K.C. Agarwal, J.
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.
4. Clause (2) of Article 311 of the Constitution provides that no civil servant shall be dismissed or removed or reduced in rank, except after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. Article 309 of the Constitution provides that subject to the provisions of the Constitution, acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and post in connection with the affairs of the Union or of any State.
5. In the instant case, the Rules had been framed by the Governor in exercise of the powers conferred by Sections 241(2) and 266(3) of the Government of India Act, 1935, as amended, and 311(2), as well as Section 7 of the Police Act, and all other powers enabling him to do so. If Article 309 is read along with Article 313, which provides for the continuance in force of the service Rules and Regulations that were in force immediately before the commencement of the Constitution, it would be found that the service Rules in force prior to the Constitution continued after its commencement.
6. The question that now arises is about the validity of Rule 7. Its validity had been challenged before us and also in A.K. Sharma's case (supra) on two grounds. The first ground was that the said Rule contravened the provisions of Article 311(2) of the Constitution, having denied the right to be represented by a counsel which had been guaranteed by the aforesaid Article of the Constitution. The second ground was that taking of assistance of a legal expert by a government servant before a Tribunal being a constituent part of the principles of natural justice, the rule prohibiting a goverment servant from taking assistance of a legal practitioner was invalid. Rules 7 and 8 of the Rules are relevant for the present purpose. Rule 7 reads as under:
The proceedings of the Tribunal will lie in camera and neither the prosecution nor the defence will have the right to be represented by counsel.
The relevant portions of Rule 8 are quoted below:
8.(1) The Tribunal shall in each case make such enquiry as may be appropriate.
(2) In conducting such enquiry, the Tribunal shall be guided by Rules of Equity and Natural Justice and shall not be bound by formal rules relating to procedure and evidence.
(3) ..... ..... .....
7. It is relevant to point out at this place that the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, have been now amended by Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal)(Second Amendment) Rules, 1975. The amended provision of Sub-rule (3) of Rule 7 reads as under:
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 Governor is a legal practitioner, or the Tribunal having regard to the circumstances of the case, so permits.
But, in this case, we are required to decide the controversy involved before us on the basis of the old Rule.
8. The argument of the petitioner's counsel was that as Rule 7 absolutely prohibits a government servant from taking assistance of a legal practitioner in the enquiry proceedings and does not leave any scope for representation in appropriate cases and circumstances, the Rule, would be ultra vires Article 311 of the Constitution as the guarantee to defend himself by making an effective representation would be violated. The interpretation placed by the learned Counsel was that the aforesaid two Rules 7 and 8 should be read separately, and if these Rules were read separately, the Tribunal had no discretion even in a case giving rise to a complicated question of fact and law to take assistance of a legal practitioner.
9. We are unable to accept the interpretation placed on the aforesaid Rules. In order to give a harmonious and consistent construction to these Rules, it appears that both of them should be read together. Reading the two Rules together, it appears that Rule 8 gives discretion to a Tribunal to conduct its enquiry in the manner as may be appropriate to the facts of that case, in conducting such an enquiry under Sub-rule (2) of Rule 8, the Tribunal is further required to be guided by Rules of equity and natural justice. In this way, the Tribunal is master of its own procedure and in its proper exercise of discretion it can permit a government servant to take the assistance of a legal practitioner if the facts of that case warrant the taking of the same. Rule 7 does not curtail or take away the discretion of the Tribunal to decide a case in accordance with the principles of equity and natural justice. It only lays down that neither the prosecution nor the defence shall have the right to be represented by counsel. As a result thereof, no party can as of right claim the assistance of a legal practitioner to appear before the Tribunal. It does not, however, debar the Tribunal of its discretion to permit a party to take assistance of a counsel. The rule-making authority intended that no party should as of right claim assistance of a legal practitioner and had made a provision to that effect in Rule 7. Reading the two Rules 7 and 8, it appears that it was never intended that even in a fit case the Tribunal should no have the discretion to permit representation by a lawyer.
10. The word 'right' is defined to mean that which a man is entitled to have, or to do, or to receive from others. He can enforce the same. By making a provision of Rule 7, the intention only appears to be that no government servant of the prosecuting agency shall have a right to be represented by a counsel. The intention appears to be that if a party was given a right to be represented by a counsel, a government servant could claim it in each case irrespective of the situation that the facts involved in that case may not necessitate or require assistance of a law expert. Permitting legal assistance may hamper the speedy disposal of a case and may also involve expenditure of the party. Accordingly, by retaining the discretion of the Tribunal to permit legal assistance in a proper case, the rule-making authority provided that no party shall have a right to be represented by a counsel in such proceedings.
11. One of the well recongnised rules of interpretation of statutes is that a statute must be read as a whole and one provision should be construed with reference to the other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a method would have the virtue of avoiding any inconsistency. This rule of harmonious construction is also applicable to the construction of the provisions of subordinate legislation See J.K. Cotton Spinning and Weaving Mills Ltd. v. State of U.P. : (1961)ILLJ540SC . In our view, Rules 7 and 8 are capable of being reconciled. Rule 8, as already stated above, requires a Tribunal to be guided by rules of equity and natural justice. It further empowers the Authority to adopt such procedure as may be appropriate to the enquiry which is being conducted by it. In this background, we find that the discretion of the Tribunal to permit a party to take assistance of a legal practitioner has been preserved, and that merely by providing that no party will have a right of representation, the said discretion is not taken away.
12. The next question that may now be considered is whether Rule 7 debarring the defence to have the right to be represented by a counsel, is ultra vires Article 311 of the Constitution. As already pointed out, this was found to be ultra vires on two grounds. We will take up the first question whether to be represented by a lawyer is a constituent part of the principles of natural justice and the effect of making Rule, which regulates the same. Natural justice is the name given to certain fundamental rules which are necessary for the proper exercise of power. The two main rules of natural justice are : (1) that a man shall not be a judge in his own cause, and (2) that a man may not be condemned unheard without his being made aware in good time of the case he has to meet. Dr. Smith in his book 'Judicial Review of Administrative Action', Third Edition, Page 1972, says:
Natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions, or proceedings, be given adequate notice of what is proposed, so that he may be in a position, (a) to make representations on their won behalf, or (b) to appear at a hearing or enquiry, and (c) effectively to prepare their won case and to answer the case.
13. Dealing with this, the Supreme Court observed in A.K. Kraipak v. Union of India : 1SCR457 that (at p. 156):
The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely, (1) no one shall be a judge in his own cause, and (2) no decision shall be given against a party without affording him a reasonable hearing. Very soon thereafter a third rule was envisaged, and that is that quasi-judicial enquiries must be held in good faith, without bias, and not arbitrarily or unreasonably.
14. These things would indicate that natural justice does not imply a right of representation. It should be borne in mind that natural justice only demands or requires a fair trial, and that an Authority should act judicially. The requirement of an authority to act judicially means not to act arbitrarily and capriciously. He should act justly and fairly. It is, however, not necessary for us in this case to go into the question whether the requirement of natural justice is that legal representation should be permitted inasmuch as it is settled that the rules of natural justice can operate only in areas not covered by any law validly made. If, therefore, the Legislature makes a provision of law overruling any of the principles of natural justice in a particular proceeding, to that extent the principles of natural justice shall stand superseded and shall not be applicable.
15. The Supreme Court in A.K. Kraipak v. Union of India (supra) and in the subsequent decision Union of India v. J.N. Sinha 1970 II L.L.J. 284 : A.I.R. 1971 S.C. 40, (1971) Lab. I.C. 8, laid down that the rules of natural justice are neither embodied rules nor can they be elevated to the position of fundamental rules. These rules can operate only in areas not covered by any law validly made. They do not supplant but supplement it. It is, therefore, clear that if a statutory provision can be read consistently with the principles of natural justice, the Court should do so. But, if a statutory provision either specifically or by necessary implication excludes the application of any principle of natural justice, then the Court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned legislation the principles of natural justice.
16. It is, therefore, not possible for any Court to declare an Act of Parliament a Rule if it dispenses with the requirement of the principles of natural justice, as void inasmuch as to hold the same would be against the doctrine of parliamentary sovereignty which is enshrined in our Constitution. If, therefore, a rule is validly made providing for dispensation of the requirement of natural justice, the Court has no power to say that the rule framed is ultra vires,
17. In C.L. Subramaniam v. Collector of Customs : (1972)ILLJ465SC , Subramaniam was charge sheeted and an enquiry was started against him under the provisions of the Central Civil Services (Classification, Control and Appeal) Rules. Rules 15(5) of the said Rules provided for the 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. The last clause of the aforesaid rule, which was relevant for deciding the aforesaid case, says that the government servant may not engage a legal practitioner for the purpose mentioned in that clause, 'unless the Disciplinary Authority having regard to the circumstances of the case so permits.'
18. Interpreting the aforesaid Rule 15(5), the Supreme Court found on the facts of that case that the accusation against the appellant was of a serious nature, and that the Disciplinary Authority erred in not affording the assistance of a legal practitioner to him. Dealing with the question whether the appellant of that case was entitled to legal representation on the basis of the principles of natural justice, the Supreme Court observed 'nor are we required to consider the principles of natural justice as those principles are only relevant when the concerned procedure is not regulated by any statute or statutory rules.'
19. It would thus be found that if there is a statutory rule made on a subject, the said provision cannot be held to be ultra vires on the ground of being in contravention of the principles of natural justice. It is no doubt true that an enquiry against a government servant has to be conducted and concluded in accordance with Article 311(2) of the Constitution and the Rules governing him. In conducting the enquiry, the principles of natural justice have also to be complied with. But, if on a particular point a provision has been made in accordance with which the proceedings have to be concluded, and that procedure is against the principles of natural justice, the rule or the law would not be invalid. We, therefore, hold that Rule 7 could not be held to be ultra vires on the ground of being against the principles of natural justice.
20. Next comes the question whether Rule 7 is repugnant to the guarantee conferred on a government servant under Article 311 of the Constitution. Article 311 of the Constitution guarantees reasonable opportunity. The word 'opportunity' follows the word 'reasonable'. This word does not have rigid meaning. In Khem Chand v. Union of India : (1959)ILLJ167SC at p. 307, it was said that the reasonable opportunity envisaged by Article 311(2) required that the government servant should be given an opportunity '(a) to deny his guilt and establish his innocence which he can only do if he is told the charges levelled against him and the allegations on which such charges are based, (b) to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally (c) to make his representation....
21. It is settled that whether the delinquent had a reasonable opportunity of defending himself is a question of fact depending upon the circumstances of each case. It is not possible to lay down any rule exhaustively in this regard, See K.L. Shinde v. State of Mysore : 3SCR913 , It will, therefore, have to be examined in each case as to whether the Government servant had been given a fair opportunity to defend himself. What is a fair opportunity must depend on the facts and circumstances of each case. It may, however, be pointed out that, as said by the Supreme Court in State of Mysore v. Shivabasappa : (1964)ILLJ24SC , there is a difference between a court of law and a domestic Tribunal or a quasi-judicial Tribunal. The civil Courts are governed by the procedure which has its roots in the age-long traditions, but the Tribunals are comparatively of recent origin. The statutes or the principles to which they owe their existence are not identical with those which are observed by civil Courts. Accordingly, the right of a litigant to be represented through a counsel recognised in a civil dispute before a civil Court cannot be applied to a quasi-judicial Tribunal. In the case of a quasi-judicial Tribunal, it has been held in several cases that no Government servant has a right to the assistance or help of a legal practitioner and the fact whether legal assistance should be given to him or not depends on the requirement of that particular case.
22. Under Article 311(2) of the Constitution, a Government servant is entitled to a reasonable opportunity. 'Reasonable opportunity' means that he has a right of a fair hearing. This right of getting fair hearing does not necessitate giving of legal assistance. On the facts of one case it may be possible to hold that a delinquent had not been given a reasonable opportunity or a fair hearing because he was not given legal assistance whereas in some other case such an argument may not be acceptable. There may be cases where permitting legal assistance may unnecessarily prolong the proceedings. There can also be a case where it may not be in public interest to associate a lawyer.
23. In Hari Prasad Singh v. Commr. of Income-tax : AIR1972Cal27 , where the question of help or assistance of a lawyer in a departmental enquiry came for consideration, it has been held that where there was hardly any scope of oral testimony and the delinquent himself was a sufficiently qualified person, there was no denial of reasonable opportunity; the principle being that no delinquent is entitled to claim as a matter of right the facilities or assistance of a lawyer in an enquiry. The question would depend upon the various factors and the circumstances depending upon the facts of each case and nobody in such enquiry has an absolute right to appear through a counsel or to have his assistance when such right is not created or could be gathered from the statutes relevant for determining the terms of service and conditions of employment. This would be borne out from the two decisions of the Supreme Court which we would presently cite. One of the decisions is reported in Krishna Chandra Tandon v. Union of India : AIR1974SC1589 , (1974) Lab. I.C. 1010. In that case, the argument that since the legal assistance had been denied to the petitioner, therefore, the dismissal order was vitiated, did not find favour with the Supreme Court. In that case, the argument advanced also was that having regard to the intricacies of the case and particularly the ill health of the appellant, he should have been given the assistance of an advocate, and since that was not given, there was no reasonable opportunity to defend. The Supreme Court held (At p. 1015-1016 of Lab. I.C.):
The appellant was not entitled under the rules to the assistance of an advocate during the course of the enquiry. The learned Judges were right in pointing out that all the appellant had to do in the course of enquiry was to defend the correctness of his assessment orders. Clear indications had been given in the charges with regard to the unusual conduct....
The circumstances in the evidence against him were clearly put to him and he had to give his explanation. An advocate could have hardly helped him in this....
There was no legal complexity in the case. We do not, therefore, accede to the contention that the absence of a lawyer deprived the appellant of a reasonable opportunity to defend himself.
24. The other case is reported in H.C. Sarin v. Union of India : AIR1976SC1686 , . In this case, the Supreme Court was called upon to interpret a note which was appended to Rule 1730 of the Indian Railways Establishment Code, Vol. I. One such note was Note 4. Treating the said note as part of the rule, the Supreme Court found that the appellant was not entitled to the services of a professional lawyer. It held that the Tribunal had a discretion in the matter and as the discretion was found not to have been unreasonably exercised, it refused to accept that the dismissal order was vitiated on account of refusal to give the assistance of a professional lawyer to the appellant.
25. Great reliance had been placed by the learned Judges in A.K. Sharma's case (supra) on the decision of the Supreme Court given in C.L. Subramaniam v. Collector of Customs (supra) for holding that Rule 7 was repugnant to the guarantee conferred on a government servant under Article 311 of the Constitution. In that case, we have already stated above, the enquiry was being conducted against C.L. Subramaniam in accordance with the provisions of the Civil Services (Classification, Control and Appeal) Rules. The Supreme Court held, on the facts of that case, that the refusal to give legal assistance to the appellant of that case was unjustified. It did not hold that taking assistance of a legal expert by a government servant before a Tribunal to defend himself is a constituent part of the principles of natural justice and of the reasonable opportunity guaranteed under Article 311 of the Constitution. The decision turned on its own peculiar facts. If the Supreme Court would have held that every government servant has a right guaranteed to him under Article 311(2) of the Constitution to take legal assistance of lawyer, the decisions in the cases of Krishna Chandra Tandon, (supra) and H.C. Sarin (supra) would have been different. In that event, it would have been not necessary for the Supreme Court to have examined whether any injustice had been done to the appellants of those cases because of the denial of legal assistance. If there was a right guaranteed under Article 311(2) of the Constitution, denial to government servant to avail that right would have been sufficient to quash those orders. The Supreme Court itself observed in C.L. Subramaniam's case (supra)(At p. 1051):
Therefore, that authority clearly failed to exercise the power conferred on it under the Rules. It is not unlikely that the Disciplinary Authority refused to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier. It had caused serious prejudice to the appellant and it amounted to a denial of reasonable opportunity to defend himself.
26. In fact, Sub-rule (5) of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, with which the Supreme Court was dealing has two parts. The first part says that the government servant may not engage a legal. practitioner for the purpose mentioned in that clause unless the Disciplinary Authority having regard to the circumstances of the case so permitted. Dealing with this part, the Supreme Court found that the discietion exercised by the authority was arbitrary inasmuch as in its opinion the disciplinary authority should have permitted the appellant to engage a counsel. The Second part of this Rule, however, was of a mandatory character which was that if the counsel was not permitted to be engaged, the Government servant had the right to get assistance of a friend or a colleague. Interpreting this provision the Supreme Court held that the facility to have the assistance of government servant was mandatory. The refusal to have the assistance of the government servant resulted in denial of the reasonable opportunity. Dealing with the second part of the Rule, the Supreme Court observed (At. p. 1053 of Lab. I.C.):
From the facts set out above, it is clear that the enquiry officer did not afford the appellant necessary facility to have the assistance of another government servant in defending him which assistance he was entitled to under the rules. He was deprived of that assistance solely because of the indifferent attitude adopted by the enquiry officer. Therefore, we have no hesitation in coming to the conclusion that the enquiry officer had clearly breached Rule 15.
27. This case came up for consideration before the Supreme Court in H.C. Sarin's case (supra). The Supreme Court observed. 'Great reliance was placed for the appellant on a decision of this Court in C.L. Subramaniam v. Collector of Customs, (supra). The argument that, rule or no rule, the service of a professional lawyer should be made available at a departmental enquiry when asked for was not accepted. What was held in that case was that the disciplinary authority brushed aside the request of the appellant before the Supreme Court on a wrong ground, completely ignoring the circumstances which were relevant.'
28. The above observations would show that the conclusion drawn by the Division Bench in A.K. Sharma's case that affording of an opportunity to engage a lawyer was a constituent part of the right to defend, was not accepted by the Supreme Court. With great respect to the learned Judges who decided the case, we find that the Supreme Court's decision in C.L. Subramaniarn's case was not an authority for the view which it took. In our view, a Government servant is not entitled as of right to the assistance of a legal practitioner in a departmental enquiry. Hence, the mere denial of such help will not necessarily involve failure to observe the guarantee. As observed above, the expression 'reasonable' is not susceptible of a clear definition. What is reasonable in one case may not be so in another, and vice versa. The view taken by us that a Government servant is not entitled to the assistance of a legal expert is supported by a number of decisions of the various High Courts. We do not consider it necessary to make a reference to those cases.
29. From what we have said above it follows that in the absence of a specific rule, requiring the Government to permit a government servant to engage a lawyer, refusal to grant permission would not necessarily result in the deprivation of opportunity guaranteed by Article 311(2), since it is not a constituent or component part of the reasonable opportunity. Of course, if a rule itself provides a right to a Government servant to take help of a lawyer or counsel, the refusal to permit a civil servant to engage him will have different consequences. In the instant case, we are unable to find anything in Rule 7 which entitled the petitioner to get assistance of legal practitioner. As already held, we find that Rules 7 and 8 read together confer a discretion on an authority to permit a delinquent to take help of a counsel. The question whether the discretion has been properly exercised or not, is one of fact depending on the circumstances of each case. In our view, Rule 7 only prohibits a government servant from claiming assistance of a counsel as of right. It does not impose absolute restriction or prohibition on the right of the Tribunal not to permit a counsel to appear before it.
30. In H.C. Sarin's case (supra), Rule 4, which was considered by the Supreme Court in that case, lays down that (at p. 1136 of Lab. I.C.):
In a departmental enquiry, the accused railway officer may, if he so desires, be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional lawyer. The term 'professional lawyer' includes those persons who are competent to practise in a court of law.
31. The Supreme Court held that in the face of the above rule, the appellant was not entitled to the services of professional lawyer. Interpreting this rule further, the Supreme Court observed (at p. 1136 of Lab. I.C.):
At the most, it had a discretion in the matter. The question is whether the discretion was rightly exercised or was exercised so arbitrarily as to lead to the conclusion that principles of natural justice were violated when the services of a lawyer were not made available to the appellant. We give the answer against the appellant.
32. It would appear that the Supreme Court examined the merits and found that the grievance of not getting the legal help was not justified. Although it has not said so, but we have no doubt that had giving of legal assistance been a constituent part of Article 311(2), it would have struck down.
33. For what we have said above, we find that A.K. Sharma v. State of U.P. (supra) does not lay down the law correctly. Under Rules 7 and 8, the Tribunal has discretion to permit the assistance of a legal practitioner to a government servant. Of course, the discretion has to be exercised honestly and not capriciously. Discretion necessarily implies good faith in discharging public duties. It must be exercised for the purposes conferred. Therefore, if a discretionary power has been exercised for an unauthorised purpose, the exercise of the power would be vitiated. In that event, it would be immaterial that its repository acted in good faith and not in bad faith. The authority which has to exercise the discretion must not take into account irrelevant matters and ignore the relevant. If in a case a court finds that the discretion has not been legally exercised, the act done would be invalid.
34. We answer the question in the negative and hold that Rule 7 of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, is not violative of Article 311 of the Constitution.
35. Let the papers of this case be laid before the Bench concerned.