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Mansukhlal Tribhovan Joshi Vs. Nagarwala (J.D.), Inspector-general of Police, Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 795 of 1963
Judge
Reported in(1967)ILLJ454Guj
ActsBombay Police (Punishments and Appeals) Rules, 1966 - Rule 17; Civil Services (Classification, Control and Appeal) Rules - Rule 55
AppellantMansukhlal Tribhovan Joshi
RespondentNagarwala (J.D.), Inspector-general of Police, Gujarat and ors.
Cases ReferredState of Utter Pradesh v. Mohammad Nooh
Excerpt:
.....dismissed from service - challenged order of dismissal on ground of disqualification of respondent-enquiry officer to hold departmental enquiry - enquiry proceeding not fair - impugned order quashed - department can institute fresh enquiry against petitioner provided fresh enquiry not held by respondent. - - respondent 4 was entrusted, on 17 june, 1958 with a preliminary enquiry against petitioner in regard to an alleged love affair with one ushakumari. at the time of the hearing of the petition, however, sri chinoy learned advocate for petitioner, formulated only the following six submissions for the decision of this court :(1) that the preliminary enquiry was bad because a copy of the report dated 2 july, 1958 made by respondent 4 was not furnished to him at any time; (2) that the..........3 ordered that petitioner should be charge-sheeted in that regard and appointed respondent 4 as an enquiry officer. the charge against petitioner was that whilst he was stationed at limbdi police station and during the course of his official visit at the village siyani, he had developed intimacy with ushakumari in the month of march, 1957, which intimacy was continued by him after ushakumari's transfer to limbdi and subsequently to chowki and that, in the course of that relationship, petitioner had made false promises of marriage to her and that, as a result thereof, ushakumari had become enceinte and pregnancy was running in the eighth month. a copy of the charge was served on petitioner which contained an endorsement below it addressed to respondent 4. that endorsement stated that in.....
Judgment:

Miabhoy, C.J.

1. Petitioner, Mansukhlal Tribhovan Joshi, has filed this petition, challenging certain orders by which he was dismissed from police service. Petitioner prays for a declaration that the enquiry proceedings preceding his dismissal were illegal, for setting aside the impugned orders and for an order of reinstatement into police service.

2. Petitioner was, at the relevant time, an unarmed head constable. Respondent 4, Jethva, was, at the relevant time, Sub-divisional Police Officer, Surendranagar District. Respondent 3 was the District Superintendent of Police at the same place. Respondent 2 was the Deputy Inspector. General of Police, Rajkot Range, and respondent 1 was the Inspector-General of Police. Respondent 4 was entrusted, on 17 June, 1958 with a preliminary enquiry against petitioner in regard to an alleged love affair with one Ushakumari. Respondent 4 made his report on 2 July, 1958, whereupon respondent 3 ordered that petitioner should be charge-sheeted in that regard and appointed respondent 4 as an enquiry officer. The charge against petitioner was that whilst he was stationed at Limbdi police station and during the course of his official visit at the village Siyani, he had developed intimacy with Ushakumari in the month of March, 1957, which intimacy was continued by him after Ushakumari's transfer to Limbdi and subsequently to Chowki and that, in the course of that relationship, petitioner had made false promises of marriage to her and that, as a result thereof, Ushakumari had become enceinte and pregnancy was running in the eighth month. A copy of the charge was served on petitioner which contained an endorsement below it addressed to respondent 4. That endorsement stated that in all, eight documents were sent by respondent 3 to respondent 4 and that, these documents supported the charge. Amongst the documents so stated were a statement of petitioner dated 27 June, 1958, purporting to be recorded by respondent 4 and a report dated 2 July, 1958 made by same respondent. After petitioner had filed his written statement. The enquiry was begun in the course of which, two witnesses were examined. However thereafter, petitioner filed an application to the higher authority for the transfer of the enquiry to another officer on the ground that the conduct exhibited by respondent 4 in the course of the enquiry was such that petitioner felt that justice would not be done to him petitioner had asked respondent 4 to stay the proceedings, which request was not granted. Petitioner thereupon, absented himself from the proceedings. Thereupon, respondent 4 proceeded with the enquiry ex parte and submitted an ex parte report to respondent 3. In the meantime, another charge was enquired into against petitioner, in which proceeding, ultimately, petitioner was reduced from the rank of a head constable to that of an ordinary constable. After the proceedings in this second charge terminated, respondent 3 issue a notice against petitioner stating that he accepted the finding recorded by respondent 4 in the matter of Ushakumari and proposed dismissal of petitioner from service. This was done on 6 November, 1958. Petitioner replied to the show-cause notice and stated the circumstances in which he had absented himself from the enquiry proceedings. Thereupon respondent 3 set aside the enquiry proceedings sometime in March, 1959 and directed respondent 4 to proceed with the enquiry from the stage where it was before the ex parte proceeding was undertaken. Thereafter, four witnesses were examined before respondent 4 and that respondent submitted his report on 10 June, 1959. Respondent 3 issues a notice in which he stated that he accepted the finding of respondent 4 that petitioner was guilty of the charge and intended to dismiss petitioner from service. By that notice, respondent 3 called upon petitioner to show cause why he should not be dismissed. Petitioner showed cause, but, on 30 September, 1959, respondent 3 passed an order of dismissal. Petitioner preferred an appeal to the deputy Inspector-General, Rajkot Range, which was disposed of by respondent 2 on 26 September, 1962. The appeal was dismissed by respondent 2. Petitioner thereafter, preferred an application in revision to respondent 1 under rule 17 of the Bombay Police (Punishments and Appeals) Rules, 1966. That revision application was rejected on 8 April, 1963. Thereafter, petitioner presented the present petition.

3. Petitioner has taken up a number of grounds in his memo of petition for challenging the original order of dismissal and the appellate and revisional orders against him. At the time of the hearing of the petition, however, Sri Chinoy learned advocate for petitioner, formulated only the following six submissions for the decision of this Court :

(1) that the preliminary enquiry was bad because a copy of the report dated 2 July, 1958 made by respondent 4 was not furnished to him at any time;

(2) that the departmental enquiry was bad because a copy of the application dated 4 June, 1958 made by Ushakumari was not furnished to him, although that application formed the basis of the preliminary enquiry preceding the departmental enquiry;

(3) that the departmental enquiry was bad because copies of nineteen love letters alleged to have been written by petitioner to Ushakumari were not supplied to him. According to petitioner, he gas only shown a sealed cover in the course of the enquiry purporting to contain the love letters and that, the letters were not actually shown nor copies thereof supplied to him;

(4) that the enquiry officer was disqualified to hold the departmental enquiry against him because that officer had conducted the preliminary enquiry against him and had made the report, on the basis of which the departmental enquiry was ordered and on which report reliance was placed in support of the charge;

(5) that, though petitioner had requested the enquiry officer in his written statement to refer to his patrol book to show that he had visited Siyani only once in the course of his official duty, which reference would negative that part of the charge which stated that he had visited that village several times, the enquiry officer did not refer to his patrol book at all and that, therefore, the enquiry was also vitiated; and

(6) that the enquiry was bad because a statement alleged to have been made by petitioner to respondent 4 and which statement was challenged by him on the ground that it had no been correctly taken down, was made use of by respondent 4 as a piece of evidence on the basis that the said statement had been correctly taken down and that, the same use was made of that statement by the appellate authority.

In our judgment, it will be convenient to deal with submissions (1), (2) and (3) together, as they are interconnected, and submissions (4) and (6) also together for the same reason. Therefore, we have to proceed to first consider the correctness of submissions (1), (2) and (3), then the correctness of submissions (4) and (6) and finally, the correctness of submission (5).

4. We have already mentioned that, in the copy of the charge supplied to petitioner, there is an endorsement made to respondent 4 in which eight documents have been mentioned as documents which supported the charge and that those documents included the statement of petitioner dated 27 June, 1958 and the report dated 2 July, 1958. In the same endorsement, there is reference to also nineteen letters written by petitioner in the name of Manhar or Mansur Ushakumari which letters are stated to have been sent to respondent 4 in a sealed cover. There is no doubt whatsoever that, the department intended to rely upon these three sets of documents in proof of the charge levelled against petitioner. From the orders passed by the relevant authorities, it is quite clear that, the letters aforesaid were alleged to have been written by petitioner, that they were alleged to be love letters and that, petitioner was alleged to have admitted having written those letters in his statement dated 27 June, 1958 recorder by respondent 4. We have not before us the full contents of the report dated 2 July, 1958. But, from the endorsement aforesaid, there is no doubt that, the department relied upon the aforesaid report also for proving the charge. The contention of Sri Chinoy is that, on the grounds presently to be mentioned, it was the duty of respondent 4 to supply to petitioner copies of the aforesaid three sets of documents. We may mention that, it is not the case of Sri Chinoy that those three sets of document were necessary either for the cross examination of any of the witnesses or for the purposes of petitioner's defence, much less is it the case of Sri Chinoy that the copies of the aforesaid documents were applied for for the aforesaid purposes and denied to petitioner. There is also no averment in the petition that the copies of the aforesaid sets of documents were ever asked for by petitioner for any purpose whatsoever and that, the same were denied, Sri Chinoy, however, stated that, the copies of the document were orally applied for and not given. There is no averment to that effect either. Therefore, in the absence of any averment to the effect that the copies of the aforesaid documents had been applied for and denied, it is not possible to deal with the case of petitioner on the footing that such copies were applied for and refused to petitioner. On the contrary, Imdad Ali, the successor-in-office of respondent 1, in his affidavit-in-reply, has distinctly stated that petitioner had admitted on 29 April, 1959 in the course of the enquiry proceedings that he had received copies of all papers and that, he did not require any more papers. In another part of the affidavit, the same officer states that petitioner had been given copies of all relevant papers. However, as those parts of the affidavit-in-reply do not clearly state that the copies of the aforesaid three sets of documents had been given, the arguments in our Court tuned on the footing that no such copies had been given. Now, having regard to the admitted position that, the aforesaid copies had not been applied for, either for the purpose of cross-examination or for the purpose of defence, the argument turned on the footing that it was the positive duty of respondent 4 to supply petitioner with the copies of the aforesaid three sets of documents and that, the violation of this duty amounted to a breach of a service rule, a rule published in the Police Manual, and the rule of natural justice. Sri Chinoy's contention is that, inasmuch as the aforesaid three sets of documents formed the basis on which the charge was framed, or were materials on which the department intended to rely for the establishment of the charge, the aforesaid rules require that copies thereof should be supplied and that, the non-supply of the copies amounted to a violation of the aforesaid rules and the enquiry must be held to have been vitiated on that particular account. The service rule, on which Sri Chinoy relies, is rule 55 of the Civil Services (Classification, Control and Appeal) Rules, which has been printed in Appendix I of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules. For the purposes of the present petition, we propose to make two assumptions, firstly, that rule 55 is a statutory rule and secondly, that, that rule applies to the members of the police force. It is on these two assumptions that we proceed to discuss the matter. Rule 55 inter alia states that,

'the grounds on which it is proposed to take departmental action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which, it is proposed, to take into consideration in passing orders in the case.'

5. Sri Chinoy's contention is that, that part of this rule which directs the officer concerned to communicate 'other circumstances' casts a duty upon that officer to supply copies of the documents on which a charge is based. We are unable to read the rule in that way. A circumstance is not the same thing as a document, much less a copy of a document. In our judgment, the circumstance referred to in the aforesaid rule is analogous to the grounds of charges, or the statements of allegations. The aforesaid three sets of documents can, by no stretch of imagination, be regarded as, in themselves, circumstances on which the charge was based. The documents, at the most, constitute evidence in the case, on the basis of which the charge was intended to be proved. Therefore, whereas there may be a duty on the part of the enquiry officer to communicate to the delinquent the existence of documents, on the basis of which reliance was sought to be placed or to disclose the nature thereof at the most; it cannot be stated that, the aforesaid part of the rule casts a duty to make copies of those documents and to supply those copies to the delinquent. Under the circumstances, we are not impressed by the argument that, in the present case, there was a breach of rule 55. Then, Sri Chinoy relies upon Sub-para. (2) of Para. 448 of the Bombay Police Manual, Vol. I. The first part of that sub-paragraph is on similar lines as a part of rule 55 aforesaid, reference to which has already been made in this judgment. Then Sub-para. (2) proceeds to state as follows :

'Every charge and all other documents in evidence against the delinquent must also be fully explained to him and he should be given or allowed to take copies, if he wishes to assist him in defence.'

6. It is not quite clear from the aforesaid manual as to whether, this part of Sub-para. (2) has or has not any statutory force. Nor is it quite clear from the manual as to what the effect of a breach of this particular part of Sub-para. (2) would be. But, even assuming that, a breach of the aforesaid Sub-para. (2) would have the serious consequence of vitiating an enquiry proceeding, we have no doubt whatever that, that sub-paragraph cannot apply in terms to the facts of the present case. There is no complaint that, the documents tendered in evidence were not fully explained to petitioner. Petitioner has nowhere stated in his petition that, only a sealed cover containing the letters was shown to him and the contents of those letters were not brought to his notice. But, in so far as petitioner contends that, there was a duty on the part of the enquiry officer to supply him with copies of the aforesaid documents, petitioner's contention is not supported by the aforesaid part of Sub-para. (2). Sub-paragraph (2) clearly contemplates a demand for copies and, on the facts of the present case, there is no doubt whatsoever that, we cannot proceed on the basis that a demand was made and refused. In terms, Sub-para. (3) states that copies should be supplied or allowed to be taken

'if he (the delinquent) wishes to assist [(sic) himself] in defence.'

7. Therefore, on the facts of the present case, it is impossible to hold that there was a breach of Sub-para. (2) of Para. 448 aforesaid. Then we come to the principle of natural justice. The question for consideration is whether the rule of natural justice demands that, not merely the charge or the allegations on which the charge is based or other circumstances which would give notice to petitioner as to what exactly is the charge which he has got to meet with, should be supplied in precise and understandable terms, but, that, that rule of natural justice goes one step further and demands that, the enquiry officer must make copies of the documents on which reliance is going to be placed in proof of the charge and must, of him own accord, unasked for, supply those copies to the delinquent. Now, it may be that, in some cases, on their own facts, the principle of natural justice might require that a copy of a document should have been furnished to the delinquent on the basis that, without the furnishing of such a copy, the delinquent cannot legitimately and properly defend himself. In India, the question has got to be seen from the point of view of the reasonable opportunity which Art. 311 demands every public servant should be afforded before action as mentioned in the article is taken against him and, it may be that, in a given set of circumstances the Court may come to the conclusion that, that demand of that reasonable opportunity is not satisfied by non-supply of a copy of a given document. But, we are not prepared to agree with the broad submission that, in every case of a departmental enquiry, the non-supply of a copy amounts to a denial of reasonable opportunity. In our judgments, no facts or circumstances have been brought out by petitioner in the petition, or in the course of the arguments by Sri Chinoy, which would show to us that there was a duty on the part of the enquiry officer to supply petitioner with copies of the aforesaid sets of documents and that, without them, the petitioner could not have defended himself properly and squarely. On the contrary, from those parts of the affidavit-in-reply which Sri Imdad Ali has made, it appears that petitioner was given a reasonable opportunity of having access to all documents and was given copies of such of the documents as he required. Not only this, but, petitioner specifically stated, as mentioned in the affidavit, that he did not want any other paper. Having regard to these facts, in our judgment, it cannot be said that the non-supply supply of the aforesaid sets of documents amounted to a breach of the rule of natural justice, or a breach of a reasonable opportunity which the Constitution grants to petitioner. Therefore, in our judgment, the first three submissions must be rejected.

8. That takes us to submissions (4) and (6). The gravamen of Sri Chinoy is that having regard to the circumstances of the present case, respondent 4 was so situated with the lis that he could not have remained indifferent to the result of the enquiry, so that, he had such a bias in the matter to be enquired into that reasonably, it cannot be held that he will do even-handed and impartial justice in regard to the dispute between petitioner and the department. The ground which is stated in the petition is to be found in Para. 20 thereof. Petitioner therein contends that the enquiry officer.

'should be a person with an open mind and not one who is either biased against the person against whom action is sought to be taken or one who has prejudged issue.'

9. The petition then proceeds to state as follows :

'Bias is relevant not only in the punishing authority but also in the enquiry officer. Even where the enquiry officer is a different person from the punishing authority the appointment of an officer who is biased against the charged officer is a clear denial of reasonable opportunity.'

10. In support of the aforesaid propositions, Sri Chinoy places reliance upon the case in Dr. K. Subba Rao v. State of Hyderabad (now Andhra Pradesh) [1958 - I L.L.J. 206]. In that case, at p. 211, the learned Judges, after pointing out that the rule of natural justice requires that the enquiry officer should be as much unbiased as the punishing authority, observe as follows :

'But it is a fundamental principle of natural justice that the officer selected to make an enquiry should be a person with an open mind and not one who is either biased against the person against whom action is sought to be taken or one who has prejudged the issue.'

11. Thereafter, the learned Judges quote an extract from the judgment delivered by Sinha, J., in Choudhari (A. R. S.) v. Union of India [1957 - I L.L.J. 494], with these general principles Sri Sompura does not quarrel, and rightly. But, what Sri Sompura disputes is the board proposition for which Sri Chinoy contends in the present case. Sri Chinoy's contention is that an officer who has conducted a preliminary enquiry which leads to the framing of a charge, is per se disqualified to be an adjudicator in a consequent departmental enquiry. He contends that the fact that the officer conducted the preliminary enquiry which led to the framing of the charge itself disqualifies that officer from being an adjudicator. In our judgment, there is considerable force in the argument of Sri Sompura that, such a wide proposition ought not to be accepted as a correct statement of the law. A distinction must be made between personal bias, in the sense that an officer is personally so situated with reference to a dispute he cannot bring to bear upon the subject of the enquiry that independence of mind and impartiality which one associates with an adjudicator, and an official connexion with a dispute at anterior stage which officers may have upon a matter in the discharge of his official duties. In our judgment, it cannot be said that, in all cases where an officer has dealt with a matter at an anterior stage, he becomes disqualified to deal with that matter at a subsequent stage on the basis of the principle of bias. Whether he should be so considered to have been biased would depend upon the facts and circumstances of each case. Therefore, in our judgment, the facts and circumstances of this case must be looked into before holding that respondent 4 was disqualified to conduct the departmental enquiry. Now, the first circumstances on which Sri Chinoy relies is the fact that respondent 4 made a report and that that report was made the basis of the charge or, at least, reliance was sought to be placed upon that report in proof of the charge. As we have already indicated, we have no idea as to what the contents of the report were. It is true that some allegations were made by petitioner against respondent 4 as regards the conduct of his departmental enquiry. But, we are not considering the question as to whether the conduct which respondent 4 had exhibited in the conduct of the departmental enquiry had disqualified him from acting as an adjudicator. In so far as the gravamen is based on the submission of the report, in our judgment, the broad proposition that, when an officer has made a report and that report is made the basis of a charge the officer should be held to be disqualified, ought not to be accepted without demur. In addition to that fact, some connexion must be established between the report and the conduct of the departmental enquiry, which would bring the officer within the mischief of the principle of bias, and we do not find any circumstance or fact mentioned in the petition or elicited in the course of the arguments which would show to us that respondent 4 was so situated with reference to the lis that he should be held to be disqualified. Not only on the plane of quasi-judicial enquiries, but even on the plane of judicial enquiries, we do find officers dealing with the same subject-matter even though they had something to do with that enquiry on previous occasions and in which, in the discharge of their official duties, they happen to have expressed an opinion one way or the other on the merits of the case. But, in our judgment, the fact that the report of respondent 4 was itself made as one of the pieces of evidence on the basis of which the charge was sought to be proved, should make the difference. In that case, respondent 4 would not remain a disinterested officer and may not be expected to hold the scales even or keep an independent and open mind. But, we do not wish to express any final opinion on the subject because, in our judgment, submission (6) of Sri Chinoy is a very valid submission, on the basis of which, it can be stated with confidence that respondent 4 had brought himself within the mischief of the rule of bias. In Para. 13 (d), petitioner has stated that, in his written statement to the show-cause notice, he had stated that the statement of petitioner taken by respondent 4 should not be used as evidence in the course of the departmental enquiry. Petitioner stated in clear terms that that statement

'was not true and correct and certain facts were added behind the back of petitioner by respondent 4.'

12. There is no denial of this particular statement in the affidavit-in-reply. Therefore, we can safely proceed on the basis that, in the explanation against the show-cause notice, the aforesaid statements were made. In Para. 13, Clause (4), Sri Imdad Ali has denied the factual parts of the aforesaid allegation on the merits. But, there is no denial of the fact that such a statement was made in the written statement filed against the show-cause notice. In the summing up of the enquiry officer, he has stated that the delinquent in his statement dated 27 June, 1958 before him had admitted to have written all the love letters. The reference is to that part of the statement of petitioner in the statement dated 27 June, 1958 wherein he admitted that the letters were written by him. A perusal of the order of the appellate authority, respondent 2, shows that he was made the following observations on the aforesaid point :

'As an afterthought the appellant tries to show in his appeal that his preliminary statement was falsely taken by the S.D.P.O. This cannot be accepted, because in the first place the appellant is an educated person and signed his statement after reading it out, and there is no evidence to show that anything was added in his statement after he puts his signature is the statement.'

13. It is quite clear that the defence of petitioner cannot be rejected on this letter grounds unless respondent 4 is examined as a witness. If he is to be examined as a witness, then, the enquiry held by respondent 4 would at once fall within the mischief of the ratio laid down by their lordships of the Supreme Court in State of Utter Pradesh v. Mohammad Nooh [A.I.R. 1958 S.C. 86]. Having regard to the fact that love letters play an important put in the determination of the charge against petitioner, that, apart from the evidence given by the interested witness Ushakumari, the only other evidence on which the department intended to rely, and has relied, in the aforesaid statement of petitioner dated 27 June, 1958, in which he is alleged to have admitted to have written the aforesaid letters and, having regard to the fact that a proper and an impartial conclusion on the latter aspect of the matter cannot be reached unless the circumstances in which that statement was recorded are fully brought out on the record of the enquiry, in our judgment, respondent 4 must be held to have been disqualified to hold the present enquiry. In that view of the matter, in our judgment, on the basis of submission (6), the rule deserves to be made absolute.

14. Submission (5) may be shortly disposed of. In Para. 13(a) of the petition, petitioner states that he had stated in his written statement to the show-cause notice that he had gone to Siyani village only once for the purposes of investigation and that, thereafter, he had never gone to that village and that those facts might be got verified from his patrol book. The gravamen of petitioner is that the patrol book was never sent for and looked into. However, Sri Imdad Ali, in his affidavit, has denied the aforesaid facts in that he has said that, petitioner had not made any reference to the effect aforesaid and that he had not produced his patrol book. Even assuming that the patrol book could not be expected to be produced by petitioner, as the same must have been submitted to the department, the averment of Sri Imdad Ali that petitioner had not made any reference to the aforesaid effect in his written statement remains uncontroverted. The whole of record was placed by Sri Sompura at the disposal of Sri Chinoy and Sri Chinoy was unable to point out to us any averment in the written statement of petitioner stating that he had asked for his patrol book to be referred to. Under the circumstances, in our judgment, submission (5) must be rejected.

15. Therefore, on the basis of a part of submission (6) we propose to make the rule absolute with costs. We direct that a writ of certiorari should go in the present matter, that the three impugned orders be quashed and set aside and that a declaration should issue that petitioner still continues to be a member of the police force. However, we make it clear that, this will not prejudice the right of the department to institute a fresh enquiry or to proceed further with the enquiry from the proper stage, provided the fresh enquiry is not held by respondent 4.

16. Rule absolute to the extent mentioned above with costs.


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