K. Ramaswamy, J.:— The petitioner is assailing the constitutional validity of sub-regulation (8) of Regulation 10 of Visakhapatnam Port Employees (Classification, Control and Appeal) Regulations, 1963 made in exercise of the powers under section 28 of the Major Port Trusts Act, 1963 read with section 124 of the Act as being discriminatory and ultravires the rule-making power.
2. Petitioner No. 2 is a trade union leader represeating the first petitioner-Union of the employees.
3. The contention raised by the learaed counsel for the petitioners is that when there is no prohibition for a presenting; officer to take up any number of cases on behalf of the employer, placing embargo on the trade union leader that he should not appear in more than two cases at a time is discriminatory and it is offending Article 14 of the Constitution of India It is also an arbitrary exercise of power denying the employee of his right to choose a counsel offending Article 21 of the Constitution. I am not inclined to agree ia toto with the contention raised by the petitioner.
4. Sub Regulation (8) of Regulation 10 of Visakhapatnam Port Employees (Classification, Control and Appeal) Regulations, 1968 reads as follows:
“(8) The employee may take the assistance of any other employee to present the case on his behalf, but may not en gage a legal practitioner for the purpose unless the presenting officer app Dinted by the disciplinary authority is a legal practitioner, or, the disciplinary authority having regard to the circumstances of the case, so permits.
NOTE : (1) In the case of an employee who was in Port service prior to the Ist October, 1956 he may, with the consent of the disciplinary authority, take the assistance of an official of a Trade Union recognised by the port.
(2) The employee shall not take the assistance of any other employee who has two pending disciplinary ca???s on hand which he has to ???ive assistance. (Came into effect w.e.f 26.11.1977).
5. A reading of this Regulatio??? would show that an employee has been accorded assistance of another employee to represent his case when he is being proceeded with for alleged misconduct in an enquiry under the regulations. In cases where the presenting officer appointed by the disciplinary authority is a legal practitioner, the employee has as of right is assured to take the assistance of a legal practitioner to defend him. Where the presenting officer is not a legal practitioner, then discretion has been given to the disciplinary authority, having regard to the circumstances of the case, to permit the delinquent employee to take the assistance of alegal practitioner. Of course, it is hedged with discretion. But that discretion is not arbitrary. The disciplinary authority has to consider the facts and circumstance in each case. Every discretionary order is not necessarily arbitrary offending Art. 14. In a given case if discretionary power is not property exercised it is open to assailment. But in Note (2), the employee is prevented to take the assistance of a co-employee who has two pending disciplinary cases on hand. It would appear that Note (2) is with a view to see that a co-employee under the guise of his defending the delinquent officer cannot also assume the role of a regular practitioner and defend as a matter of course. It would appear that the embargo is a salutory one. When the delinquent officer is unable to defend himself except with the assistance of another person acquainted with law and procedure, the choice is left to him to choose either a legal practitioner or a co-employee who is giving knowledge of law and procedure. It is common knowledge that the employee is generally uneducated and not well versed with the procedure and the law in disciplinary matters. Therefore, the employee must go to a co-employee who is having sufficient knowledge and experience in regard to disciplinary matters and he must also have confidence in that person. The denial of right to defend impinges the right to livelihood. Considered from this perspective, the discretionary power given to the authorities under the main part of sub-regulation (8) of Regulation 10 of the Regulations should be circumscribed and should be reasonably exercised depending upon the facts and circumstances in each case. In a case where the co-employee who is having experience i??? conducting the disciplinary cases on behalf of the delinquent officer but has already having two pending disciplinary cases on hand, he authomatically becomes ineligible to defend the delinquent officer. But in such a case there must be another employee who is having acquaintance with the procedure and the law relating to disciplinary matters, if such a person is available, the petitioner has to nominate such co-employee to conduct the case on behalf of the delinquent officer. If he is not available, then the delinquent person shall inform of the same to the disciplinary authority and the disciplinary authroity shall consider the same and permit the delinquent person to engage a legal practitioner to defend the delinquent officer. If such inbuilt safeguard is provided the rule does not become an abuse of power or obnoious to fair procedure offending Art. 21 arbitrary exercise of discretionary power by the disciplinary authority would be quenched.
6. Accordingly, I hold that the Regulation is valid when the procedure indicated above will be followed in conducting the disciplinary case by respondent No. 2.
7. The writ petition is dismissed with the above observation. No costs.
8. Petition dismissed.