V.R. KELKAR Vs. THE STATE OF MYSORE

JUDGEMENT

(1.) THE petitioner in this case was working as a Muster Clerk in P.W. D. Hayeri Sub -Division, Haveri during the year 1959. After a preliminary enquiry charges were framed against the petitioner alleging that he while working as Muster Clerk marked false while working as a Muster Clerk marked false attendance as present in respect of Mazadoor Peerappa Shivappa from 21 -3 -1959 to 20 -4 -1959, even though the said Peerappa Shivappa did not attend to the work on those days, and the pay of the said Mazadoor Peerappa Shivappa was claimed, taking a receipt with the thumb impression of one Thippanna and misappropriated a sum of Rs. 4247 nP., being therefore guilty of fabricating false evidence by marking false attendance and also misappropriating Government money to the extent of Rs. 42.47 nP. The payment is alleged to have been made on 12 -5 -1959. In support of the charges six witnesses were examined including Mazadoor Peerappa Thippanna and the Hand -Writing Expert D.J. Doddamani. In answer to the charges framed against him the petitioner filed his written statement on 20 -4 -1960 stating that during the relevant period Mazadoor Peerappa was working and that his attendance had been marked correctly. He also stated "I endorsed the thumb impressions on ascertaining from the respective coolies that they had received payments accordingly as it was usual routine affair." He also asked for permission to engage a lawyer for his defence for the reason that he did not know how to express in English.

(2.) THIPPANNA in his evidence has stated that he was literate that he never put his payment and that on this occasion he was asked by the petitioner to put his left thumb mark. He identifies his thumb impression on the relevant entry relating to the sum of Rs. 42.47 nP. Thippanna also states that Peerappa was not working during the relevant period. This evidence is corroborated by Peerappa who states that he did not do any work during the relevant period and that he did not receive any payment D.J. Doddamani who is the Finger Print Expert, has deposed that the admitted thumb impression corresponding to the payment of Rs. 42.47 nP. Nothing is elicited in the cross -examination of these persons to indicate that their statements are unworthy of credence. On the basis of the evidence recorded and the statements file by the petitioner, the Enquiring Officer in a detailed and well considered order came to the conclusions that the charge against the petitioner was proved and recommended the dismissal of the petitioner from service. The Government agreed with the finding of the Enquiring Officer. The petitioner was also served with a show cause notice with the findings recorded by Government and the report of the Enquiring Officer on 15 -11 -1960. The representation of the petitioner dated 8 -12 -1960 was considered to be unsatisfactory. The opinion of the Public Service Commission was also against the petitioner. The respondent therefore passed orders on 18 -6 -1961 dismissing the petitioner from service.

(3.) SECONDLY , it was contended by Mr. Datar that the petitioner had not been given reasonable opportunity to explain his case. In para 11 of the affidavit filed by the petitioner, it is stated that the petitioner filed an application for permission to engage a pleader but the said application was rejected without any justifiable cause. It may be mentioned that as a matter of fact, no application for permission to engage a pleader has been made by the petitioner in the explanation submitted by the petitioner on 20 -4 -1960 be merely states: "I request that I should permitted to engage a lawyer for my defence as I do not know how to express in English." There is nothing to indicate that this request was seriously pressed before the Enquiring Officer when he started the enquiry. On the other hand, it is seen that without any protest the petitioner has cross -examined the witnesses in support of the chargesheet. Further, the Enquiring Officer was not called upon to consider whether in the circumstances of the case he should permit a pleader to appear for the petitioner in the enquiry. Mr. Datar in support of his contention that in being refused the services of a lawyer the petitioner was denied a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, strongly relies on the decision reported in Muniswamy v. State of Mysore 19632 Mys LJ 1 : AIR 1964 Mys 250. In this decision their Lordships did not express any opinion on the question whether for fully availing the reasonable opportunity ensued by Art. 3112 of the Constitution counsel as of right should be appointed in every such proceeding. Therefore, the observation made in the aforesaid decision supporting the view that the denial of the right to a delinquent official to be represented by a counsel would amount to denial of reasonable opportunity are obiter dicta. It also appears to us that a delinquent Government servant cannot be equated to an accused facing a criminal prosecution. A Government servant is in a responsible and privileged position. The opportunity that can be afforded to him to explain the charges against him need not be identical with that which is allowed to an ordinary accused. It is sufficient if the opportunity is a reasonable opportunity. A reference may be made to Art. 22 of the Constitution in which provision is made in respect of an arrested person regarding legal assistance. "Under Art. 221 "No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." The right given here is an unqualified right to have the assistance of a legal practitioner of his arrested person's choice. But, in Art. 3112 the right secured is only a "reasonable opportunity."