1)   [1968] 2 All E.R. 545.\n<\/p>\n
\t      492<\/span><\/p>\n
\t      Proceeding   further  the\t Master\t  of   Rolls
\n\t      observed
\n\t      “I should have thought, therefore, that when a
\n\t      man’s reputation or livelihood is at stake, he
\n\t      not  only\t has  a right to speak\tby  his\t own
\n\t      mouth.   He  has\talso a\tright  to  speak  by
\n\t      counsel or solicitor.”\n<\/p>\n
This  decision, in our opinion, does not bear on  the  point
\nunder\tconsideration.\t Herein\t we,  are  dealing  with   a
\nstatutory  rule, which prohibits the appointment of a  legal
\npractitioner  excepting under certain circumstances.   Hence
\nthe  agency theory has no relevance nor are we\trequired  to
\nconsider   the\tprinciples  of\tnatural\t justice  as   those
\nprinciples are only relevant when the concerned procedure is
\nnot  regulated by any statute or statutory rule.   The\trule
\nlaid down in Pet’s case(1) has not commended itself to\tthis
\nCourt.\t  In  Kalindi  and  ors.  v.  Tata  Locomotive\t and
\nEngineering  Co.   Ltd.<\/a>(2), a question arose whether  in  an
\nenquiry\t by  management into misconduct of  a  workman,\t the
\nworkman\t was entitled to be represented by a  representative
\nof  the Union.\tAnswering this question this Court  observed
\nthat a workman against whom an enquiry is being held by\t the
\nmanagement has no right to be represented at such an enquiry
\nby a representative of the Union though the employer in\t his
\ndiscretion  can and may allow him to be so represented.\t  In
\nsuch enquiries fairly simple questions of fact as to whether
\ncertain\t acts of misconduct were committed by a\t workman  or
\nnot fall to be considered and the workman is best suited  to
\nconduct the case.  Ordinarily, in enquiries before  domestic
\ntribunals  a person accused of any misconduct  conducts\t his
\nown  case  and\tso it cannot be said  that  in\tany  enquiry
\nagainst a workman natural justice demands that he should  be
\nrepresented by a representative of his Union.  The same view
\nwas taken by this Court in Brooke Bond India (Private)\tLtd.
\nv.  Subba  Raman (S) and anr.(3). That view  was  reiterated
\nagain in Dunlop Rubber Co. v. Workmen<\/a> (4 ).
\nThe  learned counsel for the State relied on  the  decisions
\nmentioned  above  in  support of  his  contention  that\t the
\nappellant was not entitled to have the assistance of a legal
\npractitioner.\tThis contention is without force.  In  those
\ncases  this  Court considered, whether\ta  person  proceeded
\nagainst in an enquiry before a domestic tribunal had a right
\nto  be\trepresented  by someone else on\t the  basis  of\t the
\nprinciples  of natural justice.\t Therein this Court was\t not
\ncalled upon to consider either the limits of the  reasonable
\nopportunity to defend oneself, guaranteed under Art. 311  or
\nthe scope of a statutory rule.\tThe question that falls\t for
\ndecision  in this case did not arise for decision  in  those
\ncases.\n<\/p>\n
(1)  [1968] 2 All E.R. 545.\n<\/p>\n
(3)  [1961] 2 L.L.J. 417.\n<\/p>\n
(2)  [1960] 3 S.C.R. 407.\n<\/p>\n
(4)  [1965] 2 S.C.R. 139.\n<\/p>\n
 493<\/span><\/p>\n
The  appellant supported his complaint of breach of rule  15
\n(5)  on yet another ground.  After the\tappellant’s  request
\nfor  engaging  a  counsel was  rejected,  he  requested\t the
\nDisciplinary  Authority\t to let him have the  assistance  of
\nAbraham\t Kurian, clerk, Cochin Head Post  Office,  Cochin-1.
\nThis request he appears to have made long before the date of
\nenquiry\t i.e. December 5, 1963.\t He had also  requested\t the
\nDisciplinary  Authority\t to move the  superiors\t of  Abraham
\nKurian to grant permission to Abraham Kurian to assist him .
\nBut  it\t appears  the Disciplinary Authority  wrote  to\t the
\nSuperintendent\tof Post Offices who is stationed at  Trichur
\nonly on the 28th of November, 1963 requesting him to  permit
\nAbraham Kurian to assist the appellant.\t That  communication
\nwas  not received by the Superintendent of Post\t Offices  in
\ntime.\tHence  Abraham\tKurian did not\tget  the  permission
\nsought before the date of enquiry.  After learning that fact
\nfrom  Abraham  Kurian,\tthe appellant  wrote  the  following
\nletter to the Collector of Customs on December 4, 1963.
\n“Sec.  1\/1\/63\/Estt-Cus.\n<\/p>\n
No. 16 Customs Quarters
\nWillingdon island, P.O.\n<\/p>\n
Cochin-3.\n<\/p>\n
4th December 1963.\n<\/p>\n
From
\nC. L., Subramaniam,
\nPreventive Officer Gr. II, Customs House, Cochin-3.
\nTo
\nThe  Collector\tof Customs & Central Excise,  Custom  House,
\nCochin-3.\n<\/p>\n
Sir,
\nSub-Enquiry  into  the\twork  and  conduct  of\tShri  C.  L.
\nSubramaniam, Preventive Officer, Custom House, Cochin-3.
\nWith reference to your letter dated 3rd December, 1963\twish
\nto submit as follows
\nShri  Abraham Kurian, Clerk, Cochin Head Post Office who  is
\nto  assist  me in the enquiry from 5-12-1963  in  connection
\nwith  certain  allegations pending against me  has  urgently
\napplied\t to  his superior yesterday itself and\tis  awaiting
\npermission.\n<\/p>\n
494<\/span><\/p>\n
As I cannot appear for the enquiry without assistance I\t re-
\nquest you Sir, to adjourn the hearing by 10 days.\n<\/p>\n
\t      Thanking you,
\n\t      I remain Sir,
\n\t      Yours faithfully,
\n\t      Sd\/- C. L. Subramaniam.”\n<\/p>\n
\t      On  the  date  of\t the  enquiry,\tthe  Enquiry
\n\t      Officer  adjourned  the case  sine  die  after
\n\t      obtaining\t an undertaking from  the  appellant
\n\t      that on the next date of the enquiry he  would
\n\t      go  on with the case even if he was unable  to
\n\t      get  the assistance of Abraham Kurian on\tthat
\n\t      date.   On  December 9,  1963,  the  appellant
\n\t      wrote to the Enquiry Officer as follows
\n\t      “Sec.  No. 1\/1\/63 Estt.  Cus.\n<\/p>\n
\t\t\t   9th December 1963 From
\n\t      C. L. Subramaniam,
\n\t      Preventive Officer,
\n\t      Custom House, Cochin-3.\n<\/p>\n
\t      To :\n<\/p>\n
\t      The  Asstt.   Collector of  Customs  (Apprg.),
\n\t      Enquiry Officer,
\n\t      Custom House, Cochin-3.\n<\/p>\n
\t      Sir,
\n\t      Sub  :  Enquiry into the work and\t conduct  of
\n\t      Shri  C. L. Subramaniam,\tPreventive  Officer,
\n\t      Custom House Cochin.\n<\/p>\n
I  understand  from a communication from the  Senior  Super-
\nintendent   of\tPost  Offices,\tTrichur\t addressed  to\t the
\nAssistant  Collector  of  Customs  (Apprg.),  Custom  House,
\nCochin with copy endorsed to Shri Abraham Kurian, that\tyour
\ncommunication  informing that the enquiry was to  have\tbeen
\nheld   from   5-12-1963\t  was\treceived   by\tthe   Senior
\nSuperintendent\tof Post Offices only on 5th December,  1963,
\nand  therefore the relief arrangement could not be  made  by
\nhim.\n<\/p>\n
Now  that the enquiry is adjourned it is requested that\t you
\nmay  be good enough to inform the Senior  Superintendent  of
\nPost  Offices, Trichur (Superior Officer of  the  Government
\nwho assists
\n495<\/span>
\nme)  sufficiently early ‘as to the date of the\tenquiry,  so
\nthat he may relieve the Government servant in time.
\nIt  is\thumbly pointed out that unless\tyour  goodself\ttake
\nnecessary  action  in  time in this regard  it\tmay  not  be
\npossible to get me the assistance I have requested for.\n<\/p>\n
\t\t\t\t Yours faithfully,
\n\t\t\t\t  Sd\/- 9-12-63
\n\t\t\t\t(C. L. Subramaniam)”\n<\/p>\n
Even after getting this letter, the Enquiry Officer did\t not
\nfix  the date of the enquiry.  It appears that\ton  December
\n30,  1963 the Enquiry Officer fixed January 8, 1964  as\t the
\ndate  of  enquiry.  It is only thereafter he  wrote  to\t the
\nSuperintendent\tof  Post Offices requesting  him  to  permit
\nAbraham\t Kurian\t to assist the appellant.  It is  not  known
\nwhen that letter was received by the Superintendent of\tPost
\nOffices\t but  Abraham  Kurian did  not\tget  the  permission
\nsought, before the date of enquiry.  Therefore he was unable
\nto  assist the appellant in the enquiry.  Hence the  enquiry
\nwent on without the appellant having anybody’s assistance.
\nFrom  the facts set out above, it is clear that the  Enquiry
\nOfficer\t did not afford the appellant necessary facility  to
\nhave  the  assistance  of  another  Government\tservant\t  in
\ndefending him which assistance he was entitled to under\t the
\nrule.\tHe was deprived\t  of that assistance solely  because
\nof the indifferent attitude adopted by the Enquiry  Officer.
\nTherefore we have no hesitation in coming to the  conclusion
\nthat the Enquiry Officer had clearly breached rule 15(5).
\nIt  is\tneedless to say that rule 15 is\t a  mandatory  rule.
\nThat  rule  regulates  the  guarantee  given  to  Government
\nservants  under Art. 311. Government servants by  and  large
\nhave  no legal training.  At any rate, it is  nobody’s\tcase
\nthat the appellant had legal training.\tMoreover when a\t man
\nis  charged  with  the breach of a  rule  entailing  serious
\nconsequences,  he  is  not likely to be\t in  a\tposition  to
\npresent\t his case as best as it should be.   The  accusation
\nagainst\t the appellant threatened his very livelihood.\t Any
\nadverse\t  verdict against him was bound to be disastrous  to
\nhim, as it has proved to be.  In such a situation he cannot
\nbe  expected to act calmly and with deliberation.   That  is
\nwhy  rule  15(5)  has  provided\t for  representation  of   a
\nGovernment servant charged with dereliction of duty or\twith
\ncontravention  of the rule by another government servant  or
\nin appropriate, cases by a legal practitioner.
\nFor  the reasons mentioned above, we think that\t there\thad’
\nbeen  a\t contravention of rule 15(5).  We are  also  of\t the
\nopinion
\n496<\/span>
\n  that\tthe ‘appellant had not been  afforded  a  reasonable
\nopportunity to defend himself.\tHence the impugned order  is
\nliable to be struck down and it is hereby struck down.\t The
\nfacts  of  this case are not such as to\t justify  any  fresh
\nenquiry\t against  the appellant.  Hence we  direct  that  no
\nfresh enquiry shall be held against the appellant and he  be
\nrestored  to  the  position  to which  he  would  have\tbeen
\nentitled  to  but  for the impugned order.   The  appeal  is
\naccordingly allowed.  The appellant is entitled to his costs
\nfrom  the respondents both in this Court as well as  in\t the
\nHigh Court.\n<\/p>\n
S.C.\t\t\t\tAppeal allowed.\n497<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C. L. Subramaniam vs Collector Of Customs, Cochin on 15 February, 1972 Equivalent citations: 1972 AIR 2178, 1972 SCR (3) 485 Author: K Hegde Bench: Hegde, K.S. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-132360","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC. L. 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