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D. Govindaswamy Vs. the Assistant General Manager, (Admn.), Indian Post and Telegraph Department and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)2MLJ454
AppellantD. Govindaswamy
RespondentThe Assistant General Manager, (Admn.), Indian Post and Telegraph Department and anr.
Cases ReferredSanthanam v. Union of India
Excerpt:
- - this rule clearly enables the government servant to take assistance of any other government servant to present the case on his behalf, but the rule does not say that a government servant, once allotted to assist the government servant in the enquiry, cannot be withdrawn for valid reasons. it is difficult to imagine that in the entire division of mysore there was no competent government servant to effectively defend the case of the petitioner in that case. it is difficult to accept this contention for there will be other competent persons who can assist the appellant equally well......with this conclusion of the court. while we accept the contention that under rule 14(8) of the rules, a government servant may take the assistance of any other government servant of his choice to present the case on his behalf, it does not follow that the authority can on no account express its inability to spare the services of a particular person. in the case before the mysore high court assistance was asked for from a government servant in calcutta. it is difficult to imagine that in the entire division of mysore there was no competent government servant to effectively defend the case of the petitioner in that case. it would be open to the authorities to ask the delinquent officer to select a government servant from out of the same division. the authorities had stated that.....
Judgment:
ORDER

P.S. Kailasam, C.J.

1. This appeal is filed against the judgment of Mohan, J., dismissing the appellant's petition for the issue of a writ of certiorari to quash the order of the first respondent, dated 20th May, 1976 as communicated by the second respondent in his order, dated 28th May, 1976.

2. The appellant was working as an Upper Division Clerk at Works Accounts Section Office of the General Manager, Madras Telephones. He was served with a charge-sheet, dated 5th March, 1975, stating that it was proposed to hold an enquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. An enquiry was Started and the appellant requested for the assistance of S. Chandrasekaran, an Upper Division Clerk in the Avadi Telephone Exchange, for presenting his case. Chandrasekaran was assisting the appellant in the enquiry which commenced on 21st August, 1975. Two witnesses were examined by the Department and the third witness, P.K.S. Manian, who is stated to be the principal witness, was examined on 2nd February, 1976 and was being cross-examined by Chandrasekaran. The enquiry went on from 21st August, 1975 to 6th April, 1976. The enquiry was adjourned to 20th April, 1976, and again postponed to 28th May, 1976. Meanwhile, on 21st May, 1976, the Enquiry Officer informed the appellant that the first respondent had withdrawn the permission granted to Chandrasekaran to attend the Departmental proceedings against the appellant and called on him to choose another Government servant as a defence assistant. The appellant by a letter, dated 22nd May, 1976 requested the Enquiry Officer to furnish him the order of the first respondent. He also objected to the withdrawal of the permission once granted by the authorities. On 28th May, 1976, the Enquiry Officer informed the appellant that the permission granted to Chandrasekaran was withdrawn by the first respondent for the reason that it would not be practicable to relieve Chandrasekaran as defence assistant without serious detriment to public interest. The appellant submitted that the enquiry could be had after office hours or on Sundays and holidays so that Chandrasekaran's regular work might not be affected. The Department rejected the request of the appellant to hold the enquiry after office hours or on holidays. Against the order of the first respondent withdrawing the permission granted to Chandrasekaran to assist the appellant in the enquiry, the appellant filed the writ petition, out of which this appeal arises. Before the learned Judge two contentions were raised. First it was contended that the authority, having granted the permission, had no power to withdraw the permission. Secondly it was contended that the order itself was actuated by mala fides. The learned Judge found both the points against the appellant and dismissed his writ petition. Hence this appeal.

3. Mr. Dolia, learned Counsel for the appellant, raised the same contentions before us. He submitted that the permission, once having been granted, could not be withdrawn. Under Rule 14(8) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Government servant may take the assistance of any other Government servant to present the case on his behalf. This rule clearly enables the Government servant to take assistance of any other Government servant to present the case on his behalf, but the rule does not say that a Government servant, once allotted to assist the Government servant in the enquiry, cannot be withdrawn for valid reasons. In support of his contention that the authority has no power to withdraw the Government servant allotted to assist the Government Servant in the enquiry, learned Counsel for the appellant relied on a decision of the Mysore High Court in Santhanam v. Union of India (1969) 19 F.I.R. 98. In that case the Government servant asked for the assistance of one S.R. Ghosal, an Upper Division Clerk in the Office of the General Manager, Telephones, Calcutta. The Director of Postal Services, Disciplinary Authority, refused to grant the permission in public interest. The Court held that the petitioner had the right to seek the assistance of any other Government servant under Rule 14(8). So far as this observation is concerned, it is in accordance with the rule, and is indisputable. But the Court proceeded to observe that the authorities had no justifiable reason to refuse the assistance sought by the petitioner. With respect, we are unable to agree with this conclusion of the Court. While we accept the contention that under Rule 14(8) of the Rules, a Government servant may take the assistance of any other Government servant of his choice to present the case on his behalf, it does not follow that the authority can on no account express its inability to spare the services of a particular person. In the case before the Mysore High Court assistance was asked for from a Government servant in Calcutta. It is difficult to imagine that in the entire division of Mysore there was no competent Government servant to effectively defend the case of the petitioner in that case. It would be open to the authorities to ask the delinquent officer to select a Government servant from out of the same division. The authorities had stated that permission to have Ghosal for assisance, was refused in public interest, and we have no material to say that the authorities were wrong in basing their refusal on grounds; of public interest. We are therefore unable to agree with the decision in Santhanam v. Union of India (1969) 19 F.L.R. 98.

4. Normally a Government servant should have the liberty of having the assistance of another Government servant of his choice. But it does not follow that the authorities should, under all circumstances, make the services of the particular Government servant available. There may be valid reasons for refusing permission, such as it being not possible to spare his services, he being engaged in important work. We are also unable to accept the contention that, when once a person is named to assist the Government servant, it cannot be withdrawn, for it is common knowledge that, when once an authority can appoint a person to assist the Government servant, it can for valid reasons withdraw the assistance. We therefore see no substance in the first contention that the authorities had no power to withdraw the services of Chandrasekaran.

5. Equally untenable is the contention that the authorities were acting mala fide in withdrawing the permission granted to Chandrasekaran to assist the appellant. We see no reason for not accepting the reason given for the order, namely, that it was not practicable to relieve Chandrasekaran as a defence assistant without serious determent to the office work. It was stated that Chandrasekaran was doing effective cross-examination and that his withdrawal would prejudice the appellant. It is difficult to accept this contention for there will be other competent persons who can assist the appellant equally well.

6. We see no substance in the appeal. It is accordingly dismissed.


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