Skip to content


Subramaniam (C.L.) Vs. Collector of Customs and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1969)ILLJ67Ker
AppellantSubramaniam (C.L.)
RespondentCollector of Customs and anr.
Cases Referred and of Smith v. Hancock
Excerpt:
- - nor, for that matter, am i satisfied from the complexity of the charge or the nature of the enquiry or otherwise that the denial of a legal practitioner amounted to a denial of an adequate opportunity to the petitioner to defend himself. it was complained that the disciplinary authority failed to exercise a judicial discretion as required by rule 15(5) of the central rules, in declining the assistance of a legal practitioner. enough was made out by counsel for the respondent from the files to show that this was plainly and clearly an attempt to abuse the process of the enquiry and that the request was made, not bona fide, but under instructions from the petitioner's advocate to take down, word for word, the proceedings of the enquiry. 6. thirdly, it was complained that the clubbing.....v.p. gopalan nambiar, j.1. this writ petition prays to quash the disciplinary proceedings taken against the petitioner terminating in ex. p. 8 order of respondent 1 removing the petitioner from service.2. exhibit p. 1 dated 25 august 1963, issued by respondent 1, is the memorandum of charge together with the statement of allegations against the petitioner. the charge was that the petitioner, while functioning as preventive officer, grade ii, customs office, cochin, during the period from june 1962 up to 31 january 1963 contravened the provisions of rule 12(1) of the central services (conduct) rules, 1955 (referred to as the conduct rules for short). the statement of allegations accompanying the charge stated that reply to letters dated 11 and 17 april 1962 from the petitioner, regarding.....
Judgment:

V.P. Gopalan Nambiar, J.

1. This writ petition prays to quash the disciplinary proceedings taken against the petitioner terminating in Ex. P. 8 order of respondent 1 removing the petitioner from service.

2. Exhibit P. 1 dated 25 August 1963, issued by respondent 1, is the memorandum of charge together with the statement of allegations against the petitioner. The charge was that the petitioner, while functioning as Preventive Officer, grade II, Customs Office, Cochin, during the period from June 1962 up to 31 January 1963 contravened the provisions of Rule 12(1) of the Central Services (Conduct) Rules, 1955 (referred to as the Conduct Rules for short). The statement of allegations accompanying the charge stated that reply to letters dated 11 and 17 April 1962 from the petitioner, regarding the purchase and running of taxis by his wife, Smt. Brinda Lakshmi, the petitioner was informed by the Assistant Collector of Customs that no permission was necessary as the purchase was statedly to be financed by his wife's relatives, but that the petitioner should not canvass in support of his wife's business as enjoined by the explanation to Rule 12(1) of the Conduct Rules. It was stated that in spite of the specific instructions thus issued, the petitioner had canvassed from several merchants daily having official dealings with the Customs House, for the taxi business of his wife, as could be seen from fifteen letters appended to the memorandum, copies of which were enclosed to the petitioner. An enquiry by respondent 2 into the charges commenced on 13 July 1963, and after examining certain witnesses, the petitioner submitted Ex. P. 2 statement dated 3 August 1963. The statement purports to be ' supplemental statement on the basis of the evidence placed before the enquiry officer' and 'in continuation of' the petitioner's letter in the form of defence statement dated 15 April 1963. Thereafter, a fresh memorandum dated 30 December 1963[(sic) 30 September 1963 (?)] issued by respondent 1 was served on the petitioner. Exhibit P.3 is a copy thereof. It is expressly stated that it was in continuation and furtherance of Ex, P. 1 memorandum, and enclosed a statement of allegations received in respondent 1's office after Ex. P. 1 charge and after the commencement of the enquiry. These were stated to be additional grounds in support of the charge already framed against the petitioner, which was being enquired into by respondent 2. The additional allegations thus served on the petitioner were these : that on 13 August 1962 he purchased a taxi car K.L.R. 1772 for Rs. 10,500 from Sri K.V. Kumaran, proprietor of Kumar Taxis, in the name of his wife Smt. Brinda Lakshmi; that in April 1962 he purchased another taxi, K.L.R. 3431 from Sri P.I. Sadanandan, proprietor of Shaila Taxis, also in the name of his wife; that on 30 December 1962 he purchased the taxi, concern Travels India, from its proprietor Sri Lazar Godfrey for Rs. 25,000 again, in the name of his wife ; that the negotiations for the purchases were all made by him and that he had been running the firm, Travels India, and also taxis; that he asked Sri A.S. Sivaraman of Mahavir & Co. more than once to inform his proprietors about his running the taxi concern and to request them to engage his taxis ; that he had not obtained the sanction of the Government to purchase taxis or to run taxis either in his name, or in his wife's name, or to canvass business on behalf of his wife ; and that on the above facts, he had contravened Rule 12(1) of the Conduct Rules.

3. The petitioner replied to Ex, P. 3 memorandum by Ex. P. 4 statement dated 10 November 1963. The enquiry was continued and completed, and Ex. P. 5 is a copy of the enquiry officer's report. Exhibit P. 6 is the copy of the show cause notice, issued by respondent 1 to the petitioner against the proposed penalty of removal from service. This was inflicted by Ex. P. 3 order after considering Ex. P. 7 explanation submitted by the petitioner.

4. Several grounds were urged to quash the proceedings. I shall refer to them and deal with them seriatim: First.-That the petitioner was denied a reasonable opportunity of defending himself at the enquiry. There were three facets to this complaint, namely, denial of a legal practitioner ; denial of theservices of a Government servant as desired by the petitioner ; and denial of the services of a stenographer sought for by the petitioner for the purpose of taking notes of proceedings. As far as the first of these aspects is concerned, the petitioner's counsel rightly did not take up the extreme stand that there was an absolute right to be defended toy a legal practitioner in enquiries of this type, and that denial of the same was a violation of Article 311 or of the rules of natural justice. He based his stand on the narrower ground that, on the facts and circumstances, the said denial was the denial of reasonable opportunity and of natural justice to the petitioner. The relevant statutory provision is Rule 15(5) of the Central Civil Services (Classification. Control and Appeal) Rules, 1957 (referred to as the Control Rules). The same reads:

The disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the inquiring authority). The Government servant may present his case with the assistance of other Government servant, but may not engage a legal practitioner for the purpose unless the person nominated by the disciplinary authority as aforesaid is a legal practitioner or unless the disciplinary authority, having regard to the circumstances of the case, so permits.

The petitioner's grievance was that Sri A.S. Sivaraman who was appointed by Ex. P. 3 memorandum to present the case against him, was an experienced police officer, and though not technically a legal practitioner, was legally trained. Strictly, however, as he was not a legal practitioner, there has not been any violation of Rule 15(5) of the Control Rules. Nor, for that matter, am I satisfied from the complexity of the charge or the nature of the enquiry or otherwise that the denial of a legal practitioner amounted to a denial of an adequate opportunity to the petitioner to defend himself. It was complained that the disciplinary authority failed to exercise a judicial discretion as required by Rule 15(5) of the Central Rules, in declining the assistance of a legal practitioner. There is little material to show that there has been no exercise of discretion at all by the disciplinary authority or that its exercise of discretion calls for interference. Exhibit P. 8 records that the request for counsel made by the petitioner on 9 October 1963 was rejected on 17 October 1963. The second aspect of this grievance, the denial of the services of a Government servant, was more strongly pressed on the ground that as the prosecution had the service of a presenting' officer (Sri Sivaraman), the denial of a similar right to the petitioner of the services of a Government servant to assist him in his defence was a denial of reasonable opportunity. The facts in relation to this matter have been set out in Para. 7 of Ex. P. 3. It is seen that the petitioner's request to be defended by Sri Abraham Kurien, a clerk in the Cochin Post Office, was allowed and a letter was sent to the Superintendent of Post Offices, Trichur, to make the officer available on 5 December 1963 and subsequent dates to which the enquiry stood posted. The petitioner was informed that Sri Kurien had to obtain the approval of his superior for rendering assistance and that the question of granting such approval had to be examined by the Superintendent of Post Offices. The petitioner wrote on 4 December 1963 to respondent 1 with copy to respondent 2, that Sri Kurien had applied for permission and was awaiting orders, and seeking adjournment of the enquiry, on that ground. This was granted. The petitioner was informed that the Government servant who proposed to defend him should be made available on the' adjourned date of hearing and the petitioner agreed by letter dated 5 December 1S63 that he would be defending himself in case Sri Abraham Kurien was not available on that day. (His present stand that this writing was forced on him has little to commend itself for acceptance, and was but faintly pressed). At the request of the petitioner, the Senior Superintendent of Post Offices, Trichur, was informed of the adjourned hearing on 30 December and the hearing was fixed for 8 January 1964, to proceed till completion. When the enquiry commenced on 8 January 1964, Sri Abraham Kurien was not available, the petitioner participated in the enquiry, and cross-examined some at least of the witnesses. On these facts, I see no contravention of Rule 16(5) of the Central Rules nor any violation of the rules of natural justice in not making available the services of Sri Abraham Kurien for the petitioner. The third and the last aspect of this grievance relates to the refusal to the petitioner of the service of a stenographer to take down the notes of the proceedings. It was admitted that there was no such right in the petitioner, either statutory or otherwise, to the services of a stenographer at the enquiry. Enough was made out by counsel for the respondent from the files to show that this was plainly and clearly an attempt to abuse the process of the enquiry and that the request was made, not bona fide, but under instructions from the petitioner's advocate to take down, word for word, the proceedings of the enquiry. There is no substance in any of the three aspects of the first submission that there was a denial of reasonable opportunity to the petitioner to defend himself.

5. The second ground of complaint was one of bias alleged against the disciplinary authority. In Para. 15 of the petitioner's affidavit it was alleged that the disciplinary authority (respondent 1) had discussions with a witness, Sri A.S. Sivaraman, regarding the evidence that ho was to give against the petitioner, that to prove this and the alleged bias of the disciplinary authority, the petitioner had requested the enquiry officer, to summon respondent 1 and also requested respondent 1 to present himself at the enquiry. The refusal of this request is stated to have prejudiced him. The averments thus made prima facie call for rebuttal and have been answered in Para,. 3 of respondent 1's counter-affidavit, as follows:

It is also incorrect to say that respondent 1 contacted the witness Sri Sivaraman with a view to induce him to depose against the petitioner. The allegation is unfounded and is lacking in bona fides.

The counter-affidavit has been sworn to by Sri D.N. Kohli, the present Collector of Customs, Cochin. Exhibits F. 6 and P. 8 disclose, and arguments at the hearing clarified, that he was not the officer to whom the petitioner's allegations could possibly refer. Exhibit P. 8 proceedings were passed by the then Collector, Sri S. Venkataraman. Exhibit P. 6 show-cause notice was issued by one of his predecessors Sri M. Ramachandran. In the course of the hearing, it was clarified that the target of attack In Para. 15 of the petitioner's affidavit was Sri M. Ramachandran. In the face of the change of personnel of respondent 1 during the enquiry it was unsatisfactory that the petitioner made no attempt to specify the officer against whom the allegations were made. It was still more unsatisfactory that these allegations should have been promptly denied on affidavit by an officer who could have no personal knowledge of them, and whose affidavit, for that reason, has only to be ignored. I am informed by counsel for the respondent that Sri Ramachandran was transferred from his post as the Collector of Customs, Cochin, in August 1965, was succeeded thereafter for a short time by another officer, and only thereafter, by Sri Venkataraman, who assumed charge in December 1865. Apart from the unsatisfactory aspect of the pleading, I do not think there is any substance in the charge of bias made by the petitioner ; nor, any ground for interference on that ground. The petitioner made no such grievance in the lengthy explanation (Ex. P. 7), that he submitted in answer to Ex. P. 6. The only grievance he had against the evidence of Sri A.S. Sivaraman was that the same was actuated by a desire to avenge against the petitioner for his refusal on a prior occasion to pass the baggage of two officers on board(SS. Asoka Jayanthi when they were signing off. At the personal hearing afforded to the petitioner before passing Ex. P. 8 order, no case of bias was ever put forward (by that time SriRamachandran had Quitted and Sri Venkataraman was the Collector of Customs). Even then prejudice was alleged against Sri Sivaraman on a different ground, of a certain incident relating to the passing of a transistor radio, about which evidence was let in through defence witnesses, Sri O.K. Radhakrishnan and Sri Sridharan. The disciplinary authority recorded in Ex. P. 8 that he was not going to set any store by the evidence ofSri Sivaraman. In the circumstances, I am unable to countenance or to accept the plea of bias.

6. Thirdly, it was complained that the clubbing of the enquiry in respect of the two charges mentioned respectively is Exs. P. 1 and P. 3 was improper ; that, while the first proceeded on the basis that the petitioner canvassed for the taxi business run by his wife, the second was on the footing that he wag himself the owner of the taxis and the concern, Travels India. It was complained that the enquiry into Ex. P, 1 charge had been completed by the time Ex. P. 3 charge was taken up, that when the latter was proceeded with, the petitioner had no reason to expect that the subject-matter of Ex. P. X charge would be further enquired into, or to direct cross-examination in respect of the same, and that this had prejudiced his defence. Ex. P. 3 is clear and specific that it is supplemental to Ex. P. 1, and that the statement of allegations furnished therein is in addition to that set out in fix. P. 3 and in support of the charge already framed. I do not see any cause for misconception on the part of the petitioner, or any ground for prejudice caused to him as a result of the continuation of the enquiry after ex. P. 3 memorandum was served on him. There was only one charge against the petitioner, viz., that of contravention of Rule 12 of the Conduct Rules and this was supported by the two separate statements of allegations furnished in Ex. P. 1 and P. 3. Although this was the plain and simple position, some confusion has resulted from certain inaccurate statements in the enquiry report (Ex. P. 5), and even in the counter-affidavit of respondent 1. These were stressed by counsel for the petitioner. For instance, the enquiry report in one place proceeds to refer to the 'first charge' levelled against the petitioner and records that ' charges 1. 2 and 3 mentioned at pp 1 and 2 have been proved beyond doubt.' However, at the end it recorded:

Therefore, I find the charge of canvassing the business and engaging himself directly or indirectly in the running of the taxi business as conveyed to him in the chargesheet proved beyond doubt.

Exhibit P. 8 proceedings made it clear that although two separate memoranda (Exs. P. 1 and P. 3) were issued to the petitioner, the charge against him was still the same as in the first one and that the allegations in Ex. P. 3 were additional grounds in support of the charge. The petitioner's counsel complained that in spite of this it had proceeded at the end to add a third set of allegations, namely, that the petitioner had used his official position and influence to canvass business for his wife. I do not think that this criticism of Ex. P. 8 is justified. Having found the charge against the petitioner proved, what followed in Para. 21 of Ex. P. 8 was a mere dissertation, which in no way affected the merits of the case or prejudiced the petitioner. While this is so, respondent 1 should certainly have been more careful in his pleading in Para. 3 of his counter-affidavit on which the petitioner's counsel commented. While referring to the petitioner's complaint that one of the witnesses (Sri Hyde) was examined behind his back, respondent 1 stated:

This was only in the preliminary enquiry and in the subsequent enquiry Sri Hyde was examined and the petitioner got the opportunity to cross-examine him ...It is submitted that the fact of Sri Hyde was being examined at the preliminary enquiry, would in no way vitiate the proceedings in the regular enquiry conducted after giving an opportunity to the petitioner, to cross-examine the witnesses.

Such inaccurate statements should have been avoided at the stage of the counter-affidavit. There was only one integrated enquiry into Ex. P. 1 charge supported by the allegations in Exs. P. 1 and P. 3 and it was quite wrong to refer to it, as consisting' of a ' preliminary enquiry ' and a ' regular enquiry ' as respondent 1 did in the counter-affidavit. But, shorn of these outgrowths and excrescences, the core of the matter has been unimpaired and, I am satisfied, has been dealt with properly. There is no substance in the third of the submissions mad(c) by the petitioner.

7. The fourth ground urged was that Sri Hyde of Harrison & Crosfield, who was examined as P.W, 1 at the enquiry, was examined behind the back of the petitioner on 18 July 1983, that the petitioner had no opportunity to cross-examine him that day, and that when he had such an opportunity at the resumed enquiry on 8 January 1934, he bona fide believed that the same had to be restricted to the matters contained in Ex. P. 3, and could not be enlarged to cover the matters in Ex. P. 1 in respect of which the enquiry had concluded. Here again the allegations in Para. 14 of the petitioner's affidavit, are not sufficiently clear and specific. It is stated therein that when the petitioner presented himself at the enquiry (on 8 January 1964), the six witnesses who were examined earlier and Sri A.S. Sivaraman were produced and the petitioner was never given any notice that the witnesses examined earlier, would be examined again. It is alleged that the petitioner was taken by surprise to Sri Hyde and other witnesses examined again on 8 January 1964 (Sri Hyde's further examination was actually on 9 January 1964-vide Ex. P. 8). In Para. 6, the petitioner stated that when he appeared for the enquiry on 18 July 1963, P.W. 1, Sri Hyde, had already been interrogated and had left the place and the petitioner was not given an opportunity either to hear his evidence recorded by respondent 2 or to examine him. These are the allegations in support of this head of grievance. But it is undisputed that Sri Hyde was examined again on 9 January 1964 and that he was cross-examined on that date by the petitioner. This is noted also in Ex. P. 8. In Para. 6(a) of Ex. P. 7, the petitioner did complain of the examination of Sri Hyde at the ' first enquiry ' in his absence. Exhibit P. 8 recorded that it was not denied that the petitioner was present on 18 July 1963 and that he had cross-examined other witnesses that day. In other words, there is nothing to show why or how P.W. 1 happened to be examined before the petitioner presented himself at the enquiry, and, if the petitioner had good cause for his absence, whether he made any request to have P.W. 1 recalled and examined. Respondent 1 further recorded in Ex. P. 8 that copies of the statements of the witnesses were served on the petitioner on 31 July 1963 and in acknowledging the same he endorsed that he did not cross-examine Sri Hyde on 18 July 1963. Whatever that be, on 9 January 1964 when Sri Hyde was again tendered for examination the petitioner had already been served with a copy of his statement given on 18 July 1963. He had also been told by Ex, P, 3 memorandum that the allegations therein were supplementary to those contained in Ex, P. 1 and had reference to the same charge. In these circumstances, nothing prevented the petitioner from making good his omission on the earlier occasion- whether justified or not-by cross-examining Sri Hyde on 9 January 1964. I have already referred to the statement in Para. 3 of the counter-affidavit of respondent 1 where an unnecessary confusion has been created by referring to the alleged examination of Sri Hyde behind the back of the petitioner, as only in the ' preliminary enquiry ' and to full opportunity having been given to the petitioner to cross-examine the witness at the ' regular enquiry.' I have held that this lapse in pleading does not affect the merits of the case. There is no substance in the complaint made on this score by the petitioner.

8. The fifth ground of complaint was that documents 1 to 8 mentioned in Para. 2 of Ex. P. 5 were not shown to or made available to the petitioner, and, as the conclusion in Exs. P. 5 and P. 8 had been based on them he had been prejudiced in his defence. Exhibit P. 8 records that permission to peruse the documents referred to in the memorandum of charge and the statement of allegations was granted to the petitioner by order dated 19 April 1963. These did not cover the eight documents in respect of which complaint is now made. Those eight documents bear on the statement of allegations made in Ex, P. 3. As seen from Ex. P. 5, they were marked as exhibits at the enquiry. Rule 15(3) of the Control Rules reads:

The Government servant shall for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority such records are not relevant for the purpose of public interest to allow him access thereto.

The petitioner had no case that he had specified these documents which he wanted to inspect and from which he wanted to take extracts, as enjoined by the above rule. The complaint that these documents were not part of the enquiry, or were not properly received, and that the petitioner had not been afforded inspection of the same for the purpose of his defence was not taken in Ex. P. 7 in answer to Ex. P. 6 show-cause ; nor even at the personal hearing afforded to the petitioner before the disciplinary authority before passing Ex. P 8 proceedings. In fact Ex. P. 7 refers to some of these documents [see for instance Para. 5(g) which seems to refer to Ex. P. 1, and to Para. 5 (7c) which seems to refer to Ex. P. 8], These documents were referred to and commented on in the course of the enquiry report, Ex. P. 5. Despite these comments in Ex. P. 5 report the absence of any specific grievance by the petitioner in Ex. P. 7 either about the reception of the documents or the reliance placed on them, is significant. I have no hesitation in rejecting the petitioner's contention that the reception of Exs. P. 1 to P. 8 at the enquiry, and the non-disclosure of those documents to him had vitiated the proceedings and prejudiced his defence.

9. Sixthly, the petitioner's counsel contended that the appreciation of the evidence of witnesses was biased and improper, that matters favourable to the petitioner had been lightly brushed aside and the unfavourable aspects readily clutched upon. I am not satisfied that there is any grievance in this complaint; nor, assuming there is, is it one which can be redressed in these proceedings.

10. Seventhly, it was complained that respondent 1 relied on certain reports not proved at the enquiry and in respect of which the petitioner was not afforded any opportunity of rebuttal. As an instance in point the petitioner's counsel referred to the statement, dated 21 March 1963, of Sri P.R. Varma, the manager of Kerala Travels, which is referred to in Para. 17 (6) of Ex. P. 8. The enquiry report, Ex. P. 5, shows that some of the persons who had furnished written statements did not appear before the enquiry officer and therefore their statements were not considered at the enquiry, although the written statement of one of them was filed as an exhibit for the defence (that of Sri V.T. Jesind, as Ex. D. 1). Sri P.R. Varma was one of those examined at the enquiry and also cross-examined by the petitioner. It is seen from Ex. P. 8 that Sri Varma was cross-examined on his statement, dated 21 March 1963, by the petitioner. The fact that the enquiry officer did not take his evidence into account, is no ground why the disciplinary authority should not have rolled on it, as he did in Ex. P. 8. Quasi-judicial tribunals conducting enquiries of this type, are not bound by the nice rules of evidence laid down in the Indian Evidence Act. It is enough if they conform to the broad essentials of natural justiceState of Mysore and Ors. v. Shivabasappa Sivappa 1964-I L.L.J. 24. The current of decisions has carried the tide much further and they even recognize-to borrow the language of Diplock, J., in Reg. v. Deputy Industrial Injuries Commissioner (1965) 2 W.L.R. 89-that so long as there is some probative value for the material relied on, and the conclusion is not rested on the spin of a coin or consulting an astrologer, there is no ground to interfere with the findings of the tribunal [see also the decision in K. Mahin v. Collector of Customs and Central Excise (1967 K.L.T. 539) and the cases referred to therein. On the facts of the present case, however, there is no need to go so far. The petitioner did cross-examine Sri Varma on his statement dated 21 March 1963. I am not satisfied that any materials were used against the petitioner, which were not properly received at the enquiry.

11. Eighthly, it was argued that there was no contravention of Rule 12(1) of the Conduct Rules. This is difficult to accept. The statement of allegations made in Exs. P. 1 and P, 3 were clearly proved against the petitioner. It has been made out that the petitioner purchased the taxi car K.L.R. 1772 for Rs. 10,500 from Kumar Taxis in the name of his wife; that he purchased another taxi car K.L.R. 3431 from the proprietor of Shaila Taxis also in the name of his wife for Rs. 9,500; that he purchased the taxi concern (Travels India), from its proprietor Sri Lazar Godfrey for Rs. 25,000 inclusive of two cars K.L.R. 1773 and K.L.E. 1521 and the furniture, spare parts, etc. The purchase was again in the name of his wife. The consideration for all the purchases proceeded from the petitioner. There is also evidence of the petitioner having requested several customers to engage the taxis thus purchased, and make use of the concern (Travels India) for travel purposes. P.Ws. 1 to 5 and 10 to 16 gave evidence about the petitioner's canvassing for the business. The evidence of P.W. 6 (proprietor of the Shaila Taxis), P.W. 7 (partner of Kumar Taxis), P.W. 8 (accountant of Kumar Taxis) and P.W. 9 (former proprietor of Travels India), was relied on to show the purchase of the vehicles and of the concern (Travels India) by the petitioner, all in his wife's name, and of the petitioner's having run the taxis and the concern, himself and of his having canvassed for the business. In the circumstances, the conclusion that the charge had been proved was correct.

12. It was complained that having told the petitioner, as recited in Ex. P. 1 that no permission was necessary regarding: the purchase and running of taxis by his wife, it was wrong to have made this the subject-matter of the charge. This proceeds on a misconception. The petitioner was told, as seen from Ex, P. 1, that no permission was necessary as the purchase of the taxis was to be financed by his wife's relatives, but he was warned that he should not canvass in support of his wife's business as enjoined by the explanation to Rule 12(1) of the Conduct Rules. The purchases which actually materialized and which were the subject-matter of the statement of allegations in Ex. P. 3 in support of the charge were financed by the petitioner himself. The position disclosed was therefore different. There was no charge in respect of any purchases in the wife's name, with funds supplied by her relatives. I do not see any inconsistency between the statement of allegations in Ex. P. 1 relating to the canvassing for the business of his wife on the one hand and that in Ex. P. 3 on the other, about not obtaining the permission of the Government for purchasing the taxi cars and the travel concern in the name of his wife and for running the taxis and for canvassing business on behalf of his wife. On the facts disclosed and proved, there can be little doubt that the petitioner had contravened Rule 12(1) of the Conduct Rules. The rule reads:

12. (1) No Government servant shall, except with previous sanction of the Government, engage directly or indirectly in any trade or business or undertake any employment:

Provided that a Government servant may, without such sanction, undertake honorary work of social or charitable nature or occasional work of a literary, artistic or scientific character, subject to the condition that his official duties do not thereby suffer ; but he 3hall not undertake or shall discontinue, such work if so directed by the Government.

Explanation.-Canvassing by a Government servant in support of the business of insurance agency, commission, etc., owned or managed by his wife or any other member of his family shall be deemed to be a breach of this sub rule (2).

The vires of the rule itself was not questioned. Nor, that of the explanation to the said rule. The attempt made to limit the explanation as covering only business of insurance agency, commission or other business of the same or similar type, and not as extending to the business of running taxis, by applying the rule of ejusdem genesis does not appeal to mo. The enumeration of the types of business in the explanation to Rule 12(1) is not indicative of any genus to warrant the attraction of the rule.

13. The acts proved and found against the petitioner are neither so innocuous nor so inconclusive as not to amount to his having engaged himself directly or indirectly in any trade or business, within the meaning of Rule 12(1) of the Conduct Rules. The argument of the, petitioner's counsel on the strength of the recent decision in Chandra Kishore v. Accountant-General, Uttar Pradesh 1968 M. & F.J. 147 and of Smith v. Hancock (1894) II Chancery 377, referred to therein, has only to be repelled. The acts proved in those cases were only that the person concerned therein was not interested in the business. but had interested himself, on behalf of his father or his wife who carried on the business. The facts proved against the petitioner here are much more telling and arresting and squarely attract Rule 12(1) of the Conduct Rules.

14. In winding up his arguments, the petitioner's counsel contended that there had been violation of Rules 15(2), 15(3), 15(5), 15(6) and 15(7) of the Control Rules. There is no contravention of Rule 15(2), as I have already held that there was only one charge against the petitioner, as disclosed by Ex. P. 1 and Ex. P. 3 was only a supplemental statement of allegations in support of the said charge. I have also held that there was no violation of Rule 15(3) or 15(5). There has been no contravention of Rule 15(6), as it has not been made out before me that any evidence or material was introduced clandestinely or behind the back of the petitioner or that the petitioner had been denied an opportunity of cross-examination or rebuttal. There is no question of the charge established and found being different from the one originally framed and therefore no violation of Rule 15(7).

15. I dismiss this writ petition, but make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //