C. L. Subramaniam Vs. Collector of
Customs, Cochin  INSC 55 (15 February 1972)
MATHEW, KUTTYIL KURIEN
CITATION: 1972 AIR 2178 1972 SCR (3) 485 1972
SCC (3) 542
CITATOR INFO :
RF 1976 SC1686 (22) F 1983 SC 109 (12) D 1983
SC 454 (5) RF 1991 SC1221 (3)
Art. 311 of the Constitution read with
Central Civil Services (Conduct) Rules, 1955---Rule 12(1)--Preventive officer,
Customs, purchased taxis in the name of his wife after informing higher
authorities--Whether violation of rule 12(1) Central Civil Services (Conduct)
Rules 1955-- -Whether denial of the assistance of a lawyer is violation of the
Rule of the Central Civil Services (Classification, Control and Appeal) Rules,
The appellant, a preventive officer, applied
for permission to allow his wife to run a taxi service. He was informed that no
permission was necessary. Thereafter, appellant acting on behalf of his wife,
purchased a few cars which were used as taxis. Later several complaints were
made against him to the effect that he was canvassing business for his wife.
Enquiry was made and the appellant was served with a memorandum stating that
while functioning as Preventive Officer he had contravened the provisions of
Rule 12(1) of the Central Civil Services (Conduct) Rules 1955.
The factual allegation made against him was
that he canvassed business for his wife. An Enquiry Officer was appointed. On
enquiry the appellant was found guilty of contravening rule 12(1) of the
Central Civil Service (Conduct) Rules 1955, and his removal from service was
recommended. On the basis of that recommendation, the Disciplinary Authority
served on the appellant a notice to show cause why he should not be removed
from service. The appellant submitted his explanation; but the Disciplinary was
not satisfied and consequently, the appellant. was removed from service.
The appellant challenged the order by a writ
petition which was dismissed both by a single judge as well as by a Division
Bench of the High Court. On appeal to this Court, it was contended by the
appellant that he was not given a reasonable opportunity of being heard in
respect of the charge levelled against him and there was a violation of rule 15
of ,the Central Civil Services (Classification, Control & Appeal) Rules
1957 and Art. 311 of the Constitution. Hence the order of removal was bad in
law One trained police prosecutor, was appointed as the officer to present the
case before the Enquiry Officer in support of the allegations made against the
appellant. Therefore, the appellant wrote to the Disciplinary Authority for
permission to engage a counsel to defend his case, but even after a number of
written requests, he was not given the permission to engage a legal
practitioner to defend himself. Further, the appellant was denied the
assistance of a government servant. Allowing the appeal,
HELD:(i) In the facts and circumstances of
the case, it was clear that the appellant had not been afforded a reasonable
opportunity to defend himself. The grievance of the appellant that he was
pitted against a trained prosecutor was not considered by the Disciplinary
The fact that the case against the appellant
was being handled by a trained prosecutor was a good ground for allowing the
appellant to engage a legal practitioner to defend him lest the scales should
be weighted against 3--L1031SupCI/72 486 him. The disciplinary authority
completely ignored that circumstance. Therefore, that authority clearly failed
to exercise the power conferred on it under the rule. [490 G] (ii)There had
been a clear violation of rule 15(5) of the Central Civil Service
(Classification, Control & Appeal).
Rules 1957 which provides for the engagement
of a legal practitioner in certain circumstances. The present case required
that the appellant be given a chance to defend himself by a legal practitioner.
Since he was denied such an opportunity, the order was bad and therefore, it
should be struct down. 1495 HI Pet. v. Greyhound Racing Assn. Ltd.,  2
All E.R. 545;
Kalindi Ors. v. Tata Locomotive &
Engineering Co. Ltd,  3 S.C.R. 407; Brooke Bond India Private Ltd. v.
Subba Ramman (S) & another,  2 L.L.J. 417, discussed and
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 11 of 1971.
Appeal by Special Leave from the judgment and
order dated March 26, 1970 of the Kerala High Court in Writ Appeal No.197 of
Appellant appeared in person.
Gobind Dass and S. P. Nayar, for the
The Judgment of the Court was delivered by
Hedge, J., This is an appeal by special leave. The appellant was a Preventive
Officer, Grade, 11, Customs Office, Cochin from June 16, 1962 to January 31,
1963. In April 1962, he applied to the Assistant Collector of Customs, seeking
permission to allow his wife to run a taxi service. He was informed that no
permission was necessary for his wife to operate a taxi service but he should
not canvass any business for his wife. Thereafter, it is said that the
appellant acting on behalf of his wife purchased some cars which were used as
taxis. It appears that there were several ,complaints against the appellant to
the effect that he was canvassing business for his wife. Those complaints were
enquired into. Thereafter on March 25, 1963 the appellant was served with' a
memorandum stating that while functioning as Preventive Officer, Grade II,
Cochin Customs House, during the period June 1962 to January 31, 1963 he had
contravened the provisions of rule 12(1) of the Central Civil Services
(Conduct) Rules, 1955. The factual allegation made against the appellant was
that he canvassed business for his wife. He was told that an enquiry will be
held against him on the basis of that charge.
Sri H. T. Soares, Assistant Collector,
Customs House, Cochin was appointed as the Enquiry Officer. During the pendency
of the enquiry an additional ground in support of the charge was 487 served on
the appellant to the effect that he himself was running the taxi service. After
enquiry the Enquiry Officer came to the, conclusion that the allegations made
against the appellant were established and consequently he was guilty of
contravening rule 12(1) of the Central Civil Service (Conduct) Rules, 1955. The
Enquiry Officer recommended appellant's removal from service. On the basis of
that recommendation the Disciplinary Authority served on the appellant a notice
to show cause why he should not be removed from service. The appellant
submitted his explana- tion. But the same was not accepted by the Disciplinary
Authority. In the result the appellant was ordered to be removed from service.
The appellant challenged that order by means
of a petition under Art. 226 of the Constitution before the High Court of
Kerala. His writ petition was first heard by a single judge who dismissed the
same and the order of the single _judge- was affirmed by a Division Bench of
that High Court. Hence this appeal.
The appellant personally argued his appeal.
He challenged the validity of the order removing him from service on various
grounds. As we are of the opinion that the appellant had not been afforded reasonable
opportunity to present his case and consequently the impugned order has to be
struck down, we do not think it necessary to examine other contentions advanced
by the appellant.
The appellant who was a member of the civil
service of the Union of India was holding his office during the pleasure of the
President; but in view of Art. 311 of the Constitution, he could not have been
removed from service except after enquiry in which he had been given a
reasonable opportunity of being heard in respect of the charge levelled against
him. This procedural guarantee is undoubtedly a valuable one. Breach of that
guarantee vitiates the enquiry.
Removal from service is a major penalty.
Procedure for imposing major penalties is prescribed in rule 15 of the Central
Civil Services (Classification, Control and Appeal) Rules, 1957, a rule framed
under Art. 309 of the Constitution. Sub-rule (5) of that rule provides
"The Disciplinary Authority may nominate any, person to present the case
in support of the charges before the authority inquiring into the charges
(herein-' after referred to as the Inquiring Authority). The Government servant
may present his case with the assistance of any Government servant approved by
the Disciplinary Authority, but may not engage a legal practitioner for the
purpose unless the person nominated by 488 the Disciplinary Authority as
aforesaid is a legal practitioner or unless the Disciplinary Authority, having
regard to the circumstances of the case , so permits." This rule bears
upon the reasonable opportunity contemplated by Art. 311. The validity of; this
rule was not challenged.
Hence all that we have to see is whether the
rule had been complied with. For deciding this question it is necessary to
refer to the relevant facts.
In September 1963, one A. M. Shivaraman was
appointed as the officer to present the case before the Enquiry Officer in
support of the allegations made against the appellant. The said Shivaraman was
a trained police prosecutor. After he was appointed to present the case in
support of the allegations made against the appellant, the appellant wrote to
the Collector of Customs, Cochin, the Disciplinary Authority on October 4, 1963
as follows :
"From : C. L. Subramanlam, Preventive
Officer, Customs House, Cochin-3.
TO The Collector of-Customs, Customs House,
Sir, Sub : Sec. 1/63 Estt-Cus dated 30th
In the above memorandum it is stated in
paragraph 4, that Shri A. M. Sivaraman as the officer to present the case in
support of the- allegations against me before the Enquiry Officer.
I understand that Shri A. M. Sivaraman is
legally trained to conduct such prosecutions.
Under such circumstances I will be prejudiced
in my defence- unless I am permitted to engage a counsel to appear and defend
me during the enquiry. Hence I request that permission be accorded to engage a
lawyer of my choice to represent and defend the charges before the Enquiry
He again reiterated his request for permission
to engage a counsel to defend him in his letter to the Assistant Collector on
489 October 9, 1963. Thereafter he again wrote to the Collector of Customs on
October 14, 1963 as follows It may help me very much too, if you can grant the
permission I have sought for engaging a Counsel of my choice at an early date
so (that I could get the Counsel's assistance for the inspection of documents
too." On October 17, 1963, Sri Scares, Assistant Collector of Customs
wrote to the appellant thus "Secret 1/1/63 Est. Cus Custom House, Cochin-3
17th September 1963 From The Assistant Collector of Customs, Appraising
Department, Customs House, Cochin-3 TO Shri C.L. Subramaniam, Preventive
Officer, Custom House, Cochin-3.
Sub : Establishment-Inquiry into the work and
conduct of Shri C. L. Subramaniam, Preventive Officer, Custom House, Cochin.
With reference to your letter Sc. 1/63/Estt.
Cus dated 14th October 1963, requesting
permission for engaging a counsel to appear and defend you, during the enquiry,
I am directed by the Collector to inform you that although Shri A. M. Sivaraman
is illegally trained, he is not a legal practitioner and hence there is no
necessity for engaging a lawyer to defend you at the enquiry.
Sd/- H. T. Soares, Assistant Collector of
It is clear from that letter that the
Disciplinary Authority had overlooked the fact that the appellant sought
permission to engage counsel not because Sivaraman wag a legal practitioner but
because he was trained prosecutor.
On January 6, 1964, the appellant again wrote
to the Collec- tor of Customs explaining his difficulties in defending himself.
In Paragraph 4 of that letter, the appellant stated "In the nature of
accusations made against me and the nature of their widespread source the
importance 490 of the informants and their intentions, the varying types of
witnesses supporting the charge, the complicated nature of the evidence, the
inexperience I have in assessing the impact of such evidence and in sifting the
evidence for preparing an effective cross- examination and above all the
lurking conspiracy of a series of persons whom I have to deal with firmly in
discharging my duties as a Preventive Officer, all these when con- sidered can
lead you to the only conclusion that if I am denied the assistance of an experienced
counsel at the enquiry it would be tantamount to denial of an opportunity to
defend myself and prove my innocence. This 'would be particularly so in the
conte xt of the present enquiry where evidence have sought to be brought in by
different stages and alleged incidents subsequent to the charges are sought to
be proved in support of the allegations made before such incidents."
Despite these communications, the appellant was not give permission to engage a
legal practitioner to defend himself Therefore the question arises whether the
appellant was give reasonable opportunity to defend himself in accordance with
sub rule (5) of rule 15 of the Central Civil Services (Classification Control
and Appeal) Rules, 1957. The portion of that rule that is relevant for our
present purpose is the last clause which say that the Government servant may
not engage a legal practitioner for the purpose mentioned in that clause
"unless the Disciplinary Authority having regard to the circumstances of
the case so permits".
The grievance of the appellant was that he
was pitted again a trained prosecutor and not that Sivaraman was a legal
practitioner. The Disciplinary Authority did not consider that grievance. It
brushed aside the request of the appellant on the ground that Sivaraman was not
a legal practitioner, a consideration which was not relied on by the appellant.
The grounds urged by the appellant in support of his request for permission to
engage a legal practitioner were by no means irrelevant. The fact that the case
against the appellant was being handled by a trained prosecutor was a good
ground for allowing the appellant to engage a legal practitioner to defend him
lest the scales should be weighted against him. The Disciplinary Authority
completely ignored that circumstance. Therefore that authority clearly failed
to exercise the power conferred on it under the rule.
It is not unlikely that the Disciplinary
Authority's refusal to permit the appellant to engage a legal practitioner in
the circumstances mentioned earlier had caused serious prejudice to the
appellant and had amounted to a denial of reasonable opportunity to defend him
491 The appellant contended that he had a
right to engage a legal practitioner to defend him. He sought to spell out that
right on, the basis that what he could himself do, he could get it done by an
agent of his and a legal practitioner acting for him would only have been his
In support of his contention he placed
reliance on the decision in Pet v. Greyhound Racing Association Ltd.(4). The
facts of that case were as follows Track stewards of a greyhound racing stadium
owned by the defendants proposed to hold an inquiry into the withdrawal of a
trainer's dog from a race at a stadium licensed by the National Greyhound Racing
Club. The inquiry involved the question whether drugs had been administered to
The trainer held a licence from the National
Greyhound Racing Club entitling him to race dogs on tracks licensed by the
club, and thus the result of the inquiry might involve the trainer's reputation
and livelihood. The rules of the club, to which the trainer had agreed when he
obtained his licence, did not prescribe the procedure to be followed by track
stewards at their inquiries, and did not exclude legal representation. The
procedure in fact followed at such an inquiry allowed the trainer to be
present, to hear the evi- dence and to have an opportunity to question
witnesses. The trainer sought to be represented by counsel and solicitor at the
enquiry but the track stewards decided ultimately not to allow legal
representation. On appeal from the grant of an interlocutory injunction
restraining the inquiry from being held unless the trainer were allowed to be
represented, the Court of Appeal held that prima facie the trainer was entitled
to an oral hearing and, the inquiry being one of serious importance to him, to
be represented as it by counsel and solicitor, for he was entitled not only to
appear himself but also to appoint an agent on his behalf, and so was entitled
to appoint lawyers to represent him.
Lord Denning, M. R. who delivered the main
judgment of the court in the course of his judgment dealing with the decision
of stewards that they will not hear lawyers observed "I cannot accept this
contention. The plaintiff is here facing a serious charge. He is charged either
with giving the dog drugs or with not exercising proper control over the dog so
that someone else drugged it. If he is found guilty, he may be suspended or his
licence may not be renewed., The charge concerns his reputation and his
On such an inquiry I think that he is
entitled not only to appear by himself but also to appoint an agent to act for
him. Even a prisoner can have his friend." (1)  2 All E.R. 545.
492 Proceeding further the Master of Rolls
observed "I should have thought, therefore, that when a man's reputation
or livelihood is at stake, he not only has a right to speak by his own mouth.
He has also a right to speak by counsel or solicitor." This decision, in
our opinion, does not bear on the point under consideration. Herein we, are
dealing with a statutory rule, which prohibits the appointment of a legal
practitioner excepting under certain circumstances. Hence the agency theory has
no relevance nor are we required to consider the principles of natural justice
as those principles are only relevant when the concerned procedure is not
regulated by any statute or statutory rule. The rule laid down in Pet's case(1)
has not commended itself to this Court. In Kalindi and ors. v. Tata Locomotive
and Engineering Co. Ltd.(2), a question arose whether in an enquiry by
management into misconduct of a workman, the workman was entitled to be
represented by a representative of the Union. Answering this question this
Court observed that a workman against whom an enquiry is being held by the
management has no right to be represented at such an enquiry by a
representative of the Union though the employer in his discretion can and may
allow him to be so represented. In such enquiries fairly simple questions of
fact as to whether certain acts of misconduct were committed by a workman or
not fall to be considered and the workman is best suited to conduct the case.
Ordinarily, in enquiries before domestic tribunals a person accused of any
misconduct conducts his own case and so it cannot be said that in any enquiry
against a workman natural justice demands that he should be represented by a
representative of his Union. The same view was taken by this Court in Brooke
Bond India (Private) Ltd.
v. Subba Raman (S) and anr.(3). That view was
reiterated again in Dunlop Rubber Co. v. Workmen (4 ).
The learned counsel for the State relied on
the decisions mentioned above in support of his contention that the appellant
was not entitled to have the assistance of a legal practitioner. This
contention is without force. In those cases this Court considered, whether a
person proceeded against in an enquiry before a domestic tribunal had a right
to be represented by someone else on the basis of the principles of natural
justice. Therein this Court was not called upon to consider either the limits
of the reasonable opportunity to defend oneself, guaranteed under Art. 311 or
the scope of a statutory rule. The question that falls for decision in this
case did not arise for decision in those cases.
(1)  2 All E.R. 545.
(3)  2 L.L.J. 417.
(2)  3 S.C.R. 407.
(4)  2 S.C.R. 139.
493 The appellant supported his complaint of
breach of rule 15 (5) on yet another ground. After the appellant's request for engaging
a counsel was rejected, he requested the Disciplinary Authority to let him have
the assistance of Abraham Kurian, clerk, Cochin Head Post Office, Cochin-1.
This request he appears to have made long
before the date of enquiry i.e. December 5, 1963. He had also requested the
Disciplinary Authority to move the superiors of Abraham Kurian to grant
permission to Abraham Kurian to assist him .
But it appears the Disciplinary Authority
wrote to the Superintendent of Post Offices who is stationed at Trichur only on
the 28th of November, 1963 requesting him to permit Abraham Kurian to assist
the appellant. That communication was not received by the Superintendent of
Post Offices in time. Hence Abraham Kurian did not get the permission sought
before the date of enquiry. After learning that fact from Abraham Kurian, the
appellant wrote the following letter to the Collector of Customs on December 4,
No. 16 Customs Quarters Willingdon island,
4th December 1963.
From C. L., Subramaniam, Preventive Officer
Gr. II, Customs House, Cochin-3.
To The Collector of Customs & Central
Excise, Custom House, Cochin-3.
Sir, Sub-Enquiry into the work and conduct of
Shri C. L.
Subramaniam, Preventive Officer, Custom
With reference to your letter dated 3rd
December, 1963 wish to submit as follows Shri Abraham Kurian, Clerk, Cochin
Head Post Office who is to assist me in the enquiry from 5-12-1963 in
connection with certain allegations pending against me has urgently applied to
his superior yesterday itself and is awaiting permission.
494 As I cannot appear for the enquiry
without assistance I re- quest you Sir, to adjourn the hearing by 10 days.
Thanking you, I remain Sir, Yours faithfully,
Sd/- C. L. Subramaniam." On the date of the enquiry, the Enquiry Officer
adjourned the case sine die after obtaining an undertaking from the appellant
that on the next date of the enquiry he would go on with the case even if he
was unable to get the assistance of Abraham Kurian on that date. On December 9,
1963, the appellant wrote to the Enquiry Officer as follows "Sec. No.
1/1/63 Estt. Cus.
9th December 1963 From C. L. Subramaniam,
Preventive Officer, Custom House, Cochin-3.
The Asstt. Collector of Customs (Apprg.),
Enquiry Officer, Custom House, Cochin-3.
Sir, Sub : Enquiry into the work and conduct
of Shri C. L. Subramaniam, Preventive Officer, Custom House Cochin.
I understand from a communication from the
Senior Super- intendent of Post Offices, Trichur addressed to the Assistant
Collector of Customs (Apprg.), Custom House, Cochin with copy endorsed to Shri
Abraham Kurian, that your communication informing that the enquiry was to have
been held from 5-12-1963 was received by the Senior Superintendent of Post
Offices only on 5th December, 1963, and therefore the relief arrangement could
not be made by him.
Now that the enquiry is adjourned it is
requested that you may be good enough to inform the Senior Superintendent of
Post Offices, Trichur (Superior Officer of the Government who assists 495 me)
sufficiently early 'as to the date of the enquiry, so that he may relieve the
Government servant in time.
It is humbly pointed out that unless your
goodself take necessary action in time in this regard it may not be possible to
get me the assistance I have requested for.
Yours faithfully, Sd/- 9-12-63 (C. L.
Subramaniam)" Even after getting this letter, the Enquiry Officer did not
fix the date of the enquiry. It appears that on December 30, 1963 the Enquiry
Officer fixed January 8, 1964 as the date of enquiry. It is only thereafter he
wrote to the Superintendent of Post Offices requesting him to permit Abraham
Kurian to assist the appellant. It is not known when that letter was received
by the Superintendent of Post Offices but Abraham Kurian did not get the
permission sought, before the date of enquiry. Therefore he was unable to
assist the appellant in the enquiry. Hence the enquiry went on without the
appellant having anybody's assistance.
From the facts set out above, it is clear
that the Enquiry Officer did not afford the appellant necessary facility to
have the assistance of another Government servant in defending him which
assistance he was entitled to under the rule. He was deprived of that
assistance solely because of the indifferent attitude adopted by the Enquiry
Therefore we have no hesitation in coming to
the conclusion that the Enquiry Officer had clearly breached rule 15(5).
It is needless to say that rule 15 is a
That rule regulates the guarantee given to
Government servants under Art. 311. Government servants by and large have no
legal training. At any rate, it is nobody's case that the appellant had legal
training. Moreover when a man is charged with the breach of a rule entailing
serious consequences, he is not likely to be in a position to present his case
as best as it should be. The accusation against the appellant threatened his
very livelihood. Any adverse verdict against him was bound to be disastrous to
him, as it has proved to be. In such a situation he cannot be expected to act
calmly and with deliberation. That is why rule 15(5) has provided for
representation of a Government servant charged with dereliction of duty or with
contravention of the rule by another government servant or in appropriate,
cases by a legal practitioner.
For the reasons mentioned above, we think
that there had' been a contravention of rule 15(5). We are also of the opinion
496 that the 'appellant had not been afforded a reasonable opportunity to
defend himself. Hence the impugned order is liable to be struck down and it is
hereby struck down. The facts of this case are not such as to justify any fresh
enquiry against the appellant. Hence we direct that no fresh enquiry shall be
held against the appellant and he be restored to the position to which he would
have been entitled to but for the impugned order. The appeal is accordingly
allowed. The appellant is entitled to his costs from the respondents both in
this Court as well as in the High Court.
S.C. Appeal allowed.