S K DUTT SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS D. B. Special Appeal has been filed against the judgment and order of learned Single Judge in writ petition No 732/1973 dated April 3, 1986 by which the writ petition of the petitioner was dismissed.

(2.) IN this writ petition filed under Article 226 of the Constitution of INdia, the petitioner has challenged the validity of order (Annexure-4) dated September 21, 1979 whereby the petitioner has been removed from service as a measure of punishment in disciplinary proceedings initiated against him under Rule 16 of the Rajasthan Civil Services (Classification Control & Appeal) Rules 1958 (hereinafter referred to as 'the Rules, 1958')

(3.) THE third contention of the learned counsel for the appellant is that the request of the appellant to be represented by the legal practitioner during the course of enquiry should not have been refused since the department was represented by a person who had remained a prosecution inspector for several years even though at the relevant time when the enquiry was held, he was holding the post of Deputy Superintendent of Police. It is submitted by the learned counsel that the appellant is not trained in law so as to enable him to carry on the proceedings him self when the department was represented by a person who had remained prosecutor for several years. It is contended by learned Govt. Advocate that the appellant is a Law Graduate and therefore, fully trained to look after his case and qualified to cross-examine and conduct the proceedings before the enquiry officer which is only a departmental enquiry. It may be mentioned that the learned Single Judge has referred to the decisions of C. L- Subra-maniam vs. THE Collector of Customs, Cochin (1) and the Board of Trustees of the Port of Bombay vs. Dilip Kumar Raghvendra Nath Nadkarni (2) as well as the decision of the Full Bench of the Calcutta High Court in Nripendra Nath Bagchi vs. Chief Secretary, Govt. of West Bengal (3) and the decision of this Court in Sunder Lal vs. THE Regional Assistant Labour Commissioner and Conciliation Officer, Bhilwara (4 ). While discussing these authorities the learned Single Judge came to the conclusion that it must be held in cases where the department is represented by a person trained in law, the delinquent officer may be permitted to enagae a lawyer to defend him during the course of the inquiry. " THE learned Single Judge further observed that Shri D. C. Malik, who had remained Prosecuting Inspector was however, not holding any such post at that time when enquiry was held and that the petitioner as per letter Annex. 12, could have taken assistance of a government servant, who may be in the service of Government of Rajasthan but he did not choose to do so. It was also observed that the petitioner was person well-versed in law as well as legal decisions. THErefore, it was held that the petitioner cannot be said to have suffered any prejudice on account of refusal on the part of the authorities to permit the peti-tioner to engage a legal practitioner to defend him during the course of enquiry. We have considered the whole aspect of this contention in details. An additional affidavit has been filed by the appellant on September 16, 1989, in which it has been stated by the appellant that he was not trained, competent and experienced person in law in conducting the cases. Even though he remained Magistrate for about nine months and passed LL. B. in the year 1975 but never practiced in law and that the court does not give any practical training for conducting cases in court of law. It is also stated that majority of prosecution witnesses were examined prior to appellant's passing LL. B. and that the person representing the department was well-trained prosecutor who had experience of conducing complicated cases on behalf of the prosecution.