T.V.R. Tatachari and Rajindar Sachar, JJ.
(1) Respondent was an officiating sub-inspector. There was a complaint, of corruption against him and the S.P. held an enquiry and then passed an order of dismissal which was upheld in departmental appeal. He then filed civil suit claiming that the order was invalid for non compliance with Punjab Police Rules, Rules 16. 38 (1) and (2). Trial Court decreed the suit and the order was upheld in appeal. In R.S.A. the matter was referred to D.B. The D.B, found that there was non-compliance with Rule 16. 38 (1) which requires sanction of D.M. before investigation. Contention of the Government was that the D.M. had given his approval after the investigation and that was enough, and it relied upon Union of India v. Suraj Bhan LPA. 86-D./65 D./ 23-5-69 (F.B.) in which it was held that the said rule was not mandatory. Respondent relied upon Union of India Vs . Ram Kishan : AIR1971SC1402 , contending that it was held in it that the rule was mandatory. The Court did not think it necessary to decide this question as it took the' view that there was noncompliance with sub-rule (2). Para 18 onwards the judgment is:-
(2) Now, as regards the non-compliance with Rules 16. 38 (2) the - facts already given show as 'per the extract of the letter dated 18-8-1959 by the Superintendent of Police mentioned earlier that even though permission was sought from the District Magistrate to initiate departmental action, it was made clear that the question of launching criminal prosecution would be taken up after taking departmental action. Now reference to Rules 16. 38 (2) will show that when a complaint established a prima facie case, a Judicial prosecution shall normally follow, the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. No doubt in the sanction given by the District Magistrate permission was only given for talcing departmental action but it was not made clear whether the question of launching criminal prosecution was kept pending as had been suggested by the Superindent of Police or had been given up. It appears to us that this is also one of the infirmities in the, order of sanction because the District Magistrate when he gives sanction' under this Rule has got to make up his mind whether the matter is to be disposed of departmentally or by a judicial prosecution and cannot leave the matter in an uncertain state of affairs, without deciding which alternative to follow. The more serious infirmity in the order of sanction accorded under rule 16.38 (2) by the District Magistrate is absence of recording of any reason why a departmental action is being preferred. A reference to the order of sanction by the District Magistrate dated 31-8-1959 shows that no reasons have been recorded at all for taking departmental action. No doubt it is mentioned that the preliminary investigation has established the fact that the A.S.I. is guilty of gross misconduct which warrants the initiation of disciplinary proceedings, but the reasons that are to be recorded by the District Magistrate as required by Rule 16. 38 (2) are for not proceeding with judicial prosecution and for proceeding departmentally as held in Nand Nandan Sarup case (FB). In this connection we may refer to a decision by one of us (Tatachari J.) In N.N. Seth v. Delhi Administration etc. (C.W. 158-D of 1966) decided on 4.9.1970. There also the order giving sanction under Rule 16. 38 (2) was worded as follows :-
'I have gone through the enquiry report. and the facts revealed justify the inititation of departmental proceedings against Inspector N.N. Seth and Head Constable Iqbal Singh, permission for which under P.P.R. 16. 38 (2) is hereby accorded. The enquiry report of Anti-corruption Branch is returned herewith'
Dealing with the argument about non-compliance of Rule 16.38 (2) it was observed as under:-
'THEreasons which are required to be recorded under the Rule are obviously the reasons for. the decision to dispose of the matter departmentally instead of following the normal course of conducting a judicial prosecution. It is apparent that a judicial prosecution, as compared with a departmental enquiry, affords greater fairness to the delinquent police officers, and .hence, the. Rule expressly requires that normally a judicial prosecution should be conducted, and it is only as an exception to the said normal course that the Rule provides that the matter, shall be disposed of departmentally only if the District Magistrate, so orders for - reasons to be recorded. Thus, the absolute necessity of recording reasons for the departure from the normal course is apparent from the rule.'
ITwas consequently held that the departmental enquiry was invalid. We, thereforee, held that even if Rule 1638 (2) was directory there is total non-compliance with it as no reasons at all have been recorded by the District Magistarte for preferring departmental proceedings against the plaintiff. The result would be that the order of the District Magistrate being illegal, subsequent departmental actions and punishment inflicted on the respondent are without authority of law and would be liable to be quashed.
(3) The lower appellate court, has also held that principles of natural justice were violated and there were other infirmities (apart from the violation of Rule 16.38 (1) and (2) and on that ground also the dismissal order could not be sustained. We shall now deal with that aspect.
(4) The first ground is that while passing the impugned order the disciplinary authority has taken into account the past service record of the plaintiff without giving any opportunity to the plaintiff to explain it. It appears that the enquiry officer while holding that the charge was proved had also mentioned in his report Ex. P.12 that the service record of'the defaulter, Ravi Datt is good one and that lie has 39 commendation rewards with two minor punishments and one major punishment of reversion to detract from it, as reversion was necessitated on account of acceptance of illegal ' gratification. It was also suggested that this factum cannot but be considered significant in the context of the present case. In the show cause Ex. P.11 after noticing that the enquiry officer has given his findings and further that the disciplinary authority has gone through it and was of the view that the prosecution evidence stands unrebutted and the charge is proved it called upon the respondent to show cause why he should not be dismissed from service, It is, however, relevant to note that as no copy of the findings of the enquiry officer was sent along with the show cause, there was no indication in the show cause that the last service record of the plaintiff was intended to be taken into account, while imposing punishment. It is no doubt true that no reply was sent to this show cause by the respondent. But even if he had sent a reply to the show cause he could not have any Explanationn about his past service record, as the same was not mentioned in the show cause. Now when we refer to the order of dismissal Ex. P.13 we find that after giving a finding that the charge against the plaintiff is proved the discplinary authority went on to say in paras 15 and 16 as follows :
'15.I have carefully gone through the service record of the defaulter. The defaulter was severely censured and reverted to the rank of F.C.S. Grade by the then S. S. P. Delhi from 7. 8. 51 for accepting illegal gratification in case Fir No. 460/51 U/S 161 IPC: of Police Station Sadar Bazar. 16. Considering all the facts on record and also that the charge against him is of serious nature and is clearly established against him I have no alternative but to order his dismissal from police force w.e.f. today (6. 1. 1960) afternoon'
(5) It is thus quite obvious, thereforee, that the past service record of the respondent was taken into account. when imposing the punishment. The respondent was never told that his past service record would be .taken into consideration. The enquiry officer mentioned the commendation . certificates obtained by the respondent but they find no mention in the final order of dismissal. Show cause notice also had not given any indication that the past service record would be taken into account. In that view of the matter the observations of the Supreme Court in the State of Mysore. V. K. Manche Gowda : 4SCR540 where their lordships held that if the proposed punishment is also based on the past record, governmeat servant should .be given a reasonable opportunity to know that fact and meet the same, would be applicable. Mr. Mehra counsel for the appellant sought to urge that the past record was not main reason for proceedings against the respondent as he was being dismissed because the main charge had been established against him. That may be so but the fact nevertheless remains that for the purpose of quantum of punishment his previous record was taken into account and was- an influencing factor. This would constitute a serious infirmity in the impugned order of dismissal and we hold accordingly.
(6) The next ground which found favor with the lower appellate court was that a copy of the finding of the enquiry officer was not given to the respondent. It is a common case that copy of the findings of the enquiry officer was not sent along with the show cause. The show cause was sent to the plaintiff through A.S.I Narinder Singh but the same was refused by the plaintiff who was then in jail as he maintained . that he was outside the police jurisdiction. The second attempt was also made by the disciplinary authority to serve him with the show cause notice but again the same was refused. Ultimately show cause notice was sent and received by plaintiff who was in the Central Jail. It is admitted by the counsel for the respondent that the show cause ultimately did reach him. It is also not disputed that he never asked for a copy of the findings of the enquiry officer the mention of which was made in the copy of the show cause notice. It is also not disputed that no reply was given by the respondent to the show cause, Mr. Sehgal, however, sought to contend that even if the never asked for the enquiry report it was he duty of the disciplinary authority to send a copy of the findings of the Enquiry Officer because in the absence of the copy of the findings he was prejudiced in his defense. In our view the argument is mis-conceived. The right of the government servant extends to being given a reasonable opportunity to meet the charge against him. If the respondent had on the receipt of the show cause asked for a copy of the findings of the enquiry officer and the same had been refused we have no doubt that same would amount to denial of reasonable opportunity. But when in the present case the respondent never chose to ask for a copy of the findings of the enquiry officer and when there is no requirement of the rules that the authorities should on their own send a copy we cannot see. how any grievance can be made that the same was not supplied. In this connection a reference may be made to State of U.P. v. Om Parkash Gupta 1969 S.L.R. 890 where a similar argument was repelled by their lordships of the 'Supreme Court that that it was open to the Government servant to ask for a copy of the report when he was asked to show cause against the proposed punishment of dismissal and since he did not do so nor did he object to the notice calling upon him to show cause why he should not be dismissed, now on the ground that he had not been supplied with a copy of the report made by the enquiry officer, the grievance had no. substance.
(7) The next instance of violation of principles of natural justice held established by the lower appellate court is that the plaintiff was not given the copies of the previous statement of the witnesses recorded at the preliminary enquiry which were needed by him for the purpose of cross-examining them during the departmental enquiry. The plaintiff had applied on 4.10.1959 to the Enquiry Officer requesting him that he may be permitted to examine and take extracts of the documents and other material to enable him to cross-examine Pws for the purpose of the enquiry. On the back of this aplication we find that the plaintiff was allowed examination of documents but the statement of witnesses were not given to him. That this statement is correct is also borne out from the endorsement on it wherein it is stated that the copies of the statements of the PWs during the preliminary enquiry could not be supplied to the plaintiff according to the Rules. It is thus not in doubt that the copies of the previous statements of witnesses who were examined in the departmental enquiry were not supplied to the plaintiff. Rule. 16.24 (3) lays down that witnesses shall be examined in the presence of the accused who shall be given an opportunity to take note and cross-examine them. The right to cross-examine the witnesses who give evidence against him is a very valueable 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 inevitable would mean that the enquiry had not been held in accordance with rules of natural justice, vide State of Madhya Pradesh v. Chintaman Sadashiva Wishampayam A.I.R. 1961 S.C. 1623.
(8) In Jug Raj Singh V. Delhi Administration and others 1970 S.L.R. 400 which was also a case of police official governed by the Police Rules it was held by Deshpande J. that even apart from the relevant Rules the right of cross-examination is included in the minimum content of the rules of natual justice applicable to a disciplinary enquiry. Counsel for the appellant Mr. Mehra referred to rule 16.29 (4) and contended that the prior statment of the Witnesses were not required by the Rules to be given to the police servant. A reference to Rule 16.29 will show that it deals with a right ofappeal. The first part of sub-rule (4) of Rule 16.29 lays down that any person wishing to appeal against the order of dismissal of reduction etc. may apply for a copy of the complete record and or any portion thereof. The Rule then goes on to say that such copies shall not be given during the pendency of the original proceedings for the purpose of cross examination or the preparation of defense. In our view Rule 16.29 (4) has noting to do with the point at issue. As a matter of fact Rule 16.29 deals with a stage after the original order of punishment has been passed. All that this sub-rule (4) of Rule 16.29 means is that though the right to obtain a complete record is available to the police official after the original order has been passed this will not entitle him to also ask for the copies of the file/report during the pendency of the original proceedings, that is to say that if on the first day 2/3 witnesses have ben examined the police official cannot insist that he should .be given copies of their statements for the purpose of cross-examining the other witnesses who are to be examined on subsequent day. This rule deals with a situation about the Supply of copies during the course of the .enquiry and has no relevance to whether the copies of the statements recorded at preliminary enquiry should be given to the police officer or not for the purpose of cross-examining the witnesses when they are examined at the en- quiry. This rule does not, thereforee, in any way prohibit the supply of the prior statements of the witnesses which are needed,to exercise the effective right of cross-examination and is a content of the reasonable opportunity to which the police official has a constitutional right. As the statements of those witnesses were denied to the plaintiff there is no escape from the conclusion that the plaintiff was denied a reasonable opportunity and the order is liable to be struck down on this ground also, (G.C. Lal, Adv.)