JYOTI SWARUP AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) DOUBTING the correctness of the decision given in the case of A. K. Sharma v. State of U. P. (1974) All. L. J. 637 : (1974) Lab. I. C. 1032, in which a Division Bench held that latter part of Rule 7 of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, (hereinafter referred to as 'the Rules') was ultra vires Article 311 of the Constitution, the present Reference has been made to the Full Bench.

(2.) FOR appreciating the point, it may be useful to refer the facts of the present case briefly. The same are these. The petitioner was appointed as an Assistant Teacher in the Education Department of the Government of U. P. on November 8, 1972. He was sent to the United States of America for training under the Colombo plan. After he had returned from the U. S. A. , he was sent to Social Welfare Department and was posted as principal of the Government Hind School, Gorakhpur. He is alleged to have committed embezzlement of Government funds. He was although suspended pending enquiry, but was subsequently reinstated. Thereafter, under Rule 4 of the Rules, the Governor referred the case of the petitioner to the Tribunal created under the Rules. The Tribunal served a charge-sheet. The petitioner pleaded not guilty. During the course of the enquiry, the petitioner filed an application for legal assistance and sought permission of the Tribunal to engage a counsel. The Tribunal rejected the prayer. Ultimately, it found that some out of the eleven charges had been established against the petitioner. The Governor, thereafter, served on the petitioner a notice requiring him to show-cause why the penalty of dismissal should not be awarded to him. After the explanation of the petitioner had been submitted, the Governor found the same to be unsatisfactory and directed for his removal by an order dated December 31, 1970. The petitioner preferred a writ petition in this Court. The writ petition was dismissed on 23. 9. 1974.

(3.) ONE of the points raised in the writ petition was that having regard to the fact that the charges against the petitioner were serious in nature, the trial necessitated the assistance of a legal practitioner and as that had been denied to him, the order of removal was vitiated. The learned single Judge repelled the argument holding that under Rule 7, the petitioner had no right to take assistance of a legal practitioner and as there was no discretion with the Authority to permit legal assistance to be given to a delinquent, the refusal to engage a legal practitioner did not result in denying a fair trial. In the appeal, the appellant's counsel relied on a decision of this Court given in the case of A. K. Sharma v. State of U. P. (1974) Lab. I. C. 1032 (supra) and contended that as the latter part of the aforesaid Rule "nor the defence shall have a right to be represented by a counsel" had been struck down as invalid, the view of the learned single Judge was erroneous. Feeling doubtful about the correctness of the aforesaid decision, the present reference was made.