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K.S. Hemrajsinhji Pravinsinhji Vs. Inspector General of Police Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 287 of 1960
Judge
Reported inAIR1961Guj63; (1961)GLR202
ActsConstitution of India - Article 311(2); Evidence Act
AppellantK.S. Hemrajsinhji Pravinsinhji
Respondentinspector General of Police Ahmedabad and anr.
Appellant Advocate Rajni Patel and; B.L. Kapadia and; J.L. Bhatt, Advs.
Respondent Advocate Adv. General and; B.R. Sompura, Asst. Govt. Pleader
DispositionPetition allowed
Cases ReferredIn Sasa Musa. Sugar Works (Private) Ltd. v. Shobrati Khan
Excerpt:
service - principle of natural justice - article 311 of constitution of india - person against whom disciplinary action is to be taken should be given reasonable opportunity to defend him - statement of witnesses must be recorded in presence of person against whom proceedings are going on - mere opportunity of cross examination is not sufficient to constitute reasonable opportunity - asking of reasonable opportunity is not necessary - it is duty of authority to provide reasonable opportunity to delinquent. - - every man is liable to make mistakes, but government should show it is big enough to overlook faults if it could be satisfied that it could get ioyal and devoted services of one of its servants'.4. the petitioner thereafter periodically wrote to the state government to.....bakshi, j.1. this is a petition under article 226 of the constitution of india to quash the order of dismissal from service passed against the petitioner by the inspector general of police, dated 24-1-1959 and confirmed by the state government on 15-2-1960 and to direct the respondents to reinstate the petitioner in service. the facts giving rise to this petition may be briefly stated:2. the petitioner was appointed a sub inspector in the bombay police force in 1951 and was posted in ahmedabad on 16-8-1953. he was charged with being in possession of liquor on the allegation that the bottles of liquor were found in an attache case on the platform of the ajmer railway station, which belonged to the petitioner or was under his control. the defence of the petitioner as that the attache case.....
Judgment:

Bakshi, J.

1. This is a petition under Article 226 of the Constitution of India to quash the order of dismissal from service passed against the petitioner by the Inspector General of Police, dated 24-1-1959 and confirmed by the State Government on 15-2-1960 and to direct the respondents to reinstate the petitioner in service. The facts giving rise to this petition may be briefly stated:

2. The petitioner was appointed a Sub Inspector in the Bombay Police Force in 1951 and was posted in Ahmedabad on 16-8-1953. He was charged with being in possession of liquor on the allegation that the bottles of liquor were found in an attache case on the platform of the Ajmer Railway Station, which belonged to the petitioner or was under his control. The defence of the petitioner as that the attache case neither belonged to him nor was under his control, and that these bottles elonged to one Mahendrasinh, who was working as his orderly. Both the petitioner and Mahendrasinh were tried before a Magistrate who convicted Mahendrasinh and acquitted the petitioner by an order dated 20-8-1953. Notwithstanding this order of acquittal, departmental proceedings were commenced against the petitioner and a charge was framed on 20-1-1954, charging him with grave misconduct in that on 14-8-1953, the petitioner bought a number of bottles of foreign liquor from some place in Ajmer and was found in possession of the same at the Ajmer Railway Station on 16-8-1953 intending to carry them to Ahmedabad. These proceedings were held before Mr. Nanavatty, the then Deputy Inspector General of Police, who summed up the evidence against the petitioner and held him guilty of the charge. As the charge against the petitioner was found defective, Government did not take fur-ther proceedings and a second charge was furnished to the petitioner on 7-5-1954, wherein another count was added to the effect that

'When questioned by the Excise Sub Inspectors B. M. Mehta and R. D. Baijal at the Railway Station at the time of seizure of bottles about the place of residence, you falsely replied to them that you were from the Central Police Training College, Abu, with the object of concealing your identity'.

It will be noticed that this was entirely a new count and not merely an amendment of the original charge. The inquiry with regard to the second charge was held by Mr. Ram Ayer, Deputy Inspector General of Police, who did not sum up the evidence himself but relied on Mr. Nanavaty's summing up. A show cause notice was issued on 24-9-1954, and thereafter an order of dismissal was passed on 13-12-1954. This order of dismissal was set aside by the State Government on the ground that a copy of the summing up was not supplied to the petitioner. Another show cause notice was issued on 26-7-1955 by Mr. Chudasama, Inspector General of Police, containing both the counts, viz. possession of liquor and making false statement about his identity. A copy of the summing up of Mr. Nanavatty was annexed to the show cause notice. After the petitioner had shown cause, an order of dismissal was passed by Mr. Chudasama on 16-9-1955. The petitioner's appeal to the State Government against the said order of dismissal was also rejected on 30-11-1955.

3. The petitioner then preferred an application under Article 226 of the Constitution of India to the High Court at Bombay, being Special Civil Application No. 135 of 1956, praying that the aforesaid order of dismissal dated 30-11-1955 be set aside. That petition wag heard by Chagla, C, J. and Dixit, J. on the 17th July 1956, who, while setting aside the order of dismissal, observed in the judgment that--

'Now, there are some rather curious and striking features about this case. Although Mr. Bam Iyer tried the petitioner on the second charge which as already pointed out in respect of one count was materially different from the first charge he gave no summing up. Not only he gave no summing up, but he gave no finding. Therefore when Mr. Chudasama furnished to the petitioner the copy of the summing up of Mr. Nanavatty, the petitioner did not know what the summing up was with regard to the second charge and not even what the finding was in respect of the second count. It Is difficult to understand how the petitioner could show cause against the punishment proposed to be inflicted by Mr. Chudasama with regard to both the counts of the charge when he was not told what the judgment of the inquiry officer was with regard to this second count and he was not even told what his finding with regard to the second count. Apart from all technicalities, what this court has consis-tenptly held is that a person against whom disciplinary inquiry is being held and who is liable to suffer the severe penalty of dismissal should be given a reasonable opportunity to defend himself, and we find it difficult to take the view that the petitioner was afforded this reasonable opportunity when he was asked to show cause in respect of both the charges when he did not know what the views of Mr. Ram Iyer were with regard to the second count nor did he know what Mr. Ram Iyer's finding was. In our opinion, it is sufficient to set aside the order of dismissal on this very narrow ground....

Mr. Patel wanted to argue other points also which according to him vitiate the order of dismissal, but as we have said earlier we are basing our decision solely on the ground that looking to the circumstances of this case reasonable opportunity was not afforded to the petitioner in showing cause to the notice served upon him by Mr. Chudasma. Mr. Fatel has also appealed on behalf of his client that Government should take a lenient view of what as alleged to have been done by him. Even on he assumption, although the Magistrate's finding is to the contrary, that the petitioner was guilty of being in possession of liquor, we cannot overlook his young age, his past record and his desire to serve the police force and the State. Those considerations weighed, in our opinion, and rightly weighed with Mr. Nanavatty. It is for the Government to consider whether it is worthwhile starting a third proceeding against the petitioner and whether Government should not overlook this one blemish in the otherwise completely worthy record. Every man is liable to make mistakes, but Government should show it is big enough to overlook faults if it could be satisfied that it could get ioyal and devoted services of one of its servants'.

4. The petitioner thereafter periodically wrote to the State Government to reinstate him. The petitioner was reinstated in service by an order dated 3-4-1958 and was served with a fresh show cause notice on 19-9-1958 by Mr. Chudasama, Inspector General of Police, calling upon him to show cause why the petitioner should not be dismissed from service. The said show cause notice contained the same two counts with regard to possession of liquor and making of a false statement as to identity. A copy of the summing up drawn by Mr. Nanavatly during the previous inquiry and also a copy of the summing up drawn by Mr. Naraniadas, who as a successor in office of Mr. Ram Ayer had conducted the proceedings in respect of the amended charge, were enclosed with the show cause notice. On 15th November 1958, the petitioner filed a reply to the show cause notice which inter alia slated that under Rule 560 of the Police Manual Volume, Part I, it was incumbent upon Mr. Ram Ayer to draw up the summing up of the proceedings before him, that as witnesses were not examined in the petitioner's presence he was deprived of reasonable opportunity to meet the charge. In that reply it was also pointed out that it was clear from the summing up drawn by Mr. Naraniyandas that Mr. Ram Ayer had summed up the evidence in the proceedings and submitted the papers to the Inspector General of Police. The petitioner further pointed out that the action of the Inspector General of Police amounted to a deliberate suppression of material to which the petitioner had a right of access and as such it was arbitrary and mala Me.

5. The Inspector General of Police passed an order of dismissal from service on 24th January 1959 rejecting the pleas raised by the petitioner. The petitioner preferred an appeal to the State Government which was rejected on 15th February 1960. The petitioner has, therefore, filed the present petition challenging this order of his dismissal from service.

6. Mr. Kapadia, learned Advocate of the petitioner, has mainly urged before us that the proceedings of inquiry against the petitioner were vitiated on account of non-observance of the rules of natural justice by the inquiring officers. He has stated before us that the witnesses who were examined during the inquiry were never examined in the petitioner's presence but their statements were taken at the back of the petitioner and in his absence. These witnesses, says Mr. Kapadia, were allowed to be cross-examined by the petitioner but their examination-in-chief was recorded in his absence and that since the statements of a witness in examination-in-chief and those contained in his cross-examination are an integrated whole having a cumulative effect, the petitioner cannot be said to have been afforded a reasonable opportunity of defence as the statements made by the witnesses before their cross-examination were taken in his absence. According to Mr. Kapadia, there is always in such cases enough scope for prejudice to the delinquent who could not have observed how the witnesses deposed, what questions, leading or otherwise, were asked, and what they said in reply. Mr. Kapadia has also relied on the observations made by Chagla, C. J. in State of Bombay v. Gajanan Mahadev reported in AIR 1954 Bom 351. At p. 355 of that report it has been observed that:

'If a Government servant comes to a Court and complains that his dismissal was wrongful and that reasonable opportunity was not given to him as required by the statute, it is for the State then to satisfy the Court that in fact reasonable opportunity was given to him. The requirement of the Government of India Act that reasonable opportunity should be given to the Government servant does not depend upon the Government servant asking for it. It is 3 statutory protection that is afforded to the servant and a statutory obligation cast upon the State and the State has got to discharge that obligation irrespective of whether the protection is claimed or not claimed by the servant.

If the Court holds that reasonable opportunity was not given, the order of dismissal must be set aside and the court cannot be influenced by the consideration that the dismissed servant did not ask for a reasonable opportunity.....

Now, it is in the light of this legal position that we have to consider the facts of this case, and the first rather startling fact which confronts us at the very threshold is that in the departmental inquiry held by Mr. Velloz, Rajmane, the only material witness in the case, was never examined. All that Mr. Velloz did was that he asked the plaintiff to cross-examine him. It is difficult to understand the efficacy of a cross-examination without there being an examination in chief. It is difficult to understand how the plaintiff can cross-examine Rajmane if he did not know what his evidence was and what he was deposing to.

The Advocate General says that domestic tribunals are not governed by the rules of procedure and the rules of evidence which govern a court of law. He may be right, but we sincerely hope that the State of Bombay which has always been very punctilious in these matters will not countenance a departmental inquiry in which action is proposed to be taken against a servant where only a witness is produced for being cross-examined by the servant without the servant being given an opportunity of hearing what evidence the witness is going to give.

Even assuming that a statement of such a witness is furnished to the Government servant, it is a sound rule that Courts of law follow and which even domestic tribunals should follow that all evidence must be given in the presence of an accused person and in the presence of a person against whom action is proposed to be taken. It is one thing to make a statement behind the back of a person; it is entirely a different thing to make a statement in front of the court or a domestic tribunal and in the presence of a person against whom you are going to make serious charges'.

To the same effect are the observations in A. R. S. Choudhury v. The Union of India, reported in AIR 1956 Cal 662:

'Where witnesses are called, their entire evidence must be taken in the presence of the delinquent who must be permitted to cross-examine all such witnesses. It is not permissible to examine witnesses in the absence of the delinquent or take ex parte statements and then ask the delinquent to cross-examine.....'

We also find similar observations at p. 540 in R. C. Verma v. R. D. Verma, AIR 1958 All 532, wherein Gajauan Mahadev's cast; of the Bombay High Court, AIR 1954 Bom 351 was followed.

7. The learned Advocate General, appearing on behalf of the State has argued before us that the procedure adopted by the inquiry officers is in accordance with the rules prescribed in the Police Manual applicable at the time when these witnesses were examined and ihat since the validity of the rule itself has not been challenged in the petition, the petitioner cannot legitimately base his challenge on the ground of violation of the principles or natural justice. It may be noted that Rule No. 545(8) enables the officer conducting the inquiry to

'recall all necessary witnesses in support of the charge and in the defaulter's presence record statements they may have to make. He should then give the defaulter an opportunity of cross-examining each witness after his statement in support of the charge is completed, any such cross-examination being recorded below the statement of the witness concerned.'

Now, these rules appear to be primarily intended for departmental use to serve as general instructions to the department, and it may he observed that any procedure indicated in a departmental yule which after the Constitution of India came into force, was continued to be followed in enquiry proceed-ings against a defaulter resulting in an order of dismissal from service would not be justifiable it it is found violative of principles of natural justice-and has operated to deprive a delinquent of a reasonable opportunity of hearing and defence. Fortunately the Government has issued a Circular dated 29th July 1957, to which our attention has been drawn, which reads as under:

'(12) The Officer conducting the enquiry should then call all necessary witnesses in support of the charge and in the defaulter's presence record statements they may have to make. He should then give the defaulter an opportunity of cross-examining each witness after his statement in support of the charge is completed, any such cross-examination being recorded below the statement of the witness con-erned.'

8. The learned Advocate General has also invited our attention to a decision repotted in AIR 1959 SC 1111, Phulbari Tea Estate v. Its Workmen. At p. 1113. it has been observed that:

'The defect in the conduct of the enquiry could have been cured if the company had produced the witnesses before the Tribunal and given an opportunity to Das to cross-examine them there. In Sasa Musa. Sugar Works (Private) Ltd. v. Shobrati Khan, C. As. Nos. 746 and 747 of 1957, D/- 4-4-1959: (AIR 1959 SC 923), we had occasion to point out that even where the employer did not hold an inquiry before applying under Sec. 33 of the Act for permission to dismiss an employee, he could mate good the defect by producing all relevant evidence-which would have been examined at the enquiry, before the tribunal in which case the tribunal would consider the evidence and decide whether permission should be granted or not. The same principle would apply in case of adjudication under Section 15 ol the Act, and if there was defect in the enquiry by the employer he could make good that defect by producing necessary evidence before the tribunal..' In that case, the point which we are considering in the present case, namely whether the right of having a reasonable opportunity of hearing would be adversely affected by following the procedure which/ has been followed here in this case was not before-their Lordships and no general principle has been considered or laid down in that case which would he applicable to the facts before us. What is reasonable opportunity has not been defined and no absolute standard can be laid down as to what will constitute 'reasonable opportunity' in cases where a quasi-judicial authority has to come to a finding adversely affecting the rights of the party to the proceedings against whom a charge has to be proved, and which in cases of dismissal from service of public servants is provided by Art. 311 of the Constitution. Each case will involve considerations peculiar to itself. It can, however, be said that the opportunity to show cause does not imply merely an opportunity to explain, but it must also be a reasonable opportunity and a substantial. one such as to enable the delinquent to meet the charges levelled against him and to know directly and in his own presence, especially when witnesses are examined to prove the charge, what is being substantially alleged against him by those witnesses. It is true that the provisions of the Indian Evidence Act are not strictly applicable to such enquiries but the real question will always remain to be considered when a cnarge is sought to be established through witnesses, not whether the delinquent could make an elfective cross-examination but whether in the circumstances of the case it can be said that the defaulter was given a reasonable and a iak opportunity to correct or controvert any relevant statements brought forward against him. There are no rules which can be of universal application to every kind of inquiry and the requirements of natural justice must depend on the circumstances of the case and the nature of the inquiry.

8a. In the present case, it has to be remembered that the proceedings against the petitioner were dealt with by more than one officer and the same officer has not dealt with the proceedings throughout. It is also to be borne in mind that a count not similar in nature to the original one was added at a subsequent stage. It also appears that there was no direct evidence in proof of the charge regarding possession of liquor bottles in the proceedings. One of the inquiry officers, Mr. Nanavatty, in his summing up has observed that:

'Now, it is for consideration to what extent S. I. Hemrajsinh was actually connected with the transaction. It is true that there is no direct evidence to prove that S. I. Hemrajsinh had any connection with these bottles. However, there are certain circumstances which would have to be considered in this matter.....Considering all the facts connected with the incident, one would be convinced morally that the possession was the Section I.'s.'

Mr. Ram Ayar, the officer who had the occasion to see the witnesses and observe their demeanour has not written any summing up. The summing up was written by his successor and in the proceedings which followed after they were set aside, no witnesses were examined by the successor in office whose summing up was based on the evidence ot witnesses recorded by his predecessor. In .the context of these facts, the procedure adopted in taking the statements of witnesses written down in the absence of the delinquent cannot be said to have afforded a fair opportunity to the petitioner, to meet the charges against him when especially the authority making the final summing up had not recorded either the statements taken by way of examination-In-chief or cross-examination and when no summing up of the officer who examined the witnesses was drawn and available to his successor. This procedure has undoubtedly prejudiced the petitioner and the dismissal order deserves to be set aside.

9. In the result, the order of dismissal from service passed against the petitioner on 24th January 1959 by the Inspector General of Police and the order dated 15th Feb. 1960 rejecting the petitioner's application to Government are set aside. Respondents to pay the costs of this petition to the petitioner.

S.T. Desai, C.J.

10. I have cerefully read and considered the judgment prepared by my learned brother. With his conclusion and reasons for the conclusion on the contention raised on behalf of the Petitioner I entirely concur. The question as to what constitutes reasonable opportunity of showing cause against an order of dismissal or removal from service, which opportunity a member of the civil service under the Union or a State is entitled to, is obviously one of considerable importance and consequence. It is for this reason that I intend to make some brief observations on what though now a well worn subject is yet one replete with impediments to orderly generalization. The broad principles have been formulated but questions of some difficulty do arise when the decision must turn on the special circumstances attending a matter and particularly where the whole gamut of the manner of holding the requisite inquiry shows as in the case before us some curious, striking and unusual features.

11. The principles of natural justice have basal relation to the subject and afford the criterion for assessing the validity of any action which requires that reasonable opportunity of showing cause against such action should he given to the civil servant. These principles, as the learned Master of the Rolls observed in England in a recent case, are easy to proclaim but their precise extent is not definable.

12. The requirements of natural justice are not such as can be reduced to any formula exclusive or inclusive which can have universal application to every kind of inquiry for a good deal may depend on the subject matter, the nature of the inquiry itself, the nature and constitution of the tribunal or authority which holds the inquiry and the rules under which the inquiry is held. No rules of uniform applicability can be expected and as I shall immediately recall what has been laid down by the Courts are only the basic principles to which those who hold any such inquiry must conform. Very broadly expressed the first principle is that the person accused should know with reasonable certainty the nature of the accusation against him. Secondly, he should be given a proper and fair opportunity of meeting that accusation and of stating his own case. Lastly the tribunal or authority must conduct the inquiry and reach its conclusion in good faith. The first two of these fall under the head of the doctrine of audi alteram partem.

13. Authorities abound and I do not intend to rehearse the breadth and ramifications of the second head of the doctrine of audi alteram partem mentioned above and shall confine myself to a brief consideration ot what constitutes a proper and fair opportunity of meeting the accusation against him and stating his own case which opportunity a person in the situation in which the petitioner was placed is entitled to claim by virtue of the Constitutional guarantee which is no more than an application of that doctrine. Speaking generally it is necessary to bear in mind that though the basal principle is the same the application of the principle must vary and the question whether a person has or has not been given a fair opprotunity to state his case in a departmental inquiry cannot be determined by insisting upon adherance to the procedure of a strictly judicial body.

14. What then are the requirements of natural justice as to the mode or manner of holding such departmental inquiry in the matter of examination of witnesses with which question alone we are here concerned? Now the argument on behalf of the petitioner is that he cannot be said to have been afforded a reasonable opportunity of defending himself because the statements of witnesses were taken in his absence and although he was allowed to cross-examine them there was no examination in chief of the witnesses and therefore the inquiry was vitiated.

15. Mr. Kapadia has leaned heavily on certain observations in decisions of the Bombay, Calcutta and Allahabad High Courts and particularly on certain observations of Chagla, C. J., with which observations learned Judges of the Calcutta and Allahabad High Courts expressed their agreement. The greatest reliance has been placed by counsel on the following remarks of Chagla, C. J. in AIR 1954 Bom 351, at p. 355:

'Even assuming that a statement of such a witness is furnished to the Government servant, it is a sound rule that Courts of law follow and which even domestic tribunals should follow that all evidence must be given in the presence of an accused person and in the presence of a person against whom action is proposed to be taken. It is one thing to make ,a statement behind the back of a person; it is entirely a different thing to make a statement in front of a Court or a domestic tribunal and in the presence of a person against whom you are going to make serious charges.'

If these observations and the like observations in the two other decisions mean that, in every case of a departmental inquiry, the fact that the delinquent had an opportunity to cross-examine witnesses is not enough and that unless there was examination-in-chief of the witnesses in his presence the inquiry would ipso facto be in violation of rules of natural justice, I am unable with greatest respect to agree with the same. But I am not prepared to read the observations of Chagla, C. J., as intended to state any such absolute proposition and in my opinion they do not require to be so read.

16. Indubitably it is a sound principle that in a judicial inquiry except in case of a formal witness there should be proper and regular examination of a witness by a party who produces him as a witness and after the witness has deposed to facts of his own knowledge the opposing party should have the opportunity of cross-examining the witness. Merely 'tendering for cross-examination' is a practice not readily countenanced by the Court and one which is discouraged and that for the obvious reason that it is apt to be unfair to the other party and this apart from the aspect that it leads to confusion. It certainly is not in furtherance of discovery of the truth. Even so I do not think that the principle should be rigidly applied to a departmental inquiry of the nature before us. The safer rule seems to me humbly to be that while the normal practice should be to examine witnesses and not merely to tender them for cross-examination an inquiry which does conform with the same should not be regarded as in contravention of rules of natural justice unless it is established that the procedure adopted has been unfair to the delinquent and resulted in prejudice to him. In the course of the arguments at the bar we put this to learned counsel on either side and heard arguments from that aspect.

17. The manner of holding the inquiry in case of the petitioner, its numerous stages, its vicissitudiness, progress and the whole gamut of it to be gathered from those averments in the petition which are not disputable and not disputed are, and some of them remain, for me very disturbing facts. So serious indeed do they collectively appear to me that having regard to the nature and content of the evidence sought to be relied upon against the petitioner, I do not think we would be justified in holding that the petitioner was not seriously prejudiced by the failure on the part of those in charge of the inquiry in the first instance to examine the witnesses and let them depose to facts to their own knowledge. I would have proceeded to discuss briefly some of the salient facts which have led me to this conclusion but I do not deem it necessary to rehearse what my brother has already discussed and commented upon in his judgment. I agree with him that reasonable opportunity to defend himself was not given to the petitioner and the petition must succeed.

18. Before we part with the matter we should mention an appeal on behalf of his client made by Mr. Kapadia that Government -- the State of Gujarat -- should in any case take a lenient view of the matter. We should like to join in the following observations made by Chagla, C. J., when the previous petition of the present petitioner in Special Civil Appln. No. 135 of 1956 (Bom) was decided by the Court. His Lordship observed:

'Mr. Patel has also appealed on behalf of bis client that Government should take a lenient view of what is alleged to have been done by him. Even on the assumption, although the Magistrate's finding is to the contrary, that the petitioner was guilty of being in possession of liquor, we cannot overlook his young age, his past record and his desire to serve the police force and the State. Those considerations weighed, in our opinion, and rightly weighed with Mr. Nanavatty. It is for the Government to consider whether it is worthwhile starting a third proceeding against the petitioner and whether 'Government should not overlook this one blemish in the Otherwise completely worthy record. Every man is liable to make mistakes, but Government should show it is big enough to overlook faults if it could be satisfied that it could get loyal and devoted services of one of its servants.'

19. I agree in the order proposed by my learned brother.


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