IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2622 OF 2005

Dinesh Chandra Pandey              …Appellant

Versus

High Court of Madhya Pradesh & Anr.    ...Respondents

JUDGMENT

Swatanter Kumar, J.

1

1.    Dinesh Chandra Pandey, appellant herein, was appointed  

to the post of Civil Judge in the M.P. Judicial Service (Class II)  

on 27th January, 1982.  On completion of the training period,  

he joined as Civil Judge, Dhamtari on 12th September, 1982.  

During his tenure as Civil  Judge,  certain irregularities  were  

noticed  by  the  competent  authority  and  on  7th December,  

1988, a charge-sheet was served upon him, primarily, on the  

ground  that  he  was  possessed  of  disproportionate  

money/assets to his known sources of income. He was served  

with a charge sheet  containing two articles  of charges.  One  

2

out  of  them  (Charge  2)  had  not  been  proved  while  other  

Charge (Charge 1) stood proved against the delinquent officer.  

Article 1 which had been established reads as under:

“That the said Shri D.C. Pandey while his  posting  as  Civil  Judge,  Class-II  and  J.M.F.C. Raipur had a Bank account in  State  Bank  of  India  Account  No.  

SB/8833,  the  balance  whereof  swelled  from  Rs.2170.01  to  Rs.35036.92  paise  within the period from January 1984 to  6th May,  1985,  his  explanation  in  this  behalf  having  been  found  unconvincing  considering  the  disproportionateness  of  the said increase in his bank balance to  his  salary  income  and  pattern  and  frequency of deposits the said increase in  balance is capable of no other reasonable  

3

explanation  than  that  of  illicit  gains  as  the  source  of  money  which renders  his  integrity gravely doubtful.”

2. The allegations were denied by him and on 30th January,  

1989 he submitted that he owns 37 acres of land in Bilaspur  

and has agricultural income to the extent of Rs. 50,000/- p.a.  

It  is  out  of  this  agricultural  income  that  he  has  been  

depositing amounts in the bank and has not committed any  

violation of service  regulations or other offence which would  

attract  disciplinary  action  against  him.   The  competent  

authority decided to conduct a regular departmental enquiry  

4

and appointed Shri G.R. Pandya, District & Sessions Judge,  

Raipur  as  enquiry  officer.   Besides  appointing  an  enquiry  

officer,  the  High  Court  also  appointed  Shri  Ram  Krishna  

Behar, Addl. Judge as Presenting Officer.  During the course  

of enquiry, the appellant made an application for permission  

to engage a legal practitioner to assist him in the departmental  

enquiry.   This request was declined by the High Court vide  

order dated 4th December, 1989.  The appellant participated in  

the enquiry and the enquiry officer submitted his report on 4th  

April,  1990  and  returned  the  finding  of  guilt  against  the  

5

appellant.  The concluding paragraphs of the report read as  

under:

“Shri  Pandey  was  saving  Rs.600/-  p.m.  out  of  his  salary  and,  therefore,  this  amount was quite insufficient for making  such a large saving.  More saying of Shri  Pandey received the amounts frequently  from  his  mother  is  not  sufficient.  

Something more was required to explain  the  deposits.   This  type  of  explanation  was already given by Shri Pandey during  the preliminary inquiry and was already  found  unsatisfactory,  hence  further  opportunity was given to Shri Pandey, by  holding  this  inquiry  to  give  reasonable  and convincing explanation regarding the  source of his income.  I am sorry to say  that  Shri  Pandey  could  not  assess  the  

6

seriousness  of  the  matter  and  went  on  repeating that the money was sent by his  mother.   The mother  of  Shri  Pandey  as  well  as  the  customers  who  had  purchased the produce of the messenger  who used to bring the money frequently  from Bilaspur  to  Raipur  have  not  been  examined.   Under  these  circumstances,  bald  statement  of  Shri  Pandey  that  money  was  received  by  him  from  his  

mother  does  not  appear  to  be  correct.  Thus,  I  come  to  the  conclusion  that  charge  no.  1  regarding  the  frequent  deposits  made  by Shri  Pandey  within a  span  of  short  period  is  proved  against  him.

3.  Disciplinary  authority,  after  receiving  the  said  report,  

issued show cause notice to the appellant on 16th March, 1991  

7

informing the appellant that finding of the enquiry officer on  

Article  (1)  had  been  accepted  and  as  to  why  punishment  

should  not  be  imposed upon him to  which he submitted  a  

detailed reply.  The disciplinary authority vide its order dated  

10th June, 1992, opined that the stand taken by the appellant  

was  not  satisfactory  and  consequently,  imposed  the  

punishment of removal from service.  The appellant preferred  

an appeal against this order before the Governor which also  

came  to  be  dismissed  vide  order  dated  3rd February,  1993.  

The  order  of  removal  from  service,   as  confirmed  by  the  

8

appellate authority, was  challenged by the appellant by filing  

a Writ Petition  being Misc. Petition No. 3847 of 1992 in the  

High Court which also came to be dismissed by the Ld. Single  

Judge  vide  its  order  dated 1st July,  2003.   Still  dissatisfied  

with the judgment of the Court, Letter Patent Appeal was filed  

which  also  met  the  same  fate  and  was  dismissed  by  the  

Division Bench of the Madhya Pradesh High Court vide order  

dated 17th December, 2004.  The legality and correctness of  

this order has been challenged by the appellant in the present  

appeal under Article 136 of the Constitution.

9

4. As would be evident from the above narrated facts, the  

charge against the appellant was a very limited one.  In fact,  

the deposit of the amount in the bank was not disputed by the  

appellant.  However, he rendered the explanation that he had  

agricultural land from where he was getting Rs. 50,000/-p.a.  

as income and had, therefore, deposited these amounts in the  

bank during the period stated in the charge sheet i.e. between  

January, 1984 to May, 1985.  He had also taken up the stand  

before  the  Courts  that  while  he  was  functioning  as  a  Civil  

Judge (Class II),  Dhamtari  in December,  1982, a crime had  

10

taken place  in which one  Shri  Pandri  Rao Pawar,  Advocate  

and  one  of  his  nephew  were  involved.   They  had  caused  

serious injuries to the brother of Shri H.L. Warda, the then  

Judicial Magistrate, 1st Class, Dhamtari who had lost his one  

eye in the assault.  A case under Sections 294, 325, 506B of  

IPC was registered.  The appellant herein  had rejected their  

bail application and did not succumb to the pressure brought  

in  by  the  advocate  which  resulted  in  enmity  between  the  

parties.   It  was  also  alleged  that  the  said  advocate  filed  a  

complaint on 9th December, 1982 against the appellant stating  

11

therein that one witness Dayaram Sahu in Criminal Case No.  

1153 of 1986 under Section 325/34 IPC was directed to be  

handcuffed  without  any  justification  and  later  on  the  

appellant  was  transferred  from  Dhamtari  and  posted  to  

Raipur.   As  such  there  was  a  different  motive  for  taking  

disciplinary  action  against  the  appellant  than  what  was  

apparent  from  the  record  of  the  disciplinary  proceedings.  

According  to  the  appellant,  he  was  possessed  by  sufficient  

means as he had income from salary as well as agricultural  

activity.   In  light  of  the  facts  given  by him,   there  was  no  

12

occasion to frame any charge against the appellant.  Further,  

the contention is that none of the article of charges have been  

proved against the delinquent in accordance with law.

5.   On the contrary, the learned counsel  appearing for the  

respondents  contended  that  this  Court  should  not  re-

appreciate the evidence.   The enquiry officer, the disciplinary  

authority,  the  learned  Single  Judge  and  even  the  Division  

Bench  have  accepted  the  fact  that  the  appellant  had  been  

rightly charged with Article  1, which stands proved and, as  

such, no interference  is called for on merits  or even on the  

13

question of quantum of punishment.  It is also stated by him  

that in terms of Govt. Servant Conduct Rules, 1985, which are  

applicable to the members of the Judicial Service in the State  

of Madhya Pradesh, a Government servant who either fails to  

file a return prescribed in sub-rule (i) or files a return for any  

year,  which  does  not  fully  disclose  all  the  property  that  is  

required  to  be  indicated  or  otherwise  conceals  any  such  

property, would amount to misconduct. Further, the argument  

raised  is  that  the  Enquiry  Officer  has  examined  all  the  

relevant  aspects  and after being satisfied  that there  was no  

14

plausible explanation for depositing the money in the bank at  

such short intervals, no fault can be found with the finding of  

the Enquiry Officer.  Referring to the behaviour of a common  

prudent  person/agriculturist,  the  income  from  agriculture  

could hardly be  on day-to-day basis.   It  was nobody’s  case  

that vegetable or allied crop was being grown on the land in  

question.  In normal course, the money would be available to  

agriculturist only when the crop is harvested and sold in the  

market.   No  such  evidence  had  been  produced  by  the  

15

appellant during the course of enquiry.  Thus, no interference  

is called for.

6. The challenge to the impugned order is, primarily, on two  

grounds.  Firstly, the appellant had asked for assistance of a  

legal  practitioner  which  had  been  unfairly  denied  to  him.  

Denial  of  assistance  of  a  legal  practitioner  tantamount  to  

violation of principles of natural justice as well as M.P. Civil  

Services (Classification, Control and Appeal) Rules, 1966 (for  

short  “1966  Rules”),  and,  as  such,  the  entire  departmental  

proceedings as well as the impugned order of punishment are  

16

vitiated.   Secondly,  the  enquiry  officer  as  well  as  the  High  

Court  have  not  appreciated  the   evidence  in  its  proper  

perspective  and has failed to accept plausible defence raised  

by the appellant in regard to deposit of money in the bank.  

The  order  of  removal  from  service,  thus,  is  based  on  no  

evidence and is required to be set aside.  In support of this  

contention learned counsel referred to Rule 14(8) of the 1966  

Rules as well  as Judgment of this Court in the case of J.K.  

Aggarwal  v.  Haryana  Seeds  Development  Corporation  Ltd.  

[(1991)  2  SCC  283]  and  Board  of  Trustees  of  the  Port  of  

17

Bombay v. Dilipkumar Raghavendranath Nadkarni, [(1983) 1  

SCR 828].  The 1966 rules are applicable to the member of  

judicial  services  of  the  State  of  Madhya  Pradesh  as  the  

Government,  in consultation with the High Court,  has only  

framed  one  set  of  Rules  i.e.  M.P.  Judicial  Service  

(Classification, Recruitment and Conditions of Service) Rules,  

1955 ( which primarily deal with the eligibility, methodology  

relating to appointment to the judicial services of the States  

and  its  cadre  etc.   As  far  as  the  disciplinary  rules  are  

concerned, it is a common case of the parties that the above  

18

1966  Rules   are  the  Rules  applicable  to  the  members  of  

judicial services.  These Rules came into force from the date of  

their publication.  They deal with power to suspend, conduct  

departmental enquiry, the procedure which is to be adopted in  

a  departmental  enquiry  and  punishments  which  can  be  

inflicted  upon  an  officer  by  the  Competent  Disciplinary  

Authority.  While  Rule  10  deals  with  the  punishment  and  

penalties which can be imposed on the member of the service,  

Rules 12 and Rule 13 deal with the Disciplinary Authority and  

the authority who can institute the proceedings.  While Rule  

19

14  deals  not  only  with  imposition  of  punishment  but  also  

gives the entire procedure which is required to be followed by  

the Enquiry Officer as well as the Disciplinary Authority before  

inflicting  any  punishment  upon  the  charged  officer,   Rule  

14(8) deals with providing of legal assistance or engagement of  

a  legal  practitioner  during  the  course  of  a  departmental  

enquiry.  As the reliance has been placed by both the parties  

on this Rule, it will be useful to reproduce the same here:

“Rule  14(8):   The  Government  servant  may  take  the  assistance  of  any  other  Government servant to present  the case  

20

on his behalf, but may not engage a legal  practitioner  for  the  purpose  unless  the  Presenting  Officer  appointed  by  the  disciplinary  authority  is  a  legal  practitioner,  or,  the  disciplinary  authority,  having  regard  to  the  circumstances of the case, so permits.”

7. The bare reading of this Rule shows that the Government  

servant  may  take  the  assistance  of  any  other  Government  

servant  to  represent  his  case  but  may  not  engage  a  legal  

practitioner  for  the  purpose  unless  the   presenting  officer  

appointed  by  the  authority  is  a  ‘legal  practitioner’  or  the  

disciplinary authority, having regard to the circumstances of  

21

the case, so permits.  The expression ‘may’ cannot be read as  

‘shall’.  The normal Rule is that a delinquent officer would be  

entitled to engage another officer to present his case.  But if  

the presenting officer is a ‘legal practitioner’, he may normally  

be permitted to engage a legal practitioner.  The third category  

is  where  the  disciplinary  authority  having  regard  to  the  

circumstances  of  the  case  so  permits.   It  is,  therefore,  not  

absolutely  mandatory  that  the  disciplinary  authority  should  

permit  the engagement  of a legal  practitioner irrespective  of  

the  facts  and  circumstances  of  the  case.   There  is  some  

22

element  of  discretion  vested  with  the  authority  which,  of  

course, has to be exercised properly and in accordance with  

the  settled  principles  of  service  jurisprudence.   The  Courts  

have  taken a view that where expression ‘shall’ has been used  

it  would not necessarily mean that it  is mandatory.   It  will  

always depend upon the facts of a given case, the conjunctive  

reading of the relevant provisions along with other provisions  

of the Rules, the purpose sought to be achieved and the object  

behind implementation of such a provision. This Court in the  

case of Sarla Goel v. Kishan Chand [(2009) 7 SCC 658], took  

23

the  view that  where  the  word ‘may’  shall  be  read  as  ‘shall’  

would depend upon the intention of the legislature and it is  

not to be taken that once the word ‘may’  is used,  it  per se  

would be directory.  In other words, it is not merely the use of  

a particular expression that would render a provision directory  

or mandatory.  It would have to be interpreted in light of the  

settled principles, and while ensuring that intent of the Rule is  

not  frustrated.   Further,  in  the  case  of  Malaysian  Airlines  

Systems BHD (II) v. Stic Travels (P.) Ltd., [(2001) 1 SCC 509],  

this Court took the view that word ‘may’ in Section 11(1) of the  

24

Arbitration and Conciliation Act, 1996 is not to be construed  

as ‘must’ or ‘shall’, as the word ‘may’ has not been used in the  

sense of ‘shall’, the provision is not mandatory.  In the light of  

these  principles,  we  are  of  the  considered  view  that  the  

expression ‘may’, used in Rule 14(8) of 1966 Rules would have  

to  be  construed  as  directory  and not  absolutely  mandatory  

with reference to the facts and circumstances of a given case.  

Of course, it would be desirable that wherever the presenting  

officer is a legal practitioner, the delinquent officer should be  

given  the  option  and  may  be  permitted  to  engage  a  legal  

25

practitioner  if  he  so  opts.   But  this  Rule  is  hardly  of  any  

assistance and help to the appellant in the present case.  The  

Presenting Officer was an Additional District Judge.  He was  

possessed of similar qualification, professionally or otherwise,  

as was the appellant himself.  The appellant could have asked  

for  permission  to  engage  and  take  assistance  of  any  other  

judicial  officer  of  that  rank or  of  any  rank that  he  wanted  

which  request  ought  to  have  been  considered  by  the  

Disciplinary Authority.  It will be entirely uncalled for that an  

Additional Judge should be termed as a legal practitioner and,  

26

therefore,  vesting  in the appellant a right to engage  a legal  

practitioner  or  an  advocate  for  defending  him  in  the  

departmental  proceedings.  It  will  be  rather  appropriate  to  

apply the principles  of contextual interpretation in the facts  

and  circumstances  of  the  case.  In  the  case  of  Muddada  

Chayanna vs.  K. Narayana [AIR 1979 SC 1320], it was held  

by  this  Court  that  interpretation  of  statute,  contextual  or  

otherwise,  must  further  and  not  frustrate  the  object  of  the  

statute.  In other words, the expression ‘medical practitioner’  

appearing  in  the  Maharashtra  Nurses  Act,  1966  should  be  

27

given a meaning in the context  in which it  is  sought to be  

applied to achieve the real object of the statute. It is also to be  

kept  in  mind  that  while  dealing  with  the  provisions  of  the  

statute,  the  Court  would  not  adopt  an  approach  or  give  

meaning to an expression which would produce unintelligible,  

absurd  and  unreasonable  result  and  would  render  the  

legislative intent unworkable or totally irreconcilable with the  

provisions of the statute (Bhavnagar University vs.  Palitana  

Sugar Mills Pvt. Ltd. [AIR 2003 SC 511]).  The learned counsel  

for the appellant referred to P. Ramanatha Aiyar’s Law Lexicon  

28

to emphasise that the expression ‘legal practitioner’ appearing  

in Rule 14(8)  would cover even a judicial  officer.   He relied  

upon the following explanations given to this expression:

“Legal  practitioner”  defined  (See  also  Advocate  of  a  High  Court;  Barrister;  Government  pleader;  Pleader;  Public  Prosecutor;  Recognized  agent)  Act  18,  

1879, S. 3; Act 18, 1881, S. 4(2); Act 16,  1887, S.4(16); Act 17, 1889, S 3(13); Act  23, 1923, S.2; Act 21, 1926, S.2

‘Legal  Practitioner’  means  an  advocate  vakil  or  attorney  of  any  High  Court,  a  pleader,  mukhtaro  revenue  agent.   Act  XVIII of 1879 (Legal Practitioners), S.3]”

29

8. The  above  referred  explanations  clearly  show  that  a  

judge in service cannot be termed as a legal practitioner, as it  

will  mean and include only an Advocate or a vakil  of Court  

practicing  in  a  Court,  may  even  be  a  Barrister,  Special  

Pleader, solicitors depending on the facts of a given case.  Rule  

2 (e) of the Central Administrative Rules, 1987 also defines the  

word ‘legal  practitioner’.   However,  it,  in turn, requires  that  

this expression shall have the same meaning as is assigned to  

it under the Advocates Act, 1961.  In that Act the word ‘legal  

practitioner’ has been defined under Section 2(i) to mean an  

30

advocate  or  vakil  of  any  High  Court,  a  pleader  mukhtar or  

revenue  agent.   In  other  words,  this  is  an  expression  of  

definite  connotation  and cannot  be  granted  an extended  or  

inclusive  meaning,  so  as to  include  what is  not  specifically  

covered.   A Judge may be law graduate holding a Bachelor  

Degree in Law from any University established by law in India  

but this by itself would not render him as a ‘legal practitioner’.  

On  the  contrary,  there  is  a  definite  restriction    upon  the  

Judge  from practicing  law.   Such  an  implied  inclusion,  as  

argued  by  the  appellant,  would  not  lead  to  absurdity  but  

31

would even offend the laws in force in India.  John Indermaur,  

Principles of the Common Law 169 (Edmund H. Bennett ed.,  

1st Am.ed. 1878 explains the term as follows :

“Legal  practitioners  may  be  either  barristers,  special  pleaders  not  at  the  bar, certified conveyancers,  or solicitors.  

The  three  latter  may  recover  their  fees,  but the first may not, their acting being  deemed of a voluntary nature, and their  fees  merely  in  the  light  of  honorary  payments;  and it follows from this, that  no action lies against them for negligence  or unskilfulness.”

32

9. Thus, the expression ‘legal practitioner’ is a well defined  

and explained term.  It,  by any stretch of  imagination, can  

include a serving Judge who might have been appointed as a  

presenting  officer in the departmental proceedings.   Besides  

this legal aspect of the matter, even on principle of fairness we  

do not think that the order has caused any prejudice to the  

appellant.  The appellant could have asked for appointment of  

any colleague whose assistance he wanted to take and  who  

would  have  been  as  well  qualified  and  experienced  as  the  

presenting  officer.   The  request  of  the  appellant  has  been  

33

rightly  rejected  by the  disciplinary  authority.   Furthermore,  

the application was made on 7th December,  1988 itself  and  

thereafter the appellant took no steps whatsoever to challenge  

the order of the Disciplinary Authority declining assistance of  

an advocate.   On the contrary,  he participated without any  

further protest in the entire departmental enquiry and raised  

no objections.  The Enquiry Officer conducted the proceedings  

in a just, fair manner and in accordance with rules.  In fact,  

there  is  no  challenge  to  that  aspect  of  the  matter.   In  the  

application,  the  appellant  had  stated  “that  the  complainant  

34

neither  has  necessary  experience  nor  the  required  skill  to  

handle his defence in such circumstances.”  This statement ex  

facie is  not  correct.   The  appellant  must  have  dealt  with  

variety of cases during his tenure as a Judge.  He was fully  

capable of defending himself in the departmental enquiry.  In  

the alternative he could easily ask for assistance of any senior  

colleague  from the service  if  he was under  pressure  of  any  

kind  that  the  Presenting  Officer  was  senior  to  him  and  

belonged to Higher Judicial Service.  He did not exercise this  

choice, at any stage, for reasons best known to him.  However,  

35

he made an application praying for permission to engage an  

advocate and nothing else. Charge against the appellant was  

not  of  a  very  complicated  nature,  which  a  person  having  

qualification and experience of the appellant would not be able  

to defend.  In these circumstances, we are of the considered  

view  that  no  prejudice  whatsoever  has  been  caused  to  the  

interest  of  the  delinquent  officer.   These  are  the  rules  

primarily of procedure, an element of prejudice would be one  

of  the  necessary  features,  before  departmental  proceedings  

can be held to be vitiated on that ground.  The reliance placed  

36

upon the case of J.K. Aggarwal (supra) is totally unwarranted.  

In that case, the Court came to the conclusion that refusal to  

sanction the service of lawyer in the inquiry proceedings was  

not a proper exercise of discretion under the Rule resulting in  

failure  of  justice.   The  Court  held  that  the  discretion  was  

vested in the disciplinary authority in terms of Rule 7(5) of the  

relevant  Rules.   The  language  of  that  Rule  was  entirely  

different  and  permission  to  engage  a  legal  practitioner  was  

relatable  to  the  nature  of  the  punishment  which  could  be  

imposed  upon  the  delinquent  officer  in  the  departmental  

37

proceedings.  If the charges were likely to result in dismissal of  

the person from service,  in that event,  that officer may with  

the  sanction  of  the  Enquiry  Officer  be  permitted  to  be  

represented  through  a  counsel.   Language  of  this  Rule  is  

entirely different from the language of the Rule in question in  

the present case.  On the basis of the facts of that case and  

Rule 7(5) of the said Rules the Court held:

“The right of  representative  by a lawyer  may not in all cases be held to be a part  of  natural  justice.   No general  principle  valid in all cases can be enunciated.  In  non-statutory  domestic  tribunals,  Lord  

38

Denning  in  the  Court  of  Appeal  in  England favoured  such a  right  where  a  serious  charge  had  been  made  which  affected  the  livelihood  or  the  right  of  a  person  to  pursue  an  avocation  and  observed:

“I  should have thought, therefore,  that  when a man’s reputation or livelihood is  at  stake,  he  not  only  has  a  right  to  

speak by his own mouth.  He also has a  right to speak by counsel or solicitor.”

But this was not followed by Lyell, J. in  Pett case (No.2)

It would appear that in the inquiry, the  respondent-Corporation  was  represented  by  its  Personnel  and  Administration  Manager  who  is  stated  

39

to  be  a  man  of  law.   The  rule  itself  recognizes  that  where  the  charges  are  so serious as to entail a dismissal from  service the inquiry authority may permit  the services of a lawyer.  This rule vests  a discretion.  In the matter of exercise of  this  discretion  one  of  the  relevant  factors is whether there is likelihood of  the  combat  being  unequal  entailing  a  miscarriage  or  failure  of  justice  and  a  

denial  of  a  real  and  reasonable  opportunity  for  defence  by  reasons  of  the  appellant  being  pitted  against  a  presenting officer who is trained in law.  Legal Adviser and a lawyer are for this  purpose  somewhat  liberally  construed  and must include “whosoever assists or  advises  on  facts  and  in  law  must  be  deemed to be in the position of a legal  adviser”.  In the last analysis, a decision  

40

has  to  be  reached  on  a  case  to  case  basis  on  the  situational  particularities  and the special requirements of justice  of  the  case.   It  is  unnecessary,  therefore, to go into the larger question  “whether  as  a  sequel  to  an  adverse  verdict  in  a  domestic  enquiry  serious  civil  and  pecuniary  consequences  are  likely  to ensue,  in order  to enable  the  person  so  likely  to  suffer  such  

consequences with a view to giving him  a  reasonable  opportunity  to  defend  himself,  on  his  request,  should  be  permitted  to  appear  through  a  legal  practitioner”  which  was  kept  open  in  Board of Trustees of the Port of Bombay  v. Dilip Kumar. However, it was held in  that case (SCC p. 132, para 12)

41

“…In our  view we  have  reached  a  stage in our onward march to fair play  in  action  that  where  in  an  enquiry  before  a  domestic  tribunal  the  delinquent  officer  is  pitted  against  a  legally  trained  mind,  if  he  seeks  permission  to  appear  through  a  legal  practitioner  the  refusal  to  grant  this  request  would  amount  to  denial  of  a  reasonable  request  to  defend  himself  

and the essential  principles  of  natural  justice would be violated….”

On a consideration of the matter, we are  persuaded to the view that the refusal to  sanction  the  service  of  a  lawyer  in  the  inquiry was not a proper exercise of the  discretion under  the  rule  resulting  in a  failure of natural justice; particularly, in  view  of  the  fact  that  the  Presenting  

42

Officer  was  a  person  with  legal  attainments and experience.  It was said  that  the  appellant  was  no  less  adept  having been in the  position of  a  Senior  Executive and could have defended, and  did defend,  himself  competently;  but as  was  observed  by  the  learned  Master  of  Rolls  in  Pett  case  that  in  defending  himself  one  may  tend  to  become  “nervous”  or  “tongue-tied”.   Moreover,  

appellant, it is claimed, has had no legal  background.  The refusal of the service of  a lawyer, in the facts of this case, results  in denial of natural justice.”

10. Thus, the appellant can hardly take any help from that  

case.   Even  in  the  case  of  Dilipkumar  Raghavendranath  

43

Nadkarni (supra), the Board of Trustees had appointed its law  

officer  as  a  presenting  officer.   The  Presenting  Officer  was  

legally  trained  and  experienced  in  handling  departmental  

enquiries,  it  was  in  those  circumstances  that  this  Court  

found,  as  a  matter  of  fact,  that  there  was  violation  of  

principles of natural justice and that  a legally  expert person  

has been permitted to be engaged by the delinquent worker.  

In that case  the provisions similar to the present provisions  

also  came into force during the pendency of the departmental  

proceedings.  The Court remanded the matter and directed re-

44

conducting of the departmental enquiry with specific liberty to  

the  workman  to  cross-examine  all  the  witnesses  afresh  in  

accordance with law.  The facts of that case are thus entirely  

different  from the case  in hand wherein  no such ground is  

made out.  Firstly, the petitioner himself was equally qualified  

and trained as the presenting officer and/or he could even ask  

for  assistance  for  a fellow colleague with similar  experience  

and status as that of the presenting officer which he choose  

not  to  do.   Having  given  up  the  right,  he  cannot  now  be  

45

permitted to turn back and raise a grievance in that regard.  

This contention of the appellant is without any merit.   

11.      Coming to the other aspect of the case, that there is  

perversity  in  appreciation  of  the  evidence  in  the  impugned  

judgment under  appeal,  we may notice  that the  finding of  

facts arrived at by the enquiry officer was not interfered with  

by the learned single Judge as well as the Division Bench of  

the Madhya Pradesh High Court,  it is hardly permissible for  

this Court to disturb such findings of fact in exercise  of its  

jurisdiction  under  Article  136  of  the  Constitution  of  India.  

46

Besides that, we must notice that the conduct of the appellant  

can hardly be appreciated in regard to deposit of money in the  

Bank  regularly  during  the  entire  period  of  1984-85.   The  

Department  had showed that the  deposits  have  been  made  

and the bank balance of the appellant, on a particular date,  

was beyond the known sources of his income to which, the  

appellant has raised a defence that he owned the land and the  

income  received  was  an  agricultural  income.   However,  he  

produced  no  evidence  during  the  departmental  enquiry  to  

show that some person was making payment to him and/or  

47

some  person  was  depositing  the  money  in  the  Bank  so  

received from agricultural activity in every 2-3 days.   Once a  

person is carrying on agricultural activities like the appellant,  

the  obvious  result  thereof  would  be  that  there  would  be  

persons who would  be  carrying on agricultural  activities  on  

the  land on his  behalf,  would  be  harvesting  the  crops  and  

then selling the same on his behalf and that there would be  

persons who would be buying such crops and disposing the  

crops in the open market directly or indirectly.  Thus, these  

persons would have been easily available to the appellant to  

48

be  produced  in  departmental  enquiry  to  substantiate  his  

defence.  No such effort was ever made by the appellant.  Non-

examination  of  these  witnesses  and  non-production  of  

necessary documents must lead to draw an adverse inference  

against the appellant.  In any case, the appellant cannot take  

advantage of that fact and contend that the inquiry officer has  

failed to appreciate evidence in its correct perspective.  At this  

stage, we may also notice that during the course of hearing,  

we had called for the original personal file of the officer where  

he  had  filed  property  returns  to  the  Department.   In  the  

49

property return for the year 1984-85 (copy of which is stated  

to have been produced before  the Enquiry Officer),  which is  

the relevant year, the appellant is shown to have 1/3rd share  

in the agricultural land located at two different places.  There  

is a specific column relating to income from agriculture.  In  

that  form  it  was  filled  in  by  the  appellant  as  ‘uncertain’  

(anishchit).  This return had been filed on 27th March, 1985.  

In other words, on that date he did not know whether he had  

earned any amount from the agricultural income or not.  The  

period in question was January, 1984 to May 1985, thus, for  

50

the  substantial  period,   he  was  fully  aware  of  his  income  

received from agricultural activity but he still chooses to keep  

it vague and not declare his true income in the return.  Now,  

in  the  departmental  proceedings  and  in  the  reply  to  the  

charge-sheet, he submitted that there was an income of more  

than Rs.50,000/- p.a. and that he owned 37.53 acres of land  

in village Bilaspur at two different places.  It is again strange  

that he did not disclose in his reply that this was a land jointly  

owned with his brothers and family members and what was  

the  extent  of  his  holding  individually.   In  the  return,  he  

51

himself  claimed  one-third  share  in  the  property.   The  total  

land  indicated  at  two  different  places  being  26  acres  +  18  

comes to 44 acres  and one third of which, merely 14 acres  

approximately, would be the land owned by him and not 37  

acres as claimed.  This, itself shows that the appellant has not  

approached the Court with clean hands and has not disclosed  

true  facts  which  were  known  to  him  alone.   In  the  

departmental proceedings, he took incorrect defence contrary  

to his return and failed  to discharge  the  onus placed  upon  

him.  In the departmental enquiry, the appellant produced no  

52

income tax returns to show that in addition to his salary, he  

had  other  sources  of  income  and  what  was  the  extent  of  

income  from  these  sources.   In  his  written  statement  of  

defence he never took up the plea that any such returns were  

filed and he made no effort to bring on record the copies of  

such income-tax returns, if at all filed. The delinquent officer  

could have stated  in his  statement  if  he  was not  filing any  

return and reason thereof.  We are certainly of the considered  

view that it was obligatory on the part of the delinquent officer  

to disclose all such relevant facts which were only within his  

53

personal knowledge.  He belongs to a service which is looked  

upon by the public at large as a service cadre of high integrity  

and professional  values.   The Judges  are  expected  to apply  

stringent social and moral values to their standard of living.  It  

was expected of the appellant to disclose all true and correct  

information  and  documents  in  his  power  and  possession  

before the Enquiry Officer.  It was not required of him to with-

hold relevant material  and take such a defence which could  

not  be  substantiated  during  the  course  of  departmental  

enquiry.   Having  failed  to  produce  relevant  documentary  

54

evidence  as  well  as  examine  the  witnesses,  the  appellant  

cannot  argue  that  the  Disciplinary  Authority  or  the  Courts  

have not appreciated the evidence in its correct perspective.  

We are unable to accept the contention of the appellant that  

the findings are based on no evidence or are perverse in any  

manner whatsoever.  

12. For the  reasons afore stated,  we find no merit  in this  

appeal.  The same is dismissed however, without any order as  

to costs.

55

…. …..................................J.

[ DR. B.S. CHAUHAN ]

…… …................................J.

     [ SWATANTER KUMAR ] New Delhi July 8,  2010.  

56