Judgment :- 1. The petitioner who is a clerk in the Indian Posts and Telegraphs Department in Cannanore Division happened to be the secretary of All Indian Postal Employees' Union Class III, Kerala Circle. This Union is affiliated to the National Federation of P. and T. Employees. The National Federation has 9 federated unions and a co-ordinating committee at State level of which the petitioner is the convener. On his election as Circle Secretary he was given a transfer to Trivandrum where he was on deputation to foreign service under the All India Postal Employees' Union Class III, Kerala Circle. 2. The National Federation of Posts and Telegraphs Employees and its affiliated Unions had issued a call for token strike on 19 91968. Consequent on this strike actions were taken against the strikers. On 2910-1968 the Superintendent of Post Offices, Cannanore issued a memorandum containing two articles of charge framed against the petitioner together with the statement of imputation of misconduct or misbehaviour, in support of the said Articles of charge. A copy of the memorandum containing the Articles of charge and statement of imputation of misconduct or misbehaviour in support of those articles of charge has been produced in these proceedings and marked as Ext. PL The two articles of charge framed against the petitioner are the following: "Article 1: That the said Shri. N. P. Padmanabhan, Clerk, Cannanore Division (appointed clerk, Uppala S.O.) has organised an illegal strike exhorted the officials to join the demonstrations and to raise funds in aid of the strikers and to adopt "work-to-rule" tactics issued a call for a 'Kerala Bandh on 1010-1968 and criticised the policies of the Central Government and thus violated the provisions of R.3 (1) (iii); 7 (ii); 8 (2) and 12 of CCS (Conduct) R.1964. Article II: That the said Sri. N. P. Padmanabhan, Clerk, Cannanore Division (appointed Clerk, Uppala S.O.) has by his failure to report for duty on his reversion from foreign service violated provisions of R.40 of P & T Manual, Volume II and R.3 (i) (ii) of CCS. (Conduct) Rules, 19.64." The charges were enquired into by the Inquiry Officer one Mr. C. G. Menon The petitioner had made written request to the Inquiry Officer for permission to take the assistance of Shri Abraham Kurian, ASPM, Mattancherry at all stages of enquiry as provided for in the CCS (CCA) Rules. Ext. (Conduct) Rules, 19.64." The charges were enquired into by the Inquiry Officer one Mr. C. G. Menon The petitioner had made written request to the Inquiry Officer for permission to take the assistance of Shri Abraham Kurian, ASPM, Mattancherry at all stages of enquiry as provided for in the CCS (CCA) Rules. Ext. P-2 is the copy of written request that the petitioner had made in the matter. Shri Abraham Kurian had intimated the Inquiry Officer his willingness to assist the petitioner at the enquiry. However, the Inquiry Officer sent a reply to the petitioner's request for assistance by Shri Abraham Kurien as per Ext.-4, wherein it was stated: "Shri Abraham Kurian, ASPM, Mattancherry under suspension has not been permitted to assist you in the case by the SSP. EK. This is for your information and further necessary action." According to the petitioner the non-assistance by a competent person at the enquiry has seriously prejudiced him. It would appear that the Inquiry Officer found the Articles of Charge against the petitioner proved. By Ext. P-5 memorandum issued by the Ist respondent, namely the Superintendent of Post Offices, Cannanore Division, he came to the provisional conclusion that the petitioner is not a fit person to be retained in service and therefore proposed to impose on him the penalty of dismissal from service. The petitioner was given an opportunity of making representation on the penalty proposed on the basis of the evidence produced during the enquiry. The enquiry report made is produced in this proceedings along with Ext. P-5 memorandum. 3. A detailed reply was submitted by the petitioner in reply to this show cause notice. There, he requested for dropping further proceedings. He denied the various allegations made against the petitioner. It is stated therein that since the Government of India had framed special rules under the Essential Services Maintenance Ordinance, 1968 to deal with the token strike and subsequent agitation of the Central Government Employees, CCS (CCA) Rules were not applicable in his case and the charge-sheet issued on the strength of the Rules was therefore without jurisdiction. The petitioner's reply was not accepted and he was dismissed from service by proceedings of the Superintendent of Post Offices, Cannanore Division dated 26-7-1969, marked in this case as Ext. P-7. 4. The petitioner preferred an appeal in the matter before the President of India. Ext. The petitioner's reply was not accepted and he was dismissed from service by proceedings of the Superintendent of Post Offices, Cannanore Division dated 26-7-1969, marked in this case as Ext. P-7. 4. The petitioner preferred an appeal in the matter before the President of India. Ext. P-8 is the copy of the appeal memorandum. The President sought the advice of the Union Public Service Commission on the appeal. On the advice tendered by the Union Public Service Commission the President dismissed the appeal. A copy of the report of the Union Public Service Commission is produced in the case as Ext. P-9 and the order of the President in appeal, Ext. P-10. 5. The petitioner seeks to quash Ext. P-7 as confirmed by Ext. P-10 on various grounds. He lays considerable stress on Art.311(2) of the Constitution which reads as follows: "No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given the reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry". The petitioner's contention is that he was not given a reasonable opportunity of being heard in respect of the charges made against him. R.14(8) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 makes it obligatory on the part of the authority to allow the government servant to take the assistance of any other government servant to present the case on his behalf. The said rule is engrafted for the purpose of seeing that the delinquent Government Servant is afforded all reasonable opportunity of being heard in the case against him. The right granted to the Government Servant under R.14(8) is for the purpose of seeing that the constitutional guarantee given to Government Servants under Art.311 is properly secured. The petitioner had requested the services of a Government Servant to assist him in the inquiry as would be seen from Ext. P-3. The concerned Government Servant had agreed to assist the petitioner. The petitioner had requested the services of a Government Servant to assist him in the inquiry as would be seen from Ext. P-3. The concerned Government Servant had agreed to assist the petitioner. However, it is said, that the right of being assisted by another Government Servant was denied to the petitioner by proceedings of the first respondent Ext. P-4. Mr. T. Karunakaran Nambiar, learned counsel appearing for the petitioner strongly urged that such denial has resulted in infringement of sub-rule 8 of the R.14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and therefore of the constitutional guarantee afforded to the petitioner under Art.311(2) of the' Constitution of India. Ext. P-5 has also resulted in violation of the principles of natural justice. Therefore, Mr.Karunakaran Nambiar contends that the enquiry conducted against the petitioner is void and nonest in law. Neither the enquiry report nor the dismissal can stand the scrutiny of law and therefore liable to be set at naught. 6. Mr. Karunakaran Nambiar points out that it was the National Federation of Posts and Telegraphs Employees with Head Quarters at New Delhi along with some other organizations that gave notice to the strike. It was not on the petitioner's exhortation that the strike took place. The learned counsel points out that not a single document containing any exhortation by the petitioner to go on strike was produced by the disciplinary side. There is no evidence at all in the case that the petitioner made any exhortation to join an illegal strike. On the evidence on record before the Inquiry Officer, what act at best makes charge against the petitioner is that he took seriously to his duties as a responsible officer of a Trade Union. 7. In respect of the 2nd article of charge against the petitioner, the learned counsel contends, that there is no merit in this charge. The charge was that the petitioner had failed to present for duty at Uppala consequent on his reversion from Foreign Service and he failed to appear before the D.M.O. (Health) as had been directed. The petitioner applied for leave supported by medical certificate. A request was made to the D.M.Q. (Health) for second medical examination of the petitioner but the D.M.O. did not require the petitioner to report before him for a second medical examination. Consequently the. The petitioner applied for leave supported by medical certificate. A request was made to the D.M.Q. (Health) for second medical examination of the petitioner but the D.M.O. did not require the petitioner to report before him for a second medical examination. Consequently the. petitioner could riot report before the D.M.O. (Health) for a second medical examination. It cannot be said that the petitioner violated any of the conduct rules. With regard to the petitioner's failure to report for second medical opinion as directed, the first respondent in his proceedings states: "According to SR-229(B), the authority competent to sanction leave may at his discretion secure a second medical opinion and should it decide to do so, it must arrange for the second medical examination on the earliest possible date. On the basis of the above Rule, the authority is competent to direct the Government Servant to appear before the D.M.O. for second medical opinion. It is therefore evident, that the Government Servant did not carry out the directions of the appointing authority within the specified time and he had not given any reasons for not carrying out the directions." The counsel submits that the first respondent has misinterpreted the relevant instructions issued in the matter by the Director General of Posts and Telegraphs. A copy of the latter to the Director General, in regard to the procedure for obtaining a second medical opinion on the medical certificates produced by non-gazetted staff has been produced in the case and marked as Ext. P-11, which reads: "The question whether under SR. 229 (b) and (c) the authority competent to sanction leave can direct a non-gazetted official to appear before the Civil Surgeon in connection with the counter-signature of the medical certificate has been considered by the D. G. on more than one occasion. In this connection a reference is invited to this office letters Nos. CM-57 dated 4-10-22 and ESB-50-1-/35 dated 28-9-35 a copy of which is enclosed for ready reference. It was made clear there in that orders directing an official to appear before the Civil Surgeon concerned should not issue from the leave sanctioning authority unless and until he was asked to do so by the countersigning medical authority. It has come to the notice of the D. G. that in some circle the aforesaid instructions are not followed. It was made clear there in that orders directing an official to appear before the Civil Surgeon concerned should not issue from the leave sanctioning authority unless and until he was asked to do so by the countersigning medical authority. It has come to the notice of the D. G. that in some circle the aforesaid instructions are not followed. The Director General therefore has considered the above question afresh, and it is held in consultation with the Ministers of Health and Finance that the authority competent to sanction leave is not empowered to direct an official to appear before the Civil Surgeon. It is for him to send the medical certificate to the Civil Surgeon for countersign -nature if it is decided to secure a second medical opinion, and it is for the Civil Surgeon in exercise of his discretionary power to require the applicant to appear before him unless it appears from the certificate of the medical practitioner that he is too ill to undertake the journey In the latter case the Civil Surgeon may either recommend the leave if he is satisfied or arrange for the applicant to, be examined at his residence by a medical Officer of Government". Mr. Nambiar contends that it is clear from Ext. P-11 that the authority competent to sanction leave is not empowered to direct the official to appear before the Civil Surgeon and his duty is only to send medical certificate to the Civil Surgeon for counter-signature if it is decided to secure a second medical opinion and that it is for the Civil Surgeon in exercise of his discretionary power to require the official to appear before him. According to the counsel, the petitioner had stated in the petition that the petitioner's medical Attendant himself directed the petitioner to the D M.O. for expert medical opinion and the petitioner appeared before him several times. On the prescription of the D.M.O. two tests were carried out and he had prescribed medicines also for the petitioner. All these records including X-Ray Photos of the petitioner's abdomen and chart of the fractional test meal taken at the instance of the D.M.O. were produced in the inquiry. It is contended, that the disciplinary authority did. not consider these documents in the right perspective because he was prejudiced against the petitioner. 8. All these records including X-Ray Photos of the petitioner's abdomen and chart of the fractional test meal taken at the instance of the D.M.O. were produced in the inquiry. It is contended, that the disciplinary authority did. not consider these documents in the right perspective because he was prejudiced against the petitioner. 8. Another contention raised is that the disciplinary authority is biased against the petitioner. It is also said that the presenting officer in the inquiry who was a material witness should not have been appointed as Presenting Officer. It is stated that the disciplinary authority acted erroneously in taking into consideration that part of the inquiry wherein the presenting officer had conducted an examination of witnesses till he turned out to be a material witness in the case. 9. A counter affidavit has been filed in the matter by the Superintendent of Post Offices, Cannanore Division, who is the first respondent in the case on behalf of himself and on behalf of respondents 3 and 4 viz., The Union Public Service Commission and the Union of India. It is stated therein, that the petitioner was, besides being the Secretary of the Kerala Circle of the All India Postal Employees Union, Class III, functioning as convener of the Circle Coordinating Committee of Posts and Telegraphs Union, Kerala and Convener of State Joint Council of Action of the Confederation of Central Government Employees' Unions and Associations. In those capacities, he had issued a circular on 15 91968 containing detailed instructions regarding the conduct of the strike and exhorting the staff to defy orders of Departmental.Officers and prevent smooth working of officers. It is also alleged that he was mainly responsible for the conduct of the strike in Kerala. The token strike was banned by the Central Government under the Essential Services Maintenance Ordinance, 1968 and the orders issued thereunder. The Posts and Telegraphs Service was declared as an essential service. In spite of this, it is said, the petitioner took active part in organizing the strike. It is further alleged that despite the orders issued by the first respondent, posting the petitioner as Clerk, Uppala P.O. he did not join duty but remained absent unauthorisedly. He produced a medical certificate recommending leave for one month. In his application for leave he wanted two months' leave. It is further alleged that despite the orders issued by the first respondent, posting the petitioner as Clerk, Uppala P.O. he did not join duty but remained absent unauthorisedly. He produced a medical certificate recommending leave for one month. In his application for leave he wanted two months' leave. Again disregarding the direction given to him to appear before the D.M.O. (Health), Trivandrum, for second medical opinion, be did not carry out the orders of the competent authority. The petitioner is alleged to have continued to remain unauthorisedly absent after producing a medical certificate and then he indulged in activities connected with the strike. Various allegations also were alleged against the petitioner, in the counter. It is stated therein that the Senior Superintendent of Post Offices, Ernakulam had denied permission to Shri Abraham Kurien whom the petitioner wanted to assist him in the inquiry, to leave his Head-quarters viz., Ernakulam and assist the petitioner in the enquiry at Trivandrum. There was good and sufficient reason to deny permission to Shri Abraham Kurien to assist the petitioner, by the Superintendent because a Government Servant under suspension is not generally permitted to leave his Headquarters during suspension. It is stated that the denial of permission to Shri Kurien to assist the petitioner did not amount to denial of reasonable opportunity to the Government Servant' to defend his case. It is contended on behalf of the respondents that there is no substance in the allegation that the enquiry officer did not suggest any other name, as it was incumbent on the petitioner to nominate any other government servant to present his case and not on the Inquiry Officer. The Rules concerned do not impose any obligation on the disciplinary authority or on the Inquiry Officer to provide the service of any particular Government Servant nominated by the defending Government Servant for presenting his case. The allegation regarding bias is also controverted. It is also said that there is no provision in the C.C.A. Rules, 1965, for the personal hearing of the appellant at the appeal stage in cases where the inquiry under R.14 has already been held. 10. After hearing counsel on both sides and going through the records I am of the view that the enquiry conducted in the matter is violative of R.14(8) of the Central Services Classification, Control and Appeal Rules and consequently of Art.311(2) of the Constitution of India. 10. After hearing counsel on both sides and going through the records I am of the view that the enquiry conducted in the matter is violative of R.14(8) of the Central Services Classification, Control and Appeal Rules and consequently of Art.311(2) of the Constitution of India. The right of being assisted by another Government Servant in the enquiry has been effectively denied to the petitioner by Ext. P-4. This denial could also said to be violative of the principles of, natural justice and on this short ground alone the enquiry proceedings and the consequent order of dismissal as confirmed in appeal have to be set aside. The petitioner had not been afforded reasonable opportunity to present his case, which naturally makes the impugned order invalid. 11. In view of Art.311 of the Constitution the petitioner could not have been removed from service except after enquiry in which he had been given a reasonable opportunity of being heard in respect of the charges levelled against him. This procedural guarantee as has been laid down by the Supreme Court is undoubtedly a valuable one and no attempt should be made to circumvent or by-pass it by colourable acts. The dismissal from service is a major penalty. Procedure for imposing major penalties is prescribed in R.15 of the Central Civil Services (Classification, Control and Appeal) Rules. Under the relevant provision of the said Rules it has been made obligatory on the part of the authority to allow the Government Servant to take the assistance of any other Government Servant to present his case on his behalf. The petitioner wanted the assistance of Abraham Kurien, A. S. P. M., Mattancherry. Mr. Abraham Kurien had expressed his willingness to assist the petitioner by his communication dated 23 21969 to the Inquiry Officer. However, the Inquiry Officer informed the petitioner that as Shri Abraham Kurien is under suspension he has not been permitted to assist the petitioner in the case by the Senior Superintendent of Post Offices, Ernakulam. Nor was the petitioner informed that he can get the assistance of any other Government Servant. There is no rule which says that a person under suspension is not entitled to assist another Government Servant in Inquiry Proceedings. Nor was the petitioner informed that he can get the assistance of any other Government Servant. There is no rule which says that a person under suspension is not entitled to assist another Government Servant in Inquiry Proceedings. It is stated in the counter that reference was made by the Inquiry Officer to the Controlling Authority of Shri Abraham Kurien, the Controlling Authority, it is stated, for administrative reasons did not accord necessary permission to him. The alleged administrative reasons as such are not revealed to the court. It is stated in the counter that the petitioner was at liberty to nominate any other Government Servant other than Shri Abraham Kurien to present his case and he had been given opportunity to do so by the Inquiry Officer. However, from the facts that are set about above it is clear that the Inquiry Officer did hot afford the petitioner necessary facilities to have the assistance of another Government Servant in defending him, which assistance he was entitled to under the Rule. Why he should not be represented by Shri Abraham Kurien and what reasons prompted the Controlling Authority to deny Kurien's assistance to the petitioner have not been revealed at all to the court. R.14 (8) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 states 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, so permits." As pointed out by the Supreme Court in Subramaniam v. Collector of Customs, Cochin, 1972 KLT 274, the rule which affords a Government Servant the right to get the assistance of another Government Servant is a mandatory rule and that rule regulates the guarantee given to Government Servants under, Art.311. "Government Servants by and large have no legal training. At any rate, it is nobody's case that the petitioner had legal training. Moreover, when a man is charged with the breach of a rule entailing serious consequences he is not likely to be in a position to present his case as best as it should be, The accusation against the petitioner threatened his very livelihood. At any rate, it is nobody's case that the petitioner had legal training. Moreover, when a man is charged with the breach of a rule entailing serious consequences he is not likely to be in a position to present his case as best as it should be, The accusation against the petitioner threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why R.15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate cases by a legal practitioner." In a case where a Railway Servant against whom Departmental Proceedings had been initiated under the relevant provisions of the Railway Establishment Code was denied the assistance of a defence helper by reason of the Administration having chosen to put the defence helper nominated by him to the rule of a witness on behalf of the prosecution the following observations were made by the Calcutta High Court, in AIR. 1970 Cal. 545, Union of India v. S.B. Biswas: "It was next urged by Mr. Chakravarti that the respondent was denied the assistance of a defence helper by reason of the administration having chosen to put the defence helper nominated by the respondent to the rule of a witness on behalf of the prosecution. It was contended by Mr. Roy Choudhury that there was no prejudice in as much as the same defence helper continued to assist the respondent even subsequent to the date when he was examined as a witness namely, on 15-9-1963. But on this point, apart from any prejudice, we have first to see whether there was any violation of sub-rule (2) of R.1713 which gives the provision as to a defence helper: 'The accused Railway servant may present his case with the assistance of any other Railway servant employed on the same Railway (including a railway servant on leave preparatory to retirement) on which he is working "It may be mentioned in this context that in the rule as it originally stood, the right of the. delinquent to nominate the defence helper was subject to the approval of the authority, but by a subsequent amendment the condition of approval has been eliminated. delinquent to nominate the defence helper was subject to the approval of the authority, but by a subsequent amendment the condition of approval has been eliminated. It has also been held in several decisions of this court that though the rule is in a permissive form, it gives a statutory right to the delinquent to get the assistance of a co-employer of his own choice. It cannot be overlooked that in a disciplinary proceeding the delinquent is denied legal advice. To provide a proper defence to the delinquent he is given the help of another co-employee who may be better enlightened and more efficient than the delinquent himself to conduct his own case. The course are, accordingly, to see that this vestige of a fair hearing is not interfered with by the administration. There is no procedure prescribed in the Code itself to show that the defence helper, remaining in his status as such, can be examined as a prosecution witness by the Railway. If the Railway sought to do so they might have given a notice to the accused to that effect. What happened in this case is that the choice of the prosecution to examine him was formed during the hearing when some other witness made some reference to the defence helper's knowledge about the affair. The question is raised by Mr. Roy Choudhury that since this was done pending hearing, whether it was for the respondent to offer to the Railway a choice to nominate another person as the defence helper or for the delinquent to ask of that, having regard to the provision of sub-rule (2) of the R.1712 as it has been interpreted in various decisions of this court, it must be held that it was for the Railway administration to give notice to the delinquent that his defence helper was going to be taken away for examining him as a witness and that if he likes he can get the opportunity to appoint another." (Italics is mine) In the view that I am taking regarding the Inquiry conducted, I need not go into' the other questions as such. The enquiry report and the order of dismissal, Ext. P7 as confirmed in Appeal by Ext. P10 are set aside. The petitioner, there-fore, should be deemed to continue in service. 12. The enquiry report and the order of dismissal, Ext. P7 as confirmed in Appeal by Ext. P10 are set aside. The petitioner, there-fore, should be deemed to continue in service. 12. No doubt, this decision will not prevent the respondents from conducting a proper and just enquiry into the matter. It is for them to decide whether such enquiry should be conducted. However, one Cannot help observing that the charges against the petitioner are the result of his alleged active participation in the token strike called by the National Federation of Post and Telegraph Employees and its federated unions on 19 91968. It is well-known that most of the persons against whom action had been taken and discharged or suspended from service have been reinstated into service. The petitioner alleges, that the Secretary of the All India Posts and Telegraphs Union and Secretary General of the National Federation of P. & T. Employees who issued the call for strike have been reinstated to service. It might be noted that there is no charge of any violent activity or anything involving moral turpitude made against the petitioner. What emerges from the facts detailed in the counter affidavit filed in this Original Petition is that the petitioner had taken his duties as a trade union leader seriously. It will be unfortunate that a person should be discharged from service for his trade union activities however wrong it might have been is the particular circumstances. It is no doubt true, that the establishment will have to meet illegal strikes and threats strongly and breaches of discipline dealt with a firm hand. As regards the petitioner, the long course of enquiry itself has been sufficient punishment. It will be a gesture of good will and enlightened self interest on the respondents' part not to move . further in the matter in a spirit of compromise and good will. It is essential that the bitterness between the establishment and their employees be removed in the interests of the public. As Justice Thakkar, a learned judge of the Gujarat High Court observed in a similar context, there is a time for showing the mailed fist and a time for extending the hands of friendship in a 'forgive and forget' spirit. 13. The Original Petition is disposed of as above. There will be no order as to costs in the circumstances of the case.