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The State of Punjab Vs. Dewan Chuni Lal S/O. Late R.S. Shiv Narain - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 53 of 1956
Judge
Reported inAIR1963P& H503
ActsPunjab Police Rules - Rule 16.24(1) and 16.25(2); ;Constitution of India - Article 311 and 311(2)
AppellantThe State of Punjab
RespondentDewan Chuni Lal S/O. Late R.S. Shiv Narain
Appellant Advocate D.N. Awasthy, Adv. and; H.S. Doabia, Addl. Adv. General
Respondent Advocate H.R. Sodhi,; K.C. Sud,; U.S. Sawhney and;
DispositionAppeal dismissed
Cases ReferredIn Subba Rao v. State of Hyderabad
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.....h.r. khanna, j. 1. this regular first appeal filed by the defendant punjab state is directed against the judgment and decree of learned subordinate judge 1st class, gurgaon, granting a decree for declaration in favour of diwan chuni lal, plaintiff respondent, that the order of his dismissal from service as a permanent sub-inspector is ultra vires, illegal and inoperative and that he continues to be a member of the punjab police service as a permanent sub-inspector. the parties were left to bear their own costs. cross-objections have also been filed by the plaintiff-respondent praying that he should be allowed costs of the trial court.2. the plaintiff was appointed assistant sub-inspetor of police on 1-4-1930. he was promoted as sub-inspector on 1-4-1937 and was confirmed as sub-inspector.....
Judgment:

H.R. Khanna, J.

1. This Regular First Appeal filed by the defendant Punjab State is directed against the judgment and decree of learned Subordinate Judge 1st Class, Gurgaon, granting a decree for declaration in favour of Diwan Chuni Lal, plaintiff respondent, that the order of his dismissal from service as a permanent Sub-Inspector is ultra vires, illegal and inoperative and that he continues to be a member of the Punjab Police Service as a permanent Sub-Inspector. The parties were left to bear their own costs. Cross-objections have also been filed by the plaintiff-respondent praying that he should be allowed costs of the trial Court.

2. The plaintiff was appointed Assistant Sub-Inspetor of Police on 1-4-1930. He was promoted as Sub-Inspector on 1-4-1937 and was confirmed as Sub-Inspector on 1-7-1938. The plaintiff was permitted to cross efficiency bar with effect from 15-12-1944. After partition of the country, the plaintiff was posted in Gurgaon District, Nearabout November, 1948, when the plaintiff was working as Station House Officer, Rewari Police Station, allegations were made against him that he had accepted a bribe of R. 1,000/- from a person found in possession of illicit opium. The plaintiff was suspended and a case under Section 409, Indian Penal Code, was registered against him. The challan against the plaintiff was submitted in Court but later the criminal case against him was withdrawn on 9-4-1949. Departmental proceedings were also started against the plaintiff on the above allegations. The allegations were, however, not substantiated and it was held by the Superintendent of Police in his order dated 24-4-1950 that the plaintiff was entitled to 'an honourable acquittal'.

3. Meanwhile, on 11-8-1949, the Deputy Inspector General of Police, Ambala Range, wrote a letter to Shri Chuni Lal Malhotra, Superintendent of Police, Gurgaon, asking the latter to take departmental action against the plaintiff under Police Rule 16.25 for failing to reach or maintain a reasonable standard of efficiency. It was also observed in the letter that a dishonest officer should be held as inefficient as efficiency would have to be interpreted in its broader sense. On 12-10-1949, Shri Bashambar Dass, who had in the meanwhile succeeded Shri Chuni Lal Malhotra as Superintendent of Police, Gurgaon, prepared a summary of mis-conduct against the plaintiff. The summary contained the adverse reports which had been made against the plaintiff in the course of his carrer in the Police Department. On 13-10-1949, the summary of mis-conduct was read over to the plaintiff and he was supplied with copy of the same. The plaintiff did not accept the allegations. Following charge was framed against the plaintiff on 14-10-1949.

'I Bashamber Dass I. P. S., Superintendent of Police, Gurgaon, charge you S. I. Chuni Lal No. A/59, that, while working as an Upper Sub-ordinate from year 1930 to 1948, you failed to reach and maintain a reasonable standard of effciency evisaged by Police Rule 16.25 (2), for our of 18 years service that you put in, you received no less than 10 adverse reports regarding your efficiency, honesty and reliability etc. You are hereby called upon to show cause why you should not be inflicted anya uthorised departmental punishment.

Sd/- Bashamber Dass

Superintendent of Police, Gurgaon.

14/10/49.'

The plaintiff plead not guility to the charge and filed a list of 68 witness whom he sought to examine in his defence. Summary of the facts about which each of the witness was to testify was also given. The Inquiry Officer allowed the plaintiff to examine 29 witnesses in his defence. No witness was examined on behalf of the department against the plaintiff. On 25-5-1950, Shri Bashamber Dass made a report that the charge had beenf ully brought home to the plaintiff. it was suggested that the department would do well to get rid of him and that a punishment short of dismissal would not meet the ends of jutice. As the case involved punishment of a Sub-Inspector, which could only be inflicited by the Deputy Inspector General, the papers were forwarded to the Deputy Inspector General. A telegram was then sent by the Deupty Inspector General asking the plaintiff to show casue as to why he should not be dismissed from service. A written representation was then made by the plaintiff. The statement of the plaintiff was also recorded by the Deputy Inspector General on 27-7-1950 and the same day the Deputy Inspector General passed an order dismissing the plaintiff from service. The plaintiff thereafter filed the present suit on 20-7-1954 after serving notice under Section 80, Civil Procedure Code. According to the plaintiff, Shri Chuni Lal Malhotra, Superintendent of Police, Gurgaon, was inimical to him as Shri Malhotra wanted the plaintiff to falsely involve one A. L. Chopra, Inspector Rehabilitation, against whom Shri Malhotra had a personal grudge, in a false case. As the plaintiff demurred, Shri Malhotra became inimical to the plaintiff was involved him in the false case under Section 409, Indian Penal Code, which was ultimately withdrawn and also made adverse reports against the plaintiff. The dismissal of the plaintiff was stated to be illegal, ultra vires and inoperative on the following grounds:-

(I) The Inquiry Officer acting under instructions of higher authorities raked up prepartion reports of the plaintiff but did not bring on record good reports in favour of the plaintiff during the period from 1930 to 1947 in spite of requests of the plaintiff.

(2) The Inquiry Officer did not record evidence to support the charge and the persons making the reports were not eamined in the presence of the plaintiff and he was not allowed an opportunity to cross-examine the persons who had made the reports. The procedure adopted by the Inquiry Officer was contrary to fundamental principles of justices.

(3) The charge framed against the plaintiff was vague and indefinite, and

(4) The plaintiff was not afforded reasonable opportunity of defence as provided in Article 311 of the Constitution. The Inquiry Officer refused to summon important witnesses in defence.

(5) The deposition of Dr. Ram Chander, who had beene xamined in defence by the plaintiff, was not on the record at the time the order of dismissal was made agaisnt the plaintiff and the order was made without taking into consideration Dr. Ram Chander's statement.

4. It was also stated by the plaintiff that the order of dismissal wa snot called for in this case. The plaintiff accordingly prayed for a declaration that his dismissal from service was illegal, ultra vires and inoperative and that he was still an employee of the Punjab Police Force as a permanent Sub-Inspector.

5. The suit was resisted by the Punjab State which denied all the allegations of the plaintiff. It was averred that the inquiry was held strictly in accordance with the police rules and law on the subject and nothing had been done maliciously against the plaintiff. The plaintiff was further stated to have been given all opportunity to produce relevant evidence. Regarding the statement of Dr. Ram Chander, it was stated that the same had been inadvertently not transcribed by the Stenographer but later the Deputy Inspector General had considered that statement also and it did not improve the case of the plaintiff. Following issues were framed in the case:-

(1) Whether the order of dismissal of the plaintiff was illegal, ultra vires and inoperative?

(2) To what relief, if any, is the plaintiff entitled?

Following issues were added on 3-11-1955:-

1A. Whether a valid show-cause notice under Article 311 was given?

1B. If not, with what effect?

1C. Whether plaintiff was not allowed reasonable opportunity to show cause against dismissal and with what effect?

The learned Sub-Judge held that the charge framed against the plaintiff was vague and indefinite and inquiry was unfair and inadequate becuase some of the authors of the reports adverse to the plaintiff though available were not produced to enable the plaintiff to cross-examine them, that oral and documentary evidence sought by the plaintiff was withheld, and that no reasonable opportunity of defence was afforded. The requirement of Article 311 of the Constitution were found to have been violated. The order of dismissal was accordingly held to be illegal, unconstitutional and in operative.

6. The learned counsel for the appellant had at the outset argued that the charge, which was framed by the Inquiry Officer against the plaintiff, wa snot vague and that the findind of the trial Court to the contrary is not correct. According, however, to the learned counsel for the respondent, the charge is vague because it did not make it clear as to whether the plaintiff had failed to reach the requisite standard of efficiency or whether having reached that standard he had failed to maintain the same. It is also argued that though the charge was about the failure of the plaintiff to reach and maintain reasonable-standatd of efficiency, the main finding on the basis of which he was dismissed was that his honesty was doubtful. Sp for as the first contention on behalf of the respondent is concerned I find that according to Sub-rule (2) of the Punjab Policy Rule' 16.25 a charge 'can be framed against a police officer inter alia on the ground that he has failed to reach a reasonable standard. of efficiency Charge can also be framed against him on the ground that he has failed, to maintain a reasonable standard of efficiency. The above rule makes it I clear that, a police officer has not, only to reach I I a reasonable standard of efficiency but also to maintain, the same. The charge against the plaintiff, which, has already been reproduced above, makes it clear that he was found wanting in both these respects, A reasonable standard of efficiency is an essential part of the qualification of a police officer and the charge made it clear that according to the department the plaintiff was lacking that qualification. In my opinion, the charge cannot be deemed to be vague on that ground. There is also, no substance in the order argument of the learned counsel for the respondent that the charge was vague because it dealt with only the failure of the plaintiff to reach and maintain reasonable standard of efficiency and not with his doubtful integrity. Although the charge stated in the earlier part that the plaintiff had failed to reach and maintain reasonable standard of efficiency, it made it clear that the above allegation against him was on the basis of adverse reports regarding the efficiency, honesty and reliability of the plaintiff. The charge thus left no doubt that the honesty of the plaintiff was being called in question. The plaintiff was also before the framing of the charge supplied with a copy of the summary of misconduct. The summary contained the substance of each one of the adverse reports which were made about the plaintiff. In those reports there were remarks questioning his honesty, In the circumstances, the plaintiff could not be in doubt that he was being proceeded against inter alia on the ground that he was not consi-dered honest. The objection about the vagueness of a charge is primarily based upon the consideration that the acbused person should, not be left in doubt and should have full knowledge of the precise nature of the allegations against him. The fact that there was a reference to the adverse reports regarding the honesty of the plaintiff in the charge itself, and the further fact that the plaintiff was supplied with a copy of the summary of mis-conduct which contained the substance of the adverse reports about the honesty of the 'plaintiff, in my opinion, clearly go to show that the plaintiff was apprised of the allegation against him regarding his doubtful honesty. There is also no force in the contention that efficiency and honesty do not necessarily go together. In my opinion, whatever may be said about persons in some other occupations, the word 'efficiency' when used in the context of a police officer is comprehensive enough to include his integrity. According to the Oxford English Dictionary meaning of the word efficiency is fitness of power to accomplish or success in accomplishing the purpose intended. Honesty is one of the essential traits of a successful police officer and a police officer cannot in my view, be efficient without being honest.

7. The learned counsel for the respondent cited come authorities in the context of vagueness of the charge but the perusal of the facts of those authorities goes to show that they are all distinguishable. In State of Uttar Pradesh v. Salig Ram Sharma, AIR 1960 All 543, the charge was that the Government servant had done some act 'with ulterior motive' and the charge was held to be vague. In Tribhuwannath Pandey v. Govt. of the Union of India, AIR 1953, the charge was that the Government servant had done some act 'with ulterior motive' and the charge was held tob e vague. In Tribhuwannath Pandey v. Govt. of the Union of India, AIR 1953 Nag 138, the charge that the petition'ers work during the period of his probation was unsatisfactoryw as held to be vague. In both the cited cases, the charges were obviously vague because the accused officer could be in doubt about the precise nature of the allegations against him. This, however, cannot be said in the present case. I, therefore, hold that the charge, which was framed against the plaintiff, was not vague.

8. The main controversy in the appeal has centered round the point as to whether there has been substantial compliance with the requirements of Article 311 of the Constitution and whether the inquiry, which was held against the plaintiff, was such as conformed to the principles of fair-play and natural justice. According to the learned counsel for the appellant, there was no infraction of the provisions of Article 311 or the requirements of the rules of fair-play and natural justice. It is also-urged that as the plaintiff was considered to be unfit for the discharge of his duties as a police officer, the Deputy Inspector General was empowered to dismiss him under Section 7 of the Police Act. In this respect, 1 am of the view that there is no dispute on the point that a Deputy Inspector General of Police can dismiss a police. Sub-Inspector if he considershim unfit for the discharge of his duties. Thepoint at controversy in the present case is whether the formalities which have to be observed be-fore the order for dismissal can be passed werecomplied with..

According to 'Article 311 of the Constitution, no civil servant shall be dismissed, or removed, or reduced, in rank until he has. been, given a reasonable opportunity of showing cause against the ac- tion proposed tq be taken in regard to him. It is not disputed that the provisions of the above Article, apply to police, officers. The procedure which has to be adopted in departmental inquiries against public servants, who are accused of some delinquency, has been the subject-matter of a number of authorities. It would be useful to re-prpduce the observations of the Supreme Court in two cases, because they afford a good guidance of the rule to be followed in such cases. In Union of India v. T. R. Varma, AIR 1957 SC 882, the relevant head-note reads as under :-

'The Evidence Act has, no application to enquiries conducted by tribunals, even, though they may be judicial in character. The law requires that such tribunals should observe rules, of naturaljustice in the conduct of the enquiry and if theydo so, their decision, is not liable to be impeachedon the ground that the procedure followed wasnot in accordance with that, which obtains in aCourt of Law. Stating it broadly and withoutintending it to be exhaustive it may be observedthat rules of natural justice require that a partyshould have the opportunity of adducing all relevant evidence on which he relies, that the evidenceof the opponent should be taken in his presence,and that he should be given the opportunity ofcross-examining the witnesses examined, by thatparty, and that no. materials should be relied onagainst him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on theground that the procedure laid down in the Evi-dence Act for taking evidence was not strictly followed.'

In Knem Chand v. Union of India, AIR 1958 : SG 300, it was observed at p. 307 as under:-

'To summarise; the reasonable opportunity envisaged by the provision under consideration (Article 311 of the Constitution) includes;

(a) An opportunity to deny, his guilt and esta-blish his innocence, which he can only if beis told what the charges levelled against him areand the allegations on which such charges arebased;

(b) an opportunity to defend himself by cross examining the witnesses produced against, him and by examining himself or any other wifnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do, if the competent authority, after the enquiry to over, and after, applying his mind to the gravity or otherwise of the charges proved gainst the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.

In short the substance of the protection provided by rules, like Rule 55 referred to above,was bodily lifted out of the rules and togetherwith an additional opportunity embodied in Section 240 (3) of the Government of India Act, 1935so as to give a statutory protection to the government servants and has now been incorporated inArticle 311(2) so as to convert the protection intoa constitutional safeguard.'

It would also be useful to reproduce clause (iii)of Sub-rule, (i) of Rule 16.24 of the Punjab PolicyRules which lays down the procedure, in departmental inquiries against the police officers and isto the following effect:-

'(iii) If the accused police officer does not admit the misconduct, the officer conducting the enquiry shall proceed to record such evidence oral and documentary, in proof of the accusation, as is available and necessary to support the charge, Whenever possible, witnesses shall be exa-mined direct, and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The officer conducting the enquiry is em-powered, however, to bring, on to the record the statement of any witness whose presence cannot,in the opinion of such officer, be procured without undue delay and expense or inconvenience, ifhe considers such statement necessary and provid-ed that it has been recorded and attested by apolice officer superior in rank to the accused officeror by a magistrate, and is signed by the personmaking it. This statement shall also be read outto the accused officer and he shall be given anopportunity to take notes. The accused shall bebound to answer any questions which the enquiring officer may see fit to put to him with a viewto elucidating the facts referred to in statementsor documents brought on the record 'as hereinprovided.'

9. Keeping the above observations and provisions in view, it has to be seen whether the legalrequirement have been complied with in the proceedings which culminated in the dismissal of theplaintiff. The plaintiff was proceeded against onthe basis of confidential reports made by the District Superintendent of Police under whom theplaintiff served, These reports were then submit-ted to the Deputy Inspector General of Policeafter obtaining the remarks o the District Magistrate thereon. The Deputy Inspector General ofPolice then added his own remarks on those reports. The reports were made under PunjabPolice Rule 13117. The reports previously were oftwo kinds. A class reports were those reports onthe basis of which incremental promotions of theofficers getting those reports were not withheld. Bclass reports were bad reports which led to thewithholding of incremental promotions. In 1947.three kinds of reports were introduced. A reports were those in which for special reasons itwas recommended that promotion be given irrespective of seniority: B reports were those reportsin which it was recommended that promotionshould be given in the ordinary course of seniorityand C reports were those reports in which it wasrecommended that the officer be passed over forpromotion or that the taking of departmental action on general grounds of inefficiency be considered.

It is not disputed that reports till 1940 were generally favourable to the plaintiff. In 1941 and 1942 the plaintiff got B class reports and his integrity was questioned. From 1942 till April 1945, the plaintiff got A class reports though they were apt clean chits regarding his honesty. The reports after that till 31-12-1946 were B class reports, in which the integrity of the plaintiff was considered to be doubtful. In the reports from 1-1-1947 till 30-6-1947. the Superintendent of Police stated that he had not seen the plaintiff's work at, any police station and could not say anything about his honesty. The plaintiff was, however, stated to be of an intriguing nature. The Deputy Commissioner stated that the plaintiff's work was quite satisfactory and he was honest and took interest in his work. The plaintiff 'on the partition of the country was posted in Gurgaon District and for the remaining part of 1947 he received an A report from his District Superintendent, of Police who also stated that the plaintiff seemed to be honest and competent. 1948 report about the plaintiff was most damaging and it was stated therein by Shri Chuni Lal Malhotra, District Superintendent of Police, that the plaintiff wasthoroughly corrupt. The Inquiry Officer held onthe basis of the reports made about the plaintiffthat the plaintiff's honesty was doubtful and hehad failed to reach and maintain the requisitestandard of efficiency. Question, in the circumstances, arises for consideration whether it wasessential for the Inquiry Officer, Shri BashamberDass, to have recorded the statements of such ofthose officers, who had made the reports aboutthe plaintiff and were available; before acting ontheir reports. Five such Officers, who were available at the time of inquiry, were; Shri Chuni LalMalhotra, Shri Holiday, Kanwar Shamsher Singh,Shri Sant Parkash Singh and Shri Raushan Lal:No evidence of any witness, as stated above, wasrecorded against the plaintiff in the inquiry andthe learned counsel for the appellant argues thatit was not necessary to produce the officers makeing the reports even though available. After giving the matter my earnest consideration, I am ofthe view that the contention of the learned counsel for the appellant in this respect, is not wellfounded. The only material on the basis, of whichthe charge against the plaintiff was held to havebeen substantiated were the reports made againsthim. The defence of the plaintiff was that thosereports were based upon no sufficient data or dueto the mind of the District Superintendent ofPolice having beep poisoned by the Deputy Su-perintendent of Police on communal considerationor because of some personal grudge of the reporting officer. The only way the plaintiff could substantiate his defence version was by putting questions to those reporting officers if available, duringthe inquiry. It may be that in the vast majorityof cases such a plea in defence would not be substantiated but this circumstance would not justifythe denial of an opportunity, to the accused civilservant to prove it.

In the present case, one of the reports, which was utilized by the Inquiry Officer against the plaintiff, was of the year 1946. This was a B class report and in answer to the question as to whether the plaintiff was honest it was stated in the report 'No'. The Inquiry Officer took it that this report had been made by Kanwar Sham-sher Singh who was the Superintendent of Police of Muzaffargarh District wherein the plaintiff was posted as a Sub-Inspector. Kanwar Shamsher Singh was not examined as a witness before the Inquiry Officer. The plaintiff then filed an application dated 14-4-1950, Exhibit P. W. 14/5, before the Inquiry Officer praying that the remarks attributed to Kariwar Shamsher Singh had not been made, by him and he be examined as a Witness. This application of the plaintiff was dismissed by the Inquiry Officer with the laconic order 'File'. Kanwar Shamsner Singh was examined as P. W. 15 in the present suit on behalf of the plaintiff arid his testimony goes to show that he did not specify the report to be 'B' report and that the word 'No' against the question 'Is he honest' was not written by him The Deputy Inspector General of Police in his order dated 27-7-1950, while dismissing the plaintiff, no doubt agreed with the plaintiff that the above remarks had not been made by Kanwar Shamsher Singh. All the same the fact, remains that because of the non-examination of Kanwar Shainsher Singh the Inquiry Officer was led to believe that some of the remarks had been made by Kanwar Shamsher Singh which in feet had not been made, by him.

10. Shri Chuni Lal Malhotra was the District Superintendent of police, Gurgaon, who made an extremely : adverse report against the plaintiff for the year 1948. The report, which was C class report, was to the, following effect: -

'Thoroughly corrupt. This officer ; fell to unheard of depths of moral degradation in corrupt practices while posted to City Rewari inasmuch as he changed the opium recovered, by him earlier with Rasaunt for Rs. 1,000/- bribe and then made over the opium too for sale in the black market. Being corrupt, himself could, not control his subordinates too. Was known to have mixed up with bad characters, gamblers and Kishwat Dalals. Unworthy of confidence and of any place of responsibility. Under suspension.'

So far as the allegation against the plaintiff was concerned that he had substituted Rasaunt for opium on receipt of Rs. 1,000/-, it has already been observed above that an inquiry was held against the plaintiff and he was held entitled to 'an honourable acquittal'. Regarding the remaining paft of the report about the honesty of the plaintiff, I find that Shri Chuni Lal Malhotra in his remarks about the plaintiff for the later part of 1947 gave him A class report. It was also stated that the plaintiff 'seems' to be honest and competent 'from what I have seen of him for a short while'. According to the plaintiff, the report as it originally stood was to the effect that the plaintiff was honest and competent and that the words 'seems' and 'from what I have Been of him for a short while' were added by Shri Chuni Lal Malhotra subsequently when he became inimical to the plaintiff because of his failure to involve A. L. Chopra in a false case. The Deputy I aspect or General of Police in his order dated 27-7-1950 accepted the contention of the plaintiff that the remarks had been added subsequently by Shri Malhotra. The Deputy Inspector General was also, of the view that the, remarks in the report for the year 1948 relating to the opium case should be expunged because of the acquittal of the plaintiff in the departmental inquirv. It was however observed that this fact, did not alter the remarks made by Shri Malhotra about the honesty of the plaintiff in the report for 1948. Shri Mal-hotra, as stated above, was not examined in the inquiry against the plaintiff. Shri Malhotra was, however, produced as a witness in the Court below in the present suit as D. W. 4. According to Shri Malhotra, he received complaints against the plaintiff. Shri Malhotra, however, did not remember as to whether the complaints were oral or in writing. He also did not remember the name of any complainant. In my opinion, the plaintiff was entitled to bring the matters, which were brought out in the replies of Shri. Malhotra; to the notice of the Inquiry Officer and the Deputy Inspector General but he could have done so only if Shri Malhotra had been examined as a witness in the inquiry.

11. The plaintiff in the course of the inquiry examined a large number of witnesses including aDeputy Commissioner, an Under Secretary, two Superintendents of Police, a few Magistrates and some Deputy Superintendents of Police about his reputation and work. The Inquiry Officer was, however, of the view that the evidence of those witnesses about the honesty and work of the plaintiff could not displace the adverse reports which, were made, against him. This Court is not to act as a Court of Appeal on the report of the Inquiry Officer and cannot direct that the testimony of those witnesses should have been accepted. All the same the fact remains, that the approach of the Inquiry Officer was such that whatever be the testimony of other witnesses, it could not undo the effect of the reports made by the superior officers about the plaintiff. In view of this approach also, in my opinion, it was essential that such of the officers, who had made adverse reports against the plaintiff and were available, should have been examined in the injury so as to sive him a chance to substantiate his de-fence.

12. The right of cross-examination is one of the roost valuable rights of an accused person for testing the truth of statements made against him. The exercise of this right has been justly regarded as one of the most efficacious test the law has devised for the discovery of truth. The importance of the right of cross-examination in departmental inquiries has been emphasized by their Lordships of the Supreme Court in Khem Chand's case, AIR 1958 SC 300 referred to above. In the Police Rules also, reproduced earlier, it is stated that whenever possible, witnesses should be exa-mined direct in the presence of the accused who shall then be given an opportunity of cross-examining them. All these factors, in my opinion, lend support to the conclusion that in case it is desired to proceed against a police man on the basis of the reports of his superior officer, the superior. officer should be examined as a witness against the police man in the departmental inquiry so as to give an opportunity of cross-examination to the accused police man.

A Division Bench case, though not on allfours, but which has bearing on the point, isDadarao Shegoji Tidke v. State of Madhya Pra-desh, reported, in AIR 1958 Bom 204. In thatcase, an inquiry was held against the appellantwho was a probationary Naib Tahsildar. TheDeputy Commissioner in finding against the ap-pellant relied upon a report of the Sub-DivisionalOfficer. The grievance of the appellant was thatno opportunity was given to him. to cross-examine the Sub Divisional Officer upon whose report the Deputy Commissioner had relied. It washeld that it was necessary for the Deputy Commissioner to have examined the Sub DivisionalOfficer as a witness inasmuch as the appellanthad not admitted the allegations made againsthim by the Sub Divisional Officer. The orderabout the removal from service of the appellantwas quashed.

13. A fatal infirmity which vitiates the inquiry is that it was not held in accordance with the principle of fairplay and natural justice. The Inquiry was started in pursuance of a demi-official letter written by the Deputy Inspector General of police on 11-8-1949 to the Superintendent of Police in which it was stated that the Superintendent of Police should start departmental action against the plaintiff on the basis of his previous reports of corruption, in order to establish that he had failed to reach a reasonable standard of efficiency. Along with the letter was sent the personal file of the plaintiff which contained the remarks of the Deputy Inspector General about the plaintiff for the year 1948 and were to the following effect:-

'Should be warned that he had been given a C report for 1948 and reported to be thoroughly corrupt. File should be put up to me after the case agaisnt him has been decided if he is acquitted. He is not worth reaining in service.'

It is argued on behalf of the plaintiff respondent not without force, that the remarks of the Deputy Inspector General that the plaintiff was not worth retaining in service influcnced the entire approach of the Inquiry Officer who was subordinate to the Deputy Inspector General. The evidence of P.W. 14 Shri Lekh Raj, who was Deputy Superintendent of Police and to whom another inquiry against the plaintiff was entrusted by Shri Bashamber Dass, Superintendent of Police, shows that when Shri Lekh Raj exonerated the plaintiff in the other inquiry Shri Bashamber Dass called the witness and said to him. 'You have exonerated the plaintiff. The higher authorities want to take serious action to the extent of dismissal against him'. I see no particular reason to disbelive the above statement of Shri Lekh Raj which goes to show that the idea weighed on the mind of the Inquiry Officer that the High authorities wanted the dismissal of the plaintiff. The plaintiff made an application, Exhibit P.W. 14/7, before the Inquiry Officer in which the plaintiff staed that for the sake of justice the good reports made about him might be placed on the file in his defence. The Inquiry Officer passed an order on his applicationb; 'Not permitted by rules. File'. This, in my opinion, was a most curious, and if I may say so, perverse order, the inevitable effect of which was to deprive the plaintiff of the right of substantiating his defence. Where a civil servant is being proceeded against on the allegation that he has filed to reach and maintain a reasonable standard of efficiency and this allegation is based on the adverse reports made about that civil servant, justice and fair-play, in my opinion, clearly demand that such of the reports as are favourable to him should also be brought on the record so that the Inquiry Officer might have a complete picture of the matter. To admit in inquiry only the adverse reports, and at the same time to exclude from consideration the reports which are favourable to the person proceeding against, is tantamount to taking only a onesided view of the matter. The Deputy Inspector General did take into consideration some of the reports which were favourable to the plaintiff but the entire mischief because of the wrong approach of the Inquiry Officer could not be undone. The personal file of the plaintiff shows that he received 52 Commendation Certificates under Police Rule 15.3 because of the good work done by him as a police officer but none of those Commendation Certificates was taken into consideration.

14. One of the witnesses examined on behalfof the plaintig during the course' of inquiry wasDr. Ram Chander. There was no reference at allto the testimony of Dr. Ram Chander in the report of the Inquiry Officer and one of the grievances of the plaintiff in the written representation,which he made to the Deputy Inspector Generalon 25-7-1950, was that the evidence of Dr. RamChander had been totally brushed aside. Dr.Rain Chander's statement was not on the filewhen the Deputy Inspector General passed theorder about the dismissal of the plaintiff. It wasonly when the plaintiff filed an appeal against theorder of Deputy Inspector General to the InspectorGeneral of Police that it was discovered that thestatement of Dr. Ram Chander had not beentranscribed by the Stenographer and as such didnot form part of the file. This circumstance goesto show that the entire defence evidence of theplaintiff Was not even looked at before the reportagainst him was submitted by the Inquiry Officerand an order for his dismissal was passed. It maybe that the finding of the Inquiry Officer and theorder of the Deputy Inspector General regardingthe plaintiff would have been the same even if thestatement of Dr. Ram Chander had been on thefile. The fact all the same remains that the report was submitted by the Inquiry Officer and theorder about the dismissal of the plaintiff wasmade upon a somewhat incomplete record.

15. Another matter, which has been argued by the learned counsel for the plaintiff-respondent, is that it was Mr. Holiday, the Deputy Inspector General, who wrote in the report for the year 1948 that the plaintiff was not worth retaining in set-vice. Mr. Holiday also directed that the inquiry should be started against the plaintiff. It is urged that Mr. Holiday having expressed himself. so unequivocally in the annual report about the plaintiff for 1948 and having directed the commencement of the inquiry against the plaintiff should not have himself passed the order of his dismissal. A representation was made by the plaintiff on 6-7-1950 to the Deputy Inspector General that as the latter had expressed his opinion in categorical, terms the plaintiff's case should go to another officer who had an unbiased mind in the matter. This representation of the plaintiff was obviously not accepted. The plaintiff, in my opinion, in the circumstances, has a just grievance that the order about his dismissal was made by an officer who had prejudged the matter even before the start of the inquiry and had committed himself to the view, that the plaintiff was npt worth retaining in service. If it is intended that the constitutional protection afforded to a civil servant by Article 311 be real and not illusory, it is essential that the punishing authority should have an open and dispassionate mind and should not be weighed down by any pre-possessed idea or predilection. In Joti Parshad. v. Supdt. of Police, AIR 1958 Punj 327, a Division Bench of this Court made observations which have direct bearing on the point. The observations, which also reproduce passages from other authorities are to the following effect :-

'The person dealing with an enquiry at any stage is in the position of a Judge and the rules of natural justice demand that he must be a peron with open mind, a mind which is not biased against the delinquent. He should be open to conviction and must not have prejudged the issues. He must act with the detachment of a. Judge since he is professing to exercise that dignified function. Robson on page 62 of his book (Justice and Administrative Law) says:-

'But it is not only the holders of judicial offices who ate required to be free from the sort of, bias which is presumed to arise when a man has a personal interest in the subject-matter of a case that he is called upon to decide or otherwise deal with. 'Even administrators', the late Lord Atkin remarked in a modern case, 'have to comport themselves within the bounds of decency,' and on page 63 says --

'The Courts have shown in recent decades a tendency to apply to administrative authorities the principles designed to eliminate the possibility of bias which are applicable to judicial tribunals'. In Subba Rao v. State of Hyderabad, (now Andhra Pradesh), 1957 Andh LT 155 : ( (S) AIR 1957 Andh Pra 414), it is laid down:- 'It is a fundamental principle of justice that the officer selected to make an enquiry should be a person with open mind and not one who is either biased against the person against whom action is sought to be taken or one who has prejudged the issues. If this fundamental principle is not followed bv Govt. in selecting a person to make an enquiry the enquiry would be a farce and would not in any sense of the term be said to give a reasonable opportunity to the officer concerned to defend himself.''

The order about the dismissal of the appellant police man in the above cited case was quashed. In view of the observations made above and also keeping in view the fact that Mr. Holiday had already committed himself to the position that the plaintiff was not worth retaining in service, the opportunity to defend himself which was afforded to the plaintiff should be deemed to be illusory and not real and adequate.

16. As a result of the above, the appeal fails and is dismissed with costs.

17. So far as cross-objections filed by the respondent about the costs of the trial Court are concerned, I find that the plaintiff-respondent filed the present suit after serving a notice under Section 80, Civil Procedure Code, and succeeded in proving that his dismissal from service was not in accordance with law. No reason has been mentioned by the trial Court for disallowing the costs to the successful plaintiff. I also see no ground as to why the normal rule that costs should follow the event be departed from in this case. I accordingly accept the cross-objections of the respondent and direct that the appellant should pay to the respondent the costs of the trial Court.

Tek Chand, J.

18. I agree.


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