Vaidya, J.:— In this petition weave concerned with the validity of compulsory retirement of the petitioner ordered in departmental proceedings, which commenced in the year 1964. The relevant facts may be briefly stated as follows:—

2. The petitioner joined the Police Force as a constable on April 30, 1939. While serving as a constable, he passed the Matriculation examination in the year 1944. In 1946, he was appointed as Head Constable Writer. On passing the departmental examination, he was confirmed in that post in the year 1949. He was promoted as a Sub-inspector of Police in the year 1949. In 1950, he was reverted to the rank of Head Constable Writer on general reversion of 150 posts. The petitioner belonged to a Scheduled Caste. The petitioner was again appointed to the post of Sub Inspector of Police on January 1, 1956, after he passed several tests. According to the petitioner, the petitioner worked enthusiastically, intelligently and efficiently to have good entries and reward to his credit, since his appointment as sub-Inspector of Police from January 1, 1956, with the hope of early confirmation.

2. However, he was shocked to receive on January 3, 1964, from the Inspector under whom he was working a memorandum alleging that he had committed 9 breaches of rules in respect of R.P.S Worli and making 6 charges in respect of Northern Preventive Sector, Ghatkopar, which called upon the petitioner to explain these charges. He was unable to follow these charges except in respect of 4 counts for which he gave his explanation. He was, however, suspended on March 17, 1964. On July 11, 1964, he received a notice of departmental inquiry at the bands of V.B Bhagwat, then Assistant Commissioner of Polios ‘X’ Division. According to the petitioner, the order of suspension was illegal inasmuch as Section 4 of the Bombay Police (Punishment and Appeal) Rules, 1956, requires a preliminary enquiry to be conducted before an order of suspension under Rule 3(???) was imposed in the petitioner; the charges levelled against him were all frivolous, baseless and contrary to facts? and the Officers who did not like the petitioner, as he belonged to the Scheduled Caste, to be confirmed in the post of Sub-Inspector of Police, had concocted entries and other documents to level false charges against him. Thus, though the petitioner was present, entries were made showing that he was absent. Though be was always ready and willing to perform duties, his duties, were never communicated to him and yet the petitioner was held responsible for not perforating the duties when he was never asked to perform the same. The petitioner was given duty when he was off duty. Though, messages were not received by the petitioner, entries were made without the signature of the petitioner in certain Order Book showing that he had received messages. According to the petitioner, Inspector Haldipur, and S.G.S.I Khot had prepared false grounds to make several charges against the petitioner, which were later incorporated as charges Nos. 1 to 9 in the charge-sheet issued by V.B Bhagwat. One S.O.S.I Shanbhag also prepared false grounds to level charges Nos. 10 to 19 against the petitioner.

3. The petitioner further submitted that the list of witnesses Mentioned in the Notice of Inquiry, which is annexed to the petition as Ex. ‘B’ mentioned only five witnesses, viz., (1) Police Inspector B.A Haldipur, (2) Police Inspector M.O Anand, (3) S.G.S.I Khot, (4) C. No. 2505.X, Tukaram Gangaram Nigade and (3) P.C 11208.X, Kashiram D. Bhande. It did not contain the names of 3 more witnesses vie. 8.1 Umbarje, S.I Jogindernath Janakinath and Police Constable Gawade. The 3 witnesses were examined suddenly on instructions from the Inquiry Officer without giving proper opportunity or notice to the petitioner. The petitioner submits that these additional witnesses gave false evidence to please their superiors. The petitioner further contends that the charge-sheet given to him on 29-6-1961, was based more or less on the allegations made by accusing Officers, P.I Haldipur, S.G.S.I Khot and S.G.S.I Shanbhag; and the Inquiry Officer Bhagwat did not care to find out whether there was any legal material on the basis of which he could frame as many as is chargee against the petitioner.

4. A copy of the charge-sheet is annexed to the petition at Ex. “C” and contained the following 15 counts:

“1. On 23-12-1963 were found absent from Station House duty from 13-13 hours to 23-30 hours.

2. On 1-1-1964 failed to perform patrol duty from 17-00 hours to 22-00 hours.

3. On 2-1-1964 failed to turn up for the All's well of P.I.R.P.S Worli and the D.C.P Prohibition.

4. On 3-1-1964 failed to attend the weekly parade and the All's well of P.I.S.P.S Worli.

5. On 8-1-1964 though asked by P.I.R.P.S Worli to wait at R.P.S Worli and to contact S.G.S.I Khot in connection with your explanation for the default committed by you, you failed to wait at the above sector and to contact S.G.S.I Khot and thereby disobeyed the orders of the P.I

6. On 9-1-1964 failed to turn up for the Stand to duty from 8-30 hours to 13-00 hours and were found absent from your quarters during the above period.

7. On 10-1-1964 remained absent from the weekly parade.

8. On 12-1-1964 remained absent for Stand to duty from 18 hours to 21 hours.

9. Failed to perform Station House duty from 8-00 a.m to 8-00 a.m on 13-1-1964 and 14-1-1964.

10. On 24-1-1964 failed to perform Station House duty and further disobeyed the order of P.I.N.P.S Ghatkopar by failing to see him at 6 p.m that day though directed to do so.

11. On 2-2-1964 failed to perform Station House Duty from 9-00 a.m and were found absent from your quarters when required for bundobast at V.P Koad.

12. On 6-2-1964 failed to turn up at 9-00 a.m at N.P.S Ghatkopar to take over the case pipers from P.S.I Dhanavade though the message to that effect was given to you.

13. On 3-2-1964 failed to attend the 27th Court, Mukund for submitting remand application.

14. On 12-2-1964 failed to turn up for the morning and evening prohibition raids.

15. On 21-2-1964 at about 17-30 hours though in receipt of information about the sale of liquor at Kerol, did not go to the said place to work out the said information and left the false entry that you had left for the said place.”

5. According to the petitioner, all these charges were false, frivolous and were based on concocted evidence he also contended that the charge-sheet was illegal as the Inquiry Officer did not follow the procedure prescribed under Rule 4 of the Bombay Police (Punishments and Appeals) Rules, 1956.

6. When the inquiry before Bhagwat commenced, the petitioner applied for legal and under clause 12 of Rule 55 of the Bombay Civil Services Rules. A copy of that application is annexed to the petition at Ex. “D”. The application dated July 11, 1964, in so far as it is material runs as follows:

“I have to submit that in my particular case, I have been served with several charges. As these charges have not been dealt with by the officer one by one at the time of alleged defaults, every default ought to have served with a memo at that particular time so that the evidence would have been fresh and available. All these charges are constitutive deterrent defaults at different times and therefore made the whole enquiry complicated and also made very difficult. I am being embarrassed and, therefore, as enquiry is messed question of law and fact. I therefore, submit that 1 may please be allowed to have legal and under clause 12 of Rule 55 of the Bombay Civil services Conduct, Discipline and Appeal Rules.”

7. The Inquiry Officer rejected the request of the petitioner on that very day, stating as follows:—

“With reference to your another application of date on the subject: want of legal aid, I will inform you that the charges served on you are clear and you have given in writing to say that you have understood the charges. There is no complication in Che charges as alleged by you under the rules framed for holding Departmental enquiry you are not entitled to the services of a friend or other legal aid.”

8. Besides, the petitioner raised several other objections. On July 22, 1964, he objected to the method of supplying of copies of evidence to the petitioner. On August 5, 1964, he requested the Inquiry Officer to take charge of certain documents for enabling the petitioner to submit his defence. The Inquiry Officer refused to do so. The petitioner objected, as several questions put by the petitioner were not being taken and the answers were not being recorded by the Inquiry Officer.

9. These letters of objections are annexed to the petition as Ex. “F” collectivity. Ia his letter dated July 22, 1964, the petitioner informed the Inquiry Officer that he had come to know from one of the persons against whom departmental inquiries the held that the evidence is recorded by recording all questions and answers acid copies of the evidence are supplied immediately, but all the questions are not being recorded and copies week not being given to him. In his letter dated August 5, 1964, the petitioner submitted that the Inquiry Officer appears to have taken on record (1) Order books required, (2) Station diaries required, (3) Telephone message books required and (4) Personal diaries of the petitioner; and that it was necessary that certain further documents should be obtained to enable the petitioner to make his defence viz. (1) Both transit registers from both the sectors, (1) Diary entry maintained at Mahim barrier from K.P.S, (3) Diary Entry maintained at Sion barrier from R.P.S and (4) Telephone massage book from V.P Road Police Station from December to February end.

10. When S.G.S 1. Khot was examined and the petitioner was called upon to cross-examine, he pleaded that he was confounded and wanted time to predate for cross-examination and he wanted to someone. This happened on July 15, 1964. The petitioner also objected before the Inquiry Officer that he was not given the copies of the statements made before him by the three witnesses called suddenly though, their names were not mentioned in the list of witnesses furnished to the petitioner. The petitioner submitted that the Inquiry Officer cross-examined the Government witnesses and the defence witnesses, twisted the evidence and he also threatened the witnesses to twist the matter.

11. The petitioner submitted his written reply in respect of several charges on September 26, 1964, denying the charges. On November 5, 1964, the petitioner further requested the Inquiry Officer, after the inquiry was over, to supply him with copies of documents, as he had to prepare his representation with regard to as many as 13 charges he was, however, not supplied with the copies. The petitioner, therefore, submits, that the Inquiry Officer did not consider the objections raised by the petitioner and Piane the inquiry with a bias against the petitioner. He has alleged that the Inquiry Officer was not accessible to him. He was partial and prejudiced against him and hence he did not follow the procedure pres cubed by law forgiving a reasonable opportunity to the petitioner for meeting the changes made against him. In these circumstances, it is submitted by him that the inquiry held against hint was materially vitiated as the principles of natural justice were not followed.

12. Before the inquiry ended, however, the Inquiry Officer reported sick and proceeded on one year's sick leave. The inquiry was then entrusted to his successor, William E.D Souza, who according to the petitioner, was a friend of Police inspector Haldipur as they had worked together in the Anti Corruption Branch he alleges that William D'Souza took charge of the departmental proceedings illegally; and he made a report without taking into consideration the evidence adduced by the petitioner and the cross examination of the witnesses done by the petitioner.

13. The petitioner and his family were put to great difficulties, in the meanwhile, as a result of the proceedings. On May 21, 1966, the petitioner represented to the respondent No. 2 who was then the Commissioner of Police, Greater Bombay, to consider sympathetically and he further submitted to the Commissioner:

“My suspension since April 30, 1964, was based on departmental findings only taking into consideration my caste and non corrupt policy. No memo was given to me at each and every time of the finding faults as per procedure of the department. The Enquiry was also based on the same findings without attending to my legal objection to the enquiries. Nothing was heard from the above referred points and nothing has been done so far after closing the enquiry on 30-9-1964 Such things are never done in the Greater Bombay Police Force.”

14. He, therefore, requested the respondent No. 2 to take interest in the matter and dispose of the inquiry at the earliest.

15. On June 1, 1966, the Commissioner of Police, Greater Bombay, respondent No. 2, issued a show cause notice 10 the petitioner informing the petitioner that he proposed to pass an order of compulsory retirement by way of punishment. On June 15, 1966, the petitioner gave a detailed reply denying all the charges and inter alia reiterating his objections to the manner in which the inquiry was held by Bhagwat and completed by William D'Souza. The Commissioner, however, found the petitioner guilty of all the counts of the charge-sheet except second paid of count No. 11 and ordered his compulsory retirement treating the period of his suspension as such.

16. The petitioner carried an appeal to the Government against the said order of the Commissioner dated July 1, 1966, in which he reiterated his aforesaid objections to the inquiry held against him, end con;ended that the findings recorded against him are unjustified, improper and illegal and further that no reasonable opportunity was given to the petitioner at the inquiry inasmuch as he was denied legal assistance and also refused Copley of several relevant documents. Ex. “T” is the copy of the appeal memo filed by the petitioner, which contained his several objections to the manner in which the inquiry was held and the findings were recorded by the Assistant Commissioners Bhagwat and William D'Souza, respectively.

17. On March 13, 1967, respondent No. 1 the Government of Maharashtra set aside the order passed by the respondent No. 2 by its order dated March 13, 1967, which in so far as it is material runs as follows:

“ORDER: On scrutiny of the departmental proceedings held against Shri R.B Gaikwad, it is observed that by an endorsement No. O.D 12936, dated the 22nd June, 1964, of the Deputy Commissioner of Police, Prohibition, Bombay, Shri V.B Bhagwat, Superintendent of Police “X” Division, Bombay was appointed an enquiry officer to hold the departments enquiry against int Shri R.B Gaikwad and that Sbri Bhagwat as ducted the enquiry that the stage of closing of evidence Later on, on account of his absence on leave his successor Shri W.E D'Souza, Assistant Commissioner of Police was therefore not competent to record only the summing up in this case, it was apparently Dot intended also that a de novo enquiry be started. The departmental proceedings held against Shri Gaik wad are therefore vitiated from the stage reached by Shri Bhagwat. The Government of Maharashtra, in exercise of powers vested to it under the Rule 18 of Bombay Police (Punishments and Appeals) Rules, 1956, is, therefore, pleased to set aside the order dated the 1st July, 1966, passed by the Commissioner of Police, Greater Bombay, against Shri R.B Gaikwad compulsory retiring him from service.

The Government is further pleased to direct that Shri Gaikwad should be re instated in service from the date he reports for duty and should be simultaneously placed under suspension. The departmental proceedings should then be resumed against him by Shri V.B Bhagwat irrespective of his present posting, from the stage at which he had left the proceedings.

Orders regarding the treatment of the period of the suspension and absence from duty of Shri R.B Gaikwad from the date of his suspension to the date of his compulsory retirement and from the date of compulsory retirement to the date of his reinstatement to service will be issued set irately.”

18. Os receipt of this order, the petitioner made representations to the Home Minister and Chief Minister, making allegations, inter alia, against Bhagwat and alleging that Bhagwat was not a proper person to hold an inquiry in view of the manner in which he had conducted the previous inquiry. He also prayed for reinstatement and for the end of the inquiry. He was, however, informed by the Government by its letter dated June 28, 1967, with reference to his application dated March 20, 1967, addressed to the Chief Minister, that the Government did not desire to interfere in the matter unless the departmental enquiry against him was completed and that he should therefore report for duty immediately at the place of his posting. The petitioner, therefore, reported for duty on July 7, 1967, on being asked by S.G.S.I Shaikh of L.A Ill Branch, Worli.

19. Thereafter, the inquiry was once again taken up by Bhagwat. The petitioner objected and prayed for de novo proceeding. The Government refused to interfere in the matter, Bhagwat recorded his findings and made a report without making further inquiry or taking additional evidence, on the basis of the evidence recorded in the first inquiry. According to the petitioner, the findings recorded by Bhagwat were all biased and one sided, ignoring all the material, which was in favour of the petitioner and the absence of very material record and entries which ought to have been produced if the charges were true. The Inquiry Officer recommended the removal of the petitioner. The petitioner submitted that the attitude of the Inquiry Officer even at the second stage of the inquiry before him was unfair.

20. He has annexed to the petition some of the correspondence at Ex. “V”, one of which clearly shows that the petitioner did protest as hard as he could, being an inferior Police Officer, to the Inquiry Officer who was then an Assistant Commissioner of Police. In his letter dated August 21, 1967, which is one of the letters annexed to the petition as Ex. “V” Collectively, the petitioner stated how the Inquiry Officer directed the petitioner, instead of supplying copies of the relevant documents, to go to the respective sectors and the police stations to have the documents and produce the same before him and prayed:—

“I, therefore, request before Your Honour to be kind enough to obtain the copies of documents in duplicate with the relevant documents from the Inspector concerned to serve the purpose of the Departmental Inquiry”.

21. Earlier on August 11, 1967 also, the had made similar request. It is not disputed that no copies of documents asked for by the petitioner were ever supplied to the petitioner.

22. The petitioner further alleges in the petition that on receipt of the findings of the Inquiry Officer and the Deputy Commission? of Police, the respondent No. 3 who was then the Commissioner of Police, issued a show-cause notice on June 3, 1968 calling upon the petitioner to show-cause why he should not be punished with removal from service. The petitioner stated that the said show-cause notice is illegal as the respondent No. 3 ignored the objections of the petitioner and accepted the findings recorded by the Deputy Commissioner of Police, before giving an opportunity to the petitioner to show-cause. In para 22 of the petition, the petitioner has averred as follows.

“The petitioner says that the respondent No. 3 has already come to the definite conclusion even before the issue of show-cause Notice and the show-cause Notice was a mere farce to comply with the provisions, of law only. It sufficiently indicates that the respondent No. 3 has accepted the findings without any reservation and hence it was illegal and prejudicial. The petitioner says that the bias on the part of the respondent No. 3 offends against the principle of natural justice. The petitioner says that he had given the truth in his reply to the enquiry officer on the strength of documentary evidence already on record but the respondent No. 3 did not go through the reply of the petitioner nor through the record of evidence in support to the petitioner. The petitioner says that the respondent No. 3 did not take into consideration several breaches of law and order in force committed by the accused who had ulterior motive and mala fide intention to punish the petitioner which was prejudicial and illegal”.

23. On receipt of the show-cause notice, the petitioner once again reiterated his contention about the illegalities committed in the course of the inquiry against him and contended:—

“that the record of evidence was intentional record of evidence created by the accuser prejudicially and the enquiry held upon the same was biased enquiry”.

24. The petitioner stated that in spite of all this, the respondent No. 3 without going through the record of evidence and without considering the legal and proper objections raised by the petitioner, passed an order on July 4, 1968, removing the petitioner from the service with effect from the date of order treating the period of suspension as such.

25. The petitioner appealed against the said order contending that the entire inquiry and the proceedings before the Deputy Commissioner and the Commissioner were all contrary to law and in violation of principles of natural justice and that he was found guilty of charges without any proper evidence on the basis of false record without giving a reasonable opportunity to the petitioner to meet various charges leveled against him. The respondent No. 1 passed its order dated October 24, 1968, modifying the order passed by respondent No. 3, by directing that.

“in so far as it relates to the inflicting of the punishment of removal from service on Shri R.B Gaikwad Ex. Police Sub-Inspector of the Greater Bombay Police Force to that of compulsory retirement from service.”

26. The petitioners therefore filed the above petition on April 23, 1969, praying for a writ to quash the order dated July 1, 1966 issued by the respondent No. 2, the order dated July 4, 1968, issued by respondent No. 3 and the order passed by the respondent No. 1 dated October 24, 1968, and for a writ to reinstate the petitioner in service.

27. The respondents resisted the petition relying on three affidavits-in reply of (1) the Under-Secretary to the Government of Maharashtra, (2) the respondent No. 3 and (3) V.B Bhagwat, who retired from Police service before he filed his affidavit Strong reliance was placed by the respondents on the affidavit-in-reply of Bhagwat. In that affidavit. Bhagwat stated that he had no bias against the petitioner and that he denied legal assistance to the petitioner, is the petitioner had given him in pricing that he had understood the chaiges. He also submitted that he had given fair opportunity to the petitioner to cross-examine all the witnesses he denied that the copies of the statements of three witnesses, who wite not included in the original list of witnesses supplied to the petitioner, were not supplied to the petitioner he has also stated that the said three witnesses were examined, cross-examined and further cross-examined on July 22, 1964 and July 23, 1964, and the petitioner was supplied with copies thereof on the same day on which the said statements were recorded and the petitioner had in fact, acknowledged the receipt of the copies of statements by himself he has stated that the petitioner did not attend any of the hearts gs fixed in October 1964 and November 1964; and he did not even attend the concerned Sectors and Police Stations to have inspection of the documents, although he had instructions for such an inspection at the time of the second stage of the inquiry on August 14, 1967, he stated, instructions were issued to the various police stations and Sectors to permit the petitioner to take copies of the relevant documents from the concerned registers and the petitioner was also directed to call at the Police Station? and Sectors before August 21, 1967; but the petitioner did not call at the said ??? and Police Stations. In these circumstances, it is submitted by him that the grievance of the petitioner that he was refused copies was neither correct nor justified.

28. The respondent No. 3 in his affidavit-in-reply stated that he had applied his mind to all the facts of the case in the light of the objections made by the petitioner and arrived at the conclusion that the petitioner should be removed. He has also denied the allegation of prejudice and bias made against the Officers. It is not necessary to refer to the affidavit-in-reply of the Under Secretary, who has merely denied the allegations of the petitioner that the order is illegal or the inquiry was improper and in violation of the principles of natural juauce.

29. At the hearing of this petition Mr. Pungliya, learned Counsel for the petitioner, urged 6 grounds in support of the petition, (1). That be order of compulsory retirement is illegal because Rule 3 (i-a) of Bombay Police (Punishment and Appeals) Rules, 156 is ultra vires Section 25 of the Bombay Police Act; (2) That the refusal to permit the petitioner to is assisted by lawyer or a friend was contrary to principles of natural justice under Article 311(2) lead wish rule 55 of the Bombay Civil Services, Conduct, Discipline and Appeal Rules and was bevel on perverse exercise of discretion under Rule 12 in Appendix II of the Bombay Civil services, Conduct, Discipline and Appeal Rules; (3). That there was also contravention of Article 311(2) and violation of principles of natural justice inasmuch as the Inquiry Officer refused copies of relevant documents and refused its proper and fair inspection by directing the petitioner to go and take inspection at the various Police Stations, while he was under suspension and by calling upon the petitioner to cross-examine three witnesses, outside the ??? of witnesses furnished to him; (4) That the inquiry was also vitiated on account of examination of the said three witnesses outside the list of witnesses furnished to the petitioner without ever giving to the petitioner the statements of the said witnesses for ??? the cross-examination of the paid witnesses; (5) That the respondent. No. 3 did not apply his mind to the record of the inquiry and the contentions raised by the petitioner before passing his ??? order dated July 4, 1968; (6). That all the 15 charges leveled against the petitioner Were frivolous, false and fabricated and no reasonable person could have come to the finding which the respondent No. 3 corded on the basis of the materials before respondent No. 3 or respondent No. 1.

30. Turning to the first contention, Mr. Pungliya urged that under Section 25 of the Bombay Police Act, the only punishment ts which are envisaged in respect of the members of the subordinate ranks of the Police Force, departmental are suspension, reduction, dismissal, or removal and fine of an amount not exceeding one month's pay in respect of any breach of discipline, misconduct in the discharge of his duties which do not require his suspension or dismissal. He, therefore, submitted shat as the charges leveled against the petitioner were all matters relating to breach of discipline or misconduct, the petitioner could not be subjected to the punishment of compulsory retirement. He argued that Rule 3 of the Bombay Police (Punishments and Appeals Rule, 1956, which included amongst punishments, compulsory retirement, was ultra vires Section 25. In our opinion, this argument is wholly misconceived. The Bombay Police (Punishments and Appeals) Rule, 1956 are framed under Section 25(2)(c) read with Section 5(b) of the Bombay Police Act, 151. The lanes section gives wide powers to the State Government to determine the conditions of service of the Police Force Rule 3 cannot be, there fore, assailed as ultra vires Section 25.

31. The order of the Government reducing the punishment from removal of petitioner to compulsory retirement of the petitioner is an order passed under Rule 18 of the said Rules as the compulsory retirement is undoubtedly a reduction in the punishment inflicted upon the petitioner by she order of the Commissioner respondent No. 3. The Government had power to reduce the sentence in exercise of their appellats powers under Rule 18.

32. further, Rule 3 is made without prejudice to the provisions of any law for the time being in force in addition to the provisions of the Bombay Police Act and the Bombay Police (Punishments and Appeals) Rules, the Police Force is governed by the Bombay Civil Services Conduct, Discipline and Appeal Rules, by virtue of an order issued in exercise of the powers conferred by clause (b) of section 5 in G.O.H.D No. 3200/5-III-D dated July 21, 1954. A Police Officer is also governed by the Bombay Civil Services Conduct, Discipline and Appeal Rules, wherein for imposing the penalty or punishment, the procedure under Rule 33 of the Bombay Civil Services, Conduct, Discipline and Appeal Rules, is followed. Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules, provides for the procedure to be followed before an order of dismissal, removal or reduction can be passed and says that the procedure in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, along with the instructions issued by Government for the guidance of officers in taking proceedings under that Rule, which are contained in Appendix 11 to these rules must be followed. Having regard to these provisions of these rules, which are binding on Government Servants under Article 309 of the Constitution of India, the order of the Government of Maharashtra, compulsorily retiring the petitioner cannot be challenged on the ground that the Government had no power to do so. The first contention of Mr. Pungliya must, therefore, fail.

33. Mr. Pungliya is, however, on solid ground when he urged that the inquiry held against the petitioner was vitiated by denial of fair opportunity to the petitioner inasmuch as the Inquiry Officer tailed to exercise his discretion fairly and properly and as required by anti under instruction No. 12 to Appendix II of the Bombay Civil Services, Conduct, Discipline and Appeal Rules, which runs as follows;

“Ordinarily, pleaders should not be allowed to appear in the inquiry for otherwise the inquiry might be very prolonged. The person charged is also not entitled as of right to ask for being defended by a pleader in such inquiry. But there is no prohibition against allowing pleaders on either side; and it must always be borne in mind that the person charged should have an adequate opportunity of defending himself. If, therefore, the case is very complicated or difficult, or where the person charged is likely to be embarrassed, he might be allowed to have legal aid.”

34. The application made by the petitioner for legal and the orders refusing the same are already referred to above.

35. Mr. Pungliya submitted that having regard to the various objections which the petitioner had raised at the inquiry and the allegations against the Inquiry Officer, particularly after the Government had remanded the matter in view of his contention that the charges were false and based on fabricated entries, it was necessary for the Inquiry Officer to permit the petitioner to be represented by a lawyer or at least a friend from the department. He contended that the petitioner belonged to the Scheduled Carte, he started his career as a Constable and rose to the position of a Sub-Inspector of Police; and he was shocked to receive a notice of Inquiry against him without any basis. Further, he was placed under suspension and was, extremely embarrassed before the Inquiry Officer, who was then a Superintendent of Police and later Assistant Commissioner of Police; and he, therefore, became nervous and confused in conducting his defence before such an Officer, particularly in view of the several objections which he had raised. Having regard to all the facts and circumstances and particularly in view of the fact that the three witnessed were suddenly introduced in the case, adding to the unbearable load on the petitioner, it was absolutely necessary for the Inquiry Officer to exercise his discretion in favour of the petitioner.

36. Mr. Pungliya fairly stated that the petitioner could not claim the right to be represented by a lawyer as a matter of right but submitted that out of reasonable regard to the petitioner's right to fair hearing in the facts and circumstances of the case, it was the duty of the Inquiry Officer to grant the petitioner's request. He argued that it was not every man who has ability to defend himself os his own. The petitioner whose weak English was apparent from various applications which he made to the Inquiry Officer and whose nervousness and confusion was increased by the examination of three additional witnesses and false, documents, according to him, could not, by himself bring out any point in his favour, but it would have been possible if he wail afforded legal assistance. He submitted that having regard to the position of the suspended Sub-Inspector of Police. In which the Petitioner was at the time of the inquiry and the nature of the witnesses examined like the Police Inspector before the Assistant Commissioner of Police, the charges which he had leveled against till these superior officers, the Petitioner was likely to be tongue tied and nervous or confused. In these dream stances, Mr. Pungliya submitted that the petitioner ought to have been permitted the help of someone to assist him, particularly as his entire career, reputation and livelihood were at stake, having regard to these circumstances, Mr. Pungliya submitted that the petitioner had a right to be represented by a lawyer or attest a friend from the department and in the absence of the facility, it must be held that the petitioner was denied adequate opportunity of defending himself as required under instruction No. 12 under Rule 55 of the Bombay Civil services Conduct, Discipline and Appeal Rules and under Article 311(2) of the Constitution of India.

37. Mr. Naik, learned Counsel appearing for the respondents, on the other hand, submitted that the petitioner was clever enough to raise all sorts of objections at the inquiry. He admitted that he had understood the charges. The charges were simple enough to be understood by the petitioner, who had Worked as a Sub-Inspector of Police for nearly 9 years. Even three witnesses, who were examined by the Inquiry Officer, were cross-examined by the petitioner. Mr. Naik, therefore, submitted that this Court should not interfere with the discretion exercised by the Inquiry Officer in the facts and circumstances if the case and in view of the conduct of the petitioner throughout the inquiry in raising all kinds of objections to the inquiry and in making fantastic allegation that he was being prosecuted by the Police Officers, because be belonged to the Scheduled Caste, and be was about to be confirmed, which they did not watt.

38. These contentions of Mr. Naik must be rejected because the very fact that 15 charges were levelled against the petitioner; and the petitioner who was merely an officiating Sub-Inspector had to cross-examine his superior officers with a view to Show that they had fabricated certain entries, before the Assistant Commissioner of Police and had further to face 3 unexpected witnesses at the inquiry and protest in vain from time to time about the manner in which the inquiry was being conducted against him, were sufficient, in our opinion, to any fair, impartial, unbiased and reasonable Inquiry Officer to exercise his discretion in favour of the petitioner to enable him to be represented by a lawyer or a friend under Instruction No. 12 of Rule 55.

39. It is true that the said instruction No. 12 of Rule 55 denies a right to Government Servant to have legal assistance when facing disciplinary proceeding. Moreover, the right to engage a lawyer, as a rule, is denied if disciplinary proceedings. Ordinarily, natural justice does not postulate a right to be represented or assisted by a lawyer, in departmental inquiries. But in particular circumstances, the rules of natural justice may require what the person charged should have professional help if he so desires, e.g where the subject-matter is technical (as where the person charged challenges the opinion of a medical board) or where he has substantial allegation of bias against the inquiring officer, or where the evidence is voluminous; for where the prosecution examines a hand writing expert, or the charge is Complicated, or involves a question of law, which it is not possible for a person of low educational attainments like the petitioner to comprehend. (See Basu's Commentary on the Constitution of India, Volume Five, p. 1239).

40. The inquiry must be always fair if it does not violate principles of atrial justice. The right to appear by counsel or agent may not be absolute, but it is obvious that if a party is to enitled to show cause and has a right to cross-examine witnesses, such a right would be illusory in all but tbs simplest case if it is-required to fee exercised by laypersons. Again if the case to be met requires a knowledge of law, it is equally obvious that a lay person cannot ordinarily be expected to meet such a case. This is resognised in courts of law by the appointment of counsel as amicus curiae where parties are unrepresented, and by the assignment of counsel to persons suing or sued in forma pauperis, or to undefended persons is criminal cases. It is also recognised in the rules, regulating departmental inquiries against Government servants, for such Rules provide that is complicated matters, counsel may be allowed to appear for; the “defaulter”.

41. Seervai in his commentary on Constitutional Law of India has observed:

“On the question of principle it is submitted that unless there are considerations of public policy overs ding the claims, of natural justice in any particular class of matters the assistance of counsel or agent is necessary if a person is to have a fair opportunity to meet the case against him.”

42. Professor S.A De Smith, in his latest book “Constitutional and Administrative Law”, at p. 567 has offered the following remarks about natural justice:—

“The rules of natural justice are often described as ‘fair play in action’. During the last few years the Courts have veered away from conceptual reasoning end strict textual analysis, and have come to place heavy emphasis on the duty of administrators to att fairly. Since ideas of fairness will, vary and the range of factual situations in administrative law is very great, the law has become less certain, inviting lawyers to advise their clients to try their luck in the Courts. One must always remember, however, that natural justice imposed no more than a duty to observe minimum standards of procedural ??? it does not require that decisions be right eleven just; or that reasons be given for decisions; or that proceedings be conducted in public; or that a record of the proceedings be maintained and even these minimum standards of fair ‘adjudication’ can be dispensed with or abridged by virtue of a clearly expressed statutory intent”.

43. If any further authorities were necessary lit support of these principles, reference may be made to the decision of the special Bench in Nripendranath v. Chief Secretary, AIR 1961 Cal 1; the decision of a Division Bench in Nityaranjan v. State, AIR 1962 Orissa 78.

44. Applying, the above principles to the facts of the present case, we find that the respondents denied justice to the petitioner by holding that the petitioner was not entitled to legal assistance notwithstanding the complexity of charges leveled against him, number of documents, which according to him were fabricated, various witnesses to whom he was called upon to examine and the fact that he was a suspended officer, who had to face his superiors before the Assistant Commissioner of police, against whom he had made several allegation and to whom he had from time to time protested. The reason stated by she Inquiry Officer in his order dated July 11, 1964, for refusing legal assistance ta the petitioner was wholly unjustified having regard to the facts and circumstances of the case. The petitioner had contended before him, as stated above, that the inquiry was complicated by the fact that all these charges were “constitutive different defaults at different times.” The petitioner pleaded that he was embarrassed. He further stated that the inquiry was “messed question of law and fact.” The Inquiry Officer repelled these protests by merely stating that the charges served on the petitioner were clear, became the petitioner had given in writing that he had understood all the charges. The petitioner protested at the manner in which the endorsements were taken by the Inquiry Officer and also against the nature of the charges and nature of the entries which were made.

45. It was not for the Inquiry Officer to feel that the charges were clear; but he had to consider the position of the petitioner, who was compelled to face the Inquiry against him. He ought to bass allowed the petitioner to have legal and under instruction No. 12, referred to above, having regard to all the facts and circumstances; of the case and the embarrassed situation in which the petitioner was placed; and baying regard to the charges and allegations made by and against the petitioner and protests by the petitioner. We are, therefore, of the opinion that the refusal of the Inquiry Officer to permit the petitioner to be represented by a lawyer or a friend under instruction No. 12 was perverse, unfair and vitiated the entire departmental inquiry held against him. We must further hold that the inquiry was conducted against the petitioner in violation of principles of natural justice, unable and wish out affording a reasonable or adequate opportunity to the petitioner, as required by rule 55 and Article 311(2) of the Constitution of India.

46. In view of this conclusion, it is unnecessary for us to consider the other grounds urged by Mr. Pungliya in more detail regarding facts. We shall, however, briefly indicate our views with regard to the grounds 3 and 4, referred to above and the submissions made by Mr. Naik for the respondents to repeal the same. The three grounds refer to the absence of notice of the three witnesses who were examined by the Inquiry Officer without previous notice to the petitioner. The fourth ground relates to the denial of inspection of various documents which the petitioner asked for both at the first stage of the first inquiry held by Bhagwat and the first and the last stages of the second inquiry held by Bhagwat.

47. The rules relating to examination of witnesses and inspection of documents at the departmental inquiry, at which. It is proposed to punish a Government servant, are contained in Rule 55 of the Bombay Civil services Conduct, Discipline and Appeal Rules and Appendix II to the said Rules which contain the instructions regarding holding of depart mental inquiry. Rule 55 inter alia lays down that no order of dismissal, removal or reduction (other than an order based on facts which have led to his conviction in a criminal court) shall be passed unless the Government servant has been informed in writing of the grounds on which it is proposed to take action, and afforded adequate opportunity of defending himself. The rule also lays down how the charges should be framed and how the delinquent member be informed of the allegation on the basis of the charges framed and how he should be called upon to file a written statement of his defence and to state whether he desired to be heard in person. It lays down that if he so desires, the authority concerned should hold oral inquiry and goes on to say:

“At the inquiry so held oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry, may, for reasons to be recorded in writing, refuse to call any witnesses.

The proceedings shall contain a sufficient record of the evidence and statement of the findings and grounds.”

48. Instruction No. 1 to Appendix II in so far as is material runs as follows;

“Neglect in the due observance of the provisions of the Rule is liable to vitiate the whole proceedings and the ultimate order passed therein. Apart from the fact that these provisions have been deliberately inserted for the protection of members of the services, and apart from the possibility of such an order being successfully challenged in a court of law, the disregard of these provisions provides an officer who has been punished with an almost irresistible case for the reversal in appeal of any order passed against him. It may often happen that though on its merits an order of punishment may be fully justified, it may have to be set aside on account of some technical defect of irregularity committed in the conduct of the inquiry. The following instructions are, therefore, issued for the guidance of officers who may have occasion to hold an inquiry under the above mentioned rule.”

49. These rules were made long before the Constitution, by the then Government of Bombay under Rules 48(2) and 54 of the Civil Services (Classification. Control and Appeal) Rules, 1930, instruction No. 2 reiterates in what circumstances an oral inquiry should be held and how the inquiry should be started and the record of the evidence in the inquiry should be maintained. Instruction No. 3 deals with the grounds on which and the manner in which the charges should be framed. Instruction No. 4 lays down how the charges should be communicated to the delinquent and is relevant and important for the purpose of this case. It runs as follows.

“The charges so framed should be communicated to the person charged together with a statement of the allegations on which each charge is based and ether circumstances which it is proposed to take into consideration in passing orders in the case. The relevant allegations as to facts should be clearly stated, as well as the inferences which they appear to lead to; and any circumstances which appear to support such inferences should also be clearly mentioned. Copies of the relevant documents, if any, should also bi supplied to him. In short, the person charged should be informed to the whole case against him in all its essential features.”

50. Instructions Nos. 5 and 6 deal with the defence of the delinquent and the person's right to defend himself and state that “denial of this right would constitute a serious defect in the inquiry.” Instructions Nos. 7 and deal with the cases is which oral inquiry should be held. Instruction No. 9 is relevant and tuns as follows:

“At the oral inquiry, evidence should be heard as to such of the allegations as are not admitted. All evidence should be recorded in the presence of the inquiry officer and the person charged, and the evidence in support of the allegations against the person charged should be recorded first. He should be allowed to give evidence in person and also to cross-examine the witnesses examined against him. The person charged is also entitled to have called at the inquiry such witnesses as he may wish. The right, is, however, subject to the power of the inquiry officer to refuse to call a witness for special and sufficient reasons which must be recorded by him in writing. Though it is in the discretion of the inquiry officer to decide what would be special and sufficient reasons for refusing to call a particular witness, the discretion must not be exercised capriciously to the prejudice of the person charged. Ordinarily the request to call a witness should not be rejected. When, no never, it appears that the request to call particular person to give evidence is vexatious or is made with a view unnecessarily to delay or prolong the inquiry, such request may be rejected, e.g request is to call an officer who has absolutely no knowledge of the facts relating to any of the charges, and the request is made merely to trouble, or cause inconvenience to, that officer.”

51. Instructions Nos. 10 and 11 further deal with the manner in which evidence should be recorded and copies of such evidence are directed to be riven to the delinquent free of charge, if he so requires. Instruction No. 12 which has been referred to above, relates, to a right of representation by a lawyer or provision of other legal aid, whenever, the case very complicated or difficult and the delinquent is likely to be embarrassed. Intrusion No. 13 lays down that the Inquiry Officer has no power to enforce the attendance of witness and deals with the expenses of witnesses, Instruction No. 14 lays down that after completing the oral inquiry a further opportunity of making a written or oral statement, the Inquiry Officer should record his findings on each charge and the reasons for such findings. Instruction No. 15 ??? that she procedure laid down in Rule 55 may nos be followed, and all other provisions and instructions may be waived in certain eases viz., (1) when the order of punishment, i.e, dismissal etc. is to be based on facts which have led to the conviction of the person charged in a criminal court; (2) when the delinquent is absconding, or when it is for other reasons impracticable to communicate with him; and (3) in exceptional cases, when there is difficulty to observing the exact requirements of the rule. It specifically lays down that the requirements of the rule should, not, however, be waived, unless it can be done without injustice so the person charged.

52. These rules, which were framed before the Constitution, are consistent with the provisions of Article 311(2) which lays down that no person, who is a member of a civil service of, the Union or a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank except after an inquiry to which he has been informed of the charges against him and given.

“a reasonable opportunity of being heard in respect of those charges and where it is proposed to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.”

53. It is unnecessary to refer to other provisions of Article 311 in this case Besides, the Courts have insisted that even where the instructions and rules are silent, the method and manner of inquiry must be reasonable, just and fair. It the inquiry is conducted in violation of principles of natural justice and ordinary reasonable fairness, the Courts will strike down the decisions arrived at the end of such inquiry.

54. It is argued for the petitioner that the petitioner, who had already protested in writing about the denial or refusal of inspection of documents and copies of documents, was totally confused with what he alleged to be false charges leveled by the Superior Officer against him and was further confounded by examination of three witnesses of his department, who be fell, were obliging superior officers by giving fake evidence. It may be that these grievances were not justified, it is true that Rules do not specifically require that the Inquiry Officer should inform the delinquent before any such wines is going to be examined. It is also a fact that the petitioner was allowed to cross-examine these witnesses. It may also be that the fact that previous intimation was not given by the authorities before these witnesses were examined may not by itself vitiate the inquiry proceedings. But having regard to the fact that the defence of the delinquent in this case was that the entries were fabricated by his superior officers with a view to implicate him falsely and the fact that several other relevant documents, which he asked for by his application dated July 11, 1964, were not supplied to him, it must be held that the manner in which the inquiry Officer proceeded to examine these additional witnesses must be characterised as unfair.

55. Mr. Naik's argument, that it cannot be said that any prejudice is caused to the petitioner is irrelevant having regard to all the facts and circumstances of the case and specific rules which say that if the rules are not properly followed or disregarded the inquiry proceedings would be vitiated. It may be that prejudice is one of the factors which should be taken into consideration by the Courts before arriving at the conclusion that the inquiry was unfair and opposed to principles of natural justice, rules and instructions under Rule 55, but it cannot be argued that merely because the petitioner cross-examined the witnesses before the Inquiry Officer, who was his Superior Officer, that the was no prejudice.

56. There is another important aspect of the matter which should be noted. As stated above, the order of removal which was recommended by William D'Souza and accepted by the then Commissioner of Police, respondent No. 2, was set aside by the order of the Government, respondent No. 1 on March 13, 1967. The material contents of this order have already been reproduced above. It is clear from the order that the Government did not indicate in the said order that the findings of the Commissioner of Police were not binding on the Inquiry Officer Bhagwat when he resumed the inquiry as directed by the Government. In the absence of such specific directions, Bhagwat will have to be very brave to ignore the findings recorded by his superior, the Commissioner of Police. In fact, it does appear, that after the order setting aside the removal, Bhagwat did practically, nothing except fix dates and order different police stations to give inspection of the documents to the petitioner.

57. Mr. Naik argued that the petitioner having taken advantage of this order of inspection of certain documents, could not make grievance of the fact that the copies were not supplied or documents were not taken in possession by the Inquiry Officer. As stated above, the petitioner recorded his protests to the manner in which this inspection was given. He even objected to the inquiry being held by Bhagwat, having regard to his previous experience, on August 21, 1967. He made an application setting out in detail his grievances with regard to the refusal to supply the copies of documents and also objected to the manner in which the Petitioner was compelled to give a writing that he had received all the facility from the Inquiry Officer, at the second stage of the inquiry before Bhagwat. It is contended that no evidence was recorded at the second stage; and the petitioner made a grievance with regard to the documents. It cannot be said that the procedure followed by the Inquiry Officer in directing the petitioner, who was a suspended Police Officer to go to different police stations and to take inspection of the documents would be fair. Such an order is not only embarrassing to this petitioner but extremely inconvenient to the police stations in the Greater Bombay and also to the petitioner. 15 charges were leveled against the petitioner covering the period from December 196 to February 21, 1964. It is not explained as to why the Inquiry Officer could not supply the copies of relevant entries in the various relevant registers which covered only such a short period.

58. It is true that in the affidavit-in-reply filed by Bhagwat, it is contended that every opportunity was given to the petitioner, but this only invites criticism levelled by the Privy Council in R. Venkata Rao v. Secretary of State, 64 Ind. App. 55, where Lord Roche said;

“A most definite and salutary rule was disregarded in most essential respects, and the contention which was in effect that what was done was “well enough” is a contention mischievous in tendency and ill-founded in fact.”

59. Where an inquiry is not found to be fair, the facts and circumstances of each case should be considered in the light of the rules, referred to above, and the requirements of law that adequate reasonable opportunity should be given to a delinquent against whom a departmental inquiry is held.

60. We have no desire to go into greater details about the inquiry, because it is still open to the Government to continue or hold a fresh inquiry in accordance with law and we do not wish to prejudice either the Government or the petitioner in any manner by making any observation with regard to the witnesses or the documents or other materials which may be for or against the petitioner.

61. We are, however, satisfied in this case that the inquiry conducted by Bhagwat at the first stage was not fair and the inquiry conducted by him at the second stags was merely a farce, for the reasons stated above. It was manifestly in violation of the principles of natural justice being most unfair is refusing legal and proper opportunity to the petitioner to take inspection and copies of relevant documents.

62. In the result, the petition must be allowed. The order of compulsory retirement passed by the respondent No. 1 on October 24, 1968 and the order of removal of the petitioner passed by the respondent No. 3 on July 4, 1968, are quashed. The respondent No. 1 to pay costs of the petitioner. Rule absolute.

63. Petition allowed.