P L D 1983 Lahore 206 (PLP)

The petitioners, who are Officers of WASA, Lahore Development Authority, a statutory Corporation, have challenged the refusal on the part of the respondent No. 3, Chairman, Inquiry Committee to permit them to be represented by a counsel, at the inquiry being conducted against them; under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 (hereinafter called the Efficiency and Discipline Rules), as adopted vide regulation 22 of the- Lahore Development Authority, Appointment and Conditions of Service Regulations, 1978. The request was originally made at the start of the inquiry but without any response. A further written request was made on 17th March; 1982 which was also rejected the same day. 2. 1t is contended by the learned counsel that as the petitioners are liable to be dismissed from their service, by the competent authority, on the basis of the evidence recorded and material collected by the Inquiry Officer, and his report based thereon, they are entitled to an adequate opportunity to defend the charges against them. It is further stated that such an opportunity must include the right of representation through a counsel. Reliance is placed on a decision of this court in Aslam Ali Shah's case (1). In that case, the learned Single Judge rendered a learned and lucid judgment holding that an accused employee is entitled to be represented by a counsel in his defence. The Government challenged that order before the Supreme Court, by way of a petition for special leave to appeal. The learned Judges of the Supreme Court did grant the leave but instead of suspending the order of the High Court, deferred the request to be considered on some other date. 1t is, however, admitted that the judgment is operative so far.

3. It is to be noted that the above case pertained to a civil servant who was subject to the statutory disciplinary rules. In the case in hand, the Lahore Development Authority is empowered under section 11 to appoint such officers on such terms and conditions as it deems fit. Under section 45, the authority itself is competent to make regulations as may be necessary to carry out the purpose of the Act. It is under that provision that Efficiency and Disciplinary rules of the Punjab Government were adopted. As the Lahore Development Authority was not required by law to grant any service security to its employees, those regulations will have no statutory force and consequently,- the rule 7-B as adopted will not have the same effect as it would enjoy in the original rules.

4. The, learned Assistant Advocate-General relied on Karachi - Union of Employers and others v. The Industrial Court, Karachi and others (2), where the learned Judges of the Supreme Court denied an Advocate a right to appear in a case, under the Industrial Relations Ordinance. That law contained a bar against such representation and the learned Judges ruled that even if the counsel was made a part of the Union by a device, the prohibition would apply. The above case had, however, been decided at a time when the Bar Council Act was not yet in the field and Article 2 of 1962 Constitution and Article 4 of the 1973 Constitution were not there to guarantee protection of :law to every one.

5. Similarly, in G. Krishnaswami . Ayyar, High Court Vakil (3) and Emperor v. Tawakali (4), relied on by the learned Assistant Advocate-General, the court held that it would permit the respondent, to deny the petitioners the services of a counsel, unless there was a statutory provision entitling the petitioners to do the same. These two cases were also decided in the absence of any provision similar to section 22 of the Bar Council Act. Those judgments, however, do make it clear that if there was a provision entitling a person to be represented by a counsel or there was no specific bar against it in law, the Court would not have permitted the Government to deny the petitioner right to be represented by a counsel. Those cases were also decided before the promulgation of the Indian Constitution. (1) N L R 1980 Service 15.8????? (2) P L D 1961 S C 57 1.3) 85 1 -C 1025????????????????????? (4) 7 1 C 606 ??????????? (5)

6. The learned Judge in giving his views, in the case of Aslam Ali Shah bad also relied on Nripendra Nath Baghu v. Chief Secretary, Government of West Punjab (A I R-.1961 Cal. 1), (a post Constitution case), where it was laid down that if, on particular facts and complexity of a case, assistance of a lawyer is regarded as a part of reasonable opportunity, then denial of such opportunity is violation alike of constitutional protection, under Article 31(2) of the Indian Constitution and the principles of natural justice.

7. In another case cited therein, Muniswamy v. State of Mysore (1), the rule laid down was that the refusal of representation should not cause prejudice or embarrassment. The learned Judges, however, noted the fact that an inarticulate or obtuse Government servant would find himself in as serious a quandary when defending himself against a simple charge supported by inappreciable evidence, involving no intricate legal comundrums, as a person of acuteness and affluence of language would in a proceeding of a greater complexity. They also appreciated the embarrassment that may be caused to the Inquiry Officer and the .hardship to be faced by the employee.

8. Reference was also made to a Division Bench judgment of this court in Habibullah Tarrar v. M. Jamil Ullah Khan (L. P. A. 90 of 1974) to observe that Article 4 of the .Constitution provides to every individual the right to enjoy- the protection of law and to be treated in accordance with law. It was noticed that the vast proportions into which statutes and other C laws now run and the complexities in which they are enveloped, make i impossible for a layman to understand their intricacies and application. The assistance by a person learned in law is, therefore, a sine qua non for enjoying that protection. The learned Judges then observed: "That wherever a person is to be treated in accordance with law he is entitled to the assistance of a counsel unless the very purpose of Article 4 is sought to be' negated. In our view, therefore, it is an unqua!ified right which every citizen of this State possesses and Article 4 makes it inalienable so that it cadnot under any circumstances be taken away from him."

9. Reliance was also placed on section 22 of the Bar Council Act which entitles Advocates to appear before any court or Tribunal. It was opined that the action of the respondent authority in refusing representation by a counsel would defeat that provision. The learned Single Judge also relied on the general principle laid down in Pett v. Greyhound Racing Association 'Ltd. (2), where the Government was directed to permit the petitioner to be represented by a counsel, as the petitioner was likely to incur the loss of his .licence for greyhound racing: I may remark here that the recent judicial views about this aspect in England have not been (1) A I R 1964 Mys. 250 ?????????? (2) (1968) 2 All E R 545 (3) (1971) 1 Ch. 591????? (4) (1975) 1 W L R 1132 consistent. A parusal-of judgments on the point there, would lead us to conclude that a claim, to be defended by a counsel, may succeed only, if it i L shown that the petitioner's case may be prejudiced without it and when the rules purported to exclude the legal representation are valid. Reference be made to Enderby Town Football Club Ltd. v. Football Association Ltd. (3). and Frason v. Mudge (4). On the other hand if it was permitted by law then denial is illegal.

10. It would thus be clear that both in India and Pakistan, the position in the above respect has been that an accused Officer has a right to be represented by a counsel, in view of the constitutional provision, the law and the rule of natural justice. The same facility was allowed under common) law in England. See Judicial Review of Administrative Action by De-Smith, S. A. (3rd Edn. 1973), P.

187. See also (1972) Public Law 278 and R. v. St. Mary Abbots Kensingation Association Committee (1). As discussed above, the recent views in England are in favour of legal representation unless excluded by a valid law or no prejudice will be caused without it. In this country, section 22 of the Bar Council Act has conferred an additional right on a counsel to appear and plead in all courts and Tribunals. Consequently, the view of this court as stated in paras. 2 and 8 above, is raised on a very firm foundation and it would need some very strong material to dislodge or even shake it. .

11. The learned Assistant Advocate-General appearing for the State pleads that the )earned Single Judge, in the case referred to above, has not correctly evaluated the right guaranteed in Article 4 of the Constitution. He concedes that it is the right of every one to be dealt with in accordance with law and only law but the term law as used in Article 4 in the above case would include a rule also. Reference is made to Brig. (Retd.) F. B. All and another v. The State (2), and Federation of Pakistan v. United Sugar Mills Ltd., Karachi (3), in support. It is argued that as rule 7-B of the Efficiency and Discipline Rules would, in the circumstances, exclude the I engagement of a counsel by any of the parties and the petitioners can have neither a grievance nor can they claim such a right in this court.

12. The above contentions of the learned counsel for the parties raise a simple proposition. It is, whether rule 7-B is valid, has the statutory force and if so, whether there is a legal or constitutional provision superseding it? Rule 7-B had been made under section 23 of the Punjab Civil Servants Act, which empowers the Government to frame rules to further the intention and purpose of law. . Section 15 of the Punjab Civil Servants Act lays down that a civil servant shall be liable to such disciplinary action and penalties and in accordance with such procedure as may be prescribed. As said above, the procedure is laid down in the Punjab Civil Servants (Efficiency and Discipline) Rules, 1973. Rule 6(5) and (6) of the Efficiency and Discipline Rules requires that if an authorised Officer decides that it is necessary to hold an inquiry he shall appoint an Inquiry Officer or-frame a charge, communicate it to the accused together with a statement of allegations etc., and ask him to put in his written defence. The Inquiry Officer shall then enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and where any witness is produced, the other party shall be entitled to cross-examine the witness.

13. A perusal of the rules thus shows that an accused Officer has been given a substantial and real right to defend himself. But while rule 7(1) entitles the parties to cross-examine any witness produced by the other party, rule 7-B denies representation by a `lawyer'. The question is whether this is right of defence depending merely on the capability of the accused or a I real right where he can rely on the skill, knowledge and experience of a learned in law to show and prove that he is not guilty. It may be born in mind that it is not only the cunning who would molest law. Even a simple and less intelligent one may also be involved. He may not be able to bring out the points in his favour or the weakness of the other side. (1) (1891)1QB378???????????????????? (2)PLD1975SC506 ??????????? (3)PLD 1977SC397 He may be tongue-tied, nervous or confused and may not understand the intricacies of law. Again, there must be no doubt in view that no law means testing the capability or capacity of an accused to defend but its sole purpose always is to know whether at all he committed the offence In this view of the matter, no authority should ever feel of shy of permitting any one to engage a counsel in his defence, unless it is prohibited by a valid law.

14. The right to cross-examine was conceded by this court even in the absence of a statutory provision in Malik Abdul Majid v. Disciplinary Committee of the University of Punjab, Lahore (P L D 1970 Lah. 416), in the following words: "It pained us to hear an argument from the bar which is to the effect that valuable rights of citizens can be taker. away without even hearing them and permitting them to test the credibility of witnesses simply because it would cause inconvenience to certain authorities. We have always been told that convenience and justice have never been on speaking terms with each other. We may say it with all the emphasis at our command that it is not possible for us to permit justice to be sacrificed at the altar of convenience. If during the dispensation of justice the giving of a fair opportunity' to a person accused causes inconvenience to the accuser, then the former cannot be sacrificed at the altar of the latter. If it is a question of convenience alone, the inconvenience caused to the accused in the absence of a fair opportunity, is much greater than the so-called inconvenience caused to the accusers in producing the witnesses for cross-examination."

15. Rule 7(l) in these cases expressly provides this right. It is well known that cross-examination is a faculty or art in which proficiency is attained only by assiduous application, and intensive study during a long period of unintermittent application of the intellect and the mind. Even the most talented and gifted members of the bar may not have achieved the same proficiency with the same experience and opportunity. Again, a forswearing witness may even defeat the professional skill of the best at the bar. Amongst the accused Officers some may not at all be able to cross-examine or interpret law. Would it not, in their cases, mean denying them the right to defend ? They shall, therefore, be penalized, in the end, not necessarily because they were guilty of the offence but because they were not able to defend themselves. Attaching such an intention to law would be in fact defeating it.

16. The learned Assistant Advocate-General has not paid due attention to the fact that it is also a rule of natural justice that a person be allowed sufficient opportunity to defend himself. This rule is well established According to the Supreme Court it forms part of every law unless specifically excluded. Reference be made to Abdul Rehman v. Collector (P L D 1964 S C 461 ), and the following portion of the judgment may be reproduced with advantage: ??????????? "However, the Government cannot by framing a rule take away the right to show cause which a person has on account of a principle of natural justice and which has to be deemed to be incorporated in every enactment. The right could have been taken away by a provision in Basic Democracies Order, but if the Order grants such a right the rule-making authority cannot take it away. Rules have to be consistent with the Statute under which they are framed and with all that is deemed to be incorporated in the statute." The case of Everday Pictures Ltd. (P L D 1979 Kar. 155), may also be cited as it more or less refers to all the precedent judgments on the point. Admittedly, the Punjab Civil Servants Act does not exclude representation of a counsel in inquiry proceedings. Some of the rules also permit sufficient defence. In this view of the matter, the exclusion as contained in rule 7-B will hit by the rule of natural justice and Article 4 of the Constitution as interpreted in the Division Bench judgment referred to in para. 8 above. The argument of the learned Assistant Advocate-General, as referred to in para. 11 above, thus would have no weight as rule 7-B is violative o Article 4 has no direct support from the Punjab Civil Servants Act and is also in violation of the rules of the natural justice.

17. Again, rule 7-B violates section 22(2) of the Bar Council Act lay down: "Subject to the provision of this Act, the rule made thereunder and any other law for the time being in force, an Advocate shall be entitled as of right to practise throughout Pakistan, and to appear, act and plead before any court or Tribunal in Pakistan." So even to exclude the above right of an Advocate some restriction in law has to be shown.

18. The above is the position with regard to such servants who are governed. directly by the Efficiency and Disciplinary Rules as a statutory instrument. As explained in para. 3 above, the case of the petitioners i much different, for they are Officers of a statutory body constituted under th WASA and Lahore Development Authority Act. Their terms and condition are regulated not strictly by the Punjab Civil Servants Act. Rather, section 11 of the Lahore Development Act empowers the Authority to appoint its Officers etc. on such terns and conditions as it may deem fit. There is no provision in law that these terms and conditions should be prescribed by rules and regulations. The Authority, therefore, could, in its discretion avoid. any inquiries at all and provide for termination of the services of its employees without assigning any reason and on a simple notice. But it does provide for inquiries it cannot avoid or oust the provisions of general? law of the land. Thus the mere framing of the regulations by the authority would not confer any statutory force on them. I may, however, clarify here, for the fear of being misunderstood, that the Authority itself is bound by those valid regulations as long as they are there, but such parts of the regulations as are invalid or illegal will not bind the third parties even though they might have agreed to be governed by them.

19. The other question arising for determination is whether the bare contained-in the rule 7-B of the Efficiency and Discipline Rules having been adopted by the respondents as a part of its regulations will be operative at all as a law, in this case. As discussed above, the Efficiency and Discipline Rules are being applied to the petitioners not as rules or statutory instruments but as mere instructions for the guidance of its officers in its discretionary p power by the Lahore Development Authority. They, therefore, have no semblance of law and would not be able to oust the general right of a citizen under Article 4 of the Constitution, the law and the principles of natural justice, to be defended by a counsel of his choice. Similarly, the mere instructions of the Lahore Development Authority would in no case be able to defeat the provisions of section 22(2) of the Bar Council Act. It may be noted that it is a Central Act and would have superseded even a contradictory provision) of a Provincial Statute. Thus the case of an employee of a statutory corporation of such a nature Stands on a far higher footing than that of a civil servant who too as discussed above, has been found to have the right of representation by a counsel. In view of the above, the impugned order of the respondent No. 3 refusing to permit the petitioners to engage the services of a counsel, is declared to be without lawful authority and of no legal effect. He is also directed to let them be represented by a counsel of their choice. As the respondents have not followed an earlier judgment of this court, they shall also pay the costs. Petition allowed.