ORDER (1) The petitioner herein who joined the Railway Service on 13-4-28, was confirmed as a Sub-head Stores Accounts on 19-9-1962. By a charge-sheet dated 6-11-1964, the following charge was framed against the petitioner: "that Shri. K. N. Gupta while functioning as a Sub-head in the Fuel Section. Northern Railway, Baroda House, New Delhi, committed gross misconduct and failed to maintain absolute integrity inasmuch as he on 18-3-1964 and 19-3-1964 went to the Central Hospital. Northern Railway, New Delhi, and obtained costly medicines such as Cough Lozenges tablets and one btotle of B-Complex Fort, Glycodine and Terramycine eye ointment against two forged prescriptions in the names of Hari Prakash Gupta and Mahesh. Shri K. N. Gupta has acted in contravention of Rule 3 of the Railway Service (Conduct) Rules. 1956."
The petitioner was asked to submit a written statement of defense nto later than 20-11-1964. He was further asked to state whether he desired to be heard in person and to furnish the names and addresses of the witnesses, if any, whom he wished to call in support of his defense and to furnish a list of documents, if any, which he wished to produce in support of his defense. The petitioner was further informed that if he so desired, he could inspect and take extracts from the documents mentioned in the enclosed list an any time during office hours within seven working days on receipt of the Memorandum. The Memorandum also stated that if the petitioner desired to be given access to any toher official records toher than those specified in the list, he should submit a list of all such additional documents to the officer issuing the Memorandum within five days of completing the inspection of the documents mentioned in the list. The petitioner was also informed that if he so desired he might take the assistance of antoher Railway servant or an official of Railway Trade Union who satisfied the requirements of Rule 1712 (2) of the Railway Establishment Code, Vol. I, for inspecting the documents and assisting him in presenting his case before the Enquiring authority in the event of an oral enquiry being held and for that purpose he should furnish the names of three persons in order of preference to assist him. The petitioner on 9-11-1964 wrtoe to the Senior Accounts Officer seeking permission to inspect and to take copies of six enumerated documents. He requested that a date, time and place for inspection and taking copies of the said documents be advised to him. He further requested that the articles and documents seized by the Railway Vigilance Inspector from the petitioner on 19-3-1964 might be ordered to be returned to the petitioner to enable him to submit his statement of defense. But the petitioner did nto name his defense counsel. The petitioner attended the office of the Special Police Establishment, New Delhi, on 2-1-1965 and on 4-1-1965 and he was allowed to inspect and to take extracts from the statements of the witness. The report of the Special Police Establishment was shown to the petitioner on 12-2-1965 by the Special Police Establishment and his own statement dated 19-3-1964 was also shown to the petitioner by the Special Police Establishment's office. The two forged prescriptions were also seen by the petitioner on 12-1-1965. No toher report of any handwriting expert was made available to the Railways and hence the question f showing the same to the petitioner did nto arise. The recovery-list of articles and documents seized from the petitioner on 19-3-1964 and the receipt and issue register of 18-3-1964 and 19-3-1964 were also shown to the petitioner and he has taken extracts from them. However, when the petitioner wanted to inspect them again, he was advised to attend the S. P. E's office on 15-1-1965 but the petitioner declined to go to that office for that purpose on the allegation that he was nto properly treated there. Ntowithstanding all these things, the petitioner started writing to the Railway authorities contending that he must be furnished with copies of all these documents and only with those copies he would be in a position to get the consent of antoher Railway official to act as his defense counsel. The Railway authorities informed the petitioner that he was given inspection of every document he wanted and he was given the facility to take extracts from those documents and there was no obligation on their part to furnish the petitioner with the copies of those documents. Ntowithstanding this definite stand on the part of the departmental officers, the petitioner went on writing to the department that he must be furnished with the copies. On 27-7-1965, the petitioner also sought permission to engage a professional lawyer to defend his case. By communication dated 31-7-1965 permission to engage a professional lawyer was refused. It is under these circumstances, on 2-8-1965, the Inquiry Officer commenced the oral inquiry.
(2) When the petitioner declined to participate in the inquiry, the Inquiry Officer informed the petitioner that any document the petitioner would like to see would be made available to him for inspection and it would be in the interest of the petitioner himself to participate in the inquiry, Ntowithstanding this, the petitioner did nto participate in the inquiry. On 3-8-1965 , the petitioner produced before the Inquiry Officer the consent of one Shri Kanwar Lal Sabharwal to act as the petitioner's defense counsel and requested for an adjournment of the inquiry till Shri Sabhawal was made available. On the same day he wrtoe to the Financial Adviser and Chief Accounts Officer, Northern Railway, requesting for arranging the presence of Shri Sabhawal at the Inquiry to assist the petitioner. on 7-8-1965, the petitioner was informed by the Financial Adviser and Chief Accounts Officer that it was reported to him that Shri Sabharwal could nto be spared owing to certain administrative difficulties. It is necessary to qutoe the further portion of this communication dated 7-8-1965, which is as follows: "You are, therefore, advised to furnish two more names one of whom to act as your defense counsel. It is reiterated that this is none of the business of the administration to arrange defense counsel for you. You were advised well in advance, the last advice being on 6-7-65 to furnish three names for the purpose, to which you do nto appear to have paid any heed."
I must point out that though this communication was dated 7-8-1965, the oral inquiry was concluded by the Inquiry Officer on 6-8-1965 itself.
(3) The Inquiry Officer after having completed the inquiry without the participation of the petitioner, sent his report t the competent authority holding that the charge against the petitioner was proved. The competent authority accepting the finding of the Inquiry Officer came to the provisional conclusion to remove the petitioner from service and by a ntoice dated 30-9-1965 the petitioner was called upon to show cause against the proposed punishment. Finally, the General Manager passed order removing the petitioner from service on 19-11-1965 and by a communication dated 23-11-1965 the petitioner was informed of the same. Thereafter, the petitioner preferred an appeal to the Railway Board and that appeal was rejected by the Railway Board on 6-8-1966. The petitioner herein has filed the present writ petition challenging the orders of removal passed against the petitioner.
(4) Shri Frank Anthony, appearing on behalf on the petitioner, raised the following three points in support of his attack against the validity of the order of removal passed against the petitioner.
(1) The petitioner had a right to be supplied with copies of various documents, which he asked for and the failure to furnish him with the copies of those documents constituted a denial of reasonable opportunity to the petitioner to defend himself.
(2) The failure of the department to permit the petitioner to have the assistance of a professional lawyer constituted a denial of reasonable opportunity to the petitioner to defend himself.
(3) The failure of the Inquiry Officer to adjourn the inquiry to await the presence of Shri Sabhawal or any toher Railway Official was contrary to the rules and also constituted a denial of reasonable opprtounity to the petitioner to defend himself. I shall deal with these contentions in that order.
(5) In support of his first contention, the learned counsel relied upon a decision of the Punjab High Court A. N. Chopra v. Union of India, reported in 1965 (1) Dlt 407 (Punj), In that case, the summary of certain documents were given to the Government servant concerned, but nto the copies of documents. The learned Judge observed: "In my opinion the Department should have furnished the petitioner with copies of the statements of all the witnesses examined at the investigation stage to enable him to have a full grasp of the case he was likely to meet and to effectively cross-examine the witnesses actually produced before the Inquiry Officer. The failure to do so by the Department amounted to denial of reasonable opportunity to the petitioner to show the cause as to why he should nto be removed from service."
The learned Judge in that case relied upon an unreported decision of the Supreme Court in Trilok Nath v. Union of India, Civil Appeal No.322 of 1957 D/- 1-11-1960 (SC) on which also the learned counsel for the petitioner placed reliance before me. In that decision also, the Government servant concerned did nto participate in the inquiry and Supreme Court observed as follows: "Therefore, in our view, the failure of the inquiry officer to furnish the appellant with copies of the documents such as the first information report and the statements recorded at the Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defense at the inquiry. The inquiry held must, in these circumstances, be regarded as one in violation nto only of Rule 55 but also of Article 311(2)."
Shri Anthony also placed reliance on the decision of the Supreme Court in State of Madya Pradesh v. Chintaman Sadashiva, reported in Air 1961 Sc 1623 and the decision of the Punjab High Court in state of Punjab v. Onkar Nath Joshi, as to what constitutes a reasonable opportunity within the scope of Article 311 of the Constitution.
(6) I am unable to agree with the contention of Shri Anthony that the decision of the Punjab High Court in Chopra's case, (1965) 1 Dlt 407 (Punj.) or the decision of the Supreme Court in Trilok Nath's case, Ca No. 322 of 1957 D/-1-11-1960 (SC) lays down as a general proposition of law that Government servant concerned is entitled to be furnished with copies of the documents irrespective of the fact whether he had an opportunity to inspect those documents and to take extracts from them or nto. A situation like the one in the present case did nto come up for consideration either before the Supreme Court in Trilok Nath's case or before the Punjab High Court in Chopra's case. As I have already mentioned in this case the petitioner was given permission to inspect the documents and to take extracts from them. If the petitioner wanted to take copies of any of the documents made available to him for inspection, there was ntohing to prevent him from doing so. It is nto the case of the petitioner that he wanted to take copies of those documents and he was prevented from taking copies but was permitted to take only extracts. It will be too much of a technicality to contend that it will nto be sufficient if the petitioner is permitted to inspect the documents and take copies of those documents but the department itself must take copies and furnish those copies to the petitioner. As far as the facts of this case are concerned, as I pointed out already, the petitioner was given permission to inspect the documents and take extracts there from. The argument of Shri Anthony is that the petitioner has an absolute right to be furnished with copies of the documents by the department and it is nto enough if he is permitted to peruse or inspect the documents and allowed to take copies of those documents. I am unable to accept this contention which, in my opinion, is nto supported by any authority. On the toher hand, Rule 1711 of the Rules framed by the President of India for the conduct of inquiry into allegations against Railway servants is as follows: "The Railway servant shall, for the purpose of preparing his defense, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Disciplinary Authority, such records are nto relevant for the purposes or it is against the public interest to allow him access thereto." In this case, the action and the attitude of the department was in accordance with this Rule and it was nto the contention of Shri Anthony that this Rule is ultra vires or unconstitutional as offending Article 311 of the Constitution. So long as the department has compiled with the requirement of this Rule, I am unable to see how the petitioner can challenge the proceedings unless be challenges the vires of the said Rule. As pointed out by me already, the vires of the Rules itself is nto challenged by the petitioner and under these circumstances, I do nto see any substance in the first contention of the petitioner. I may further point out that the Punjab High Court in Chopra's case 1965-1 Dlt 407 (Punj) and the Supreme Court in Trilok Nath's case, C. A. No. 322 of 1957 D/- 1-11-1960 (SC) were nto considering a case to which a rule like Rule 1711 applied.
(7) I do nto find any merit in the second contention of Shri Anthony that the refusal of he department to permit the petitioner to have the assistance of a professional lawyer vitiated the inquiry in this case. Shri Anthony relied upon the decision of the Punjab High Court of Andhra Pradesh in Dr. K. Subba Rao v. State of Hyderabad, reported in Air 1957 Andh Pra 414. In Chopra's case 1965-1 Dlt 407 (Punj) the learned Judge has stated as follows: "Further, he should have been allowed to engage a counsel or to have the assistance of a handwriting expert to cross-examine the Government handwriting expert because for obvious reason a layman could nto have effectively cross-examine such an expert."
I do nto understand this passage to lay down as a general principle of law that if a Government servant was denied the opportunity of having the assistance of a professional lawyer, the inquiry conducted into the charges against him must be held to be vitiated. The decision of the Punjab High Court in Chopra's case, 1965-1 Dlt 407 (Punj) must have reference to the facts of that case. Even there, the learned Judge points out that the petitioner therein should have been allowed to engage a counsel or to have the assistance of hand-writing expert, and therefore, that decision cannto support the contention of the petitioner. In the judgment of the Andhra Pradesh High Court referred to, it was observed: "Rightly or wrongly when the petitioner was under a reasonable apprehension that the enquiry was the result of a preconceived plan and a concerted action on the part of the Medical Department, his request for professional help was certainly justified and the enquiry officer should have given him that opportunity. His refusal to accede to that simple request has certainly deprived the petitioner in the circumstances of the case of an opportunity to defend himself."
Thus, it will be seen that btoh the above decisions held that the Government servants concerned in those cases should have been given an opportunity to engage a professional lawyer only with reference to the special facts and circumstances of those cases. Therefore, I am unable to accept the contention of the learned counsel for the petitioner that as a general proposition of law, it must be held that the refusal of the department to allow the petitioner to have the assistance of a professional lawyer has vitiated this inquiry. Further, the petitioner when he applied for such permission on 27-7-1965 merely stated as follows:
"Besides this, I may be permitted to engage a counsel to represent my case before the Inquiry Officer who is a legal man of repute because many complicated questions of law and facts are involved in this case". If this request of the petitioner was nto complied with, I am unable to hold that the petitioner has been denied a reasonable opportunity to defend himself. Again R. 1712 (2) of the Rules promulgated by the President of India under the proviso to Article 309 of the Constitution relating to the enquiry into charges against the Railway servants is as follows: "The accused railway servant may present his case with the assistance of any toher railway servant employed on the same Railway (including a railway servant on leave preparatory to retirement) on which he is working.
Ntoe:-- In the case of a non-gazetted railway servant, he may have the assistance of an official of a Railway Trade Union recognised by the Railway on which the accused railway servant is employed, but shall nto engage a professional lawyer. The term 'professional lawyer' includes those who are competent to practice in a Court of law. ................................"
Thus, this Rule expressly prohibits the appearance of a professional lawyer before the Enquiry Officer. Here again, it is nto the case of Shri Anthony that this Rule unconstitutional as offending Article 311 of the Constitution, with the result the action of the railway department refusing the petitioner to have the assistance of a professional lawyer before the Inquiry Officer was fully in accordance with this Rule. Under these circumstances, the action of the railway authorities refusing the petitioner to have the assistance of a professional lawyer cannto be challenged. Consequently, I reject the contention of the learned counsel for the petitioner in this behalf.
(8) Then there remains the point regarding the denial to the petitioner of an opportunity to have the assistance of a defense counsel. As I pointed out already, the petitioner did nto name a defense counsel at the earliest opportunity and went on asking for copies of documents and stating that he could nto name a defense counsel without obtaining the copies to the defense counsel concerned. Finally, on 3-8-1965, he produced the consent of Shri Subharwal to act as his defense counsel and asked for an adjournment of the inquiry. On 7-8-1965, the Financial Adviser and Chief Accounts Officer advised the petitioner to furnish two more names one of whom to act as his defense counsel. But at that time, the inquiry was over on 6-8-1965 itself. Therefore, the only question that remains for consideration is whether the failure of the Inquiry Officer to adjourn the inquiry to enable the petitioner to procure the assistance of a defense counsel vitiated the inquiry or nto. If the department had taken the attitude that the petitioner did nto name a defense counsel at the earliest opportunity and, therefore, they were nto willing to permit the petitioner to name a defense counsel at a later stage, it would have been a different matter. The portion of the letter dated 7-8-1965 which I have extracted already clearly shows that even on that date the department was willing to allow the petitioner to have the services of a defense counsel, but by that time, the inquiry had been completed. Therefore, it must be held that in so far as the inquiry was nto adjourned, to enable the petitioner to have the assistance of a defense counsel, the petitioner was denied an effective opportunity to defend himself. Shri Anthony in support of his contention relied upon Rules 43 and 46 of "Discipline and Appeal Rules for non-gazetted Railway Servant, 1957" issued by the General Manager, Rule 43 (b) provided that in the departmental inquiry, if the railway servant so desires, he may be accompanied by antoher railway servant or by an official of a recognised Railway Trade Union (who is nto a professional lawyer) and the officer or the Committee of inquiry shall give the accused railway servant all reasonable facilities for the conduct of his defense including the cross-examination of witnesses. Rule 46 states that the Committee should ascertain from the Executive Officers concerned in writing whether the railway servants nominated by the accused employee to act as his defense counsel can be spared and also in case of those whom they are unable to spare, the circumstances under which it is nto possible to spare them and if it is impracticable for administrative reasons or toherwise to spare the railway servants nominated by the accused railway employee he should be informed promptly to enable him to nominate antoher defense counsel. The said Rules were framed by the General Manager in exercise of the powers conferred on him by Rule 1726 of the Rules. Indian Railway Establishment Code. Vol. I. The argument of Shri R. B. Nanak Chand, appearing for the respondents, is that these subsidiary Rules made by the General Manager in exercise of the powers under Rule 1726 of the Railway Establishment Code Vol. I ceased to have any force after coming into force of the new Discipline and Appeal Rules for Railway Servants with effect from 1st August 1961. It may be pointed out that these new Rules which came into force on 1st August 1961 also contained a Rule, viz., Rule 1737, in identical terms with Rule 1276 of the Repealed Rules enabling the General Manager to make subsidiary Rules nto inconsistent with the Rules promulgated by the President under the proviso to Article 309 of the Constitution. It is unnecessary for me to express any final opinion on this connection of Shri Nanak Chand in view of the fact that under Rule 1712(2) itself, the petitioner herein had a right to get the assistance of antoher railway servant as his defense counsel and till 7-8-1965, the departmental authorities were themselves willing to allow the petitioner herein to have that assistance, but the inquiry was completed on 6-8-1965 itself without the petitioner having the assistance of a defense counsel. Taking these facts into account, I hold that the failure of the Inquiry Officer to adjourn the Inquiry to enable the petitioner to have the assistance of a defense counsel in the circumstances of the case vitiated the inquiry and constituted a denial of an effective opportunity to the petitioner to defend himself against the charge formed against him.
(9) In this view, I allow the writ petition and quash the orders removing the petitioner from service. But I do nto make any order as to costs taking into account the conduct of the petitioner in nto naming the defense counsel at the earliest opportunity and in going on writing to the department asking for copies of documents even after he was told definitely that there was no obligation on their part to furnish copies of documents once he had been given inspection of all the documents and he was permitted to take extracts from them.
(10) Petition allowed.