A.P. Srivastava, J.
1. This is a petition under Article 226 of the Constitution. The petitioner was employed in February 1944 as inspector in the central Excise Department. He was subsequently transferred to the Harijan Sahayak Department and appointed to a gazetted post of group officer subject to the approval of the Public Service Commission, Uttar Pradesh. He was approved by the Commission and was appointed to the permanent and pensionable post of manager, Kalyanpur settlement, Kanpur. He was subsequently transferred to the head office, Lucknow, as Harijan Welfare Officer, headquarters. In May 1952 the audit of the accounts at the Kalyanpur settlement showed that some both had been sold at the rates different from the approved rates. A chargesheet in that connexion was served on the petitioner on 12 August 1966. He submitted his explanation and an enquiry was held. The enquiry officer found the charges established and recommended the removal of the petitioner. The recommendation was submitted to the State Government and the Government by an order dated 15 December 1960 directed the removal of the petitioner from service with effect from 3 December 1960. A representation was submitted to the Governor bat was rejected. By the present petition the petitioner wants the order of his removal to be quashed by a writ of certiorari.
2. A large number of grounds have been raised in the petition, but the main point pressed in support of the petition is that the petitioner was not given a reasonable opportunity of defending himself and the rules of natural justice were contravened inasmuch in the statements of certain witnesses were recorded behind his back and some witnesses were not examined in his presence, but only their statements were read out and then he was asked to cross-examine them. Circumstances in which this was done practically deprived him of the right to cross-examine the witnesses. It is further urged that a large number of documents numbering 65 mentioned in annexure R to the petition were used against the petitioner without his being given an opportunity of offering his explanation about those documents.
3. A preliminary objection is taken that the petitioner has an alternative remedy and can agitate the matter in a regular suit. The discretion of this Court should not, therefore, be exercised in favour of the petitioner.
4. The preliminary objection cannot, in my opinion, be accepted, because a suit in the circumstances of the present case does not appear to be an effective and speedy remedy. It will take years to be decided. If, therefore, the petitioner can establish that he had not been given an effective opportunity of defence or that the rules of natural justice were not complied with in connexion with his enquiry, there la no reason why he should not invoke the jurisdiction of this Court and have the order of removal quashed.
5. The Director of Harijan Welfare was holding the enquiry into the charges levelled against the petitioner. During the course of the enquiry the Director had visited Kalyanpur settlement at Kanpur on 22 November 1955. He says that he learnt there were several witnesses who could state facts relevant to the enquiry. The statements of seven witnesses were, therefore, recorded by the Director at Kanpur in the absence of the petitioner. The names of these witnesses had not been disclosed to the petitioner. They were not mentioned as witnesses in the chargesheet, whose evidence would be relied upon at the enquiry. After the statements of those witnesses were recorded a letter was sent to the petitioner requiring him to appear before the Director on 30 December 1955 at 11 a.m. in connexion with the enquiry. A copy of the letter has been filed by the petitioner as annexure II to his rejoinder affidavit. A perusal of it shows that in that letter, though the petitioner had been required to appear before the Director of Harijan Welfare on 30 December at 11 a.m., he had not been informed that any new witness would be examined or that the statements of any witness or witnesses had already been recorded at Kanpur in connexion with the enquiry. It is not suggested that any other letter was sent to the petitioner informing him of that fact. There is a reference in the report of the Director to the effect that one of the witnesses Sri Saran had been summoned for 20 December 1955 so that he may be examined in the presence of the petitioner Sri O.P. Gupta, but there is nothing to show that Sri Gupta had been informed of the fact that Sri Saran would be examined on 20 December 1955. The enquiry was resumed on 30 December 1955 and the statements of the two of the six witnesses were recorded in the presence of the petitioner. A telegram was then received from the petitioner praying for adjournment on the ground that the petitioner could not attend the enquiry on that date. An adjournment was granted. On the adjourned date five of the witnesses, whose statements had been recorded at Kanpur in the petitioner's absence, were directed to be present along with the petitioner. These witnesses were examined but the way in which their statements were recorded was that they were not examined-in-chief by anyone. They were not asked to state what they knew about the matter. What was done was that their earlier statements recorded in the petitioner's absence were read out to him and they were treated as having been made by them in the presence of the petitioner. The petitioner was then asked to cross-examine the witnesses to a certain extent. That was the procedure followed in respect of the five witnesses. One witness could not attend on that date and was called for the next day, i.e., 7 February 1956. On that date when the six witnesses appeared the same procedure was followed in this case also but the petitioner contended that the way in which the statements were recorded was unconstitutional and stated that he would not be in a position to put defence. The enquiry was however completed in the petitioner's absence and the statement of those witnesses was treated along with others as part of record, though be had not been cross-examined.
6. The statements of all the six witnesses recorded in the manner already indicated were taken into consideration and utilized by the enquiry officer in recording the findings against the petitioner on the charges levelled against him.
7. The contention raised on behalf of the petitioner in the above circumstances is that the rules of natural Justice were contravened and he was not given any effective opportunity of cross-examining the witnesses. The statements of these witnesses, it is contended, could not have been used against him, and as they were used by the enquiry officer, the findings on the charges should be held to have been vitiated. Reliance in support of this contention is placed on certain Observations of the Supreme Court in the case of State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan A.I.R. 1961 S.C. 1623 and two decisions of this Court one by learned single Judge in the case of Hari Shankar Kaushik v. State of Uttar Pradesh and Ors. Civil Miscellaneous Writ No. 103 of 1960 and the other by a Division Bench in the case of Sri R.D. Verma and Ors. v. Ramesh Chandra Verma Special Appeal No. 306 of 1957 decided On 30 November 1980 and 23 April 1981 respectively.
8. The observations of the Supreme Court made in the case of State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan A.I.R. 1961 S.C. 1623 on which reliance is to be placed is to be found in Para. 10, where it has been observed:
The only general statement that can be safely made in this connexion is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in the Courts of law. As Venkatarama Ayyar, J., has observed in Union of India v. T.R. Varma 1958-II L.L.J. 259
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.
It is hardly necessary to emphasize that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice.
9. Stress is laid on behalf of the petitioner on the requirement that 'all the evidence of the opponent should be taken in his presence. 'It is contended that the way in which the statements of the six witnesses were recorded shows that the statements cannot be held to have been taken in the presence of the petitioner.
10. The case of Hari Shanker Kaushik cited above related to proceedings under Section 7 of the Police Act, which were governed by the Police Regulations. In that case also the Superintendent of Police, who was the enquiry officer, had read oat the earlier statements recorded in the absence of the person charged to the witnesses and on their admitting the statements had brought them on the record after permitting the person charged to cross-examine them. The question that arose was whether the evidence of the witnesses could be held to have been recorded In the presence of the petitioner and after considering certain English decisions and the decision of the Supreme Court in T.R. Varma case 1958-II L.L.J. 259 (supra) Hon'ble Dwivedi, J., observed:
I think these authorities show that the rule of examining witnesses in presence of parties is a rule of natural justice and that it also applies to departmental enquiries into misconduct of employees. An enquiry in violation of the rule cannot be Bald to conform to course of procedure which reason dictates. It cannot be predicated of such an enquiry that the charged person had been afforded a reasonable opportunity of showing cause against the action proposed to be taken....
In the present case it is admitted that witnesses were not examined in the presence of the petitioners. Their statements, recorded in an earlier ex parte enquiry, were admitted on record and the petitioners were thereafter given an opportunity of cross-examining them. I would, therefore, bold that the petitioners were denied a reasonable opportunity of showing cause against the action proposed to be taken within the meaning of that expression under Clause (2) of Article 311 of the Constitution.
11. In the Division Bench case of R.D. Verma and Ors. v. Ramesh Chandra Verma Special Appeal No. 306 of 1957 also the same procedure had been followed in connexion with the recording of the statements of witnesses. The earlier statements made by witnesses in the absence of the person charged had been read out to the witnesses and on their admitting them to be correct, they had been allowed to be cross-examined. Thus the examination-in-chief of the witnesses had not been recorded in the presence of the person charged, and a question considered was whether that procedure was valid, Belying upon the observations of the Supreme Court in Union of India v. T.R. Varma 1958-II L.L.J. 259, Phulbari Tea Estate v. Its workmen 1959-II L.L.J. 663, Punjab National Bank, Ltd. v. All India Punjab National Bank Employees' Federation 1959-II L.L.J. 666, and some observations of the Bombay High Court in State of Bombay v. Gajanan Mahadev Badley A.I.R. 1954 Bom. 861 the Bench laid down:
In the present case there is no controversy about the fact that the witnesses were not examined in the presence of the respondent and therefore, the enquiry, as has been conducted, violated the principles of natural Justice and to that extent the learned single Judge was right.
12. The decision of the Division Bench is in any case binding upon me and in view of it I have no opinion but to hold that it was necessary for the enquiry officer to record the statements of the witnesses in the presence of the petitioner and then give him an opportunity of cross-examining the witnesses. The procedure followed by the enquiry officer of reading out the statement of the witnesses recorded earlier in the absence of the petitioner and then treating them as statements made by the witnesses was a procedure which contravened the principles of natural justice. In the circumstances in which those statements were recorded there could be no effective cross-examination. The fact that some questions were put to the witnesses in the cross examination could not take away the handicap to which the petitioner was put by the fact the examination-in-chief of the witnesses was not recorded in the presence.
13. The next ground on which the petitioner contends that the rules of natural justice were not followed is that certain documents were used against him in respect of which he was not given any opportunity of having his say. In annexure R to the affidavit the petitioner has mentioned no less than 65 documents which he says were not made available to him but were utilized against him. That these documents were used by the enquiry officer is not disputed. The respondent's case in respect of those documents has been stated in Paras. 23, 24, 26 of the counter-affidavit. In respect of some of these documents it is stated in Para. 23 that they have not been relied upon by the enquiry officer for arriving at conclusions but have only been mentioned in his report as a matter of history and in respect of collateral things. In Para. 24 it is said the 24 out of the 65 documents were the documents which were mentioned by the petitioner himself in his explanation. In Para. 25 it is stated that 19 out of the 65 documents were shown to the petitioner during the enquiry and be had full knowledge of them. Paragraph 26 mentions ten documents in respect of which it is stated that the dates of the documents are incorrect and that the petitioner had fall knowledge of these documents, One document is mentioned in Para. 27 and about it, it is stated that it was a part of the file which was mentioned in the chargesheet and the petitioner had full opportunity to see the file.
14. It is thus not denied that the copies of the documents were not given to the petitioner though some of them at least were utilized against him. The fact that the petitioner knew about the existence of these documents and mentioned them himself could not necessarily lead to the conclusion that he had copies of those documents or was in a position to put forward his explanation about them. He was in the department and he may have known that certain documents existed. He may have even referred to those documents but without the documents being made available to him he could not be expected to put forward his explanation about those documents, nor could it be presumed, as has been done, that he had full knowledge about their contents. If the Intention was to utilize any of those 65 documents, the proper procedure to be followed was that copies of those documents should have been made available to the petitioner and he should have been given an opportunity of offering his explanation about them and to show that they did not lead to the conclusion at which the enquiry officer had arrived. The petitioner was thus deprived of an effective opportunity of meeting these documents also. They were materials which were being used against aim and without his being given an opportunity of meeting those materials they could not have been utilized against him.
15. The petitioner thus appears to be Justified in his contention that the enquiry officer utilized materials against him which should not have been utilized and also used evidence against him which should not have been used. The rules of natural justice were contravened in this connexion, and that contravention really vitiates the findings which the enquiry officer recorded against the petitioner. The petitioner is, therefore, entitled to have those findings as well as the consequential order of his removal quashed. This will, however, not fetter the right of the respondents to conduct a proper enquiry against toe petitioner if it is considered necessary or deemed proper.
16. The petition, therefore, succeeds. The impugned order of the petitioner's removal, dated 15 December 1960, is quashed. The petitioner will get his costs from the respondents.