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Union of India Vs. Suraj Bhan - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 86D of 1965
Judge
Reported inILR1970Delhi275
ActsConstitution of India - Article 311(2); Punjab Police Rules, 1934 - Rule 16
AppellantUnion of India
RespondentSuraj Bhan
Advocates: O.P. Malhotra,; A.B. Saharia and; D.R. Sehgal, Advs
Cases ReferredIn State of Orissa v. Bidyabhushun Mohapatra
Excerpt:
.....- art. 311(2 -- disciplinary proceedings against govt. servant under rule 16.38 of the punjab police rules -- dismissal order passed under section 7 of police act, 1961, therein against the latter -- reasonable opportunity -- list of prosecution witnesses and documents needed for cross-examining witnesses -- not furnished to the delinquent government servant -- documents not relied on by prosecution nor asked for by petitioner -- inquiry not vitiated. ; the respondent who was officiating as an assistant inspector of police was dismissed from service after a disciplinary enquiry held against him under the punjab police rules. the nature of the accusation made against him was made known to him by the summary of allegations which was handed over to him at the begining of the..........judge did not think it necessary to consider the third ground of challenge which had been urged by suraj bhan against the order of his dismissal. the present letters patent appeal filed by the union of india against the said decision of the learned single judge was referred to a full bench for consideration of the first two contentions, the acceptance of which had led to the quashing of the order of dismissal. the full bench disagreed with the decision of the learned single judge on both the grounds by holding that ( i ) the departmental inquiry against suraj bhan was not vitiated by any contravention of rule 16.38 of the punjab police rules, and (2) the superintendent of police was competent to dismiss suraj bhan under section 7 of the police act, 1861 read with articles 310 and 311 of.....
Judgment:

V.S. Deshpande, J.

(1) The respondent Suraj Bhan who was officiating as an Assistant Inspector of Police was dismissed from service by the order dated 29-4-1961 after a disciplinary inquiry had been held against him under the Punjab Police Rules. He filed Civil Writ Petition No. 691-D of 1963 challenging the validity of the order of his dismissal on three grounds, namely :-

(1)that the same had been instituted without comp liance with the procedure prescribed by rule 16.38 of the Punjab Police Rules: (2) that the dismissal order was passed by the Superintendent of Police while under section 7 of the Police Act, 1861, it could be passed only by a District Superintendent of Police; and (3) that the proceedings of the disciplinary inquiry were conducted in violation of the principles of natural justice and, thereforee, contrary to Article 311(2) of the Constitution.

(2) The first two contentions were accepted by a learned Single Judge of the Circuit Bench of the Punjab High Court sitting at Delhi who quashed the order of dismissal by the order dated 26th April 1965. The learned Single Judge did not think it necessary to consider the third ground of challenge which had been urged by Suraj Bhan against the order of his dismissal. The present Letters Patent appeal filed by the Union of India against the said decision of the learned Single Judge was referred to a Full Bench for consideration of the first two contentions, the acceptance of which had led to the quashing of the order of dismissal. The Full Bench disagreed with the decision of the learned Single Judge on both the grounds by holding that ( I ) the departmental inquiry against Suraj Bhan was not vitiated by any contravention of rule 16.38 of the Punjab Police Rules, and (2) the Superintendent of Police was competent to dismiss Suraj Bhan under section 7 of the Police Act, 1861 read with Articles 310 and 311 of the Constitution. As the third contention of Suraj Bhan had not been considered by the learned Single Judge, the Full Bench returned the case to the referring Bench to hear the parties on the third contention in the light of the findings given by the Full Bench on the first two contentions, and then to dispose of the appeal. This is how we have come to hear the parties on the last contention of Suraj Bhan against the validity of the order of his dismissal.

(3) Shri D. R. Sehgal, learned counsel for the Respondent 1nitially submitted that the decision of the District Magistrate that instead of holding a judicial prosecution, only a departmental inquiry should be held against Suraj Bhan was not valid as no reasons for the same were recorded by the District Magistrate though he was required to do so by rule 16.38(2) of the Punjab Police Rules. In our view, the learned counsel is not entitled to urge this ground before us for the following reasons, namely :

(1)There is no pleading made by Suraj Bhan in the writ petition that the order of the District Magistrate that departmental inquiry should be held against Suraj Bhan was had inasmuch as reasons for the same had not been recorded by the District Magistrate. On the contrary, the pleading at the end of paragraph (2) of the writ petition is as follows : 'The facts were brought to the notice of the District Magistrate, Delhi, only on 19-11-1960 who in accordance with the provisions of Police Rule 16.38 agreed that A.S.I. Suraj Bhan defaulter be dealt with departmentally.' In ground (a) at pages 6 and 7 of the writ petition, it is stated that 'the departmental inquiry conducted by Shri Sandar Chand Kotch, Inspector of Police, Inquiry Officer, on which is based the impugned order of the petitioner's dismissal is void ab initio as the same was instituted without compliance with the procedure prescribed by the statutory provisions of Rule 38 (Chapter XVI) of the Punjab Police Rules as extended to the Delhi Police'.

(2) Before the learned Single Judge, the only contravention of rule 16.38 of the Punjab Police Rules urged by the learned counsel for Suraj Bhan was the alleged contravention of sub-rule (1) of rule 16.38. No reference at all was made to any contravention of sub-rule (2) of rule 16.38. Consequently, the question whether the order of the District Magistrate was had for not recording the reasons for it was not raised before the learned Single Judge at all. (3) The question whether any contravention of rule 16.38 of the Punjab Police Rules had vitiated the departmental inquiry and the order of dismissal was fully argued before the Full Bench. But even there, no objection to the order of the District Magistrate was taken on the ground that reasons for it were not recorded by him. The Full Bench dealt with all alleged contraventions of rule 16.38 and observed as follows : 'the petitioner does not urge anywhere that there was any other defect in the order of the District Magistrate ordering the departmental inquiry, nor does he state that the departmental inquiry itself was, in any way, vitiated by this order of the District Magistrate. In the nature of things, the order of the District Magistrate could not, in any way prejudice the Respondent 1n the departmental inquiry, which followed it. The Respondent 1n his writ petition did not urge any grounds that any other part of Rule 16.38 was contravened.'

(4) As the respondent Suraj Bhan has neither pleaded nor urged this ground either before the learned Single Judge or before the Full Bench which finally disposed of the entire question regarding the contravention of rule 16.38, the respondent Suraj Bhan is not now entitled to raise this ground before us for the first time.

(5) The alleged defects in the departmental inquiry were pleaded by Suraj Bhan in ground (c) at pages 9 to 12. Out of them only the following were urged by the learned counsel for the respondent before us and we shall deal with each of them Serialtim.

(6) I. No list of prosecution witnesses or documents on which the prosecution relied was furnished to the petitioner. Copies of the complaint and the statements of.witnesses recorded in the preliminary inquiry were not supplied to Suraj Bhan thereby depriving him of the right of effective cross-examinati-on of these witnesses whenthey were examined subsequently in the departmental inquiry.

(7) Basically the protection afforded to a Government servant against dismissal is the one contained in Article 311(2) of the Constitution. there under an inquiry has to be held into the alleged misconduct of the Government servant in which the Government servant is to be informed of the charges against him and is to be given a reasonable opportunity of being heard in respect of those charges. If after such inquiry, it is proposed to impose a penalty on him, a fresh opportunity of making representation against the penalty to be imposed on him is to be given to him. The Punjab Police Rules are relevant only in so far as they carry out the purposes of Article 311(2). Briefly, the Government servant facing an inquiry is to be given two opportunities at the two stages of the disciplinary inquiry against him. At the first stage, he must be given a reasonable opportunity to defend himself against the charges made against him. There is no specific provision in the Punjab Police Rules requiring that a list of procecution witnesses and of documents on which the prosecution relies has to be furnished to the petitioner. Nor is this required by any rule of natural justice as such. The rules of natural justice do not represent a very fast idious standard of fair procedure. As recently summarised by the Supreme Court in Suresh Koshy George, v. University of Kerala : [1969]1SCR317 , the requirements of natural justice are only three, namely :-

(1)that the person accused should know the nature of the accusations made: (2) that he should be given an opportunity to state his case; and (3) that the Tribunal should act in good faith.

(8) The nature of the accusations made against Suraj Bhan was made known to him by the summary of allegations which were handed over to him at the beginning of the departmental inquiry. Strictly speaking, it is not absolutely necessary that a list of prosecution witnesses must be given to the Government servant facing the inquiry to make him known the charges brought against him. The names of such witnesses themselves mean nothing. It is only what they say that is important. As for the document which may have been needed by Suraj Bhan for cross-examining the prosecution witnesses, a distinction has to be borne in mind. On the one hand, are documents on which the prosecution relies and which it proposes to use against the Government servant. These documents have to be brought to the notice of the Government servant before they can be used against him. There is no complaint in the present case that any document was used against the petitioner which he had no opportunity to rebut. On the other hand are documents which are not pan of the prosecution case and which the prosecution does not intend to use against the Government servant but which the Government servant may himself require for cross-examining the prosecution witnesses. The prosecution cannot know what documents the Government servant wants for that purpose. It is thereforee, for the Government servant to apply to the prosecution authorities for the supply of such documents to him. The meaning of 'reasonable opportunity' in this context is clear. As the prosecution cannot read the mind of the Government servant facing the inquiry, it is for the latter to express himself. The 'reasonable opportunity' is the availability or the facility for the Government servant to ask for such documents as he wants for cross-examination. No duty can be cast on the prosecution to give any such documents to the Government servant unless they are asked for by the Government servant. The test of 'reasonable opportunity' is whether what is asked for by the Government servant is refused to him. In the present case, admittedly, Suraj Bhan did not ask for the supply of any documents for the cross-examination of the prosecution witnesses. It cannot be said, thereforee, that the reasonable opportunity for cross-examining the prosecution witnesses by getting copies of documents in the possession of the prosecution authorities was in any way denied to him. In support of this view, we may refer to the Privy Council decision in University of Ceylon v. Fernanda (1960) 1 All E.R. 631, in which the teacher facing the disciplinary action had not expressed any desire to crossexamine a material witness against him. It was held that the failure of the Inquiry Commission to tender an essential witness for cross-examination by the teacher without any such request from the teacher did not amount to a violation of the principles of natural justice. In the State of U.P. v. Om Parkash Gupta 1969 S.L.R. 890 , it was observed that the High Court was not right in its conclusion that the report of the Inquiry Officer had not been made available to the Government servant before he was called upon to show cause against the proposed punishment. For, as observed at page 896, it was open to the Government servant to ask for a copy of the record but he did not do so, nor did he object to the notices calling upon him to show cause why he should not be dismissed on the ground that he had not been supplied with a copy of the report made by the Inquiry Officer. The principle underlying these decisions is that unless a request made by the Government servant for the supply of material needed by him for cross-examination is turned down, it cannot be said that any prejudice was caused to him in defending himself against the charges brought against him. For instance. a Government servant who refuses to take part in the departmental inquiry to defend himself cannot complain that an opportunity to defend himself was denied to him. On the same principle, if he does not ask for documents needed by him, he cannot complain that they were not supplied to him. Learned counsel for the respondent relied upon the decision in Jugraj Singh v. Delhi Administration, Civil Writ Petition No. 756-D of 1966 decided on 31-7-1969 by one of us (Deshpande J.) In that case, Jugraj Singh had asked for the supply of documents and his request was turned down. That is why the inquiry against him was held to have been vitiated and reliance was placed on the Supreme Court decisions in State of Madhya Pradesh v. Chintaman Sadaibiva Waishampayan AIR 1961 S.C. 1623 and Triloki Naih v. Union of India 1967 S.L.R. 759. But both these decisions are distinguishable inasmuch as request for documents had expressly been made by the Government servants facing the inquiries in those cases and was turned down by the prosecution authorities.

(9) Learned counsel for the respondent then referred to rule 16.24(1 ) (v) of the Punjab Police Rules. The last two sentences of this provision enabled the Government servant facing the inquiry to file documentary evidence in defense and to have access to files and papers for this purpose. The supply of documents is subject to ordinary rules regarding copying fees. Firstly, this provision seems to apply more to the evidence to be adduced by the Government servant in his defense rather than to the necessity of his having documents for the cross-examination of prosecution witnesses. Secondly, even this provision contemplates that the Government servant himself must make a request for the supply of such documents as he wants and does not contemplate that the prosecution authorities should themselves try to imagine what the accused would require and give documents to him of their own accord without being asked for.

(10) Learned counsel then referred to rule 16.29(4) of the Punjab Police Rules which is as follows :

'Any person wishing to appeal under sub-rule (1) may apply to the Superintendent for a copy of the complete record, or any portion thereof. Such copies shall not be given during the pendency of the original proceedings for the facilitating of cross-examination or the preparation of the defense. Copies of the record of preliminary enquiries shall not be given for purposes of appeal.'

(11) Learned counsel argued that Suraj Bhan being an Assistant Inspector of Police must have known this Police rule and this must have been the reason why he did not apply for the supply of documents for cross-examining the prosecution witnesses. He submitted that this provision was contrary to Article 311(2) of the Constitution and was as such ultra vires.

(12) We are again constrained to repel this contention of the learned counsel for obvious reasons. The respondent never pleaded anything regarding the virus of this statutory provision. Further, he never pleaded that he was prevented from applying for the desired documents because of this statutory provision to the contrary. He was not, thereforee, aggrieved by the presence of this stalutory rule. Consequently. he has no locus standi to challenge its vires, so much lor the law. On facts. Suraj Bhan never had any intention of asking for any documents for the crossexamination of prosecution witnesses and, thereforee, no prejudice was caused to him by the non-user of those documents by him in cross-examination.

(13) The Inquiry Officer gave the 'summary of misconduct' containing the allegations against Suraj Bhan to him on the same day on which he started recording the prosecution evidence. Suraj Bhan requested for an adjournment, but this prayer was rejected on the ground that there was no provision under the Punjab Police Rules for adjourning the proceedings. The question again is whether this amounted to the contravention of any rule of natural justice and denial of reasonable opportunity to Suraj Bhan to defend himself against the charges brought against him. Learned counsel for the respondent relied upon the analogy of rule 14(4) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, in which the Government servant is given the statement of charges and asked to submit 'within such time as may be specified' a written statement of his defense. Learned counsel submitted that some time should have been given to Suraj Bhan. to prepare himself to defend himself. We are of the view that the analogy of rule 14(4) of the CCS(CCA) Rules 1965 is not applicable. For, the procedure of the inquiry under the Police Rules as laid down in rule 16.24 is different from the procedure in rule 14 of the CCS(CCA) Rules 1965. Under the Punjab Police Rule 16.24 only a copy of the statement of allegations is to be given to the accused and if the accused does not admit the charge then the Inquiry Officer shall proceed to record the evidence. The reason is that the formal charge against the accused is framed only after the prosecution evidence is heard and the accused is called upon to defend himself after the charge is so framed. This is why there is no provision for the accused to file any written statement in reply to the statement of allegations against him at the initial stage and. thereforee, the procedure is different from the one embodied in rule 14(4) of the CCS(CCA) Rules 1965. It cannot be said that the procedure under the Punjab Police Rule 16.24 is so harsh as to be contrary to natural justice. The principles of natural justice cannot be confined into the straight jacket of any particular rules. They are broad principles, the particular application of which depends on the facts and circumstances of each case. The police officer is well-versed in the rules of prosecution and defense unlike a layman and, thereforee, he would be in a position to defend himself properly even if the recording of the prosecution evidence begins on the same day on which the statement of allegations against him is handed over to the police officer facing the inquiry. It cannot be said. thereforee, that reasonable opportunity to defend himself was denied to Sura) Bhan within the meaning of Article 311(2) on this account.

(14) On 19-11-1960, witness Om Parkash was examined in the departmental inquiry in Hindi. The Inqunv Officc-r then dictated the statement in English and , it typed. Suraj Bhan requested that a copy of this statement should be given to him as he had not been able to follow it. This request was rejected by the Inquiry Officer with the following observation : 'There is no procedure for supplying copies of statements of Public Witness s. The Public Witness was speaking in Hindi and the defaulter has taken notes of the same'. We are not aware of any requirement of natural justice that a copy of the deposition of a witness examined in the presence of the government servant facing the inquiry must be given to the Government servant. In the present case, the evidence of the witness Om Parkash in Hindi was heard by Suraj Bhan who took notes of the same. We see, thereforee, no point in asking for a copy of the deposition. The Inquiry Officer was not bound to supply it. It is to be noted that Suraj Bhan did not ask for the depositions of any other witness. Nor is there any pleading or argument by him that the number of witnesses examined against him was so large that he could not remember what was stated by whom and, thereforee, he wanted to have a record of the deposition with him to prepare his defense. We are not, thereforee, impressed by this objection. Learned counsel for the respondent relied upon the decision in Babu Lal v. Chief Justice, Allahabad High Court 1969 S.L.R, 170 for the proposition that the non-supply of the copies of the proceedings before the Inquiry Officer to the Government servant under inquiry vitiated the proceedings of inquiry. The decision is distinguishable inasmuch as the supply of the copies of the proceedings was required by rule 5-A of the CCS(CCA) Rules referred to in that case. Further, the rule was considered to be mandatory in that case. Lastly, prejudice also had resulted due to the non-supply of the copies of the proceedings. In the presen case, there is no rule requiring the supply of the copy of the deposition, not to speak of any mandatory rule. Further, no prejudice is shown to have been caused to Suraj Bhan by the noneupply of the copy of deposition of Om Parkash inasmuch as 0m Parkash was examined in the presence of Suraj Bhan and Suraj Bhan had taken notes of his evidence.

(15) In Appendix D to the writ petition, the Inquiry Officer has briefly summarised the evidence adduced against Suraj Bhan and after assessing the same. the Inquiry Officer concludes that in his opinion Suraj Bhan deserves to be dismissed from Police service. He then observes that he would however give an opportunity to show cause why this punishment should not be inflicted on him. A copy of this order is served on Suraj Bhan and he was asked to show cause against it within a period of seven days.

(16) Learned counsel for the respondent argues that the Inquiry Officer has 'already made up his mind against Suraj Bhan and this vitiates the inquiry. He argues that the Inquiry Officer should have stated that he had only tentatively came to the conclusion about the guilt of Suraj Bhaii so that Suraj Bhan would have the opportunity of representing not only against the penalty proposed to be imposed on him but also apainst the findings which have been arrived at by the Inquiry Officer. In our view, this argument is merely technical but without substance. Even under Article 311(2), the show cause notice after the inquiry is given for making representation against the penalty proposed. It is true that in making such representation, the Government servant may point out that the assessment of the evidence against him by the Inquiry Officer was not correct and this may be an additional reason why the penalty proposed against him should not be imposed on him. But this is necessarily implied in the second opportunity that is given to the Government servant under inquiry. The show cause notice given to Suraj Bhan is, thereforee, strictly in accordance with Article 311(2). Even the show cause notice given under rule 15(4) (b) of the CCS(CCA) Rules, 1965 is also a notice staling the penalty proposed to be imposed on him and calling upon him to show cause against the proposed penalty. There is, thereforee, no substance in this contention.

(17) At the end of paragraph (5) of this show cause notice, the Inquiry Officer has referred to the evidence of Public Witness 0m Parkash to the effect that Suraj Bhan had demanded a niwar bed from him. Learned counsel for the respondent argues that the Inquiry Officer was not entitled to refer to such extraneous matter. His doing so vitiated his judgment and, thereforee, invalidated the inquiry. A reading of the show cause notice makes it clear that the finding of the Inquiry Officer regarding the guilt of Suraj Bhan is based on the findings that Suraj Bhan accepted the fruit and the stationery without paying any price for the same. This was also the allegation on which the inquiry had been instituted. The reference to the niwar bed was only incidental as is clear from the language in which this reference is made. It cannot be said, thereforee, that the finding of guilt against Suraj Bhan arrived at by the Inquiry Officer would have been in any way different if this incidental reference to the evidence of Om Parkash regarding the alleged another piece of misconduct had not been made by the Inquiry Officer in the show cause notice. In State of Orissa v. Bidyabhushun Mohapatra : (1963)ILLJ239SC , the High Court was of the view that out of the four charges leveled against Bidyabhushan, two should be set aside and that it should be left to the Government to decide whether on the basis of the proved charges, the punishment of dismissal should be maintained or a lesser punishment should suffice. The Supreme Court reversed the decision of the High Court on the ground that if the dismissal could be supported on any finding as to substantial misdemeanour for which the punishment could lawfully be imposed, it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. This decision was followed by the Supreme Court in the State of Maha- rashtra v. Babulal Kriparam Takkamore : [1967]2SCR583 with the following observation :

'THEprinciple underlying these decisions appears lo be this. An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are nonexistent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant, can be sustained if the court is 'satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision.'

(18) We have no doubt that in the present case, the decision of the Inquiry Officer against Suraj Bhan was sustainable even apart from the incidental reference to the further evidence of the witness om Parkash. The finding of the Inquiry Officer and the show cause notice were not. thereforee, vitiated by the said incidental reference.

(19) Under Punjab Police Rule 16.02(1) dismissal shall be awarded only for the gravest acts of misconduct. Learned counsel for the respondent urged that the acceptance of fruit and stationery by Suraj Bhan was not such a grave act of misconduct as to merit dismissal. Firstly, this ground has not been pleaded by Suraj Bhan in his writ petition. Even if it is considered on merits, it is to be remembered that Suraj Bhan was a police officer. The nature of his office and functions is such that even a comparatively venial act of corruption on his part could be viewed with seriousness. For, the very purpose of the police organisation is to prevent corruption and to get it punished. The police like the Caeser's wife must, thereforee, be above suspicion. Further, the degree of gravity with which Suraj Bhan's conduct is to be viewed is essentially a matter for his departmental heads. If they thought that such an act of corruption on his part was grave enough to merit dismissal, it is not for this Court to offer its own opinion as to the gravity or otherwise of his misconduct. We are not prepared to say, thereforee, that the misconduct of Suraj Bhan was not covered by Punjab Police Rule 16.02(1).

(20) No other ground was urged by the learned counsel for the respondent in support of his contention that the departmental inquiry against Suraj Bhan had been vitiated by any other defect. We are of the view, thereforee, that the disciplinary inquiry was not vitiated by any of the above-mentioned reasons and that the order of dismissal passed against Suraj Bhan was valid. We, thereforee, set aside the order under appeal passed by the learned Single Judge and uphold the order of dismissal dated 29-4-1961 passed against Suraj Bhan. The appeal is allowed in the above terms but it is ordered that the parlies shall bear their own .costs throughout from the stage of the filing of the writ petition till now.


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