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Bauribandhu Misra Vs. I.G. of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 373 of 1969
Judge
Reported inAIR1970Ori213
ActsConstitution of India - Articles 226 and 311
AppellantBauribandhu Misra
Respondenti.G. of Police and ors.
Appellant AdvocateR.C. Patnaik and ;A.K. Misra, Advs.
Respondent AdvocateAdv. General
DispositionApplication dismissed
Cases ReferredD. I. G. of Police v. Amalanathan.
Excerpt:
.....involving a pecuniary loss of rs. patnaik contended that as the enquiry report was based on evidence recorded by some of the predecessor enquiring officers and as the last enquiring officer who submitted the report had no opportunity to observe the demeanour of all the witnesses, the enquiry report was bad in law, and the disciplinary authority cannot rest his conclusion on such enquiry report. this is clearly against the principles of natural justice. for reasons to be presently given, we are clearly of opinion that this decision is contrary to law. 6. it is well known that even in civil suits, a successor judicial officer can deliver judgment on the evidence recorded by his predecessor. ' the ratio of the decision clearly implies that the disciplinary authority imposes the..........lordships observed thus:--'the interposition of the enquiry which is held by a duly appointed enquiry officer does not alter the true legal position that the charges are framed by government and it is the government which is empowered to impose the punishment on the delinquent public servant. therefore, on principle it is difficult to see how the respondent is justified in contending that the findings recorded by the enquiry officer, bind the appellant (government) in the present case.'the ratio of the decision clearly implies that the disciplinary authority imposes the punishment without recording evidence and without having any opportunity of marking the demeanour of the witnesses. if the ultimate punishing authority can take the decision without marking the demeanour of.....
Judgment:

G.K. Misra, C.J.

1. The petitioner is a police constable. In February, 1960, he was attached to Jaleswar Police Station in the district of Balasore. On 7-2-1960 a farewell party was given at Jaleswar Police Station on the occasion of the transfer of the Officer-in-Charge. When the Police Officers, other constables and outsiders assembled at the barracks to attend the feast, the petitioner entered into the barracks with a short lathi in a drunken state and inflicted blows on constable No. 29. Thereafter, the petitioner remained confined in his own room, bolting the door from inside and did not listen to repeated calls by the Assistant Sub-Inspector to come out. A proceeding was drawn up against the petitioner. On 22-9-1961, the Superintendent of Police, Balasore (Opposite Party No. 31) ordered that the petitioner would forfeit his best increment as also his next increment for a period of two years from 1-9-1961, involving a pecuniary loss of Rs. 41/-. He also imposed three black marks. An appeal to the Inspector-General of Police produced no result. The writ application has been filed under Articles 226 and 227 of the Constitution challenging the order of the Superintendent of Police imposing the aforesaid punishment,

2. In the writ application, the impugned order was challenged on several grounds such as that the procedure laid down for holding enquiries was not followed, the evidence of the prosecution witnesses was taken at the back of the petitioner, copies of documents were not supplied though they were utilised by the prosecution, the proceeding was conducted in English which was not known to the petitioner, and no opportunity was given to defend petitioner through counsel. At the time of hearing, all these grounds were not pressed. The only contention urged by Mr. Patnaik was on the basis of certain facts not mentioned in the writ application. Ordinarily, such a contention would not have been permitted to be urged as it would involve a question of fact. But as the learned Advocate-General did not dispute the accuracy of the factual basis of the statement, the contention was permitted to be urged.

3. The undisputed facts on which the contention is based are that initially, one Mr. Bhowmick was appointed as the enquiring officer. On the application of the petitioner to transfer the proceeding from Mr. Bhowmick, the disciplinary authority appointed one Mr. Hazari as the enquiring officer. Mr. Hazari was subsequently transferred and so the disciplinary authority appointed one Mr. Paramananda Misra as the enquiring officer. Each of these enquiring officers recorded some evidence and the enquiry report was submitted by Mr. Paramananda Misra.

4. On the aforesaid facts Mr. Patnaik contended that as the enquiry report was based on evidence recorded by some of the predecessor enquiring officers and as the last enquiring officer who submitted the report had no opportunity to observe the demeanour of all the witnesses, the enquiry report was bad in law, and the disciplinary authority cannot rest his conclusion on such enquiry report.

5. The contention, on the face of it, appears fantastic and illogical. Mr. Patnaik however placed reliance on a few decisions some of which may be noticed.

In AIR 1958 Cal 470, Amulyakumar v. L. M. Bakshi, the learned Judge made the following observations:--

'If the enquiring authority has the duty to come to a conclusion as to the guilt of the delinquent, upon an evaluation or assessment of the evidence, then it is entirely necessary that he should be the person who should hear the evidence of witnesses. It is impossible to evaluate the evidence of a witness taken on proxy, because one of the salient features in such a proceeding is to observe the demeanour of the witnesses. As it has been said, even the Devil doth not know the mind of man and therefore to arrive at the truth it is necessary not only to read the evidence but to see the demeanour of the person giving evidence and where necessary to elicit answers to doubtful points. To anyone conversant with such trial, it is but an elementary proposition that the demeanour of a witness is the most important element in assessing the value of his evidence.'

These observations apparently support the contention of Mr. Patnaik. But on a closer scrutiny of the facts it would appear that they were made in relation to the facts andcircumstances of that case. Therein the enquiring officer was appointed by the disciplinary authority. On two dates the evidence of some important witnesses was taken by one Nirmal Kumar Bhattacharjee who was not appointed as the enquiring officer and on that evidence the ultimate finding rested. This is clearly against the principles of natural justice. The evidence was recorded by a person having no jurisdiction or authority to record evidence and was wholly inadmissible. The disciplinary authority certainly cannot rest his conclusion on such evidence. The aforesaid observations must therefore be confined to the facts of that case.

Similarly, in AIR 1961 Guj 63, Hemrajsinghji v. I.G. of Police, there are some observations supporting the petitioner's contention. In that case, the proceedings against the petitioner were dealt with by more than one officer and the same officer did not deal with them throughout. Their Lordships held:--

'The officer who had occasion to see the witnesses and observe their demeanour had not written any summing up. The summing up was written by his successor and in the proceedings which followed after they were set aside, no witnesses were examined by the successor in office whose summing up was based on the evidence of witnesses recorded by his predecessor.'

On these facts, their Lordships held that the principle of natural justice was violated.

For reasons to be presently given, we are clearly of opinion that this decision is contrary to law.

6. It is well known that even in civil suits, a successor judicial officer can deliver judgment on the evidence recorded by his predecessor. Doubtless, observation of the demeanour of witnesses is an essential part of the trial but in a case where the indicial officer is transferred while in the midst of the trial, or at the close of the same but before judgment is delivered, the successor delivers judgment, without recording fresh evidence himself, and such judgment is not without jurisdiction or contrary to law.

After the amendment of the Criminal Procedure Code in 1955, the same principle applies to trial of criminal cases by Magistrates; unless the successor Magistrate chooses otherwise, he can proceed on the basis of evidence recorded by his predecessor. The accused is not entitled to claim de novo trial as a matter of right which he had prior to the amendment.

7. There is no rule that in a disciplinaryproceeding the successor enquiring officer cannot rely upon the evidence recorded by the predecessor enquiring officer. In the absence of such a rule, there is no violation of the principle of natural justice merely because the successor was not in a position to observe the demeanour of witnesses. The enquiring officer is not the ultimate punishing authority. It is the disciplinary authority which is entitled to impose the final punishment after reaching the necessary conclusion. In any event, where the evidence is recorded by the enquiring officer, the disciplinary authority has no opportunity of marking the demeanour of the witnesses. If the view taken in the aforesaid two cases is held to be of general application, then, as a necessary and logical conclusion, the finding of the disciplinary authority in every case must be held to be without jurisdiction merely because he had no opportunity of observing the demeanour of witnesses himself. Such a conclusion is not borne out by the rules and is wholly illogical.

8. After the pronouncement of their Lordships in AIR 1964 SC 364, Union of India v. H.C. Goel, such a contention is wholly untenable. One of the questions that arose in that case was whether Government was competent to differ from the findings of fact recorded by the enquiring officer who had been entrusted with the work of holding a departmental enquiry. The matter was critically examined and their Lordships observed thus:--

'The interposition of the enquiry which is held by a duly appointed enquiry officer does not alter the true legal position that the charges are framed by Government and it is the Government which is empowered to impose the punishment on the delinquent public servant. Therefore, on principle it is difficult to see how the respondent is justified in contending that the findings recorded by the enquiry officer, bind the appellant (Government) in the present case.'

The ratio of the decision clearly implies that the disciplinary authority imposes the punishment without recording evidence and without having any opportunity of marking the demeanour of the witnesses. If the ultimate punishing authority can take the decision without marking the demeanour of witnesses, it would be fantastic to say that a successor enquiring officer cannot give the report unless he himself has recorded the entire evidence. The aforesaid view runs counter to the argument that an enquiry report submitted by the last enquiring officer cannot be based on the evidence of his predecessors. The Supreme Court decision was followed in AIR 1969 SC 966, Railway Board, Delhi v. N. Singh.

Our view is also fully supported by the decision in AIR 1966 Mad 203 (FB), D. I. G. of Police v. Amalanathan.

9. On the aforesaid analysis, we are of opinion that the successor enquiring officer can submit the enquiry report on the basis of materials collected by his predecessors. The Calcutta case is distinguishable on facts and the observations in the Gujarat decision are contrary to law. If any of these decisions purported to lay down any general propositions to the contrary, we are unable, with respect, to accept them as laying down good law.

10. In the result, the writ application fails and is dismissed, but in the circumstances, without costs.

S.K. Ray, J.

11. I agree.


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