S.P. Bharucha, J.
1. This petition impugns an order dated 29th June, 1980 of dismissal from service.
The petitioner was absorbed as an income tax Officer, Class II in the service of the Union of India, the 1st respondent. In April 1961 he was promoted to Class 1. In May 1972 he was promoted to the post of Assistant Commissioner of income tax.
On 6th May, 1975 a raid was made at the residence of the petitioner by the C.B.I. A search was conducted and several account books, bank pass books and the key of the safe deposit locker standing in the name of the petitioner and his wife in premises of the United Bank of India, Peddar Road Branch Bombay were seized. On 14th May, 1975 the safe deposit locker was opened and the amount of Rs. 1,14,690/- lying therein was seized by the C.B.I. On 16th June, 1975 the petitioner wrote to the Commissioner of Income Tax, Bombay, informing him of the raid and the seizure and gave details of the ownership of the amount found therein. On 2nd July, 1976 the petitioner was suspended.
2. A criminal case was filed against the petitioner and 19 others in the Court of the Additional Chief Metropolitan Magistrate, 19th Court Esplanade, Bombay.
On 3rd February, 1979 a memorandum was issued by the President proposing that the enquiry be held against the petitioner upon the charges of being in possession of assets disproportionate to his income to the extent of Rs. 56,857/- and of being involved in the transfer of ownership of a scooter without the previous permission of the Commissioner of Income Tax. On 21st February, 1979 the petitioner asked for copies of documents and statements of witnesses upon which the charges were based. On 28th February, 1979 he denied the charges and asked for a personal hearing.
On 7th March, 1979 the petitioner and 19 others were discharged for want of evidence in the criminal case and an order was passed requiring the return of the documents to the custody of the respective parties.
On 29th March, 1979 a memorandum was issued by the President, superseding the memorandum of 3rd February, 1979 proposing to hold as enquiry against the petitioner upon the charge of being in possession of assets disproportionate to his income to the extent of Rs. 1,44,165.59. On 4th April, 1979 the suspension of the petitioner was revoked and he resumed duties as Assistant Commissioner of Income Tax. On 10th April, 1979 the petitioner denied the charges levelled against him and asked for permission to be defended by an Advocate.
On 21st April, 1979 a memorandum was issued by the President, superseding both earlier memoranda proposing to hold an enquiry against the petitioner on the charge of being in possession of assets disproportionate to his income to the extent of Rs. 1,44,165.59 and of being involved in the transfer of the ownership of a scooter without the previous permission of the Commissioner of Income Tax. Thereto appended were a statement of allegations, a list of documents upon which it was proposed to rely and the list of witnesses who would be examined at the proposed enquiry. On 30th April, 1979 the petitioner wrote a letter requesting that his earlier letters of 28th February, 1979 and 10th April, 1979 should be treated as a reply to the latest memorandum. On 23/24th May, 1979 he gave a further explanation to the charges levelled against him.
On 13th June, 1979 the President appointed K.P. Chakraborty, Commissioner for Departmental Enquiries, Central Vigilance Commission as the Enquiry Officer to enquire into the charges made against the petitioner. On the same day the President appointed one Kartar Singh, Deputy Superintendent of Police, C.B.I. as Presenting Officer to present the case against the petitioner at the enquiry.
On 19/22nd June, 1979 the Enquiry Officer informed the petitioner that his request for engaging a lawyer to defend him at the enquiry had been rejected by Government.
On 29th June, 1979 the petitioner requested the Government to reconsider the decision. On 10/13th August, 1979 the Enquiry Officer again wrote to the petitioner that his request for a lawyer had been refused.
On 29th June, 1979 an addendum was made to the latest memorandum whereby the list of documents and witnesses was added to.
On 9th July, 1979 a preliminary enquiry was held by the Enquiry Officer. On 27th July, 1979 the petitioner wrote to the Enquiry Officer pointing out that the documents seized from his residence on 6th May, 1979 had not been returned to him despite the order of the Magistrate. He asked for copies of statements made to the C.B.I. by Chordia, Rameshkumar Agarwal and Laxmichand Jain. He also asked for copies of statements of those witnesses upon whom the Government would be relying at the enquiry for proving the charges. He annexed a list of documents which he wanted to produce and a list of witnesses that he wanted to examine.
On 4th August, 1979 the petitioner again wrote to the Enquiry Officer asking for return of all the documents that had been seized from his residence.
On 6th August, 1979 the Enquiry Officer disallowed the production of some documents required by the petitioner and directed summons to be issued to the petitioner's witnesses. On 7th August, 1979 the petitioner requested the Enquiry Officer to intervene with the C.B.I. for returning to him the seized documents.
3. The first session of the departmental enquiry was held in Bombay between 20th and 23rd August, 1979. Thirty-five witnesses were examined on behalf of the Government and the petitioner cross-examined them. While the 36th witness was being examined the enquiry was adjourned. The petitioner's witnesses Chordia Ramlal Jain and A.M. Singhvi from Madras, N.M. Singhvi from Renukoot (U.P.) and B.R. Bansali from Coimbatore were present during these three days in Bombay.
4. The enquiry continues in Bombay between 29th and 31st October, 1979. On the evening of 30th October, 1979 the examination of all the witnesses on behalf of the Government was concluded. The petitioner's witness N.M. Singhvi was examined on the 31st. The enquiry was then adjourned to 15th November, 1979. Other witnesses on behalf of the petitioner were present but could not be examined for lack of time.
On 9th November, 1979 the petitioner wrote to the Enquiry Officer that his witness Chordia from Madras would not be able to attend the enquiry on 15th November, 1979 and asked for an adjournment.
On 15th November, 1979 the enquiry resumed at Bombay. The petitioner produced a letter from Chordia's son to which was annexed a medical certificate stating that Chordia was suffering from infective hepatitis. He asked for another date for the purpose of examining Chordia. The Enquiry Officer did not take the certificate on record and stated that he could not adjourn the enquiry any further. Other witnesses on behalf of the petitioner were then examined. Their evidence concluded at about 9.30 p.m. The petitioner's witness Dodia who had been present all day had gone away at about 7.30 p.m. and had not returned. The enquiry was not adjourned for the benefit of Dodia. The petitioner wanted to examine himself but was not allowed by the Enquiry Officer to do so. The Enquiry Officer asked the petitioner what he wanted to say about the two charges and then closed the enquiry.
On 17th November, 1979 the petitioner forwarded a file to the Enquiry Officer containing various statements in his defence. This file was received by the Enquiry Officer on 23rd November 1979. On 17th November, 1979 the petitioner also sent to the Enquiry Officer an express telegram informing him about the dispatch of file. Again on the same day he sent on the Enquiry Officer by registered post a chart containing figures in support of his case. This was received by the Enquiry Officer on 20th November, 1979.
On 22nd November, 1979 the Enquiry Officer forwarded his report and findings of guilt to the Chairman, Central Board of Revenue.
On 5/9th January, 1980 the petitioner wrote to the Chairman, Central Board of Direct Taxes recording much of what has been stated above, and complained that he had not been given full opportunity to defend himself at the enquiry. He requested that his letter should be sent to the Union Public Service Commission. On 29th April, 1980 the Union Public Service Commission made a report accepting the findings of the Enquiry Officer. On 28th May, 1980 the petitioner made a representation to the Chairman, Central Board of Direct Taxes and requested that he be afforded a personal hearing before the final order came to be passed. On 14th June, 1980 he sent a telegram making the same request.
On 29th June, 1980, the day before he was due to be superannuated he was served within order bearing the same date dismissing him from service with immediate effect. This petition files on 18th July, 1980 impugns the order of dismissal.
Rule 14(8) of the Central Civil services (Classification, Control and Appeal) Rules, 1965 states that a 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.
5. The petitioner by his letter dated 27th February, 1977 addressed to the Government asked that he be permitted to be represented by a lawyer at the enquiry because legal issues were involved and 105 documents and 79 witnesses had been cited. He stated that he was not conversant with the art of cross-examination and did not know about the relevance and admissibility of documents. His mind was disturbed and his life and liberty was at stake. He repeated the request in his letter dated 23/24th May, 1979. On 19/22nd June, 1979 he was informed that Government had considered his request carefully and had rejected it. On 29th June, 1979 the petitioner asked that his request be reconsidered. He submitted that this was not an enquiry which could be handled by a Government servant unacquainted with legal matters. On 10/13th August, 1979 he was informed that his request top engage a legal practitioner had been refused.
6. Mr. Singhvi, learned Counsel for the petitioner, submitted that the denial of the petitioner's request to be allowed to engage a legal practitioner to defend him at the enquiry amounted to denial of a reasonable opportunity to defend himself threat. He pointed out that the Presenting Officer who had been appointed on behalf of the disciplinary authority was a Deputy Superintendent of Police in the C.B.I. and thus well acquainted with the procedure and conduct of criminal prosecutions. This, in his submission, made it imperative that the petitioner should also be represented by a person with similar expertise, which would mean by a lawyer. He also submitted, that having regard to the complex nature of the case, the voluminous documents and the long list of witnesses on behalf of the disciplinary authority, this was a fit case in which the discretion under Rule 14(8) ought to have been exercised in favour of the petitioner.
7. Mr. Singhvi drew my attention to the judgment of the Supreme Court in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, : (1983)ILLJ1SC . This was the case in which the Presenting Officers had legal training though they were employees of the disciplinary authority. The Supreme Court observed that a domestic enquiry was claimed to be a managerial function. A man of the establishment donned the robe of a Judge. It was held in the establishment office or a part of it. The witnesses were generally employees of the establishment. This was sufficient to raise serious apprehensions. Added to these uneven scales was the weight or legally trained minds on behalf of the employer simultaneously denying that opportunity to the delinquent employee. The weighted scales and tilted balance could only be partly restored if the delinquent was given the same legal assistance as the employer enjoyed. That justice had not only to be done but had to appear to be done was not an euphemism for courts alone; it applied with equal vigour and rigour to all those who were responsible for fair play in action.
8. The Calcutta High Court considered a similar question in Anandram Jiandral Vaswani v. Union of India and others 1983 Lab & Ind 624. The Presenting Officers in this matter were inspectors of the Special Police Establishment at Calcutta. They had extensive experience in law and Court cases. The delinquent asked for permission to appoint a lawyer having regard to the complexity of the case and the appointment of such Presenting Officers, but the request was turned down. The Court held that the fact that Presenting Officers were Police Officers and that there were legal complexities in the case were reasonable grounds for asking for permission to engage an Advocate.
9. The principle would appear to be that neither the employer nor the delinquent should start a disciplinary enquiry under a handicap. The scales must be evenly balanced.
I have no doubt that in a case such as the present where the issue is of acquisition of assets beyond the delinquent means, the training and experience of officers of the C.B.I. in criminal prosecutions would be an invaluable asset for the disciplinary authority. To deny to the petitioner the advantage of being represented by some one similarly equipped was to place him under a handicap and to tilt the scales against him before the enquiry has had so much as commenced.
10. The test is not whether a lawyer represents the disciplinary authority, as was submitted on behalf of the respondents, but whether a man with a legally trained mind presents its case. If such a person is the Presenting Officer, it is right and proper that the delinquent should have the identical advantage.
11. By denying to the petitioner the opportunity of being represented by a lawyer at the disciplinary enquiry, while being represented itself by a man with training and experience in criminal prosecutions, the disciplinary authority denied to the petitioner a reasonable opportunity to defend himself and thus contravened the rules of natural justice.
12. It will be recalled that the enquiry was conducted in Bombay over three sessions. The petitioner's witnesses were present at the first two of these sessions. His witnesses, Chordia and Ramlal Jain, both from Madras, were not present at the last session. It is the petitioner's case that by his letter dated 9th November, 1979, about a week before the last session was to commence, he asked the Enquiry Officer for an adjournment on the ground that Chordia would not be able to attend it. There was no reply. The enquiry was re-convened on 15th November, 1979. On that date the petitioner tendered a medical certificate in respect of Chordia which showed that he was suffering from infective hepatitis. The certificate was not taken on file by the Enquiry Officer. An adjournment was refused and the petitioner was told that the enquiry had to be concluded on 15th November, 1979 itself. Seven of the petitioner's witnesses were examined on that day. A witness by the name of Dodia had been present all throughout the day but had left for dinner at about 7-30 p.m. The Enquiry Officer asked for him at about 9-30 p.m. or thereabout, but he had both returned. The Enquiry Officer declined the petitioner's request to be allowed to fetch him or to bring him the next day. The petitioner wanted to examine himself. This too was refused. The petitioner only was asked by the Enquiry Officer what he had to say in regard to the charge and recorded his reply that he was not guilty, he then closed the enquiry and told the petitioner that he could submit all such statements as he wanted to by post.
13. This case of the petitioner set out in the petition is corroborated by the letter addressed by him, almost contemporaneously, in 5/9th January, 1680 to the Chairman, Board of Direct Taxes. The affidavit in reply to the petition is made by the Under Secretary of the Ministry of Finance. In paragraph 1 of the affidavit he says that he has read the records of the case relating to the subject matter of the petition and makes the affidavit in reply on the basis of the knowledge and information derived therefore, it is patent, therefore, that he has no personal knowledge whatsoever of what took place during the course of the enquiry and his averments and denials in this respect are, therefore, of little worth. Mr. Joshi, learned Counsel for the respondents, informed me, when I asked for the record of the enquiry, that it was at Delhi. I have, therefore, not been given the opportunity of perusing it and deriving such assistance as I could from it.
14. In these circumstances, I cannot but accept as correct the averments made by the petitioner in regard to the enquiry and the conduct of the Enquiry Officer thereat. These averments establish that the petitioner was not allowed to examine his witness Dodia only because the Enquiry Officer did not want to prolong the enquiry even for a day beyond 15th November, 1979. He was not allowed to examine himself for the same reason. He was not granted an adjournment to examine Chordia though he supported the application by a medical certificate, which the Enquiry Officer did not even take on record, and though this was the first adjournment that the petitioner had asked for. This is no way to conduct a disciplinary enquiry. The whole objective of a disciplinary enquiry is that it should be fair and should afford the delinquent's full opportunity to present his defence. The objective of the Enquiry Officer should also be this.
15 By declining the delinquent a reasonable opportunity to defend himself the Enquiry Officer reduced the enquiry to a farce.
I hold that, by denying the petitioner his request to engage a lawyer and by terminating the enquiry without permitting him to examine his witnesses, the petitioner was denied a reasonable opportunity to defend himself at the enquiry and the principles of natural justice were breached. Accordingly, the finding of the Enquiry Officer and the order of dismissal dated 29th June, 1980 passed consequent thereon are quashed and set aside.
I only note that Mr. Singhvi argued also that the petitioner had not been supplied with documents relating to the subject of the enquiry though he had demanded them; that he was not furnished with statements made by witnesses examined on behalf of the disciplinary authority before the C.B.I.; and that the Enquiry Officer made his report without waiting to receive the statements that he had himself asked the petitioner to send on to him. Having regard to my findings on the first two points argued, it is needless to go into these arguments.
The petition is made absolute in terms of prayers (a) and (b), with costs.