The Posts and Telegraphs Board, New Delhi vs M.A. Hanumanthan

Balasubrahmanyan, J.—The appellants in this writ appeal are a hierarchy of Disciplinary Authorities functioning in the Postal Department.

They are : The Senior Superintendent of Post Offices, Madurai Dt, the Director of Postal Services, Tamil Nadu Circle and Posts and Telegraphs

Board, New Delhi. Their appeal before us is against a writ of certiorari issued by K.N. Mudaliyar, J. The learned Judge issued the writ in a writ

petition filed by one Hanumanthan. This individual was originally a Postal clerk and later an Assistant Postmaster in Madurai. On 22nd October

1968 he was compulsorily retired from service, as a punishment for misconduct. This order of penalty was made in the first instance by the

Superintendent of Post Offices, Madurai. It was later confirmed by the Director of Postal Services, Madras, in appeal and by the Posts and

Telegraphs Board, Delhi, in review. Hanumanthan moved this Court under Art. 226 of the Constitution for quashing the orders of the three

authorities. By order dated 20th July 1973, the learned Judge set aside all the three orders and directed the reinstatement of Hanumanthan in

service. While doing so, the learned Judge did not go into the merits of the impugned orders. He only examined the procedural aspects of the

inquiry in the disciplinary proceedings. Even on the procedural aspect the only error he found was that the Disciplinary Authority did not grant

Hanumanthan''s request to engage a lawyer to defend him at the inquiry. According to the learned Judge, the denial of representation by counsel

vitiated the entire disciplinary proceedings. Learned counsel for the Disciplinary Authorities contended before us in this appeal that the learned

Judge was in error both in his reasoning and in the operative portion of his decision. But before proceeding to examine the contentions urged, the

background facts of the case may be briefly set out.

Hanumanthan entered service as a clerk in the Post Office, Madurai, in the year 1941. He was subsequently promoted as Assistant post master.

During the period January 1964 to August 1965, he dealt with a number of applications for wireless receiver licences. Under the Post Office

procedure, these applications had to be accompanied by relevant sale memos evidencing the purchase of wireless receiver sets. Some of the

applications which passed through Hanumanthan''s hands during this period and the licences issued by him on the basis of such applications were

the subject of subsequent departmental scrutiny. They related to transistors and radio sets of foreign origin. The relevant applications for licences

and the supporting sale memos filed in the post office made it appear that the receiving sets had been purchased from a local dealer by name

A.R.S. Chari. The sale memos were found signed in the name of this dealer. Investigation, however, revealed that this dealer had never dealt with

the sets in question. The signatures in the sales memos as well as those in the applications for licences were found to be in Hanumanthan''s

handwriting.

On the results of these investigations, the Senior Superintendent of Post Offices, Madurai Dn, Madurai, as the concerned Disciplinary Authority

framed charges of misconduct. The principal charge was that Hanumanthan had issued wireless receiver licences to 41 persons on the basis of

bogus sale memos and application forms prepared and signed by him. It was stated in the charge memos that loss resulted to the Government in so

far as the owners of foreign transistors escaped the full levy of BRL fees and surcharge which they would otherwise have been liable to pay for

unauthorised possession of radio sets. An Officer was specially appointed to hear evidence and conduct the enquiry into the charges. The Inquiry

Officer gave Hanumanthan due notice of the hearings. He however, defaulted to appear before the Inquiry Officer at the initial stages of the

enquiry. He appeared at subsequent hearings. He inspected the records. He cross-examined the department''s witnesses. He marked documents

and also called oral evidence on his side. The enquiry took many days. Several documents were marked as exhibits and a number of persons were

examined as witnesses on both sides.

At the conclusion of the enquiry, the Inquiry Officer drew up his report and submitted it to the Senior Superintendent of Post Offices, Madurai.

It appeared from that report that Hanumanthan had admitted before the Inquiry Officer that he had signed the name of the radio dealer Chari in the

sale memos. The dealer Chari was also examined at the enquiry. In his evidence, he stated that Hanumanthan had taken from him some blank sale

memo forms under some pretext or other. Chari denied he had issued any sale memos himself. He further denied that he had sold any receiver sets

covered by the sales memos. The inquiry report also referred to the evidence of a number of persons who had obtained licences for wireless

receiver sets covered by the sale memos. They stated that they did not fill up or sign the relevant applications. It was found that Hanumanthan

himself had filled in the applications and had signed them in his own hand.

On a consideration of the report of the Inquiry Officer, the Senior Superintendent of Post Offices, Madurai recorded the finding that as many as

41 sale memos which contained Hanumanthan''s hand-writing and signature were bogus sale memos, although in the printed forms belonging to the

radio dealer, Chari. He recorded the further finding that the relevant applications for issue of wireless licences were also in Hanumanthan''s

handwriting and signature. The Disciplinary Authority found that the receiver sets were not sold on the dates which the sale memos bore, nor were

they sold by Chari. It was further found that the licence holders did not have any dealings with Chari. Nor were they in a position to produce any

evidence whatever to show how they had obtained possession of the receiver sets. Some of the names appearing in the applications for licence

were fictitious names. No such persons were found available in the addresses mentioned in the applications.

On the basis of the above findings, the Senior Superintendent of Post Offices, Madurai, held that Hanumanthan was not a fit person to be

retained in service. Another opportunity was then given to Hanumanthan to show cause why he should not be removed from service by way of

penalty for the acts of misconduct found against him. After considering his reply, the Senior Superintendent of Post Offices, Madurai, ultimately

passed the impugned order dated 22nd October 1968 compulsorily retiring him from service, as a punishment for misconduct. Against this order

of penalty, Hanumanthan appealed to the Director of Postal Services, Madras, but that appeal failed. Thereupon, he filed a petition for review

before the Posts and Telegraphs Board. That also was rejected.

As already indicated, Hanumanthan''s main grievance against the disciplinary proceedings, both before the departmental authorities and before

the learned Judge in the writ petition was that he was not permitted to engage a lawyer to defend him. At this stage, it must be mentioned that so

far as the department was concerned, its case was presented before the Inquiry Officer by an Inspector of the Special Police Establishment

specially appointed in that behalf. It was on coming to know of this appointment of the Presenting Officer for the department, that Hanumanthan

made his request for engaging a lawyer to represent him at the inquiry. He made his request in writing to the Superintendent of Post Offices,

Madurai, who was the Disciplinary Authority. The justification for his request was subsequently elaborated in writing before the Director of Postal

Services, Madras in the manner following--

Rule 14(5) (c) states that a Government servant or a legal practitioner may be appointed as a presenting officer. I admit that the Investigating

Officer of S.P.E. is a Government servant, but an Inspector of the S.P.E. cannot be merely stated as a Government servant. He is a quasi-judicial

official, having the powers of a legal practitioner as he presents and prosecutes himself in a judicial court, well versed in Crl. P.C. and I.P.C.,

having the status of a Public Prosecutor. I, therefore, request permission to take assistance of a legal practitioner on my side.

The request for his representation by counsel as put forward by Hanumanthan, was rejected after consideration. The Director of Postal Services,

Madras, did not accept the contention that an Inspector of the Special Police Establishment could be held to be a legal practitioner for the purpose

of the relevant rule relied on by Hanumanthan. In appeal, the Director of Postal Services, Madras, dealt with this question as under--

In respect of the contention of the appellant that he should have been permitted to engage a legal practitioner to present the case on his behalf

before the Inquiry Authority, I feel that it carries some weight. An Inspector of Police usually has a knowledge of law and legal procedure and I

feel that the Disciplinary Authority could have exercised the discretion vested in him under R.14 (8) to allow the appellant to engage a legal

practitioner to submit his case before the Inquiry Officer, particularly as the number of witness and documents was quite large. However, as a

matter of discretion, this action cannot be questioned and the Disciplinary Authority acted within its competence in refusing to accede to the

request of the appellant on the ground that an ''Inspector of Police'' is also a Government servant.

The subsequent order passed by the Posts and Telegraphs Board merely confirmed the decision of the Director of Postal Services, Madras,

when it summarily rejected Hanumanthan''s petition for review.

In the writ petition filed in this court for quashing the orders of the departmental authorities, several grounds of law and fact were taken on behalf

of Hanumanthan. But at the hearing of the writ petition before Mudaliyar, J., the only contention vehemently urged was that the enquiry disciplinary

proceedings were vitiated because he was not given permission to engage a legal practitioner to assist him in his defence. It was contended that the

Disciplinary Authority did not exercise its discretion properly under R. 15 (5) of the Central Civil Services (Classification, Control and Appeal)

Rules 1957, when it rejected Hanumanthan''s request for assistance of defence counsel. The learned Judge accepted this contention as justified. In

his view, this refusal by the Disciplinary Authority vitiated the entire proceedings. He accordingly quashed all the three impugned orders. Having

done so, the learned Judge proceeded to issue a further direction to the effect that fresh enquiry should be held against Hanumanthan but that he

should be restored to the position in the postal services to which he would have been entitled, but for the impugned orders. The learned Judge

sought support for these orders and directions in a decision of the Supreme Court reported in C.L. Subramania v. Collector of Customs, Cochin

AIR 1972 S.C. 2179.

In the appeal before us, it is contended on behalf of the Disciplinary Authority and the other departmental authorities that there was no

irregularity in the inquiry and that the refusal to allow Hanumanthan to have the services of a legal practitioner, viewed in the circumstances of the

case, was in proper exercise of the discretion vested by the relevant rules in the Disciplinary Authority. It was further contended that, in any view of

the matter, the learned Judge''s further direction that Hanumanthan must be re-instated without any fresh inquiry was not a proper consequential

order that the learned Judge should have passed in the writ petition.

We see considerable force in both the contention. On the first question the relevant rule which governs the subject of representation by counsel

in misconduct proceedings against Central Government servants bears examination. The operative Rule, at the material times, was R.14 (8) of the

Central Civil Services (Classification, Control and Appeal) Rules 1965. The Rule runs as follows--

The Government servant may take the assistance of any other government servant to present his case 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.

The Rule lays down the circumstances in which a Government servant facing an inquiry can have assistance and the type of assistance he can

engage for himself. In all cases before the Disciplinary Authority he will be at liberty to take the assistance of another Government servant, and for

this purpose he need not seek the permission of the Disciplinary Authority. A lawyer can figure in the inquiry in two types of cases. The first is a

case where on behalf of the department a Presenting Officer is engaged and that Presenting Officer is a legal practitioner himself. In such a case,

the Government servant facing the inquiry is entitled, as of right, to engage defence counsel on his side, and no permission need be asked for, in

that regard, from the Disciplinary Authority. But in all other cases, where there is no Presenting Officer or where the Presenting Officer is not

himself a legal practitioner, the Government servant against whom the inquiry is being held is not entitled, as of right, to engage the services of a

legal practitioner to assist him in his defence. The Rule is that he must apply for permission in this behalf to the Disciplinary Authority. To grant or

not to grant such permission is entirely within the discretion of the Disciplinary Authority, but the discretion will have to be exercised by that

authority one way or the other, ""having regard to the circumstances of the case.

We have already mentioned that Hanumanthan had asked for permission to engage a lawyer on his side on the one and only ground that the

Presenting Officer appointed by the Disciplinary Authority must be regarded as a legal practitioner because he was a member of the Special Police

Establishment. But, the ground urged was obviously untenable, because the members of the Special Police Establishment are not legal practitioners

and cannot be so deemed for purposes of Rule 14 (8). For this reason and since no other ground was urged, the Disciplinary Authority saw no

reason for exercising its discretion and grant Hanumanthan''s request for legal assistance. The Director of Postal Services in appeal agreed with the

Disciplinary Authority''s view on the legal position of the Inspector of the Special Police Establishment as a Presenting Officer, and held that his

presence before the Inquiry Officer by itself did not warrant the request for a lawyer on the other side. Nevertheless, the Director of Postal

Services permitted himself the speculation that if he had himself been the Disciplinary Authority in the case, he might probably have exercised his

discretion in favour of Hanumanthan. All the same, he felt that at the stage of appeal it would not be proper for him to substitute his individual

preferences in the place of the discretion exercised by the Disciplinary Authority.

We are satisfied that the stand taken by both the Disciplinary Authority and the Appellate Authority is justified. The Superintendent of Post

Offices, Madurai, as the Disciplinary Authority, acted well within its discretion under Rule 14 (8) when it rejected the request for a defence lawyer,

for, it was invoked by Hanumanthan for a reason which was not tenable under that rule. The Director of Postal Services Rule, Madras, as an

authority hearing the appeal against the order of penalty was right in refusing, at that stage, to reconsider the question of representation and apply

its own subjective standards to examine whether the Disciplinary Authority had rightly exercised its discretion in the circumstances of the case.

That the grant of permission under Rule 14 (8) for appointment of a defence lawyer is purely a matter within the absolute discretion of the

Disciplinary Authority is not questioned before us, nor, as we understood the argument, was it questioned before the learned Judge. A discretion,

in its very nature, has to be exercised according to the considerations that weigh, or ought to weigh with the authority vested with the discretion in

the particular circumstances of the case before it. There might be more than one direction in which a discretion may be exercised on a given set of

facts. Again, on identical situations the discretion may not be exercised in the same way, or to the same effect by different persons occupying the

same seat of authority. All these variations are permissible under the very law relating to the exercise of discretion. It follows, therefore, that

ordinarily, the exercise of discretion by any authority having the requisite power under the law will not be lightly interfered with either in appeal or in

revision or in any other proceedings for review. But this does not mean that a discretion, once exercised, is thereafter proof against review by any

other superior authority. The true position in law is that a discretionary order can be reviewed in exceptional cases such for instance, as one in

which it is found that the order has been made out of sheer caprice and without regard for relevant circumstances. In this kind of case, it may be

said that what has been exercised is no discretion at all, in the proper sense of the expression. Barring these exceptional cases, the exercise of

discretion by any authority cannot be interfered with or undone merely because the authority sitting in review is of the opinion that it would have

exercised the discretion differently, if it had dealt with the matter as a court of first instance.

The proper approach in matters of this kind, generally has been very well set out in a judgment of Viscount Simon Lord Chancellor, in Charles

Osenton and Co. v. Johnston 1942 A.C. 130, 138 as follows:

The law as to the reversal by a court of appeal of an order made by the Judge below in the exercise of his discretion is well established, and

difficulty that arises is due only to the application of well settled principles in an individual case. The appellate tribunal is not at liberty merely to

substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse

the order merely because they would themselves have exercised the original discretion, had it attached to them in a different way. But if the

appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has

been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified.

The same principle was reiterated in a later decision of the House of Lords in Blunt v. Blunt 1943 A.C. 517. In that case, Viscount Simon, Lord

Chancellor, quoted an excerpt from the decision of Swinfen Eady, Master of Rolls, in Holland v. Holland 1918 P. 273. The passage runs under :

The question for consideration by this court is whether his judgment is erroneous, and not whether we should have exercised the discretion in the

same manner as the judge below did. There is no appeal from his discretion to our discretion, and the appellant is not entitled to succeed unless the

judgment is erroneous.

In a recent decision of the English court of Appeal in In re : F a (minor) Wardship Appeal 1976-2 W.L.R. 189 ; while it was held that an appellate

court can interfere with the exercise of discretion of the court to which the discretion has been granted under the statute, yet such interference

cannot be by way of substituting its own discretion, but on a review of the order to find out if it was in accordance with the law or in the proper

exercise of its discretion.

The same tests, in our opinion, would apply when considering the exercise of discretion by Disciplinary Authority under Rule 14(8) of the

Central Civil Services (Classification, Control and Appeal) Rules. The emphasis in the rule must, in our opinion, be placed on the words ''having

regard to the circumstances of the case.'' In our opinion, it is not open to the Appellate or Revisional Authority or a reviewing tribunal or court to

interfere with the discretion properly exercised by the Disciplinary Authority by embarking on a reappraisal of the facts and circumstances taken

note of by the Disciplinary Authority. In this case, the Director of Postal Services, Madras, as the Appellate Authority, rightly refused to be drawn

into such a reappraisal of the facts. We feel that the need for such an approach is all the greater, when the matter was sought to be re-agitated in

the writ petition before the learned Judge. For, while certiorari proceedings or other proceedings for the issue of high prerogative writs are certainly

available to an aggrieved person and he could invoke this court''s supervisory jurisdiction over tribunals and authorities under Art. 226 of the

Constitution, the jurisdiction in such matters is by no means an appellate jurisdiction. The learned Judge, in our opinion, was not, therefore, justified

in quashing the order of the Disciplinary Authority as confirmed by the higher authorities on the one and only ground that it did not exercise its

discretion under Rule 14(8) in favour of Hanumanthan and grant his request for engaging a counsel for his defence in the inquiry into the charges of

misconduct.

The learned Judge has observed in his judgment that Hanumanthan''s demand for assistance of counsel was founded on two grounds--(i) that

the Presenting Officer for the Department himself was a legal practitioner and (ii) that the case was too complicated for Hanumanthan to handle

without the aid of a legal practitioner. We have perused the records of the entire proceedings. We must say that the learned Judge''s understanding

of the case put forward by Hanumanthan before the Disciplinary Authority is not correct. The records show that he put forward only one ground

when asking for permission to engage a counsel of his own, and that was based on his misunderstanding of the forensic position of the Inspector of

the Special Police Establishment as the department''s Presenting Officer. The records do not show that before the Inquiry Officer, Hanumanthan

had sought to show that it would be impossible or even difficult for him to put forward his defence without the aid of a legal practitioner. Nor

would such a plea have been accepted without question. The charges against him were that he had filled up the application forms for wireless

licences and signed them himself and that he had cooked up false sale vouchers in regard to certain foreign radio sets. These charges can, by no

means, be regarded as too complicated for a layman to answer, without legal assistance. It may be recalled in passing that Hanumanthan himself

admitted before the Inquiry Officer that all the applications in question were in his own hand writing. The records further show that, as many as 213

documents were marked on the side of the department and 44 witnesses were examined as against 19 documents filed by Hanumanthan and 25

witnesses examined by him. The sheer bulk of the record seems to have impressed the learned Judge, when he proceeded to interfere with the

discretion of the Disciplinary Authority. There is, however, a patent flaw in the reasoning behind the learned Judge''s interference. When admittedly

as many as 41 applications had been filled up in the respondent''s own handwriting, it is but nature al that the Disciplinary Authority should go

through the trouble of proving all those applications and the supporting vouchers, one by one. The record gathered mass because of the intrinsic

voluminousness of the case and the multiplicity of the several individual acts of Hanumanthan which formed the basis of the charges of misconduct

against him. We are satisfied that there is no warrant for thinking that the charges against Hanumanthan were of such kind that he was handicapped

by not having been given the assistance of counsel to undertake his defence. On the contrary, the course of the inquiry as well as the records of the

proceedings show that the respondent was quite able to take care of himself and of his defence, even in the absence of a lawyer by his side.

The learned Judge observed that Hanumanthan was no match for an officer of the Special Police Establishment, considering that the latter had

special training in matters of this kind. This again, does not seem to afford a proper approach to any review of the disciplinary inquiry. We feel that

the ends of natural justice are not achieved in any proceeding by ensuring that there is an equal talent pitted on either side, assuming that this is ever

possible of achievement. All that the law expects and requires is that the evidence in support of the charges is let in the presence of the charged

officer and he is given an opportunity of testing it by cross-examination and he is further given ample opportunity to meet the case against him by

putting forward his own case without let or hindrance by calling evidence in rebuttal, marking documents, etc. Our study of the records in this case

shows that the Inquiry Officer was more than fair to Hanumanthan and, on occasions the officer even went out of the way to accommodate him.

We are not able to find the slightest indication to show that the scales had been weighed against Hanumanthan merely because the presence of the

Presenting Officer on the department''s side was not nicely balanced by the presence of a lawyer on the other side.

The learned Judge placed reliance on the decision of the Supreme Court in C.L. Subramania v. Collector of Customs, Cochin AIR 1972 SC

2179 for coming to the conclusion that in the instant case, the whole inquiry was vitiated because the Disciplinary Authority refused permission to

Hanumanthan to engage the services of an advocate. The grievance of the aggrieved Government servant in the case before the Supreme Court

was that he was pitted against a trained Prosecutor, and not that the presenting officer was a legal practitioner. As we saw earlier, the ground

urged by Hanumanthan in the present case was different. It must also be pointed out that the Supreme Court struck down the disciplinary

proceedings in the case before it not on the sole ground that there was contravention of Rule 15(5) of the Central Civil Services (Classification,

Control and Appeal) Rules., but even on a broader ground, ''that the appellant had not been afforded a reasonable opportunity to defend himself.''

We would, in any case, regard the decision of the Supreme Court as turning upon its own facts. There is, it is true an observation in the Judgment

of the Supreme Court to the effect that when a trained prosecutor handled the case against the Government servant that might be a good ground to

allow him to engage a legal practitioner to defend him. We do not, however, understand this observation to have laid down a proposition of

universal application that whenever a trained prosecutor is entrusted with the task of presenting a case in a disciplinary matter against any

Government servant charged with misconduct, the Disciplinary Authority is under a legal compulsion to gram permission to the Government

Servant to engage the service of counsel. This cannot have been the ratio intended to be laid down by the Supreme Court considering that the

court was interpreting the words of a rule which did not impose any such iron-clad restrictions on the exercise of discretion. The court''s

observation referred to above must, in our opinion, be understood as having relevance only to the contentions urged before the Supreme Court

based on the particular facts that emerged from the record of the case under appeal.

Having given this case our utmost consideration, we are yet unable to find in what way the Disciplinary Authority had erred in its jurisdiction

when it refused permission to Hanumanthan to engage the services of an advocate to defend him in the disciplinary proceedings. We are satisfied

that not only was the discretion properly exercised, but the respondent could not complain at all that he was not given any reasonable opportunity

to defend himself. We, therefore, find no warrant whatever for the extreme step taken by the learned Judge to quash the disciplinary proceedings in

toto.

No other point has been seriously put forward by the learned counsel for Hanumanthan before us. In any case, as we have earlier observed,

the records disclose ample material to justify the conclusion that the respondent was guilty of the acts of misconduct with which he was charged.

Learned counsel for the authorities of the Postal Department made a grievance of the far-reaching nature of the learned Judge''s order when he

did not rest content with merely quashing the disciplinary proceedings, but proceeded to give an imperative direction that Hanumanthan must be

taken back in service without any further ado and be given his due place in the department. Normally, the effect of an order of certiorari in such

cases as this would be to put back the parties in the former position, so as to enable a fresh enquiry to be conducted in accordance with the law.

The learned Judge''s further direction in this case would seem to have been inspired by the judgment of the Supreme Court earlier cited in which a

similar order was made. But, as we earlier observed, the case before the Supreme Court was peculiar, and, if the Supreme Court had thought fit to

issue a direction for re-instatement of the officer in that case without a further inquiry, that could not be regarded as a compulsive precedent to be

applied to the very different facts of the present case. Apart from the refusal to permit Hanumanthan to have a counsel of his own at the inquiry,

there was absolutely no error or irregularity in the inquiry which had been pointed out to us from the record. Nor could it be said that there was

any failure of justice. In the circumstances, we are satisfied that there was no warrant for the learned Judge to have given the further direction that

Hanumanthan should be re-instated without further enquiry. It is, however, unnecessary for us to labour this point, since we are setting aside the

learned Judge''s finding that the inquiry by the Disciplinary Authority was vitiated by his refusal to permit a defence counsel in the inquiry. It follows

that the further directions of the learned Judge must fall by the board as a necessary corollary. We, accordingly, allow the appeal, set aside the

order of the learned Judge, and restore the orders of the authorities who are the appellants before us. We, however, do not make any order as to

costs.