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H.C. SarIn Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1966CriLJ353
AppellantH.C. Sarin
RespondentUnion of India (Uoi)
Cases Referred and Gangadhar Pande v. Union of India
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....p.d. sharma, j.1. this writ petition under article 226 of the constitution of india has arisen out of the following circumstances.2. h. c. sarin petitioner, an employes of the indian railways was posted at london as senior railway inspector and attached to the india store department with effect from 6th august, 1954 his main junction was inspection of the rolling stock and other materials purchased by the indian railways from various firms in the united kingdom. he was transferred to the essen area of west germany in the same capacity where he succeeded s. n. hussain. this happened towards the end of 1956. he stayed there till april, 1958, on 3rd juuary, 1958, the inspection work which was conducted by him was transferred by the indian railways to the german federal railways.3. messrs leo.....
Judgment:

P.D. Sharma, J.

1. This writ petition under Article 226 of the Constitution of India has arisen out of the following circumstances.

2. H. C. Sarin petitioner, an employes of the Indian Railways was posted at London as Senior Railway Inspector and attached to the India Store Department with effect from 6th August, 1954 His main junction was inspection of the rolling stock and other materials purchased by the Indian Railways from various firms in the United Kingdom. He was transferred to the Essen Area of West Germany in the same capacity where he succeeded S. N. Hussain. This happened towards the end of 1956. He stayed there till April, 1958, On 3rd Juuary, 1958, the inspection work which was conducted by him was transferred by the Indian Railways to the German Federal Railways.

3. Messrs Leo Gottwald and Company, Dussel-dorf, entered into a contract with the Government of India for supply of breakdown cranes required by the Indian Railways. This firm was a family concern of one Dr. Hans Dieter Gottwald, a lawyer by profession. It so happened that the firm was not able to supply the cranes contracted for as undertaken and thereby according to the terms of the contract was liable to pay 45,138-7-8d as liquidated damages for delayed supply to the Government of India. Dr. Gottwald reported on 8th September, 1958, to Messrs. L. T. Madnani, Railway Adviser, J, D. Shukla, Director General, India Store Department, and S.K. Anand, First Secretary Establishment, that the petitioner had accepted illegal gratification from him and an Opel Car from another firm for passing the goods supplied by them to the Central Government. A summary of his complaint was prepared by the aforesaid three officers on 9th September and signed on 12th September, 1958. Mr. N. S. Pandey, Financial Advisor to the High Commission for India in London went to Germany and after some preliminary enquiry reported that the above complaint was correct and there was a prima facie case against the petitioner.

4. The Government of India, Ministry of Works, Housing and Supply, on 7th April, 1959, served memorandum No. AV-27 (3)/58 (i) dated 3rd April, 1959, on the petitioner intimating that it was proposed to hold an enquiry against him under Rule 1730 of the Indian Railway Establishment Code, Volume I. The charges on which the enquiry was to be held are as follows:

Charge I. That Shri H. C. Sarin while functioning as the Senior Railway Inspecting Officer in the India Store Department at London during the period between December 1956 and May 1956 and May 1958 demanded and obtained illegal gratification from the firm of Messrs. Leo Gottwald of Dusseldorf.

Charge II. That during the aforesaid period and while functioning as aforesaid the said Shri H. C. Sarin violated Rule 16 of the Railway Services (Conduct) Rules, 1956 in that he accepted an Opel Car from Messrs. Talbots of Aachen as a gift.

Charge III. That during the aforesaid period and while functioning as aforesaid the said Shri H. C. Sarin used his official influence for personal advancement.

5. The petitioner was asked whether he desired to be heard in person and was also told that he may during the enquiry be accompanied by another officer of the Indian Railways or of the Government of India stationed in the United Kingdom to act as defence counsel provided that the services of the officer so intimated could be made available and that the officer was not a professional lawyer and one competent to practise in a Court of law. He was also asked that if for the purpose of preparing his defence he wanted to inspect and take extracts from any official records, he should furnish a list of such records to the Chairman of the Board of Enquiry (hereinafter referred to as the Board) not later than 15th April, 1959. He was enjoined to submit to the Chairman of the Board written statement of his defence not later than 30th April, 1959, and along with it to furnish the names and addresses of the witnesses and a list of documents, if any, which he wished to pro-duce in support of his defence. He was at the same time placed under suspension and was further directed not to leave London without first obtaining permission of the competent authority and to immediately notify him in the event of his changing his residential address in London. The Board as appointed by the Government of India comprised of Mr. M. A. Hussain, Col. Hendricks, and Mr. T. M. Duraiswamy, Mr. N. S. Pande, Financial Advisor, High Commission for India in London, who had conducted the preliminary enquiry in the matter against the petitioner, was to present the case in support of the charges before the Board.

6. The petitioner requested the Board to provide him with the following facilities in order to enable him to properly present his defence:

(a) To permit him to visit Germany to enable him to collect information for the preparation of his defence and effective cross-examination of the prosecution witnesses.

(b) To make available the field inspection papers and files of the German Essen area (for the year 1956, 1957 and 1958) which were kept in the India Store Department, London.

(c) To permit him to have the assistance of a counsel to cross-examine Dr. Gottwald only. He was the main prosecution witness and a lawyer by profession.

(d) To explain and indicate the precise procedure proposed to be followed in the conduct of the enquiry.

The Board after a protracted correspondence with the petitioner finally refused him premission (a) to visit Germany and (b) to have the assistance of a counsel to cross-examine Dr. Gottwald. He was shown some of the field inspection papers and files of the German Essen area and about others was told that either those were not relevant to the proceedings or were not traceable in the India Store Department, London. It was also intimated to him that the Board will follow the procedure as laid down in Rule 1730 of the Indian Railway Establishment Code, Vol. I. The petitioner made a prayer to the Board to allow him to choose a senior railway officer from India to assist him in his defence to the charges against him but the prayer was also turned down. He was directed to confine his choice to the officers of the Indian Railways or of the Government of India stationed in the United Kingdom. Ultimately the petitioner submitted his written statement and a list of fifteen defence witnesses to the Board on 27th May 1959.

7. The Board in their letters dated 26th June and 2nd July, 1959, informed the petitioner that the oral enquiry at Dusseldorf, where the factory of Messrs. Leo Gottwold was located, would commence on 14th July and end on 16th July 1959 and that he should proceed to that place on Monday, the 13th July 1959 and present himself before the first session of the oral proceedings of the Board at 10-00 A. M. on 14th July 1959, at the Park Hotel.

8. Necessary arrangements for his visit to the place of enquiry were made. He did not turn up at the appointed time and place with the result that the Board in his absence recorded the statements of several witnesses including one or two who had been mentioned by him as his defence witnesses. The Board returned to London after examining the necessary witnesses in Germany on the 19th July, 1959. The petitioner requested the Board on the same day to supply him copies of the statements of witnesses examined in his absence at Dusseldorf but his request was declined. The Board examined Messrs, S. M. Hussain and L. T. Madnani on 21st July 1959, and the first of them again on 4th August 1959, at his back without informing him. It also enjoined the petitioner to furnish interrogatories for the examination of his. defence witnesses stationed in India by a certain date in the month of July, 1959, which he was not able to do. Thereupon the Board addressed a general letter dated 24th July, 1959, to Shri Bhalla, copy to Sarvashri Sharma Johri and Sen, his defence witnesses, asking them if they were aware of any facts relating to all or any of the charges against the petitioner. It may also be mentioned here that the petitioner by that date had not received copies of the statements of witnesses examined at D usseldorf in Germany. These copies were supplied to him on 21st September. 1959.

8a. The petitioner was directed on the telephone on 29th September 1959. to appear before the Board which he did. Mr. A. J. Bayross was examined by the Board in his presence.

9. The petitioner also alleged that on 5th October, 1959, Mr. Duraiswami, member of the Board showed him for the first time a secret and confidential file of the High Commission in London relating to the complaint filed against him by Dr. Gottwald in the month of July 1958. He noticed from the noting on this file that Mr. M. A. Hussain, Chairman of the Board] had been dealing with the complaint from the beginning and had made adverse comments against his conduct and recommended that disciplinary action might be taken against him. On the same day he moved the Government of India for changing the Chairman of the Board which proved infructuous.

10. The Board submitted its report to the Works Housing and Supply Ministry, Government of India, on 2nd November 1959, intimating that charges Nos. I and III had been proved against the petitioner and that charge No. II was neither proved nor disproved. The Railway Board, Ministry of Railways, on 4th November, I960, served a notice in writing on the petitioner to show cause as to why the proposed penalty of removal from service should not be imposed upon him as the President of India was of the view that all the three charges had been proved against him. The petitioner submitted his reply within the prescribed time. The Railway Board served another notice on him to show cause as to why he should not be dismissed from service. The first notice re : his removal from service was cancelled. The petitioner submitted his reply in due course and amongst other things also prayed, 'If the Government is not prepared to dispose of the evidence admitted against me out of hand I would request that a further enquiry be held so that the real truth can be ascertained and I can attend and cross-examine witnesses.' He also sought an opportunity to be heard in person by competent authority before any decision was arrived at in the case. This and subsequent reminders brought no result. The President of India on the advise of the Union Public Service Commission dismissed him from service with effect from 10th September 1962, vide memorandum No. E. (O) 1-59. P. U. 2/6. His review petition to the President of India also stood dismissed during the pendency of the present civil Writ.

11. The petitioner now contends that the order of his dismissal from service is vitiated for want of compliance with the mandatory provisions of Article 311(2) of the Constitution and was against the principles of natural justice and so was liable to be guasbed and set aside on the grounds as given hereunder:

(1) The Board of Enquiry was not a properly constituted Board within the me mine of Rule 1730 of the Indian Railway Establishment Code,:Vol. 1. It was presided over by a Chairman who had already dealt with the complaint from its very inception and was hostile to the petitioner.

(2) The Board of Enquiry gave no opportunity to the petitioner to defend himself. Indeed the Board prevented the effective exercise of the petitioner's right to cross-examine the prosecution witnesses at Dusseldorf. Important documents relating to the inspections carried out in the Essen area of West Germany and of the Gottwald contract were not fully supplied. The enquiry had not been held in accordance with rules of natural justice.

(3) The petitioner was prohibited from leaving London with effect from 7th April, 1959, without the previous permission of the Director-General, All possible steps were taken by the Board to deny to the petitioner the means, without which it was impossible for him to adduce evidence in proof of his innocence and effectively defend himself in consonance with rules of natural Justice. The Board was bound to record the statements of witnesses in the presence of the petitioner, When the petitioner had expressed his willingness to be present at the enquiry in Dusseldorf and had in fact made all the necessary arrangements the Board has no right nor justification to make his attendance and presence at the enquiry conditional on his actual participation in the proceedings on the pain of cancelling permission to the petitioner to proceed to Dusseldorf.

(4) The petitioner had never refused to be present at the sittings of the Board of Enquiry. It was wholly illegal for the Board to examine the London witnesses (Madnani and Hussain), on return from Dusseldorf without any notice to the petitioner and at his back. The witnesses from India were also examined in utter violation of the rules of procedure and natural justice without even furnishing the petitioner the statements recorded at Dusseldorf and in London. They should have been examined before the Board in the presence of petitioner.

(5) The course of the proceedings was neither appropriate to the case nor just to the petitioner. The procedure followed by the Board of Enquiry has resulted in a grave miscarriage of justice. In any case the opportunity granted to the petitioner was illusory.

(6) Nor was an adequate opportunity afforded to the petitioner to show cause against the proposed punishment of dismissal. The petitioner was entitled to an enquiry at this stage in the exercise of his constitutional right under Article 311(2) of the Constitution. The prosecution witnesses would have been examined in his presence with the right to cross-examine them and the petitioner permitted to lead defence evidence in refutation of the charges against him. He had indicated prima facie documentary proof of his innocence and repeatedly asked for an enquiry.

12. The respondent accepted the above narration of events of the case as substantially correct but strenuously controverted the grounds urged by the petitioner in support of his prayer for quashing the orders of his dismissal from service. It maintained that the Chairman of the Board had at no stage previous to the enquiry dealt with the complaint against the petitioner in a manner prejudicial to his interest and that the petitioner was not allowed to proceed to Germany for adequate reasons. It also stated that according to Rule 1730 of the Indian Railway Establishment Code, Vol. I, the petitioner could not have been allowed to engage a counsel for cross-examining Dr. Gottwald at London. According to it the petitioner intentionally absented himself when the witnesses were examined at Dusseldorf and it was not necessary to inform him of the date and place of the examination of witnesses at London because the proceedings had already started expert against him. It finally pleaded that the procedure followed by the Board in conducting the enquiry against the petitioner was in accordance with the departmental rule.

13. There is no dispute about the fact that the firm Messrs. Leo Gottwald and Company is a family concern of Dr. Hans Dieter Gottwald and that this firm failed to deliver the cranes to the Government of India at the due date and so by virtue of the terms of the contract between the parties it was liable to pay $ 45,138-7-8d as liquidated damages for delayed supply. Dr. Gottwald while making the complaint to Messrs, L. T. Madani, J. D. Shukla, and S.K. Anand, the summary of which was signed by these three officers on 12th September, 1958, tried to bring in the question of liquidated damages payable by his firm to the Government of India meaning thereby that his firm stood to gain by levelling accusations against the petitioner. It is equally clear and not disputed by the parties that the department in support of the charges against the petitioner mainly depended on the statements of Dr. Gottwald, his father, present and ex-employees of his firm as well as the documents maintained by this firm and another Bank also owned by his family. The documents which were to be adduced by him in support of the com- plaint against the petitioner remained in the possession of his firm and Bank all through. The petitioner had left Germany somewhere in the month of April or May, 1958. The charge-sheet was served on him almost after a year on 7th April, 1959, The Learned Counsel for the petitioner urged that in these circumstances the petitioner very rightly asked for permission of the Board after service of the charge-sheet on him to proceed to Germany in order to study the accounting procedure and office routine of the firm Messrs. Leo Gottwald and Company and to collect further evidence in support of his innocence. He in the nature of things was not expected to know the accounting procedure and office routine prevailing in the business houses in Germany and being stranger to all this it was but natural for him to ask for all facilities to acquaint himself with the details so that he could be able to cross-examine Dr. Gottwald, his father and other witnesses to be examined by the department to prove the charges against him. The Board for inadequate reasons refused the permission, as is evident from its letter dated 1st May, 1959, which provides:

In regard to your request for visiting Germany in order to examine the Leo Gottwald system of accounting, storekeeping, mailing letters etc., it is felt that it is not necessary for you to visit Germany for the purpose because witnesses pertaining to all these matters will be called by the Board for examination and you will be given full opportunity to elicit information required by you.' The petitioner in reply to this letter wrote to the Board on 4th May, 1959, that it would not be possible for him to collect a clear picture of accounting procedure etc. from the statements of a few picked witnesses examined and that his defence would be incomplete until he was given an opportunity to study the system in details. The Board reiterated its stand in its letter dated 7th May, 1959, and decided not to permit the petitioner to proceed to Germany, In my opinion the reasons given by the Board while refusing the petitioner's request to go to Germany for the purposes stated by him were inadequate and not justifiable on any ground. He had not asked for any financial help from the Government for his vent to Germany and it had never been the case of the respondent that he during his visit to Germany would have suborned the witnesses.

14. The Learned Counsel further urged that the Board's decision not to allow the petitioner to engage a counsel to cross-examine Dr. Gottwald, who was a lawyer by profession and vitally interested in the success of his complaint against the petitioner, and the department's main reliance being on his statement and statements of witnesses intimately connected with him and the documents which were maintained by his firm Messrs. Leo Gottwald and Company and the Bank, amounted to the denial of reasonable opportunity to the petitioner to disprove the charges levelled against him. It may also be mentioned here that the department was represented by Mr. N. S. Pandey, Financial Advisor to the High Commission for India in London, who was an experienced officer fully versed in account and finance matters and had also an additional advantage of conducting the preliminary enquiry against the petitioner on the spot in Germany on the basis of which the petitioner was charge-sheeted. The department would not have in any way suffered if the Board had allowed the petitioner to engage a counsel for the limited purpose asked for by him. The Learned Counsel for the respondent, however, maintained that according to Rule 1730 of the Indian Railway Establishment Code, Volume I, the petitioner could not make such a request and the Board's decision to turn down did not vitiate the proceedings. He relied on he case, Lakshrmi Narain Gupta v. A. N. Puri : AIR1954Cal335 , wherein Bose, J. at p. 337 observed:

No special facts or circumstances have been Established to show that the petitioner's demand for a lawyer, had been unreasonably refused nor is it shown that the petitioner's case was of such an extraordinary nature that the services of a lawyer should have been allowed to him as a special case. I am unable to hold that the principles of natural justice had been violated or that the Enquiry and the Report are with-out jurisdiction.

The instant case is distinguishable from Lakshmi Narain Gupta's case, : AIR1954Cal335 because here, as already pointed out, extra- ordinary circumstances were present which entitled the petitioner to claim services of a lawyer to cross-examine Dr. Gottwald. My view finds support from the case, Dr. K. Subba Rao v. State of Hyderabad (AP) (S) AIR 1957 Andh Pra 414, where it was laid down:

Rightly or wrongly when the public servant is under a reasonable apprehension that the enquiry is the result of a preconceived plan and a concerted action on the part of his Department his request for professional help is certainly justified and the enquiry officer should give him that opportunity. His refusal to accede to that simple request certainly deprives the public servant of an opportunity to defend himself.

15. The Learned Counsel next argued that the Board was not justified in examining Messrs. S. N. Hussain and L. T. Madnani as defence witnesses on 21st July, 1959, and the former again on 4th August, 1959, in the petitioner's absence and without notice to him. The Learned Counsel for the respondent maintained that since the petitioner did not participate in the proceedings held against him in Germany, the Board was justified in not informing him of the date and place where the aforesaid witnesses were to be examined. He has referred to the petitioner's letters dated 20th and 14th June 1959, at pages 68 and 60 respectively of the record and wanted me to conclude that the petitioner therein had clearly expressed his intention of not participating any further in the enquiry. In the second letter the petitioner asked for certain facilities in connection with his defence to the charges and added,

In the circumstances that I have been put into and hardly been left any choice, I feel no useful purpose can be served by my attending such an enquiry or having anything further to do with such an enquiry.

He also mentioned that the enquiry would be incomplete. The Chairman of the Board in paragraph 14 of his letter dated 18th June, 1959, (page 65) enquired from the petitioner whether he proposed to present himself for oral enquiry at Dusseldorf or such other places as the Board may determine on the dates to be intimated to him shortly The petitioner in his letter dated 20th June, 1959, reiterated the facilities he bad asked for earlier and expressed further thus, ''What can I do Mr. Chairman in the position you have placed me. You may proceed in any way you consider reasonable, just and fair.' This letter in no way signified that the petitioner would not participate in the enquiry at any stage as Is also evident from subsequent events. The Chairman of the Board in his letter dated 26th June, 1959 (page 72) amongst other things also informed the petitioner about the date and place fixed for examination of the witnesses in Germany. The petitioner in his letter dated 8th July, 1959 (page 76) informed the Board that he would be present at the stipulated place, date and time as desired by the Chairman and again prayed for the facilities claimed by him earlier in his letters dated 14th and 20th June, 1959. He did not proceed to Germany for very obvious reasons. Placed as he was he could not have even in name remotely tested the veracity of the evidence to be recorded by the Board there. Ha accepted the evitable and stayed back but not with an intention to completely dissociate himself from the enquiry at later stages. He immediately after return of the members of the Board to London on 19th July, 1959, requested for copies of statements of the witnesses examined in Germany, which were then refused to him and almost for no reasons. The Board in turn asked the petitioner to furnish interrogatories for the examination of his defence witnesses stationed in India by a certain date in the month of July, 1959, and it was when he [ailed to furnish the interrogatories that a general letter was addressed to Sarvshri Bhalla, Sharma, Johri and Sen named as defence witnesses by the petitioner. Further, he was again directed on the telephone to appear before the Board at the time of the examination of Mr. A. J.'Bayross as a witness and he was present at the time. The Board in the circumstances did make a mistake in not informing the petitioner of the date, time and place of the examination of the defence witnesses. Furthermore, if the Board had decided to proceed ex parte against him. it was not justified in examining Messrs. S. N. Hussain, L. T. Madnani, Bhalla, Sharma, Johri and Sen as defence witnesses. If the Board considered their evidence necessary for determining the correctness or otherwise of the charges levelled against the petitioner, they should have been examined as witnesses of the Department or of the Board and the omission to do so did prejudice the petitioner's case and thus he can legitimately urge that reasonable opportunity was not given to him before he was dismissed from service.

16. The petitioner's Learned Counsel lastly con. tended that Mr. M. A. Hussain, Chairman of the Board, previous to his appointment as such, had expressed his views about the correctness of the complaint made by Dr. Gottwald against the petitioner and so was biased against him. The petitioner in paragraph 28 of his writ petition mentioned that on 5th October, 1959, Mr. Duraiswami, member of the Board, showed him for the first time a secret and confidential 81e of the High Commission in London from the time the complaint was lodged by Dr. Gottwald in July, 1959, which showed that Mr M. A. Hussain Chairman had made adverse comments against him and recommended disciplinary action even before his selection and appointment as Chairman of the Board. The respondent denied this allegation in paragraph 36 of its written statement which had been verified by Mr. P.C. Mathew, Secretary, Railway Board. Mr. M. A. Hussain and Mr. Duraiswami failed to put in affidavits contradicting the insinuations made by the petitioner in his duly sworn and verified writ petition. The contradiction made by Mr. P.C. Mathew could be of no avail to the respondent because he had no personal knowledge of the matter. The grievance made by the petitioner finds support from the correspondence which passed between Mr. M. A. Hussain and Mr.P. C. Mukherjee,Chairman, Railway Board and Mr. M.R. Sachdev, Secretary, Ministry of Works, Housing and Supply, Government of India.

This correspondence is on file No. E (0) I 59 PU2/6 which was produced by the Learned Counsel for the respondent and to the reading of which both the counsel had no objection. Mr. M. A. Hussain in his demi-official letter dated 24th October, 1958, to Mr. P.C. Mukherjee at page 1 of this file recommended disciplinary action against the petitioner and in support of his suggestion he wrote, 'It is obvious from these statements that the allegations are serious and there is a strong prima facie case against Shri II. C. Sarin that he demanded and obtained large sums as illegal gratification....' Copy of this letter was also endorsed to Mr. M. R. Sachdev. The latter in his letter dated 17th November, 1958, at page 17 of this file advised that Mr. N. S. Pandey should first hold a preliminary enquiry into the complaint against the petitioner and if as a result thereof a prima facie case was established against him necessary action would be taken Mr. M. A. Hussain in his reply to the above letter wrote back on 8th December, 1958, 'Frankly, my personal opinion is that, with my letter No. PA/DHC/411 dated the 24th October, I forwarded to you sufficient material on the basis of which a prima facie case has been established for deciding to hold an enquiry.' He then cited the case of one A. S. Selhi in regard to which action similar to the one proposed by him was tiken without much delay. Mr. M. R. Sachdev had to point out to him in his letter dated 6th January, 1959, that in the case of A. S. Selhi a preliminary enquiry was held by Dr. Mitra. The insinuation made by the petitioner in paragraph No. 28 of his writ petition which stands unrebutted when read in the light of the correspondence that had passed between Mr. M. A. Hussain and Mr. M. R. Sachdev doss show that Mr. M. A. Hussain had made adverse comments in the matter. It would not be wrong to say that he had formed his opinion on the correctness of the complaint made by Dr. Gottwald against the petitioner. The Learned Counsel for the respondent referred me to the case, D. A. Koregaonkar v. State of Bombay AIR 1953 Bom 167 where it was held:

The mere fact that an officer holds a preliminary inquiry and comes to a prima facie conclusion does not disqualify him from acting as an inquiry officer, so long as he conducts the inquiry in a judicial manner.

In this case, as has already been pointed out, Mr. M. A. Hussain had come to more than a prima facie conclusion about the guilt of the petitioner. Further, the Chairman of the Board on enquiry by the petitioner informed him that the procedure laid down in Rule 1730 of the Indian Railway Establishment Code, Volume I, would be followed by the Board in conducting the proceedings. But the correspondence which passed between him and Mr. M. R Sachdav now on file No. E (O) I 59 PU 2/6, shows that he had been forwarding copies of all the orders passed by him in the matter and directions given to the petitioner, to Mr. M. R. Sachdev for comments. In this connection reference may be invited to letter dated 1st May, 1959, from him to Mr. M. R. Sachdev at page 50 of the file which runs as:

A further letter dated 30th April, 1959 has been received today from Sarin, of which a copy is enclosed herewith. This was considered by the Board and their decisions were intimated to Sarin in their letter of today's date, a copy of which is also enclosed. The Board would be grateful if you would let them know if you have any comments on the decisions taken by the Board on April 15 and April 21 as well as today, of all of which copies have been sent to you.

This practice by and large was followed by him all through the enquiry proceedings. The letter dated 1st May, 1959, and many other similar letters were sent to Mr. M. R. Sachdev at the back of the petitioner and without his knowledge which indeed not only contravened the provisions of Rule 1730 but also offended the canons of natural justice The Learned Counsel for the respondent had no explanation to give except that the correspondence related to procedural matters only. In this case the procedure assumed as much importance as the merits of the case and that being so, in all fairness to the petitioner the Chairman of the Board should have informed him of all the correspondence he was having in the matter with Mr. M. R. Sachdev.

17. The Learned Counsel for the petitioner finally urged that all the points made out by him above in the circumstances of the case were enough to hold that the petitioner had not been afforded a reasonable opportunity to show cause against his dismissal from service. He referred to the case, Kapur Singh v. Union of India (S) , where it was laid down:

The expression 'reasonable' is not susceptible of a clear and precise definition. What is reasonable in one case may not be reasonable in another. What is reasonable is not necessarily what is best but what is fairly appropriate to the purpose under all the circumstances.

He also relied on the case, Jagdish Prasad v. State of Madhya Bharat AIR 1961 S C 1070, which amongst other things also laid down:

It is of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry must be held against him after supplying him with a charge-sheet, and he must be allowed a reasonable opportunity to meet the allegations contained in the charge-sheet.

The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence....

The same view was reiterated by the Supreme Court in case, Stats of Madhya Pradesh v. Cointaman Sadashiva AIR 1961 S C 1623. In my opinion, the facts that the petitioner was not allowed to proceed to Germany in order to collect data which would have helped him in putting up appropriate defence and effectively cross-examine the departmental witnesses and the Board's refusal to allow him to engage a counsel to cross-examine Dr. Gottwald, coupled with the examination of the witnesses named by him in his list without notice to him and in his absence and the extraordinary procedure followed by the Board presided over by an officer who had already formed an opinion that more than a prima facie case stood established against him, abundantly established that the petitioner was not given a reasonable opportunity for showing cause against his dismissal from service.

18. The Learned Counsel for the respondent stressed that since the petitioner himself declined to take part in the enquiry proceedings and failed to remain present he cannot now be heard to say that reasonable opportunity was not given to him to show cause against the disciplinary action proposed to be taken against him. He relied on the cases, U. R. Bhatt v. Union of India : AIR1962SC1344 and Gangadhar Pande v. Union of India : AIR1964Pat102 . I have already pointed out that the petitioner nowhere unequivocally expressed that he would not participate in the enquiry conducted by the Board in the matter. I will like to add further that the petitioner as is mentioned in D. O. letter dated 6th October, 1959, from Mr. M. A. Hussain to Mr. M. R. Sachdev, at page 164 of file No. E (O) I 59 P U 2/6, had undertaken in his letters dated 6th October, 1959. This recital in the letter should set at rest the controversy whether the petitioner expressed his intention to dissociate himself from the enquiry before the Board or not. Further, the petitioner is alleged to have been shown a secret file by Mr. Duraiswami member of the Board, on 5th October, 1959, which contained notes prejudicial to the interest of the petitioner recorded by Mr. M. A. Hussain. Thereupon he represented to the Government of India on the same day through the Chairman of the Board for change of the Chairman. A copy of this representation is at pages 167 to 171 of the above file. The Board rejected this representation on 6th October, 1959, although it was not competent to do so. The Chairman according to his old practice forwarded a copy thereof to Mr. M. R. Sachdev and two other officers as an enclosure to his D. O. letter dated 6th October, 1959, to Mr. M. R. Sachdev, which is at page 164 of the above file. He instead of waiting for the decision of the Government of India on the aforesaid petitioner's representation started taking effective steps to send back the petitioner from England to India. The Government of India, Ministry of Works, Housing and Supply, ordered his transfer on 16th October, 1959, to New Delhi (copy of telegram at page 200 of the above file). The petitioner did represent to the authorities concerned that he should be allowed to stay in England till the Government had taken any decision on his representation dated 5th October 1959. In all fairness to the petitioner the Government of India should have taken a decision on his representation and if they found that it was without merit should have dismissed it and informed him accordingly in time.

19. The petitioner might have decided in that event to appear before the Board as constituted and completed the enquiry which was left incomplete on 6th October, 1959. He was to appear before the Board on that date as expressed by him earlier in his letters dated 6th and 8th August, 1959. He was to appear before the Board on that date as expressed by him earlier in his letters dated 6th and 8th August, 1959, to the Chairman of the Board. The Learned Counsel for the Board submitted its report on the basis of an incomplete enquiry for which the petitioner indeed could not be blamed and that being so the protection bestowed by Article 311(2) of the Constitution of India on the petitioner had not been allowed to be properly exercised by him.

20. In the result the writ petition is allowed with costs and the impugned order dismissing the petitioner from service is quashed.


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