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Judgment
This is a petition under Art. 226 of the Constitution. It prays for prohibition commanding the Munsif, Meerut, not to proceed with a suit filed by respondent 2 against the petitioner and for quashing the proceedings.
The petitioners are the officers of Life Insurance Corporation of India. On 6 July 1924 a chargesheet was served on R. C. Anand an assistant in the Stores and Stationery Department of the Divisional Office, Life Insurance Corporation of India at Meerut. Anand was charged with acts of fraud, criminal misappropriation and criminal breach of trust in respect of goods and articles of the Life Insurance Corporation. He was afforded an opportunity of explanation, The inquiring officer commenced the enquiry on 9 February 1965. Sri Krishnadeo Sharma, advocate, Meerut, requested the inquiring officer for permission to appear before him and represent the case of R. C. Anand. The inquiring officer refused permission on the ground that under the rules Anand was not entitled to be represented by an advocate. Sri Krishnadeo Sharma repeated his request but was again refused permission to appear. While the enquiry was proceeding Sri Sharma instituted a suit (No. 1065 of 1966) in the Court of City Munsif, Meerut, against the petitioners for a permanent injunction restraining them interfering with Sri Sharma''s right to represent Anand in the enquiry proceedings. In the plaint it was stated that Anand had engaged Sri Sharma as his legal counsel for representing and pleading for him in the enquiry proceedings. Sri Sharma alleged that he was a practising advocate and was on the common rolls of advocates of the Bar Council of Uttar Pradesh and as such was entitled to practise before any tribunal or person legally authorized to take evidence. The enquiry officer, who was a defendant to the suit, was legally authorized to take evidence and was actually doing so, and so, Sri Sharma was entitled to appear before the inquiring officer. On 8 December 1966,, the learned Munsif issued an ad interim injunction restraining the petitioners from conducting the enquiry without allowing the plaintiffadvocate to represent the charged employee. The petitioners alleged that the suit is not maintainable and the entire proceedings are Without jurisdiction and void. The petitioners'' case is that the respondents have misunderstood the provisions of S. 30 of the Advocates Act and on a true reading thereof Sri Sharma had no cause of action and the learned Munsif had no jurisdiction to entertain the suit or to issue an injunction.
The question at the threshold, therefore, relates to the interpretation of S. 30 of the Advocates Act, 1961. This provision reads:
"30. Subject to the provisions of this Act, every advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the territories to which this Act extends.
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise."
For the respondents reliance is placed upon the second clause of this section. It is urged that the inquiring officer was a tribunal or a person. He was legally authorized to take evidence. For the petitioners it is urged that the Life Insurance Corporation of India or the regulations made thereunder do not authorize the inquiring officer to take evidence. It is contended that before a person can be said to be legally authorized to take evidence he must have been conferred authority by law to summon witnesses and compel production of documents.
It is to be noticed that S. 30 used the word "legally." It is to be distinguished from "lawful." In Words and Phrases (Permanent Edition, Vol. 24, p. 525) it is stated that legal "looks more to the letter, and lawful to the spirit, of the law." "Legal" is more appropriate for conformity to positive rules of law; "lawful" for accord with ethical principles. The legislative intent hence appears to be that there ought to be positive rules of law authorizing the inquiring officer to take evidence.
In the same book at p. 565 the term "legally" is distinguished from "fairly". It is stated that the word "fairly" as used in the statute is interpreted in "good faith" while "legally" is interpreted as referring to the statutes of the State. So the phrase "legally authorized" denotes that the tribunal or person has been authorized by a statue or statutory rules.
The tribunal or person should be authorized to "take evidence." In my opinion the submission for the petitioner, that the phrase "take evidence" denotes a capacity to call for evidence and not merely to record what is adduced by the parties is sound. The officer should have legal authority to summon witnesses and compel production of documents. In Tej Pal Singh v. M. C. Desai and others [1968 I L.L.J. 292], a Division Bench of this Court held that an officer holding an enquiry under rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, is a person legally authorized to take evidence because under S. 4 of the Uttar Pradesh Disciplinary Proceedings (Summoning of Witnesses and Production of Documents) Act, 1953, the inquiring officers have been empowered to summon witnesses and compel production of documents. I am not impressed by the submission made on behalf of the respondents that the fact that an inquiring officer has been duly appointed to hold the enquiry, he should be deemed authorized to call for evidence. In the absence of rules authorizing him to do so, it seems doubtful that the inquiring officer has any inherent right to force any person to appear as a witness before him or compel him to produce documents or even to compel the parties before him to do so.
Under Cl. (b) of S. 49 of the Life Insurance Corporation Act, 1956, the Corporation has been authorized to make regulations to provide for the method of recruitment of employees and agents of the Corporation and the terms and conditions of service of such employees and agents. In the exercise of this power the Corporation has framed Staff Regulations. Under Regn. 39 the disciplinary authority can award any of the seven punishments mentioned in it after communicating to the employee the charges and after giving him "a reasonable opportunity" of defending himself against such charge or charges and of showing cause against the action proposed to be taken against him. There is no express provision authorizing the inquiring officer to summon witnesses and compel production of documents. Under Regn. 39 he has to give a reasonable opportunity of defence and of showing cause, that is to say, he has to comply with the principles of natural justice. The principles of natural justice only cast an obligation on the concerned tribunal to afford an employee an opportunity of explanation and adduce evidence. They do not confer any power on the tribunal to call for evidence or compel its production. The statutory provisions relating to the employees of the Life Insurance Corporation of India do not empower the inquiring officer to compel the production of evidence. It cannot hence be held that the inquiring officer was a tribunal or a person legally authorized to take evidence. Sharma, respondent 2, is not right in his submission that he is as of right entitled to practise before the inquiring officer.
Section 30 of the Advocates Act does not lay down an absolute rule of law. It does not confer on a litigant a right to be represented by an advocate. It presupposes that the litigant is entitled to be represented by an advocate. If otherwise, a person is not free to appoint an agent; S. 30 of the Advocates Act will not authorize him to do so. Section 30 is the successor of and similar to the provisions of S. 14 of the Bar Councils Act, 1926. Interpreting S. 14, Cornish, J., in Rajagopala Ayyangar v. Collector of Salt Revenue (Out Ports), Madras [A.I.R. 1937 Mad. 735] held:
"There is in British India no common law right in a party to be represented by counsel... The advocate''s right of audience since the Bar Councils Act depends on S. 14 of the Act. 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."
Thus a person has no common law right to appoint a counsel as his agent.
Under the India Contract Act, 1872, a person who is sui juris has a right to appoint an agent for any purpose whatsoever but the Supreme Court held that this rule is subject to certain wellknown exceptions as the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligation, R. Subba Rao v. Incometax Commissioner Madras [A.I.R. 1958 S.C. 604].
After reviewing a large number of authorities of the various High Courts, Oak, J., in Tej Pal case [1968 I L.L.J. 292] (vide supra) held that a person cannot claim assistance of a lawyer as a matter of right. He observed that order III, rule 1, Civil Procedure Code, or S. 340, Criminal Procedure Code, do not apply to departmental enquiries. Under the Staff Regulations framed by the Life Insurance Corporation of India, the employee has been given a right of defending himself against the charges and of showing cause against the action proposed to be taken against him. This provision could be said to confer a right which was personal in character to the employee. The employee hence is not free to appoint an agent to exercise this right. He cannot claim a right to appoint an advocates as his agent.
In the case of Brook Bond India (Private), Ltd. v. Subba Raman (S.) and another [1961 II L.L.J. 417 at 418], the Supreme Court reiterated its decision in Kalindi (N.) and others v. Tata Locomotive and Engineering Company, Ltd, Jamshedpur [1960 II L.L.J. 228] where it was held:
"A workman against whom an inquiry is being held by the management, has no right to be represented at such enquiry by a representative of his union, though the employer, in his discretion can and may allow him to be so represented... and it cannot be said that in any enquiry against a workman natural justice demands that he should be represented by a representative of his union."
The question whether on the facts of a particular case the denial of assistance of an advocate will amount to denial of reasonable opportunity of defence or of showing cause is a distinct matter. There was no such allegation in the plaint filed by respondent 2 or in the counter affidavit, filed in the petition. The employee cannot, as a matter of right, claim to be represented by a counsel but the inquiring officer is equally not bound to refuse the employee the assistance of an advocate. As held in Tej Pal Singh case [1968 I L.L.J. 292] (vide supra) the matter is in his discretion.
In the present case, Anand could not claim as a matter of right to the lawyer''s assistance. In that situation S. 30 of the Advocates Act will not apply and an advocate cannot claim as a matter of right to practise in such a case.
Respondent 2 did not have any cause of action for the suit and the learned Munsif had no jurisdiction to entertain it. In the result the petition is allowed, the proceedings in Suit No. 1065 of 1966 are quashed and the City Munsif, Meerut, is prohibited from proceeding with it. The parties shall bear their own costs.