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State of Orissa Vs. Nityananda Bohidar - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberSupreme Court Appeal No. 80 of 1961
Judge
Reported inAIR1962Ori105
ActsConstitution of India - Articles 132, 133 and 311
AppellantState of Orissa
RespondentNityananda Bohidar
Appellant AdvocateAdv. General
Respondent AdvocateG.K. Misra and ;S.K. Misra, Advs.
DispositionApplication rejected
Cases Referred and Haragovind Sarma v. S.C. Kagti
Excerpt:
.....gita banik, 1996 (2) glt 246, are not good law]. - 21 charges were framed against him and the tribunal fully exonerated him in respect of 5 charges and partially in respect of 6 charges, but held him guilty in respect of the remaining charges and recommended his dismissal from government service. this court accordingly held that the respondent did not get an adequate opportunity to defend himself by effectively cross examining the prosecution witnesses and there was thus contravention of the provisions of article 311(2) of the constitution. hence the findings of the tribunal in respect of the aforesaid four charges were vitiated by its failure to observe the rules of natural justice. article 311 has been construed in innumerable decisions of the supreme court including the well known..........held that the 'reasonable opportunity' envisaged in that article includes an opportunity for the public servant concerned to defend himself by cross examining the witnesses produced against him and by examining himself or any other witness in support of his defence. the question as to whether in a particular case the delinquent public servant was given such a reasonable opportunity or not depends on the peculiar circumstances and facts of that case and if, after applying the principles laid down by their lordships of the supreme court in the aforesaid decision, this court holds, in a particular case, that the public servant did not get a reasonable opportunity to defend himself, such a finding cannot be said to involve any substantial question of law regarding the interpretation of the.....
Judgment:

Narasimham, C.J.

1. This is an application by the State of Orissa for grant of leave to appeal to the Supreme Court against a Division Bench decision o this Court in O. J. C. No. 202 of 1960 reported in ILR (1961) Cut 373; (AIR 1962 Orissa 78). The leave was asked for both under Article 132 and under Sub-clause (c) of Clause (1) of Article 133 of the Constitution.

2. The respondent Nityananda Bohidar was formerly working as an Assistant Conservator of Forests under the Government of Orissa. A departmental enquiry was held against him by the Member, Administrative Tribunal, 'Orissa, in respect of various acts of misconduct said to have been committed by him while he was working as Divisional Forest Officer, Parlakhimedi. 21 charges were framed against him and the Tribunal fully exonerated him in respect of 5 charges and partially in respect of 6 charges, but held him guilty in respect of the remaining charges and recommended his dismissal from Government Service. Government accepted the recommendation and dismissed him from service on the 17th August 1960, and thereafter the respondent filed an application before this Court under Article 226 of the Constitution which was registered as O. J. C. No. 202 of 1960, and disposed of on the 10th April 1961.

3. This Court quashed the order of dismissal on the following two main grounds:

(i) In view of the particular circumstances of the case, the complex nature of the facts alleged against the respondent, and the large volume of evidence that was adduced against him (91 witnesses and 166 documents), the respondent should have been permitted to defend himself with the help of a lawyer specially when the case against him was conducted by an experienced police officer who had adequate training in conducting cases as a Court Sub-Inspector and Prosecuting Inspector. This Court accordingly held that the respondent did not get an adequate opportunity to defend himself by effectively cross examining the prosecution witnesses and there was thus contravention of the provisions of Article 311(2) of the Constitution.

(ii) In respect of four charges, namely charges 7, 8, 9 and 11, the Tribunal, after completing the departmental enquiry, had telephonic talk with the Deputy Secretary to the Government of Orissa in the Supply Department, obtained from him a secret D. O. letter, and utilised the information contained in that letter in coming to its findings. The respondent was not given an opportunity to rebut the inferences arising out of the contents of that letter. Hence the findings of the Tribunal in respect of the aforesaid four charges were vitiated by its failure to observe the rules of natural justice.

4. The important questions arise for consideration now:

(i) Is there any substantial question of law, as to the interpretation of the Constitution, so as to attract Article 132?

(ii) Is this case otherwise a fit one for leave to appeal to the Supreme Court on the ground that it involves some substantial question of law, apart from the interpretation of the Constitution, so as to attract Sub-clause (c) of Clause (1) of Article 133?

5. So far as the first question is concerned, there can be no doubt that our judgment does not involve the interpretation of any particular Article or clause of the Constitution. Article 311 has been construed in innumerable decisions of the Supreme Court including the well known case of Khem Chand v. Union of India, AIR 1958 SC 300 where it was held that the 'reasonable opportunity' envisaged in that Article includes an opportunity for the public servant concerned to defend himself by cross examining the witnesses produced against him and by examining himself or any other witness in support of his defence. The question as to whether in a particular case the delinquent public servant was given such a reasonable opportunity or not depends on the peculiar circumstances and facts of that case and if, after applying the principles laid down by their Lordships of the Supreme Court in the aforesaid decision, this court holds, in a particular case, that the public servant did not get a reasonable opportunity to defend himself, such a finding cannot be said to involve any substantial question of law regarding The interpretation of the Constitution. This view is supported by the decision of the Federal Court reported in Krishnaswami Pillai v. Governor General in Council, AIR 1947 FC 37 which has been reiterated in State of Jammu and Kashmir v. Ganga Singh, AIR 1960 SC 356.

6. The learned Advocate General however urged on behalf of the State that the view taken by this Court to the effect that in the peculiar circumstances of the present case, the denial of legal help to the respondent was tantamount to denial of a reasonable opportunity of defending himself, raises a substantial question of law regarding the interpretation of the Constitution. I am, however unable to accept this argument. This Court did not say that under all circumstances a delinquent public servant was entitled to legal help to defend himself in a departmental proceeding. On the other hand, the court pointed out that under Rule 6 (2) of the Disciplinary Proceedings (administrative tribunal) Rules, the Tribunal has discretion either to allow or refuse to allow legal help to the delinquent public servant. Nevertheless, after a review of the decisions of the various High Courts and also of the Federal Court in Qudratullah v. N. W. F. Province, AIR 1944 FC 72, this Court held that a particular case may contain special features to justify the inference that denial of legal help to the public servant concerned may be tantamount to a denial of a reasonable opportunity to defend himself within the meaning of Article 311. But this does not involve an interpretation of Article 311, of the Constitution, but is merely an application of the principles laid down by their Lordships of the Supreme Court, to the peculiar facts of the present case.

7. Similarly the view taken by this court that the findings of the Tribunal in respect of charges 7, 8, 9 and 11 were vitiated by its taking into consideration the secret D. O. letter sent to it by the Deputy Secretary, Supply Department, without giving an opportunity to the respondent to rebut the inference arising out of the contents of that letter, also does not involve the interpretation of any provision of the Constitution. In taking this view, this Court, merely followed the observations of the Supreme Court in Union of India v. T.R. Varma, (S) AIR 1957 SC 882, to the effect that

'no materials should be relied on against a public servant without his being given an opportunity of explaining the same'.

8. Sub-clause (c) of Clause (1) of Article 133 of the Constitution will also not help the applicant No substantial question of law arises out of our decision. The Advocate General however urged that there is no direct decision of the Supreme Court explaining the circumstances under which a delinquent public servant is entitled to legal help in a departmental proceeding and hence this is a fit case for granting leave to appeal. I might have been inclined, to accept this argument if there is even one decision of any High Court to the effect that under no circumstances is a delinquent public servant entitled to legal help in defending himself in such a proceeding. The Advocate General could not cite a single decision to that effect. On the other hand, this court pointed out that in AIR 1944 FC 72, Veeraswami v. Provincial Government of Madras, AIR 1948 Mad 379; Karuppa Udayar v. State of Madras, AIR 1956 Mad 460; Dr. K. Subba Rao v. State of Hyderabad, (S) AIR 1957 Andh Pra 414; C. R. Varma v. R. D. Varma, AIR 1958 All 532; James Bushi v. Collector of Ganjam, ILR (1959) Cut 95: (AIR 1959 Orissa 152) and Haragovind Sarma v. S.C. Kagti, AIR 1960 Assam 141, the peculiar facts and circumstances of each case were examined by the learned Judges before deciding whether denial of legal help was tantamount to denial of reasonable opportunity, for a public servant, to defend himself. Thus there seems not even an arguable case in support of the Advocate General's contention that under no circumstances is any delinquent public servant concerned entitled to legal help to defend himself. This point cannot therefore be considered to be a substantial question of law requiring an authoritative pronouncement by the Supreme Court.

9. For these reasons the application for leave rejected with costs. Hearing fee is assessed at Rs. 50/- (Rupees fifty only).

R.K. Das, J.

10. I agree.


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