(1) This petition has been filed under Article 226 of the Constitution for quashing the order of dismissal from service passed against the petitioner on 29-7-1959 by the Director of Agriculture, Punjab. It has been stated in the petition that the petitioner was employed as a senior clerk in law, Labour and Local Self Government Department of the former Pepsu State on 15-6-1951. On 9-11-1951, his services were transferred to the department of Agriculture, Punjab, as a senior clerk. He was promoted as Head Assistant on 14-7-1953 and was deputed to work on 23-11-1953 and was deputed to work on 23-11-1953 with S. Ranbir Singh, Assistant Director of Agriculture Sirhind. That office latter shifted to Patiala and the petitioner worked there upto 30-5-1954. In those days, the petitioner's relations with S. Ranbir Singh became strained and on account of some reports made against the petitioner, he was transferred to Sangrur. No further action was taken against the petitioner on the basis of the reports made by S. Ranbir Singh.
Form June, 1954 till the date of the petitioner's suspension, he continued to work as Head Assistant at Sangrur. During mot of this period, S. Mukhtiar Singh, District Agriculture Officer, was the petitioner's superior but on 24-1-1955, S. Ranbir Singh was also transferred from Patiala to Sangrur. On 11-2-1955, the petitioner applied for sick leave on medical certificate. Up to that time, S. Ranbir Singh had not made any report against the petitioner. Taking advantage of the petitioner's absence from office, however, S. Ranbir Singh tried to wreak his own vengeance and on 23-2-1955, the petitioners was informed that his leave application had been rejected and that he should attend the office immediately. The petitioner on account of illness was unable even to move from his bed. The same evening, however, the petitioner was informed that he had been placed under suspension. On 11-3-1955, S. Ranbir Singh also lodged a First Information Report with the police alleging embezzlement of cash held by the petitioner. After trial under section 406/409, Indian Penal Code, the petitioner was acquitted on 31st August, 1956, by Shri Shamsher Singh Atri, Magistrate Ist Class, Sangrur.
On 19-10-1957, the petitioner was served with the charge sheet calling upon him to show cause as to why he should not be dismissed from service. An enquiry into this matter was held by Shri Gurmel Singh, Marketing Officer, Agriculture Department.
During the course of this enquiry which was held on 16th and 17th of February, 1959, six witnesses were examined against the petitioner. According to the averments contained in the writ petition; when these witnesses were being examined, the petitioner was directed to stay out of the room of the Enquiry Officer and their statements were recorded in the petitioner's absence. The petitioner was, however, given an opportunity to cross-examine these witnesses after their statements-in-chief had been recorded. It is complained in the petitioner that the petitioner could not effectively cross-examine those witnesses because their examination-in-chief had taken place behind the petitioner's back. The petitioner also submitted written questions to be put to S. Ranbir Singh who was the principal witness but so question out of them was put to him. The petitioner thereupon made a written protest to the Enquiry Officer against this procedure but without any effect. The petitioner has further alleged that he made a number of oral requests for the production of certain records but they were not made available to him. It is unnecessary to refer to any further allegations contained in the writ petition as they were not pressed at the Bar.
(2) In the written statement it has been admitted that the statement of S. Ranbir Singh was recorded when the petitioner was not in the room of the Enquiry Officer but it is averred that this was due to the fact that the petitioner's objection to the presence of S. Ranbir Singh in the room of the Enquiry officer when the other witnesses were being examined was overruled and that the petitioner thereupon himself remained out of the room of the Enquiry Officer. It has been pleaded, however, that the petitioner availed of the opportunity to cross-examine all the prosecution witnesses and that he did not fully in the case of S. Ranbir Singh.
(3) The argument on which the petitioner has concentrated is that rules of natural justice have been recorded in the presence and that it being admitted that S. Ranbir Singh's evidence was recorded in his absence, the enquiry is vitiated and deserves to be quashed. In this connection my attention has been drawn to paragraph 12 of the petition which it is desirable to reproduce in extenso:
12. 'That on this, an inquiry into the matter was held by S. Gurmel Singh, Marketing officer, Agriculture Department. During the course of this inquiry, which was held on the 16th and 17th of February, 1959 six witnesses were being examined against the petitioner when these witnesses were being examined, the petitioner was directed to stay out of the room of the Inquiry Officer, and their statements were recorded in the absence of the petitioner. The Petitioner, however was given an opportunity to cross-examine the witnesses after their main statements had been recorded. The petitioner could not effectively do so, because the main statements of the witnesses had not been recorded in the presence. The petitioner submitted a written questioner Questionnaire? regarding the question to be put to S. Ranbir Singh, who was the principal prosecution witness against him (petitioner), but no question was put to him out of that questioner, (Questionnaire). Copy of the questioner is Annexure 'E'.
The petitioner then made a written protest of the Enquiry Officer against this procedure but 1962 Punj. D. F/32. the Enquiry Officer refused to change the procedure. He however, admitted in writing that the petitioner was present outside the room of the Enquiry Officer when three of the witnesses were being examined, and the petitioner was called in latter on alter all the witnesses had been examined. Copy of the letter and the Enquiry officer's Comments thereon, is Annexure 'F'.
In the written statement, this paragraph has been answered in the following manner:
12. ' That regarding para 12 of the petition it is stated that the departmental enquiry against the petitioner was held in accordance with the principals of natural justice and reasonable opportunity was afforded to him to defend himself. It is denied that the petitioner was directed to stay out of the room of the Inquiry Officer. What happened was that the petitioner took objection of the presence of Shri Ranbir Singh in the room of the Inquiry Officer and when the objection was overruled he kept out of the room of the Inquiry Officer. The petitioner however availed of the opportunity to cross-examine all the prosecution witnesses. The petitioner was permitted to cross-examine Sh. Ranbir Singh fully and to put to him any question he liked including those given in Annexure 'F'.
On behalf of the Petitioner stress has been laid on the fact that this written statement has been filed By Shri S. L. Puri, Under Secretary, Agriculture, who has no personal knowledge about what ranspired before the Enquiry officer on 16th and 17th February, 1959. It has been further submitted that Shri Gurmel Singh, Enquiry Officer, has not sworn any affidavit nor has in the verification of the written statement affirmed that he written statement contains statements according to the deponent's knowledge and belief and also the information derived by him from official record and believed by him to be true. On account to this verification, I enquired from the learned counsel for the respondent if from the learned counsel for the respondent if form the records in his custody it was possible to find material in support of the averments made in paragraph 12 of the written statement. To this the learned counsel frankly replied in the negative.
But this apart, from Annexure 'F' it is obvious that when Ranbir Singh's statement was taken down, the petitioner was not in the room, though the statement of the witness was later shown to the petitioner, who was allowed to cross-examine S. Ranbir Singh in detail. This is clear from the note under Shri Gurmel Singh's signatures dated 17-2-1959 in Annexure 'F'. As a matter of fact, the arguments before me proceeded on the assumption of correctness of the contents contained in Annexure 'F'.
(4) On behalf of the petitioner, my attention has been drawn to a decision of the Supreme Court in Union of India v. T. R. Varma, (S) AIR 1957 SC 882 and particular emphasis has been laid on the following observations of Venkatarama Aiyar, J. who spoke on behalf of the Court thus:
'Now it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that 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 natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law.
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 this 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 the opportunity of explaining them.'
This identical question again came up before the Supreme Court in Jagdish Prasad Saxena v. State of Madhya Bharat, AIR 1961 SC 1070 where it was observed that it was of the utmost importance that in taking disciplinary action against a public servant a proper departmental enquiry is 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. Departmental enquiry, as observed by Gajendragadkar, J. in this case 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. 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 servants terminating their services.
In State of Madhya Pradesh v. Chintaman Sadashiva, AIR 1961 SC 1623, again, the Supreme Court after referring to T. R. Varma's case, (S) AIR 1957 SC 882 with approval and quoting a certain passage from that judgment observed as follows:
'It is hardly necessary to emphasise that the right to cross-examine the witnesses who give 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.'
(5) On behalf of the respondents, a luke-warm attempt was made to justify the order of dismissal on the ground that the petitioner having cross-examined S. Ranbir Singh, the fact that the witness had been examined-in-chief in the absence of the petitioner would be immaterial. I regret my inability to uphold this contention. In order to effectively cross-examine witnesses, in my opinion, it is necessary that the examination-in-chief of the witnesses should be recorded in the presence of the party against whom the deposition is made and indeed this seems to me to be the view of the Supreme Court also in T. R. Varma's case, (S) AIR 1957 SC 882. As a matter of fact, on behalf of the respondents, the justification was not seriously persisted in.
(6) Before parting with the case, I should like to say a few words about the preliminary objection contained in the written statement that the Director of Agriculture, Punjab, whose order has been impugned, has not been impleaded in these proceedings. The Punjab State through the Secretary, Punjab Government, Agriculture Department, Chandigarh, has been made a respondent and the reply has been signed by the Under Secretary, Agriculture. I put to the learned counsel for the respondents during the course of hearing that if he seriously pressed the objection, I would immediately send a copy of this petition to the Director of Agriculture and also order his being formally made a party. After considering the matter, the learned counsel very fairly stated that it would not serve any useful purpose to adopt this course, for, the petition could not be more effectively defended by the formal presence of the Director of Agriculture in the array of respondents. Another objection, that the case involved disputed facts and, therefore, the writ petition should be disallowed was also not persisted in because the petitioner confined his challenge to the impugned order only on the ground that S. Ranbir Singh was examined in the enquiry in the absence of the petitioner and that this witness was the most important witness for the purpose of the enquiry, being both the complainant and inimical to the petitioner.
(7) For the reasons given above, I am constrained to allow this petition and to quash the impugned order of dismissal and the enquiry proceedings from the stage when S. Ranbir Singh was examined in the petitioner's absence. It would, however, be open to the Enquiry Officer to proceed from the stage to the examination of S. Ranbir Singh according to law and in the light of the observations made above. In the peculiar circumstances of the case, there would be no orders as to costs.
(8) Petition allowed.