1. This is a petition under Article 226 of the Constitution by an Upper Division (Grade II) Assistant in the office of the Director of Forests, Orissa, who was dismissed from service by the Director of Forests by his order dated 21-7-1955.
2. The petitioner who is a resident of Berhampur was employed as an Upper Division (Grade II) assistant in the aforesaid office at Cuttack from 12-4-1950. On 15-5-1954 the then Director of Forests, Shri B.P. Basu drew up proceedings against him in his office Order No. 6436/2F-161/53 and framed the following charges;
'(1) Defalcation, of Government money amounting to Rs. 30/- by raising the total of the credit side of the Director of Forests' Cash Book for the month of May 1952.
(2) Misappropriation of Government money.
(a) amounting to Rs. 410/- by making interpolations in the vouchers and Cash Book;
(b) amounting to Re. 0-2-0 by getting the vouchers passed for excess amount.
(3) Wilful tampering and destruction of accounts, records, etc., such as vouchers which were in his custody, against all accounts procedure.
(4) Negligence of duty.'
The petitioner was called upon to show cause why disciplinary action may not be taken against him and he was further asked as to whether he wanted to be heard in person or to produce witnesses in his defence. Along with the charges, a lengthy report containing various particulars on which the charges were based, was also prepared and sent to the petitioner with a view to enable him to submit his explanation on all the points. He was also told that he may see all the connected records in the office of the Director of Forests, on any working day during office hours.
The report runs into about twenty-one typewritten pages and contains full particulars about the various vouchers wherein suspicious alterations, etc., appeared to have been made in the hand-writing of the petitioner. In paragraph 4 of the report, a list of the vouchers which were not traceable in the office and which were in the petitioner's custody, was also given and the petitioner was alleged to be responsible for their loss.
In paragraph 5, several vouchers, received from the heads of offices and adjusted in the Final Accounts of March 1950 in the Office of the Director of Forests were specified, and it was further stated that the petitioner did not get them passed by the Director of Forests and submit the same to the Deputy Accountant-General, Orissa, but merely kept them in the old records of the Accounts Section.
3. The petitioner submitted a lengthy explanation on 19-6-1954, to the charges, in which, among other grounds he urged that the alterations and suspicious corrections in the several vouchers referred to in the charges were all made prior to their being put up before the then Director of Forests, Shri D.H. Khan, for his signature and that consequently there was no fraud in the whole transaction. On 21-4-1955, the Director informed the petitioner that an enquiry would be made on 2-5-1955 in his office at Cuttack and called upon him to appear before the Director in Connection with that enquiry and also to remain at head quarters until further orders.
He was further warned that if he failed to appear the enquiry would be made ex parte. In reply to that letter, the petitioner made a representation dated 29-4-1955, requesting the Director to postpone the enquiry to the last week of May 1955 and saying that he had some financial difficulties and domestic troubles. But it appears that the Director of Forests refused to adjourn the enquiry and held it on 2-5-1955 in his office. Several witnesses including Shri D.H. Khan, who was the Director of Forests during the relevant period, were also examined during the enquiry. But as the enquiry was made ex parte there was no cross-examination by the petitioner.
Then, on 26-5-1955, the Director of Forests, after reviewing the evidence and the explanation given by the petitioner held that the charges were proved and that as they were very grave he proposed to dismiss the petitioner from service and also to direct him to make good the loss caused to the Government by his conduct. He therefore called upon him to show cause, within fifteen days from the date of that order, as to why he should not be dismissed from Government service and why the loss caused to the Government should not be made good by him.
4. On 8-6-1955, the petitioner filed another representation before the Director of Forests, requesting him to give him further time to submit his explanation and asking him to supply copies of the audit report on the accounts' of the Director of Forests for the years 1951-52 and 1952-53 and of the copies of vouchers on which charges (1) and (2) were based.
To that the Director sent a reply dated 10-6-1955 saying that the petitioner must submit his explanation by 18-6-1955 positively. As regards copies of the documents asked for, he said that all the relevant papers and vouchers were shown to him during the earlier enquiry and that he had also taken, notes for his satisfaction before he submitted his first explanation. Hence the Director declined to furnish attested copies of the records at that belated stage.
The petitioner thereafter submitted a lengthy-explanation on 14-6-1955, asking for further time, but his prayer was rejected. Then, on 18-6-1955, he submitted his final explanation which was duly considered and on 21-7-1955 the Director passed orders dismissing him from service and directing him to make good the loss of Rs. 420-2-0 caused to Government.
5. From the foregoing narrative, it will be clear that the statutory requirements regarding the procedure to be followed in departmental enquiries against public servants have been fully complied with in this case. In the first stage, specific charges were framed, and a detailed report containing full particulars about the various documents on which the charges were based, was prepared and sent to thepetitioner.
On receipt of his explanation, a date was fixed for the enquiry and he was asked to appear in person before the Director. He was however warned that if he failed to appear the enquiry would be held ex parte. He failed to appear on the appointed date, namely, 2-5-1955, with the result that the evidence of the witnesses including that of Shri D.H. Khan, the previous Director of Forests remained untested by cross-examination.
Having thus complied with the requirements of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, the Director of Forests came to the finding that the petitioner was guilty of all the charges, and then tentatively held that he ought to be dismissed from Government service, but in view of Article 311 of the Constitution he gave a second notice to the petitioner, pointing out the punishment that was proposed to be passed against him and giving him an opportunity to show cause why such a punishment may not be inflicted. His show-cause petition was duly considered and he was eventually dismissed.
6. In a writ application under Art 226 of the. Constitution this Court is not concerned with the correctness or otherwise of the findings of fact arrived at by the Director of Forests. The limited question for consideration, is whether the provisions of. Rule 55, Civil Services (Classification, Control and Appeal) Rules and those of Article 311 have been substantially complied with. Mr. Ramdas rightly conceded that he could not urge that Article 311 was contravened. His submission, however, was that Rule 55, Civil Services (Classification, Control and Appeal) Rules was not complied with in spirit though in letter, & that such non-compliance offended the principles of natural justice; and that consequently the order of the Director of Forests should be set aside.
7. According to Mr. Ramdas Rule 55 of the Civil Services (Classification, Control and Appeal) Rules will not be substantially complied with unless the authority holding the departmental enquiry intimates to the public servant concerned the name of the witnesses whom he is going to examine at that enquiryand also sends him brief summary of the nature of the evidence which they would give, so that the public servant may come prepared to cross-examine them if he so desires, during such enquiry,
That rule says that in any departmental proceeding definite charges should be framed & they should be communicated to the public servant concerned together with (i) a statement of the allegations on which each charge is based and (ii) any other circumstance which it is proposed to take into consideration in passing orders on the same.
The public servant should then be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If so desired, by the public servant, or else i the authority concerned so directs, an oral enquiry shall be held, and in such enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses, to give his own evidence in person, and also to examine witnesses on his behalf.
It is true that this right of cross-examining thewitnesses who might depose against him, is a very valuable right, and where evidence has been taken ex parte this Court should carefully scrutinise the circumstances and find out whether such ex parte evidence was taken because of the conduct of the public servant concerned or else whether the authority who held the enquiry was also partly to blame. I am also inclined to agree with Mr. Ramdas that rides of natural justice require that a person who has the right to cross-examine the witnesses who may depose against him, must be made aware, prior to the date of the enquiry, of the names of such witnesses together with some indication as to the nature of the evidence that they would give.
Unless he is made aware of these two facts it is obviously impossible for him to get ready to cross-examine them. It is true that departmental proceedings are not regular criminal trials and the intimation of the names of witnesses and the nature of the evidence likely to be given by them need not necessarily be of the type recorded by a criminal Court before framing a charge in a warrant case. But in the copies of the charges and other particulars forwarded to the public servant concerned there should be clear indication about the names of persons who would appear before the enquiring officer against him and the nature of the evidence that they would give.
When there is such indication, it is clearly the duty of the public servant to appear at the enquiry and be ready to cross-examine those witnesses. He could, if necessary, after the examination in chief of those witnesses, ask for an adjournment for the purpose of cross-examination. But if he fails to appear at the enquiry even though he was clearly informed of the date of such enquiry and was warned that the enquiry would proceed ex parte if he did not appear| on that date, be must thank himself for any unfortunate results that might follow.
8. This is what appears to have happened in the present case. All the particulars of the documents on which the charges were based were described in detail and were communicated to the petitioner along with those charges. In his explanation, the petitioner attempted to show that the alterations and corrections had been made in the vouchers prior to theirbeing put up before the then Director of Forests, Shri D.H. Khan.
Then he was given notice that the enquiry would be held on 2-5-1955 and was asked to appear in person. Doubtless, the Director of Forests did not expressly say in that notice that at that enquiry Shri. D.H. Khan (who had by then retired and settled somewhere in Bengal) would be examined as a witness. The petitioner, however, did not choose to appear at the enquiry and allowed evidence to be taken against him ex parte. In the order dated 26-5-1955 of the Director, the evidence of Shri D.H. Khan was noticed, and the Director came to the finding that the petitioner was guilty of all the charges.
In his subsequent representations to the Director, dated the 8th, 14th and 18th June 1955 though the petitioner made a grievance of the fact that Shri D.H. Khan was examined in his absence, and that if he had known that that officer would be examined he (the petitioner) would surely have appeared in person and cross-examined him, he did not make any specific prayer to the Director to recall Shri D.H. Khan for the purpose of cross-examining him.
On the other hand, the only further prayer that he made was to be furnished with attested copies of certain papers. The Director refused to give those copies at that stage because, during the early stages of the enquiry, he had been given access to those documents with a view to enable him to take copies if he liked.
9. Mr. Ramdas's main contention is that neither from the charges nor from the detailed report which accompanied those charges could the petitioner get any indication that the previous Director of Forests, Shri D.H. Khan, would be examined as a witness and that he was taken by surprise when, during the ex parte enquiry held on 2-5-1955, Shri Khan was examined.
The final finding of the Director of Forests is based mainly on the evidence of Shri D.H. Khan and Mr. Ramdas therefore urged that the petitioner had been condemned on a piece of evidence which was untested by cross-examination and that he was denied a reasonable opportunity to exercise his right of such cross-examination. I would have been inclined to accept this argument if the petitioner had requested the Director on any subsequent occasion to re-summon Shri Khan for the purpose of cross-examining him.
There may be some justification for him to say that from the charges and the report which accompanied them, he could not easily infer that a retired Director of Forests like Shri D.H. Khan would be examined in the departmental enquiry and that he was, therefore, taken by surprise when Shri Khan appeared as a witness against him in the ex parte enquiry on 2-5-1955, but if he really felt aggrieved on that account, he would have in his subsequent representations before the Director specifically requested him to recall Shri Khan for the purpose of cross-examination.
It seems therefore, a fair inference that the petitioner was more keen on keeping this point in reserve for the purpose of attacking the validity of the final order passed against him later on, than on exercising his valuable right to cross-examine any witness, conferred by Rule 55, of the Civil Services (Classification, Control and Appeal) Rules. I must therefore, hold that the petitioner's conduct between 2-5-1955 (on which date he failed to appear in person though directed to do so) and 18-6-1955 (on which date he, submitted his final explanation) show clearly that he waived his right to cross-examine Shri Khan whose evidence was taken ex parte on 2-5-1955.
As stated already, Shri Khan had by that time retired and settled somewhere in Bengal. He was specially sent for and examined during the departmental enquiry. If the petitioner had insisted on Shri Khan's recall there would have been no difficulty in recalling him for the purpose of cross-examination, before final orders were passed. It is obviously impossible, at this belated stage, to give a further opportunity to the petitioner to cross-examine Shri Khan.
In considering whether the provisions of Rule 55, of the Civil Services (Classification, Control and Appeal) Rules have been substantially complied with or not, this Court has to satisfy itself whether the irregularity committed at any stage of the departmental enquiry really caused prejudice to the public servant concerned, and for that purpose it is very necessary to find out whether the objection to such an irregularity was taken at the earliest possible stage when it could have been remedied.
Hence, though I would agree with Mr. Ramdas that the examination of Shri D.H. Khan during the ex parte departmental enquiry held on 2-5-1955 without giving previous intimation to the petitioner that Shri Khan would be one of the witnesses is a serious irregularity, I cannot accept the further contention that though the petitioner made no specific prayer for the recall of Shri Khan for the purpose of cross-examination, the Director, of his own accord, should have given him a further opportunity to cross-examine that Officer.
The conduct of the petitioner from 8-6-1955 till 18-6-1955, when he submitted three representations to the Director of Forests, after being made aware that Shri Khan had been examined in the enquiry, would amount to his waiver of his right to cross-examine him, and it will not be proper to interfere with the finding of the Director of Forests at this stage.
10. I would, therefore, reject this petition, but there will be no order as to costs.
11. I agree.