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A.S. Selhi S/O S. Sant Vs. Union of India Through Secy., Ministry of Works, Housing and Supply, New Delhi - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 92-D of 1960, from decree of Sub-J., 1st Class, Delhi D/- 28-1-1960
Judge
Reported inAIR1968Delhi26; ILR1968Delhi393; 1968LabIC24
ActsConstitution of India - Articles 226 and 311
AppellantA.S. Selhi S/O S. Sant
RespondentUnion of India Through Secy., Ministry of Works, Housing and Supply, New Delhi
Appellant Advocate B.C. Misra, Senior Adv. and; Gopal Narain Aggarwal, Adv
Respondent Advocate S.N. Shanker and ; N. Srinivasa Rao, Advs.
Cases Referred and Pradyat Kumar Bose v. Hon
Excerpt:
(i) civil services (classification, control and appeal) rules (1930) - rule 55--enquiry under--enquiry officer--nature of his function--objection against appointment of--whether can be taken.; that the authority entrusted with the function of coming to a decision could appoint a person to collect the material. so long as the authority docs nto abdicate its essential functions of hearing and applying its mind to the material collected and comes to its own conclusion, no objection can be taken to the appointment of an officer to collect such material. ; (ii) civil services (classification, control and appeal) rules (1930) - rule 55--delegation of functions--when invalid. ;that if the essential functions to be exercised by a designated authority are delegated, such delegation may suffer..........were based were annexed to the said memorandum. in clause (3) of the memorandum, the name of the enquiry officer was left blank. since considerable arguments have been addressed to us on the said omission of the name, it is appropriate to read said clause (3) which is as under : - 'the written statement of defense, if any, of shri selhi should be submitted to shri .who has been appointed to hold the enquiry before the 15th april. 1956' extract from confidential demi-offical letter, exhibit d. w. 1/1 from shri m. r. sachdev, secretary, government of india, ministry of work, housing and supply to the deputy high commissioner for india, london, shows that shri sachdev asked the deputy high commissioners to appoint a suitable enquiry officer and fill the blank in clause (3) of the.....
Judgment:

S.K. Kapur, J.

1. The Plaintiff-appellant joined Government service in 1941 and was promtoed as Assistant Inspecting Officer (Technical) in 1942. He was posted in the India Store Department at London in 1944. In October 1955, the plaintiff visited Copenhagen in connection with the inspection of stores purchased from M/s. Bruel and Kjaer and issued a certificate in pursuance of inspection on 24th October, 1955. The defendant, Union of India on a report framed four charges against the plaintiff;

(i) demanding illegal gratification from the firm M/s. Bruel and Kjaer;

(ii) using official influence for personal advancement;

(iii) violation of Rule 3 of the C. C. S. (conduct) Rules, 1955

(iv) violation of Rule 3 of the C.C.S. (conduct) Rules, 1955. The two principal allegations against the plaintiff were that:

(i) for signing certain documents in connection with the inspection of store, he demanded and obtained from M/s. Bruel and Kjaer (hereinafter to be referred as the firm) a sum of D. Kr. 1,000/- by way of illegal gratification ; and

(ii) during his stay at Copenhagen, the bill of 'htoel Richmond', where the plaintiff stayed for one right, was paid by the said firm.

About a month after the inspection, the firm addressed a letter dated the 29th November, 1955 to their agents in India M/s. Eastern Electrical and Engineering Company, Bombay, advising the shipment of the stores and complaining of the demand and payment of planning of the demand and payment of D. Kr. 1,000/- to the plaintiff. The firm in the letter, inter alia, stated, 'In that connection, we want to advise you that Mr. A. S. Selhi who stayed in Denmark for several days, and made a very profound examination of the equipment, before his signing the required documents, demanded a payment of D. Kr. 1,000/- equal to ...50 -0-0d for his services, of course we could only be highly surprised for a demand of that size as we have never incorporated such high costs in our circulation's. As Mr. Selhi, however, insisted, we found ourselves forced to pay the amount in order to have the documents duly signed'. The firm also enquired whether it was a normal procedure and who was expected to bear such costs. On 9th January, 1956, the firm's agent in India complained to the High Commissioner for India and on 20th February, 1956, Dr. S. K. Mitra, Deputy Director -General, India Stores Department, London, submitted a report after making confidential ex parte enquiries. A formal charge-sheet was framed by Shri M. R. Sachdev, Secretary to the Government of India, and memorandum dated 31-3-1956, Exhibit D-7, was sent to the Deputy High Commissioner for being addressed to the plaintiff. The said memorandum inter alias required the plaintiff to show cause against him under Rule 49 of the Civil Services (Classification, Control and Appeal) Rules. The said memorandum further recited that it had been decided to hold a formal departmental enquiry against the plaintiff under Rule 55 of the said rules. The formal charges and the facts on which the said charges were based were annexed to the said memorandum. In clause (3) of the memorandum, the name of the Enquiry Officer was left blank. Since considerable arguments have been addressed to us on the said omission of the name, it is appropriate to read said Clause (3) which is as under : -

'The written statement of defense, if any, of shri Selhi Should be submitted to Shri .who has been appointed to hold the enquiry before the 15th April. 1956'

Extract from confidential demi-offical letter, Exhibit D. W. 1/1 from Shri M. R. Sachdev, Secretary, Government of India, Ministry of Work, Housing and Supply to the Deputy High Commissioner for India, London, shows that Shri Sachdev asked the Deputy High Commissioners to appoint a suitable enquiry officer and fill the blank in Clause (3) of the charge-sheet before serving the same on the plaintiff. Shri J. D. Shukla, Director-General, India Store Department was it appears, appointed as Enquiry Officer, who submitted his report dated 14th November, 1956. He decided that :the charges, thereforee, under (1) and (3) above cannto be said to be proved, but a doubt remains and that I am inclined to hold that this charge (regarding the payment of htoel bill by the firm) is proved'. On 7th March, 1957, a show cause ntoice under Article 311(2) of the Constitution of India was issued to the plaintiff under the signatures of Deputy Secretary to the Government of India.

It appears form the annexure of the said show cause ntoice that the Government did nto agree with the findings of the Enquiry Officer framed against the plaintiff had been proved. In the said annexure, it is stated 'the president has. thereforee, come to the provisional conclusion that Mr. Selhi should be dismissed from service. He has accordingly decided that he should be asked to show cause why he should nto be dismissed from service on the charges proved against him ....' Similarly, in the show cause ntoice, it was said that '.... The President is pleased to arrive at the Provisional conclusion that you are guilty of the charges proved against you as mentioned in the annexure to this memorandum. The President has accordingly decided provisionally that you should be dismissed from service'. The plaintiff submitted his Explanationn on 24th March, 1957 which recommended dismissal of the plaintiff. The plaintiff was accordingly dismissed on 31-1-1957. The parties went to trial on the following issues:

1. Whether the order of suspension is illegal and void?

1-A. Whether Shri J. D. Shukla was nto duly appointed as an Enquiry Officer as alleged in clause (J) of Para 8 of the plaint? If so, what is its effect on the report made by him?

2. Whether the order of dismissal is illegal, ultra virus and void?

3. Whether the plaintiff was permanently employed as Assistant Inspecting Officer? If nto, its effect.?

4. To what amount, if any, is the plaintiff entitled?

5. Relief.

The trial Court, by its judgment dated 28th January, 1960, dismissed the suit of the plaintiff with costs and the plaintiff has now appealed to this Court. Three contentions were urged on behalf of the Plaintiff:

(i) Appointment of Enqurity Officer was illegal and without jurisdiction;

(ii) the punishing authority had no power to differ from the findings of the Enquiry Officer; and

(iii) the dismissal order is illegal, because:

(a) the charge is nto established on any legal findings;

(b) different standards of proof have been applied by the punishing authority in weighing the evidence in support of and against the charges; and

(c) the report of the Enquiry Officer is vitiated by disregard of the rules of natural justice.

(2) So far as the second contention is concerned, Mr. Misra, the Jearned counsel, while dealing with the individual contentions, conceded that he could nto support the same. In elaboration of the first point, Mr. Misra's argument is that omission of the name of Enquiry Office in clause (3) of the memorandum dated 31st March, 1956, was fatal to the Enquiry inasmuch as the Secretary to the Government of India, acting as a delegate of the Government, could nto further delegate the power to the Deputy High Commissioner to appoint an Enquiry Officer. According to Mr. Misra, this delegation was unauthorised resulting in vitiation of the whole Enquiry. Mr. Sankar, learned counsel for the respondent on the toher hand, relied on paragraph 3 of the plaint and the opening sentence of the Enquiry Officer's report as showing that the appointment of the Enquiry Officer was made ;by the Union of India. Mr. Sankar's above-mentioned argument may nto provide a valid defense inasmuch as in clause (J) of paragraph 8 of the plaint, the objeaction of Mr. Misra has been expressly set out and the opening sentence in the Enquiry Officer's report does nto seem to have taken ntoice of the fact that the selection of the Enquiry Officer was made by the Deputy High Commissioner. From the document, Exhibit D-1/1, I conclude that the matter of selection and appointment of the Enquiry Officer was left to the Deputy High Commissioner. That, however, is nto enough to see the plaintiff through. There has, in fact, been to delegation in this case at all. The authority entrusted with the function of coming to a decision could appoint a person to collect the materials. That remains only a matter of procedure. So long as the authority does nto abdicate its essential functions of hearing and applying its mind to the material collected and comes to its own conclusion, no objection can, in my opinion, be taken to the appointment of an officer to collect such materials. The heart of the problem is the hearing of the parties concerned and reaching a conclusion of the evidence taken. Whether the deciding officer hears a party audibly addressing him or hears him only through the medium of his written-statement and the evidence recorded by the Enquiry Officer cannto but be a matter of procedure. What has happened here? The Secretary to the Government of India, acting as Government, had to appoint an Enquiry Officer for the purpose of collection of material and report. The Government had ultimately to apply its mind to the materials collected and the report and come to its own conclusion. The latter function was admittedly nto delegated as the Government itself did consider the entire materials and the report. If the Secretary, instead of nominating an officer to hold an Enquiry, tells someone else to entrust the job of collection of materials to a person selected by him, no exception can be taken. Mr. Misra relied on Shardul Singh v. State of Madhya Pradesh, : (1968)IILLJ274MP and Pradyat Kumar Bose v. Hon'ble Chief Justice of Calcutta High Court, : [1955]2SCR1331 . It is unnecessary to elaborate on these decisions because, as I have said earlier, if the essential functions expected to be exercise by a designated authority are delegated, such delegation may suffer from such a vice as to render the act of the delegate invalid. In this case, ntohing of that kind has happened. Strictly speaking, such entrustment may nto be termed as delegation, as collection of material and making of a report are necessarily to be entrusted to someone else. The authority charged with exercising the power of dismissal has to address himself personally to the entire evidence, which has been done. After considering the material collected and the report, the decision was by the Government and constitutionally the essential functions involved in the matter were exercised by and remained those of the Government.

(3) This takes me to the last contention of Mr. Misra. We have been taken through the annexure to the memorandum dated 7th March, 1967, Exhibit D-2. I find that valid interferences of facts have been drawn by the Government from the facts. This Court cannto sit in appeal over the decision of the Enquiry Officer and once it is found that the finding is supported by evidence, the Court cannto interfere with it even if it be of the view that on that same evidence, its conclusion may have been different. Mr. Misra then pointed out that different standards of proof had been adopted. His grievance is that one of the factors taken by the Government in finding against the plaintiff was that the plaintiff did nto produce any receipt showing that he had reimbursed the firm with respect to the amount paid by them towards the htoel bill, while the charge of illegal gratification was held proved against the plaintiff, although the firm produced no receipt of such payment to the plaintiff. I think this argument has been rightly dealt with by the Government when it stated 'surely no corrupt officer receiving payments in this manner will even give receipt for such payments.' I am, thereforee, nto inclined to interfere with the finding of the Government on this core. Regarding the violation of rules of natural justice, Mr. Misra's grievance is that:

(i) the original books of accounts of the firm were nto called for;

(ii) preliminary Enquiry was made exparte; and

(iii) some of the plaintiff's witness were nto examined

There is no merit in this contention. There is ntohing to suggest that the plaintiff ever demanded that the original books of accounts should be summoned. The Enquiry Officer or the Government has placed no reliance on the preliminary Enquiry and consequently no value can be attached to the same. Regarding the summoning of toher witness, the plaintiff has nto made any grievance in the plaint. On the toher hand, the record shows that he was satisfied with the witness examined. Mr. Misra then contended that the Deputy Secretary to the Government of India could nto take the decision on behalf of the Government. Apart from the fact that I do nto find any firm allegation in the plaint asserting this grievance, the annexure to the memorandum, Ex. D-2, says that the President has come to the conclusion contained therein If this point had been raised in the plaint the defendant would have had an opportunity to show that this statement is correct In these circumstance there is no merit in his appeal and the same is dismissed. But having regard to the circumstances of the case. I leave the parties to bear their own costs in this Court.

Jagjit Singh, J.

(4) I agree.

(5) Appeal dismissed.


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