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State of Bombay (Now State of Maharashtra) Vs. HusseIn Kasim Kanhekar - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMumbai High Court
Decided On
Case NumberA.F.A.D No. 858 of 1961
Judge
Reported inAIR1968Bom290; (1967)69BOMLR568
ActsBombay Civil Services (Classification, Control and Appeal) Rules - Rule 55; Constitution of India - Article 311(2)
AppellantState of Bombay (Now State of Maharashtra)
RespondentHusseIn Kasim Kanhekar
Appellant AdvocateM.A. Rane, Asst. Govt. Pleader
Respondent AdvocateK.J. Abhyankar and ;J.A. Bardey, Advs.
Excerpt:
.....is bad and should be set aside. therefore, failure by the enquiry officer to hold an oral enquiry if the charge-sheeted officer so desires amounts to a failure 'to give a reasonable opportunity to the officer within the meaning of art. ' their lordships further held that an inquiry held without examining the witnesses whom the charge-sheeted officer desired to examine amounts to a failure by the enquiry officer to hold an oral inquiry. rane urged that it cannot now lie in the mouth of the plaintiff to contend that the final order was bad as no inquiry was held. rane, a good order. abhyankar that there being no inquiry at all upon a charge-sheet which was not properly framed, the whole proceedings were bad and necessarily the order ought to be set aside. since the plaintiff did not demand..........cause why action should not taken against him. he was also asked to state whether he wanted an oral inquiry.(2) on march 3, 1951, the plaintiff submitted his written statement (ex. 45) in which he gave explanations in regard to the various charges while denying all of them. finally, however he stated that he had nothing more to say orally in this matter. it appears from the record that a show-cause notice was served on the plaintiff - ex. 55 dated 22-5-1951 - to which a report made by the special superintendent, land records, on charges nos. 4 and 5 proved against the plaintiff was annexed. the plaintiff was asked to show cause why the services should not be dispensed with for misbehaviour. by ex. 47 dated may 31, 1951, the plaintiff asked for time to put in the written statement as.....
Judgment:

(1) This is an appeal by the State against the appellate order confirming the order passed by the trial Court which has set aside the order dated June 28, 1951 passed by the Special Superintendent, Land Records, Ratnagiri, removing the plaintiff from the post of a temporary Cadestral Surveyor. Khot Survey Department, Ratnagiri, as it was alleged to be null and void and inoperative. The declaration given by the trial Court that the plaintiff continued to be in service, is also confirmed by the appellate Court. The facts of this case are as follows:-

The plaintiff-respondent was appointed as a temporary Cadestral Surveyor on February 15, 11947, and he continued as such till June 28, 1951, on which date he was removed from service. On February 12, 1950, complaints were received against the plaintiff from the villages of Vaghrat that the plaintiff was corrupt and used to accept food etc. without paying for the same and he also used to demand money as illegal gratification from them. Upon investigation being made, the plaintiff was suspended on January 4, 1951. By a notice dated February 6, 1951, (Ex. 34), he was directed to appeal before the Special Superintendent, Land Records who was to record his statement in regard to the complaints received against the plaintiff. On February 20, 1951, the Special Superintendent Land Records, examined certain witnesses in the presence of the plaintiff, and the plaintiff cross-examined them. Thereafter, on February 21, 1951, the Officer in charge went to the village and recorded the statements of 3 more witnesses, but not in the presence of the plaintiff. On the next day i.e., February 22, 1951, a charge-sheet (Ex. 5-A) was submitted, and it was served on the plaintiff. Five charges were framed against the plaintiff and he was asked to show cause why action should not taken against him. He was also asked to state whether he wanted an oral inquiry.

(2) On March 3, 1951, the plaintiff submitted his written statement (Ex. 45) in which he gave explanations in regard to the various charges while denying all of them. Finally, however he stated that he had nothing more to say orally in this matter. It appears from the record that a show-cause notice was served on the plaintiff - Ex. 55 dated 22-5-1951 - to which a report made by the Special Superintendent, Land Records, on Charges Nos. 4 and 5 proved against the plaintiff was annexed. The plaintiff was asked to show cause why the services should not be dispensed with for misbehaviour. By Ex. 47 dated May 31, 1951, the plaintiff asked for time to put in the written Statement as he wanted to inspect certain documents, Eight days' time was given to the plaintiff, and he filed his written Statement on June 6, 1951. Thereafter, by the order date June 28, 1951, the plaintiff was removed from service. The appeal filed by the plaintiff was dismissed. The plaintiff then filed the present suit on March 4, 1958.

(3) The plaintiff's contention is that no inquiry was, in fact, held against him, that he was given no sufficient opportunity to cross-examine the witnesses and that, therefore, the order passed removing him from service is bad and should be set aside. The government denied that those witnesses who were examined on February 20, 1951 were, in fact, cross-examined by the plaintiff. It could not, therefore, be said that no opportunity to cross-examine the witnesses was given to the plaintiff. After the charge-sheet was supplied, no oral inquiry was held because the plaintiff in his reply to the show cause notice did not desire an oral inquiry in the matter. The officer holding the inquiry had the right not to hold the inquiry if the officer who was charge-sheeted did not demand such an oral inquiry. It was further the contention of the State that all the formalities required under R. 55 in regard to the submission of the charge-sheet, recording the finding and the final show cause notice were properly gone through by the Inquiry Officer. There was, therefore, according to the State, no substance in the suit.

(4) The trial Court decreed the suit of the plaintiff by holding that the departmental inquiry held by the Special Superintendent, Land Records, was in violation of the rules, that the plaintiff was not supplied with the grounds of the charge and the statement of allegations and that no sufficient opportunity was given to the plaintiff to cross-examine the witnesses whose statements were relied upon to substantiate the charge against him. It may be noticed here that, before the trial Court, the only oral evidence was that of the plaintiff; none was examined on behalf of the State. The State went in appeal and the appellate Court also confirmed the findings of the trial Court and dismissed the appeal. The State has, therefore, come in second appeal to this Court.

(5) The point urged by Mr. Rane appearing on behalf of the State was than an oral inquiry was not obligatory under the rule which were in operation at the time action was taken against the plaintiff. The rule which was operative at the time was R. 55, Rule 55 of the Bombay Civil Services (Classification, Control and Appeal) Rules, according to Mr. Rane, called for an oral inquiry if the charge-sheeted officer so desired or if the authority concerned so directed. The relevant part of the rule reads as follows:-

'The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral inquiry shall be held.'

Mr. Rane's interpretation of this part of the rule was that unless the charge-sheeted officer demanded an inquiry or the inquiring authority directed an oral inquiry, no such inquiry was necessary.

(6) Mr. Rane relied upon a decision of the Supreme Court in State of Bombay v. Nurul Latif Khan, : (1966)IILLJ595SC , in support of this contention. Their Lordships were considering the case of an officer against whom the State proposed to rely on documentary evidence, whereas the officer desired to examine medical officer in support of his contention. The contention of the State against the Officer was that the Officer had, in wilful disobedience of the orders passed, refused to submit himself to a medical examination. The contention of Nurul Latif was that he was too ill to attend and appear before the Medical Board. There was no doubt in this case that the officer did not attend for medical examination before the Board on the dates on which he was asked to attend. The Government, therefore, chose to rely only upon documentary evidence showing that the officer was asked to attend and that he did not attend. These facts were not disputed. By his written statement. The officer had, however, taken up a contention that no blame could attach to him by reason of his inability to appear before the Board for the reason that he was too ill at that time. He had also expressed a desire before the Inquiry officer that he wanted to examine doctors in support of his contention. It appears that during the subsequent conduct of the proceedings before the Inquiry Officer, Nurul Latif was not allowed to examine the doctors, and in the suit and in the appeal before the Supreme Court the point raised was whether it could be urged by the charge-sheeted Officer that he was not given sufficient opportunity to meet the case made out by the State on the ground that an oral inquiry was not held or that the charge-sheeted Officer was not allowed to examine his witnesses. Their Lordships construed the rule and held as follows:-

'Rule 55 of the Civil Services (Classification, Control and Appeal) Rules makes it obligatory on the Enquiry Officer to hold an oral enquiry and give the charge-sheeted officer a chance to examine his witnesses if the authority concerned so directs or if the charge-sheeted officer so desires. Therefore, failure by the Enquiry Officer to hold an oral enquiry if the charge-sheeted officer so desires amounts to a failure 'to give a reasonable opportunity to the officer within the meaning of Art. 311 of the Constitution of India.'

Their Lordships further held that an inquiry held without examining the witnesses whom the charge-sheeted officer desired to examine amounts to a failure by the Enquiry Officer to hold an oral inquiry.

(7) Relying on these observations of the Supreme Court, Mr. Rane urged that an oral inquiry is not obligatory and that it has to be held only if the charge-sheeted officer demands it or the officer holding the inquiry or the higher authority so directs. Mr. Rane then referred to Ex. 45 dated March 3, 1951, the written statement of this plaintiff in the inquiry proceedings, upon the charge-sheet, Ex. 54, being served upon him. In this written statement, after denying the various charges, the charge-sheeted officer states that he has to say nothing orally. Upon this statement the entire argument of Mr. Rane is based that the charge-sheeted officer did not demand an oral inquiry. It is true that this interpretation is a possible interpretation upon the statement made by the plaintiff in his written statement, Ex. 45. Relying upon this statement and the observations of the Supreme Court, Mr. Rane urged that it cannot now lie in the mouth of the plaintiff to contend that the final order was bad as no inquiry was held. If no inquiry is obligatory and the circumstances in which an inquiry is to be held do not exist, then the order passed without holding an oral inquiry but upon the materials in respect of which sufficient opportunity was given to the plaintiff to meet them is, according to Mr. Rane, a good order.

(8) Mr. Abhyankar's contention, however, was that this argument begs the question that there was any inquiry at all. It was urged before the trial Court and also the appellate Court that there was, in fact, no inquiry and that no sufficient opportunity was given to the plaintiff to meet the charges against him. What was urged by Mr. Abhyankar was that the charge-sheet, Ex. 54, did not contain the necessary material which is required to be submitted along with the charge-sheet under R. 55 of the Civil Services (Classification, Control and Appeal) Rules. What is required under that rule is that the charge-sheet must contain the grounds on which it is proposed to take action, and the same has to be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. Ex. 54 is the charge-sheet. Mr. Rane concedes that, in respect of charges Nos. 1 2 and 3, the findings were not adverse to the plaintiff, Action was taken against him on adverse findings being given by the Inquiry Officer on Charges Nos. 4 and 5. Those charges read as follows:-

'CHARGE NO. 4:- You were taking one egg free of cost from each of the houses in Bhovadwadi or its price of one anna for about 8 to 10 days. You were also obtaining vegetables through your mazdoors from the fields without permission and without payment of its price to the owner.

CHARGE NO. 5:- Your were taking one seer of rice per house from the villagers of Bhovadwadi for your food and also you took one maund of rice from them without paying anything to them'.

Mr. Abhayankar's contention is that this charge-sheet does not satisfy the requirements of Rule 55, as it merely states the grounds but is not accompanied by the statement of allegations upon which each charge is based. There is no doubt in regard to this contention that nothing else accompanied the charge-sheet, Ex. 54, although, according to the State, a number of statements were recorded on February 20, 1951, upon which the action was subsequently taken against the plaintiff. Mr. Abhyankar's contention, therefore, is that nothing having accompanied the charge-sheet except the bare grounds upon which it was intended to take action, there could be no reasonable opportunity to the plaintiff to meet these charges under any circumstances. The fact, therefore, that the plaintiff stated that he had nothing to say orally would not validate something which was invalid from the start. If no proper charge was submitted, the subsequent proceedings would not be valid. It was, therefore, urged by Mr. Abhyankar that there being no inquiry at all upon a charge-sheet which was not properly framed, the whole proceedings were bad and necessarily the order ought to be set aside.

(9) Mr. Rane, however, urged that, in the instant case, the facts that had taken place before the framing of the charge have also to be taken into account. On February 20, 1951, several witnesses were examined in the presence of the plaintiff, and the plaintiff also cross-examined them. Since these facts were known to the plaintiff and the plaintiff was given a reasonable opportunity to cross-examined the witnesses who gave evidence against him, there was no breach of the rule in not supplying the plaintiff with a copy of the statements upon which reliance was to be placed along with the grounds of the charge-sheet. What was urged was that the whole proceeding and the inquiry were one and that the evidence of the witnesses who were examined on oath on February 20, 1951 formed as such a part of the inquiry as their cross-examination by the plaintiff . It was then open to the plaintiff to state that, inspite of the previous background he desired an oral inquiry, so that he could cross-examine these witnesses further. Since the plaintiff did not demand such oral inquiry, the officer was well within his rights in proceeding to give his findings and thereafter in issuing the show cause notice, after which the final order was passed.

(10) The point that arises in this case is whether there was any inquiry at all, and upon the facts of this case I am of the opinion that both the Courts below were justified in coming to the conclusion that there was no inquiry, in fact, against the plaintiff. An inquiry starts after a charge-sheet is supplied to the charge-sheeted officer. Though an oral inquiry is not always necessary, nor is it obligatory as laid down by the Supreme Court in : (1966)IILLJ595SC . But still facts of each case have to be considered to see whether an oral inquiry is necessary. If the State relied only upon documents and nothing else and if no oral inquiry is demanded, then no oral inquiry is demanded, then no oral inquiry is obligatory. But if the action to be taken against an officer is to depend solely upon oral testimony without reference to any document, then it must necessarily follow that the inquiry is itself an oral inquiry and there is no need for the charge-sheeted officer to desire an inquiry. If without oral evidence a finding cannot be given, then the oral inquiry must necessarily be held before a finding can be given against the officer. In the instant case, from the record it appears that the whole case against the plaintiff was upon the statements orally made by the witnesses. Nothing else was relied upon by the reporting officer of the officer who passed the final order. What the reporting officer found are annexed as the provisional officer found are annexed as the provisional findings to the show cause notice, Ex. 55. From the reporting officer's report which accompanies Ex. 55, it is clear that he has solely depended upon the word of witnesses to hold that Charges Nos. 4 and 5 were proved against the plaintiff.

(11) There was one more factor to be considered in regard to the opportunity given to the plaintiff to meet the charges made against him. From Charges Nos. 4 and 5, it is clear that allegations were made against the plaintiff that he used to take one egg per day from each house and he also used to take one seer of rice every day from each house. In the several statements that were recorded, there is no reference either to eggs or to rice except in one statement, Ex. 39, which was a joint statement made by several persons Ex. 39 which was signed also shows that this statement was made by several persons was subject to cross-examination and questions and answers were also treated as part of this Exhibit. There is nothing on record to show that each witness who signed Ex. 39 was allowed to be cross-examined separately. In the absence of any such record, it appears as if all the persons who had gathered at one place and who had signed the first part of the statement, Ex. 39 were simultaneously cross-examined by the plaintiff and the answers given by all or some of them were recorded below Ex. 39. This, in my opinion, is a high water mark regarding the opportunity of cross-examination.

(12) Mr. Abhyankar further urged that the opportunity to meet the case must also be a reasonable opportunity and that in this case there has been a complete lack or reasonable opportunity to the plaintiff to meet the charges against him. Mr. Rane's contention was that since the witnesses on whose statements reliance was placed were cross-examined when their statements were recorded before the charge, the opportunity given to the plaintiff was utilised by him. Mr. Abhyankar, however, contended that his no opportunity at all given before the charge was framed. Before the charge was framed, no indication could be had by the plaintiff as to what allegations were likely to be made against him, so that he could prepare himself to meet them and to elicit by cross-examination from the witnesses such facts as would support his case or disprove the case of the State. From Ex. 34 it appears that, in respect of the allegations made against the plaintiff he was asked to be present on February 28, 1951, when statements of persons having grievances against him were to be recorded. Ex. 34 could not give any indication to the plaintiff as to whose statements were to be recorded and what those statements were going to be. In the absence of this knowledge regarding the persons whose statements were to be recorded and what they are going to state, Mr. Abhyankar urged that the opportunity given to the plaintiff was no opportunity at all. This ground appears to be a sound ground. Unless person knows what some stated individual is going to state, there can be no real opportunity to him to elicit any answers. The witness would be sprung as a surprise, and what he would state would also be a matter of surprise. In point of fact, therefore, there is no substance in the contention that the cross-examination by the plaintiff made on February 20, 1951 proved that sufficient opportunity was given to the plaintiff to meet the charges against him. In fact, no charges were framed, and it cannot be urged that, to meet the charges which were not framed, sufficient opportunity was given to the plaintiff..

(13) In this case, therefore, there is a complete lack of proper procedure for supporting the final order passed.

(14) Before parting with this case, I may also state that, on going through the report which is annexed to the show cause notice, Ex. 55, dated May, 22, 1951 and the final order of removal Ex. 56 I find that the real matter is not considered and extraneous matters have been taken into consideration by the two authorities. In fact, there is no finding recorded that it was proved against the plaintiff that he was receiving an egg per day from each house or that he was receiving one anna in place of the egg from each house or that he was receiving one seer of rice from each house. No such findings are to be found either in the provisional findings accompanying Ex. 55 or the final order, Ex. 56. However, that is not a matter on which I am basing my decision.

(15) The evidence recorded in this case was only that of the plaintiff, and he stated that he did not inspect the documents because inspection was refused to him. He had also stated that the officer told him that he would be given an opportunity to cross-examine after the charge. He also stated further that he had told the Head Clerk that he required further oral inquiry after the charge, but that no further inquiry was held after the charge. This evidence given by the plaintiff was not controverted by any witness examined on behalf of the State. In the absence of any other evidence, these statements would stand, as they were not shaken in cross examination.

(16) Considering the facts, therefore, in this case and what had happened before and after the charge-sheet was served upon the plaintiff, I hold that there has been proper inquiry as required by R. 55. I also hold that there was no sufficient opportunity given to the plaintiff within the meaning of Art. 311(2) before the order for his removal was passed.

(17) The appeal is, therefore, dismissed with costs.

(18) Appeal dismissed.


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