M.L. Jain, J.
(1) The petitioner Dr. R. A. Darbari was a Surgeon in the Willingdon Hospital Nursing Home in New Delhi in 1967-68. On 19-11-1968 one Nairn Ahmed sent a complaint to the Additional Health Secretary, New Delhi that he and the petitioner were residents of Mainpuri, U.P. Nairn's mother had fallen and broken her bone. On approaching Dr. Darbari, he advised him to bring his mother to Delhi. Then the petitioner told him that Rs. 500 will have to be spent in the treatment of his mother. He gave that much money to Dr. Darbari. Dr. Darbari kept his mother for 15 days in the said hospital and then declared that she could not be treated there and offered to have her admitted in the Irwin Hospital. When he went to the Irwin Hospital. he demanded another Rs. 500 for the doctors in that hospital. Nairn talked to the doctors in the lrwin Hospital who told him that there was no need to make any payment because the treatment was free. The petitioner has taken money from other patients of the lrwin Hospital. He requested that the petitioner be asked to return his money. This complaint was entered in the complaint register on 21-11-1968, but it seems that no criminal case could be made out against the petitioner and he was proceeded departmentally in respect of this and two more cases.
(2) Departmental enquiry started on 16-3-1971 on three charges that the petitioner failed to maintain absolute integrity and his conduct was unbecoming of a Government servant and violated the provisions of Rule 3(l)(i) and (iii) of the Central Civil Services (Conduct) Rules, 1964.
(3) The first charge is based upon the allegation that some time in the month of May, 1967 Dr. Darbari happ ened to go to his native village Mainpuri. He was consuited by Chiranji Lal of Bahadurpur for treatment of hiswife Rat Rani for cancer in her mouth. Dr. Darbari advised him to come to Delhi and bring Rs. 500 for medical expenses. In July, 1967 Chiranji Lal came to Delhi along with his wife . Dr. Darbari demanded and accepted a sum of Rs. 400 from Chiranji Lal. He got the X-ray examination done in the Willingdon Hospital on 3-7-1967. As there was no arrangement in the Hospital for treatment of cancer, Dr. Darbari took them to Safdarjung Hospital on 5-7-1976 and got her admitted there with the help of Dr. Ghosh. Medical treatment in the said hospitals was absolutely free and the petitioner could not demand and accept any money from Chiranji Lal. The petitioner was also not entitled to private practice or to receive any money from the patients.
(4) The second charge was that in July('August, 1968, when Dr. Darbari happened to goto his native place, Naim approached him for the trerament of hi? mother. Dr. Darbari advised him to bring his mother to Delhi for treatment and also bring Rs. 500 for medical expenses. Thereafter, Nairn Ahmed brought his mother to Delhi and contracted Dr. Darbari in August, 1968. Dr. Darbari demanded a sum of Rs. 500 from Nairn Ahrned for the treatment of his mother. This amount was paid to Malti Darbari, wife of Dr. Darbari. Thereafter the patient was admitted in the Willingdon Hospital where she remained indoor patient from 21-8-1968 to 2-9-1968. As her operation could not be performed in the Willingdon Hospital, the petitioner got her admitted in the Irwin Hospital on 2-9-1968 with the help of Dr. B. Sankaran. Medical treatment in both the hospitals was absolutely free and Dr. Darbari was not supposed to accept any .money.
(5) The third charge was that when Dr. Darbari visited his native village Mainpuri in August, 1968, he was approached by Ram Prakash for the treatment of his ailling wife, Krishna. Dr. Darbari advised him to bring his wife to Delhi and also bring Rs. 400 to Rs. 500 for medical expenses. After sometime Ram Prakash came to Delhi along with his wife and her brother Ram Saran and went to the residence of Dr. Darbari. On the asking of Dr. Darbari, they paid a some of Rs. 350 to Malti Darbari wife of Dr. Darbari. Subsequently, Dr. Darbari himself conducted an operation on Krishna in the Willingdon Hospital and Nursing Home itself. Medical treatment in the Willingdon Hospital and Nursing Home was absolutely free and Dr. Darbari was not supposed to demand and accept any sum from Ram Prakash and Ram Saran. Dr. Darbari was not entitled to private practice.
(6) In the said Enquiry, the first Presenting Officer was one I.P. Singh later on replaced by B.K. Shukia, both Inspectors Cbi, Spe, New Delhi and a request for engaging a lawyer was refused to Dr. Darbari. The Enquiry Officer submitted his report on 30-6-1972. He exonerated Dr. Darbari of the first two charges, but held that the third charge was proved.
(7) The Government of India by its memorandum of 12-12-1972 held that the President has agreed with the findi ngs of the enquiry officer regarding charge No. Iii and charge No. I, but disagreed with the findings on charge No. II. The President held that the evidence produced before, the enquiry officer shows that Mehboob Khan acting as the agent of Nairn Khan did make a payment to Malti Darbari for medical treatment and thus the substance of the charge is proved. After a show cause notice the President by his order dated 25-11-1974 imposed on him the penalty of dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
(8) By this writ petition filed on 13-1-1975 the petitioner prays that the impugned order be quashed and it should be directed that the petitioner be treated in continuous service with consequential benefits.
(9) The first question that this court is required to decide is the nautre and extent of is jurisdiction in dealing with the Departmental inquiry. In Union of India v. H.C. Goel, : (1964)ILLJ38SC the Supreme Court observed that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty, a scruplous oare must be taken to see that the innocent are not punished, applies as such to regular criminal trials as to the disciplinary enquiries held under the statutory rules. Mere suspicion should not be allowed to take place of proof even in domestic' enquiries. But the High Court cannot interfere with the conclusions of the disciplinary authority unless the findings of such authority was not supported by any evidence, nor could it be said that no reasonable person would have reached such a finding: Railway Board, Representing the Union of India v. Niranjan Singh, : (1969)IILLJ743SC . In State of Andhra Pradesh v. Chitra Venkata Rao, : (1976)ILLJ21SC , it was said :
'ANerror of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be cor reeled by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is sufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal'.
(10) Having thus determined the nature of The enquiry by, and the scope of the jurisdiction of, this court under Article 226 of the Constitution, let us now proceed to examine the case in hand. The first contention of Mr. Gupta on behalf of the petitioner is that 29 witnesses were examined in the enquiry, 34 documents were exhibited and the depositions ran into 200 pages and all this magnitude of the inquiry could be easily envisaged and yet the petitioner was not allowed the assistance of a legal practitioner. The petitioner has thus been deprived of reasonable and equal opportunity and has been greatly prejudiced in defending the charges. The inquiry does thus stand vitiated. Rules 14(5)(c) of the Central Civil Services (Classification, Control and Appeal) Rules, provides that the disciplinary authority may by an order appoint a Government servant or a legal practitioner to be known as the Presenting Officer to present on its behalf the case in support of the articles of charge. Sub-rule (8) of the same rules provides that 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 is a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits. In C.L. Subramaniam v.The Collector of Customs. Cochin, : (1972)ILLJ465SC , the delinquent officer pointed out that the officer appointed to present the case in support of the allegations against him bef ore the Enquiry Officer was a person legally trained to conduct such prosecutions. He requested for permission to engage a lawyer of his choice to represent and defend the charges otherwise he will be prejudiced in his defense. He got a reply that although the presenting officer was a legally trained person, he was not a legal practitioner and hence there was no necessity for him to engage a lawyer to defend the case at the enquiry. Grievance was made before the Supreme Court. It held:
'THEfact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. The Disciplinary Authority completely ignored that circumstance. thereforee that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority refused to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to denial of reasonable opportunity to defend himself'.
(11) The impugned order of dismissal was struck down and a fresh enquiry was refused in the circumstances of the case and the officer was directed to be restored to the position to which he would have been entitled but for the impugned order. In Mihier Kr. Sanval v. Commissioner of Excise, West Bengal, 1975 (2) Slr 19, the Presenting Officer was Deputy Superintendent of Police. CBI. All the evidence was collected by the Sub-Inspector of the Police attached to the Vigilance Commission. The petitioner was a Sub-Inspector of Excise and he was pitted against the Police Inspector as also the Dsp who conducted the enquiry. The petitioner wanted the assistance of a lawyer which was refused on the ground that the charges were very simple and involved no complicated questions of law and that the enquiry was being conducted by a Higher Judicial Officer and as such assistance of a lawyer cannot be permitted. This was held not a valid ground for rejection of the application for the assistance of a lawyer. If the criminal proceedings were taken against the petitioner he would have been entitled to the assistance of lawyer, but in the departmental proceedings rules admittedly do not, in all cases, permit the assistance of a lawyer, but in a case like this where a large number of documents were produced and a large number of witnesses were examined in support of the prosecution, the training of the delinquent officer is not such as to enable him to defend himself. The court held that in the facts and circumstances of the case the petitioner should have been allowed the assistance of a lawyer in order to defend himself. In S.Y. Venkateshwaralu v. The Director General of Ordnance Factories 1978 (1) Slr 309, the permission to engage a lawyer was refused on ground that the Presenting Officer was not a legal practitioner. But where the circumstances of the case which justified engagement of a legal pracitioner were not consid ered at all, the petitioner was held not to have had a read sonable opportunity to defend himself at the enquiry. Having regard to the serious nature of the charges framed against the petitioner the enquiry officer would have been justified in permitting the petitioner to engage legal practitioner. There was a contravention of sub-rule (8) of Rule 14 as the request for engagement of lawyer has been arbitrarily rejected. The impugned order was struck down and the department was left a choice to conduct the enquiry de novo after giving a reasonable opportunity to the petitioner to defend himself.
(12) In Baidhar Das v. The State and others, : AIR1970Ori220 , the charges were of serious nature, documents were bulky and many', witnesses, examined in support of the charges were also too many, and the delinquent officer did not have the working knowledge of the procedure relating to cross-examination of witnesses. It was held that the disciplinary authority acted contrary to the spirit of Article 311 in denying representation by a lawyer in the enquiry and that the enquiry was vitiated
(13) In Alakendu Sarkar v. State of West Bengal, 1981 (2) Slr 33, it was held that the assistance of a lawyer should not be refused to a delinquent officer where the legal points in the departmental enquiry are involved. In K. Laxmaiah v. The Zonal Manager. Food Corporation of India, 1981 (2) Slr 794, it was held that the denial of assistance of a counsel is denial of reasonable opportunity and the findings of guilt were quashed.
(14) Now, see what happened in this case. The petitioner wrote a letter on 26-3-1970 that the charges against him were of criminal nature, his whole reputation was. stake and he found it extremely difficult to defend himself in view of the most complicated nature of evidence which was likely to be produced against him. He would not be able to properly defend himself at the enquiry and only a lawyer could properly defend him. He should be allowed to be represented by an Advocate. By memo dated 27-6-1970, his request was declined on the ground that the facts and the nature of the evidence as given in the charge sheet were not complicated and were not of such a nature that the petitioner would not be able to understand the implications and prepare a proper defense. It was also stated in the said memo that I.P. Singh, Inspector, S.P.E., Delhi Branch was not a legal practitioner. Later on 1. P. Singh was replaced by B.K. Shukia who was also an Inspector of the SPE. On 21-6-1971 the petitioner informed the enquiry officer that he was appearing in the proceedings under protest. He complained of discrimination inasmuch as the department was allowed to present itself by a Police Officer who was a very competent Police Prosecutor and was well trained in conducting not only departmental enquiries but also criminal cases. The enquiry officer vide order sheet dated 21-6-1971, simply forwarded his request to the disciplinary authority and did not permit him to engage a lawyer. Here a Surgeon was pitted against a Police Officer trained in investigation of criminal cases and looking at the nature of the charges made in respect of the events which took place three years ago, the petitioner should have been allowed the assistance of a lawyer. It is easy for a Surgeon to dissect the human bodies, but it is the most difficult task for him to tear the evidence by cross-examination. I am, thereforee, of the view that there has been a failure to comply with the provisions of Article 311 of the Constitution by refusing to the petitioner the assistance of a legal practitioner in the circumstances of this case.
(15) Now, we may briefly survey the merits. The petitioner was exonerated of charge No. I by the Enquiry Officer and the President agreed with him. Charge No. Ii relates to the acceptance of money from Nairn. The Enquiry Officer exonerated him of this too but the President disagreed. In his complaint, Nairn has said that he had given Rs. 500 as bribe to Dr. Darbari. There is no mention of Mehboob Khan in this complaint. But in Charge No.- Ii, it is, however, stated that Dr. Darbari demanded and accepted Rs. 500 through his wife Malti Darbari. In his statement before the Enquiry Officer, Nairn Ahmed Pwi deposed that he went to Delhi along with his mother and one Mehboob Khan. When they called at the residence of Dr. Darbari he gave them a room at his residence to stay and said that the treatment of the mother would cost Rs. 500. The expenditure of Rs. 500 would include X-ray also. Money was paid by Mehboob Khan which was taken by Malti Darbari and thereafter they went inside the house with the money. Mehboob Khan, however, said that he had not given any money to Dr. Darbari. They had stayed at the residence of Dr. Darbari. Nairn Khan had given him Rs. 200 for expenses to be given to Dr. Darbari towards X-ray, transporation, etc. Nairn told him at Mainpuri that there was quarrel between him and Dr. Darbari and he had filed a complaint against Dr. Datbari. Rs. 200 were deposited with Dr. Darbari through him and Rs. 300 were spent by him on his own expenses. This makes up Rs. 500 or Rs. 600 which Nairn said hs had spent on his mother's treatment. Apparently, in thess circumstances, this charge was not proved at all. What one can get out of the evidence of Mehboob Khan is that no money by way of bribe or unauthorised charges was paid to the petitioner. Rs. 200 were deposited with him in order to meet the expenses involved in their living and treatment. Dr. Darbari's contention was that the whole case was cooked up against him because of his quarrel with his cousin over the land dispute and Nairn was a man of bad character facing criminal trials, and had not only misused the hospitality but molested the girls of the house. He lodged this complaint at the instance of his cousin. Charge was that Dr. Darbari demanded and accepted Rs. 500 through his wife. The President, however, was of the opinion that Mehboob Khan act- ing as agent of Nairn paid Rs. 200 to Malti Darbari. he does not any that the money was paid to or for Dr. Darbari and for what purpose. I do not think that the President was justified in disagreeing with the findings of the enquiry officer in this regard. In this connection the petitioner complained that the President has ignored the letter Ex.D2 of Maim Ahmed of 12-11-1968 in which he repented that he quarrelled with Dr. Darbari. That letter was written a week before he sent the complaint to the Additional Health Secretary. Apart from the discrepancies Mehboob has not supported the case set up by Nairn Ahmed. Thus there was no evidence to support charge No. II. 'It is based upon sheer suspicion that Rs. 200 at least must have passed hands and that is an error of law inviting an interference by this court.
(16) As regards the third charge, it a clear case of prejudice. The Enquiry Officer found that Rs. 350 were paid by Ram Saran to Dr. Darbari in the presence of Ram Parkash and his wife Krishna. The most material witness in the circumstances was Ram Saran. He came but was not examined. While Explanationn has been given by the Enquiry Officer for his non-production. It was in the counter affidavit that it was pleaded that Ram Saran was a poor person and could not come to Delhi. The question of examining this witness at Mainpuri was considered by the Enquiry Officer but the dilinquent officer said that it would not be convenient in the interest of P.L. Gupta, the Officer assisting the petitioner that he should undertake any journey outside Delhi. The petitioner was also pre-occupied with his duties in the Hospital and he was not able to spare himself to go Mainpuri. It is contended that it was the petitioner who avoided visiting Mainpuri for the purpose of examining the said witness and it was decided by the Inquiry Officer that it would not be worth its while to make another attempt to call this witness to Delhi for examination, and he decided the case on the basis of the evidence already on record. This ground given by the respondents is not a valid ground. Ram Saran was available and his travel expenses could have been paid by the Enquiry Officer and there is no Explanationn by him in his report why Ram Saran was not called. He was a witness available and the record shows that Dr. Darbari had even offered to bear his expenses of the travel and placed Rs. 200 at the disposal of the Enquiry Officer but he was not summoned. It is not the case of the Department that the witness refused to come or was unwilling to come. Inferences is inevitable that if he had come he would not have supported the case of the prosecution. The petitioner contends that the Enquiry Officer ignored the value of two important pieces of evidence in respect of this charge. One wa,s Ex.D6 a letter of Ram Prakash which though denied by him was proved to have been written by him. This letter was sent by Ram Parkash to the petitioner denying that he had charged money from them and the Cid had been recording their statement Krishna Devi's tape recorded statement (Ex-D4) was played before the Enquiry Officer in which she recognised her voice. She told Dr. Darbari that they were deposing against him at the instance of Nairn. These two pieces of evidence show that the witnesses exonerated the petitioner and had given evidence at the instance of persons opposed to Dr. Darbari. But the Enquiry report shows that the Enquiry Officer did consider this defense evidence and he disbelieved it' all. But the charge could not be held to have been proved simply on the basis that Ram Parkash and his wife Krishna Devi said that Ram Saran gave money in their presence. Absence of Ram Saran whose evidence could be easily procured has seriously prejudiced the petitioner and it must be held that there was no evidence to substantiate this charge.
(17) Considering all the circumstances of the case, I am of the view that the impugned order must be quashed because the petitioner was deprived of the services of a legal practitioner and there was no evidence to support the fact found against the petitioner. It is set aside. Since the matter relates to 1968 and we are in 1982, it would be improper to allow .the respondents to hold a fresh enquiry. The necessary consequences shall follow. There shall be no costs.