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Shyama Charan Vs. Commissioner, Rohelkhand Division, Bareilly and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3286 of 1962
Judge
Reported inAIR1969All11; (1969)IILLJ603All
ActsConstitution of India - Article 311
AppellantShyama Charan
RespondentCommissioner, Rohelkhand Division, Bareilly and ors.
Appellant AdvocateG.D. Srivastava, Adv.
Respondent AdvocateV. Mitra, Adv. and ;S.C.
DispositionPetition dismissed
Excerpt:
.....bodies - evidence supplied in support to charge - held, no inflexible rule can be laid down that charge must state evidence in support of charge. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working..........himself.5. the second objection was that the petitioner had not been supplied with a copy of the enquiry report. a copy of this report is annexed as annexure 2 of the counter affidavit. the report is extremely short and merely mentions the replies given by the petitioner. it is in the nature of an office report giving a summary of facts of the case and containing the comment after each summary against each charge : 'hence, the charge is proved'. the summary of the evidence begins in every case with the admissions made by the petitioner himself. it would certainly have been proper if this enquiry report had been sent to the petitioner together with the show cause notice sent by the adhyaksh. in the present case, neither the show cause notice nor the so called report of the enquiring.....
Judgment:
ORDER

M.H. Beg, J.

1. The petitioner is a dismissed employee of the Antarim Zila Pari-shad, Bareilly, opposite party No. 3. He has prayed for a writ of certiorari to quash the order of the President, Antarim Zila Parishad, opposite party No. 2 passed on 4-1-1962 dismissing the petitioner from service and also the order of the Commissioner dated 12-7-1962 upholding the dismissal.

2. Mr. G. D. Sriyastava appearing for the petitioner has raised a number of objections to the disciplinary proceedings taken against the petitioner. The first of these objections was that the charge which was preferred against the petitioner does not contain an actual statement of the evidence which was to be used against the petitioner. In this connection Mr. Srivastava relied upon a recent decision of the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Devi, C. A. No. 499 of 1965, SC Notes Vol 9 No. 4, February 15, 1967= (AIR 1967 SC 1269) In this case it was held :

'..... the person against whom an enquiry is held must be informed of the case he is called upon to meet, the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences.'

In that case, the Supreme Court was dealing with the essentials of natural justice in explaining the fundamental rules of the natural justice. It mentions that the person charged must be informed of the case and the evidence in support thereof. But, it did not specifically lay down any rule that the show cause notice itself must mention the evidence in the form of enumerated items. My attention was invited to an appendix of a copy of G. O. No. R. O. 57/XI-A-14-1953 dated Lucknow June 13, 1953 from the Secretary to Government, Uttar Pradesh, to all District Magistrates, Uttar Pradesh, relating to the procedure to be followed in disciplinary proceedings against servants of the local bodies. In the appendix, the form of charge to be used in Disciplinary Proceedings is given. Here, after the specimen charge framed somewhat in the manner in which the charge is framed in a criminal proceeding, the following sentence occurs :--

'Evidence which it is proposed to consider in support of the charge.'

Thereafter, the evidence has to be mentioned itemwise and numbered. It is certainly better to follow this direction and set out the evidence in support of the charge.

3. In the present case, the charge (An-nexure I to the petition) is a four page document containing 12 heads of charges. After each charge, actual facts upon which the charge is based are mentioned. But, these facts are not numbered. As an instance I may mention charge No. 2 which states : 'a sum of Rs. 268/- was drawn in the name of the Engineer A. Z. P. who paid the amount to you for the purchase of stamp, writing and registration charges in connection with the donation of the building of Dhaunra by Sri Ram Murti Ji'. After that, occurs the following statement of facts : 'The entire file of the case was also handed over to you. Neither the account nor the stamp and the connected file has so far been submitted by you. In this case you have admitted that a sum of Rs. 78.50 are still in balance with you which should have been refunded by you long ago but you are misappropriating it as per your statement'. Thus, it was indicated, after framing of each charge, that the Adhyaksh was going to rely upon certain facts within the knowledge of the petitioner himself which had been put to the petitioner in the course of the enquiry conducted in relation to the charges.

4. The petitioner in reply to the charges dated 23-9-1961 submitted a lengthy reply and explanation (Annexure IV of the petition) dated 25-11-1961. So far as charge No. 2 mentioned above was concerned, the petitioner divided it into two portions, denying the receipt of the file but admitting the payment of Rs. 268.50 to him and also admitting that the expenses meant, to be incurred on the purchase of stamped paper and writing of the document had remained with the petitioner and may be deducted from his salary. The petitioner also said that the balance of the amount remained with him would be returned if the registration of the document did not materialise. It was clear from his reply that he has given no explanation for failure to get the document registered. He admitted that the amount still due from him may be deducted from his salary. Such a statement could certainly be interpreted as an admission that he had misappropriated the amount in the eye of law. The evidence in support of the charge in the form of this admission was contained in the petitioner's own reply to the charge. In such a case, the petitioner could not complain that the charge did not contain all the evidence. In fact, the evidence consisting of the admission was supplied by the petitioner himself. I, therefore, do not think that any inflexible rule can be laid down that, in every case, the charge must state the evidence in support of the charge. In some cases, as in the case of the petitioner, the best evidence may be provided after the charge and by the accused himself.

5. The second objection was that the petitioner had not been supplied with a copy of the enquiry report. A copy of this report is annexed as Annexure 2 of the counter affidavit. The report is extremely short and merely mentions the replies given by the petitioner. It is in the nature of an office report giving a summary of facts of the case and containing the comment after each summary against each charge : 'Hence, the charge is proved'. The summary of the evidence begins in every case with the admissions made by the petitioner himself. It would certainly have been proper if this enquiry report had been sent to the petitioner together with the show cause notice sent by the Adhyaksh. In the present case, neither the show cause notice nor the so called report of the Enquiring Officer, was attached to the petition by the petitioner or submitted by the opposite parties. A supplementary affidavit was sought to be filed today to make good the shortcoming, and it wan received in evidence. It did not, hown er, necessitate a reply of the opposite parties to meet the supplementary affidavit filed at so late a stage. The supplementary affidavit attaches a copy of the show cause notice. The show cause notice summarises the findings arrived at by the Enquiring Officer. It also mentions that, after considering the explanation of the petitioner to the charges served upon him and the enquiry held by the Secretary under the authority of the Adhyaksh and the entire evidence which was placed before the petitioner himself, and, after giving the petitioner an opportunity to explain all the charges and the evidence, and having heard the petitioner in person and given him the opportunity to produce evidence, which the petitioner did not produce, the Adhyaksh had arrived at a conclusion to award the punishment of dismissal. The show cause notice gave the petitioner 7 days' time for submitting his explanation or reply and stated that, in the absence of such explanation, it would be assumed that there was no reply to be given.

6. A number of cases were cited in support of the proposition that the report of the Enquiring Officer ought to have been supplied to the petitioner together with the show cause notice. The main case cited was of Jagdish Prasad Saxena v. State of Madhya Bharat, AIR 1961 SC 1070. In this case, the Supreme Court pointed out that the petitioner did not get sufficient opportunity to meet charges framed against him as he did not get an opportunity to cross-examine certain witnesses and was also not given a copy of the report made by the Enquiring Officer so that he could not offer an explanation as regards the points made against him. The enquiry report was mentioned as one of the items which the petitioner in that case did not get the opportunity to meet. This omission was considered as a part of the total set of facts upon which the Supreme Court arrived at the conclusion that the petitioner in that case did not get a reasonable opportunity to show cause. On such a question, there can be no hard and fast rule laid down as pointed out by the Supreme Court in Kapur Singh v. Union of India, AIR 1960 SC 493, where it was held that an opportunity of making an oral representation is not a necessary ingredient of an opportunity of showing cause within the meaning of Article 311. It was pointed out :

'Whether the opportunity afforded to a public servant in a particular case is reasonable must depend upon the circumstances of that case.'

7. In the petitioner's case, although it would have been better to supply the report of the Enquiring Officer to him, yet, the information contained in that report was so meagre that the petitioner could not be said to have been prejudiced by the failure to supply him with a copy of that report. In fact, he had received all the information contained in the report already by means of charges framed against him and what took place at the enquiry itself. The report merely summarizes items of evidence and gives conclusions as indicated above. The petitioner already knew more than what was contained in the report. Moreover, it is stated, in paragraph 35 of the counter affidavit, that the petitioner had access to the report and had seen it on 20-12-1961 when he came to the office. It was also mentioned that the findings of the enquiry report were mentioned in the show cause notice. It was for this purpose that the supplementary affidavit was filed. The allegation that the petitioner had actually seen the enquiry report was not controverted in the rejoinder affidavit by any reference to paragraph 35 of the counter affidavit. Mr. Srivastava pointed out that it was controverted in paragraph 28 of the rejoinder affidavit which states that the petitioner was not given intimation of contents of or shown the enquiry report. This rejoinder affidavit was filed so late on 11-9-1967. The contents of paragraph 28 are incorrect in view of the summary of the findings in the report given in the show cause notice of which a copy is annexed to the supplementary affidavit permitted to be filed by the petitioner at the hearing. In any case, in view of all the facts mentioned above, the mere omission to supply a copy of the enquiry report was not sufficient to show that the petitioner did not get sufficient opportunity to show cause.

8. The third objection was that the petitioner was not given time to file a reply to show cause notice inasmuch as the show cause notice gave a week's time only for a reply. Reliance was placed upon the direction already mentioned in Annexure VIII to the writ petition. This direction given to the local bodies about show cause notices states that from a fortnight to a month should be given for giving an opportunity to reply to a notice to show cause. In the present case, the petitioner was certainly given only one week and the application to give further time was not granted. The petitioner, therefore, relied upon Bibhuti Bhusan Das v. Divisional Superintendent S. E. Railway, AIR 1964 Orissa 279 where it was held, in similar circumstances, that a more reasonable opportunity to show cause ought to be given. However, as already indicated above, this want of sufficient time to show cause should be taken into account in considering the totality of facts and circumstances to determine whether reasonable opportunity was given to show cause. This defect will not vitiate the proceedings against the petitioner if the opportunity to show cause can be held to be reasonable on the whole.

9. The last objection was that the Commissioner before passing his order did not give a personal hearing. No rule was shown to me in support of the proposition that a dismissed employee should be given a personal hearing by an appellate authority, although I am of the view that it is better that a personal hearing should be given by the appellate authority.

18. After having considered pros and cons of the opportunity which was given to the petitioner to be heard I have come to the conclusion that, in view of the admission by the petitioner of his guilt, such defects in the opportunity given to the petitioner as have been pointed out do not vitiate the proceedings. The finding given by the Commissioner, as the appellate authority, that the petitioner had admitted the guilt so far as the charge No. 2 is concerned, has not been assailed by any ground in the writ petition. Moreover, after examining the charge and the replies I think that the finding given is justified as already indicated above. Therefore, in the circumstances of the present case, no useful purpose will be served by quashing the proceedings against the petitioner and sending them back for a retrial.

11. In the circumstances of the case, I dismiss the writ petition. The parties will bear their own costs.


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