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James Bushi Vs. Collector of Ganjam and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 58 of 1957
Judge
Reported inAIR1959Ori152
ActsConstitution of India - Articles 14, 226 and 311; Code of Criminal Procedure (CrPC) - Sections 162; Evidence Act, 1872 - Sections 124
AppellantJames Bushi
RespondentCollector of Ganjam and anr.
Appellant AdvocateG.K. Misra, Adv.
Respondent AdvocateAdv. General
DispositionPetition dismissed
Cases ReferredAuten v. Rayner
Excerpt:
.....of such legal help will not necessarily involve failure to observe the rules of natural justice in all cases. we are satisfied that he was not given an opportunity much less a reasonable opportunity to establish his case of mala fide and that every genuine attempt made by him was thwarted by the enquiring officer. it is well known that, in orissa, criminal cases in magistrate's courts are ordinarily conducted by police officers attached to courts known as court sub-inspectors or prosecuting inspectors. this court can also take judicial notice of the fact that these officers have a fairly good knowledge of criminal law and procedure and many of them are in no way inferior in legal attainments to pleaders or mukhtars practising in criminal courts. thus if a witness is examined against a..........department, named sri j. n. ghosh, might marshal the evidence against the petitioner during such departmental enquiry. on receipt of that letter the district collector magistrate of ganjam on the 23rd october, 1955 framed four charges against the petitioner and directed the departmental enquiry to be held by the sub-collector of berhampur. before that officer sri j. n. ghosh marshalled the evidence of the prosecution and twenty-seven witnesses were examined against the petitioner. the sub-collector then submitted a report to the district collector on the 31st august 1956, holding the petitioner guilty of all the four charges and recommending his dismissal from service.a copy of the sub-collector's report was sent by the district magistrate to the petitioner and he was called upon to.....
Judgment:

R.L. Narasimham, C.J.

1. This is a petition under Article 226 of the Constitution against the order of the District Collector of Ganjam dated the 2nd March 1957, dismissing the petitioner from service.

2. The petitioner was serving in Ganjam Collectorate for about 13 years and rose to the rank of Head-Clerk of the Civil Supplies Branch of that Coliectorate at Chatrapur. In 1951-52 the petitioner was working as the Head-clerk of the Civil Supplies Branch of the Sub-Collector's Office at Berhampur. On receipt of information about corruption while he was working in that capacity, a preliminary confidential investigation was made by some C.I.D. Officers of the Anti-Corruption Department and on the basis of that investigation, Government, in the Cabinet Department, addressed a letter to the District Collector of Ganjam on the 7th October 1955 (vide annexure B) requesting him to draw up departmental proceedings against the petitioner for disciplinary action.

Government further suggested that a Police officer of the rank of Inspector, of the Anti-Corruption Department, named Sri J. N. Ghosh, might marshal the evidence against the petitioner during such departmental enquiry. On receipt of that letter the District Collector Magistrate of Ganjam on the 23rd October, 1955 framed four charges against the petitioner and directed the departmental enquiry to be held by the Sub-Collector of Berhampur. Before that Officer Sri J. N. Ghosh marshalled the evidence of the prosecution and twenty-seven witnesses were examined against the petitioner. The Sub-Collector then submitted a report to the District Collector on the 31st August 1956, holding the petitioner guilty of all the four charges and recommending his dismissal from service.

A copy of the Sub-Collector's report was sent by the District Magistrate to the petitioner and he was called upon to show CM use why he may not be dismissed from service. This notice was issued obviously in compliance with the provisions of Article 311(2) of the Constitution. The petitioner then filed; a lengthy representation to the District Collector, who after reviewing the entire evidence collected by the Enquiring Officer (Sub-Collector) and considering the representation made by the petitioner, held that the charges were established and passed final orders on the 2nd March 1957 dismissing him from service.

3. Mr. G. K. Misra on Behalf of the petitioner urged that the petitioner did not get an adequate opportunity to defend himself for the following reasons:

(i) The petitioner was not permitted to engage a lawyer to defend him though, as stated above the evidence against him was marshalled by C.I.D. Officer of the rank of Inspector, viz., Sri J. N. Ghosh, who was trained in the work of collecting evidence and prosecuting criminal cases.

(ii) The petitioner was not supplied with copies of statements made by the prosecution witnesses before the C.I.D. during the confidential investigation which preceded the departmental enquiry, and he was thus effectively prevented from cross-examining these witnesses.

(iii) The petitioner's prayer for permission to examine Sri J. N. Ghosh was rejected by the enquiring officer, and similarly his prayer for recalling P. W. 1 Mohan Nayak for further cross-examination was also rejected. This action of the enquiring officer materially prejudiced the petitioner in his defence.

4. In departmental proceedings against delinquent public servants they are not entitled, as of right, to be represented by a lawyer; and it is left to the discretion of the officer holding the enquiry to allow or refuse to allow a lawyer to represent the delinquent officer. Hence, the mere denial of such legal help will not necessarily involve failure to observe the rules of natural justice in all cases.

In considering the question of prejudice other factors such as the nature of the charges made against the public servant and his own educational and other attainments which have a bearing on the ability to defend himself without legal help, should also be considered. The petitioner had joined Ganjam Collectorate fourteen years before and had risen to the post of Head Clerk of the Civil Supplies branch of that office. The charges were simple in nature relating to the acceptance of illegal gratification from one Mohan Nayak (P. W. 1) under promise of issuing a license to him for trading in food-grains and cloth.

A scrutiny of the evidence recorded by the Sub-Collector of Berhampur would show that there was proper cross-examination of the witnesses. Under these circumstances it cannot be said that the rules of natural justice were not duly observed merely because the petitioner was denied an opportunity to engage a lawyer on his behalf.

5. Mr. Misra relied on some observations of the Andhra High Court reported in Dr. K. Subba Rao v. The State of Hyderabad, AIR 1957 Andh-Pra 414. In that case a departmental proceeding was initiated against a medical officer and his prayer for professional help to assist him in his defence was refused. His contention all along was that the proceeding against him was the result of pre-conceived planning and concerted action on the part of the Medical Department. Their Lordships of the Andhra High Court held, in the peculiar circumstances of the case, that his request for professional help was justified, that the officer who conducted the proceeding should have acceded to the same, and that his refusal to do so was tantamount to denying the petitioner an opportunity to defend himself. In that case, there was sufficient material to show that the enquiry itself was not conducted in a fair manner and hence their Lordships were constrained to say:

'We are satisfied that he was not given an opportunity much less a reasonable opportunity to establish his case of mala fide and that every genuine attempt made by him was thwarted by the enquiring officer.'

In the present case however it was not even suggested that the Sub-Collector of Berhampur who field the departmental enquiry was thwarting any attempt of the petitioner to defend himself or that he showed any bias against him. The evidence was recorded exhaustively in the presence of the petitioner and he cross-examined almost all of them. On the facts of this case, therefore, I would not go to the length of saying that the denial of legal help to the petitioner was tantamount to denial of natural justice.

6. Mr. Misra thereupon raised an ingenious argument based on Article 14 of the Constitution. He urged that when the petitioner was denied legal help the authority conducting the case against him should also have been denied the legal help and both parties should have been put on an equal footing, it is admitted that the evidence against the petitioner was marshalled by the C.I.D. Inspector, Sri J. N. Ghosh, and the Sub-Collector's report shows that for all practical purposes this C.I.D. Officer 'conducted' the case 'for the prosecution'. Mr. Misra urged that an experienced Police Officer of the rank of Sri Ghosh may be expected to be fairly conversant with criminal law and procedure and his attainments may be equated to those of a lawyer practising in Criminal Courts.

Hence if the 'prosecution' (if I may use that expression) was given the assistance of such an Officer, in fairness to the petitioner he also should have been given facilities for defending himself with the assistance of a lawyer and the denial of such facilities would, in the circumstances of this case, amount to unfair discrimination. It is well known that, in Orissa, Criminal cases in Magistrate's Courts are ordinarily conducted By Police Officers attached to Courts known as Court Sub-Inspectors or Prosecuting Inspectors. This court can also take judicial notice of the fact that these officers have a fairly good knowledge of criminal law and procedure and many of them are in no way inferior in legal attainments to Pleaders or Mukhtars practising in criminal Courts.

Hence, if, as a fact, the proceedings against the petitioner had been conducted by a Court Sub-Inspector or by a Prosecuting Inspector there may be some justification for holding that the denial or legal help to the petitioner may amount to unfair discrimination and as such offend Article 14 of the Constitution. But there is no evidence to show that Sri J. N. Ghosh was familiar with conducting cases in criminal Courts as is the case with Court-Sub-Inspectors or Prosecuting Inspectors. He was a mere C.I.D. Officer of the rank of Inspector of Police whose primary job was to collect evidence by confidential investigation. He has also filed an affidavit before us (which has not been challenged), to show that apart from four month's training as Probationary Sub-Inspector attached to Courts in the early part of his service he was mostly working in police stations or in the C. I. D. Special Branch, and that he was never posted to do Court work either as a Court sub-inspector or Prosecuting Inspector.

It may be that as a Police officer concerned with investigation he may have some knowledge of penal law including the law of Criminal procedure, but I do not think that his legal attainments can be equated to those of a court sub-inspector or Prosecuting Inspector or of a lawyer practising in a criminal Court. Moreover, it should be borne in mind that the petitioner is not an illiterate layman, but an experienced member of the ministerial staff of the Collectorate who had worked for years in several branches of that office. I am not prepared to hold, in the absence of further materials, that the petitioner's attainments were in any way inferior to those of Sri T. N. Chosh so as to justify the view that he was in any way prejudiced in his defence by the mere refusal of the enquiring officer to afford him legal assistance. In this connection I may refer to Lakshminarain v. A. N. Puri AIR 1954 Cal 335.

7. Coming to the second point, it is admitted that copies of the statements made by witnesses during the preliminary confidential investigation by the C. I. D. were not granted to the petitioner during the departmental enquiry, even those witnesses were examined during the latter enquiry. Doubtless their previous statements before the C. I. D. might have been of some help to the petitioner in cross-examining them with a view to bring out contradictions if any. But in rejecting the petitioner's prayer for grant of copies of those statements the Collector of Ganjam merely stated (annexure B) that he was not entitled to copies of such statements. The learned Advocate General on behalf of the State claimed privilege tor those documents, under Section 124 of the Evidence Act.

8. Strictly speaking, neither the provisions of the Evidence Act nor those of the Criminal Procedure Code apply to departmental enquiries, but some lot those provisions which are based on rules of natural justice may be held to apply. Thus if a witness is examined against a delinquent officer the latter should be given copies of the previous statements I of that witness so as to enable him effectively to cross-examine his witness.

If such statements had been recorded in a regular police investigation under Chapter XIV of the Cr. P. C. the delinquent officer should be given copies of these statements even though there was no regular criminal case, inasmuch as the spirit of Section 162 of that Code should be followed. Similarly if there was a preliminary enquiry (not of a confidential nature) preceding the holding of a regular departmental enquiry, the delinquent officer should be given copies of statements made by witnesses during that preliminary enquiry as pointed out by the Calcutta High Court in Harbans Sahai v. Emperor 15 Ind Cas 77 (Cal).

9. But a secret investigation by the C. I. D. specially of the Anti-Corruption Branch, stands on an entirely different footing. The investigation by its nature is very confidential and is meant primarily for the purpose of finding out whether there is really a prima facie case for initiating a regular departmental enquiry against the public servant concerned. The authorities are entitled to claim privilege for statements made by witnesses in the course of such secret C. I. D. investigation because, if such statements are disclosed it may virtually become impossible to collect any information whatsoever.

On this question the opinion of the investigating authority should ordinarily be taken as final. Even in a regular criminal case started against an accused on the basis of a secret C. I. D, investigations, he would not be entitled to get copies of statements made by witnesses during such investigations inasmuch as these investigations are not made under any of the provisions of the Criminal Procedure Code and hence Section 162 of that Code would be of no help. Thus in. Nazir Ahmad v. Emperor AIR 1944 Lah 434 it was held that statements given by persons during confidential enquiries made by the Special Enquiry Agency set up by the Punjab Government, were privileged under Section 123 of the Evidence Act and the accused was not entiiled to get copies of the same.

I may also refer to a very recent decision of the Court of Appeal in England, in Auten v. Rayner (1958) 1 WLR 1300, where the law dealing with the claim of privilege by the Crown in respect of certain police reports was fully discussed and laid down. In that case the question for consideration was whether the report made by the officer of the Scotland Yard of the Criminal Investigation Department was privileged or not in a subsequent civil suit for malicious prosecution and damages. The claim of privilege was upheld.

10. I am therefore of opinion that rule of natural justice does not require that copies of the statements made by witnesses during an investigation by the C. I. D. preceding a departmental enquiry against a delinquent Government servant, should be given to that servant with a view to facilitate the cross-examination of those witnesses.

11. The third point of Mr. Misra deals with the conduct of the enquiring officer (Sub-collector) of Berampur in refusing permission to the petitioner to examine Sri J. N. Ghosh, the C. I. D. Inspector and to recall Mohan Nayak (P. W. 1) for the purpose of further cross-examination. These are matters to be considered primarily by the enquiring officer and by the appellate authority, namely the Board of Revenue or the State Government. Sri J. N. Ghosh had no personal knowledge of the case and if the enquiring officer refused the permit the petitioner to examine the C. I. D. Inspector it cannot be said that the rules of natural justice were violated.

As regards Mohan Nayak he was undoubtedly the most important witness against the petitioner and was the first to be examined and also to be cross-examined. It might have been better on the part of the enquiring officer to have permitted the petitioner to recall and further cross-examine Mohan Nayak at a later stage. But, if, in his discretion, he refused to grant such permission, the question as to how far such refusal materially prejudiced the petitioner would depend upon a careful review of the facts of the case. This is primarily the function of the appellate authority and when the District Collector after reviewing the entire evidence held , that the charges were proved, I do not think it will be proper for this Court to interfere with his order on this ground, in exercise of its extra-ordinary jurisdiction under Article 226.

12. For the aforesaid reasons I would dismiss this petition, but make no order as to costs.

Das, J.

13. I agree.


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