Relevant facts for the disposal of this petition with reference to the contentions raised are as follows :- The petitioner is an Inspector in the Central Excise and Land Customs Department. He was placed under suspension vide order dated 29-9-1979 and issued a charge-sheet on 25-9-1979 to reply within 14 days. He requested for permission to be represented by a counsel which was declined on 12-12-1979. He repeated the request relying on a judgment of a learned Division Bench of this Court, copy of which was annexed but the request was refused with reference to rule 10-A of the Government Servants (Efficiency and Discipline) Rules. 1973. He filed the present petition. In view of the interim order of the High Court dated 19-5-1980 the petitioner was re-instated with immediate effect vide order dated 21-5-1980 but was, again, suspended on 24-5-1980. He was asked by the authorities to submit reply to the charge-sheet which he did on 3-6-1980.
2. Three points are urged by the learned counsel for the petitioner. Firstly, that the order of suspension dated 24-5-1980 is illegal for the reason that it does not show that it has been passed with the prior approval of the authority as required under rule 5 (1) (i) of the Government Servants (Efficiency and Discipline) Rules, 1973. He placed reliance on Mian Munawar-ud-Din v. The Federation of Pakistan through the Secretary, Federal Ministry of Communication, Islamabad (PLD 1979 Lah. 699) Secondly, that vide order dated 21-5-1980 the petitioner was re-instated with immediate effect though he should have been re-instated from the date he was suspended.
Thirdly and finally that the petitioner should be allowed to be represented by a counsel. It is stated that when the petitioner was issued charge-sheet on 25-9-1979, he applied for permission to engage a counsel but the request was declined on 12-12-1979 and when it was repeated on the basis of a judgment of the High Court by a learned Division Bench in Mr. Habib Ullah Tarar v. M.
Jamilullah Khan etc. L. P. A. No. 90 of 1974 it was still declined invoking rule 10-A of the Government Servants (Efficiency and Discipline) Rules, 1973, though the said rule had been struck down in the referred to judgment. Learned counsel also relied on Nripendra Nath Bagehi v. Chief Secreary Government of West Bengal (AIR 1961 Cal. 1) ; T. Munisivamy v. State of Mysore (AIR 1964 Mys. 250) and The Queen v. Assessm ent Committee of Saint Mary Abbots Kensington ((1911) 1 P B D 378).
3. The learned Deputy Attorney-General conceded the second contention and stated that the petitioner would be deemed to have been re-instated vide order dated 21-5-1980 not with immediate effect but from the date when he was initially suspended i.e. 28-6-1979. This disposes of the contention of the learned counsel for the petitioner.
4. As regards the first contention of the learned counsel for the petitioner that the order of suspension dated 24-5-1980 was illegal for want of prior approval of the authority concerned, the learned Deputy Attorney-General produced the file showing that prior to the order of suspension, approval of the authority had been obtained. He, then, contended that the intention of the provision of Article 212 of the Constitution was that matter of terms and conditions of service shall be the exclusive domain of the special tribunals and, therefore this Court cannot in interim orders of the authorities when final orders are appeal--able before the Special Tribunal. He referred to a Division Bench judgment reported as Saiful Haque Hashmi v. Government of Sind through the Chief Secretary, Sind Secretariat, Karachi and 4 others (1981 PLC (C.S)123) He, further, referred to Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army, G. H. Q. And another (PLD 1979 Kar.
298) to contend that the petitioner has alternate remedy of filing an appeal before the Tribunal and, therefore, cannot invoke the Constitutional jurisdiction of this Court. The learned counsel for the petitioner did not urge anything to the contrary in this respect in reply. After hearing the learned counsel for the parties, it appears that the contention of the petitioner challenging the order of suspension is not sustainable and is, therefore, repelled.
5. As regards the third contention of the learned counsel for the petition--er that the petitioner was entitled to be represented by a counsel in the departmental proceedings, the learned Deputy Attorney-General has contended that under rule 10-A of the Government Servants (Efficiency and Discipline) Rules, 1973, it is provided that "No party to any proceedings under these rules before the authority, the authorised officer, an Inquiry Officer or an Inquiry Committee shall be represented by an Advocate". And consequently the petitioner had no right to be represented through a counsel.
The learned Deputy Attorney-General submitted that the Division Bench judgment relied upon by the learned counsel for the petitioner had held that the said rule 10-A could not be applied retrospectively to proceedings earlier commenced than its incorporation in the Rules and not that rule 10-A was itself void.
6. The controversy about the right of representation through a counsel has given considerable anxiety in so far as that not only there is a rule debarring representation through an Advocate in departmental proceedings but at times it would appear that the departmental proceedings are conducted within the four-walls of the department and no outside may he allowed to intervene lest that departmental matters be exposed without any corresponding public benefit. On the other hand. It is also to be noticed that an employee appearing before a superior officer may not be able to defend himself adequately by sheer weight of the authority. It can well be imagined that an ordinary orderly appearing before a Deputy Commissioner on a charge entailing dismissal from service might shiver in his shoes and may not be able to utter anything, much less a coherent defence ; or, the facts may be so complicated that the employee may not be able to fully comprehend the import of each individual fact in co-relation with others and thereby may not be able to represent his defence in a cogent and lucid manner. Further, appearance by a subor-- dinate before his superior in certain circumstances can lead to confrontation and the employee being in the dock may not be able to conduct himself with composure and may in his worry and nervousness behave in a desperate manner not befitting the authority or the person presiding. In such situations representation by a counsel who by education and training acts in a composed and dignified manner will better serve the ends of justice with due regard to the deco--rum of the proceedings. At this stage the validity of the rule (10-A) and the idea of avoiding public exposure of departmental pro--ceeding, not the inconvenience of departmental authorities, may be atten-- ded to.
7. In a Special Bench of three Judges in Nripendra Nath Bagehi v. Chief Secretary Government of West Bengal it was held that "If on the particular facts and complexity of a 'case, assistance of a lawyer is regarded as a part of reasonable opportunity then denial of such an opportunity is violation alike of the Constitutional protection under Article 31 (2) and the principles of natural justice. " In Muniswa my v. State of Mvsore it was observed at p. 261 that "Generally speaking, it seems to me that the real and true criterion in each case is whether the refusal of representation generates prejudice or embarrassm ent and if that result is likely to ensue the refusal of permission for defence through counsel would plainly lack the element of reasonableness. Whatever may be the complexion of the proceeding, and however, inconsiderable the evidence in it, it should not be forgotten 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 and involving no intricate legal conundrums as a person of acuteness and affluence of language would, in a proceeding of greater perplexity. It is thus clear that the claim to representation should necessarily depend upon a variety of factors an enumeration of which can only be an imperfect catalogue which no one can hope to complete." It was further observed at p. 263 that "The disciplinary authority who holds the balance should put himself in the situation of the Government servant and after making a judicious estimate of the problems confronted by an unaided defence, transfer the weight generally in favour of representation. Experience reveals that as a rule counsel assists and does not obstruct and that a tribunal who is in too much of a hurry to refuse representation encounters the danger of misjudgment, influenced by unavailability of proper guidance and assistance. That a proceeding can be concluded quicker without the impeding presence of counsel is a point of view which is open to the re-proof that it casts slur on a great profession and mistakes speed for judgment. Misconduct deserving a major punish--ment is not committed every day, and, when one who is accused of it is in peril of being visited with a major punishment which he would richly deserve if the accusation is true. I am unable to see why emphasis should be on quick punishment rather than on a fait hearing although it might involve expenditure of more thought, attention and time necessitated by aspects elucidated by counsel".
8. Coming to the Division Bench judgment relied upon by the learned counsel for the petitioner, the contention of the learned Deputy Attorney-General that it was concerned with retrospective applicability of rule 10-A and other observations are obiter, it need only be said, is not the whole truth. No doubt, the judgment held that the Notification incorporating the rule did not have retrospective effect. But it also dealt with the right of a person to be represented through counsel for enjoyment of protection of law guaranteed to him by the Constitution. It was observed that Article 4 of the Constitution of 1973 provides to every individual the right to enjoy the protection of law and to be treated in accordance with law. For the purpose of effectively enjoying the right conferred by this provision it is necessary that he should not be denied the assistance required for the purpose of availing this protection other--were Article 4 would be dead letter. The vast proportions into which Statutes and other laws now run and the complexities in which they are enveloped make it impossible for a lay-man to understand their intricacies and application. The assistance by people learned in law is, therefore, a sine qua non for enjoying its protection. It, therefore, follows as corollary that wherever a source of protection is law and wherever person has to be treated in accordance with law he is entitled to the assistance of counsel unless the very purpose of Article 4 is sought to be negated. In our view, therefore, it is an unqualified right, which every citizen of this State possesses and Article 4 makes it inalienable so that it cannot, under any circumstances, be taken away from him.
Even on general principles the right for such representation inheres in every citizen. Pett v.
Greyhound Racing Association Ltd. ((1968)2 All E L R 545) may be referred to in this connection :---- "All I would say is that much water has passed under the bridges since 1929. The dictum may be correct when confined to tribunals dealing with minor matters where the rules may properly exclude legal representation. Re : Macqueen 8c Nottingham Caledonian Society (1861) 9 C B N S 793 seems to have been such a case. The dictum does not apply, however, to tribunals dealing with matters which affects a man's reputation or livelihood or any matters of serious import. Natural justice then requires that he can be defen--ded, if he wishes, by counsel or solicitor. "
It was further observed in the case that fairness requires an oral hearing and `within an oral hearing then legal representation'. It was also observed that "It would be most unfortunate if the enquiry should be held without the plaintiff being legally represent--ed : and then later on at the trial it was found that the proceedings had been quite irregular and were upset."
As for the submission that an Enquiry Officer is not a tribunal we would like to observed that it is too late in the end of the Twentieth Century to make such a submission. The word has been defined in Wabster's New International Dictionary, Second Edition, page 2707. As follows- Who can dispute the fact that it is for the Enquiry Officer to present a report whether the charges have been proved against a public servant or not and is it possible to do so without judging whether it has so happened."
Thus finding, their Lordships accepted the appeal and directed the Enquiry Officer to permit the appellant to be represented by a counsel at the inquiry. The contention of the learned Deputy Attorney-General that section 22 (2) of the Legal Practitioner and Bar. Councils Act, 1965 10 lays down that "Subject to the provisions of this Act, the rules 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" expressly provides that this right shall be subject to any other law for the time being in force and that rule 10-A of the Government Servants (Efficiency and Discipline) Rules, 1973 is such a law which excludes the right of representation through a counsel. But the argument loses sight of the fact that the right of representation through counsel has been recognised as available under Article 4 of the Constitution by the judgment of the learned Division Bench of the High Court and it is obvious that a rule has to give way to Constitutional mandate. Moreover, sub-rule (3) of rule 6 of the Rules relied upon by the learned Deputy `Attorney-General provides that "The Inquiry Officer or the Committee, as the case may be shall 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 the accused shall be entitled to cross-examine the witness against him." Grant of right to cross-examine a witness to an accused-employee would hardly be of any use to the employee and would be patently illusory if he cannot be allowed to be represented by a counsel because an ordinary employee cannot be expected to know as to how to cross-examine a witness against him.
The art of cross-examination is not a simple affair. It is every delicate and a sophisticated art learnt after long education training and experience and an ordinary person or employee in the dock before his superior can hardly do any justice to his right of cross-examination. Therefore, non- permission to an employee to be represented by a counsel would completely deprive him of his right of cross-examination as given in the afore-quoted rule. Then, sub-rule (2) of rule 7 lays down that "The proceedings under these rules shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860)." No doubt, the proceedings are deemed to be judicial proceedings with reference to some sections of the Pakistan Penal Code providing for punishment for giving false evidence and intentional insult or interruption to a public servant sitting in judicial proceedings but that does not neces--sarily mean that to adversely affect the accused-employee, the proceedings will be deemed to be judicial proceedings, but not so far any benefits accruing to him under the Constitution. If the proceedings are judicial proceedings within the meaning of some sections, it does not follow that in respect to other matters those would automatically cease to be judicial proceedings. Further, by their very nature proceedings in which a person or an employee is accused of some misdeed, evidence is led against him and he is allowed to lead, evidence in his defence, and the matter is to be decided by an impartial authority, are judicial in character. In judicial proceedings, exclusion of representation through a counsel, a qualified and trained person, is hardly commensurate with their purpose of just decision. If for some serious reason of security proceedings are to be kept secret that can be ensured by directing the accused employee and, his counsel to keep peace and not disclose the sensitive material.
9. For the foregoing reasons,, it is held that an accused employee is entitled to be represented through a counsel in his defence. The petitioner in this case has submitted his reply to the charge- sheet. If this is accepted, that will be the end of the matter. If the reply is not accepted and Inquiry officer is appointed to hold an inquiry and conduct the proceedings, the petitioner shall be entitled to be represented through a counsel of his own choosing.
10. The petition is disposed of in the above terms, leaving the parties to bear their own costs in the circumstances.