A government servant is entitled to be represented by a lawyer in a departmental enquiry if the Presenting Officer appointed by the disciplinary authority is a legal practitioner.

JUDGMENT - M.S. DESHPANDE, J.:---By this petition under Articles 226 and 227 of the Constitution the petitioner challenges the order of his removal as a result of a Departmental Enquiry.

2. The petitioner joined as Jailor Grade III on March 8, 1954 and in course of time came to be promoted as Superintendent of Jails Class 1 from March 1982. He worked in that capacity as in-charge of Byculla Prison. On June 3, 1985, an undertrial prisoner one Abdul Hameed was transferred from Central Prison, Bombay to Byculla Prison on the ground of security in Prison, as the Superintendent in-charge of Central Prison. Bombay apprehended trouble as another undertrial prisoner one Karim Lala who belonged to a rival notorious gang was in that prison. The petitioner was on leave from 5th June, 1985 to July 4, 1985 and on resuming noticed that the conduct of Abdul Hameed was not in conformity with the Prison Rules and he therefore, had discussions with the respondent No. 2 the Inspector General of Prisons and Commissioner of Police for taking steps for transfer of Abdul Hameed to another jail. The transfer not being effected, several untoward incidents occurred including assault's by Abdul Hameed on the petitioner and others with knife and firing with a revolver. On 31st January, 1986 the petitioner was served with a charge sheet under 19 heads of charges some of them being that he had given special facilities to Abdul Hameed in contravention of the Prison Manual, and there were 8 other persons who were being jointly proceeded with in the Departmental Enquiry.

3. At the enquiry six witnesses were examined including the Inspector General of Prison and Deputy Inspector General of Prisons. The Enquiry Officer by his report dated 31st October 1986 found the petitioner guilty under five charges viz. Nos. 2, 3, 11, 12 and 16 and exonerated him of 14 charges. He made a report recommending that one of his increments should be withheld for a period of three years without affecting the other increments. The Disciplinary Authority i.e. the State Government, however, passed the impugned order dated 12-2-1988 holding the petitioner guilty of all the charges except charge No. 17 and directed his removal from service. It is this order which is being challenged by the petitioner in this writ petition.

4. The main contention on behalf of the petitioner was that the Presenting Officer for the department was one Shri B.S. Tikare, Principal, Prison Officer's Training School. Pune who was well versed in law and procedure and was an experienced person so far as field of law was concerned, but the petitioner was not allowed to be represented by a lawyer and his requests to that effect in the two letters written to the Government on 19-7-1986 and 28-7-1986 were turned down and he had to defend himself unaided in the proceedings. It was urged that this was in contravention of Rule 8(8) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. While supporting the order of removal passed by the disciplinary Authority, the learned Government Pleader urged that the petitioner was a qualified person as he was an Agriculture Graduate and had risen from the position of Jailor to the post of Superintendent Class I and was, therefore, well versed in the matters relating to the prison Rules and maintenance of Prisons and therefore, no prejudice was caused to the petitioner and the enquiry against the petitioner was fair.

5. Rule 8(8) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, is as follows :

"The Government servant may take the assistance of any other Government servant to present the 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 question in the present case is whether Shri Tikare the Presenting Officer could be described as a l

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