- (1.) In this petition, the validity of Rule 7 of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter called the Rules) has been questioned. The said Rules were passed by the Governor of Uttar Pradesh in exercise of the powers conferred by Section 241 (2) and Section 266 (3) of the Government of India Act, 1935, and Section 234 (a) and (b) of the United Provinces Land Revenue Act and Section 7 of the Police Act for regulating in certain cases the conduct of disciplinary proceedings and the award of punishment to members of the public services under the Governor's rule-making control. These Rules came into force with effect from 8th November, 1947 and applied to all Government servants under the rule-making control of the Governor as to any acts, omissions or conduct arising before the date of the commencement of these Rules as they are applicable to those arising after that date A Tribunal known as 'Administrative Tribunal' was constituted by the Governor under Rule 3. It consists of two members, one of whom is an officer of adequate seniority to be the head of a department, or the Commissioner of a division, and the other member of the Tribunal is a judicial officer qualified for appointment as a Judge of a High Court. Rule 7 whose vires is questioned in this petition may now be quoted: "7. The proceedings of the Tribunal will be in camera and neither the prosecution, nor the defence shall have the right to be represented by counsel." The second petitioner, Sri Jawahar Lal Bhargava, was a member of the U. P. Judicial Service and was posted at the material time in district Etah as Judicial Officer. On receipt of various adverse reports against his conduct and after holding an investigation through the Vigilance Department, he was charged under different heads and his case was referred by the Governor for inquiry by the Administrative Tribunal. On 23-10-1973, an application was made by Shri Bhargava before the Administrative Tribunal for permission to engage a counsel to defend him and a Vakalatnama signed by the first petitioner, Sri Amrish Kumar Sharma, was annexed with the said application. By its impugned order dated 5th of November, 1973, contained in a letter to Bhargava (Annexure 2 to the writ petition), the Administrative Tribunal intimated that the Rules did not permit prosecution of the case of the applicant through a counsel, therefore, representation through a counsel could not be permitted. This decision of the Tribunal is impugned in the writ petition.
(2.) In a counter-affidavit sworn by an Upper Division Assistant of the Appointment Department of the Government of Uttar Pradesh, it has been averred that the witnesses in support of the charges shall be examined before the Tribunal by an Investigating Officer of the rank of Inspector, Circle Inspector or Deputy Superintendent of Police or by the Tribunal itself. It is not disputed that the Tribunal is composed of a. senior District and Sessions Judge belonging to the Higher Judicial Service and an officer of the rank of the Commissioner. The second petitioner no doubt is a Judicial Officer be longing to the Judicial Service and can be said to have sufficient knowledge of law but considering the gravity of charges and the consequences involved, the composition of the Tribunal and the qualification of the personnel responsible for leading prosecution evidence he must have thought that a representation through a counsel would be helpful and necessary, and that must have prompted him to make an application to the Tribunal for being represented by a counsel. The Tribunal, as appears to us because of Rule 7 which has been quoted above felt that it had no option or any discretion in the matter and had to refuse the prayer of the second petitioner.
(3.) Sarvsri Ansari and Chand Kishore appearing for the petitioners before us raised two fold contentions. Their first contention was that Rule 7 was ultra vires Article 311 of the Constitution inasmuch as in all cases, representation through a counsel was barred howsoever difficult the case may be against the Government servant even where he may have no knowledge of English in which language most of the charges against him, the recording of evidence against him and the rules and law applicable are generally expressed and even if he may be ignorant of all kinds of laws and rules relating to the procedure and evidence. The submission was that considering the stakes involved, and where the very reputation and livelihood of the Government servant was in jeopardy, denial to him to take assistance from a legal expert would amount to refusal in affording him a reasonable opportunity to defend himself within the meaning of Article 311 of the Constitution. The second contention was that the Rules of the Tribunal are more onerous as compared to Rule 55 of the U. P. Civil Service Classification Control and Appeal Rules in respect of representation through a lawyer and there being no guiding rule as to what cases are to be sent for inquiry under Rule 55 and what cases are to be sent for inquiry before the Administrative Tribunal, the provisions of the Rule would be hit by Article 14 of the Constitution. Sri Ansari raised a subsidiary contentention, which appears to us to be an alternative argument, to the effect that if Rule 7 was read and construed as conferring a discretionary power on the Administrative Tribunal to allow representation by a counsel in appropriate cases, then on the facts and circumstances of this case, the discretion not having been exercised at all under a misapprehension that Rule 7 leaves no such discretion, the impugned order was liable to be quashed.;