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Krishan Lal Vij Vs. Union of India Through Ministry of Home Affairs Govt. of India, New Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberLetters Patent Appeal No. 131-D of 1963
Judge
Reported inAIR1969Delhi145
ActsConstitution of India - Articles 226, 227, 311 and 311(2); Central Services (Classification, Control and Appeal) Rules, 1957 - Rules 15(2) and 55; Evidence Act
AppellantKrishan Lal Vij
RespondentUnion of India Through Ministry of Home Affairs Govt. of India, New Delhi and anr.
Appellant Advocate Frank Anthony and; Charanjit Talwar, Advs
Respondent Advocate Parkash Narain, Adv.
Cases ReferredTirlok Nath v. Union of India
Excerpt:
.....part in the proceedings and when he had failed to remain present, it was held to be open to the enquiry officer to proceed on the materials placed before him. what is reasonable is, nto necessarily what is the best but, what is fairly appropriate under all the circumstances of the case. khera were proved as also that he had utilised this money for an unauthorised purpose and had failed to remit the money to shri khera as expected. the circumstances just mentioned clearly show that the grievance of the appellant that no adequate opportunity was afforded to him to adduce evidence in defense is unsustainable and it cannto be urged with any cogency that no reasonable opportunity to show cause was afforded to nun. again, had the copies of the documents been furnished to the appellant, he..........the close of the evidence led by the department, the appellant was entitled to be told by the enquiry officer that he had a right to adduce defense evidence and time should have been granted to him to summon and examine witnesses in his defense. the recognised rules of natural justice, according to the appellant's learned counsel, demand such procedure. in support of this submission, reliance has been placed on the following observations from a decision of the punjab high court in state of punjab v. karam chand, . at p. 187 (of plr): (at p. 412 of air) bhandarf c. j, observed as follows:'the expression 'reasonable opportunity' has nto been defined by the fra-mers of the constitution but there can be little doubt that the expression means opportunity, the vital elements of which are.....
Judgment:

1. This is a Letters Patent Appeal directed against the order of a learned Single Judge of the Punjab High Court dismissing the petition presented by the appellant in this Court under Articles 226 and 227 of the Constitution of India praying for a writ of certiorari to quash the order of the Director of Intelligence Bureau dismissing the petitioner as also the order of the President of India made in appeal against the order of the said Director.

The petitioner, it seems, was appointed as Upper Division Clerk in the Intelligence Bureau, Ministry of Home Affairs, Government of India, on 21-1-1950. He was promoted to the post of an Assistant on 1-3-1952. He was served with a charge-sheet on 16-2-1957 by Shri A.G. Rajadhyaksha, Deputy Director of the Intelligence Bureau, which was inter alias as follows:

'Shri Krishan Lal Vij, now an Assistant in the record room and formerly an Assistant in the Ngo Branch, is charged as under:

'(1) That he kept the sum of Rupees 22P/7/ which he drew from the Cash Branch on 29-11-1956 on behalf of Shri S.S. Khera on an authority (together with a stamped receipt) made out in his favor by Shri Khera on 12-9-1956 and did nto remit this sum to Shri Khera as was expected.' '

The charge containing some other counts does nto concern us at this stage because on appeal that was held nto to have been substantiated. On 14-3-1957, Shri Rajadhyaksha found the charge established and while proposing the penalty of dismissal, he called upon the appellant to show cause against the proposed penalty. The appellant was required to make whatever statements he liked on 19-3-1957. The appellant sought extension of time for submitting his Explanationn by means of an application dated 21-3-1957. He further prayed for permission to inspect certain files and to take extracts from them. This prayer was allowed in part because some of the files were held nto to be relevant to the case. Notes from other files were supplied to the appellant. In regard to one file, it was observed that the appellant had already examined the same. The appellant was allowed time up to 23-3-1957 to submit his statement, which he did, stating, inter alia, that the enquiry as also the show-cause notice issued by Shri Raja-dhyaksha, Deputy Director, were illegal and ultra vires, being in contravention of the Central Civil Services (Classification, Control and Appeal) Rules, 1957.

The amended rules came into force on 28-2-1957 and admittedly, according to them, it is the head of the department and nto a subordinate officer thereto who could impose the penalty of dismissal on the appellant. It is necessary to point out that on 8-5-1957, Shri B.N. Mullik, Director of Intelligence Bureau, passed an order to the effect that he was satisfied that the charges against the appellant had been proved and he too expressed his provisional opinion that the appellant should be dismissed. The petitioner was in fact informed that the enquiry conducted by Shri Rajadhyaksha was nto a nullity because it had been conducted with the concurrence of the Director. Indeed on 17-9-1957, Shri Mullik passed the order dismissing the appellant. The appellant's appeal to the President of India succeeded in part, for the penalty of dismissal was replaced by the penalty of removal, from service.

2. Before the learned Single Judge, on behalf of the appellant-petitioner three points were unsuccessfully raised. However, the point that no dereliction of duty can be said to be established on the fact has nto been pressed, though the points raised before us here are also three in number. The first challenge to the impugned order is to the effect that no opportunity was afforded to the appellant to defend himself. The second uoint emphasises the grievance that relevant documents required by the appellant for his defense were nto supplied to him and the third point challenges the authority of Shri Rajadhyaksha to hold the enquiry and to make a report against the appellant. Connected with the challenge is also the challenge that Shri B.N. Mullik could nto have made the final order passed on the enquiry held by Shri Rajadhyaksha.

3. Dealing with the first challenge, the appellant's learned counsel has submitted that after the close of the evidence led by the department, the appellant was entitled to be told by the Enquiry Officer that he had a right to adduce defense evidence and time should have been granted to him to summon and examine witnesses in his defense. The recognised rules of natural justice, according to the appellant's learned counsel, demand such procedure. In support of this submission, reliance has been placed on the following observations from a decision of the Punjab High Court in State of Punjab v. Karam Chand, . At p. 187 (of PLR): (at p. 412 of AIR) Bhandarf C. J, observed as follows:

'The expression 'reasonable opportunity' has nto been defined by the fra-mers of the Constitution but there can be little doubt that the expression means opportunity, the vital elements of which are timely notice and full opportunity to the person concerned to present all the evidence and arguments which he deems important for the purpose of his case. The requirements of a reasonable opportunity are satisfied when the person affected is given personal notice of the charges he is called upon to answer when he is informed of the place where and the time when he shall so answers when he is afforded an opportunity, if he so chooses, to cross-examine the witnesses produced against him; when he is afforded an opportunity after all the evidence is produced and known to him to produce evidence and witnesses to refute it; when the decision is governed by and based upon the evidence at the hearing; when he is afforded an opportunity to make his representations as to why the proposed punishment should nto be inflicted upon him; and when the hearing is had before an unbiased and unprejudiced officer.'

State of Bombay v. Gajanan Mahadev, : AIR1954Bom351 , has also been cited by Shri Anthony. Our attention has been drawn to the following observations at p. 354 of the report:

'The opportunity which the State has to furnish has to be a reasonable opportunity and the Courts have held that a reasonable opportunity is only afforded to the servant when he can show cause nto only against the punishment but also against the grounds on which the State proposes to punish him. thereforee, it is nto sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be in-flicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against the servant.'

Reference has next been made in this connection to the decision of the Supreme Court in State of Madhya Pra-desh v. Chintaman Sadashiva Air 1961 Sc 1623, in which it is laid down that two opportunities have to be given to the public servant against whom action is sought to be taken, I may point out that in this decision, it is also observed that the only general statement which can safely be made is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted, the decisions reached by the enquiry officers on the merits are nto open to challenge on the ground that the procedure followed was nto exactly in accordance with that which Is observed in the Courts of Law. The learned counsel has also sought to distinguish the decision of the Supreme Court in U.R. Bhatt v. Union of India, : AIR1962SC1344 , on which the learned Single Judge has placed reliance in his order. The counsel submits that in the reported case, the public servant had declined to take part In the proceedings and when he had failed to remain present, it was held to be open to the Enquiry Officer to proceed on the materials placed before him.

4. The question of reasonable op-oertunity to show cause appears to me to be dependent on the peculiar facts of each case. What is reasonable is, nto necessarily what is the best but, what is fairly appropriate under all the circumstances of the case. Reasonable opportunity to show cause does nto necessarily include a right to be specifically and expressly granted time to produce evidence in defense even when a public servant does nto choose to ask for it and does nto express any desire to produce such evidence. The enquiry cannto be considered to be open to challenge on the ground that the procedure laid down in the Evidence Act for recording evidence or in the Code of Criminal Procedure for trial of offences has nto been strictly followed. In the case in hand. It is quite clear that in the charge-sheet dated 16-2-1957, the appellant Krishan Lal yij was expressly informed that while explaining the charges enumerated therein by 10 A.M. on 18-2-1957, he should also state whether in addition to offer-Ing a written Explanationn, he desired to be heard in person and whether he wished to produce any witnesses or documents and if so, to furnish a list of such persons and documents along with his written Explanationn. In the report dated 14-3-1957 which contains the findings of Shri Rajadhyaksha, it is expressly mentioned that Shri Vij had nto cited any witnesses hi his defense.

He had, however, cross-examined Messrs. Mohinder Lal Sood, Hooja and Inderjit Malhotra. The Enquiry Officer came to four conclusions and observed that the charges of dereliction of duty and grave misconduct in respect of money received by the appellant as an agent of Shri S.S. Khera were proved as also that he had utilised this money for an unauthorised purpose and had failed to remit the money to Shri Khera as expected. The penalty of dismissal was proposed and Shri Vij was called upon to show cause why this penalty should nto be inflicted on him. Notice of the proposed penalty along with a copy of the findings was given to the appellant on 14-3-1957 and he was informed that any statement he wished to make In this behalf should be presented to the Deputy Director at 11 A. M. on 19-3-1957. On 21-3-1957, the appellant represented that the period for submitting his Explanationn should be extended at least by another 10 days, the period having already been extended up to 21-3-1957. The further extension was claimed on the ground that the appellant had nto been supplied with a copy of the report made by Shri Hooja, Deputy Director and that he had nto been given access to the examination of three files mentioned therein which contained similar subject as the case dealt with by the appellant in respect of S.S. Khera. He prayed for permission to examine the files and to take relevant extracts of the notes and copies of the letters received in Ngo Branch or issued by the said branch. Reference in this representation was also made to a copy of the note stated to have been circulated by Shri M.L. Sood and copies of the notes dated 5-10-1956 and 16-11-1956 sent by the appellant to the Cash Branch.

These documents were represented to be most relevant to the circumstances of the case and necessary for his defense. It is noteworthy that in this representation, no grievance was made on the score of no adequate opportunity having been afforded to him for producing his defense witnesses. Shri Rajadhyaksha on the same day disposed of this representation, I will deal with the grievance in regard to documents a little later. Extension of time was granted to the appellant up to 11 A. M. on 23-3-1957, on which date it was clarified that the officer would proceed to pass the orders without waiting for the appellant's reply to the show cause notice. The circumstances just mentioned clearly show that the grievance of the appellant that no adequate opportunity was afforded to him to adduce evidence in defense is unsustainable and it cannto be urged with any cogency that no reasonable opportunity to show cause was afforded to nun.

5. Coming now to the grievance that relevant documents were nto supplied to him, the counsel for the appellant has referred us to Annexures 'E', 'F' and 'R/4'. Annexure 'F' seems to us to constitute a complete answer to the grievance which has been pressed before us. The submission that the appellant was the sole judge as to which documents were relevant and that the officer had no concern with this question is nto easy to sustain. Indeed the learned counsel has nto been able to draw our attention to any statutory provision or to any principle or precedent in support of the challenge. Reference has of course been made to an unreported decision of the Supreme Court in Tirlok Nath v. Union of India, C. A. 322 of 1957 decided on 1-11-1960 (SC). The following passage from that judgment dealing with R. 55 of the Civil Services (Classification, Control and Appeal) Rules has been specifically relied upon:

'It is for this reason that it is obligatory upon the Enquiry Officer nto only to furnish the public servant concerned with a copy of the charges leveled against him, the grounds on which those charges are based and the circumstances on which it is proposed to take action against him. Further if the public servant so requires for his defense, he has to be furnished with copies of all the relevant documents, that is, documents sought to be relied on by the Enquiry Officer or required by the public servant for his defense. That the appellant had made a request for the supply of copies of documents is clear from the following passage in the report of Shri Sharma:

'He further pointed out that even the provisions of Civil Services (Classification, Control and Appeal) Rules had nto been complied with and said that he should have been given a statement of allegations, the grounds on which each charge was based, any other circumstances which it was proposed to take into consideration, a list of the prosecution witnesses and copies of the documents on which the prosecution case rested.' In spite of this complaint the documents upon the perusal of which alone the Enquiry Officer has based his report were nto furnished to him. All that the Enquiry Officer had to say about this is as follows:

'I then informed him that in so far as his objection regarding the supply of documents etc., was concerned, it was for him to ask for any documents that he wanted to see, but he did nto do so. As for the charge-sheet I thought that was comprehensive enough to enable him to draw up a statement which he was bound to furnish under R. 55 of the Civil Services (Classification, Control and Appeal) Rules.1 Later hi his report, the Enquiry Officer observed:

'I then asked the Raizada for the statement which he was required to submit! but he told me point blank that he had no intention of submitting any such statement.'

It may be mentioned that even according to the Enquiry Officer, the appellant did nto say that he did nto want to take any part in the enquiry or that he did nto want to adduce any evidence before him. In spite of this, the Enquiry Officer thought that the circumstances warranted his proceeding against the appellant ex parte.

*****

Indeed, it would be clear from the fact that he was insisting on being furnish ed with copies of documents on which the Enquiry Officer proposed to rely that he did want to take part in the en quiry proceedings.

*****

Again, had the copies of the documents been furnished to the appellant, he might, after perusing them well have exercised his right under the rule and asked for an oral enquiry to be held. 'Therefore, in our view, the failure of the Enquiry Officer to furnish the appellant with copies of the documents such as the first information report and the statements recorded at the Shidipura house and during the investigations must be held to have caused prejudice to the appellant in making his defense at the enquiry. The enquiry must, in these circumstances, be regarded as one in violation nto only of R. 55 but also of Article 311(2).'

These observations quite clearly show that they are confined to the facts of that case alone. In the case before us, it was clear even to the learned Single Judge that the files, the inspection of which was asked for, had no relevance to the case against the appellant and nothing was shown to the learned Judge from which it could be inferred that the petitioner was in any way handicapped in defending himself because of the refusal to show him those files. We are nto persuaded to disagree with the learned Judge. Shri Parkash Narain has also drawn our attention to the fact that Annexure 'E' was submitted on 21-3-1957 after the report of the Enquiry Officer dated 14-3-1957 and that Annexure 'F' suggests that the relevanl documents were actually supplied to the appellant and it was only irrelevant documents, the prayer in regard to which was disallowed. The submission pressed on behalf of the respondents does seem to possess some force. The counsel has also emphasised that the plea of the practice under which amounts used to be retained in similar circumstances was included in the appellant's representation, with the result that the appellant could nto be prejudiced by nto affording to him the papers relating to retention of money by him in other similar cases. This submission of the respondents also deserves consideration,

6. Lastly, it has been urged that Shri Rajadhyaksha who was nto the Director could nto hold the enquiry, being nto authorised under the rules applicable to the appellant. Shri Parkash Narain has submitted that Shri B.N. Mullik, Director, had also in May 1957 called upon Shri Krishan Lal Vij to submit his representation if any against the proposed punishment of dismissal. This was done after going through the report prepared by Shri Rajadhyaksha. In answer to this show-cause notice, the appellant actually submitted his Explanationn on 22-5-1957, in which after referring to his earlier representation dated 23-3-1957 in reply to the notice dated 14-3-1957 issued by Shri Rajadhyaksha, the appellant submitted that the second show-cause notice did nto indicate whether or nto the previous notice had been cancelled. Some technical objections were raised against the second notice and it was stated, to quote the exact words, 'I beg to submit, Sir, that in regard to the proceedings which have so far been held in my case, it is nto only the first show-cause notice which was wrong, illegal and irregular but it will be observed that the entire proceedings from the very first stage were held in an irregular manner, and in contravention of the rules applicable in this case. I will request your honour to go through the contents of my representation dated 23rd March 1957 impartially in which I have clearly pointed out the various procedural and illegal irregularities committed in the proceedings. I may again submit, Sir, that the charges in my case were framed by Shri A. G. Rajadhyaksha, Deputy Director, who was nto competent to do so within the meaning of R. 15(2) of the C. S. (C. C. & A) Rules

*****

In view of the circumstances explained above, I am constrained to submit Sir, that the procedural and illegal irregularities committed in proceedings have seriously prejudiced my case and such proceedings cannto be deemed to have been framed by an unbiased mind. I, thereforee, pray that in view of the reasons already submitted in my representation dated 23rd March, 1957 the entire pro- ceedings held by the said officer may kindly be quashed and set aside before I am called upon to explain my conduct on the basis of the Second Show-Cause Notice and to represent against the provisional penalty proposed to be inflicted upon me by your honour.'

It is added in this representation that in case the objection raised in the previous representation dated 23-3-1957 was nto upheld, then the appellant had a legal right to summon defense witnesses even at the stage of his Explanationn to the second show-cause notice before submitting his representation in reference to the second notice. In the concluding portion containing the prayer clause, the appellant desired to be apprised of the Rules under which the second show-cause notice had been served on him and it was repeated that the proceedings based on the show-cause notice issued by Shri A. G. Rajadhyaksha deserved to be quashed and the appellant be reinstated with effect from 12-3-1957 and that if this prayer was nto acceded to, then the appellant be allowed to put in his defense before submitting his Explanationn. The Director after considering this representation again called upon the appellant to submit his reply by 15-7-1957 vide, Annexure 'J' to the writ petition,, informing him that no further opportunity to adduce defense evidence could be granted. Finally, Mr. Mullik passed the order dated 17-9-1957 as per Annexure dismissing the appellant from service ' with effect from the date of the said order. What has just been stated, quite clearly shows that the appellant cannto be considered; to have been denied a reasonable opportunity of showing cause against the charges or against the proposed punishment.

It may again be emphasised that the, right to reasonable opportunity, broadly stated, implies opportunity to deny the guilt alleged, and, to establish innocence, to defend himself by examining himself and his witnesses, and to make representation against the proposed punishment. In the present case, he was quite clearly afforded an opportunity to show' cause against the charges leveled and was quite clearly informed that he could adduce evidence in his defense if he so desired and was again afforded full opportunity of making representation against the proposed punishment. The I appellant seems to us to have been afforded adequate and reasonable opportunity to represent his case and defend himself according to the recognised; standards applicable to departmental enquiries. Such enquiries cannto be equated with criminal trials under the Codel of Criminal Procedure. It is, thereforee, nto easy to sustain the contention advan- ced on behalf of the appellant that the enquiry against him is tainted with any legal infirmity vocative of the recpfinised rule of reasonable opportunity of Showing cause against the guilt and the punishment proposed.

7. For the foregoing reasons, this appeal fails and is dismissed, but in all the circumstances of the case, there will be no order as to costs.

8. Appeal dismissed.


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