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Dr. Jnanendra Nath Das Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 10 of 1963
Judge
Reported inAIR1964Ori241; (1965)ILLJ173Ori
ActsConstitution of India - Articles 226, 311 and 311(2); Limitation Act, 1908 - Schedule - Article 102; Disciplinary Proceeding (Administrative Tribunal) Rules, 1951
AppellantDr. Jnanendra Nath Das
RespondentState of Orissa
Appellant AdvocateC.V. Murty, Adv.
Respondent AdvocateAdv. General
DispositionApplication dismissed
Cases ReferredState of Orissa v. Bidyabhusan
Excerpt:
.....case does not present any complexity of facts or volume of evidence which could not be properly handled by the petitioner by his educational attainments and experience as a public servant. and (iii) failure to give copies of certain documents rendered effective cross-examination nugatory. 8. before dealing with the factual aspects of these criticisms, it would be better to clarify the legal position. the following propositions of law be taken to be well settled: 14. all the contentions fail......was not brought into evidence and not supplied to the petitioner for inspection for the purpose of cross-examination. (v) regarding the allegation of misappropriation of rs. 260/-, the tribunal should not have placed reliance on ex. 4, the statement at arjun ghasi (p. w. 5), recorded by col. hazra, and the copy of this document was not supplied to the petitioner in spite of his request. (vi) the finding of the tribunal that voucher no. 70 is false and mainly based on exs. 10 and 11 which are forged documents. ext. 11 purports to have been written by rupshar kumar (since dead) to r. k. tripathy (p. w. 3) explaining the entries made in the stock book and that was in reply to ex. 10, written by p. w. 8 (ex. g). though the petitioner wanted the tribunal to send these documents to the.....
Judgment:

Misra, J.

1. In this application under Articles 226 and 227 of the Constitution of India, the petitioner seeks two reliefs:

(i) to issue an appropriate writ to quash the Order of dismissal dated 30-8-1962, and

(ii) to direct the State of Orissa to pay the full salary of the petitioner during his period of suspension from 1-6-1950 to 11-3-1954.

2. Facts relevant to the controversy involved in this application may be stated in a narrow compass.

The petitioner was the Dt. Health Officer posted at Bolangir on 1-6-50 when he was suspended on charges of misconduct. He was dismissed after departmental enquiry on 12-3-54. In O. J. No. 138 of 1958 the High Court quashed the order of dismissal on 13-4-59 and directed the opposite party to refer the case of the petitioner to Administrative Tribunal under the Disciplinary Proceeding (Administrative Tribunal) Rules, 1951. The petitioner's case was referral to the Administrative Tribunal and he was again suspended with effect from 1-6-60. The Tribunal framed 2 charges, but exonerated him of the 2nd charge, the details of which need not therefore, be mentioned. The 1st charge is as follows:

'That you, being a Government servant mis-conducted yourself in the discharge of your official duties as District Health Officer, Bolangir in the year 1949, by dishonestly misappropriating a sum of Rs. 1128-14-9 out of the Govt. money entrusted to you as a public servant and submitting false vouchers as stated in detail in the accompanying grounds for charges.'

The petitioner asserted that the charge was baseless. A thorough enquiry was made by the Tribunal before whom 13 witnesses and 32 documents were produced in respect of the charges. The petitioner examined 12 witnesses and exhibited 25 documents in support of his defence. The Tribunal held that the first charge was substantially proved and that the petitioner misappropriated, at least temporarily, a sum of Rs. 1056-81 nP. and submitted false vouchers to camouflage such misappropriation.

The details of the Tribunal's findings may be enumerated in its own words -

(I) I, therefore, come to the conclusion that Ex. 26 is really a false voucher even though it bears the signature of Budhanram and Dr. J. N. Das really misappropriated a sum of Rs. 238-12-0, at least temporarily.

(II) I am, therefore, to conclude that Dr. J. N. Das actually misappropriated a sum of RS. 537/- at least for the period between 12-12 49 and 28-3-50, and Ext. J was really a false voucher at the time it was sent to the District Magistrate, Bolangir.

(III) All these circumstances clearly prove the charge against Dr. J. N. Das that he submitted to the District Magistrate false vouchers regarding fodder for the bullock of Kantabanji Sanitation Committee and had misappropriated at least temporarily the amounts mentioned therein.

(IV) It follows, therefore, that Ext. 70 is only a false voucher. And as this amount was mentioned as an item of expenditure in the statement submitted by Dr. J. N. Das, to the District Magistrate, out of the funds which he had received form Dr. Subal Chandra Das, it is to be concluded that Dr. J. N. Das misappropriated this amount.

The petitioner filed O. J. C. 43 of 1961 on 6-2-1961 for directing the State Government to pay his full remuneration from 30-5-1950 to 27-5-1960. On 6-8-1961 the Court ordered 'This application is permitted to be withdrawn as prayed for'. The petitioner thereafter filed O. J. C. 237 of 1962 with the identical prayer. This application was also withdrawn on 17-4-1963 with permission to raise the same point in O. J. C. 10 of 1963 which was pending by that date. By an amendment, the petitioner added this prayer in the O. J. C. On 3-1-62, the opposite party rejected the petitioner's claim for full remuneration from 1-6-50 to 12.3.1954. It may be noted that be had already been paid subsistence allowance during this period.

3. Mr. Murty raises the following contentions:

(1) As in O. J. C. 138 of 1958 the High Court quashed on 13-4-59 the dismissal order dated 12-3-54, the petitioner is entitled to the full remuneration from 1-6-1950 to 12-3-54 after deduction of the subsistence allowance already paid to him.

(2) The order of dismissal dated 30-10-52 is kad in law as no reasonable opportunity was granted to the petitioner in defending himself in the proceedings before the Tribunal, and that reasonable opportunity was not granted on the following counts -

(i) The Tribunal denied permission to the petitioner to engage a lawyer to assist him in the inquiry particularly in view of the complicated mature of the case in which a large many witnesses were examined and a number of documents were exhibited; and

(ii) The petitioner's prayer for personal hearing by the State Government was refused:

(iii) With regard to the misappropriation of a sum of Rs. 238-12-0 contained in Ext. 26, the tribunal placed reliance on Ext. 20, the statement purported to have been made by Budhanram (P. W. 12) to C. I. D. Officer under coercion, the knowledge of which was even denied by P. W. 12 and on the statement recorded by Col. Hazra, the then Director of Health. These documents were refused to the petitioner at the time he wanted to prepare his defence and they should not have been utilised as legal evidence, by the Tribunal.

(iv) With regard to the allegation of misappropriation of Rs. 537/- under voucher No. 98 D/-12-12-1949, the Tribunal drew adverse inference from the omission of materials concerning the said supply of payments in private and other official correspondence, and the Tribunal should not have recorded a finding of guilt against the petitioner on the evidence not recorded but on presumption or inference which could neither be proved nor rebutted, and that the tribunal should not have preferred Ex. 20, the statement of P. W. 12, to Ex. K, a letter written by Budhanram on 1-4-50. With regard to this charge also the Tribunal should not have relied upon the audit Reports (Exs. 15, 16 and 17) which were based on Stock Ledger which was not brought into evidence and not supplied to the petitioner for inspection for the purpose of cross-examination.

(v) Regarding the allegation of misappropriation of Rs. 260/-, the Tribunal should not have placed reliance on Ex. 4, the statement at Arjun Ghasi (P. W. 5), recorded by Col. Hazra, and the copy of this document was not supplied to the petitioner in spite of his request.

(vi) The finding of the Tribunal that voucher No. 70 is false and mainly based on Exs. 10 and 11 which are forged documents. Ext. 11 purports to have been written by Rupshar Kumar (since dead) to R. K. Tripathy (P. W. 3) explaining the entries made in the Stock Book and that was in reply to Ex. 10, written by P. W. 8 (Ex. G). Though the petitioner wanted the Tribunal to send these documents to the Hand-writing Expert as there was clear disparity between the admitted signature of Rupdhar in Ex. P with his purported signature in Ex. 11, the Tribunal did not send them to the Hand-writing Expert and did not refer to these matters in his judgment.

All the aforesaid contentions require careful examination.

4. The first contention that the petitioner is entitled to full remuneration from 1-6-50 to 12-3-54 after deduction of the subsistence allowance already paid to him is legally tenable. The pronouncement in AIR 1954 SC 245, State of Bihar v. Abdul Majid, firmly establishes the position that a Civil Servant can maintain a suit against the State for recovery of arrears of salary. In AIR 1962 SC 1334, Devendra Pratap v. State of Uttar Pradesh, their Lordships held that the effect of an adjudication quashing an order of dismissal is to declare that the Civil servant had, been wrongly prevented from attending to his duties as a public servant. In such a contingency it is not open to the authorities to deprive the public servant of the remuneration which he would have earned if he had been permitted to work. When the High Court quashed the order of dismissal dated 12-3-54 on 13.4.59, the right to full salary from 1-6-50 to 12.3.54 accrued to the petitioner.

The aforesaid conclusion is not, however, enough to grant relief to the petitioner. Article102, Limitation Act, runs as follows:

''For wages not otherwise Three When the wages expressly provided for years. accrue due.'

by this schedule.

It was authoritatively pronounced in AIR 1947 FC 23, Punjab Province v. Tara Chand, that the term wages in Article 102 includes pay or salary and that the period of limitation for a suit to recover arrears of pay is governed by Article 102. The petitioner's arrears of salary from 1-6-50 to 12-3-54 accrued due to him with effect from 13-4-59. Unless the petitioner took recourse to an action for recovery of the arrears of salary on or before 13-4-62, the claim is barred by limitation. O. J. C. 237 of 1962 filed on 26-10-62 and this O. J. C. filed on 15-1-63 were clearly after the expiry of the period of limitation of three years. O. J. C. 43 of 1961 was filed within the period of limitation but was withdrawn by the petitioner without procuring an undertaking from the State that the arrears of salary would be paid. The result, therefore, is that the petitioner's claim for arrears of salary from 1-6-50 to 12.3.54 is barred by limitation.

The position of law is well settled that if the petitioner disables himself from availing of the remedy by his own fault in not pursuing it within the prescribed time, he cannot be permitted to urge his own laches and the bar of limitation as a ground for obtaining relief by exercise of the discretion of the Court under Article 226--AIR 1961 SC 1506, A. V. Venkatawaran v. R. S. Wadhwani. To the similar effect there is an observation of a Bench of this Court in A. I. R. 1960 Orissa 79, Orissa Mineral Development Co. v. Commissioner of S. T. Thus though the petitioner's claim for arrears of salary is legally tenable, it is barred by limitation and this Court, in its discretion under Article 226, cannot grant relief which is otherwise barred.

Even if the petitioner's claim had not been barred by limitation, this Court would not ordinarily exercise its jurisdiction to grant a relief of this nature for enforcing a civil liability arising out of a breach of contract or a tort. In AIR 1962 SC 1320, Burmah Construction Co. v. State of Orissa, their Lordships observed that the High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a Civil Suit filed for that purpose. The opposite party does not accept the petitioner's claim to the arrears of salary and raises the dispute that the petitioner must establish that during the relevant period he had not taken to any other avocation or means of earning and that the petition lacks averment of that nature. These are matters which could be properly canvassed in a civil suit and not in a writ application. This aspect of the matter is, however, academic in view of our conclusion that the claim is barred by limitation and cannot be allowed in a writ application.

The first contention has no merit and is rejected.

5. The next contention that the Tribunal denied permission to the petitioner to engage a counsel to assist him in the inquiry is not disputed. It is, however, contested that the case is not of that character in which the assistance of a counsel was necessary and that the Tribunal was correct in not according such permission.

The entire position of law in this regard was fully examined by a Bench of this Court in the case of Nitya Ranjan v. State, AIR 1962 Orissa 78. Their Lordships held:

'From the aforesaid decisions the principle that emerges is this; though in a departmental inquiry the delinquent public servant may not be entitled as of right to legal assistance to defend himself, nevertheless, there may be special circumstances connected with the case such as complexity of facts, volumes of evidence, the educational attainments and the experience of the public servant etc. which may show that without legal assistance he will not be able to adequately cross-examine the witnesses or to establish his innocence. In such circumstances denial of legal assistance may be equivalent to denial of 'reasonable opportunity' within the meaning of Article 311(2) and the entire proceeding is liable to be quashed.'

This judgment was delivered on 10-4-1961. Reliance was placed by the Advocate General on AIR 1961 SC 1245, Jagannath Prasad v. State of Uttar Pradesh in support of the conclusion that refusal to give assistance of a counsel would in no circumstance amount to denial of reasonable opportunity. The Supreme Court decision was delivered on 6-3-61 and had not been reported by the time the judgment in AIR 1962 Orissa 78 was pronounced. But on a careful scrutiny of the judgment of the Supreme Court, it appears clear to us that their Lordships have not taken a different view. Had it been so, nothing could be easier for their Lordships to say that refusal toy give assistance of a counsel would not amount to denial of reasonable opportunity, and it would not have been necessary for their Lordships to examine the facts of that particular case to arrive at the conclusion that there was no denial. The following extract in their Lordships' judgment is significant;

'It does not appear that Jwala Prasad was a practising lawyer; he was not in any case permitted to appear as a lawyer and on the affidavit of Hari Shankar Sharma, it is clear that he did not take any part in the examination of witnesses or cross-examination.'

The dictum laid down by this Court stands as good law. It is conceded by the learned Advocates on either side that subsequent to the pronouncement of this Court about three years before, there has been no pronouncement in any of the High Courts in India or the Supreme Court taking a contrary view.

This conclusion, however, does not assist the petitioner. On going through the records we are satisfied that this particular case does not present any complexity of facts or volume of evidence which could not be properly handled by the petitioner by his educational attainments and experience as a public servant. The petitioner had his education abroad and was fairly senior in age. The charges levelled against him in respect of different items were of simple nature. He also elaborately cross-examined the witnesses for the prosecution and gave a long explanation meeting each of the charges and the evidence connected therewith. The refusal by the Tribunal for legal assistance does not amount to denial of reasonable opportunity is the facts and circumstances of this case.

6. It is next contended that the petitioner was not heard in person by the State Government, and the reasonable opportunity of meeting the accusations against him was accordingly denied. Reliance was placed by Mr. Murty on AIR 1963 All 94, State of U.P. v. C. S. Sharma. In that case the complaint was that the charged officer was not 'heard in person' by the Enquiring Officer. There can be no dispute over the proposition that if the Enquiring Officer does not give a personal hearing to the delinquent officer, it may in certain circumstances amount to want of reasonable opportunity. 'Personal hearing' by the Enquiring Officer, in substance, amounts to hearing the arguments on the oral and documentary evidence recorded. Giving free scope to the delinquent for cross-examination of the witnesses for the State and for defending himself by examination of his own witnesses may not in some cases amount to proper vindication of the rights. The enquiring Officer might change his own estimate of the evidence after hearing the arguments of the delinquent. 'Personal hearing', therefore, may constitute an essential element of reaosnable opportunity in the facts and circumstances of a particular case. The question is, however, academic in this case. In the writ application, the petitioner has made no grievance that the Tribunal did not give a personal hearing to him. The Allahabad decision has therefore, no application to the facts of this case. In fact. Mr. Murty did not advance any contention before us that the Tribunal did not hear the petitioner in person. He, however, contended that the State Government did not give the petitioner an opportunity for personal hearing. In AIR 1960 SC 493, Kapur Singh v. Union of India, their Lordships held that an opportunity of making an oral representation was not a necessary postulate of an opportunity of showing cause within the meaning of Article 311. There is no substance in this contention.

7. The residual contentions of Mr. Murty enumerated in paragraph 3 (B) (iii) to (vi) of the judgment may be classified into following broad criticism:

(i) The previous statements of witnesses were illegally used as substantive evidence.

(ii) Adverse inference was drawn against the petitioner from certain omission in documents without any positive evidence of the commission of forgery and mis-appropriation; and

(iii) Failure to give copies of certain documents rendered effective cross-examination nugatory.

8. Before dealing with the factual aspects of these criticisms, it would be better to clarify the legal position. The following propositions of law be taken to be well settled:

(i) High Court cannot sit in appeal over the findings recorded by a Tribunal in a departmental inquiry. The former would act beyond its jurisdiction if it purports to re-appreciate the evidence, and cannot interfere unless the finding are based on no evidence.

(ii) The inquiry held by the Tribunal is not governed by the strict and technical rules of the Evidence Act. It is guided by the rules of equity and natural justice and is not bound by formal rules relating to procedure and evidence.

Previous statements of witnesses can be treated as substantive evidence in the inquiry before the Tribunal, provided they were duly tendered, proved and exhibited. Once such a statement is tendered in the presence of a delinquent officer, who gets full opportunity for cross-examination, it is open to him to obtain copy of the document and ask for time for cross examination if the copy of the document had even been refused before it was tendered, AIR 1963 SC 404, State of Orissa v. Muralidhar Jena.

(iii) The right to cross-examine the witnesses who gave evidence against the delinquent is a very valuable right; and if it appears that effective exercise of that right has been prevented by the Enquiring Officer by not giving the delinquent officer the relevant documents of which he is entitled to, the inquiry is to be held as not in accordance with the rules of natural justice, AIR 1961 SC 1623, State of M.P. v. Chintaman Sadashiva.

In the light of the aforesaid principles, Mr. Murty'scontentions would be tested.

9. With regard to misappropriation of a sum of Rs. 238/12/-, contained in Ex. 26, the petitioner's grievance is that the Tribunal placed reliance on the previous statement (Ex. 20) of P. W. 12 to a C. I. D. Officer and also the statement recorded by Col. Hazra, the then Director of Health, and that these documents had been used against the petitioner even though copies of those documents had been refused to him at the time he prepared his defence. There is nothing illegal in treating those previous statements as substantive evidence. The previous statements were proved in the presence of the petitioner who was given full opportunity for cross-examination. It was open to him to take copies of those statements and ask for time for cross-examination on the subsequent date. There is therefore no denial of reasonable opportunity.

10. On the question of misappropriation of Rs. 537/- and forgery of voucher No. 98, Mr. Murty's criticism is that adverse inference was drawn from the omission of the supply and the payments being mentioned in certain private and official correspondence made by the petitioner. These relate to pure assessment of evidence and it is within the jurisdiction of a Tribunal of fact to draw adverse inference from the omission as much as from the commission. Ext. 20 was also used as a piece of evidence under this head of charge and this could be legally used as substantive evidence, as already discussed.

It is then contended that the Tribunal should not have placed reliance upon the Audit Reports (Exs. 15, 16 and 17) which were based on the stock ledger which was not brought into evidence and not supplied to the petitioner for inspection for the purpose of cross-examination. It is true that the Stock Ledger was not supplied as it was not, available. The audit reports were not, however, based merely on the Stock ledger but on other documents. Even conceding that effective cross-examination with regard to Audit Reports might have been partially hampered due to non-supply of the Stock ledger, there was no denial of reasonable opportunity as the finding was not based entirely on the Audit Reports but on other evidence, such as Ex. 20 and inference drawn from certain omissions. Mr. Murty also contends that the Tribunal should not have preferred Ex. 20 to Ex. K (a letter written by Budhanram P. W. 12 on 1-4-50). This relates to pure appreciation of evidence and lies within the jurisdiction of the Tribunal. There is no substance in the contention that the finding of misappropriation of Rs. 537/- and forgery of voucher No. 98 is based on no evidence.

11. With regard to misappropriation of Rs. 260/-, Mr. Murty's contention is that the Tribunal should not have placed reliance on Ex. 4 (the previous statement of Arjun Ghasi, P. W. 6 recorded by Col. Hazra). This document was exhibited in the presence of the petitioner who had full opportunity of cross-examination and was rightly treated as substantive evidence. It was open to the petitioner to ask for a copy of the document after it was marked as an exhibit and to ask for time for cross-examination on a subsequent date. There has been no denial of reasonable opportunity under this head.

12. The next contention is that the finding of the Tribunal that voucher No. 70 is false is mainly based on Exs. 10 and 11, which are forged documents. As appears from the order sheet of the tribunal dated 23-11-61, the petitioner invited attention of the Tribunal to the fact that the signature of Rupadhar Kumar in Exs. 5, 10 and 11 did not tally with the admitted signature in Ex. P. and had been forged. The petitioner submitted that if necessary the signature may be examined by a hand-writing Expert. The Tribunal dealt with this part of the case placing reliance on the evidence of one R. K. Tripathy (P. W. 8) and the entries in the Stock Book (Ex. G). It was open to the Tribunal of fact to place reliance on the materials on record to come to the conclusion whether Exs. 10 and 11 were forged. The petitioner did not insist upon sending Exs. 10 and 11 to the Handwriting Expert but merely wanted that if necessary those might be sent to the Hand-writing Expert by the Tribunal. The Tribunal did not consider it necessary to send the documents to Handwriting Expert whose opinion in the matter cannot of course be conclusive. These criticisms relate to pure assessment of evidence and the Tribunal acted within its jurisdiction in recording the finding that voucher No. 70 was forged. There was no denial of reasonable opportunity on this count also.

13. It is now necessary to deal with one more contention of Mr. Murty. Placing reliance on AIR 1964 SC 334, Rameswar Shah v. District Magistrate, Burdwan, Mr. Murty contended that as some of the findings of the Tribunal are based on no evidence, the entire order should be quashed. In that case, their Lordships held:

'If any of the grounds furnished to the detenu are found to be irrelevant while considering the application of Clauses (i) to (iii) of Section 3(1) (a) and in that sense foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed. Similarly, if some of the grounds supplied to the detenue are so vague that they would virtually deprive the detenu of his statutory right of making a representation, that again may introduce a serious infirmity in the order of detention.'

In AIR 1963 SC 779, State of Orissa v. Bidyabhusan, their Lordships, in a case directly arising under Article 311, held:

'Therefore if the order may be supported on any findings as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground also would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the Enquiring Officer or the Tribunal prima facie make out a case of misdemeanour to direct the authority to reconsider that order, because in respect of some of the findings, but not all, it appears that there has been violation of the rules of natural justice.'

As the petitioner's case is directly one under Article 311 we are bound to follow this case. It is not for us to resolve the apparent conflict in the principles in the aforesaid two decisions. The question is, however academic, in view of our conclusion that none of the findings of the Tribunal is based on no evidence.

14. All the contentions fail. In the result, the application fails and is dismissed, but in the circumstances without costs.

Narasimham, C.J.

15. I agree.


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