- (1.) THIS is a petition under Art. 226 of the Constitution. It prays for prohibition commanding the Munsif, Meerut, not to proceed with a suit filed by respondent 2 against the petitioner and for quashing the proceedings.
(2.) THE petitioners are the officers of Life Insurance Corporation of India. On 6 July 1924 a chargesheet was served on R. C. Anand an assistant in the Stores and Stationery Department of the Divisional Office, Life Insurance Corporation of India at Meerut. Anand was charged with acts of fraud, criminal misappropriation and criminal breach of trust in respect of goods and articles of the Life Insurance Corporation. He was afforded an opportunity of explanation, The inquiring officer commenced the enquiry on 9 February 1965. Sri Krishnadeo Sharma, advocate, Meerut, requested the inquiring officer for permission to appear before him and represent the case of R. C. Anand. The inquiring officer refused permission on the ground that under the rules Anand was not entitled to be represented by an advocate. Sri Krishnadeo Sharma repeated his request but was again refused permission to appear. While the enquiry was proceeding Sri Sharma instituted a suit (No. 1065 of 1966) in the Court of City Munsif, Meerut, against the petitioners for a permanent injunction restraining them interfering with Sri Sharma's right to represent Anand in the enquiry proceedings. In the plaint it was stated that Anand had engaged Sri Sharma as his legal counsel for representing and pleading for him in the enquiry proceedings. Sri Sharma alleged that he was a practising advocate and was on the common rolls of advocates of the Bar Council of Uttar Pradesh and as such was entitled to practise before any tribunal or person legally authorized to take evidence. The enquiry officer, who was a defendant to the suit, was legally authorized to take evidence and was actually doing so, and so, Sri Sharma was entitled to appear before the inquiring officer. On 8 December 1966,, the learned Munsif issued an ad interim injunction restraining the petitioners from conducting the enquiry without allowing the plaintiff-advocate to represent the charged employee. The petitioners alleged that the suit is not maintainable and the entire proceedings are Without jurisdiction and void. The petitioners' case is that the respondents have misunderstood the provisions of S. 30 of the Advocates Act and on a true reading thereof Sri Sharma had no cause of action and the learned Munsif had no jurisdiction to entertain the suit or to issue an injunction. The question at the threshold, therefore, relates to the interpretation of S. 30 of the Advocates Act, 1961. This provision reads: "30. Subject to the provisions of this Act, every advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the territories to which this Act extends. - (i) in all Courts including the Supreme Court; (ii) before any tribunal or person legally authorized to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise." For the respondents reliance is placed upon the second clause of this section. It is urged that the inquiring officer was a tribunal or a person. He was legally authorized to take evidence. For the petitioners it is urged that the Life Insurance Corporation of India or the regulations made thereunder do not authorize the inquiring officer to take evidence. It is contended that before a person can be said to be legally authorized to take evidence he must have been conferred authority by law to summon witnesses and compel production of documents.
(3.) IT is to be noticed that S. 30 used the word "legally." It is to be distinguished from "lawful." In Words and Phrases (Permanent Edition, Vol. 24, p. 525) it is stated that legal "looks more to the letter, and lawful to the spirit, of the law." "Legal" is more appropriate for conformity to positive rules of law; "lawful" for accord with ethical principles. The legislative intent hence appears to be that there ought to be positive rules of law authorizing the inquiring officer to take evidence. In the same book at p. 565 the term "legally" is distinguished from "fairly". It is stated that the word "fairly" as used in the statute is interpreted in "good faith" while "legally" is interpreted as referring to the statutes of the State. So the phrase "legally authorized" denotes that the tribunal or person has been authorized by a statue or statutory rules. The tribunal or person should be authorized to "take evidence." In my opinion the submission for the petitioner, that the phrase "take evidence" denotes a capacity to call for evidence and not merely to record what is adduced by the parties is sound. The officer should have legal authority to summon witnesses and compel production of documents. In Tej Pal Singh v. M. C. Desai and others [1968 - I L.L.J. 292], a Division Bench of this Court held that an officer holding an enquiry under rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, is a person legally authorized to take evidence because under S. 4 of the Uttar Pradesh Disciplinary Proceedings (Summoning of Witnesses and Production of Documents) Act, 1953, the inquiring officers have been empowered to summon witnesses and compel production of documents. I am not impressed by the submission made on behalf of the respondents that the fact that an inquiring officer has been duly appointed to hold the enquiry, he should be deemed authorized to call for evidence. In the absence of rules authorizing him to do so, it seems doubtful that the inquiring officer has any inherent right to force any person to appear as a witness before him or compel him to produce documents or even to compel the parties before him to do so.;