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1969 DIGILAW 167 (KER)

S. Rajan v. The Senior Superintendent Of Post Offices

1969-08-08

MADATHIMYALLIL UTHUP ISAAC

body1969
JUDGMENT M.U. Issac, J. 1. The petitioner is a clerk in the Head Post Office, Cochin-1, against whom a disciplinary enquiry was initiated by the respondent, the Senior Superintendent of Post Offices, Ernakulam under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the Rules). The petitioner submitted his explanation to the memorandum of charges and the statement of allegations; and he wrote to the respondent by letter, Ext. P-2 dated 22-3-1969, requesting the respondent to permit him under R.14(8) of the Rules to have the assistance of a legal practitioner to present his case. The request was disallowed as per letter, Ext. P-3 dated 24-3-1969. The petitioner then requested the respondent to permit him to have the assistance of one Shri A. Kurian for presenting his case. This was also refused by the respondent by Ext. P-4 dated 3-4-1969. The petitioner was, however, informed that he may nominate any other Government servant for his assistance. This writ petition has been filed to quash Exs. P3 and P4 and to issue a writ of mandamus to the respondent directing him to allow the petitioner to have the assistance of a legal practitioner or of Sri A. Kurian for representing his case in the disciplinary enquiry. 2. The petitioner can be aggrieved by the enquiry proceeding, only if it ends in any punishment being imposed on him. Then it would be open to him to seek remedy under Art.226 of the Constitution on the ground of violation of natural justice or violation of any statutory rule or for other sufficient reasons. In my opinion, the High Court will not be justified in interfering with any order passed by a disciplinary authority in the course of the proceeding before him or in issuing any writ or direction in relation to the conduct of the said proceeding. The Original Petition is liable to be dismissed on this sole ground. 3. I shall, however, examine the petitioner's contention on its merit. The Original Petition is liable to be dismissed on this sole ground. 3. I shall, however, examine the petitioner's contention on its merit. R.14(8) of the Rules reads as follows: "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 permits." The learned counsel for the petitioner contends that, under the above provision, the petitioner has got a statutory right to be defend by any Government servant of the petitioner's own choice, and that the disciplinary authority has no voice in the matter. Shri Kurien, whose assistance has been sought by the petitioner is an Assistant Sub Postmaster under the respondent. He is himself under suspension; and a disciplinary enquiry is pending against him. However, he has been permitted to defend three other Government servants, against whom disciplinary enquiries are pending. It is stated in the counter affidavit filed by the respondent that Sri. Kurien is a resident at Ernakulam, that the enquiry would be conducted at Trivandrum and that as Sri. Kurien had already been permitted to defend the Government servants concerned in three other cases, and as he is himself subject to a disciplinary enquiry, he would find it difficult to attend to the enquiry initiated against the petitioner, and that the engagement of Sri. Kurien would cause the enquiry to be protracted. It is further stated in the counter affidavit that Sri. Kurien has been asking for adjournments in the three cases in which permission has been granted to him, and that he is unnecessarily protracting those enquiry proceedings. According to the respondent, he is justified under the above circumstances in refusing permission to the petitioner to engage Sri. Kurien. 4. In my opinion, while the Government servant is, under R.14(8) of the Rules, entitled to have the assistance of another Government servant to present his case in a disciplinary enquiry, this right is not absolute. It is subject to the power of the disciplinary authority to permit a particular officer for being engaged for the assistance of the delinquent officer. In my opinion, while the Government servant is, under R.14(8) of the Rules, entitled to have the assistance of another Government servant to present his case in a disciplinary enquiry, this right is not absolute. It is subject to the power of the disciplinary authority to permit a particular officer for being engaged for the assistance of the delinquent officer. If the disciplinary authority finds that it is undesirable in the public interest to permit a particular officer to defend a delinquent officer in an enquiry, it is open for him to refuse permission to engage that particular officer. If it were otherwise, a delinquent officer would be entitled to dictate to the Government or the disciplinary authority that he should have the assistance of any Government servant of his own choice, working in any part of the country, irrespective of distance or his status in office, I have no doubt that a superior officer is entitled to say that he cannot spare the service of a particular Government servant nominated by the delinquent officer. In the instant case, the respondent is the superior officer of Sri. A. Kurien; and he is entitled to say that he is not prepared to place the service of this particular officer for the assistance of the petitioner in the enquiry instituted against him. This Original Petition has, therefore, no merit, and it is accordingly dismissed. There will be no order as to cost.