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State of U.P. and anr. Vs. C.S. Sharma - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 551 of 1960
Judge
Reported inAIR1963All94; (1963)ILLJ478All
ActsConstitution of India - Article 311(2); Civil Services (Classifications, Control and Appeal) Rules - Rule 55
AppellantState of U.P. and anr.
RespondentC.S. Sharma
Appellant AdvocateStanding Counsel
Respondent AdvocateS.C. Khare, Adv.
DispositionAppeal dismissed
Excerpt:
service - examination of witness - article 311(2) of constitution of india and rule 55 of civil services - non-production of witnesses by the officer - object of the enquiry to find truth - denial of reasonable opportunity - officer asked to show cause - delay in calling defence witness - no adequate justification to refuse to examine the defence witnesses whom the other party wanted to produce - officer dismissed after inquiry - whether the inquiring officer has a bias and if the finding of bias was sufficient for holding that there was sufficient bias - held, charged officer had no reasonable opportunity of showing cause. - - 3. on the 28th january, 1953, the sales tax commissioner recommended to government the suspension of sharma and sharma was in fact put under suspension on.....mukerji, j.1. this is an appeal against the decision of a learned single judge of this court allowing a petition of the respondent made under article 226 of the constitution and issuing n writ of certiorari quashing an order of the state government dated the 28th july, 1955, and awarding the respondent costs of the proceedings. the state government has come up in appeal against the aforementioned order. in order to appreciate the points raised in this appeal it is necessary, even though briefly, to know a few facts. 2. the respondent, c. s. sharma, was appointed on the 25th january, 1949, as a sales tax officer in a temporary capacity. in april, 1950, he was posted at hathras and on the 3rd october, 1952, he was transferred to lakhimpurkheri. it appears that sharma was suspected by his.....
Judgment:

Mukerji, J.

1. This is an appeal against the decision of a learned single Judge of this Court allowing a petition of the respondent made under Article 226 of the Constitution and issuing n writ of certiorari quashing an order of the State Government dated the 28th July, 1955, and awarding the respondent costs of the proceedings. The State Government has come up in appeal against the aforementioned order. In order to appreciate the points raised in this appeal it is necessary, even though briefly, to know a few facts.

2. The respondent, C. S. Sharma, was appointed on the 25th January, 1949, as a Sales Tax Officer in a temporary capacity. In April, 1950, he was posted at Hathras and on the 3rd October, 1952, he was transferred to LakhimpurKheri. It appears that Sharma was suspected by his superior officers not to have conformed, to say the least of it, to the strict rules of conduct and behaviour expected of a public servant; this belief led to an enquiry in the conduct and dealings of Sharma by an Assistant Commissioner of Sales Tax. This enquiry was made ex parte against Sharma but even so we find that by an order of the 14th December, 1952 Sharma was asked not to visit Hathras. This order presumably was made in order to obviate the possibility of Sharma tampering with the evidence that could havebeen available in order to find the truth or falsity of what was suspected against Sharma.

3. On the 28th January, 1953, the Sales Tax Commissioner recommended to Government the suspension of Sharma and Sharma was in fact put under suspension on the 18th February, 1953. This letter of the Sales Tax Commissioner to Government will be considered by us at a later stage in connection with the consideration of the question whether or not there was 'bias' in the enquiring officer as against Sharma and whether or not that bias under the circumstances of the case was sufficient to enable this Court to set aside the entire proceedings which culminated in the dismissal of Sharma, but in this context all we need note is that in the letter the Sales Tax Commissioner said that he had by his 'personal enquiries also satisfied himself that Sharma was to quote his own words again 'undoubtedly corrupt'.

4. A charge-sheet dated the 15th April, 1953, was served on Sharma as required by the rules and it may here be noted, though no significance attaches to the fact to be noted, that Sharma, in order to prepare his defence to the charge-sheet mentioned above, made an inspection of the records on the 27th April, 1953 and on the 6th May, 1953. The first charge-sheet, however, was found defective in certain respects though it is not necessary to know in what respect it was found defective, for that charge-sheet in a sense was withdrawn as on the 16th May, 1953, the Sales Tax Commissioner made an order to the effect that Sharma need submit no explanation in respect of the charge-sheet which had been served on him. This, however, did not put an end to the matter for on the 8th July, 1953, another charge-sheet was prepared and the respondent was duly served with that charge-sheet and called on to submit his explanation.

On the 10th July, 1953, the respondent made an application for the inspection of the records again: we say 'again' because we have noticed that he had made a similar request which had been granted in respect of the charge-sheet which had been drawn up against him on the 15th April, 1953. On the 17th July, 1953, Sharma was told that he would be allowed inspection of the records after he had submitted his explanation. The respondent submitted his explanation on the 12th August, 1953, along with a letter, which had been exhibited as Annexure 10 to the petition which was filed by Sharma. In this letter Sharma clearly claimed to be heard in person. He also said that he desired the evidence of the witnesses cited against him to be recorded in his presence and he be afforded an opportunity to cross-examine the witnesses through a lawyer duly authorised by him. He further requested that he should be allowed to represent his case personally as well as through a duly authorised lawyer. In this letter he sought permission to examine three witnesses who were named for, as he said, 'clearing the charge of the purchase of the car.'

On the 31st October, 1953, Sharma was told by the Sales Tax Commissioner that he would be permitted to produce his witnesses in due course. On the 25th January, 1954, the respondent was asked to put in his list of defence-witnesses by the 3rd February, 1954. On the 2nd February, 1954,the respondent made an application praying for 20 days' time for submitting such a list. This re-quest was turned down by the Sales Tax Commissioner on the 6th February, 1954. The respondent was, however, not disheartened by his request having been turned down and he made another application on the 10th February, 1954, for time. This application was not disposed of inasmuch as no orders appear to have been made one way or the other on this application. Finding himself in a state of uncertainty, or at any rate, not being very sure of the fate of his application for time dated the 10th February, 1954, the respondent thought it advisable to submit a list of witnesses whom he intended to call in his defence and he did so by a letter dated the 24th February, 3954. In this letter, which is Annexure 15, the respondent named four witnesses: (1) Shri R. N. Sharma, Retired Income-tax Officer, Idgah Colony, Agra; (2) Captain R. K. Dikshit, I. M. S., Retired Civil Surgeon, Vijainagar Colony, Agra; (3) Shri Chheda Lal, Gurihawala Pech, Chamar Gate, Hathras; and (4) Shri Shiv Lal Sharma, 18 Rohtak Road, Karolbagh, New Delhi. He also said this in the aforementioned letter:

'Further witnesses, if any, who might be thought necessary shall be produced by me and examined after your honour's permission at the time'.

On the 25th March, 1954, the respondent wrote to the Sales Tax Commissioner making a grievance of the fact that although he had submitted a list of witnesses almost a month earlier yet he had not heard anything about a date being fixed for the examination of witnesses. The respondent sent another similar letter on the 10th April, 1954, From the record it does not appear that a date was ever fixed and communicated to the respondent for the production of his evidence. There was an enquiry at which the deposition of those witnesses, whose statements had been recorded during the ex parte enquiry conducted by the Assistant Sales Tax Commissioner, was read out to the witnesses and they admitted having made such a statement and then the respondent was called upon to cross-examine those witnesses. The respondent did not, in fact, get an opportunity to produce any defence witnesses,nor does he appear ever to have been clearly told that he would not be allowed to produce any defence-witnesses because of some reason good, bador indifferent.

5. On the 8th April, 1954, a report was submitted to Government by the enquiring officer--Sales Tax Commissioner--containing the results of his enquiry and the findings arrived at by him in respect of the charges which had been formulated against the respondent. Government considered the report of the enquiring officer and by their letter dated the 27th July, 1954, a Deputy Secretary to Government served a show-cause notice on behalf of Government to the respondent in the following words:

'The undersigned is directed to refer to the explanation submitted by Sri S. C. Sharma, Sales Tax Officer (under suspension) in respect of the charges framed against him by the Inquiry Officer appointed in the case, i.e., the Commissioner, Sales Tax Utter Pradesh, in his letter No. A-3-23-4231/ST, dated July 8, 1953, (??) & to forward herewith a copy of the proceedings prepared by the Inquiry Officerunder Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, along with a statement showing the points of disagreement between the findings of the inquiry Officer and the conclusions arrived at by the Punishing Authority i.e., the Governor of Uttar Pradesh. Sri Sharma is informed that in view of the facts brought to light during the course of the proceedings Government propose to dismiss him from service and he is accordingly hereby asked to let Government know within one month of the receipt of this Office Memorandum as to why he should not be dismissed from service'.

6. It is significant to note that Government did not agree with ail the findings which were arrived at by the enquiring officer and along with the show-cause notice they gave a statement showing the points of disagreement between the findings of the enquiring officer and the conclusions arrived at by the punishing authority with reasons therefor. The points of disagreement related to Charge No. 1 Allegation No. 2, Charge No. 3 Allegation No. 1, and Charge No. 4.

7. The respondent submitted his explanation which ran into several pages on the 25th August, 1954. In this explanation apart from joining issue in regard to questions of fact found against the respondent, the respondent raised two questions of fundamental importance which centred round that eternal question calling for investigation and determination in such matters, namely, whether or not the charged officer has had 'reasonable opportunity of showing cause'. The respondent said, first, that he had not been afforded an opportunity of hearing the witnesses produced against him in regard to their accusations since no statement in the nature of proper examination-in-chief was recorded in the presence of the respondent, and secondly, that he was not given a hearing, meaning thereby that he was not permitted to argue the case, or make verbal submissions in regard to the case before the enquiring officer. In regard to this matter of opportunity this is how the respondent put the matter in his explanation:

'As I have not been afforded any reasonable opportunity for defending myself, the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and of Article 311(2) have not been complied with. All further proceedings are, therefore, unconstitutional and against law.'

In the aforementioned context it is appropriate to know how the Commissioner, Sales Tax, who was the enquiring officer, put the matter of the actual enquiry before Government in his communication to Government in respect of the enquiry. This is how it was staled therein:

'The hearing was fixed on November 25 and 26. 1953. This was postponed to November 26 and 27, 1953 and finally to December 8 and 9, 1953. Sri Sharma appeared and the witnesses who spoke to the charges were examined in his presence and cross-examined by him. At his request he was also allowed to cross-examine Sri Sinha on January 4. 1954. This was postponed to January 25, 1954, on Sri Sharma's request. After Sri Sinha's cross-examination Sri Sharma was asked to submit the list of defence witnesses together with a gist of their evidence on or before February 3, 1954. On,February 2, 1954, he submitted an application asking for 20 days' time on the ground that some of the persons whom he wanted to produce were not available. This is no ground for not submitting their names specially as he was told several months earlier (in November) that he would be required to produce witnesses in his defence.....'

'It will be seen that this is a purely delaying excuse. The reason was obviously certain newspaper reports about my transfer. Under the circumstances his request was rejected. I am satisfied that the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and of Article 311(2) of the Constitution have been fully complied with.'

From the above quotations from the report of the Commissioner, Sales Tax, it would appear, first, that the witnesses who 'spoke to the charges' were examined in the presence of Sharma and he was asked to cross-examine them, and secondly, that the defence witnesses whom Sharma wanted to examine were not permitted to be examined because, first; their names were not given within the time fixed for the supply of the list of their names, and secondly, that the prayer for further time was considered as a dilatory tactic in the belief that such tactics would result in Mr. Das, who was to conduct the enquiry as Sales Tax Commissioner, going away on transfer and thereby the respondent would get the opportunity of having his case before another officer. What may cause a little amusement to an impartial reader of the report, from which we have made the above quotations, is to note that the enquiring officer himself certified that the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules as also the provisions of Article 311(2) of the Constitution had been complied with by him, when in the normal course this was either for Government to determine or for a court to determine and pronounce upon if and when a question in regard to it was raised by the charged officer.

8. The two questions which the respondent as a petitioner raised in his petition and prominently pressed before the learned single Judge were, first, whether he had a fair opportunity of meeting the evidence used against him when a part of that evidence had not been deposed to by the witnesses in his presence and he had been called upon to cross-examine the witnesses really on their earlier ex parte statements, and secondly, whether there was a denial of fair opportunity to him to produce Ms defence witnesses.

It appears from the judgment of the 'learned single Judge that the question of bias of the enquiring officer was also raised and argued for we find that the learned single Judge recorded a finding in favour of the respondent to the effect that there was bias in the enquiring officer against the respondent and, therefore, the enquiry made by him had been vitiated. We may at this stage note that in regard to the question of bias we shall have to consider, first, whether this question of bias could appropriately have been raised at the stage at which it was raised when it was not an unmixed question of law, and secondly, whether the bias of the enquiring officer, assuming that there was such bias,could vitiate the proceedings when there was no bias in the authority which ultimately passed the order of dismissal under Article 311 of the Constitution and when the result of the enquiry made by the enquiring officer was made the subject of scrutiny by the ultimate authority entitled to pass final orders in respect of the matter.

9. We shall first deal with the question as to whether or not the respondent had a fair and adequate opportunity to show cause against the action proposed to be taken in regard to him within the meaning of Article 311 of the Constitution. The learned single Judge held that the charged officer had not a reasonable opportunity to meet the case set up by his accusers against him. The main basis for the learned single Judge to come to that decision was that, in the view of the learned single Judge the denial to the charged officer of an opportunity to argue his case was in effect the denial of a reasonable opportunity.

10. The respondent in this particular case relied on several circumstances for his contention that he had no reasonable opportunity to meet the charges against him properly. It would not be out of place here to note the salient circumstances on which reliance was placed by the respondent. These circumstances were:

(1) that there was no adequate opportunity afforded to the respondent to call and examine hisdefence witnesses;

(2) that the respondent himself had no opportunity to either give his own oral testimony on oath or make verbal submissions in an effort to explain the charges made against him; and

(3) that the opportunity which was afforded to the respondent was only to cross-examine the witnesses on whose testimony reliance was placed in support of the charges made against the respondent and who were not examined in the presence of the enquiring officer and the charged officer but the charged officer was asked to cross-examine those witnesses in respect of statements given by those witnesses behind the back of the respondent.

11. The learned single Judge came to the conclusion that the fact that whether the charged officer in this particular case had adequate opportunity or not to produce the evidence of the defence witnesses he wanted to, could be of no consequence and did not cause him any prejudice inasmuch as the evidence he wished to call was relevant to those charges only in respect of which it was held that they were not proved against the respondent. Therefore, the learned single Judge held that the procedure adopted or irregularities in the procedure could not vitiate the ultimate order of dismissal made against the respondent.

12. The question whether the non-production of witnesses affected the ultimate decision or not cannot, in our opinion, be determined merely on the ground that the witnesses who were to be called were prima facie intended to explain away some particular charge. There was nothing in law which could justify confining the examination of any defence witness to any particular charge for there was no law which could empower the enquiringofficer or the authority which ultimately had the power to take action against the charged officer under the provisions of Article 311(2) of the Constitution to ask the charged officer to confine the examination of a witness to any particular charge. The tact that under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules the enquiring officer had the power to hear only such oral evidence as the enquiring officer considered necessary did not justify the enquiring officer to ask the charged officer to confine the evidence of witnesses to any particular charge. The power vested in the enquiring officer under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules to decide as to what oral evidence he was going to hear could possibly entitle him to ask the charged officer to indicate the nature of the evidence which a witness called by him was going to give.

Rule 55 further provides that the charged officer shall be entitled:

'to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for sufficient reason to be recorded in writing, refuse to call a witness.'

It appears to us that for the purpose of deciding whether or not a witness called by the charged officer may be permitted to be examined by him the enquiring officer may call upon the charged officer to indicate the nature of the evidence that a defence witness was going to give, but then this power could not, in our opinion, be justly used to shut out a witness's evidence on other points than what was indicated by the charged officer to be the scope of the witness's evidence. The power of a court and an enquiring officer to shut out evidence can only appropriately relate to relevancy, or where there is a legal bar or even a moral bar, if there could be such a bar, to permitting evidence being led.

It should be perfectly clear to any one, who has had an opportunity to either lead evidence or hear evidence being led, that witnesses generally give evidence which touch upon more than one point in controversy and that it is rarely that one comes across a case when a witness speaks only in respect of one point in the controversy, except in those cases where the witnesses fall in the category of, what is known as, formal witnesses, namely, witnesses coming forward to prove a document, etc.

We are of the opinion that where defence is shut out on the ground that when asked as to what the nature of the evidence of the witness was going to be the charged officer indicated only that the witness to be called was to give evidence in respect of only one charge, the fact that that witness was not examined and the fact that subsequently the charge in respect of which the charged officer indicated his desire to examine the witness was held not proved could not be said, as a general proposition, to have caused no prejudice to the charged officer, nor could it be held that the charged officer has had a reasonable opportunity of showing cause.

13. It was argued on behalf of the State that the charged officer delayed summoning his defence witnesses, and further that the charged officer neverat any stage indicated that the witnesses he wished to call could be of benefit to him in meeting other charges than the one which be had indicated they were going to explain. The question of delay has to be looked at in the context of the progress of the enquiry, for it cannot be laid down as a general rule that an enquiring officer has the power to fix a date by which the charged officer must summon his defence witnesses and if they are not summoned by that date then the enquiring officer has the right to refuse to let the charged officer examine those witnesses in his defence at the enquiry. Where it is found that the charged officer has had adequate opportunity for calling his defence witnesses and where the charged officer was guilty of laches in calling his witnesses or where the charged officer resorted to dilatory tactics to delay the enquiry, in such cases the enquiring officer may have the power not to examine the defence witnesses. This power, in our opinion, was also there in the enquiring officer under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.

14. As we noticed earlier, on the 25th January, 1954, the respondent was asked to put in his list of defence witnesses by the 3rd of February, 1954. The respondent applied for time for this purpose on the 2nd February, 1954, which was refused by an order made on 6th February, 1954. The respondent again applied for time on the 10th February, 1954, but no orders were passed on this application by the enquiring officer. The respondent put in a list of his witnesses on the 24th February, 1954. No order seems to have been passed either allowing him to produce those witnesses or refusing him permission. On the 25th March, 1954, the respondent applied to the Sales Tax Commissioner for fixing a date for examining his defence witnesses, but no date was fixed. In this context we have also to notice the fact that the report by the enquiring officer was submitted on the 8th April, 1954. Therefore, it could not be argued, even assuming that the enquiring officer had set the 8th April, 1954, as a dead line for submitting his report, that the submission of the report on the 8th April, 1954, could have been delayed or upset if the respondent had been permitted to examine his witness, a list of which he had submitted on the 24th February, 1954, for the enquiring officer could have fixed a date for examining the respondent and his witnesses immediately after the list of defence witnesses had been given by him on the 24th February, 1954. As it is, we find that the enquiring officer took no steps in regard to this matter, not even a month later when on the 25th of March, 1954, the respondent made an application requesting for a date being fixed for the examination of his defence witnesses. We find it difficult to say that there could be adequate justification in the enquiring officer to refuse to examine the defence witnesses whom the respondent wanted to produce.

15. The justification, which was found to uphold the decision of the enquiring officer in regard to the defence witnesses on the circumstance that the defence witnesses were named, on the showing of the charged officer himself, to meet one particular charge and the fact that since that charge was not found proved later could cause no prejudiceto the charged officer, has, in our opinion, no substance, for no one can say that the witnesses whom the charged officer purported to call prima facie to meet one particular charge could not throw light on, or give a lie to, other charges made against the respondent. Nothing is more valuable to any one who finds himself in the position of an accused, whether in departmental proceedings or in a court of law, than to have his say by himself and through his witnesses. If rules of natural justice and law require, as they seem to, that a charge against a person has to be made out on evidence and not on suspicion then inherent in that is the fact that the person charged must equally have the opportunity of meeting that charge attempted to be made out on evidence by evidence. When a person is charged, whether in departmental proceedings or in a court of law, some authority has to decide whether the charge is made out or not. The decision which is to be taken is not to be arrived at intuitively but on evidence which may be circumstantial, documentary or oral. The object of an enquiry is to find the truth, and all steps which are conducive or may be conducive to this end must, in our opinion, be deemed necessary steps, and any unjustified interference with any of those steps must necessarily bring about prejudice and must be held to amount to a denial of a reasonable opportunity to the charged officer to show cause against the action proposed to be taken against him.

16. In this particular case the charged officer in fact did not examine himself as a witness. Whether this was due to the fact that the defence evidence was not to be examined because a list of defence witnesses was not given in time, or whether this was due to the respondent himself refraining from giving evidence on his own behalf, we cannot for certain say on the materials before us, but the fact does remain that there was no oral evidence on behalf of the charged officer himself given at the enquiry. The charged officer also had no opportunity to orally represent his case before the enquiring officer, i.e., the charged officer was not 'heard in person' by the enquiring officer. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules provides that the charged officer will have an opportunity within a reasonable time (a) to put in a written statement of his defence and (b) to state whether he desires to be heard in person. That rule further provides that if he desires to be heard in person then the authority concerned, namely, the enquiring officer, shall hear such oral evidence as he considers necessary. The rule specifically further provides that:

'The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for sufficient reason to be recorded in writing, refuse to call a witness.'

Whatever may be the technical or strictly literal interpretation of the words in the rule, one thing should be clear, namely, that on a broad and generous interpretation of the rule the charged officer should have two rights, first, to be heard in per* son and secondly, to give oral evidence in person. When a man is heard in person he has a wider anda more extensive opportunity of meeting the accusations made against him than when he gives evidence, for evidence even when given in person has got to be confined to facts, while a 'hearing' is not confined to facts only but can be utilised for reasoning out a matter and showing that what was stated in the charge could not be relied upon. In other words, the right to be heard is, broadly speaking, the right to represent his case and this is as valuable a right as the right to give evidence in person, for the charged officer could, without the necessity of giving evidence in person, show, it he had the opportunity to be heard otherwise, that what was stated in the charge could not be sustained because of circumstances to which he may point out, which could appear in the evidence led on behalf of the accusers. Therefore, a denial of this right may in some cases, in our opinion, amount to a denial of reasonable opportunity.

17. The next matter which fell for our consideration was whether it could be said that, when a charged officer was asked to cross-examine witnesses, without the witnesses having deposed to anything on oath in his presence, in regard to the facts on which the charges had been formulated, it amounted to giving the charged officer an adequate opportunity to show cause. In the instant case, the witnesses who were called to support the charges against the respondent had been examined earlier by an Assistant Sales Tax Commissioner behind the back of the respondent and those recorded statements were read out to the witnesses and they acknowledged having made such statements. We examined the record and we found that the recorded statements, at any rate some of them, did not bear any endorsement to the effect that they had been recorded by any responsible officer or that the statements had been made on oath. In short, there was no guarantee that the statements which the witnesses made before the first preliminary enquiry were the same which were read out to the witnesses when they were put up for cross-examination by the respondent before the enquiring officer. There is one great danger in having statements recorded earlier behind the back of the charged officer read out and relied upon, and that is that such statements as are recorded behind the back of the charged officer could have been obtained through inquisitorial methods or could be obtained by cajolery, coercion or any of the undesirable methods by which witnesses can be made to depart from strict truth; and reading out to the witness of such statement and asking him just one question whether he made such a statement or not was likely to destroy the witness's freedom of stating what he wished to in the presence of the enquiring officer and the charged officer. There are many other reasons for coming to the conclusion that the procedure of reading out the earlier statement of the witness and then asking the charged officer to cross-examine the witness on that earlier statement was beset with many dangers, but we need not go into this question in any great detail inasmuch as there was high authority pronouncing on the wisdom or otherwise of this kind of procedure.

18. In Union of India v. T. R. Varma, (S) AIR 1957 SC 882, their Lordships of the Supreme Court observed this:

'The Evidence Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law.

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 opportunity of explaining them.' In our judgment, in the aforementioned passage their Lordships have succinctly laid down the scope and the right of a charged officer in respect of evidence given against him arid evidence to be given by him as also his right to have an opportunity of explaining the evidence. As we read the above passage we think it lays down that the charged officer must have the evidence that is to be used against him taken in his presence and he should have an opportunity to cross-examine the witnesses. Their Lordships, in our view, indicate in the above passage that the charged officer has the right to make oral submissions in an effort to explain the charges made against him.

19. In Phuibari Tea Estate v. Its Workmen, AIR 1959 SC 1111, their Lordships relied on the decision of (S) AIR 1957 SC 882 (supra) and reiterated the proposition laid down in that case.

20. Reliance was placed on behalf of the State on the decision of Kapur Singh v. Union of India, AIR 1960 SC 493, but in our opinion the decision in this case did not alter the broad proposition of law which their Lordships laid down in (S) AIR 1957 SC 882 (supra).

21. In the case of State of Madhya Pradesh v. Chintaman Sadashiva, AIR 1961 SC 1623, their Lordships again reiterated the broad principle of law they had laid down in (S) AIR 1957 SC 882 (supra).

22. Therefore, there is no escape from the view that so far as we are concerned the requirements of reasonable opportunity require that the evidence on which reliance is to be placed against a charged officer must be taken in his presence and that he must then have an opportunity of cross-examining the witnesses. Any evidence therefore, which was not taken in the presence of the charged officer could not be relied upon against him. The import of the word 'evidence' cannot only be cross-examination. It must include the entire evidence of the witness, and if the evidence has to be taken in the presence of the charged officer then no evidence which was not taken in the presence of the charged officer can be made use of.

23. In our view, therefore, in the instant case, the respondent had no reasonable opportunity of meeting the evidence that was produced againsthim and, therefore, he was denied that reasonable opportunity which under the law he was entitled to.

24. We now come to the consideration of the question whether there was bias -- such bias as entitled this Court to quash the ultimate order of dismissal made by the relevant authority as against the respondent. We pointed out earlier that the learned Single Judge found that there was bias in the enquiring officer and, therefore, the enquiry could not be held to be impartial and a proper enquiry and therefore the results of such enquiry could not have been made the basis of action taken against the charged officer.

An important question that arises for determination in this connection is whether the finding of bias in an enquiring officer was sufficient for holding that there was sufficient bias for quashing the ultimate order that was made by the relevant authority, even though there was no finding that there was any bias in the authority that ultimately had the power to make the order of dismissal and had actually made that order. It is difficult to lay down any broad proposition in regard to this matter and indeed in this particular case it is not necessary to do so for more than one reason, first, because on our view on the questions which we considered earlier it had to be held that the charged officer has had no reasonable opportunity of showing cause, and secondly, because in this particular case there was material to show that the authority which ultimately passed the final order of dismissal and which gave the charged officer an opportunity to show cause against the action proposed to be taken against the respondent did not without demur or deference accept the report of the enquiring officer, for we find that the punishing authority actually refused to accept some of the findings which had been made against the respondent by the enquiring officer.

On this view of the matter we could not say that in this particular case the bias of the enquiring officer necessarily meant the bias of the punishing authority and thereby entitled the respondent to have the order of dismissal made by the punishing authority quashed.

25. For the reasons given above we are of the opinion that the order quashing the order of the State Government dated the 28th July, 1955, made by the learned single Judge was right and that this appeal had no merits which we accordingly dismiss with costs.


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