S.Y. Venkateswaralu vs The Director General of Ordnance Factories and Another

G. Ramanajum, J.—The petitioner herein was an Assistant Cashier in the Cordite Factory, Aruvankadu, Nilgiris. In April, 1963, the

Cumulative Time Deposit Scheme was introduced in the Factory and one Radhakrishnan, an Assistant Cashier, was in charge of that scheme. The

petitioner was asked to attend to the work relating to the scheme on 8th January, 1964 after relieving the said Radhakrishnan. After the petitioner

took over the work relating to the said scheme, certain irregularities and shortages of funds had been noted. In relation to those shortages and

irregularities charges have been framed against the petitioner as well as five others.

So far as the petitioner is concerned, the charge memo. was served on him setting out as many as six charges. The said charges related to

defalcation by the petitioner of huge amounts while he was in charge of the said scheme. The charge memo. was served along with a memo., dated

5th June, 1969. In that memo., the petitioner was informed that it was proposed to hold an enquiry against the petitioner in relation to the charges

under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. As soon as the said memo. was served on the

petitioner he, by his letter, dated 20th June, 1969, requested the Department to permit him to engage a legal practitioner to defend him. But, the

Department, by its letter, dated 17th April, 1970, rejected that request in the following words:

With reference to your request for engaging a lawyer to assist you in the forthcoming Court of Enquiry to be held in connection with the charges

levelled against you in the above quoted Memorandum, please note, that it is not permissible for you to engage a legal practitioner vide, Sub-rule

(8) of Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 since the presenting officer appointed by the Government

is not a legal practitioner.

Subsequently, the petitioner''s Advocates, Ms. Devraj and Sridharan, addressed a letter, dated 23rd April, 1970 to the General Manager,

Cordite Factory, Aruvankadu, asserting that the petitioner has got the right to have the services of legal practitioners as the charge against the

petitioner is one of misappropriation which, if proved, will entail serious consequences. The department replied to the petitioner''s counsel stating

that the request of the counsel to appear on behalf of the petitioner in the departmental enquiry cannot be complied with. The petitioner was,

however, intimated by a letter, dated 4th May, 1970, by the Department stating that if the petitioner wants, he can have the assistance of another

Government servant to defend him at the enquiry. But the petitioner, however did not appear before the Enquiry Officer nor take part in the

enquiry. This attitude appears to have been adopted by the petitioner as a protest against the refusal of the department to permit the petitioner to

have the services of a counsel in defending him during the enquiry proceedings.

As a result of the petitioner''s non-participation in the enquiry, the enquiry proceeded ex parte and ultimately, the Enquiry Officer found him

guilty of all the charges levelled against him. On the basis of the said findings, the petitioner was dismissed from service by an order, dated 30th

August, 1972. Later, the petitioner filed an appeal to the Director-General, Ordnance Factories, Calcutta, the appellate authority. The said appeal

was, however, dismissed holding that the statutory procedure has been complied with, that the finding''s are justified, that the penalty imposed is

adequate and that there is no reason or mitigating circumstances to modify the punishment imposed. Aggrieved against the original order of

dismissal as affirmed by the appellate authority, the petitioner has come to this Court and seeks a writ of certiorari to quash the original order of

dismissal as affirmed by the appellate order.

One of the grounds of attack against the order of dismissal is that the petitioner was not given a due and proper opportunity to defend himself

and that, therefore, there is a clear violation of the principles of natural justice in the conduct of the enquiry as against him. It is contended that as

soon as he was informed of the enquiry contemplated against him in relation to the charges levelled against him, he requested for permission to

engage a counsel, having regard to the seriousness of the charge, but the department has, without any justification, rejected the said request, that

this rejection had resulted in the denial of a fair and reasonable opportunity for the petitioner to defend himself in the departmental enquiry, and that

therefore, the order of dismissal cannot, legally, be sustained. In support of this contention, the learned Counsel for the petitioner referred to the

decision of the Supreme Court in C.L. Subramaniam v. The Collector of Customs, Cochin 1, and submitted that in view of the said decision of the

Supreme Court, the order of dismissal impugned in the writ petition should be set aside. In the case before the Supreme Court, the delinquent

officer sought the permission of the Enquiry Officer to engage a legal practitioner. But that request was refused on the ground that the presenting

officer was not a legal practitioner. The Supreme Court held that such a rejection is violative of Sub-rule 5 of Rule 14 of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965, and therefore, the petitioner cannot be taken to have been given a reasonable opportunity to

defend himself. As I have already stated, the reason for rejecting the petitioner''s request to engage a legal practitioner, in this case, is that the

department has not engaged a legal practitioner to present its case before the enquiry officer and therefore, the petitioner, also, is not entitled to

have the assistance of a legal practitioner. As pointed out by the Supreme Court, the reasoning given in the order for rejecting the petitioner''s

request for engaging a legal practitioner is not quite correct or germane.

We are concerned in this case with Sub-rule 8 of Rule 14 which is as follows:

The Government servant may take the assistance of any other Government servant to present the case on his behalf but may not engage a legal

practitioner for the purpose unless the presenting officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority,

having regard to the circumstances of the case, so permits.

The rule contemplates permission being given to the petitioner for the engagement of a legal practitioner on two grounds: (1) the presenting

officer happens to be a legal practitioner; or (2) the circumstances of the case warrant such an appointment. The department in this case has

rejected the request of the petitioner only on the ground that the presenting officer was not a legal practitioner. But whether the circumstances of

the case justified the engagement of a legal practitioner by the petitioner has not been considered, at all. Therefore, it has to be taken that the Sub-

rule 8 of Rule 14 has not been followed in this case in rejecting the petitioner''s request for engaging a legal practitioner. In the case before the

Supreme Court, under similar circumstances, the Supreme Court has held that there was not a fair and reasonable opportunity given to the

delinquent officer in defending himself at the enquiry. Following the decision of the Supreme Court, I have to hold that the petitioner did not have a

reasonable opportunity to defend himself at the enquiry. Having regard to the serious nature of the charges framed against the petitioner, the

Enquiry Officer would have been justified in permitting the petitioner to engage a legal practitioner. For these reasons, I have told that there has

been a contravention of such-rule 8 of Rule 14 in that the petitioner''s request for the engagement of a legal practitioner has been arbitrarily rejected

and that the petitioner did not have a reasonable opportunity to defend himself. Hence the impugned order is liable to be struck down and it is

hereby struck down. Having regard to the fact that the impugned order has been set aside only on the ground that the petitioner did not have a

reasonable opportunity to defend himself, the Department is entitled to conduct the enquiry de novo on the basis of the same charges after giving a

reasonable opportunity to the petitioner to defend himself. No costs.