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Sreenivasayya G.V. Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 194 of 1962
Judge
Reported in(1967)IILLJ156Kant
ActsMotor Vehicles Act; Prevention of Corruption Act; Evidence Act; Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 - Rule 11, 11(2) and 11(5); Constitution of India - Articles 226 and 311(2); Criminal Law
AppellantSreenivasayya G.V.
RespondentState of Mysore
Excerpt:
- constitution of india articles 226 & 227; [anand byrareddy, j] bangalore-mysore infrastructure corridor project (bmic project) petitioners frame-work agreement with government of karnataka - inordinate delay on the part of the respondents with regard to shifting or diverting certain utilities which are clashing with the right of way of the link road and the peripheral road failure to perform its obligation by respondents (bwssb etc.,) writ petition held, having regard to the pronouncements of high court as well as the supreme court insofar as the present project is concerned, it would be inconsistent if this petition were to be rejected on the ground that it would fall in the realm of private contract law or that there is an alternate remedy of the petitioners insofar as any.....ordersadasivayya, j. 1. the petitioner was on assistant engineer at shimoga in may 1959. on a complaint by one n. k. mohamed a contractor, to the effect that in connexion with the check measuring and the passing of bills in respect of some works done by the said contractor, the petitioner had demanded an illegal gratification of rs. 50, a trap had been laid against the petitioner on may 13, 1959. a prima facie case having been made out on investigation, a departmental enquiry was thereafter held. the charge which was framed at that departmental enquiry (vide ex. c) was that he had been caught red-handed immediately after the receipt of the said bribe amount of rs. 50. this departmental enquiry was conducted by the deputy director of efficiency audit and anti-corruption who had been.....
Judgment:
ORDER

Sadasivayya, J.

1. The petitioner was on Assistant Engineer at Shimoga in May 1959. On a complaint by one N. K. Mohamed a contractor, to the effect that in connexion with the check measuring and the passing of bills in respect of some works done by the said contractor, the petitioner had demanded an illegal gratification of Rs. 50, a trap had been laid against the petitioner on May 13, 1959. A prima facie case having been made out on investigation, a departmental enquiry was thereafter held. The charge which was framed at that departmental enquiry (vide Ex. C) was that he had been caught red-handed immediately after the receipt of the said bribe amount of Rs. 50. This departmental enquiry was conducted by the Deputy Director of Efficiency Audit and Anti-corruption who had been appointed as the specially Empowered Authority under rule 11(2) of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as the C. C. A. Rules). The petitioner had filed a written statement as per Ex. D. in answer to the charge. A sub-inspector of police had been appointed to lead evidence in support of the charge. The petitioner made a prayer as per Ex. F. for being assisted by a legal practitioner, in the enquiry before the Specially Empowered Authority. Under rule 11(5) of the C. C. A. Rules this prayer of the petitioner was refused as per Ex. G; but he was permitted to have the assistance of a police sub-inspector. One Sri K. Srikanta Ayyar, a police sub-inspector having been chosen by the petitioner, assisted the petitioner to defend himself, at the enquiry. Ten witnesses were examined in support of the charge. The case sought to be established against the petitioner was that he had demanded illegal gratification from contractor Mohamed, that the said contractor gave information about the same to the Anti-corruption Police Officers, that the said police officers together with the panchas had concealed themselves near the office of the petitioner and that after the petitioner had received the marked currency notes from contractor Mohamed and had placed the currency notes under some files on his office table, the police officers and the panchas, at a given signal, rushed into the office, conducted a mahazar and seized the marked currency notes which were found on the table of the petitioner. The defence of the petitioner was that the case against him was a cooked up one on account of ill will which the contractor had against him. The defence version was briefly to the effect that as the contractor had against him. The defence version was briefly to the effect that as the contractor had not properly done his work, he had been recently warned by the petitioner and therefore the contractor was not well disposed towards the petitioner and that on the evening of May 13, 1959 the contractor had entered the office of the petitioner and that the petitioner chastised the contractor and frustrated the contractor's attempts by throwing away the notes on the floor; the defence version was further to the effect that on hearing the telephone ringing, the petitioner went to answer the telephone and that on his returning from the phone call, he saw the contractor standing near the table and that before he could question the contractor, he found members of the raiding party rushing inside and getting busily engaged in preparing records with false recitals. Ten witnesses had been examined as defence witnesses, on behalf of the petitioner. The further written representation as per Ex. W. was made by the petitioner, setting out in detail all the evidence and the circumstances in the case. After hearing what both sides had to say the Specially Empowered Authority made the report as per Ex. H. wherein after considering the evidence and the circumstances in the case, he held that the petitioner had demanded and accepted the illegal gratification and recommended that the petitioner should be dismissed from service. Thereafter, the Government accepted the report of the enquiry officer and issued the notice as per Ex. M. under Art. 311(2) of the Constitution, calling upon the petitioner to show cause as to why he should not be dismissed from service. The petitioner made the representation as per Ex. L. in answer to the show-cause as to why he should not be dismissed from service. The petitioner made the representation as per Ex. L. in answer to the show-cause notice. Finally, after consulting the Public Service Commission, the Government passed the order as per Ex. N. dated January 19, 1962, dismissing the petitioner. It would appear that the Public Service Commission had recommended as per Ex. U. that the petitioner may be compulsorily retired from service. The Government did not agree with that recommendation, and imposed the higher punishment of dismissal. It was thereafter that the present writ petition was filed by the petitioner.

2. The main contentions which have been urged by Sri S. K. Venkataranga Ayyangar, the learned advocate appearing for the petitioner, are the following :

(1) that the enquiry by the Specially Empowered Authority is vitiated on the ground of official bias by reason of the fact that he was a Deputy Director of Anti-corruption and Efficiency Audit and that the investigation in the case had been conducted by the police officers of the Anti-corruption Department :

(2) that the principles of natural justice have not been observed and that the petitioner did not have the reasonable opportunity contemplated under Art. 311(2); and

(3) that the evidence as against the petitioner consisted of illegal and inadmissible material and was not legally acceptable to sustain the finding that he was guilty of the alleged misconduct.

3. Very elaborate and lengthy arguments have been addressed in support of each one of the above contentions.

4. As regards the first point pertaining to the alleged official bias, it may be stated at the outset alone that no contention has been raised about the constitutional validity or otherwise of any provision in the C. C. A. Rules which either empowers the Governor to appoint an officer of the Anti-corruption Department as the Specially Empowered Authority, or otherwise permit such an officer to hold the enquiry. Therefore, this aspect of the matter does not arise for consideration. We confine ourselves only to the question of the alleged official bias.

5. The petitioner cannot be said to have been unaware of the fact that the enquiry officer was the Deputy Director of Efficiency Audit and Anti-corruption. If the petitioner had felt apprehensive of the enquiry being conducted by that officer, he ought to have raised an objection at the earliest stage. But the petitioner did not do so either at the commencement of the enquiry or at any time subsequently. He took the chance of a decision in his favour by the enquiry officer, and has now raised this objection, for the first time, before the High Court. Referring to the statement of Cockburn, C.J., in Wakefield Board of Health case, it is stated at p. 71 of Broom's Legal Maxims :

'Nothing is better settled than this, that a party aware of the objection of interest cannot take the chance of a decision in his favour, and afterwards raise the objection.'

6. In New Prakash Transport Company, Ltd. v. New Suvarna Transport Company : [1957]1SCR98 the contention that the requirements of natural justice could not be waived by any of the parties, was repelled. In Maneklal v. Doctor Prem Chand [A.I.R. 1957 S.C. 423] at the end of Para. 9 at p. 432, it is stated that if the party knew the material facts and must be deemed to have been conscious of his legal rights in the matter, and fails to challenge on the ground of bias, at the earlier stages of the proceedings, the appointment of the enquiry officer, an effective bar of waiver is created against him. In the circumstances. of the present case, the belated objection of the petitioner of any bias on the part of the enquiry officer is liable to be rejected on the mere ground of waiver or acquiescence. In this connexion, vide C. R. Gowda v. Mysore Revenue Appellate Tribunal [1964 Mys. L.J. 318].

7. Even assuming that the petitioner is not barred by waiver or acquiescence from raising this contention, there does not appear to be any strength in the merits of the allegation of official bias. The learned advocate for the petitioner sought to place reliance on the observations made by the Supreme Court (Subba Rao, J.) in the case of G. Nageswara Rao v. Andhra Pradesh State Road Transport Corporation : AIR1959SC308 , about the principles of natural justice being violated when the Secretary to the Transport Department heard the objections of the affected parties to a scheme under the Motor Vehicles Act which had been prepared by the department. But it seems to us that the observations made in the above case, must be understood in the light of what has been stated in the later decisions of the Supreme Court. One of them is the case of Narayanappa v. State of Mysore : [1960]3SCR742 , after referring to the earlier case of G. Nageswara Rao : AIR1959SC308 (vide supra), his lordship Shah, J., who spoke for the Court stated as follows :

'The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he a limb of the Government.'

8. In the case of Kondala Rao v. Andhra Pradesh State Road Transport Corporation : [1961]1SCR642 , the Minister in charge of the portfolio of transport had presided over a sub-committee, consisting of Ministers, Secretaries and officers and it had been decided at that meeting that the State Government could take over bus services in certain areas. On that ground, it had been contended that the Transport Minister having pre-determined the issue, had become disqualified to decide the dispute between the State transport undertaking and the petitioners who were affected by the scheme. His lordship Subba Rao, J., who delivered the judgment of the Court stated as follows at p. 90 :

'The fact that he presided over the sub-committee constituted to implement the scheme of nationalization of bus services in the West Godavari district does not in itself establish any such bias.

... It was only a policy decision and in the circumstances could only mean that the sub-committee advised the State Government to implement the policy of nationalization of bus services in that particular district. The said decision could not either expressly or by necessary implication involve a pre-determination of the issue; it can only mean that the policy would be implemented subject to the provisions of the Act. It is not suggested that the Minister in charge of the concerned portfolio has any personal bias against the operators of private buses or any of them. We, therefore, hold that it has not been established that the Minister in charge of the portfolio of transport had personal bias against the operators of private buses and, therefore, disqualified himself from bearing the objections ...'

9. In Registrar of Co-operative Societies v. Dharam Chand : [1962]2SCR433 , the Registrar of Co-operative Societies who was the administrative head of the department had given notice for the purpose of removal of the managing committee of a bank; he had decided to act as an arbitrator in the dispute. In repelling the contention of official bias. The Supreme Court observed in that case that it did not see anything inherent in the situation, which showed any official bias. In such situations what is to be established is that there is a reasonable ground for assuming the possibility of bias and that it is likely to produce in the minds of the litigant or the public at large a reasonable doubt on the fairness of the administration of justice. At p. 429 of Maneklal v. Doctor Prem Chand [A.I.R. 1957 S.C. 423] (vide supra), it is stated as follows :

'But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case.'

10. To the same effect are the observations of this Court in the case of B. N. Nanjundappa v. State of Mysore [1966 - I L.L.J. 260].

11. The mere fact that the enquiry officer was a Deputy Director of the Department of Anti-corruption, would not, by itself, give rise to an assumption of any official bias. There is not even an allegation that the enquiry officer had in any way participated in the investigation. No particulars have been set out in the affidavit, as to why the enquiry officer should be suspected of fostering any interest in the officers that conducted the investigation. It could very well be that while it might be the duty of a certain category of officials of the department to collect material in the course of investigation, the enquiry part may be by certain officers of a higher level who are wholly unconnected with the investigation. There is no allegation or material indication that the position is otherwise in the present case. No argument of any personal bias has been urged. It was pointed out to us that the enquiry officer had, towards the end of his report, expressed himself strongly against the conduct of the petitioner and that though he was not required under the rules to recommend any punishment, he had actually recommended the extreme punishment of dismissal. It was contended that this was a manifestation of the official bias which he had. We are unable to agree with such a contention; it was on the basis of the evidence before him that the enquiry officer had come to the conclusion, after the enquiry had been completed, that the petitioner was guilty of the misconduct with which he had been charged. If the enquiry officer expressed himself strongly, at that stage, against the misconduct which the petitioner was found to have committed, it cannot be attributable to any bias; it can very well be understood as an expression of resentment against proved misconduct. Nor can any superfluous recommendation of punishment be viewed as an indication of any bias. He was, after all, only a fact-finding authority, whose report was subject to consideration and examination by higher authorities who alone had the competence to decide, in accordance with constitutional safeguards, any punishment that had to be imposed on the delinquent officer.

12. We have looked into the order sheet pertaining to the proceedings before the enquiry officer and we find that the prayers for adjournments by either side had been freely granted. This is not one of those cases which lay themselves open to the objection that sufficient time had not been given to the delinquent officer either to file his statement, or to cross-examine the witnesses on the opposite side, or to adduce his own evidence. We do not find anything therein which could even remotely suggest that there could have been any bias on the part of the enquiry officer. In these circumstances, we are satisfied that the allegation of official bias is without any foundation and must fail.

13. We will now proceed to consider the second contention. It was suggested by the learned advocate in the course of his arguments that the petitioner should have been first prosecuted under the provisions of the Prevention of Corruption Act and that when he has instead been proceeded against departmentally, he had been put into a position of disadvantage, inasmuch as the safeguards available in the procedure followed in the criminal Court have not been open to him. In this connexion, it was pointed out by learned advocate for the petitioner that sanction had actually been obtained, under the provisions of the Prevention of Corruption Act, for investigation being undertaken. The Government Circular No. GD 59 OAC 61, dated September 30, 1961, was also pointed out to us wherein a direction has been given that in cases in which investigation had been conducted by the officers of the Department of Anti-corruption, a prosecution should be launched in criminal Courts. It was pointed out that this direction had not been complied with in the present case. As against this contention, there are two aspects to be considered. Firstly, this is an administrative direction, the disregard of which can be complained only to the higher authority or the Government. Further, in the present case, the enquiry had already been over long before this circular was issued in September 1961. (It is seen from Ex. N. that the enquiry officer's report had been forwarded to Government on January 12, 1961.) Any non-compliance with such an administrative direction cannot have the effect of vitiating the enquiry which had been completed before the circular was issued and the report of which enquiry has been accepted by the Government (which was the authority that had issued that direction). The decision of the Supreme Court in S. A. Venkataraman v. Union of India [A.I.R. 1957 S.C. 375] shows that the departmental enquiry could be held first and that a regular prosecution under the criminal law could be resorted to later. The circumstances that the alleged misconduct also amounts to an offence for which there is liability for prosecution in the criminal Court, does not mean that without recourse to such prosecution, the delinquent officer cannot be proceeded against in a departmental enquiry. It is for the higher departmental authorities or the Government to choose whether there should be a departmental enquiry or a regular trial in a criminal Court. The gravity of an alleged misconduct may be a relevant consideration in making such a choice. Equally relevant would be the consideration that while there may not be sufficient evidence to establish an offence in a Court of law, the material may be sufficient to take departmental action. It is not for the delinquent officer to say how the choice should be made.

14. The fact that sanction had been taken under the Prevention of Corruption Act for investigation being conducted may have been a measure of caution, unless such sanction was taken and the investigation was promptly conducted, there might have been the danger of the disappearance of valuable evidence; further, if the investigation for the purposes of prosecution under the Prevention of Corruption Act had been deferred until the departmental enquiry was over, then it would lay itself open to the objection that there was considerable delay in commencing the investigation. Therefore, there cannot be any sustainable legal objection to a departmental enquiry having been held in the present case, without first resorting to a prosecution under the Prevention of Corruption Act.

15. The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being adjudged and so forth, as stated in Russel v. Duke of Norfolk - [(1949) 1 All E.R. 109 at 118.] In that sense, the rules of natural justice may themselves vary because of the need to meet the requirements of the rules laid down by the legislature, as stated in New Prakash Transport Company, Ltd. v. New Suvarna Transport Company : [1957]1SCR98 (vide supra) where in reference had been made to a number of English decisions on the point. In the later English case of Byrne v. Kinematograph Painters Society [(1953) 2 All E.R. 579 at 599] Lord Jenkins said :

'What, then, are the requirements of natural justice in a case of this kind First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thirdly, of course that the tribunal should act in good faith. I do not think that there really is anything more.'

16. As regards the rules of natural justice, Venkatarama Ayyar, J., has observed in Para. 10 at p. 264 of Union of India v. Varma [1958 - II L.L.J. 259], as follows :

'Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.

If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.'

17. We are satisfied that the requirements of natural justice, as stated in the above cases, have been satisfied in the present case. The alleged acts on the part of the enquiry officer were mentioned by the learned advocate for the petitioner, as instances of the violation of the requirements of natural justice. One of them was that one Chandrasekhar, a sub-inspector of police at Jog Police Station, had been examined as a Court witness; the grievance sought to be made out was that the enquiry officer did not have the power to examine anybody as a Court witness. It is undisputed that an officer, conducting an enquiry of this type, is not bound down by the strict rules of evidence. A reference to the order sheet dated December 15, 1960 of the proceedings before the enquiry officer, shows that this witness Chandrasekhar was examined as a Court witness, with the consent of the parties. (A typed copy of the proceedings as recorded in the order sheet of the enquiry officer has been filed by the Government Pleader.) Having accorded his consent to the examination of the said witness, the petitioner cannot now be heard to say that the enquiry officer ought not to have examined Chandrasekhar as a Court witness. The next alleged act on the part of the enquiry officer, in respect of which a grievance is sought to be made out, is that the complainant-contractor C.W. 10, had been suddenly produced and that an opportunity for detailed cross-examination was denied and that no adjournment was given for that purpose, though prayed for. This allegation of the petitioner is not supported by any affidavit filed by the sub-inspector who was assisting the petitioner at the enquiry. These allegations are found to be factually incorrect as can be seen from the record of the proceedings. It would appear that for some time the whereabouts of C.W. 10 were not known and his address was being ascertained. Adjournments were being given for the production of C.W. 10. The investigating officer had been examined-in-chief and his cross-examination had been deferred at the request of the petitioner. (Vide enquiry officer's order sheet dated October 18, 1960.) This request by the petitioner for deferring the cross-examination of the investigating officer, had been made presumably, to cross-examine that officer only after the evidence of C.W. 10 was taken. As a matter of fact. The cross-examination of the investigating officer was completed only after C.W. 10 was examined. The contractor C.W. 10 was produced before the enquiry officer on November 3, 1960 and he was examined that day and cross-examined by the sub-inspector who was assisting the petitioner at the enquiry. No request was made to defer the cross-examination of C.W. 10. The allegation in the petitioner's affidavit that the enquiry officer made certain threats to the sub-inspector who was assisting the petitioner, during the cross-examination of C.W. 10, is not borne out to any extent by any record in the proceedings. Such an allegation against the enquiry officer was not made at any time during the proceedings or subsequently in the representation made by the petitioner to the Government. This allegation has been denied in the affidavit filed on behalf of the State. In these circumstances there cannot be any doubt that this allegation against the enquiry officer was the result of an afterthought and cannot be true. There is absolutely no support for the suggestion that the petitioner had been taken by surprise, by the production of the complainant on November 3, 1960. In the circumstances, We see no force in the arguments advanced on the basis of the said alleged acts on the part of the enquiry officer.

18. The next contention is that a reasonable opportunity as required under Art. 311(2) of the Constitution, has not been given to the petitioner. As to what is reasonable opportunity, for the purposes of Art. 311(2), has been set out in the case of Khem Chand [1959 - I L.L.J. 167]. Referring to that case, his lordship Shah, J., has stated in the subsequent decision of Jagannath Prasad Sharma v. State of Uttar Pradesh [1961 - II L.L.J. 166] as follows at p. 175 :

'The content of the guarantee was explained by this Court in Khem Chand v. Union of India [1959 - I L.L.J. 167] (vide supra). It was observed by chief Justice Das at p. 175 :

'To summarize : the reasonable opportunity envisaged by the provision under consideration includes -

(a) an opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the three punishments and communicate the same to the Government servant'.'

19. All the above requirements have been satisfied in the present case, But the further argument of the learned advocate for the petitioner is that the refusal of the petitioner's prayer for being represented by a legal practitioner, has resulted in a denial of the reasonable opportunity envisaged by Art. 311(2).

20. By his application as per Ex. F. the petitioner had prayed for permission to be represented by a legal practitioner; on that prayer, the enquiry officer passed the order as per Ex. C. refusing permission. The contention on behalf of the petitioner is that Ex. C. does not show whether the enquiry officer had applied his mind to the grounds on which the prayer should be either granted or rejected. We do not find much force in this argument. The grounds on which the petitioner claimed that he should be permitted to have the assistance of a legal practitioner are set out in his application as per Ex. F.; it is with reference to that application that the enquiry officer made the order in accordance with rule 11(5) of the Classification, Control and Appeal Rules. With reference to the said rule, it has been stated as follows in Basavarajappa case [1964 Mys. L.J. 314 at 317] :

'The aforementioned rule 11(5) merely speaks of permission being granted. It does not contemplate any order as such. An accused officer will be entitled to be represented by a legal practitioner only if he gets the necessary permission from the enquiry officer ... The refusal to grant the permission prayed for need not be by means of formal order.'

21. The mere refusal of permission to be represented by another at an enquiry by a domestic tribunal does not, by itself, offend the principles of natural justice. While considering such a refusal in an enquiry by the management into the charges against a workman, the Supreme Court has stated as follows in the case of Kalindi [1960 - II L.L.J. 228 at 230] :

'When the general practice adopted by domestic tribunals is that the person accused conducts his own case, we are unable to accept an argument that natural justice demands that in the case of enquiries into a chargesheet of misconduct against a workman he should be represented by a member of his union.'

22. In the case of Jagannath Prasad Sharma v. State of Uttar Pradesh [1961 - II L.L.J. 166] (vide supra), the disciplinary enquiry was in respect of a police officer. Under the relevant rules, neither the prosecution nor the defence had the right to be represented by counsel. The validity of those rules refusing representation by counsel, does not appear to have been challenged. The grievance which was sought to be made out before the Supreme Court, on behalf of the delinquent officer was, that, while before the tribunal the State Government was represented by a lawyer, the delinquent officer was not permitted to appear by a lawyer. The Supreme Court examined the available material to ascertain as to whether this allegation was true, and then came to the conclusion that it was not. In Basavarajappa case [1964 Mys. L.J. 314] (vide supra) and in Kelkar case [1965 - II L.L.J. 515] (vide supra), this Court has held that a Government servant against whom a departmental enquiry is being conducted, cannot claim as of right that he should have the assistance of a lawyer in such proceedings. The contention of Sri Venkataranga Ayyangar is that in the circumstances of a particular case the refusal to give such permission may amount to denial of the reasonable opportunity contemplated under Art. 311(2). In this connexion he invited our attention to the decision of the Andhra Pradesh High Court in Dr. K. Subba Rao v. State of Hyderabad [1958 - I L.L.J. 206]. The learned advocate sought to make out that the present case was a complicated case in which the petitioner had been accused of having committed the serious misconduct of receiving a bribe, that at the time the enquiry commenced the petitioner was also under the threat of a prosecution under the provisions of the Prevention of Corruption Act and that having regard to the complicated question of law which were involved in a case of this type, the refusal by the enquiry officer has resulted in the petitioner's case not having been put forward in such a way as it should have been, before the enquiry officer. In Kelkar case [1965 - II L.L.J. 515] (vide supra), it has been observed as follows at p. 518 :

'The enquiry in question is a disciplinary enquiry and it does not attract the formalities attached to a proceeding in a Court of law. Restrictions in regard to the right of representation as provided in Clause (5) of rule 11 of the Civil Services (Classification, Control and Appeal) Rules are not unreasonable and do not amount to a denial of fair and reasonable opportunity to the delinquent Government servant to defend himself.'

23. In regard to the legal aspect of this contention, we do not find it necessary to state anything further than what has been said in Basavarajappa case [1964 Mys. L.J. 314] (vide supra) and Kelkar case [1965 - II L.L.J. 515] (vide supra). However, we may point out that the charge which the petitioner had been called upon to face, was in no way an unusual one. The main incident which gave occasion for the enquiry was the incident of the trap. Though the enquiry officer refused permission to the petitioner being assisted by a lawyer at the enquiry the petitioner was permitted the assistance of a police sub-inspector of his own choice. The evidence in support of the prosecution was being led by another police sub-inspector. The witnesses produced in support of the charge were all cross-examined by the sub-inspector Sri K. Srikanta Ayyar, assisting the petitioner. As many as ten defence witnesses were examined by the petitioner; one police sub-inspector and one Inspector were amongst the defence witnesses. At the end of the examination of all the witnesses, the petitioner filed a further statement before the enquiry officer, setting out a number of points which, according to him, required consideration. The Andhra Pradesh case above referred to can be distinguished on the complexity of its own facts, inasmuch as the officer concerned in that case had alleged that it was a Prevention plan against him by the other officers in the department with a view to have him removed, and he had to face a medical board. In the present case which involved merely the determination of the alleged demand and acceptance of the bribe, it cannot be said that for the purpose of a departmental enquiry, the petitioner had not been given a reasonable opportunity to defend himself, even though permission was refused to his being represented by a lawyer. In the case of Vijayacharya Hosur [Writ Petition No. 1463 of 1960, dated August 9, 1963], in respect of a similar contention which had been raised therein, this Court has stated as follows :

'We do not think therefore that the possibility of a lawyer raising these legal defences can be said to have been such as to have caused prejudice or embarrassment to the petitioners.

Upon facts, it is perfectly obvious from the records and also from the full copies of the relevant papers furnished by the petitioners themselves as annexure to the petitions that they have had the fullest opportunity to meet their case and have in their several written statements dealt with every aspect of the matter in sufficient detail and placed before the enquiry officer their case in full.

We are not therefore satisfied that on the facts and circumstances of these cases it can be said that the denial of permission to the petitioners to engage advocates or counsel to represent them in the enquiry has resulted in any prejudice or embarrassment to them.'

24. In the present case also, the petitioner has been given full opportunities to know what the charge against him was, to put in his explanation thereto, to cross-examine the witnesses produced in support of the charge, to adduce his own defence evidence and to give his further explanation and representation; it was after a hearing of both the sides that the enquiry officer made his report. It was only after affording an opportunity to the petitioner, at every relevant stage to offer such explanation as he may have and after consideration of the same, that the punishment has been finally imposed by the Governor. In these circumstances, the mere possibility that a lawyer appearing for the petitioner may have put his case better before the enquiry officer, cannot afford any legal ground for contending that the refusal of permission has amounted to a denial of a reasonable opportunity for purposes of Art. 311(2).

25. We find no substance in the contention that the principles of natural justice have not been observed and that the petitioner did not have the reasonable opportunity contemplated under Art. 311(2) of the Constitution.

26. In support of the third and last contention that the evidence against the petitioner consisted of illegal and inadmissible material which could not be legally acceptable to sustain the finding that the petitioner was guilty of the alleged misconduct, the learned advocate for the petitioner has addressed a number of arguments pertaining to the details of evidence. One of such arguments is that the complainant, C.W. 10, was an unreliable sort of person and that when his evidence has not been corroborated by the evidence of another maistry who was claimed to have been present at the time of the acceptance of the bribe, the evidence of C.W. 10 ought to have been rejected. Some evidence had been adduced by the petitioner to show that C.W. 10 had been the accused in a number of criminal cases; on the ground that there was doubt as to whether C.W. 10 was the same person as had been involved in those cases, the enquiry officer does not appear to have given any value to that evidence. The contention is that the enquiry officer was wrong in having done so. It is not for the High Court to appreciate the evidence as to whether the person who had been accused in those criminal cases was C.W. 10. That was a matter for the enquiry officer and it would not be for the High Court to review that evidence. From what has been stated by the Supreme Court in State of Orissa v. Murlidhar [A.I.R. 1963 S.C. 404] it is clear that where on a consideration of the evidence before it, the enquiry officer or tribunal had reached some conclusion in regard to the identity of a person, it would not be for the High Court to review that evidence.

27. Nor do we find much force in the attack that there is no corroboration of the evidence of C.W. 10. The contention is that he is an unreliable witness and that he is in the position of an accomplice. That was a matter for the enquiry officer to accept or reject. An enquiry like this is part of the disciplinary proceedings necessary to ensure the maintenance of purity in the ranks of Government servants. The purpose of such enquiries is to find out whether a Government servant had committed any alleged act of misconduct and if so, which of the specific penalties (under the conditions of service) is called for in the circumstances. Such an enquiry cannot be equated with a trial the purpose of which is to establish before a criminal Court, some offence under the criminal Court, some offence under the criminal law of the land. As pointed out by the Supreme Court in State of Andhra Pradesh v. Rama Rao [1964 - II L.L.J. 150], there is no warrant for the view that in a departmental enquiry, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied. The departmental authorities are the sole judges of facts and if there be some legal evidence on which their findings can be based, it is not for the High Court to decide either the adequacy or reliability of that evidence. Therefore, there can be no rule that before the enquiry officer accepted the evidence of C.W. 10 he should have looked for corroboration. See in this connexion Basavarajappa case [1964 Mys. L.J. 314] (vide supra) where it has been observed that the enquiry officers can act on the basis of uncorroborated testimony of accomplices or partisan witnesses. In America also, it appears that in departmental proceedings, the finding can be based on the uncorroborated testimony of an accomplice. At p. 279 of Corpus Juris Secundum (Vol. 67), it is stated as follows :

'The rule that a defendant cannot be convicted in a criminal prosecution on the uncorroborated testimony of an accomplice does not apply in proceedings to remove an officer for alleged malfeasance in the performance of his official duties, although such testimony should be carefully scrutinized.'

28. Further, it cannot be said that in the present case, merely because that maistry has not been examined, there is no material at all to corroborate the evidence of C.W. 10.

29. Some grievance was sought to be made of the fact that C.W. 10 was not examined as the first witness, or at least before the examination of other witnesses speaking to the trap. But there is no rule that such a witness should have been examined before the other trap witnesses were examined. Further, it appears that as C.W. 10's whereabouts were not known his presence could not be secured earlier.

30. A contention was sought to be raised that the enquiry officer had no competence to permit clerk Jaya being treated as a hostile witness. It was sought to be contended that as the enquiry officer was nor bound by the provisions of the Evidence Act, he was incompetent to give permission for treating a witness a hostile. We do not find any substance in this contention. The practice of the Courts in granting permission to a party to put to his own witness questions which may be put in cross-examination is for the purpose of assessing the credibility of the witness. While an enquiry officer or tribunal is performing a quasi-judicial function, there is nothing to prevent (him or it) from following such a practice, where the same is considered necessary for finding out the credibility or otherwise of a witness.

31. All these are matters pertaining to the appreciation of the evidence and the circumstances in the case which, it was for the enquiry officer to take into consideration and certainly not for the High Court in its writ jurisdiction under Art. 226. The Supreme Court has pointed out in State of Andhra Pradesh v. Rama Rao [1964 - II L.L.J. 150] (vide supra) that

'Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence.'

32. The learned counsel sought to rely on the decision of the Supreme Court in Union of India v. H. C. Goel [1964 - I L.L.J. 38] and it was sought to be contended that the High Court can interfere on the ground that there was no evidence at all in support of the impugned conclusion of the enquiry officer. In this connexion, reliance is sought to be placed on the following statement of the Supreme Court in 1964 - I L.L.J. 38 at 45 :

'In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question, but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.'

33. As many as ten Court witnesses have been examined and as many as ten defence witnesses have been examined. We are unable to accede to the contention of the petitioner's counsel that this is a case in which there is no legal evidence at all to sustain the conclusion reached by the enquiry officer. In a fairly detailed report, the enquiry officer has referred to the evidence of the various witnesses and the relevant circumstances on the basis of which he has reached the conclusion that the petitioner was guilty of the alleged misconduct.

34. One other matter pointed out by the learned advocate for the petitioner was that towards the end of the report, the enquiry officer had stated that immediately after the trap the petitioner had tried his best to create false evidence in his (petitioner's) favour and that on the top of it, the petitioner tried to incriminate the complainant in a criminal case where also the petitioner failed. The contention on behalf of the petitioner is that these remarks by the enquiry officer were factually incorrect. It would appear that on the very night of the incident of the trap the petitioner had phoned to his superior officer, the Executive Engineer, stating to the effect that he was innocent and was being falsely implicated. On the next day, a written statement in regard to this incident, is said to have been forwarded by clerk Jaya to the Executive Engineer. A few days thereafter, the petitioner had lodged a complaint against the contractor, C.W. 10. That complaint having been referred by the magistrate to the police for enquiry, the police appear to have submitted a 'B' report (that is to the effect that no case had been made out). As against this, a revision petition had been preferred by the petitioner, to the Sessions Judge who dismissed that revision petition under the impression that a prosecution under the Prevention of Corruption Act had been launched and that the whole question could be thrashed out therein. It was contended on behalf of the petitioner that, in these circumstances, the enquiry officer was not justified in remarking that the petitioner had tried to create false evidence in his favour. If upon the materials before him the impression created on the mind of the enquiry officer was that the petitioner had tried to create false evidence in his own favour, there is no reason as to why he should not have stated so in his report. Further, even if it were to be assumed that the enquiry officer was unjustified, in making such a remark in those circumstances, it does not follow that the report made by him is in any way vitiated thereby, when there is ample other material which could form the basis of the conclusion reached by the enquiry officer. In this connexion, it would be relevant to bear in mind what has been stated by the Supreme Court in the case of Syed Yakoob : [1964]5SCR64 :

'The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior courts or tribunals as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned findings. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised [vide Hari Vishnu Kamath v. Ahmad Ishaque : [1955]1SCR1104 ; Nagendra Nath v. Commissioner of Hills Division (1958 S.C.R. 1240); and Kaushalya Devi v. Bachittar Singh : AIR1960SC1168 .]'

35. Judged by the tests laid in the cases above referred to, the finding of the enquiry officer and the order passed thereon by the Government imposing the punishment of dismissal on the petitioner, can be fully sustained. We find no grounds to interfere with the same.

36. In the result, this writ petition fails and is dismissed with costs. Advocate's fee Rs. 150.


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