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Shiv Datt Sharma Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 508 of 1960
Judge
Reported inAIR1962P& H355; [1962(4)FLR213]; (1962)ILLJ570P& H
ActsConstitution of India - Articles 310 and 311
AppellantShiv Datt Sharma
RespondentState of Punjab and ors.
Cases ReferredSardar Kapur Singh v. Union of India
Excerpt:
.....terms of service for the bank and demanded better terms of service for the bank employees. (3) the enquiry officer has also clearly exhibited his bias by refusing to summon defence witnesses. this has certainly resulted in denial to the petitioner of his right to adduce defence and, therefore, in failure of justice. it clearly tended to reduce the opportunity offered to the petitioner to produce the defence to a farce and an empty formality. (15) it would not be irrelevant here to say a few words about the rules of natural justice, which the enquiry officers in cases like the present, are expected--may, are enjoined--to observe and the scope of writ proceedings against order of dismissal etc. 311(2) have been satisfied or not. 311(2) have been satisfied or not. the contention that the..........for summoning certain documents and files from the bank for cross-examination and confronting the bank witnesses was also disallowed by the enquiry officer. on 18-11-1958, the petitioner also wrote to the managing director complaining that the enquiry was not being conducted in an impartial and fair manner inasmuch as the law superintendent of the bank was exercising his influence on the enquiry officer at every stage.on 4-1-1959, the petitioner submitted a list of 125 defence witnesses with their full particulars, but enquiry officer, by means of his order dated 9-1-1959, selected only eight persons out of the list in an arbitrary manner and further directed that even those witnesses should be produced by the petitioner on his own responsibility and expense because the officer was.....
Judgment:
ORDER

(1) Shiv Datt Sharma, petitioner claims to have been appointed as a clerk in the Bank of Patiala in the grade of Rs. 40-4-60/5-90 on 18-6-1948. He was confirmed on 19-12-1948 and later on promoted to the higher grade of Senior Assistant with effect from 1-1-1953. Since his promotion he had also been getting his grade increments with the previous approval of the Managing Director of the Bank, the last grade increment having been given to him in October, 1957. Towards the close of the year 1956, the employees of the Bank formed a Union, which was duly registered under the Indian Trade General Secretary in January, 1957.

In his capacity as such, the petitioner on various occasions issued a number of letters, circulars and press statements in regard to the affairs of the Bank and demanded better terms of service for the Bank and demanded better terms of service for the Bank employees. Representations were also submitted to the Punjab Government in which irregularities and mismanagement in the affairs of the Bank were brought to the notice of the Government. In September, 1957, there was a general strike by the employees of the Bank and the petitioner and the President of the Union went on hunger strike. Ultimately there was a compromise between the Management and the employees' Union with the result that on 12-10-1957, a circular was issued by the Bank to the effect that no action would be taken against the employees who went on strike or who resorted to hunger strike.

(2) On 20-5-1958, however, the petitioner was served with a charge-sheet in which all the charges related to the petitioner's conduct as the General Secretary of the Union relating to the period prior to October, 1957, when the last increment was given to the petitioner. Simultaneously, the petitioner was placed under suspension by an order of the Managing Director of the Bank, respondent No. 2. The petitioner submitted his explanation to the charge-sheet by two communications, but (respondent No. 2) completely ignored them and ordered an enquiry to be held by Shri J. S. Malhotra, (respondent No. 4 in this Court) one of his subordinate.

On 21-7-1958, the petitioner addressed a letter to the Enquiry Officer pointing out that the Managing Director, respondent No. 2, who has framed the charges and was at the helm of affairs of the Bank, had a personal bias against the petitioner. In the circumstances, a demand was made for an enquiry by an independent authority or by an officer under the Industrial Disputes Act. On 12-8-1958, further objections were raised by the petitioner in respect of the validity of the Bank of Patiala (Staff) Rules, 1954, under which the contemplated enquiry was to be held.

On 29-10-1958, the petitioner's counsel stated to the Enquiry Officer that the latter would be required to appear as a witness in the case and that, therefore, he should not act as an Enquiry Officer. This request was disallowed and the enquiry was ordered to be proceeded with. In November, 1958, the petitioner made a request for summoning some records for the purpose of showing that the Managing Director, while acting as an official liquidator had got credited that income to his personal account. This prayer was also disallowed by the Enquiry Officer. On 12-11-1958, the petitioner repeated his request to the Enquiry Officer stating that the evidence of the latter was of great importance and that he was not entitled to enquire into the matter and be both the Judge and a witness. This prayer was also disallowed.

(3) The petition further proceeds, and states that the Enquiry Officer recorded the statements of seven witnesses for the Bank during the course of the enquiry and that all the witnesses so examined being under the Managing Director of the Bank, were deeply interested against the petitioner. Request for summoning certain documents and files from the Bank for cross-examination and confronting the Bank witnesses was also disallowed by the Enquiry Officer. On 18-11-1958, the petitioner also wrote to the Managing Director complaining that the enquiry was not being conducted in an impartial and fair manner inasmuch as the Law Superintendent of the Bank was exercising his influence on the Enquiry Officer at every stage.

On 4-1-1959, the petitioner submitted a list of 125 defence witnesses with their full particulars, but Enquiry Officer, by means of his order dated 9-1-1959, selected only eight persons out of the list in an arbitrary manner and further directed that even those witnesses should be produced by the petitioner on his own responsibility and expense because the Officer was disinclined to issue summonses for them. Almost all the eight wittiness, according to the petitioner, were Bank employees and it was, therefore, impossible for him to produce them himself. This direction by the Enquiry Officer has been described by the petitioner as tantamount to denying the right of defence.

A detailed letter of protest was submitted by the petitioner on 11-1-1959 to the Enquiry Officer with copies to the Managing Director and the Chairman of the Board of Directors of the Bank, praying for a full opportunity to examine his defence witnesses. This prayer was also disallowed by the Enquiry Officer. The petitioner prayed on 15-1-1959 for being permitted to examine the other witnesses at his own expense but this request was also arbitrarily rejected. On 23-1-1959, the petitioner submitted a revised list and prayed that at least 16 witnesses out of the said list should be summoned and their evidence recorded. In this list, the relevancy of the statements of the witness sought to be produced was explained but the Enquiry Officer rejected even this application.

(4) Feeling exasperated and helpless, the petitioner by means of his letter dated 16-2-1959, state that he would not produce any defence at that stage. On 2-3-1959, the petitioner again brought to the notice of the Enquiry Officer that his attitude was unfair in disallowing the petitioner's defence witnesses. It was pointed out that the witnesses were mostly in the service of the Bank and that they could easily appear if a letter was addressed by the Enquiry Officer to the Managing Director, respondent No. 2.

(5) On 16-3-1959, the petitioner filed a writ petition in this Court but the same was dismissed in limine by the Motion Bench holding it to be premature at that stage.

(6) On 19-9-1959, the Managing Director issued a show cause notice to the petitioner calling upon him to show cause as to why he should not be dismissed from service. A copy of the findings of the Enquiry Officer was also sent to him along with the notice. The petitioner submitted his reply on 17-10-1959. On 19-12-1959, the petitioner submitted a representation to the Board of Directors complaining that the enquiry held against him was illegal and in violation of the principles of natural justice. On 23-2-1960, the petitioner received a letter from the Managing Director stating that the Board of Directors had ordered the petitioner to be removed from service with effect from 12-2-1960. It is this order which is now assailed in the present proceedings.

(7) On behalf of the respondents this petition is resisted and it is submitted that the petitioner himself refused to lead any defence in spite of the fact that two witnesses were present in the Bank on the date fixed for the examination of the defence witnesses. The various petitions filed by the petitioner have been described to be delaying tactics for the purpose of prolonging the enquiry and delaying the report. The order disallowing witnesses by the Enquiry Officer has been sought to be justified on the ground that the petitioner was not able to show relevancy of their evidence in the enquiry. It is also pointed out that the petitioner's prayer for personal hearing by the Board of Directors was granted and he was asked to appear before the Board on 19-12-1959. It is admitted in the written statement that the employees on the Bank have been given the protection of Articles 310 and 311 of the Constitution.

(8) Shri Nehra has to begin with submitted that Article 311(2) of the Constitution has been violated and reference has been made to a decision of the Pepsu High Court in S. Mohan Singh v. Patiala and East Punjab States Union Patiala, AIR 1954 Pepsu 136. It has been emphasised that the enquiry held against the petitioner is violative of rules of natural justice. In support of this contention, stress has been laid on the following points:--

(1) The Managing Director who is the prosecutor has himself appointed a subordinate of his as an Enquiry Officer.

(2) The Enquiry Officer thus cannot go against the wishes of the Managing Director.

(3) The Enquiry Officer has also clearly exhibited his bias by refusing to summon defence witnesses.

(4) The Managing Director has also dealt with the case as Secretary of the Board of Directors; and

(5) The enquiry is mala fide because charges relate to the period prior to 1957.

I may here mention that the enquiry of 1957 is not denied. It is, however, urged on behalf of the respondents that there was no compromise in 1957 but that only further action was not taken by the Management.

(9) In support of the contention that the Managing Director or his nominee could not hold a valid enquiry, reliance has been placed by Shri Nehra on a decision of the Supreme Court in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86, and on State of Punjab v. Karam Chand, AIR 1959 Punj 402, Dr. K. Subba Rao v. State of Hyderabad, (S) AIR 1957 Andhra Pradesh, AIR 1961 All 45, and Joti Parshad v. Superintendent of Police, AIR 1958 Punj 327. None of these authorities are of any assistance to the petitioner. The rule which emergence from the Supreme Court decision as also from the other decisions cited on behalf of the petitioner is that rules of natural justice should be observed in departmental enquiries against public servants. Now the question as to whether the rules of natural justice have or have not been observed in a given case depends on its own peculiar circumstances. The facts and circumstances of none of the cases cited by the petitioner bear any close resemblance to those of the instant case. In departmental esquiries in service matters, it is to be borne in mind that it is the employer who has to hold the enquiry and to that extent it is inherent in the very nature of things that the Enquiry Officer cannot be so detached as Courts of law are in adjudicating upon disputes between litigants. Looked at from this point of view, I do not think that petitioner can successfully challenge the enquiry held in the instant case on the ground that the Enquiry Officer was a nominee of and subordinate to the Managing Director. This disposes of the first two points urged on behalf of the petitioner.

(10) Coming to the third point, it has been contended that the Enquiry Officer has betrayed a bias against the petitioner in conducting the enquiry. This contention has been sought to be established on a three-fold ground. In the first instance, it has been contended that the Enquiry Officer was informed that he was to be witness in the case, but he did not even care to ask petitioner about the details of the points on which he was required to be examined. In my opinion, this contention is wholly devoid of substance, for, it was incumbent on the petitioner himself to state full details if the wanted the Enquiry Officer not to hold the enquiry on the ground that he was himself a witness to any material circumstance relevant to the point in issue or appearing in the evidence. It is significant that the petitioner himself gave no details to the Enquiry Officer, and, indeed even in this Court the learned Counsel was wholly unable to suggest as to on what points the Enquiry Officer was required to be examined as a witness in those proceedings.

(11) The counsel then contended that on 9-12-1958, a request was made to the Enquiry Officer to summon some documents in support of this contention. Reference has been made to paragraph 13 of the petition. In this paragraph, it is stated that the documents which were summoned were meant to show that the Managing Director while acting as an official liquidator, got certain amounts credited to his personal account. This evidence according to the petitioner was relevant to the charges under enquiry. The Enquiry Officer refused to summon these records. In my opinion, the refusal on the part of the Enquiry Officer to summon the records in question do not show that he was so much biased against the petitioner as to be unfit to hold an enquiry. It may be stated that the Managing Director was not on the trial in those proceedings and that the refusal on the part of the Enquiry Officer cannot be held to be a decision which was not arrived at honestly. I am not called upon to, and I need not, in these proceedings, go into the correctness or otherwise of the grounds for refusal on the merits, for, I am not sitting as a Court of appeal against that order.

(12) The counsel then drew my attention to paragraph 17 of the petition in which it has been alleged that on 4-1-1959 the petitioner submitted a list of 135 defence witnesses with their full particulars, but the Enquiry Officer on 9-1-1959 arbitrarily selected only eight persons out of this list. A suggestion is thrown in the petition that this was presumably done at the instance of the Managing Director. These 8 witnesses were also ordered to be produced by the petitioner on his own initiative and responsibility and the Enquiry Officer declined to issue any summonses for them. It is expressly asserted that almost all the eight witnesses were Bank employees and it was impossible for the petitioner to produce them personally. This conduct on the part of the Enquiry Officer has been alleged to amount to denial of the right of defence to the petitioner. In reply in the written statement, it has been admitted that the number of defence witnesses was out down by the Enquiry Officer, but it has been pleaded that the petitioner was unable to show as to how the witnesses so deleted were necessary of were in a position to depose anything relevant. It is significant that no justification has been shown as to why the petitioner was asked himself to produce the witnesses; nor has it been denied that almost all those witnesses were Bank employees.

(13) In my opinion, the petitioner has a legitimate grievance against the Enquiry Officer in refusing to summon even the eight witnesses on whom the petitioner wanted to rely in defence. If the witnesses were actually employees of the Bank, I do not see any cogent or convincing reason--and none has been advanced before me--for refusing to help the petitioner in the production of those witnesses for examination by the Enquiry Officer. This has certainly resulted in denial to the petitioner of his right to adduce defence and, therefore, in failure of justice.

(14) The learned Advocate General has submitted that the Enquiry Officer has no power to summon those witnesses. Shri Nehra has on the other hand submitted with equal force that the Enquiry Officer had full power to summon the employees of the Bank to appear before him in those proceedings. In my opinion, in the present case, it was only fit and proper for the Enquiry Officer,--even if he had no power him self, to summon the witnesses--to ask the Managing Director to direct those eight witnesses to appear before him for the purpose or examination in the enquiry. To expect the petitioner to produce those witnesses on his own responsibility was, in my opinion, not only highly improper but was perverse and unjustified on the facts and circumstances of the present case. It clearly tended to reduce the opportunity offered to the petitioner to produce the defence to a farce and an empty formality. The subsequent refusal by way of protest on the part of the Enquiry Officer to assist the petitioner in securing the appearance of the defence witnesses.

(15) It would not be irrelevant here to say a few words about the rules of natural justice, which the Enquiry Officers in cases like the present, are expected--may, are enjoined--to observe and the scope of writ proceedings against order of dismissal etc. Gratefully borrowing the words of Gajendragadkar J. in State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623;

'It cannot be denied that when an order or dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Art. 226 it is for the High Court to consider whether the constitutional requirements of Art. 311(2) have been satisfied or not. In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bona fide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Art. 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Court of Law. As Venkatarama Aiyar, J. has observed in Union of India v. T. R. Varma, 1958 SCR 499 at p. 507: ((S) AIR 1957 SC 882 at p. 885).

'stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party and that no materials should be relied on against him without his being given an opportunity of explaining them.'

It is hardly necessary to emphasis that the right to cross-examine the witnesses who given evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the Enquiry Officer by not giving to the officer relevant documents to which he is entitled that inevitably would be that the enquiry had not been held in accordance with rules of natural justice.'

A few days earlier the same learned Judge speaking on behalf of the same Bench in Jagdish Prasad Saxena v. State of Madhya Bharat AIR 1961 SC 1070 had observed;

'........... it is of utmost importance that in taking disciplinary action against a public servant 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.'

And again

'the departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a change to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servant terminating their services.'

Sardar Kapur Singh v. Union of India, (1969) 2 SCR 569: (AIR 1960 SC 493) cited by the learned Advocate General for the contention that the petitioner must make specific allegations, also supports the view adumberated in the decisions already noticed. The ratio of Kapur Singh's case, 1960-2 SCR 569: (AIR 1969 SC 493) does not, in my view, lend any support to the respondents' counsel in his attempt to meet the attack against the order of the Enquiry Officer refusing to summon the defence witnesses. The contention that the petitioner has failed to show that the said witnesses had refused to attend the enquiry and, therefore, the petitioner's grievance is unsustainable, has merely to be stated to be rejected, for, on the facts and circumstances of this case it was obviously futile to expect the Bank employees to come voluntarily without the employer's permission during office hours to appear as witnesses against the Management in favour of the petitioner. In view of the foregoing discussion, I am constrained to allow the petition in part and quash the impugned order removing the petitioner from service and the enquiry proceedings from the stage when the Enquiry Officer refused to summon the witnesses sought to be produced by the petitioner in his defence. It would of course be open to the Enquiry Officer to continue the enquiry from the above-mentioned stage according to law.

(16) Before parting with the case, I hope the Enquiry Officer would reconsider with an open mind the question of summoning the other defence witnesses as well if the petitioner makes out a case for their production because it is one of the elementary principles that a person proceeded against must feel that he is being given a fair impartial treatment.

(17) As already observed, I allow this petition in part and quashing the order of removal and the proceedings from the stage mentioned above direct that the Enquiry Officer would be free to proceed with the enquiry from the said stage in accordance with law and in the light of the observations made above. In the circumstances of the case, there will be no order as to costs.

(18) Petition partly allowed.


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