APPU Vs. SENIOR SUPDT. OF POST OFFICES, TRIVANDRUM

JUDGEMENT

(1.) THE petitioner,while functioning as a Postman in the Trivandrum Beach Post Office was charge sheeted,as indicated in Ext.P1 memorandum,by the Senior Superintendent of Post Offices,Trivandrum Division.The petitioner submitted a reply to these charges and he also requested permission to engage a legal practitioner to defend him at the inquiry in view of the large number of documents relied on against him and particularly because of the ill -will entetained against him by the Sub Postmaster,who,according to him,was responsible for levelling such charges.The request to engage a legal practitioner was declined as communicated to him by Ext.P2 letter.A further request was made to the Disciplinary authority and the inquiry officer to permit the petitioner to engage another civil servant,Sri.V.K.Syed Mohammad to assist him.But he did not get such assistance for the reason that the Senior Superintendent of Post Offices,Ernakulam Division could not relieve such officer for such assistance.The intimation about this served on the petitioner read: It is regretted that Shri.V K.Syed Mohammed,SPM,Cochin Naval Base cannot be relieved to assist in this case.The concerned official may please be informed accordingly. When the petitioner sought the assistance of another Officer,one Sri.Ebraham Kurian he was informed that his request had been forwarded to the Senior Superintendent of Post Offices but that the inquiry would not be postponed.The inquiry was held by the second respondent,the Inspector of Post Offices(Complaints ).The petitioner had to conduct his own defence.To present the case in support of the charges the Inspector of Post Offices Sri.Pylee was appointed.Statement of witnesses recorded prior to the enquiry were filed and it is said that the petitioner was asked to cross -examine the witness with reference to these statements.Ultimately the petitioner was served with a showcause notice proposing punishment of dismissal and after the reply to this was submitted by the petitioner the first respondent,the Senior Superintendent of Post Offices passed orders removing the petitioner from service.An appeal filed against this order Ext.P7 was dismissed by the Director of Postal Services 'Kerala Circle,by Ext.P8 order.

(2.) THE only question urged by the petitioner in support of his case is that Ext.P3 order of removal as confirmed by Ext,P8 in appeal ought to be set aside by this court in that the inquiry was violative of the guarantee secured to a Government servant under Article 311of the Constitution of India.According to the counsel Sri.T.C.N.Menon the obligation to afford reasonable opportunity to the Government servant charged with the offence has been denied in this case,particularly because petitioner 's request for assistance of another civil servant at the enquiry was refused with out any reason.It cannot be denied that the provision in clause 14(8)of the Central Services(Classification Control and Appeal)Rules 1965 embodies the requirements of natural justice.The rule reads: 14(8 ).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. As of right the Government servant may seek to engage a legal practitioner in the event the prosecution of the charges is conducted by a legal practitioner.If such presenting officer prosecuting the case happens to be not a legal practitioner it does not necessarily follow that the Government servant can be denied,for that sole reason,the assistance of a legal practitioner.The words of the rule or the Disciplinary authority,having regard to the circumstances of the case,so permits. necessarily indicates a duty on the part of the disciplinary authority to consider the circumstances of every case and irrespective of the question whether the presenting officer is a legal practitioner or not to decide whether the government servant is justified in the request for the assistance of a legal practitioner.Therefore it is not open to the Disciplinary authority to take up the stand that the assistance of a legal practitioner could be denied merely because the case in support of the charges is being presented by a departmental officer who is not a legal practitioner.It is also necessary to notice that the duty to consider the request for assistance under the rule sought by a government servant is not an empty formality,but is of the essence of the rule of reasonable opportunity and failure to exercise that duty may vitiate the whole inquiry.For,in such a case it could not be said that the civil servant had occasion to present his case properly.

(3.) IT has to be further noted that by Ext.P4 letter the petitioner was not only told that his request for grant of permission to take the assistance of Sri.Abraham Kurian in the inquiry has been forwarded to the Senior Superintendent of Post Offices for disposal but also that the postponement of inquiry requested for was not granted and that the inquiry will be held on 28 -3 -1969 as fixed earlier.The enquiry was actually commenced on 28 -3 -1969 as indicated in Ext.P4.Therefore as the matter stood on that day,the petitioner 's request had been declined in regard to the services of Sri.Syed Mohammed and when the petitioner wanted Sri.Kurian 's services to be made available he was told that before any decision thereon was taken the inquiry would be proceeded with.Subsequently,on 20 -5 -1969,the petitioner was again told that Sri Kurian 's services would not be available as the Controlling Officer of Sri.Kurian was not willing to make his services available to the petitioner.