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Hasan Lal Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 2012 of 1971
Judge
Reported in1975(8)WLN8
AppellantHasan Lal
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredState of Madhya Pradesh v. C.S. Waishampayan
Excerpt:
.....to dispose of this writ petition, namely that the order of enhancement was passed by the chairman board of revenue, in complete disregard of the principles of natural justice and was, consequently, bad in law. in his reply to the aforesaid notice of enhancement, the petitioner clearly stated that the statement of gaurishankar was not recorded in his presence nor he was allowed to cross-examine gaurishankar and as such, his alleged statement could not be relied upon for imposing enhanced penalty upon the petitioner, yet this aspect of the matter was not examined at all either by the chairman of the board of revenue while passing the final order enhancing the punishment awarded to the petitioner or by the state government while rejecting the appeal of the petitioner as also his review..........19, 1964. the collector bhilwara appointed shri d.c. sharma, city magistrate, bhilwara, as the enquiry officer, in the case of the petitioner. it may be mentioned here what similar charges in respect of the very same payments were also brought against one kalulal, who was then the revenue accountant at that place and shri fateh singh manav, sub divisional officer, bhilwara, was appointed as the enquiry officer to inquire into the charges levelled against kalulal shri d.c. sharma, city magistrate, bhilwara, who was the enquiry officer, so far as the petitioner was concerned, in his enquiry report dated april 21, 1964 found charge no. 1 partially and charge no. 2 fully proved against the petitioner white charges nos. 3 and 4 were found to be not established against him. thereafter, the.....
Judgment:

D.P. Gupta, J.

1. This is a writ petition under Article 226 of the Constitution praying that a writ of certiorari may be issued quashing the show-cause notice dated December 18, 1966 and the order dated February 16, 1966, passed by the Board of Revenue, Rajasthan, Ajmer, dismissing the petitioner from Government service and subsequent orders of the State Government dated April 15, 1967 and June 29, 1970 dismissing the petitioner's appeal and review application respectively.

2. In the year 1963, the petitioner was employed as a Nazir cum Accounts Clerk in Tehsil Jahajpur, District Bhilwara. On July 9, 1963, the Sector, Bhilwara, who was admittedly the Disciplinary Authority so far as the petitioner is concerned, issued a charge sheet to the petitioner along with a statement of allegations, wherein the petitioner was alleged to have made double payments/bogus payments and improper and illegal payments in respect of pre-April 1950 revenue deposits to certain Jagirdars and Mafidars of Tehsil Sahada, District Bhilwara. The petitioner submitted his written statement of defence on February 19, 1964. The Collector Bhilwara appointed Shri D.C. Sharma, City Magistrate, Bhilwara, as the Enquiry Officer, in the case of the petitioner. It may be mentioned here what similar charges in respect of the very same payments were also brought against one Kalulal, who was then the Revenue Accountant at that place and Shri Fateh Singh Manav, Sub Divisional Officer, Bhilwara, was appointed as the Enquiry Officer to inquire into the charges levelled against Kalulal Shri D.C. Sharma, City Magistrate, Bhilwara, who was the Enquiry Officer, so far as the petitioner was concerned, in his enquiry report dated April 21, 1964 found charge No. 1 partially and charge No. 2 fully proved against the petitioner white charges Nos. 3 and 4 were found to be not established against him. Thereafter, the Collector, Bhilwara. considered the report of the Enquiry Officer and provisionally decided that the penalty of dismissal from service be imposed upon the petitioner and issued a show cause notice to him on January 14, 1965, giving him an opportunity to submit his representation in respect of the proposed punishment. After considering the explanation submitted by the petitioner, the Disciplinary Authority, namely the Collector, Bhilwara, agreed with the findings at rived at by the Enquiry Officer and held it at the petitioner was grossly negligent in the performance of his duties. However, the Collector was of the opinion that severe punishment was not called for against the petitioner in view of his past good record and long service and by his order dated June 30, 1965, he held that the ends of justice would be met if three grade increments were withheld with cumulative effect, in the case of the petitioner. The report of Shri Manav, Sub-Divisional Officer, Bhilwara, in respect of the enquiry conducted by him against Kalulal was also considered by the Collector, Bhilwara, at the same time, along with the case of the petitioner and by the same order dated June 30, 1965, the director awarded similar punishment to Kalulal. It appears that the petitioner was apparently satisfied as he did not prefer any appeal against the aforesaid cider passed by the Collector, 8hilwara. However, the Chairman of the Revenue Board, invoking the powers under Rule 32 of the Rajasthan Civil Services (Classification, Control and Appeal Rules, 1958 (hereinafter called the Rules') gave a notice to the petitioner on December 18, 1965 to show cause why the penalty imposed upon him by the Collector, Bhilwara, be not enhanced and the penalty of dismissal from service be not imposed upon him I will have occasion to refer to this notice of enhancement a little later. The petitioner thereupon submitted his explanation on January 3, 1966 and the same was considered by the Chairman of the Board of Revenue, who thought that it was unsatisfactory and accordingly, the petitioner vas dismissed from Government service with immediate effect by the order of the Chairman, Board of Revenue dated February 16, 1966. A similar notice of enhancement was served upon Kalulal and by the same order of the Chairman, Beard of Revenue dated February 16, 1966, he was also dismissed from Government service Thereupon, the petitioner filed an appeal against the order of the Chairman, Board of Revenue to the State Government which was dismissed by the order dated April 15, 1967, as the State Government agreed with the opinion of the Board of Revenue and the Public Service Commission. A review application by the petitioner was dismissed by the State Government on June 29, 1970 on the ground that it was not maintainable. In these circumstances, the petitioner has filed the present petition.

3. A number of grounds have been taken by the learned Counsel for the petitioner challenging the validity of the notice of enhancement of penalty and the order of dismissal of the petitioner. However, it is not necessary for me to consider all the grounds urged by learned Counsel as only one of them is sufficient to dispose of this writ petition, namely that the order of enhancement was passed by the Chairman Board of Revenue, in complete disregard of the principles of natural justice and was, consequently, bad in law. The contention of the learned Counsel for the petitioner in this respect is that the Chairman of the Board of Revenue, while disagreeing with the order passed by the Disciplinary Authority, namely the Collector, Bhilwara, largely relied upon the evidence of Gaurishankar as appears from the following passage in the notice of enhancement (Ex.8) dated December 18, 1905:

The Chairman, Board of Revenue for Rajasthan, Ajmer (Appellate Authority in your case) has carefully gone through the final orders passed by the learned Collector Bhilwara and the relevant records of the case. He has, disagreed with the argument put forth by the said Collector that the testimony tendered by Shri Gaurishankar is unworthy of any credence. The learned Chairman has, on the contrary, given due weight to the version of Shri Gaurishankar who has rightly conceded that he connived with you in claiming fraudulently the refunds....

It thus appears that the Chairman of the Board of Revenue, who examined the matter as the Appellate Authority, accepted the evidence of Gaurishankar, who according to him, was not considered worthy of any credence by the Collector. In his reply to the aforesaid notice of enhancement, the petitioner clearly stated that the statement of Gaurishankar was not recorded in his presence nor he was allowed to cross-examine Gaurishankar and as such, his alleged statement could not be relied upon for imposing enhanced penalty upon the petitioner, yet this aspect of the matter was not examined at all either by the Chairman of the Board of Revenue while passing the final order enhancing the punishment awarded to the petitioner or by the State Government while rejecting the appeal of the petitioner as also his review application. Learned Counsel for the petitioner contends that Gaurishankar was never examined as a witness during the course of the disciplinary enquiry conducted against the petitioner by Shri D.C. Sharma, City Magistrate, Bhilwara, who was appointed as the Enquiry Officer by the Collector, Bhilwara, in that matter. This fact is not controverted by the respondents but what is asserted by them is that the statements of Gaurishankar and Abdul Latif, were recorded by Shri Manav in the course of the enquiry against Kalulal and that copies of those statements were tendered by the presenting officer in the enquiry conducted by Sri Sharma, City Magistrate, Bhilwara, against the ' petitioner In support of this contention, a copy of an application of the presenting officer, Tehsildar Sahada dated February 1, 1964 along with copies of the statements of Abdul Latif and Gaurishankar, alleged to have been produced in the inquiry proceedings against the petitioner, have b'en submitted by the respondents.

4. Now, the main point of dispute between the parties is as to whether the requirements of the principles of natural justice were satisfied by tendering a copy of the statement of Gaurishankar alleged to have been recorded in the course of the inquiry proceedings against Kalulal by Shri Manav. Sub-Divisional Officer, in respect of which statement, neither it has been alleged that a copy was supplied to the petitioner nor it has been shown that the petitioner was afforded an opportunity of cross-examination in the course of the enquiry conducted against him. While the learned Counsel for the petitioner on the one hand contend that the requirements of natural justice were not at all satisfied and that the statement of Gaurishankar recorded in the course of the inquiry conducted against Kalulal could not have been relied upon by the Chairman of the Board of Revenue for the purposes of enhancement of punishment imposed upon the petitioner, learned Additional Government Advocate on the other hand contends that as a copy of the aforesaid statement of Gaurishankar was tendered in evidence and was placed on record of the inquiry conducted against the petitioner, the principles of natural justice were fully complied with. It is, therefore, necessary for me to examine the nature and content of the principles of natural justice as are required to be followed in Disciplinary proceedings under Article 311(2) of the Constitution. In Union of India v. T.R. Verma : (1958)IILLJ259SC , their Lordships of the Supreme Court made the following significant observations in this regard:.it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which be relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross examining the witness examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.

If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid do'n in the Evidence Act for taking evidence was not strictly followed....

Discussing the guarantee contained its Article 311(2) of the Constitution S.R. Das, C.J., as he then was, observed in Khemchand v. Union of India and Ors. : (1959)ILLJ167SC .

To summarise, the reasonable opportunity envisaged by the provisions under consideration includes;

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if be is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witness produced against him and by examining himself or any other witness in support of his defence and finally;

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do it the competent authority, after the enquiry is over and after applying his mud to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.

It would thus be noticed that the right of cross-examination of the witnesses who may give evidence against the delinquent employee during the disciplinary proceedings, is a very valuable right vested in him and if it appears that this right could not be exercised effectively by the employee on account of the fact that the witness whose statement is sought to be relied upon is not produced in the presence of he employee or is not tendered for cross-examination by him, at the time of the Disciplinary Enquiry, then the inevitable result would be that the enquiry will not be considered to be held in accordance with the principles or natural justice. In Phulbari Tea Estate v. Its Workmen : (1959)IILLJ663SC the facts were that a workman, named B.N. Dass, was charge-sheeted and when an enquiry was held against him certain persons, whose statements had already been recorded by the Manager of the employer in the absence of Das, were presented and Das wan told that the people who had given evidence against him were present and he could ask them what they had to say. Das did not put any questions to them. Then the witnesses present were asked whether the evidence given by them before the Manager was correct or not, an they all replied that the same was correct. It did not appear from the record that copies of the statements made by the witnesses were supplied to Das before he was asked to question them nor did it appear that the statements which had been recorded, were read over to Das at the enquiry before be was asked to question the witnesses. The statements so recorded were produced on behalf of the employer before the Industrial Tribunal but those witnesses were not produced before the Tribunal so that they might be cross-examined even at that stage by Das Wanchoo J., as he then was, observed that as copies of the statements of the witnesses who had given evidence against Das before the Manager were not supplied to him and even the statements given by those witnesses to the Manager were not read out in extenso to Das at the enquiry before he was asked to question them, the basic principles of natural justice in an enquiry of that nature were not observed. It was further observed by his Lordship that even before the Tribunal, although the statements recorded by the Manager during what was called investigation, were produced, yet the witnesses were not produced so that they might have been cross-examined at that stage by Das and from these facts, his Lordship concluded that as never had in opportunity of questioning the witnesses after knowing in full what they had stated against him and in these circumstances, the Supreme Court held that the enquiry was not proper. In State of Mysore v. Shivabasappa Shivappa Makapur : (1964)ILLJ24SC their Lordships of the Supreme Court again considered the question as to the content of the rules of natural justice and observed that the tribunals exercising quasi-judicial functions are not Courts and are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence and that they can, unlike Courts, obtain ail information, or material for the points under enquiry from all sources and through all channels, without being fettered by rules and procedure which govern proceedings in Courts. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it In Shivabasappa's case : (1964)ILLJ24SC , their Lordships of the Supreme Court further observed as follows:.the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirely, take place before the party charged, who will have full opportunity of cross examining him, The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by semen e, is to insist on bare to finicalities, & rules of natural justice are matters not of form but of substance. In our opinion they are sufficiency complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to cross examine them.

A consideration of the aforesaid decisions of the Supreme Court makes it clear that not only the delinquent employee must be given a right of cross-examination but he should also be afforded an adequate opportunity of cross-examination, of all witnesses produced against him in the course of the enquiry. Although ordinarily, in departmental enquiries, witnesses are examined in the presence of delinquent employee, yet in case previously recorded statements of some witnesses are produced at the enquiry, then it is incumbent upon the departmental authorities to supply copies of such statements to the delinquent employee and to produce the witnesses concerned before the Enquiry Officer so as to afford an opportunity of cross-examination to the delinquent employee. If the witnesses are not produced for the purposes of cross-examination and thereby the opportunity of cross examination is denied to the delinquent employee, then the requirements of the principles of natural justice are not complied with. In the present case, although it appears that a copy of the statement of Gaurishankar, recorded in the course of the enquiry proceedings against Kalulal, was placed on record in the disciplinary proceedings conducted against the petitioner, but it does not appear that a copy of that statement of Gaurishankar was at all furnished to the petitioner, or even that the petitioner was at any time made aware of the production of such a copy of the statement of Gaurishankar nor it appears that the said statement was read over at the enquiry in the presence of the petitioner nor Gaurishankar was at any time produced for cross-exam nation before the Enquiry Officer during the enquiry against the petitioner. Thus, it is absolutely clear that the petitioner had no opportunity at all to cross examine Gaurishankar in respect of the statement which he might have given during the course of the enquiry against Kalulal and in these circumstances, the said statement of Gaurishankar, recorded behind the back of the petitioner, could not have been relied upon for enhancing the punishment awarded to the petitioner by the Collector, Bhilwara.

5. I have no doubt in my mind that in the present case, the principles of natural justice were contravened and the petitioner was not given a fair and reasonable opportunity of defending himself and as such, the proceedings for enhancement were vitiated.

6. The question as to the extent to which the High Court may interfere in proceedings under Article 226 of the Constitution in matter? relating to departmental enquiries was considered by their Lordships of the Supreme Court in State of Madhya Pradesh v. C.S. Waishampayan AIR 1961 SC 1623 where Gajendragadkar J., as he then was, speaking for the court observed:

It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by a petition under Article 226 it is for the High Court to considered whether the constitutional requirements of Article 311(2) have been satisfied or not. In such a case it would bi idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bonafide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decision reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Courts of law....

In arriving at the aforesaid conclusion, their Lordships relied upon the earlier decision of the Supreme Court in T.R. Verma's case AIR 1961 SC 1623.

7. As from the foregoing discussion I have arrived at the conclusion that the rules of natural justice were not observed in the present case, inasmuch as Gaurishankar was not produced for cross-examination at the enquiry conducted against the petitioner and it was mainly the statement of Gaurishankar recorded in the enquiry against Kalulal which was relied upon by the Chairman of the Board of Revenue for enhancing the punishment imposed upon the petitioner, it must be held that the decision arrived at by the Chairman of the Board of Revenue on the basis of the said statement of Gaurishankar, was illegal and invalid. Further, as the notice of enhancement of punishment was largely based on the aforesaid statement of Gaurishankar, in my opinion, it is necessary to quash the said notice as well as the final order passed by the Chairman, Board of Revenue, as a consequence of that notice enouncing the punishment awarded to the petitioner and also the subsequent orders passed in that respect by the State Government.

8. The result is that the writ petition is allowed. The notice issued by the Board of Revenue dated December 18, 1965 and the order passed by the Board of Revenue dated February 16, 1966, as well as the orders passed by the State Government dated April 15, 1967 and Jane 29, 1970, are quashed. However, it is made clear that this decision shall not debar the Board of Revenue or other competent authority. From taking any other proceedings against the petitioner in accordant with law. In the circumstances of the case, the parties are left to bear their own costs.


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