Horace Owen Compton Beasley, C.J.
1. This appeal is from an order passed by Gentle, J., on two applications under Section 45 of the Specific Relief Act praying for an order restraining the Collector of Salt Revenue, Madras, by a writ of prohibition from conducting or holding or proceeding with an enquiry into the conduct of the two applicants. The appellant was the applicant in No. 349 of 1937. The order passed by Gentle, J., covered the contentions of both of the applicants which were identical. An interim injunction had been granted on the 8th February. Gentle, J., by his order dissolved that injunction, discharged the rule nisi and dismissed the applications.
2. The appellant is an Assistant Commissioner of Salt and Customs, Central Division, Madras, to which office he was appointed on the 16th March, 1936, before which date he was Inspector of Salt and Customs, Negapatam. Certain charges had been made against the appellant and an enquiry under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules was proceeding on the date of the applications, the enquiry being conducted by the Collector of Salt Revenue, Madras, Mr. H. Greenfield. Previously, on the 5th November, 1936, Mr. Greenfield ordered the suspension of the appellant pending investigation of his conduct, and that of the other applicant before Gentle, J., whilst in charge of Karaikal frontier, Negapatam Circle. The applicant, as already stated, sought' to restrain the Collector by writ of prohibition from proceeding with the enquiry. The applicants alleged that the enquiry was irregular and contrary to law in the following respect, namely, (a) the body which has authority to remove, dismiss or reduce the applicants was the Central Board of Revenue and the enquiry should be held by them and not by the Collector of Customs: (b) the applicants are entitled to be represented at the enquiry by an advocate and this having been denied to them the enquiry is not in conformity with the provisions of the law; and (c) they have not had communicated to them in respect of the charges made against them a statement of the allegations on which each charge was based. In the appeal, ground (c) was not pressed by the appellant.
3. I do not propose to set out in this judgment in detail all the facts or all the relevant rules of the Civil Services (Classification, Control and Appeal) Rules because they have been fully set out in the judgment of the learned trial Judge; I will only refer to those which are absolutely necessary for the disposal of the questions before us.
4. With regard to ground (a) Section 96-B (1) of the Government of India Act says that no person in the service of the Crown in India may be dismissed by any authority subordinate to that by which he was appointed; and it is common ground that the appellant was appointed by the Central Board of Revenue. Therefore he can only be dismissed by that authority and not by the Collector of Customs and the Central Board of Revenue cannot delegate that power to the Collector of Customs. The Central Board of Revenue has by delegation by the Governor-General in Council the power to impose the penalties contained in Rule 49 of the Civil Services (Classification, Control and Appeal) Rules. They are seven in number including dismissal and only two of them, namely, (i) and (v) censure and suspension--may be imposed by the Collector of Customs. It follows, therefore, that if charges of a sufficiently grave nature as to justify dismissal are proved, only the Central Board of Revenue has the power to order it and this is the foundation for the argument in support of point (a) which is that it is only the authority having the power to dismiss the servant that can hold the enquiry under Rule 55 and upon this point we have had addressed to us a very careful and learned argument by Mr. Jayarama Aiyar. The learned trial Judge has to a large extent based his view upon the words of Rule 55, and it is that the rule contemplates an enquiry by some other authority than the Central Board of Revenue (the authority having the power of dismissal, removal or reduction). By Rule 55 of the Civil Services (Classification, Control and Appeal) Rules the member of the service is to be given an adequate opportunity of defending himself and the grounds on which it is proposed to take action are to be reduced to the form of a definite charge or charges which must be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The person charged is required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. Here follow some words which the learned trial Judge considers have a very material bearing upon the question, namely:
If he so desires or if the authority concerned so direct, an oral enquiry shall be held.
5. Gentle, J., considers 'the authority concerned' to be the Central Board of Revenue and lays emphasis upon the fact that this authority can 'direct' an oral enquiry to be held and is of the opinion that if the rule contemplated that only the authority concerned should hold the enquiry the wording of the ni1e would be different and it would have read 'an oral enquiry shall be held by them' or 'by the authority concerned'. In my opinion, the words 'direct an oral enquiry' indicate that it is someone else that is to hold the enquiry although of course it may be argued not unreasonably that an authority may issue Beasley CJ. a direction that something is to be done and itself do it. For instance, a Court may direct an examination of certain witnesses and may and frequently does conduct such examination. But in my view the words indicate the former rather than the latter intention. They mean, I think, that the Central Board of Revenue may, even in caes where the person charged may not desire an oral enquiry, nevertheless direct that there shall be one. Further light is thrown upon the meaning of the rule by the words which follow later:
Provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness.
6. Gentle, J., considers that this indicates that the enquiry is to be held by some person other than the authority concerned. I agree and think that had the latter body been in contemplation the words 'authority concerned' would have appeared instead of 'the officer'. Mr. K.S. Jayarama Aiyar has argued strenuously to the contrary on the ground that it is fundamentally wrong that any person should defend himself with his witnesses before one tribunal and be dismissed by another body of authority which has not had the advantage of hearing the witnesses or observing their demeanour that when so grave a penalty as dismissal is involved, the dismissing authority should not exercise its powers merely on an examination of the record before them and the report of the officer conducting the enquiry, and he also contends that the words of Rule 55 are not either expressly or by implication clear enough to support the learned trial Judge's view and that if there is any ambiguity in the words, the benefit should be given rather to the person charged than to the respondent. On the first point it seems to me that there is nothing repugnant to a sense of justice in the procedure objected toby Mr. Jayarama Aiyar. If the Collector with or without an enquiry imposes the penalties which he is empowered to inflict, for example, suspension or censure, the servant has a right of appeal against such order to the Central Hoard. If there is an enquiry by him the Board will have the necessary information before them to exercise such powers as are vested in them regarding penalties. They will have the finding upon the evidence of the officer who conducted the enquiry and from any order which they may pass the person charged has a right of appeal to the Governor-General-in-Council, and Indian Legislation has recognised that there is no injustice in the procedure so strongly criticised by Mr. Jayarama Aiyar and to give one instance of a statute which empowers one tribunal to conduct the enquiry and another to inflict the penalties we have the Indian Bar Councils Act (Section 10) and others were cited but Mr. Jayaram Aiyar refers to Chandi Char an Dey, In re (1908) 12 C.W.N. 842. There it was held that before proceeding to declare a person to be a tout, the District Magistrate should himself make an enquiry as to the person's antecedents and give him an opportunity to show cause. There a Sub-Divisional Officer called on a person to show cause why he should not be declared a tout and he showed cause and the Sub-Divisional Officer after recording evidence on both sides submitted the proceedings with his report to the District Magistrate and the latter after perusing them passed orders declaring the person to be a tout and it was held that the order should be set aside. It must be observed however that that case was a decision on Section 36 of the Legal Practitioners Act as it then-read, but by Act XV of 1926 the words 'or to the satisfaction of any subordinate Court' were added to the words as they stood before the amendment, that is: ' Every High Court, District Judge, Sessions Judge, District Magistrate and Presidency Magistrate, every Revenue Officer, not being below the rank of a Collector of a District and the Chief Judge of every Presidency Small Cause Court (each as regards their or his own Court and the Courts if any subordinate thereto) may frame and publish lists of persons proved to their or his satisfaction'.
7. These are important words because at that date the case had to be proved to the satisfaction of the Court publishing the list of touts. Whereas by reason of the amendment referred to a Court subordinate to the Court inflicting the penalty is empowered to find on the question of proof. In the matter of Southekal Krishna Rao was also cited by Mr. Jayarama Aiyar. There a charge of unprofessional conduct brought against a practitioner holding a certificate under Act XVIII of 1879 having been found to be established by a subordinate Court which also considered that he in consequence should be dismissed and the same having been reported in conformity with Section 14 of that Act to the principal Court in the province such dismissal was ordered and it was held however that the practitioner could not be dismissed or suspended under that section without his having been allowed under Section 40 an opportunity of defending himself before that Court. What happened there was that the practitioner was fully heard by the Commissioner of Coorg and adduced his evidence which was also heard and their Lordships expressed the opinion that
The petitioner had the opportunity of adducing1 such evidence as lie might think fit and that his complaint on that head is not well founded. But upon the evidence so obtained being remitted to the Judicial Commissioner, he makes this report or order: I have gone very carefully again through all the papers connected with this case, and I have given them my best consideration. I regret that I am unable to modify the opinion expressed in my previous order or to alter the conclusion arrived at'.
8. He, therefore, concludes:
I confirm my former order striking petitioner off the rolls. This order was made without the petitioners having had the opportunity of being heard before, the Acting Judicial Commissioner after the evidence had been taken and in that respect their Lordships are of opinion that there has been a plain irregularity.
9. This case with all respect to Mr. Jayarama Aiyar's argument is not at all helpful on this point. It is quite clear that one tribunal heard the evidence and that the higher tribunal on that evidence inflicted the penalty which is the very procedure objected to by Mr. Jayarama Aiyar. Their Lordships do not criticise that procedure in the least. What they do say is that after the evidence had been taken the practitioner was not given an opportunity of being heard by the higher tribunal and they refer to the words of Section 40 of the Act which reads as follows:
Notwithstanding anything hereinbefore contained no pleader shall be suspended or dismissed under this Act unless he has been allowed an opportunity of defending himself before the authorities suspending or dismissing him.
10. That makes the position quite plain Rule 55 however says that:
No order of dismissal, removal or reduction shall be passed on a member of a service.... unless... he has been afforded an adequate opportunity of defending himself.
11. And the words 'before the authority suspending or dismissing him' are significantly absent. Mr. Jayarama Aiyar has also referred to the Public Servants (Inquiries) Act (XXXVII of 1850). It is conceded of course by him that Act does not apply to the present case. He relies upon that Act however in support of his argument that unless there is an express power to delegate to some other body or person the holding of an enquiry into the conduct of a person or persons such as there is in Section 3 of that Act then it is the right of every person to defend himself before the authority dismissing him and of placing his evidence before that body. There is however no statutory provision to that effect and in none of the authorities cited by him is it laid down that in the absence of an express power of delegation the enquiry must be held by the authority imposing the penalty and as regards the words of Rule 55 I think that the learned trial Judge's view is correct. I should also add, although this is not a guiding test, that it has not been the practice for such enquiries to be conducted by the Central Board of Revenue which is in Delhi and the inconvenience of enquiry by such an authority is manifest. In the present case, a member or members of the Board--and we are told that there are only two--would either have to come to Madras in order to hold the enquiry or the appellant would have to go to Delhi with all his witnesses.
12. With regard to point (&), namely, the right of the appellant to be represented by counsel Mr. Jayarama Aiyar relies upon Section 14(1) of the Bar Councils Act which reads as follows:
An advocate shall be entitled as of right to practice
(b) save as otherwise provided by Sub-section (2) or by or under any other law for the time being in force, in any other Court in British India and before any other tribunal or person legally authorised to take evidence.
13. Under Rule 55 the person holding the enquiry is legally authorised to take evidence and hence he argues that an advocate is entitled as of right to appear at such an enquiry. But, the Advocate-General argues that the real question is not whether an advocate has a right to appear but whether his client has a right to be represented by him, that is to say, is the enquiry one at which the person charged is entitled to appear at all, or to appear in person only, or by himself or by his agent. Mr. Jayarama Aiyar has conceded that there is no right at Common law to appear by an agent and the Advocate-General argues that there is no such general right and that the scheme of the Indian Legislature is to confer only a special right to be represented by an advocate or agent such as that given by Section 340 of the Criminal Procedure Code. Such a statutory right is also given under Order 3, Rule 1, Civil Procedure Code. Also Order 33, Rule 3 enables a person to present an application through an authorised agent if he is exempted from appearing in Court. Section 31 of the Native Converts Marriage Dissolution Act entitled a person to appear by his advocate in cases under that Act. Section 76 of the Patents and Designs Act is another instance in point. So also one Section 30 of the Railways Act of 1890, Section 14 of the Trade Disputes Act and Section 24 of the Workmen's Compensation Act. There is very little authority in the shape of decision but the Advocate-General cites a case where the Court denied the right of a person to appear except by himself, namely, In re Prince Blucher: Ex parte Debtor (1931) 2 Ch. D. 70. By Section 16, Sub-section 1 of the Bankruptcy Act, 1914, where a debtor intends to make a proposal for a scheme of composition in satisfaction of his debts he shall within the time thereby limited lodge with the Official Receiver a proposal in writing signed by him, etc. In that case the debtor was unable through serious illness to sign the proposal which was signed on his behalf by his solicitors and nevertheless it was held that the words 'signed by him' were explicit and consequently no proposal for a composition had been lodged within Section 16, Sub-section 1 of the Act. He distinguishes the case of The Queen v. Assessment Committee of St. Mary Abbotts, Kensington (1891) 1 Q.B.D. 378 cited in the trial Court on the ground that there the statute, namely, the Union Assessment Committee Act of 1862 provides that the assessment committee ought to hear and determine the objections of any person aggrieved by a valuation list, not that they are to hear the objections only. Lord Esher, M.R., on page 382 speaking of the assessment committee says:
The question here is whether, being such as they are, they have a right to say that a person may not appoint any agent he pleases to appear in support of an objection made by him to the list. There is, in my opinion, nothing in law which authorises them to limit, as they have done, the rights of persons to whom the legislature has given the right of making objection to the list. I think such persons have a right to appear themselves or by any agent authorised by them.
14. Another case referred to by the Advocate-General is The Queen v. Mansel Jones (1889) 23 Q.B.D. 29. The decision there turned upon the words of the statute, namely, Section 38 of the Corrupt and Illegal practices Prevention Act, 1883. There, before a person not being a party to an election petition nor a candidate on behalf of whom the seat is claimed is reported by an election Court to have been guilty of any corrupt or illegal practice, the Court shall cause notice to be given to him if he appears:
Shall give him an opportunity of being heard by himself, and of calling evidence in his defence to show why he should not be so reported.
15. It was held that this section excluded the person's right to be heard by his counselor solicitor. On page 32 Lord Coleridge, C.J., says:
As I have often said in this Court, I prefer that mode of construing a statute by which you look at the words used, and, if they are plain, give effect to them, to the mode of construction by which you first satisfy yourself what Parliament ought to have meant and then interpret the statute by saying that it has so said. Here the Act has said as plainly as possible that the person shall be heard 'by himself'. I am of opinion that those words exclude him from being heard either by counsel or solicitor.
16. There being no common-law right to be represented by counsel, and if there are statutes directing how a person is to be heard as in the case referred to, then the words of the statute alone afford a solution of the question. Are there any words in Rule 55 which sufficiently clearly show how the person charged may appear at the enquiry? The rule provides that the person charged shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person and that he is entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish. In my view, the words 'to be heard in person' must be given their natural and ordinary meaning; and the other provisions already referred to appear to me to be consistent with an appearance in person and not by agent or counsel and, adopting the method of construing a statute preferred by Lord Coleridge, C.J., in The Queen v. Mansel Jones (1889) 23 Q.B.D. 29. I look at the words used which appear to me to be sufficiently plain to give effect to them. That being so, in my view, they exclude the appellant from being heard by counsel or otherwise than in person. I agree with the Advocate-General's contention and the view of the learned trial Judge that this question has to be determined not by counsel's right of audience in inferior Courts but by the right of the client to be represented by him, and any argument based on Section 14(1) (b) of the Bar Councils Act therefore does not assist the appellant. If there is any hardship caused to the appellant by his being deprived of the assistance of counsel, though I do not think that there is in the present case, the construction of a statute is not to be governed by any such consideration. In my view, the appeal fails and must be dismissed. No costs.
17. Cornish, J.--I am of the same opinion Rule 55 of the Civil Services Rules provides for the case of a departmental inquiry into charges against a Government servant, who is subject to the rule, independently of the formal and public inquiry which might be held under the Public Servants Inquiry Act. The rule contains a safeguard. None of the graver penalties--dismissal, removal or reduction--which the Central Board of Revenue in this instance is alone empowered to inflict, can be imposed upon the person charged unless he has been given an adequate opportunity of defending himself. He may be content to put in a written statement by way of defence to the charges; or, if he so desires or if the authority concerned, which must mean the Central Board, so directs, there is to be an oral inquiry at which evidence can be called and witnesses examined and cross-examined. But the rule does not state that the Central Board shall conduct the inquiry. Neither is there to be found in the rule any provision, similar to that contained in Section 36(1) of the Legal Practitioners' Act, from which it is to be implied that the Board must itself have held the inquiry to enable it to inflict one of the penalties referred to. On the contrary, the allusion in the rule to ' the officer conducting the inquiry ' denotes that the Board is competent to depute some subordinate officer, such as the present respondent, the Collector of Salt Revenue, to hold the inquiry. In short, the purpose of the rule is to enable a Government servant to defend himself when his conduct is the subject of a charge which is to be department-ally investigated. And so long as the conditions of the rule are followed there seems to be nothing prejudicial to the Government servant in the circumstance that the inquiry is held not by the Board itself, or by one of its members, but by some subordinate officer deputed by the Board for the purpose. The officer conducting the inquiry is required by the rule to record the evidence and to state his findings and grounds thereof. The Board has, there fore, all the necessary material before it to come to a decision regarding the penalty to be imposed if it is satisfied that the charge against the Government servant is established though the Board is not bound to accept the findings of the officer who conducted the inquiry.
18. With regard to the only other subject of this appeal I agree that the Government servant in an inquiry under Rule 55 has no right to appear by counsel, and, having no such right, no case for mandamus to the respondent to admit the appellant to have the assistance of counsel at the inquiry has been made out. There is in British India no common law right in a party to a proceeding to be represented by counsel. The right, wherever it exists, will be found to be given by enactment. The Advocate's right of audience since the Bar Councils Act depends on Section 14 of the Act. This right, 'save as otherwise provided by any other law for the time being in force,' includes the right of audience before any tribunal or person legally authorised to take evidence. The officer conducting an inquiry under Rule 55 is clearly a person legally authorised to take evidence. The statutory rule confers on him this authority. But the advocate's right of audience is necessarily inseparable from his client's right to appear by advocate before a particular tribunal. If the client is expressly denied the privilege of being heard by counsel, it is obvious that the Bar Councils Act will not save him from the disability. Rule 55 limits the Government servants' right to be heard 'in person'. In The Queen v. Mansel Jones (1889) 23 Q.B.D. 29 it was held that a right given by statute to a person to be heard 'by himself' meant that he had no right to be heard by anybody but himself; and I think that the right given by Rule 55 to be heard ' in person ' is similarly restricted to the person of the Government servant. It may be that there is no apparent reason in justice or expediency why a Government servant, who has undoubtedly the right to appear by counsel in an inquiry into his conduct under the Public Servants Inquiry Act, should be deprived of this privilege in an inquiry under Rule 55 when the consequences may be equally serious to him. But this is a consideration which cannot be allowed to affect the plain language of the rule.
19. Rule 49 of the Civil Service Rules is as follows:
20. The following penalties may, for good and sufficient reason, and as hereinafter provided, be imposed upon members of the services comprised in any of the clauses (1) to (S) specified in Rule 14, namely:
(ii) Withholding of increments or promotion, including stoppage at an efficiency bar.
(iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale,
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders,
(vi) Removal from the civil service of the Crown, which does not disqualify from future employment,
(vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment.
(a) of a person appointed on probation, during the period of probation, (6) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, (c) of a person engaged under contract, in accordance with the terms of his contract,
does not amount to removal or dismissal within the meaning of this rule.
Rule 55 of the Civil Service Rules is as follows:Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts which have led to his conviction in a criminal Court) unless he has been informed in writing of the grounds on which it has been proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action, shall be reduced to the form of a definite charge or charges, which shall be, communicated to the person charged together with the statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.
21. This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be. recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.