Balakrishna Ayyar, J.
1. This is a petition for the issue of an appropriate writ to quash the order of the Regional Director of Resettlement and Employment, Madras, dated 29th October, 1956, dismissing the petitioner from the service of the Government of India.
2. Miss Gabriel the petitioner was first employed as a typist in the Chief Secretariat, Madras. Subsequently she worked as a clerk under the Hindu Law Reform Committee and later became a senior clerk in the office of the Dy. Controller-General of Civil Supplies. In course of time the petitioner was declared a quasi-permanent employee of the Central Government under the Central Civil Services (Temporary Service) Rules, 1949. In 1955 the petitioner was working in the Regional Employment Exchange, Madras. One Mr. Pushparaj was then the head of the office, he being at the time the Regional Director of Resettlement and Employment.
3. In July and August, 1955, copies of a pseudonymous communication addressed to Sri Kandhu Bhai Desai, Minister for Labour, Government of India, came by post to various employees in this office of the Director of Resettlement and Employment. It is not necessary to refer to the various allegations in this communication, It will be sufficient to say that inter alia it attributed various categories of infamous conduct to Mr. Abdul Khader, the previous Regional Director; to Mr. Pushparaj, the then Director, to Mr. Nambiar, an Assistant Director; to Kumari Arundhathi, Dy. Regional Employment Officer; and to various other individuals connected with the organisation.
4. The earliest of these communications was received on 23rd July, 1955, by Mr. Anugraham, Assistant Director of Employment Exchanges, in the office of the Regional Director, Madras. He took it to the notice of the Regional Director who instructed him to keep an eye open for any further petitions of the kind as might arrive later. Three days later copies of the same petition were received by two clerks named Hassan and Padmanabhan who handed them over to Mr. Anugraham. On 26th July, 1955, Mr. Nambiar and Mr. Pushparaj had a discussion on this subject and the following day Mr. Nambiar sent to Mr. Pushparaj three copies of the same communication which had arrived in his office together with the envelopes in which they had arrived. Of these one was addressed to Mr. Nambiar and the remaining two to other employees in that office. On 2nd August, 1955, four more covers addressed in a handwriting similar to that which had been noticed in some of the earlier covers were received. Mr. Anugraham took them to Mr. Pushparaj. These were kept intact for further investigation. In all eleven such copies were received as set out in Annexure IX to the order of Mr. Pushparaj.
5. What happened thereafter is set out in paragraph 3 of his order:
Thereafter I made preliminary investigations and examined one of the recipients of these covers Shri Chandrasekharan and some of the clerks of the R.E.E., viz., Shri Jayapalan and Shrimathi Leelavathi whose statements were recorded. All these clerks solemnly affirmed that the handwriting of the addresses on the covers shown to them was that of Kumari Gabriel who was their erstwhile co-clerk. Besides the opinion of these clerks, I also had the opinion of the R.E.O., Shri Nambiar and my Assistant Director Shri Anugraham who were also definitely of the opinion that the handwriting resembled that of Kumari Gabriel. Being thus satisfied that there was a prima facie case against Kumari Cabriel that she had sent out these typewritten petitions over a pseudonymous name and that she has been indulging in this sort of subversive activities with intent to insult, annoy, defame and bring into disrepute some of the officers and staff of this organisation and that as the offence committed by her in circulating this highly obnoxious and defamatory petition was of a very serious and grave nature warranting drastic action, I placed Kumari C. Gabriel under suspension with effect from 17th September, 1955, pending a regular enquiry against her.
6. When the order of suspension was served on the petitioner she protested that it was based on unfounded suspicions, that there was no justification to punish her, and, that the order of suspension should be cancelled and an enquiry conducted. Mr. Pushparaj, however, took the view that:
Her contention that the suspension was a punishment is incorrect. As the head of the office and appointing authority competent to take departmental action against Class III staff, I placed her under suspension as I apprehended that if she were allowed to continue in the office she might tamper with records which contained her handwriting and that her presence will not be conducive to further investigations.
7. Subsequently Mr. Pushparaj continued his investigation and after examining more witnesses he framed the following charge against the petitioner:
That Kumari C. Gabriel, Junior Clerk, Office of the Assistant Director of Training, under suspension indulged in subversive activities by defaming some of the officers and staff of this Region and also bringing the Employment Organisation in Madras Region into disrepute by circulating typewritten copies of a highly defamatory petition over a pseudonymous name containing false and vexatious allegations of a most serious, obnoxious and damaging nature against some of the officers and staff of this organisation, in postal envelopes on which she has herself written most part of the addresses and has thereby committed a grave and serious offence, revealing misconduct of a most reprehensible nature warranting severe disciplinary action.
8. A copy of this charge was served on the petitioner on 28th September, 1955.
9. As soon as she was placed under suspension, on 26th September, 1955, Miss Gabriel sent a petition to the Regional Director, the nature of which will be apparent from the following extract from her petition dated 3rd October, 1955.
I sent a petition to you on 26th September, 1955, immediately on my suspension setting forth my case in so far as it is possible, without having before me any of the relevant papers or materials on which a grave charge is sought to be made out against me on mere suspicion. I therefore requested that all the available materials on which such a charge was sought to be made out against me might be supplied to me without delay. I have not yet received a reply to the same nor copies of the materials asked for.
On 3rd October, 1955, she wrote again asking that she be supplied forthwith with all the materials she had asked for in her petition, dated 26th September, 1955.
On 5th October, 1955, Mr. Pushparaj sent the following reply:
Kumari C. Gabriel is informed that materials relating to the case in the form of original documents cannot be furnished to her. She is therefore directed to appear before the Regional Director on 10th October, 1955, at 11 A.M. to peruse the relevant records which will be made available to her at the office of the Regional Director.
On 10th October, 1955, Miss Gabriel wrote back as follows:
I beg to state that I have not asked in my petition, dated a6th September, 1955, to be furnished with the original documents relating to the above matter. I have only requested to be furnished with the true copies of the same, except as regards the covers alleged to be written in my handwriting. In regard to the latter I can only ask for inspection of the originals to be given to me along with my legal adviser. I am advised that this is my elementary legal right and you, sir, having been a lawyer yourself, cannot be unaware of this. As you know well there are very great disadvantages in getting mere inspection in your office and it will be of little use to me in properly replying to a grave charge against me, and also to any legal adviser. I am led to think from your denial to, furnish copies which is a natural right of any one accused of a grave offence, that prejudice seems to prevail even at the outset when there ought to be fairness and open-mindedness.
On the same day Mr. Pushparaj informed the petitioner:
With reference to her letter No. Nil, dated 10th October, 1955, Kumari C. Gabriel is hereby informed that true copies of the documents and other records in the case cannot be sent to her as requested for in the above reference. She is further informed that legal advisers are not allowed to appear in departmental enquiries, and that she could herself come and peruse the documents, which will be shown to her by the undersigned. For perusing the documents she may appear before the undersigned at 11-30 A.M., at his office on any day between the 12th and 14th of this month.
10. On 14th October, 1955, the petitioner went to the Office of the Regional Director to inspect the documents. What happened at that time is a matter of acute controversy between Mr. Pushparaj and the petitioner. The view of Mr. Pushparaj is set out in paragraph 8 of his order:
Accordingly the delinquent clerk, Kumari C. Gabriel, came to my office on the 14th October, 1955 and had inspection of the pseudonymous petition and also the postal envelopes in question in which copies of the petitions were received by several persons. Before I allowed her to have inspection of the documents, I took the precaution of asking two of my officers, viz., the Assistant Director of Training, Shri M. D. Naik, and the Inspector of Training, Shri T.R. Doss, to be present in my room as witnesses to the inspection so that the delinquent clerk may not later on say that she was not given any fair opportunity to inspect all the relevant documents she wanted to see. The inspection went on for fully one hour from 12-30 to 1-30 P.M. I placed the entire file containing the several copies of the pseudonymous petition and the covers and asked her to go through them. She read through a petition and made some notes on a sheet of paper. After that she carefully examined the postal covers in question. Then I gave her a few sheets of paper and asked her to take down to my dictation some of the addresses on the envelopes in question, which I read out to her. After having fully inspected all the records she wanted to see, the delinquent clerk recorded an acknowledgment on my office file as follows: As permitted by the R.D., I inspected the petition to-day at 12-30 P.M. to 1-30 P.M. I was also allowed to see the envelopes. I wrote to the dictation of the R.D certain addresses of the envelopes. I had inspection of the above records in the presence of the R.D., the A. D. T., Shri Naik and I.T., Shri Doss.
11. According to the petitioner, however, what happened was something very different. At that time she had been consulting Mr. Tarwady, and on 16th October, 1955, she went and told him what had taken place on 14th October, 1955. On his suggestion she put down in writing what had happened. That was on 17th October, 1955. On 18th October, 1955, Mr. Tarwady sent a copy of this to Mr. Pushparaj. The written report which Miss Gabriel gave to Mr. Tarwady runs as follows:
Ref.--My interview with you on 16th October, 1955. As advised by you I give below a report regarding the interview I had with Shri P. K. Pushparaj, the Regional Director of Resettlement and Employment, Madras, at his office on the 14th instant. The Regional Director had asked me to appear before him at 11-30 A.M., on the 14th instant to inspect the papers in connection with my suspension. He came to the office only at about 11-35 A.M., and after he settled himself in his seat I sent in my card to him. He called me after is a.m. As I went in he asked me why I did not wish him 'Good-morning'. 'Have you even forgotten that' 'I have become so unlucky'. Then he took out the case file and thought for a while and asked me to wait outside for some time. I waited. At about 12-30 p.m., he called me again. There were two other Officers as his witnesses. One was Shri M. D. Naik, the Assistant Director of Training and the other was Shri Doss, the Inspector of Training. He offered me seat by the side of his table on the right. He told me that he could show me only a few things such as the petition and the covers. He kept the file with him and gave me a copy of the petition and asked me to peruse. When I was about to take down some notes he first objected to it, but later consented. While I was thus going through the petition he remarked that ' it is no use perusing it now since you already know it'. I said, 'If I had seen it, I would not have come'. Then he said that 'there is no use of doing all these things. I want to know who has done it. 'I told him that ' since you are my prosecutor it is up to you to prove it. 'He said, 'Oh yes, I have enough of them.' I said, 'I would like to see them ' to which he said nothing. After I finished with the petition, I asked for the covers. Immediately he gave me a sheet of paper and asked me to write down certain passages from the petition to be dictated by him (he just showed me from a distance) and that I should sign it. I said I had not gone there to make any statements, etc., and that I could not do it. He flared up. He started abusing me: 'Oh no, you have come with tactics, do you dare refuse to do it You are only a subordinate, a clerk. I am carrying out the orders of the D.G.R.E. (Director General of Resettlement and Employment). If you refuse leave here '. He threatened me that he would proceed against me, he will record everything against me, he will punish me, etc. He said in so many words all of which I am not able to recall at present. He actually shouted at me so furiously I did not know what to do, whether to do it or come away. When at last he said that I had to write the addresses of the several covers to his dictation and that if I refused he would consider me to be guilty. Finally, I decided to write. He dictated. Sir, I frankly confess that I was so frightened and nervous I could not write steadily. It was really a struggle. He started scolding me for each word I wrote. He made me rewrite the whole thing. He insulted me saying that I was disguising my handwriting. I was scribbling, he called me dishonest. He was very rude and cruel. Finally, he made me sign all the sheets. Then he showed me the covers, from a distance when I said that they were not my handwriting. He again started talking rudely and insultingly. He has also filed a post card and a cover written by me. He asked me to identify them. When I did that he asked why I had printed the address on the cover, with any motive or No. I said with no motive. He was again furious. I asked why I should not write like that, to which he replied: 'Oh yes, you can write, you are capable of writing in many ways'. Then I asked for the evidences given by the writnesses. He said they will not be given to me, they will not be furnished even to the Court. I asked whether there is any report from the Finger Print Expert. He said no, besides they haven't got any value. They will not be accepted even at the Court. They will not be given even to the Court. He finally made me sign a statement on the file to the effect that the papers were shown to me by him on that day and that I was permitted to peruse them in the presence of those two officers mentioned above. I was with them from 12-30 to 1-30 p.m. This statement was also signed by the two witnessing officers. So, I came away. I felt that he would have even done me some harm to my person had it not been for the presence of those two men. Such was the fury with which once or twice he got up from his seat and shouted at me. Well sir, I think I have given you a sufficient idea as to what I had experienced on that day. I leave it to you as to the action to be taken in the matter. I only request you to protect my fair name. I once again affirm that. I am innocent. I have no knowledge whatsoever about the affair.
12. In the letter which Mr. Tarwady wrote to Mr. Pushparaj on 18th October, 1955, he stated among other things;
It is quite evident from the correspondence that has passed between her and yourself and her treatment when she called at your office for taking inspection pursuant to your memo of 10th October, 1955, that she cannot have an impartial enquiry at your hands and she should look to the higher authorities, or eventually to the Courts of law for vindicating herself against the wanton attacks on her fair name and clerical record. You have chosen to deny her the ordinary and elementary privilege available to any accused, however serious the offence may be, that is, denying her the copies of the anonymous petition and other data relied upon by you and that too, when you have made up your; mind against her, as it is evident from the paragraph 2 of the proceedings, dated 17th September, 1955, which runs thus:
'The Regional Director is satisfied that there is a prima facie case against Kumari C. Gabriel in that she has herself sent out these typewritten petitions over a pseudonymous name and that she has been indulging in this sort of subversive activities with intent to insult, annoy, defame and bring into disrepute some of the officers of this organisation.' And have even gone to the extent of suspending her. * * * * * * It is the elementary principle under the Indian Evidence Act that in such circumstances one has to prove that those covers contained these petitions and the authors of the petition and the envelopes were one and the same person, but in this case even the address on the envelopes shown to our client from a distance, is not in our client's handwriting. But our client was constrained to write a few addressses to your dictation, which you probably did for the purpose of comparison. But, our client highly resents your conduct in doing so and characterises it and the other ill-treatment as third degree methods. You are in the position of a judge for the purpose of enquiry and you assume the role of a prosecutor besides your having already pre-judged the issue.
The letter ended as follows:
On 20th October, 1955, Miss Gabriel submitted an explanation in which after referring to the notice issued by her counsel on the 18th she went on to say:
The corsory glance at the copy of the alleged letter which I had at the inspection, leaves absolutely no doubt in my mind that its authorship can never be imputed to me by any stretch of imagination or straining of language. The content, if I am not mistaken, relate to several officers and persons whom I have not served or known, much less can I have any grievance against them as to prompt me to write the alleged letter. The unsullied record of my service for the past several years knocks the bottom out of the suspicion which you entertain against me and does not warrant the ill-treatment to which I have been subject to by suspending me and by denying me the copies of the letter or the data which you are supposed to have.I submit that in the circumstances of this case set out more particularly in my previous notice to you with the enclosure, I cannot have an impartial enquiry at your hands or get justice done to myself. This matter must be investigated, if at all by an absolutely independent body nominated by the Director-General of Re-ssettlement and Employment, New Delhi.
13. This explanation contained a statement which has an important bearing on the guilt or otherwise of the petitioner, but, which nevertheless, does not appear to have been investigated. The petitioner stated that the pseudonymous communication contained allegations against several officers and persons under whom she had never served and whom she did not know. It will be appreciated that if this statement is true it would be an important-almost decisive-circumstance in favour of the petitioner. But, in spite of the fact that this matter was kept pending for more than a year, this aspect of the case was not investigated. It should not have been difficult at all to ascertain who the officers were under whom the petitioner had worked and under whom she had not.
14. On 4th November, 1955, Mr. Pushparaj wrote to Messrs. Mehta and Tarwady that he could take no notice of their letter, dated 19th October, 1955, as the enquiry relating to the petitioner was a purely departmental matter. He went on to say that the allegations which the petitioner had made about what happened on 14th October, 1955, were
a wholsale travesty of truth and contains a string of downright lies and deliberate false statements. Her allegations that she was abused, insulted and treated rudely and cruelly are utterly false and unfounded as facts to the contrary will be vouched for by two Gazetted Officers who are her immediate superior officers and who were present as witnesses when she was interviewed by the Regional Director on 14th October, 1955, allowed to peruse the relevant records. Serious notice is also being taken of her false allegations and insinuations against the Regional Director who is her employer and the head of the organization in this Region and who is also the competent authority to take disciplinary action against her.
15. Two things emerge from this letter. One is that Mr. Pushparaj and Miss Gabriel had plainly joined issue as to what happened on 14th October, 1955. The other is that Mr. Pushparaj was quite angry with the petitioner.
16. On 14th November, 1955, Mr. Tarwady wrote to Mr. Pushparaj a letter in which he stated inter alia:
However, it makes the matters still worse and goes conclusively to establish the apprehensions of our client that the enquiry will not be impartial, when the elementary principles of natural justice are being violated.
Our client wants hereby to re-affirm and reiterate in tola what all has been stated both in our notice to you of 18th October, 1955 and her enclosed written statement as to what transpired at the interview, being undeterred by your threat of taking serious notice of her conduct in placing the true facts by (sic) her those writings and your purported to be borne out by your own subordinate officers whether they be gazetted or of any rank. After all, they are your subordinates and without meaning any disrespect to them, it remains to be seen what weight will be attached to the evidence of those officers in the context of this case.
The travesty of truth alleged against our client is hereby denied and our client states that it is at the other end. In short, your reply was an expected and a foregone conclusion in view of your previous attitude and the decision and that is why our client wants an impartial enquiry by a person other than yourself. But your not doing so in spite of our client's requests and persisting in your present attitude, gives rise to a cause of action for our client to apply for appropirate writ in the matter and she will be doing so before long. Our client still challenges your competency to conduct the enquiry in the matter in as much as you both a prosecutor and a judge having already made up your mind against our client.
17. On 6th December, 1955, Mr. Pushparaj framed two further charges against the petitioner. The memo, containing the charges runs as follows:
The Regional Director of Resettlement and Employment, Madras, received on the 29th October, 1955, a letter from Advocates Messrs. Mehta and Tarwady, Madras, under the instructions of their client Kumari C. Gabriel, Junior Clerk (under suspension), Assistant Director's (Training) Office, enclosing a copy of a statement of Kumari Gabriel in regard to what is said to have transpired at her interview on 14th October, 1955, with the Regional Director of Resettlement and Employment, Madras, at Regional Director's Office. The advocates issued a notice to the Regional Director of Resettlement and Employment calling upon him to put their client Kumari Gabriel forthwith in status quo ante cancelling the suspension order, and, threatening that if no proper amends were made, they would be constrained to take up the matter to the proper authorities to vindicate her innocence. From the statement of Kumari Gabriel given to the advocates regarding the interview she had with Regional Director on 14th October,1955, it is observed that it is a travesty of facts and that it contains a string of downright lies and deliberate false statements. When Kumari Gabriel reported to Regional Director on 14th October, 1955, she was treated with due consideration and courtesy. Although she is a Lower Division Clerk, Regional Director gave her a seat on the right side of his table to enable her to peruse the records. At that time the Assistant Director of Training and Inspector of Training were also sent for and they were present in the Regional Director's room as witnesses. Regional Director gave her a copy of the petition containing the allegations against some of the Officers and staff of this organisation for her perusal. After perusal, she made some notes of her own on some sheets of paper. Her statement inter alia that the Regional Director of Resettlement and Employment asked her to write down certain passages from the petition dictated by him is a deliberate falsehood. No dictation from the petition was given to her but she was asked to write down to his dictation some of the addresses from the postal covers in which the petitions were received. Her allegation that the covers were shown to her from a distance is yet another falsehood. The file containing the petitions and covers was actually placed in front of her and the distance between her eyes and the postal covers she wanted to examine ' was barely a foot. She was given every opportunity to examine the relevant records closely and she has also acknowledged this fact on the file and signed the note. The above facts were testified to by the two Gazetted Officers of the Training Side who were present throughout during the interview. Therefore, her allegations against the Regional Director that she was insulted, abused and threatened during the interview are absolutely false, baseless and vexatious, and, clearly disclose the insubordinate, arrogant, impudent and reprehensible conduct of Kumari Gabriel.
In view of the above, the following further charges are, therefore, framed against her for good and sufficient reasons:
1. that she, Kumari Gabriel in her statement, dated 17th October, 1955, addressed to Shri Tarwady, her advocate which was communicated to the Regional Director, has made false, vexatious and insinuating allegations against the Regional Director, her employer and the Head of the Organisation in the Region, knowing them to be false, and
2. that during the pendency of a departmental enquiry she issued a lawyer notice to the Regional Director of Resettlement and Employment, the Head of the Organization, to reinstate her when she has all the avenues open to her to represent her case in the course of the departmental enquiry and thus acted contrary to all principles of discipline and conduct as a Government servant dislegarding the departmental procedure.
Kumari C. Gabriel is, therefore, hereby directed to show cause within 10 (ten) days of the receipt of this memo. why severe disciplinary action should not be taken against her on the above charge of false allegations, insinuations and grave misconduct.
If the explanation called for is not received within 10 (ten) days of the receipt of this memo., it will be presumed that she has no explanation to offer and orders will be passed on the merits of the case.
18. It will be noticed that the charge does not specify what particular rule in the Government Servants Conduct Rules the petitioner contravened in taking legal advice and getting her lawyer to send a notice.
19. On 13th December, 1955, Miss Gabriel wrote pleading not guilty and protesting that her report to Mr. Tarwady about what happened on 14th October, 1955, was strictly correct and that to seek legal advice cannot be construed as misconduct or aggravation of misconduct. She went on:
I reiterate that I am innocent and also my stand that the Regional Director being one of the persons maligned under the pseudonymous petition and exasperated by my explanations and the subsequent correspondence, has no jurisdiction to proceed with even the departmental enquiry. If in spite of this he does so, I cannot get any justice at his hands and the result will be a foregone conclusion.
20. On 2nd December, 1955, Mr. Pushparaj sent to the Government Examiner of Questioned Documents at Simla the envelopes in which copies of the pseudonymous communications had been received together with specimen scripts of the petitioner. At the investigation which Mr. Pushparaj conducted, some of the witnesses had stated that the handwriting on some of the envelopes resembled that of Patro, the Superintendent of the Regional Employment Exchange. So, some specimens of his handwriting were also sent to the Examiner of Questioned Documents. On 30th April, 1956, the Examiner of Questioned Documents expressed this view:
In my opinion there are indications that the person who wrote the red-enclosed writings stamped and marked S-16 to S-49 also wrote the red-enclosed writings similarly stamped and marked Q-1 to Q.-11.
21. Meantime Miss Gabriel filed W.P. No. 947 of 1955 in this Court for quashing the order of suspension that had been made against her. That petition was dismissed in limine on 5th December, 1955, on the ground that an order of suspension is not a punishment and that the Regional Director of Resettlement and Employment had jurisdiction to place the petitioner under suspension pending enquiry into the charges that had been framed against her.
22. On 13th February, 1956, the petitioner wrote to Mr. Pushparaj complaining about the delay in holding the enquiry and pointing out that she had been under suspension from the 20th September, 1955 and that the order in Writ Petition No. 947 of 1955 had directed that she could seek appropriate relief after final orders had been passed against her in the departmental proceedings.
23. To this she received the following reply:
Kumari C. Gabriel, Junior Clerk, Assistant Director of Trainings Officer, under suspension is informed that further investigations are being pursued in the matter and that as soon as the investigations are completed, an enquiry will be held and final orders will be passed.
24. On 27th February, 1956, the petitioner wrote protesting against the delay and pointing out that even as far back as 17th September, 1955, when she was placed under suspension Mr. Pushparaj had expressed the view that he was satisfied that a prima facie case had been made out against her. She also drew the attention of Mr. Pushparaj to a report in the 'Mail' of a decision of a Bench of this Court relating to the grant of copies. On 9th April, 1956, the petitioner wrote again complaining about the delay in spite of her repeated reminders. On 19th April, 1956, the petitioner was informed
that the case is still under investigation at various angles and as soon as it is finalised, her case will be taken up for final enquiry and orders.
25. On 23rd April, 1956, the petitioner wrote to Mr. Pushparaj pointing out that his reply of the 19th stating that the matter was still under investigation showed that the order of suspension was illegal, invalid and ab initio void and mala fide, and, she ended:
The whole thing is untenable, unwarranted but only prestige stands in the way of dropping the proceedings against me, who is innocent.
26. On 5th May, 1956, Mr. Pushparaj sanctioned subsistence allowance and dearness allowance to the petitioner. On 7th May, 1956, the petitioner wrote to Mr. Pushparaj taking exception to certain statements appearing in the orders, granting subsistence allowance. She said:
I have not made any representation as alleged in my letter of 23rd April, 1956, regarding the subsistence allowance sought to be given to me in your last two communications as late as May, 1956, while I am starved since September, 1955, without any just or sufficient cause.
Please note that I will receive the amount only without prejudice to all my contentions and the contemplated proceedings.
27. On 5th June, 1956, Mr. Pushparaj informed the petitioner that he would hold an enquiry on 25th June, 1956 and directed the petitioner to appear before him with all her evidence, oral and documentary. The letter specifcally stated that she would not be permitted to take any legal adviser with her as legal advisers were not allowed to appear in departmental proceedings. In answer to a letter which the petitioner wrote on 11th June, 1956, Mr. Pusparaj replied.
Kumari C. Gabriel is informed that a copy of the pseudonymous petition sent by her in the several covers addressed to various individuals in the organisation and the covers addressed in her own handwriting have already been shown to her previously at the Regional Director's Office on 14th October, 1955, when she was given every opportunity to inspect and take notes of all the documents in question. Hence there are no other papers to be frunished to her.
28. On 22nd June, 1956, the petitioner wrote to Mr. Pushparaj complaining that she was entitled to every reasonable opportunity to defend herself under the Rules and that her request in that connection had not been complied with. She controverted the statement in paragraph 1 of the letter of Mr. Pushparaj, dated 15th June, 1955, that she had been given every opportunity to inspect and take notes of all the documents in question. She also complained that she had not been furnished with the list of witnesses for the prosecution, nor with copies of the earlier statements that had been taken from them. She also pressed that she should be permitted to have the assistance of her legal adviser in view of the fact that she is a woman and that some of the witnesses happen to be her official superior. She also pressed that the enquiry should not be conducted by Pushparaj.
29. On the same day Mr. Pushparaj sent a memo explaining that no useful purpose would be served by sending copies of the envelopes in which the pseudonymous communications had been received and that the statements recorded from the witnesses at what he called the preliminary investigation could not be furnished to her. He, however, gave the assurance that she would be given full opportunity to examine the statements at the time of enquiry 'in the presence of the Regional Director of Resettlement and Employment, Madras and the witnesses.' She was again told that she could not engage a legal adviser and that the enquiry would not be conducted by any one else. She was also given a list of ten persons whom it was proposed to examine.
30. On 25th June, 1956, the enquiry commenced. The petitioner then appeared and handed over a statement complaining that the refusal to furnish copies was contrary to the rules and opposed to the principles of natural justice. She said:
If copies of such records are not furnished to the accused, especially when a grave charge is levelled against, and no opportunity is given to the accused to study those records and be in a position to accept or attack these materials.... there is no use for the accused to attend the so-called enquiry quite unprepared.... No Court on earth will allow all the prosecuting witnesses to assemble at one time when each one of them is being examined.... The conduct and proceedings of the enquiry held by the Regional Director on 14th October, 1955, when I appeared singly against a team of witnesses on the other side and the treatment accorded to me then makes me shudder even now and prevent me from facing the enquiry unprepared and undefended a second time conducted by the same officer and attended by a set of his own subordinates...I am therefore constrained not to participate in such an unfair, based and illegal enquiry....
31. After handing over this memorandum she mentioned that it contained what she wanted to say and that she would not cross-examine any witness. Vide paragraph 18 of the order of the Regional Director. After that she enquired whether she could go away. Mr. Pushparaj told her that he had fixed that day for the enquiry, that most of the witnesses were present, and, that if she was interested in proving her defence it was for her to decide whether she would stay and cross-examine the witnesses or go away. The petitioner then decided to stay on, and, in her presence, five witnesses were examined. The petitioner, however, did not cross-examine any of them. The enquiry was adjourned to the 26th. On that day three more witnesses were examined. The matter was then adjourned to the 9th July, 1956. Notice of the adjourned date was given to the petitioner.
32. On 30th June, 1956, the petitioner wrote complaining about the way the enquiry had been handled and in particular taking exemption to
putting into the mouths of the witnesses whatever you deemed necessary for your purpose and taking it down in your own language.
33. On 9th July, 1956, the enquiry was adjourned to the 10th. The petitioner was absent that day. On nth July some more oral evidence was recorded and on that date too the petitioner was absent. The proceedings were then adjourned to the 20th. Intimation of this was sent to the petitioner on 12th July, 1956. In reply to that the petitioner wrote on 16th July, 1956, drawing attention to a letter he had sent on the 30th June and repeated that no useful purpose would be served by her attending the enquiry on the 20th if she could not have the assistance of her legal adviser.
34. Though the petitioner was notified that the enquiry would be held on the 20th still on 18th July, 1956, Mr. Pushparaj recalled one Jayapalan, a witness whom he had examined on 26th June, and recorded his evidence touching an incident mentioned by another witness in the course of his evidence on 10th July, 1956. Notice of this date was not given to the petitioner. On 20th July, 1956, some more oral evidence was taken when too the petitioner was not present.
35. Meantime the Government of India decided to implement a decision which they had taken earlier to transfer the day-to-day administration of the Employment Exchanges and Training Centres under their control to the respective State Governments.
36. On 25th July, 1956, the Regional Director of Resettlement and Employment sent a notice to the petitioner in which she was told,
consequent to the decision of the Government of India to transfer the day-to-day administration of the Employment Exchange Training Centres to the State Governments, a number of existing posts of Junior Clerks in the Resettlement and Employment Organization of the Ministry of Labour will be abolished and the services of a corresponding number of office staff will be dispensed with. Kumari C. Gabriel, Junior Clerk, Office of the Assistant Director of Training, Madras, is hereby informed that she is one of the employees, whose services will, on the abolition of the said posts, be dispensed with and she is accordingly given notice that her services will not be required with effect from 1st November, 1956. If she wishes to avail herself of the terminal benefits of her service under the Government of India, she should apply for such benefit forthwith, so that the period of notice and the period of terminal leave admissible to her, if any, may run concurrently.
37. It may be mentioned here that one complaint of the petitioner in respect of this notice is that her services were dispensed with straightaway while others who were in the same category as she was and who were junior to her were given an option to opt for service under the State of Madras.
38. On 6th October, 1956, Mr. Pushparaj drew up an order finding the petitioner guilty of all the charges framed. A copy of this was communicated to the petitioner and she was called upon to show cause why she should not be dismissed. The petitioner submitted an explanation on 19th October, 1956, which, according to Mr. Pushparaj, was merely a repetition of the 'usual untenable arguments and baseless and wild criticism of my action and the procedure adopted by me.'
39. On 22nd October, 1956, Mr. Pushparaj passed an order dismissing the petitioner from the service of the Government of India with immediate effect.
40. To complete the statement of facts it is necessary to add that on 27th October, 1956, a memo was served on the petitioner informing her that her services would not be required with effect from the afternoon of 31st October, 1956.
41. The present petition has been filed to quash the order, dated 22nd October, 1956, that is to say, the order of dismissal.
42. In the petition as originally filed the second respondent was entered as the Regional Director of Resettlement and Employment at No. 8, Haddows Road, Nungambakkam. Subsequently, in consequence of a letter addressed by the Additional Government Header, the second respondent was entered as the Commissioner of Labour, Chepauk, Madras.
43. A single counter was filed on behalf of all the respondents. In that the point was taken that
the petitioner was never under the services of the State of Madras and, therefore, the State of Madras could not be made a party to the main petition and no relief could be granted to the petitioner.
With regard to respondents 2 and 3,1 say that the Office of the Regional Director of Resettlements and Employment, Madras, is closed and there is no authority within the jurisdiction of this Hon'ble Court, upon whom any writ could be issued. With regard to the third respondent, I say that the third respondent is also at Delhi, and, therefore, is outside the jurisdiction of this Hon'ble Court, and therefore, the petition of the petitioner is incompetent and this Hon'ble Court has no jurisdiction to grant any relief.
44. Though these points have been taken in the counter, they are really without substance. The learnd Advocate-General himself with characteristic fairness, drew my attention to the decision of the Supreme Court in Hari Vishnu v. Ahmad Ishaque : 1SCR1104 In paragraphs 10 and 11 of the Judgment the nature of a writ of certiorari is explained.
It is not a proceeding against the tribunal or an individual composing it; it acts on the cause of proceeding in the lower Court, and removes it to the superior Court for reinvestigation.
The writ for quashing is thus directed against a record, and as a record can be brought up only through human agency, it is issued to the person or authority whose decision is to be reviewed. If it is the record of the decision that has to be removed by ' certiorari', then the fact that the tribunal, has become 'functus qfficio ' subsequent to the decision could have no effect on the jurisdiction of the Court to remove the record. If it is a question of issuing directions, it is conceivable that there should be in existence a person or authority to whom they could be issued, and when a 'certiorari' other than one to quash the decision is proposed to be issued, the fact that the tribunal has ceased to exist might operate as a bar to its issue. But if the true scope of 'certiorari' to quash is that it merely demolishes the offending order, the presence of the offender before the Court, though proper, is not necessary for the exercise of the jurisdiction or to render its determination effective.
45. In the counter to the petition the further point was taken that the Writ Petition would be infructuous. I quote the relevant passage:
With reference to the said contention, I say that the office in which the petitioner was working is closed and the whole establishment is handed over to the State of Madras. As a result, therefore, of the transfer of the said organization, all the employees were served with notices of termination of services. The petitioner was also served with notice, dated 25th July, 1956, terminating the services of the petitioner in the ordinary course as well with effect from the afternoon of 31st October, 1956. As the enquiry in the petitioner's case was pending I say, that in view of the above, the petition has become entirely infructuous.
46. I am unable to agree that the petition has become infructuous. For one thing, if the order of dismissal were to stand that would be a stigma attaching to the petitioner which is inevitably bound to handicap her in her subsequent efforts to get employment or redress. If the order of dismissal is set aside the petitioner would be in a position to appeal to the good conscience and sense of fair play of the appropriate authorities.
47. It will not therefore be correct to say that the petition must fail on the ground-that it is infructuous.
48. These preliminary objections being out of the way, it is now possible to go into-the question whether the order complained of should be quashed or not.
49. All enquiries, judicial, departmental or other, into the conduct of individuals must conform to certain standards. One is that the person proceeded against must be given a fair and reasonable opportunity to defend himself. Another is that the person charged with the duty of holding the enquiry must discharge that duty without bias and certainly without vindictiveness. He must conduct himself objectively and dispassionately not merely during the procedural stages of the enquiry, but also in dealing with the evidence and the material on record when drawing up the final order. A further requirement is that the conclusion must be rested on the evidence and not on matters outside the record. And, when it is said that the conclusion must be rested on the evidence, it goes without saying that it must not be based on a misreading of the evidence. These requirements are basic and cannot be whittled down, whatever be the nature of the enquiry, whether it be judicial, departmental or other. However, where the enquiry is judicial we insist that yet another requirement should be complied with. That is contained in the familiar statement that it is not sufficient that justice is done, but that justice should also manifestly appear to be done.
50. Going back to the first requirement, viz., that the person proceeded against must; be given a fair and reasonable opportunity to defend himself. This requires that he should be given facilities to examine and study the documents sought to be put in evidence against him, and, if he desires to take notes or extracts he should be allowed to do so without let or hindrance. Exceptions to this rule may have to be made in the interests of public safety or security or some such overriding ground, but such exceptions should be clearly rare. Susceptibilities of individuals, however highly placed, will not justify an exception being made to this rule. It is further necessary that the individual proceeded against should be given a fair and proper opportunity to cross-examine the witnesses who depose against him. In those cases where such witnesses have made statements relating to the charge prior to the enquiry, the statements must be made available to the person against whom the charge is preferred since without such statements it is impossible effectively to exercise the right of cross-examination. Normally this would require that copies of the statements made by the witnesses prior to the regular enquiry should be furnished to the person who is being proceeded against. If, for any reason, it is impossible to furnish him with copies he should be allowed to make out the copies for himself. Persons who are familiar with the conduct of criminal cases will realise the importance of this requirement. One of the most effective ways of assailing the credibility of a witness in the box is by showing that previously he has made statements which contradict those he is making in the box. It will also be a legitimate way of discrediting a witness to show that he has improved on his original story in one form or other. Neither of these perfectly legitimate modes of cross-examination can be employed if the earlier statements of the witnesses are not made available to the accused person. No counsel, however eminent and however, resourceful he may be in the art of improvisation, can assist his client properly in a Sessions Court if he does not know what the witness has stated in the committing Court, and, to the investigating officer, and, where, as in a departmental enquiry, the accused person has no legal right to the help of counsel, the need for copies of the earlier statements would be mere imperative. The ordinary Government servant who has had no training at the Bar is bound to be inexpert in the art of cross-examination. To cross-examine properly he would have to study the earlier statements of the witnesses at leisure and note down the points on which he wants to question him, sometimes even to write out the entire questions he wants to put : To invite a person to cross-examine a witness while keeping back from him earlier statements made by the witness would be like blind-folding a man and asking him to find his way about. That is plainly and manifestly not just.
51. As soon as she was placed under suspension the petitioner wrote asking that she should be furnished with all the available material on which the charge was based and sought to be made out. She repeated her request on 3rd October, 1955. On 10th October, 1955, she pointed out her right to copies was a natural one. Nonetheless she was definitely told that copies would not be given. On 18th October, 1955, counsel for the petitioners wrote to Mr. Pushparaj pointing out that right to copies was ' the ordinary and elementary privilege available to any accused, however serious the offence may be.' On 22nd June, 1956, the petitioner reiterated her request for.
copies of all the documents including statements recorded from any person in my absence.
52. To this she was told that copies would not be furnished. In spite of repeated requests made by the petitioner and by her counsel, Mr. Pushparaj did not furnish to her the copies of the statements of the witnesses.
53. It may be mentioned here that the rules regarding the conduct of departmental enquiries framed by the Government of India have for a long time contained provisions to this effect:
The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges, together with a statement of the allegations on which they are based shall be communicated in writing to Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in person.
54. There is here an explicit direction, that a copy of the allegations on which the charges are based should be communicated to the Government servant against whom action is intended to be taken.
55. It is not therefore as though Mr. Pushparaj could find no guidance in the rules.
56. The learned Advocate-General, however, contended that the petitioner had suffered no prejudice by reason of the fact that she was not supplied with copies of the statements which the witnesses had made earlier. I find it difficult to agree. Apart from everything else the petitioner had no fair chance of eliciting from the witnesses' answers tending to show either that their opinions were hasty or ill founded. She had also no chance of showing that the opinion expressed by the witnesses were influenced by considerations of the displeasure of their official superiors. The earlier statements of the witnesses furnish a fair and wide field for cross examination.
57. I said a little earlier that one essential requirement of any enquiry is that the conclusions should be rested only on the evidence and that the evidence should not have been misread. One of the most important pieces of evidence in the present case was the opinion expressed by the Government Examiner of Questioned Documents. His opinion was that:
there are indications that the person who wrote the red-enclosed writings stamped and marked S-16 to S-49 also wrote the red-enclosed writings similarly stamped and marked Q-1 to Q-11.
58. But this is how Mr. Pushparaj read and understood that opinion:
The 34 specimen scripts containing the admitted handwritings of the delinquent clerk, Kumari C. Gabriel were marked by the Expert as S-16 to S-49 and the 15 specimen scripts of the Superintendent, R.E.E., were marked by the Expert as S-1 to S-15. The Expert has expressed his definite opinion that the person who. wrote the red-enclosed writings in the specimen scripts S-16 to S-49 also wrote the writings in the Questioned Documents viz., postal envelopes marked as Q-1 to Q-11.... Thus it has been established by expert opinion that the delinquent clerk, Kumari C. Gabriel is the person who wrote the addresses on the postal envelopes in question.
59. Now, this is an entirely erroneous reading of the opinion of the expert. The expert did not say anything of the kind which Mr. Pushparaj thought he did : It is clear that Mr. Pushparaj, misdirected himself on a very vital piece of evidence in the case.
60. Another subsidiary circumstance may be mentioned here. On 9th August, 1956 Mr. Pushparaj examined three additional witnesses whom, in paragraph 18 of his order, he described as important witnesses. The petitioner complained that the inclusion of these witnesses was an after-thought. To meet this plea Mr. Pushparaj relied on Annexure V, a note put by the Assistant Director on 26th July, 1955, and, on Annexure VI, a report made to Pushparaj on 27th July, 1955. The record does not show that either of these documents was exhibited in the case, and, of course, no copy of either of these documents was furnished to the petitioner.
61. The position, therefore, is that Mr. Pushparaj took into consideration documents not marked in evidence and more important documents withheld from the accused and that she was not given an opportunity to meet and explain-I was told that Mr. Pushparaj was a District Munsif in the earlier stages of his official career. A person with that experience must surely have been aware of the difference between documents which have been exhibited and those which have not been exhibited. He must also have been aware that it is not permissible to use against a person evidence oral or documentary, which has been kept back from him.
62. Mr. Tarwady, the learned Advocate for the petitioner, very strongly argued that Mr. Pushparaj did not deal with the case in a dispassionate and objective manner. He so to speak jumped into the fray and made the issue a personal one as between himself and the petitioner. The material on record fully justifies that criticism. It is clear that the petitioner was placed under suspension before the investigation was complete. No doubt in the course of departmental proceedings situations arise when it becomes necessary to place an officer under suspension pending the preliminary investigation or subsequent regular enquiry into his conduct. The reason which Mr. Pushparaj has set out in paragraph 4 of his order for placing the petitioner under suspension before even the investigation was complete is this:
Her contention that the suspension was a punishment is incorrect. As the head of the office and appointing authority competent to take departmental action against Class III staff, I placed her under suspension as I apprehended that if she were allowed to continue in the office she might tamper with records which contained her handwritings, and that her presence will not be conducive to further investigations.
63. I find it difficult to recognise any validity in either of the grounds given. The petitioner had been working in the office for a very considerable time. And, even if she had been so minded, it would have been physically impossible for her to tamper with or destroy all the records which contained her handwriting. If Mr. Pushparaj had any such fears he should not have had difficulty in placing in safe custody an adequate number of the files or papers which contained the handwriting of the petitioner. The second ground assigned, viz., that the presence of the petitioner in the office would not be conducive to further investigation, becomes difficult to understand except on the assumption that the official witnesses who gave evidence relating to the handwriting of the petitioner could not be depended upon to speak the truth if she continued in the office. If I understood Mr. Tarwady right on this part of his case, his suggestion was that Mr. Pushparaj was trying to overawe the officials subordinate to him and who were working in his office to ensure that they would adhere to the statements that he had previously obtained from them. It will be noticed that in this case the petitioner was placed under suspension long before the investigation was completed : she was placed under suspension on 17th September, 1955, it was on 2nd December, 1955, i.e., about two and half months later that Mr. Pushparaj even sought the opinion of the first examiner of questioned documents and that opinion was received only in May, 1956. To place an official under a suspension pending an enquiry is ordinarily regarded as a very serious step to take. That Mr. Pushparaj took this step months even before the preliminary investigation was complete lends support to the criticism that he was acting vindictively.
64. For the purposes of disposing of this writ petition it is not necessary to decide whose version regarding what happened on 14th October, 1955, viz., whether the version of Mr. Pushparaj or that of the petitioner, is right. In fact in writ proceedings this Court cannot investigate controversial questions of fact. But out of of the events which are said to have happened that day one fact stands out. The petitioner had gone to the office to inspect the documents and Mr. Pushparaj took advantage of the occasion to make the petitioner write down the names and addresses found on some of the covers exhibited in the case. I have no doubt that this was a very unfair thing to do. It was an attempt to obtain from the petitioner evidence that could subsequently be used against her. Be it remarked that the petitioner was then under suspension and she had gone to the office in order that she might examine the documents in order to furnish her explanation. The petitioner was hardly in a position to stand up for her rights. Mr. Pushparaj had taken the precaution a very unusual one of securing the attendance of two of his gazetted subordinates at that time. It is in that situation that he called upon her to write down the addresses on some of the covers. I find it hard to resist the impression that he was in a manner of speaking, trying to trap the petitioner.
65. The letter which Mr. Pushparaj wrote to Mr. Tarwady on 4th November, 1955, very definitely indicates that he had stepped into the fray. In that letter he described the account which the petitioner had given to Mr. Tarwady about what happened on 14th October, 1955, as
a whole-sale travesty of truth and contains a string of downright lies and deliberate false-statement--utterly false and unfounded--as will be vouched for by two gazetted officers
66. The second charge framed against the petitioner is that in her statement dated 17th October, 1955, addressed to Mr. Tarwady she had made 'false, vexatious, and insinuating allegations against the Regional Director'. It is not easy to see how after having committed himself in such unmistakable terms to the views he expressed on 4th November, 1955, he could possibly have brought an impartial mind to bear on the charges against the petitioner. The very memorandum dated 6th December, 1955, in which two additional charges were framed against the petitioner' furnish evidence of the state of mind of Mr. Pushparaj. He ended paragraph 2 of that memo, as follows:
Therefore, her allegations against the Regional Director that she was insulted, abused and threatened during the interview are absolutely false, baseless and vexatious and clearly disclose the insubordinate, arrogant, impudent and reprehensible conduct of Kumari Gabriel.
67. This extract speaks for itself, and, I shall make no comment on it beyond saying that it makes manifest that Mr. Pushparaj had already made up his mind on the matter.
68. Further evidence to show that Mr. Pushparaj did not apply his mind to the case fairly and dispassionately is to be found in the very order he has written. See for example paragraphs 8 and 12 of the order. In paragraph 16 Mr. Pushparaj stated:
She again challenged my authority and jurisdiction which she says were not vested in me that I was assuming the double role of a prosecutor and a Judge. She tries to justify her action in resorting to a lawyer for sending me, her employer and the Head of the organization in this Region, a lawyer notice threatening legal action.
69. Now, Mr. Pushparaj was not the employer of the petitioner. Her employer was the Government of India. This erroneous statement in the order is interesting only in that it shows what Mr. Pushparaj thought of himself and his position vis a vis the petitioner. That she should have dared to instruct a lawyer to send a notice to a person placed in the position of Mr. Pushparaj was in his eyes an almost unpardonable sin.
70. Further evidence of his state of mind is furnished by paragraph 28 of his order where he says:
This lawyer's notice is couched in very improper and undignified language questioning my authority and challenging my jurisdiction and calling upon me to cancel the suspension order and contained a threat that the matter will be taken up with the higher authorities. The lawyer even went to the extent of saying that I have assumed the role of a Judge and a prosecutor at the same time and that I have prejudged the issues.
71. Mr. Tarwady next contended on the time which Mr. Pushparaj took to complete the investigation, hold the enquiry and pass final orders. He pointed out that the petitioner was placed under suspension on 17th September, 1955 and that the final orders were passed only in October, 1956, more than a year and a month later. He complained that the delay was deliberate and that Mr. Pushparaj was of set purpose pursuing a policy of harassing the petitioner and that he so timed his order that whatever the final result the petitioner would be thrown out of employment.
72. The question which Mr. Pushparaj had to decide was a quite simple question of fact, viz., whether the handwriting on the covers which were received in the office and which contained the communications complained of was that of the petitioner. If we exclude the time taken to obtain the opinion of the Examiner of Questioned Documents, the entire matter could have been ordinarily concluded in a few weeks. Even in cases of murder the investigation by the police, the enquiry by the Committal Magistrate and the trial by the Sessions Judge are more often than not completed in six months and less. In the circumstances, Tarwady's complaint appears to be as well-founded. The alternative theory would be that Mr. Pushparaj was extraordinarily incompetent ; but when we see that when he wanted to, Mr. Pushparaj could act quickly enough.
73. I stated earlier that all enquiries of this kind should conform to certain minimum standards : but Mr. Pushparaj has disregarded every one of them. He has handled the entire proceedings in a manner that is repugnant to all canons of justice and fair play. The petitioner, it appears to me, has been the victim of his vindictiveness.
74. In the result the petition is allowed and the rule nisi made absolute.
75. The question of costs remains. On the merits of the case, the petitioner is undoubtedly entitled to her costs. But, my difficulty is this. The first respondent is the State of Madras and Mr. Pushparaj was not working under the State of Madras when he passed the order in question. The second respondent is the Commissioner of Labour and he too is not responsible for the order passed by Mr. Pushparaj. The third respondent who might have been saddled with costs is outside the territorial jurisdiction of this Court. Mr. Pushparaj could have been properly directed to pay costs, but then he has not been made a party. In the circumstances there will be no order as to costs.