- (1.) THIS D. B. Special Appeal has been filed against the judgment and order of learned Single Judge in writ petition No 732/1973 dated April 3, 1986 by which the writ petition of the petitioner was dismissed.
(2.) IN this writ petition filed under Article 226 of the Constitution of INdia, the petitioner has challenged the validity of order (Annexure-4) dated September 21, 1979 whereby the petitioner has been removed from service as a measure of punishment in disciplinary proceedings initiated against him under Rule 16 of the Rajasthan Civil Services (Classification Control & Appeal) Rules 1958 (hereinafter referred to as 'the Rules, 1958') It will suffice to state that the petitioner was a member of Rajasthan Administrative Service, having been selected for appointment in the said service in the year 1960. From June 1, 1966 to October 4, 1967, he was posted as Vikas Adhikari, Panchayat Sarniti Bhadra in District Sriganganagar. One Yash want Singh lodged a written complaint to the Collector, Sriganganagar alleging misappropriation and illegalities in the purchase of french leather (condoms) by the Panchayat Samiti Bhadra. The Deputy District Development Officer seized the record of the Panchayat Samiti and after making enquiry submitted a fact finding report to the Collector, Sriganganagar, on May 1, 1967. On the basis of this report the petitioner was suspended on February 3, 1968 and a first information report was lodged with police against the petitioner on September 25, 1968, and the matter was also referred to the Anti Corruption for taking necessary action. However, the Anti Corruption Department suggested that action be taken against the petitioner departmentally whereupon he was served with a charge sheet on April 29, 1972. The disciplinary authority after considering the report of the enquiry officer, served show cause notice dated September 14, 1977 (Annexure-13) on the petitioner informing him that the State Govt. has provisionally decided to dismiss the petitioner from service and he was required to show cause against the proposed action. The appellant submitted his representation dated September 28, 1979, raised objections against the report of the Enquiry Officer and controverted in details each charge held to be proved against him. The above mentioned representation was referred to R. P. S. C. which after considering the whole matter recommended that the petitioner be removed from service. Thereafter the disciplinary authority passed detailed order dated September 21, 1978, (Annexure-4), in which the evidence relating to various charges and the finding recorded on each charge was considered and the recommendation of the R. P. S. C. was accepted for imposing the punishment of removal from service. Shri Singhi, learned council for the appellant has mainly raised three grounds during the course of arguments. Firstly, it is contended by learned counsel that the petitioner-appellant was not allowed inspection of relevant documents to enable him to prepare the proper defence regarding the charges levelled against him. The learned counsel has pointed out several exhibits but it will be appropriate to refer only Annexure 5, in which three lists of documents are given, which the appellant wanted to inspect. The details of the documents have been given in three lists. It was contended by Shri Chatterjee, learned Govt. Advocate that the appellant was allowed inspection of the record of the Anti Corruption Department, therefore, this grievance of the petitioner-appellant has no force. We have specifically enquired from the learned Govt. Advocate whether the document mentioned in three lists of Annexure 5 are included in the file of Anit Corruption Department. This file was available in Court and after searching the file we were informed that these documents were not available on the file of Anti Corruption Deptt. The appellant wrote a letter dated June 7, 1972, which is available on record in which it was mentioned by him that the documents for which the inspection has been requested were not available in the file of A. C. D. and therefore, the inspection of the same may be allowed before the reply is filed by him. The learned counsel for the appellant further contends that since the inspection of these documents mentioned in Annexure 5 was not allowed it is sufficient to vitiate the whole enquiry. If these documents were not relevant in the opinion of the disciplinary authority, it was its duty as per the provisions of the Rules 1958 to have recorded the reasons for holding these documents to be irrelevant. It was submitted that this Court need not go into the question of the relevancy of these documents and it should be left to the disciplinary authority to take any view regarding the same. We do not agree with this contention of the learned counsel as this Court can always go into the details and see whether any of the documents mentioned in Annexure 5 are relevant for the purposes of the enquiry. We have gone through the three lists of the documents mentioned in Annexure 5 and are of the opinion that these documents were relevant for the purpose of enquiry and the disciplinary authority should have allowed the inspection of these documents to the appellant. In all fairness, the appellant should have been given chance to inspect these documents and prepare his defence accordingly so that he has full opportunity to defend himself. The second contention raised by the learned counsel for the appellant is that the evidence tendered by the appellant has not been considered by the enquiry officer or the disciplinary-authority. It is pointed out that affidavit of Padam Singh, who was originally cited as witness by the State but had been given up was filed but his affidavit was not considered on the ground that he was not produced by the appellant for cross-examination. Similarly, affidavit of two other witnesses Jhumar Lal and Narain Das, were not considered on the same ground. It is further pointed out by the learned counsel that if the State wanted that these witnesses may be produced for cross-examination, the same could have been done and since no such demand was made on behalf of the State, the appellant came to the conclusion that these witnesses were not required for cross-examination by the State. It is also contended that the learned Single Judge has erred in holding in the impugned judgment that the enquiry officer has considered the evidence of Subhash Chandra Mittal, Padam Singh and Mahavir Prasad, when in fact Subhash Chandra Mittal and Mahavir Prasad were neither examined in the enquiry nor any affidavits on their behalf had been filed. It is, therefore, contended that in these circumstances, it is evident that the learned Single Judge was under misconception and it cannot be said that the affidavits filed by the petitioner in support of his defence were considered and not excluded by the enquiry officer. It may be pointed out that as per the provisions of sub-rule (6) (a) (I) of Rule 16 of the Rules, 1958, the evidence of any person which be of a formal character can be given by affidavit and, subject to all just exceptions, be accepted in the evidence in departmental proceedings. It is further procued that where the enquiry officer thinks fit that the person should be summoned and examined personally, or if either party, namely, the presenting officer or the delinquent officer insists on the personal attendance of the witness arrangements should be made for the personal attendance of such witness. Therefore, it is evident that if the enquiry officer wanted that the witnesses whose affidavits have been filed by the appellant should be called for cross-examination, he could have done so and it was duty of the appellant to have produced his witnesses for this purpose. Evidently this rule has been ignored to the disadvantage of the appellant.
(3.) THE third contention of the learned counsel for the appellant is that the request of the appellant to be represented by the legal practitioner during the course of enquiry should not have been refused since the department was represented by a person who had remained a prosecution inspector for several years even though at the relevant time when the enquiry was held, he was holding the post of Deputy Superintendent of Police. It is submitted by the learned counsel that the appellant is not trained in law so as to enable him to carry on the proceedings him self when the department was represented by a person who had remained prosecutor for several years. It is contended by learned Govt. Advocate that the appellant is a Law Graduate and therefore, fully trained to look after his case and qualified to cross-examine and conduct the proceedings before the enquiry officer which is only a departmental enquiry. It may be mentioned that the learned Single Judge has referred to the decisions of C. L- Subra-maniam vs. THE Collector of Customs, Cochin (1) and the Board of Trustees of the Port of Bombay vs. Dilip Kumar Raghvendra Nath Nadkarni (2) as well as the decision of the Full Bench of the Calcutta High Court in Nripendra Nath Bagchi vs. Chief Secretary, Govt. of West Bengal (3) and the decision of this Court in Sunder Lal vs. THE Regional Assistant Labour Commissioner and Conciliation Officer, Bhilwara (4 ). While discussing these authorities the learned Single Judge came to the conclusion that it must be held in cases where the department is represented by a person trained in law, the delinquent officer may be permitted to enagae a lawyer to defend him during the course of the inquiry. " THE learned Single Judge further observed that Shri D. C. Malik, who had remained Prosecuting Inspector was however, not holding any such post at that time when enquiry was held and that the petitioner as per letter Annex. 12, could have taken assistance of a government servant, who may be in the service of Government of Rajasthan but he did not choose to do so. It was also observed that the petitioner was person well-versed in law as well as legal decisions. THErefore, it was held that the petitioner cannot be said to have suffered any prejudice on account of refusal on the part of the authorities to permit the peti-tioner to engage a legal practitioner to defend him during the course of enquiry. We have considered the whole aspect of this contention in details. An additional affidavit has been filed by the appellant on September 16, 1989, in which it has been stated by the appellant that he was not trained, competent and experienced person in law in conducting the cases. Even though he remained Magistrate for about nine months and passed LL. B. in the year 1975 but never practiced in law and that the court does not give any practical training for conducting cases in court of law. It is also stated that majority of prosecution witnesses were examined prior to appellant's passing LL. B. and that the person representing the department was well-trained prosecutor who had experience of conducing complicated cases on behalf of the prosecution. Sub-Rule (5) of Rule 16 of the Rules, 1958 provides that the disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into charge. The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage legal practitioner for the purpose unless the person nominated by the Disciplinary Authority is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits. Explanatiom-For the purpose of this sub-rule a Public Prosecutor, Prosecuting Inspector or a Prosecuting Sub-Inspector shall be deemed to be a legal practitioner: (i) Provided that no Government servant shall be entitled to take up more than one case at a time. At the time of appearance before the Inquiring Officer the retired government servant should certify that he has only one case on hand at that time. (ii) Provided further that if the retired Government servant is also a legal practitioner, the restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf would apply. It is needless to say that Rule 16 is a mandatory rule and it relates to the guarantee given to the Govt. servants under Art. 311 of the Constitution of India. It may be mentioned that when a person is charged to have committed breach of any rule which entails serious consequences, generally such a person is not likely to be in a position to present his case himself in the best manner as it should be done. Adverse decision against him is bound to be disastrous for the delinquent officer and in such a situation the person involved in the enquiry or charge to have committed any misconduct may not be able to act calmly and with deliberation. The consequences of the enquiry and decision under Rule 16 are far reaching. In the decision of C. L. , Subramaniam (supra), it was held by the Apex Court that when Government servant, appoints a trained prosecutor to presents its case against the government servant, refusal to permit government servant to engage a legal practitioner vitiates the enquiry. Similarly in Board in Trustees of the Port of Bombay (supra) it was held by the Apex Court that where employer appoints legally trained personnel for presenting and prosecuting the case in the enquiry, refusal to permit the delinquent employee to engage legal practitioner for his defence would be violence of natural justice. It was further observed that the "procedure prescribed by law " within the meaning of Article 21 needs to be followed. The expression 'life' in Article 21 does not merely connote animal existence or a continued drudgery through life but has a much wider meaning. It was further observed that where, therefore the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, some of the finer graces of human civilization which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedures. A reference may also be made to decision of Sunder Lal v. The Regional Assistant Labour Commissioner and Conciliation Officer, Bhilwara (supra), which was a case in which charges were framed against a workman. The presenting officer was assisted by the company lawyer but when petitioner applied for assistance of legal practitioner, the permission was not allowed. It was, therefore, held that in such circumst-ances the enquiry officer ought to have allowed the employee to have assistance of a lawyer. In the I present case the appellant was pitted against a trained legal practitioner who had several-years of experience of working as Public Prosecu-tor while the appellant cannot be said to have any experience of conducting the cases. The appellant has stated on affidavit that most of the witnesses were examined before he passed out LL. B. Even though it may be taken that he was holding degree of LL. B. , this is not enough to disentitle the appellant from the assistance of a lawyer when the department was represented by a trained and experienced prosecutor, even though he was holding the post of Deputy Superintendent of Police at the relevant time. There is no doubt that even in a domestic enquiry there can be very serious charges, and an adverse verdict may completely destroy the future of the delinquent employee and may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake. Nripendra Nath Bagchi V. Chief Secretary, Govt. of West Bengal (supra) was a case in which the appellant was on the post of Additional District Judge. Considering the whole matter, it was held that having regard to the volume of I depositions, number of witnesses and documents dealt with in the departmental \ proceedings in the instant case, the assistance of a lawyer, even for the purpose ! of making notes, was denial of adequate opportunity under the relevant Rules and Art. 311 (2) of the Constitution. Therefore, the opportunity cannot be denied to the appellant merely on the ground that he is holding a degree of LL. B. We are therefore, of considered opinion that the appellant should have been given opportunity to be represented by a legal practitioner during the course of the enquiry. ; ;