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PETITIONER: H.C. SARIN

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT14/04/1976

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. CHANDRACHUD, Y.V. KRISHNAIYER, V.R.

CITATION:  1976 AIR 1686            1976 SCR   39  1976 SCC  (4) 765

ACT:      Adminstrative  Law-Departmental  enquiry-Principles  of natural justice.

HEADNOTE:      Indian Railways  Establishment Code,  Vol. I  r.  1730- Right of  delinquent officer  to services  of on advocate or another Railway offcial.      The appellant  was a  railway official  of  the  Indian Railways, in  London. In  connection with  the  purchase  of stock from  a West  German firm  three charges  were  framed against him  that he obtained illegal gratification from the proprietor of  that firm  and  that  he  had  used  official influence for  personal advancement.  A board  of enquiry as set up  by the  Government of India and the enquiry was held in London  and West  Germany. The board held that two of the charges were  proved and  the appellant  was dismissed  from service. He  filed a  writ petition  in the High Court which was dismissed.      In appeal  to this  Court, it  was contended  that  the enquiry was  held in  gross violation  of the  principles of natural  justice   and  requirements  of  Art.  311  of  the Constitution; that  the proprietor  of the  German firm made the false  accusation against him in order to escape payment of damages;  that the  chairman of  the board of enquiry was biased against  him, and  that the  appellant was denied the services of  a professional  lawyer or a railway official of his choice  from India  for conducting  his defence  and for cross-examining the proprietor of the German Firm.      Dismissing the appeal, ^      HELD: (1)  The correspondence  that passed  between the board and the appellant snows that there was no violation of any principle  of natural  justice, that  the appellant  was given inspection  of all  necessary documents;  that he  was given adequate  and reasonable opportunity to defend himself and that  the allegation  that the chairman of the board was biased against the appellant was totally false. [46 B-C]      (2) No principle of natural justice was violated in not making  available   to  the  appellant  the  services  of  a professional lawyer  or of  another  railway  official  from

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India. [51 B]      (a) The  enquiry was  conducted in  accordance with  r. 1730 of  the Indian  Railways Establishment  Code,  Vol.  I, which prescribes  the procedure  for holding  a departmental enquiry. There  is nothing in the rule about engagement of a lawyer but  the note appended to the rule provides that in a departmental enquiry  the accused  may, if he so desires, be accompanied by  another  railway  officer,  provided  he  is approved by  the competent  authority, and provided that the person so  nominated shall not be a professional lawyer. [50 F-G]      (b) The  notes are  promulgated with  the rules.  Their function is to provide procedure, to control discretion, and to fill  up gaps  when rules are silent. Under the rule, the appellant was not entitled to the services of a professional lawyer.                                                     [51 F-G]      Tara Singh  etc. etc.  v. State  of Rajasthan and ors., [1975]3 SCR 1002, followed.      (c) Even  if  the  note  is  treated  as  an  executive instruction and  not part  of the  rule itself,  there is no reason why  the authority  should not  follow the  note. The authority would  still have  a discretion  in the matter. In the present  case, the  question involved  was a  simple one whether he had taken money from the 40 proprietor of  the German  firm. No  prejudice was caused to the appellant,  because the  proprietor was only a lawyer in name but  was actively  in business  and the  services of  a professional lawyer were not necessary to cross-examine him.                                                       [51 B]      (d) The  appellant wanted  an  officer  from  India  to assist him in the conduct of his defence. Under the rule, he was not entitled, as a matter of right, to have the services of any  railway officer  stationed in  India. He was in fact given a  choice to  choose either one stationed in London or on the Continent. [51 G-H]      C. L.  Subramaniam v.  Collector  of  Customs,  Cochin, [1972]3 SCR 485, explained and distinguished.      R. v.  Secretary of  State for  the Home  Department ex parte Mughal  [1973] All  England Law Reports, 796, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1097 of 1970.      Appeal from the Judgment and order dated the 25th April 1967 of  the Delhi  High Court  in Letters Patent Appeal No. 106-D of 1964.      M. N.  Phadke, S.  Balakrishnan and  N. M. Ghatate, for the Appellant.      L. N.  Sinha,  Sol.  General,  P.  P.  Rao  and  Girish Chandra, for Respondents.      The Judgment of the Court was delivered by      UNTWALIA, J.-This  appeal is  by certificate granted by the High  Court of  Delhi under Article 133 (1) (a) & (b) of the Constitution  of India  as it  stood prior  to the  30th Constitution Amendment  Act. No  substantial question of law is involved  in this  appeal. It  is to be decided mostly on facts. And  since we  are in  agreement with the judgment of the Division  Bench of  the High  Court given in the Letters Patent appeal,  we shall  advert only to the necessary facts and the main points argued before us.

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    Shri H.  C. Sarin-the  appellant was  employed  in  the Indian Railways  as Senior Railway Inspector attached to the Office of  the India  Stores Department at London. He was in that job  from the 6th August, 1954. The Government of India placed orders  with various  firms in the United Kingdom and the  continent   for  supply  of  rolling  stock  and  other materials for  the Indian  Railways. In  December, 1956  the appellant was  deputed to  the Essen Area of West Germany as Senior Railway Inspector in which capacity he had to inspect and pass  the goods  in the  first  instance  at  the  site. Although  this  work  of  inspection  in  West  Germany  was entrusted to the German Federal Railway in January 1958, the appellant remained there associated with the work till April or May,  1958. In July, 1956 orders were placed with M/s Leo Gottwald and Company for supply of several breakdown cranes- both for  meter gauge  and broad  gauge  railway  tracks  in India. This  was a  family concern  of one  Dr. Hans  Dieter Gottwald. Prior to the appellant’s going to the Essen Area 41 of West  Germany, there were other Senior Railway Inspectors doing the  work of  inspection including  one S.  N. Hussain (since deceased) immediately preceding the appellant. One of the clauses  in the contract with Gottwald was that he would be liable to pay liquidated damages in the specified sums if he made  delay in  the delivery  of the  cranes.  Eventually there being delay, the amount of such damages was quantified at a figure in the neighbourhood of & 45,000/-.      Dr.  Gottwald  carried  on  business  of  his  firm  at Dusseldorf in  West Germany.  He came  to London on July 30, 1958 to  discuss with  Shri L.  T. Madmani,  Railway Advisor certain technical  aspects of the cranes contract. A meeting took  place  in  the  morning  wherein  were  present  other officers  including  one  Mr.  Bayross.  In  the  afternoon, Gottwald saw  S. N.  Hussain at  the lndia Stores Department when the  latter told  the former that delay had occurred in the  supplies   of  cranes  and  consequently  the  firm  of contractors may  have to  pay liquidated damages. Upon this, Gottwald disclosed that Sarin was responsible for the delay, he had  taken money  by way  of bribes  from the firm and in such a situation the firm was not liable to pay any damages. Since the  allegation made  by Gottwald  against Sarin was a serious one  S. N.  Hussain advised  him to  inform  Madnani about it.  He did  accordingly. After some preliminary steps Gottwald’s statement  was recorded  on September  8, 1958 at India Stores  Department where he gave a detailed account of the allegedly  corrupt  practices  of  the  appellant.  Shri Shukla  was   the  Director  General  of  the  India  Stores Department at  the relevant  time. He  directed Gottwald  to furnish some  tentative proof  in support  of his accusation against Sarin.  Gottwald’s second  statement was recorded on October 21,  1958. One  Shri M. A. Hussain, I. C. S. was the Deputy High Commissioner for India stationed in U. K. at the relevant time. On cxamining the papers and the statements of Dr. Gottwald  given before the various officers of the India Stores Department  the Deputy  High Commissioner  formed  an opinion  that   prima  facie  the  accusations  against  the appellant were  such that  required to  be investigated in a departmental enquiry.  He accordingly  made a recommendation to that  effect to  the Government of India. The Government, however, directed  a preliminary  enquiry to be made by Shri N.  S.   Pandey,  Financial   Advisor  to  the  Indian  High Commission and  then to  start a  departmental  enquiry,  if necessary. Accordingly,  Pandey went  to Gottwald’s place in West Germany,  made preliminary investigations and submitted a report  dated January  19, 1959 finding a prima facie case

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made out  against the  delinquent government servant. At the instance of  the Government  of India,  Ministry  of  Works, Housing and  Supply, charges  were served upon the appellant on April 7, 1959 along with two Annexures containing various details of the accusations made by Gottwald against him. The appellant was asked to indicate by April 15 the papers which he wanted  to inspect  and the papers the copies of which he required to enable him to enter his defence. He was asked to submit his  written explanation  by 30th  of April, 1959. In the meantime he was placed under suspension. 42      Shorn  of  details  which  were  to  be  found  in  the Annexures the Charge-Sheet served on the appellant contained the following three charges:           "CHARGE I.           That Shri  H. C.  Sarin, while  functioning as the      Senior Railway  Inspecting Officer  in the India Stores      Department, London, during the period between December,      1956 and  May,  1958,  demanded  and  obtained  illegal      gratification from  the firm of Messrs. Leo Gottwald of      Dussaldorf.           CHARGE II.           That  during   the  aforesaid   period  and  while      functioning as  aforesaid, the  said Shri  H. C.  Sarin      violated Rule  10 of  the  Railway  Services  (Conduct)      Rules, 1956  in that  he  accepted  an  Opel  Car  from      Messrs. Talbots of Achen as a gift.           CHARGE III.           That  during   the  aforesaid   period  and  while      functioning as  aforesaid, the said Shri Sarin used his      official influence for personal advancement." Time for  filing the  written defence  by the  appellant was extended. It was filed on May 27, 1959. The appellant denied all the  charges against him. The Board of Enquiry set up by the Government of India consisted of the following :           (1)  Shri  M.   A.  Hussain,   ICS,  Deputy   High                Commissioner, Chairman.           (2)  Col.  Hendricks,   Deputy  Director   General                (Inspection), I. S. D., London, Member.           (3)  Shri  T.   M.  Duraiswamy,   Deputy  Director                General, I. S. D., London, Member.      The correspondence  which passed  between the appellant and the  Board in  connection with  the departmental enquiry instituted against  him is  too voluminous to be referred to in this  judgment. No  useful return  will  be  achieved  by referring to the correspondence in any detail. Suffice it to say at  this stage  that the  correspondence does indicate a calculated design  and planned  attempt on  the part  of the appellant to  non-cooperate with  the enquiry and an anxiety and earnestness  on the  part of the Board to proceed in the matter as  fairly as  possible in  the circumstances  of the case. The  Board was  obliged to  go to  Dusseldrof, hold an enquiry at  the spot  by examining  as many  as 21 witnesses there, some  of whom  had been cited by the appellant as his defence  witnesses  and  to  examine  the  relevant  papers, documents and  account books  of the  contractor’s firm. All this proceeded  ex-parte between  July 14  to July 17, 1959. The Board 43 returned to  London on  July 19  and examined some witnesses there who  had  been  cited  as  defence  witnesses  by  the appellant. Almost  the entire departmental enquiry had to be conducted ex-parte as the appellant would not participate in it even with a pair of tongs.      The appellant  had named  S/Shri Bhalla,  Sharma, Johri

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and Sen, Railway officers in India as his defence witnesses. He was  asked to examine them by quesionnaries as it was not possible to  call them  to London  for the  purpose  of  the enquiry.  Nor   was  their   evidence  so   material  as  to necessitate their  examination viva-voca  before the  Board. The appellant  refused to  cooperate and  did not submit any questionnaire. The  Board, thereupon,  sent to  all the four officers aforesaid  copies of  the charges  levelled against the appellant  and asked  them to state if they had anything to say  in relation  to them.  Bayross was  examined by  the Board in  London on  September 29,  1959 after copies of the earlier statements  of the  witnesses and  other papers  had been supplied  to the  appellant on  September 21, 1959. The appellant was  present on  September 29 but did not actively participate in the enquiry, in that he did not take any part in it by cross-examining Bayross.      The Board  submitted its  report to  the Government  of India on November 2, 1959 holding that charges I and III had been proved  against the appellant and charge II had neither been proved  nor disproved. The Government gave a show-cause notice on  November 4,  1960 to  the appellant asking him to show cause  against his  removal.  He  filed  his  reply  on January  31,  1961.  Later,  however,  the  Government  gave another show  cause notice  dated September  20, 1961 to the appellant to show cause as to why he should not be dismissed from service.  In October/November, 1961 the appellant filed three show  cause explanations  in writing.  He made another representation to  the  Government  on  March  4,  1962  for holding a  fresh enquiry which naturally was not acceded to. Eventually the  appellant was  dismissed from  service by an order of  the Government  of India dated September 10, 1962. He filed  a writ  petition in  the High Court on December 6, 1962 to challenge the order of dismissal on several grounds, in nut  shell, on  the ground  of violation of principles of natural justice  in the  conduct of  the enquiry.  A learned single Judge  of the  High Court  by his  judgment and order dated August  3, 1964  allowed the writ petition and quashed the order  of dismissal without any further or consequential order. A  Letters Patent  appeal was filed by the Government which was  disposed of by a Bench of the Delhi High Court on April 25,  1967. The  judgment if  the single  Judge was set aside  and   the  order  of  dismissal  passed  against  the appellant by  the Government  was  maintained  holding  that there was  no violation of the principles of natural justice in any  manner. Since  the amount  of salary  payable to the appellant if  the dismissal  order could  be found to be bad would,  indisputably   have  been  more  than  Rs.  20,000/- certificate was  granted  under  Article  133(1)(a)  &  (b), strictly speaking,  under sub-clause  (b). Thus  comes  this appeal in this Court. 44      Mr. M.  N. Phadke,  learned counsel  for the  appellant pressed only the following points in support of the appeal.           (1)  That the  appellant was  not allowed to go to                Germany to examine and assess various matters                which  were   necessary  for  submission  and                conduct of  his defence.  It was  done so  in                gross violation  of the principles of natural                justice and requirement of Article 311 of the                Constitution.           (2)  That  copies   and  inspection   of   certain                relevant and  necessary  documents  were  not                allowed to the appellant by the Board. It was                not  possible   for  him   to  cooperate  and                participate in the enquiry without them.

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         (3)  That no  adequate and  reasonable opportunity                was given  to the appellant to defend himself                at the enquiry.           (4)  That the  accusation made by Gottwald against                the appellant was maliciously false as it was                made with  the ulterior  motive of saving his                firm  from   the  liability   of   liquidated                damages. As a matter of fact the firm was not                made to pay any damages in view of Gottwald’s                success in  his false  accusation against the                appellant.           (5)  That Shri  M. A.  Hussain.  Chairman  of  the                Board of  Enquiry was  highly biased  against                the appellant and the enquiry conducted under                his stewardship was a farce.           (6)  That  Shri   S.  N.  Hussain  was  inimically                disposed to  wards and  adversely  interested                against the appellant.           (7)  That the  services of  a professional  lawyer                for cross  examining Gottwald  and a  Railway                officer of  his choice  from India  were  not                made   available   to   the   appellant   for                conducting his defence.      Learned Solicitor  General appearing  for the  Union of India-the respondent-refuted  all the  submissions  made  on behalf of  the appellant.  In  particular  he  focussed  his submissions on  point nos.  1, 5  and 7  as the  other  four points, counsel  submitted, did  not  require  any  detailed reply. Point No. 1      When the  appellant was  placed  under  suspension,  in accordance with  the relevant service rules he was asked not to leave  London without permission of the Board. As soon as the Charge  Sheet was  served on him by his letter dated the 10th April,  1959 the  appellant wanted  permission to visit Germany stating in para 6:           "In order  for me  to prepare  my defence  I would      request  permission   to  visit   Germany  to   collect      essential information 45      required when submitting my written defence, especially      as the  charges refer  to periods  two to  three  years      ago." The Chairman  of the Board of Enquiry in his reply dated the 15 April, 1959 stated in para 3 thus:           "In regard  to your  request to  be  permitted  to      visit Germany,  the Board would like to have in writing      before April  20, 1959,  the purpose for which you wish      to  visit  Germany  and  the  names  and  addresses  of      person/persons you wish to contact and the paper/papers      you may wish to examine." The appellant  sent his  letter dated April 20, 1959 stating in para 4 thus:           "Regarding the  visit to  Germany and  the persons      and documents  to be interviewed and seen, I thought it      was plain  that this  depended  on  the  inspection  of      documents referred  to in  paras 4 and 5 of your letter      under  reply.  Consequently  until  I  have  done  this      properly, I  shall not  be in  a position  to know what      items or  facts I  require to  investigate or check’ in      Germany. I shall therefore be glad if you will postpone      this application  of mine  so that  I may in due course      specify the visits, persons and papers." The Chairman, thereupon, by this letter dated April 21, 1959 asked the  appellant to supply the information in respect of

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his visit  to Germany by April 30, 1959. In his letter dated April 30, 1959 the appellant stated in para 3 thus:           "I submit  in view  of the  grave  charges,  false      allegations, it  is necessary  for  me  to  examine  in      detail   Leo    Gottwald’s   system    of   accounting,      storekeeping,  procedure   for  telephone   accounting,      mailing letters  etc. Likewise  the system of telephone      connecting, booking,  mailing  letters  etc.  at  other      firms mentioned  by Dr.  Gottwald, This  is  absolutely      imperative and  my defence  would be incomplete without      this. In  the absence  of full information, examination      of all  documents studying systems of working mentioned      above, I  am not  in a  position  to  submit  names  of      persons. I  would request early arrangements may please      be  made  for  me  to  study  the  systems  of  working      mentioned above at the respective firms in Germany." The Chairman  in para  4 of  his letter  dated May  1,  1959 informed the appellant:           "In regard to your request for visiting Germany in      order  to   examine  the   Leo  Gottwald’s   system  of      accounting, store-keeping,  mailing letters etc., it is      felt that  it is not necessary for you to visit Germany      for the  purpose because  witnesses pertaining  to  all      these  matters   will  be   called  by  the  Board  for      examination and you will be given full 46      opportunity to elicit all relevant information required      by you." Further  correspondence  followed  in  the  matter  and  the appellant was not given permission to visit Germany prior to the visit of the Board of Enquiry.      In the  light  of  the  relevant  correspondence  which passed between  the appellant  and the Chairman of the Board of Enquiry we have come to the conclusion that it was not at all  necessary  for  the  appellant  to  visit  Germany  for preparing his  defence. The  Board committed  no mistake and violated no  principles of  natural justice  in refusing the permission. No useful purpose would have been served by such a visit  in the interest of the appellant’s defence, if any. on the  other hand  his insistence  to visit  Germany at the earliest opportunity  smacks of  some ulterior design on his part in regard to his defence.      When the Board decided to visit Germany for holding the enquiry, it  gave ample  opportunity  to  the  appellant  to proceed to  Germany to take part in it. The main part of the enquiry. rather, the only substratum of the materials was to be done  and collected  at Dusseldorf in Germany. Yet on one excuse or  the other  the appellant, it appears, was advised to adopt  an attitude of non cooperation which was likely to forge a  ground of  attack on  the  departmental    enquiry, thinking that participation in it would. perhaps, worsen his case. It  is found  more  often  than  not  that  Government servants who  have no  real  defence  to  take  against  the accusations are  advised, and sometimes not without success, to non-cooperate  with the  enquiry. It seems to us this was one such case.      The Chairman  by his  letter dated  June 18, 1959 asked the appellant  whether he  proposed to  be  present  at  the enquiry at Dusseldorf and such other places as the Board may determine on the dates to be intimated to him. The appellant was specifically  asked this  question because  he cast some baseless aspertions  against the  Board in  his letter dated the 4th June, 59. The appellant in his letter dated the 14th June had stated in para 14:           "In the  circumstances that  I have  put into, and

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    hardly been  left any  choice, I feel no useful purpose      call be  served by  my attending  such  an  enquiry  or      having anything further to do with such as enquiry." The  appellant’s   reply  dated   June  20,   1959   clearly demonstrates the  unjustifiably non-cooperative  attitude of the appellant.  He was  running from  pillar to post to find out some  excuse to  justify  his  non  cooperation  at  the enquiry. He  insisted that Dr. Gottwald’s statement recorded in September,  1958 should  be got  signed by  him which the Board rightly  did not  consider it necessary to do. Another with stand  which the  appellant  had  taken  was  that  the contents of  his written  defence submitted  on May  27 were made known  to S. N. Hussain by some members of the Board of Enquiry-an allegation 47 which was  strongly refuted by the Board. Lastly in the 10th paragraph of  his letter  dated June  20 the appellant said: "What can  I do Mr. Chairman in the position you have placed me, you may proceed in any way you consider reasonable, just and fair."      In spite of the unreasonable and unsustainable stand of the appellant,  the Board  of Enquiry, constituted as it was of high  officials of  the Government of India headed by the Deputy High Commissioner stationed in London, time and again expressed their anxiety to make the appellant participate in the enquiry. But the appellant under a wrong advice played a game of  hide and  seek,  at  times  adopted  a  tantalizing attitude showing  his willingness  to cooperate,  but backed out at  the eleventh  hour. To  justify this comment we just mention some  other letters  viz. letter  of the Board dated June 22,  appellant’s reply  dated June  23, Board’s  letter dated June 26, appellant’s sticking to his previous stand in his letter  dated June  29, Board  asking the  appellant  to proceed to  Germany in  their letter  dated July  2 and  the appellant’s reiterating  his previous  stand in  his  letter dated July  8. From  the report of the Board it would appear that Sarin  did not  give a categorical answer as to whether or not  he would  go to  Dusseldorf on  July 13. On the 10th July, he agreed to go and came to India Stores Department to collect his  advance of T. A. But on the evening of July 11, he informed  the Secretary  to the  Board that  he would not proceed to Dusseldorf to be present at the oral enquiry. Mr. Phadke drew  our attention to Sarin’s show cause reply dated January 31, 1961 in which he stated that the Board permitted him to  go to Dusseldorf only if he agreed to participate in the oral  proceedings there,  otherwise not.  He  therefore, cancelled his reservations to proceed to Dusseldorf. He also referred to  the photostat  copy of  the appellant’s  letter dated July 24, 1959 and the addendum to this letter. Nothing new; the same stand was taken by the appellant. This, to our mind, makes  patent the latent factor in the mental attitude of the  appellant. Did  he want  to go to Dusseldorf without agreeing to  take part in the enquiry ? or did he want to go there to participate in it?      Having appreciated  all that  has  been  said  for  the appellant in  support of his first point we have come to the conclusion that  the appellant was not denied any reasonable opportunity of  visiting  Germany  at  the  proper  time  to participate in  the enquiry.  He has  to thank  himself  for deciding not to go. Point No. 2.      It  is   not  necessary  to  enter  into  any  detailed discussion of this point. In agreement with the Bench of the High Court  we hold  that all  relevant documents  were made available to  the appellant  either for  inspection  or  for

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copies. Some file containing the field inspection papers was not traceable.  The suspicion  of the  Board  was  that  the Prosecutor at  the departmental  enquiry  was  not  to  gain anything by  making the  file untraceable. On the other hand it was  the appellant  who was  to gain by it. The very same letters exchanged  between the  appellant and  the Board  in June and July, 1959 dealt 48 with this aspect also. The High Court has extracted passages from the relevant letters in this connection and has rightly held:           "It  appears   to  us   to  be   clear  from  this      correspondence  that  all  legitimate  demands  of  the      respondent for  the inspection  of  papers  which  were      available in  the ISD  office in London were fulfilled,      but the  respondent went  on making unfounded claims in      this  behalf   without  specifying  the  documents.  We      therefore, hold that all documents which were available      in the  ISD office in London were made available to the      respondent." Point No. 3.      In support  of the  third point arguments were advanced with reference  to letters  dated  July  18,  August  6  and October 6,  1959. Notes  were handed over to us referring to the other pieces of correspondence. We have studied them but think it unnecessary to increase the bulk of our judgment by referring to  the correspondence  in any  detail. It  merely shows that  on one  ground or  the other  the appellant  was adopting delaying  tactics, shifting  stands and excuses for not presenting  himself at  the  enquiry  either  to  cross- examine the  prosecution witnesses or to examine his defence witnesses. All  the time  he was reiterating his stand taken in his letters dated June 14, and June 20, 1959. The detailed  report of the Board of Enquiry, apart from the correspondence which  preceded it,  is a  clear proof of the anxiety of  the Board  to conduct the encquiry as fairly and fully as  they could  in the  circumstances of the case. The submission of  the appellant  is rejected as being devoid of substance.      In view  of the  attitude taken  by  the  appellant  of complete noncooperation  in his  letters dated  June 14  and June 20,  1959 no  useful purpose  would have been served by associating him  with the  examination of  the witnesses  in London. Madnani  and S. N. Hussain were examined in July and August. The  appellant never  expressed his  willingness  to cooperate and be present at the examination of the witnesses in London.  His presence  at the  time of the examination of Bayross was a make-believe more of cooperation to colour and cloud  his  real  attitude  of  non-cooperation.  The  Board committed no irregularity or illegality in sending a general questionnaire to  S/Shri Bhalla,  Sharma, Johri  and Sen  in India  as   the  appellant   had   refused   to   submit   a questionnaire. Copies  of all  the relevant  statements  and papers given  to the  Board at  Dusseldorf were given to the appellant in  September, 1959. Although there was some delay in supply  of these papers, that did not cause any prejudice to the appellant. Point No.4      This point  mainly concerns  the merits of the findings of the  Board of  Enquiry and  their final acceptance by the Government of 49 India. Whether  a charge  levelled against the appellant was true or  false had to be and has been judged in the light of the appellant’s  stand that  Gottwald had a motive to accuse

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falsely the  appellant of  having taken  bribe from  him  in order to  establish that  he was  not at  fault in the delay which was  made in  the delivery  of the  contracted cranes. Without much  elaboration we  reject this argument. Gottwald was to gain by merely throwing the blame on the shoulders of Sarin. He  had nothing to gain and only to lose by making an accusation of having paid bribe to Sarin under his pressure. No person  would like  to involve  himself in  the  deal  of payment of  bribe to  a Government  servant merely  for  the purpose of  explaining the  delay caused  in  effecting  the deliveries. Ordinarily bribe could be paid so that there may not be any delay in inspection. But here was a case where it is said delay was caused in the inspection because there was delay in  the payment  of the  bribe. It  is not  for us  to examine in  any  detail  the  correctness  of  the  findings recorded against  the appellant at the departmental enquiry; but in  passing, we  may just observe that it could not have been possible  for  Gottwald  to  make  a  false  accusation against Sarin,  and then  support it  before  the  Board  by examining his  father, the  bank records,  vouchers, account books and  a large  number of  persons working  in his firm. There was  nothing in  the records of this case to show that the claim  of liquidated  damages against the contractor was given up  in view  of the finding of guilt of the appellant. We were  informed at  the Bar  by the Soilcitor General that the claim  was settled  and not given up. Be that as it may, we  find  the  fourth  submission  made  on  behalf  of  the appellant unsustainable. Points 5 and 6      These points  may be  dealt with  together as they have got some  inter-connection. It could not be substantiated on behalf of  the appellant  that S.  N. Hussain had any animus against him  or was  adversely interested against him in the matter. Some  letters with  reference to  the work  of S. N. Hussain at Barmingham with comments of the appellant thereon were placed before us. Mr. Phadke could not substantiate the point with  reference to them. Time and again he laid stress on the  fact that Gottwald made this complaint to Madnani on July 30,  1958 on  being asked  to do  so by  S. N.  Hussain because he  had his  own axe  to grind  against Sarin.  This argument has  been stated merely to be rejected. It was just in the  natural course of events that when S. N. Hussain was finding fault  with Gottwald  for the delay in the execution of the contract the latter became forced by circumstances to blurt out  the truth.  The accusation  against Sarin was too serious to  be  taken  note  of  by  S.  N.  Hussain  alone. Naturally, therefore,  he advised  him to  go and  make this complaint to  the  higher  officer  Madnani.  No  connection between M.  A. Hussain-the  Chairman of  the Board and S. N. Hussain-a Senior  Inspector who  was in  Essen Area  of West Germany immediately  before the  appellant, was established. It is  an argument  of desperation  to suggest  that  M.  A. Hussain was  biased against the appellant to protect or help S. N. Hussain. The charge of being communal levelled against the Chairman by the appellant in his letter dated October 50 5, 1959  written to  the Government  of India  was obviously made with an ulterior motive after conclusion of the enquiry and sensing  that it  had gone  against the appellant. Great stress was  led in court to show M. A. Hussain’s bias on the ground that  at the  earlier stage in the later half of 1958 he  had   formed  his  opinion  against  the  appellant  and recommended and  insisted for the starting of a departmental enquiry against him without any further preliminary enquiry. Mr. Phadke  submitted that  the Government  turned down  the

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proposal of M. A. Hussain and directed a preliminary enquiry to be made by Pandey. We do not appreciate the force of this argument. It would appear from the enquiry report that M. A. Hussain did  not want, as he had no time, to be the Chairman of the Board of Enquiry. Being a Deputy High Commissioner he was too  busy in  other affairs  of the State. But since the matter to  be enquired  into was  against a high official of the Government,  M. A. Hussain was appointed as the Chairman of the  Board. The  appellant never objected to his being on the Board, until after the conclusion of the enquiry. We are dis tressed  to find  that the  appellant was ill-advised to invent at  a late stage a crudse and false story that on the 5th October,  1959  Doraiswamy-a  member  of  the  Board  of Enquiry had  shown the  secret file  to the  appellant which showed the  bias of  M. A.  Hussain as he had dealt with the matter in the latter half of 1958. Although according to the statement in the Writ Petition (vide para 28) he had written his letter  dated October  5, 1959 after the alleged showing of the confidential file by Doraiswamy to him, not a word is to be  found in the said letter to this effect. Such a story was put  forward  in  the  written  explanations  which  the appellant filed  in answer  to  the  punishment  show  cause notices. We reject points 5 and 6 of the appellant. Point no. 7      The enquiry was being conducted in accordance with Rule 1730 of  the Indian Railway Establishment Code, Volume I. In the main  body of  the rule  where a procedure for holding a departmental enquiry has been provided for, there is nothing said in  relation to  the engagement  of a  lawyer.  Certain notes are  appended to  the rule.  They seem  to  have  been appended not  on the basis of the executive instructions but as parts  of the  rule itself. One such note was appended as note 4,  which subsequently  became note 3, on September 25, 1956 by  the President  of India  who had  framed Rule 1730. This note reads as follows:           "In a  departmental enquiry,  the accused  railway      officer may,  if  he  so  desires,  be  accompanied  by      another railway  officer provided  that the  officer so      nominated as  the defence  counsel is  approved by  the      competent authority  to act  as such, and provided also      that  the   person  so   nominated  shall   not  be   a      professional  lawyer.  The  term  ’professional  lawyer      includes those persons who are competent to practice in      a court of law.’ In face  of the  above note,  treating it  as a  part of the rule, the  appellant was  not entitled  to the services of a professional lawyer. Gottwald, 51 as it  appears,  was  a  lawyer  in  name  but  actively  in business. The  services of  a professional  lawyer were  not necessary to cross-examine him. The fact was a simple one as to whether  he had  paid money  to the  tune of about 24,000 D.M. to  the appellant  from time  to time. Even if we treat the note  aforesaid as  one based  merely on  the  executive instructions and  not a  part of  the rule itself, we see no reason to  say that  the authority was obliged not to follow the note  but to  go against  it.  At  the  most  it  had  a discretion in  the  matter.  The  question  is  whether  the discretion was  rightly exercised  or was  it  exercised  so arbitrarily as  to lead to the conclusion that principles of natural  justice  were  violated  when  the  services  of  a professional  lawyer   were  not   made  available   to  the appellant. We  give the answers against the appellant. Great reliance was  placed for the appellant on a decision of this Court  in   C.  L.  Subramaniam  v.  Collector  of  Customs,

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Cochin(1). In  this case the argument that, rule or no rule, the  services  of  a  professional  lawyer  should  be  made available at  a departmental  enquiry when asked for was not accepted.  What   was  held   in  that  case  was  that  the disciplinary authority  brushed aside  the  request  of  the appellant before  the  Surpreme  Court  on  a  wrong  ground completely ignoring  the circumstances  which were relevant. It was, therefore, said at page 490:           "Therefore  that   authority  clearly   failed  to      exercise the  power conferred  on it under the rule. It      is  not  unlikely  that  the  Disciplinary  Authority’s      refusal to  permit the  appellant  to  engage  a  legal      practitioner in the circumstances mentioned earlier had      caused serious  prejudice  to  the  appellant  and  had      amounted to  a  denial  of  reasonable  opportunity  to      defend himself."      In Tara  Singh etc.  etc. v.  State  of  Rajasthan  and Ors.(2) the  importance which  is to be attached to the note appended  the  rule  has  been  emphasized  by  Ray,  C.  J. delivering the  judgment on  behalf of the Division Bench of this Court  to which one of us (Krishna Iyer, J) is a party, in these terms:           "The notes  are  promulgated  with  the  rules  in      exercise of  legislative  power.  The  notes  are  made      contemporaneously with  the rules.  The function of the      notes  is   to  provide   procedure  and   to   control      discretion. The  real purpose of the notes is that when      rules are silent the notes will fill up gaps."      The appellant  was not entitled as a matter of right to have the  services of any railway officer stationed in India to assist  him in  the conduct  of his defence. He wanted an officer from  India  especially  Shri  Bhalla.  It  was  not possible to  make available  the services of an officer from India. The appellant was given a wide field of choice either to choose any railway official stationed in London or in the continent  or  some  other  personnel  of  the  Indian  High Commission in  London.  The  accusations  made  against  the appellant were not 52 such that required any expert or special skill. The question was a simple one whether he had taken money from Gottwald in discharge of his official duties. Having appreciated all the facts and  circumstances of  the case  we have  come to  the conclusion that no principle of natural justice was violated in not  making available  to the  appellant the  services of Shri Bhalla  or any other railway officer stationed in India for the conduct of his defence.      In the entire background of this case we find a passage occuring at page 803 in the Judgment of Lord Denning, Master of the  Rolls in the case of R v. Secretary of State for the Home Department  ex parte  Mughal(1) quite  apposite  to  be quoted. The passage runs thus:           "The  rules   of  natural   justice  must  not  be      stretched too  far. Only  too often the people who have      done  wrong  seek  to  invoke  ’the  rules  of  natural      justice’ so as to avoid the consequences."      In the  result we  find no  merit in  this  appeal  and dismiss it with costs. V.P.S.                                     Appeal dismissed. 53