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Union of India (Uoi) Vs. Hari Om - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1257 of 1962
Judge
Reported inAIR1969All542
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101; Constitution of India - Article 311; Civil Services (Classification, Control and Appeal) Rules, 1930 - Rule 55; Civil Services (Classification, Control and Appeal) Rules, 1939 - Rule 55; Limitation Act, 1908 - Schedule - Articles 102 and 120
AppellantUnion of India (Uoi)
RespondentHari Om
Appellant AdvocateH.N. Seth, Adv.
Respondent AdvocateS.S. Verma and ;A.D. Prabhakar, Advs.
DispositionAppeal allowed
Excerpt:
.....copies of witness statements and report of investigating officer not supplied to charged officer - charge sheet contains almost everything stated in report made by investigating officer - held, officer was afforded reasonable opportunity. - - the lesari gate post office as well as the house of the plaintiff was searched on 8th july, 1953, at which a good number of used stamps were recovered. he challenged the order of suspension as well as of dismissal. 3. in the pleadings the plaintiff had alleged that the inquiry officer did not supply him copies of statements of witnesses as well as of documents in spite of repeated requests of the plaintiff. --1. failure to sell stamps to the members of public presenting parcels for booking. the appellate court has remarked that the charge-sheet..........police establishment enquired into the allegations against the plaintiff that he was putting used postal stamps on parcels etc. sent out from lesari gate post office. the lesari gate post office as well as the house of the plaintiff was searched on 8th july, 1953, at which a good number of used stamps were recovered. on the commencement of the police investigation the plaintiff was suspended with effect from 15th july, 1953. the police ultimately did not submit a charge-sheet, but, a departmental enquiry was taken up.the senior superintendent of post offices, meerut, on 6th january, 1955, served a charge-sheet on the plaintiff the plaintiff submitted his explanation on 27th june, 1955. he declined to participate in any oral enquiry. the enquiry officer after examining the materials,.....
Judgment:

Satish Chandra, J.

1. The Union of India, the defendant, has appealed. The suit was for a declaration that the order of the plaintiff's dismissal from service violated Article 311 of the Constitution and was null and void, and for past pendents lite and future salary. The suit has been decreed by both the courts below.

2. Hari Om, the plaintiff-respondent, was employed by the Union of India as Sub-post Master at Lesari Gate Post Office, Meerut. At the instance of the Post Master General, Calcutta, the Special Police Establishment enquired into the allegations against the plaintiff that he was putting used postal stamps on parcels etc. sent out from Lesari Gate Post Office. The Lesari Gate Post Office as well as the house of the plaintiff was searched on 8th July, 1953, at which a good number of used stamps were recovered. On the commencement of the police investigation the plaintiff was suspended with effect from 15th July, 1953. The police ultimately did not submit a charge-sheet, but, a departmental enquiry was taken up.

The Senior Superintendent of Post Offices, Meerut, on 6th January, 1955, served a charge-sheet on the plaintiff The plaintiff submitted his explanation on 27th June, 1955. He declined to participate in any oral enquiry. The Enquiry Officer after examining the materials, passed an order on 12th July, 1955, holding the plaintiff guilty of all charges but one. He proposed that the plaintiff be dismissed. On 18th August, 1955, the plaintiff submitted his explanation to the proposed punishment but the authorities considered the explanation unsatisfactory and by an order dated 25th August, 1955, dismissed the plaintiff from service. The plaintiff does not appear to have gone up in appeal but came to Court straightway. He challenged the order of suspension as well as of dismissal. Both the Courts below have upheld the order of suspension. They have found that the plaintiff was not afforded a reasonable opportunity of explanation within meaning of Article 311 of the Constitution and on that ground have declared the order of dismissal to be null and void.

3. In the pleadings the plaintiff had alleged that the Inquiry Officer did not supply him copies of statements of witnesses as well as of documents in spite of repeated requests of the plaintiff. Nonetheless such statements and documents were relied upon for the finding that the charges have been established. That plea has found favour with both the courts below. It appears that at the argument stage the plaintiff raised another plea, namely that the charges were vague and as such the entire proceedings were void. This plea was repelled by the trial court but has been accepted by the appellate court The findings on both these aspects have been challenged in the present appeal.

4. I may first take up the question whether the charges were vague. The charge-sheet framed the following charjzes against the plaintiff:--

1. Failure to sell stamps to the members of public presenting parcels for booking.

2. Accepting cash in lieu of postage stamps from the members of the public in payment of postage on parcels in contravention of Clause 86 of Post and Telegraphs Code.

3. Affixing used up stamps on parcels accepted for booking in lieu of postage received in cash from the members of the public and thereby playing fraud on the Government.

4. Applying heavy black ink to deface high value stamps on the parcels with rubber stamps to evade detection of fraud.

5. Conspiring with other officials to play fraud on the Government.

6. Visiting Delhi without permission to leave station and entering into correspondence with the philatelist for supply of previously used up stamps with a view to reuse them on parcels under assumed names to evade his identity being established.

7. Keeping stock of used up stamps hidden in the spectacles case and in the office table pad as detected during the police search for reuse on parcels.

Charge no. 6 was dropped by the Inquiry Officer. Of the other six, charges Nos. 3, 4 and 7 have not been found to be vague, but charges Nos. 1 and 2 were found to be too vague. About the fifth charge the finding is that it is not as exhaustive as it should have been. The appellate court has remarked that the charge-sheet should have stated the names of the particular persons to whom the plaintiff-respondent failed to sell the stamps or from whom he accepted cash in lieu of postage stamps. In paragraph 4 of the charge-sheet it has been stated that the Special Police Establishment despatched several parcels from Lesari Gate Post Office foot-constables Ghuni Lal and Lachman Singh of C. I. D., I. B., Meerut, in order to detect the fraud. The plaintiff Hari Om accepted those parcels for despatch. He received the amount of postage in cash from the foot-constable for every parcel on each occasion but instead of asking the sender to affix the stamps he himself affixed the stamps. The charge-sheet further mentioned that on a search of the Lesari Gate Post Office a large number of used stamps were recovered from the possession of the plaintiff. It has further been stated that during the police enquiry the plaintiff had made a clean breast of the affairs, that is to say he had confessed his guilt. The charge-sheet mentioned that Kunwar Singh, peon, admitted that used stamps were purchased from Guru Dutt at Delhi and those stamps were affixed on the parcels by the plaintiff. It is thus clear that the relevant and necessary details upon which these charges were framed were specifically stated in the Charge-sheet. The appellate court has misread the document. The finding that the charges are vague hence cannot be accepted.

5. The next point is whether the plaintiff was afforded a reasonable opportunity of explanation. It was stressed on behalf of the plaintiff-respondent that the question whether a reasonable opportunity was afforded was a question of fact and the finding thereon could not be assailed in a second appeal. This depends upon the facts and circumstances of each case and the nature of the defect. In the present case the view of the courts below that reasonable opportunity was not afforded to the plaintiff appears to be based upon a misreading of the documents and upon an erroneous view as to the scope of a reasonable opportunity under Article 311 of the Constitution. These legal aspects of the matter are open to be examined in second appeal.

6. It was urged that the Inquiry Officer was under a duty to hold an oral enquiry. In the present case no such enquiry was held. The proceedings were, therefore, void. The procedure for an enquiry into the charges against Central Government employees is governed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. Under this rule the charged officer is to be required to put in a written statement of his defence to the charges and to state whether he desires to be heard in person. The rule then states 'if he desires or the authority concerned so directs an oral enquiry shall be held'. Under the statutory provisions, the holding of an enquiry is not mandatory. It is to be held if the charged officer so desires it or the authority concerned so directs In the present case the charge-sheet at the end informed the plaintiff that he has the option to be heard in person. In his explanation the plaintiff did not say anything about an oral enquiry. On 28th June, 1955, the Inquiry Officer directed the plaintiff to come on 2nd July 1955, for an oral enquiry. At the request of the plaintiff the date was changed to 9th July, 1955. Then on 4th July, 1955, the plaintiff addressed a letter to the Inquiry Officer quoting the last sentence of the charge-sheet which stated that he had the option to be heard in person, and then, formally giving a reply thereto 'I do not want to be heard in person'. In spite of this, the Senior Superintendent on 5th July, 1955, directed that all the same the plaintiff must attend on 9th July, 1955, for an oral enquiry. A letter to this effect was sent to the plaintiff on 6th July, 1955. On 9th July, 1955, the plaintiff sent a reply to the Inquiry Officer that he was not ready for an oral enquiry and if the Inquiry Officer wished to ask anything he may do it in writing.

7. It is thus clear that the authorities gave the plaintiff ample opportunity to conduct an oral enquiry if he so desired, but he repeatedly made it clear that he did not desire any oral enquiry. Thereupon the authorities concerned also did not think it necessary to hold an enquiry and so no direction was made in that regard. Under the circumstances it is clear that the statutory procedure for an oral enquiry was scrupulously and faithfully observed.

8. The next question is whether the enquiry was vitiated by reason of non-supply of copies of the statements of witnesses and documents. The complaint of the plaintiff in this respect boils down to the statements of Chunni Lal, a foot-constable, and Prem Chand, a betel-seller, and the report of M.R. Verma. These things were not supplied to the plaintiff in spite of his repeated requests for them. The Inquiry Officer has relied upon all these three for his finding that the charges have been established. For the appellant Mr. H.N. Seth pointed out that since no oral enquiry was held no statements of witnesses were recorded. In the preliminary investigation by the police Prem Chand, the betel-seller, was interrogated. His statement was only to the effect that 'Hari Om, Post Master, Lesari Gate, once asked to write on his (Prem Chand's) printed letter-head form a letter under which he wrote the words 'Kuldeep' at his instance.' This was the entire statement. The charge-sheet reproduced the whole of it. Similarly the Inquiry Officer did not have in his possession any statement of Chunni Lal, because he was not examined by him. It appears that Sri K.L. Bhola, Senior Superintendent of Police, prepared a memorandum which was witnessed by Nagendra Nath Seth stating that on 16th May, 1953, a registered parcel No. 159 was sent through this Post Office through Chunni Lal, foot-constable. Similarly on 1st July, 1953, a registered parcel No. 352 was sent through this post office through the foot-constable Chunni Lal. It then stated that Sri Hari Om, S. P. M., Lesari Gate, accepted these parcels for despatch. He received the amount of the stamps in cash from the foot constable on each occasion for every parcel and affixed the stamps himself instead of asking the sender to do so. A copy of this report was supplied to the plaintiff. It is this report which has been relied upon in the findings.

The fact that the plaintiff received the amounts of stamps in cash from the foot constable on each occasion and did not give him the stamps was held established from this report which referred to Chunni Lal as the foot constable concerned. The finding was not based upon any statement of Chunni Lal which may be in possession of the Inquiry Officer. Consequently the plaintiff was not entitled to the copy of any such statement, The non-supply of such a statement did not violate the principles of natural justice which guide the reasonableness of the opportunity of explanation contemplated by Article 311. That is so especially when the entire report giving all these facts was supplied to the plaintiff. The plaintiff dealt with it at length in his explanation. It is thus apparent that no prejudice whatsoever was caused to the plaintiff in respect of these statements. The courts below also appear to have proceeded on the assumption that the foot constable and Prem Chand were examined and their statements were recorded but the copies thereof were not furnished to the plaintiff. That appears to be based upon a misapprehension of the real position and a misreading of the evidence on the record. In view of the facts it cannot, in my opinion, be said that the plaintiff was not supplied the copies of any statement which was, as such, relied upon by the Inquiry Officer. The rules of natural justice require that the material which is to be relied upon ought to be furnished to the charged officer to enable him to make his defence to it. That was done in this case.

9. The courts below have also found that the plaintiff was not supplied a copy of the report of M.R. Verma. In this respect the charge-sheet stated:--

'M.R. Verma, Senior Scientific Officer National Physical Laboratory, Pusa Institute, Delhi, who tested all the stamps on the parcels gave definite opinion about parcels booked from Gandhi Ashram addressed to Ahmadnagar, Deccan, that one of the stamps had definite traces of chemical solution on it. He also gave opinion that some of the stamps seized during the searches had traces of the solution on them which goes to prove that the official re-used used-up stamps and earned illegal money.'

It is true that a copy of this report was not supplied to the plaintiff. The charge-sheet mentioned practically the entire finding of M.R. Verma. The plaintiff in his explanation ventilated his grievance that a copy of the report had not been given to him, but he further stated that there was nothing in the report pointing to him and that it related to Kunwar Singh who was Sub-Post Master, Gandhi Ashram Post Office. It is thus clear that the entire finding of Mr. M.R. Verma was made known to the plaintiff. He gave his reply to it in his defence. There is no suggestion in the evidence that the plaintiff was prejudiced by the non-furnishing of a copy of the report. It has not been found by the courts below that the report contained anything more or other than what was stated in the charge-sheet or that the defence of the plaintiff was prejudiced in any manner. Under the circumstances, the non-furnishing of a copy thereof was merely a technical irregularity not causing any prejudice to the charged officer.

10. In State of Mysore v. Shivabasappa Shivappa : (1964)ILLJ24SC the Supreme Court emphasised that the rules of natural justice are matters of substance and not of form. Thus the courts have to see that the rules are sufficiently complied with. One rule of natural justice is that no material ought to be used in respect of which the charged officer has had no opportunity to make his defence. In that respect it has been ruled that copies of documents must be supplied to the charged officer before reliance could be placed on them. These rules have to be followed substantially. If there is a deviation, the courts ought to see whether the spirit of the requirement, though not the letter, has been followed; and further, if any prejudice has been occasioned to the charged officer. If on facts the charged officer was in possession of the real material which was sought to be relied upon, the mere fact that he was not given a verbatim copy, would be a breach of the rules of natural justice in form only and not in substance. That is the situation in the present case. Under the circumstances it cannot be held that in law the plaintiff-respondent was not afforded a reasonable opportunity of explanation within meaning of Article 311 of the Constitution.

11. In State of Orissa v. Bidyabhushan Mohapatra : (1963)ILLJ239SC the Supreme Court held that the reasonable opportunity contemplated by Article 311(2) has manifestly to be in accordance with the rules under Article 309 of the Constitution. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable. Similarly the rules of natural justice apply subject to the statutory rules framed under Article 309 of the Constitution. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, gives the procedure that has to be followed for dismissal, removal or reduction in rank of an officer. Under it the charged officer has to be informed in writing of the grounds on which it is proposed to take an action and has to be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The rules then contemplate an oral enquiry at which oral evidence shall be heard and the person charged shall be entitled to cross-examine the witnesses and to give evidence in person and to have his own witnesses examined. The rule then goes on to state that:

'All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.'

This shows that the procedure prescribed by the rules is not rigid but is flexible and takes into account the peculiar features of a particular case. In the present case the charged officer did not have in his possession recorded statements of Chunni Lal and Prem Chand but he conveyed to the plaintiff the entire contents that was sought to be relied upon in reference to these persons. Similarly the contents of the report of M.R. Verma were furnished to the plaintiff. The technical breach in not giving a copy of that report would not go to violate the procedure contemplated by Rule 55. Looked at broadly, that rule was substantially complied with. I am, therefore, unable to uphold the finding that the plaintiff was not afforded a reasonable opportunity within meaning of Article 311 of the, Constitution.

12. The defendant-appellant had contested the claim for arrears of salary on the ground that it was barred by limitation under Article 102 of the Limitation Act. The courts below have held that this Article was not applicable, and the case would be governed by Article 120. As such the entire claim for arrears of salary was within limitation. The lower appellate court relied upon Abdul Vakil v. Secretary of State, 207 Ind Cas 178 : AIR 1943 Oudh 368. Learned counsel for the appellant has invited my attention to Madhav Laxman Vaikunthe v. State of Mysore : [1962]1SCR886 . Article 102 prescribes a period of three years for a suit for wages not otherwise expressly provided for by the schedule. In Punjab Province v. Tara Chand AIR 1947 FC 232 it was held that a suit for arrears of salary would be covered by Article 102 of the Limitation Act. This decision of the Federal Court was challenged in Madhav Laxman Vaikunthe's case : [1962]1SCR886 (supra) on the ground that salary and dearness allowance were not included within the term 'wages' as used in Article 102. The submission was rejected. The decision of the Federal Court was declared to have laid down the law correctly. It is thus clear that the claim of the plaintiff-respondent for arrears of salary and allowance beyond 3 years from the date of the suit was clearly barred by time. The suit was filed on 12th September, 1957. The plaintiff claims arrears of salary from 15th July, 1953. The claim for the period 15th July 1953, to 11th September, 1954, was barred by time. But as it has been found that the order of dismissal was valid, the entire suit is liable to fail.

13. In the result, the appeal succeeds and is allowed. The decree is set aside and the suit is dismissed. But in the circumstances of the case the parties will bear their own costs throughout.


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