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Deputy Inspector General of Police, Coimbatore and ors. Vs. P. Amalanathan - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 78 of 1959
Judge
Reported inAIR1966Mad203; (1964)2MLJ421
ActsMadras District Police Act - Sections 9 and 10; Central Police Act, 1861 - Sections 12; Constitution of India - Articles 226, 309, 310, 310(1) and 311; Code of Criminal Procedure (CrPC) , 1898; ;Madras Police Standing Orders - Order 90, 90(1), 90(2), 90(3), 90(4) and 90(6)
AppellantDeputy Inspector General of Police, Coimbatore and ors.
RespondentP. Amalanathan
Cases ReferredG. Nageswara Rao v. A.P.S.R.T. Corporation
Excerpt:
service - dismissal order - sections 9 and 10 of madras district police act, section 12 of central police act, 1861, articles 226, 309, 310 and 311 of constitution of india, criminal procedure code, 1898 and order 90 of madras police standing orders - appeal against order quashing dismissal order passed by appellant - respondent contended order of dismissal on ground that he was denied real and effective opportunity to defend himself against charges and deputy superintendent of police who completed enquiry had no jurisdiction to draw up minute which furnished basis for order of dismissal as in contravention with order 90 (3) (b) - defence witnesses were examined behind back of respondent - respondent made representation to deputy inspector general about action of enquiring officer in.....ramakrishnan, j.1. this writ appeal is directed against the order of rajagopalan j. in w.p. 1516 of 1956 presented under art. 226 of the constitution. it was filed by one p. amalanathan, who was a sub-inspector of police. on complaints received that he was corrupt, a departmental enquiry was undertaken against him, on the basis of 16 charges. the details of the procedure at the departmental enquiry will be considered at length later in this judgment. at this stage, it will suffice to note that the preliminary enquiry which involved the examination of witnesses, was conducted by three officers one after the other. the last of them sri rangabhashyam prepared a detailed report (or minute as it is called) embodying his findings on the charges, and submitted them to the deputy inspector.....
Judgment:

Ramakrishnan, J.

1. This writ appeal is directed against the order of Rajagopalan J. in W.P. 1516 of 1956 presented under Art. 226 of the Constitution. It was filed by one P. Amalanathan, who was a Sub-Inspector of Police. On complaints received that he was corrupt, a departmental enquiry was undertaken against him, on the basis of 16 charges. The details of the procedure at the departmental enquiry will be considered at length later in this judgment. At this stage, it will suffice to note that the preliminary enquiry which involved the examination of witnesses, was conducted by three officers one after the other. The last of them Sri Rangabhashyam prepared a detailed report (or minute as it is called) embodying his findings on the charges, and submitted them to the Deputy Inspector General of Police the authority empowered to punish the Sub-Inspector of police under the departmental rules. He was dismissed from service by the Deputy Inspector General of police. His appeal to the Inspector General of police was dismissed and a further representation to the Government was also rejected on 14-8-1956. The petitioner filed a writ petition for the issue of a writ of certiorari under Art. 226 of the Constitution for the quashing of the order of dismissal on two principal grounds, viz., (1) during the departmental enquiry as a whole, the petitioner was denied a real and effective opportunity to defend himself against the charges; (2) Mr. Rangabashyam, Deputy Superintendent of Police, who completed the enquiry, had no jurisdiction to draw up the minute which furnished the basis for the order of dismissal. His action was in contravention of Police Standing Order (P.S.O.) No. 90(3)(b). This writ petition came before Rajagopalan J., who found on a consideration of the allegations and counter allegations that ground No. 1 was not substantiated. In regard to ground No. 2, the petitioner relied in support on a decision of a Bench of this Court consisting of Rajamannar C. J. and Panchapakesa Aiyar J. in W.A. No. 51 of 1955 (Mad). The gist of the police standing order is that the officer who conducts the preliminary enquiry should himself write the minute (the report of his findings) on the basis of which the punishing authority viz., the Deputy Inspector General of police has to pass appropriate orders of punishment. In the present case, as well as in the case which came up before the Bench in W.A. No. 51 of 1955 (Mad) more than one officer has conducted the preliminary disciplinary enquiry. Therefore the officer who drew up the minute (report of the findings) was not the officer who was in charge of the enquiry throughout. In such circumstances, the learned Chief Justice in the Bench decision aforecited held:

'............. the dismissal of the petitioner was vitiated by a lack of jurisdiction in the Deputy Superintendent of Police, Nagapattinam, to complete the enquiry against the petitioner and write the minute on the strength of which the petitioner was dismissed.'

Rajagopalan J. felt himself bound by the aforesaid decision and quashed the dismissal order.

(2) An appeal was filed by the respondents in the writ petition, the Deputy Inspector General of police, Coimbatore, the Inspector General of Police, Madras, and the State of Madras and this came up before a Bench of this Court consisting of Anantanarayanan and Venkatadri JJ. The learned Judges summarised the rival contentions urged before them and found that the dispute had to be resolved by a reference to a Full Bench, because they entertained a substantial doubt concerning the correctness of the interpretation of P.S.O. No. 90(3)(b) by the Division Bench in W.A. No. 51 of 1955 (Mad), and also because the matter itself was of intrinsic general importance. They formulated the terms of reference thus:

'1. Whether the provision in the Police Standing Order No. 90(3)(b) namely 'the officer who writes the minute, namely, who appraises the evidence, should give oral enquiry and not any other officer' implies, (on the assumption that it is a statutory rule) that the entire proceedings, namely, the recording of the evidence of the witnesses, the hearing the officer and the drafting of the minute or report, should be conducted and made by the same person, or merely means that the person who ultimately drafts the minute or report should not do so without giving a personal hearing to the delinquent officer, though he might not have himself examined every one of the witnesses?

2. Upon the assumption that Rule 90(3)(b) is a statutory rule, relating to a disciplinary proceeding, does the violation of such provision per se involve the necessary result that the final order of punishment is void, irrespective of whether the officer was given a reasonable opportunity of defending himself, or the proceedings were in conformity with the principles of natural justice.'

Though only the two terms formulated as above have been referred to the Full Bench, since the entire appeal is also now before us, we proceeded to hear the appeal both with reference to the points thus referred to us for decision, as well as the correctness of the order of Rajagopalan J. on the first point set down by him for decision, viz., whether the departmental enquiry was itself vitiated, because no effective opportunity was given to the respondent in the appeal to defend himself and thus there was violation of the principles of natural justice.

(3) We will take up first for consideration the two points set down in the order of reference by Anantanarayanan and Venkatadri JJ., and which have been extracted above.

(4) It is a well-known practice in almost all the administrative departments in this State (presumably in other States also) to maintain what is known as Standing Orders for the guidance of the subordinate officers. Thus, we have the Board's Standing orders for the guidance of the Revenue department, Collector's standing orders for the guidance of revenue officers in individual districts, and in the Judicial Department we have the High Court's Circular orders and rules of practice. The Madras Police Standing Orders have been similarly issued from time to time for the guidance of officers of the police department. P.S.O. No. 90(3)(b), before us subsequent (to ?) amendment, read as follows, at the time when the respondent was dismissed from service:

'The officer who writes the minute, that is, who appraises evidence should give the oral enquiry and not some other officer.'

We will briefly refer to the prior history of this Standing Order. In the 1926 Edition of the Police Order Book, Vol. I, the appropriate rules for dealing with punishments of subordinate police officers were contained in Rule 227 to 248. But at that time a rule similar to P.S.O. No. 90(3)(b) is not found. The present standing order had its origin in a Government Order 175, Police (Political) dated 1-4-1932. The Inspector General of Police wrote to the Government on 18-3-1932 suggesting an amendment to O. 244 in the 1926 edition of the Police Order Book, Vol. I, by adding the proviso:

'The officer who writes the minute, i.e., who appraises the evidence, should give the personal hearing and not some other officer.'

This letter of the Inspector General of Police itself purports to be in pursuance of an earlier confidential memorandum of the Government dated 7-3-1932. We are shown by the learned Additional Government Pleader a copy of this Memorandum, in which the Government pointed out some irregularities in the disposal of a charge against a Sub-Inspector and observed that it would be desirable that the officer who writes the minute i.e., who appraises the evidence should give the personal hearing and not some other officer. The Government in the G.O. above cited, approved the proposal and issued the amendment. The Standing Order thus issued read:

'The officer who writes the minute, i.e., who appraises the evidence should give the personal hearing and not some other officer.'

The Standing Order in the above terms could well imply, that it would suffice if a personal hearing is given to the delinquent officer, by the officer who writes the minute, but it may not be necessary that the officer who writes the minute should be the one who conducted the enquiry against the delinquent officer throughout. But in 1946, the order underwent a substantial alteration and it was recast in the form mentioned already. This amendment was made in pursuance of a letter from the Inspector General of Police, to the Government dated 23-1-1946, and thereupon the Government, by its order G.O. No. 1335 Home, dated 29-4-1956 substituted the words 'oral enquiry' for the words 'personal hearing or regular enquiry' wherever they occurred in the order. Thereafter, the order in the form it stood at the time of the dismissal of the respondent, emerged. As pointed out by the learned Judges, who disposed of W.A. No. 51 of 1955 (Mad), the wording of the order thus amended is inelegant. While the predicate 'give' can appropriately be used in regard to 'personal hearing', it cannot be the appropriate one for 'oral enquiry'. The word 'holds' would be more appropriate for oral enquiry. But apart from this inelegant use of language, the meaning of the standing order, after its amendment in 1946, is quite plain, namely, that the officer who writes the minute should be the one who was throughout in charge of the preceding preliminary departmental enquiry. If more than one officer had conducted this departmental enquiry, and the finding or minute was prepared by one of them, there would be a violation of the standing order as found by the Division Bench.

(5) The first question pressed on us for consideration by the learned Additional Government Pleader is that this standing order is not a statutory rule, but that it partakes the character only of administrative instructions. The relevant statutory enactment for consideration is Act XXIV of 1859. Section 9 of that Act reads thus:

'The Inspector General may, from time to time, subject to the approval of the State Government, frame such orders and regulations as he shall deem expedient, relative to the general Government and distribution of the force, the places of residence, the classification, rank and particular service of the members thereof, their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; to the collecting and communicating intelligence and information; and all such other orders and regulations relative to the said police-force as the said Inspector General shall, from time to time, deem expedient for preventing abuse or neglect and for rendering such force efficient in the discharge of all its duties.'

Section 10 of the Act reads thus:

'Subject to the provisions of Art. 311 of the Constitution and to such rules as the State Government may, from time to time, make under this Act, the Inspector General, Deputy Inspector General and District Superintendents of Police, may at any time dismiss, suspend or reduce to a lower post, or time scale, or to a lower stage in time scale, any officer of the Subordinate police, whom they shall think remiss or negligent in the discharge of his duty or otherwise unfit for the same and may order the recovery from the pay of any such police officer of the whole or part of any pecuniary loss caused to Government by his negligence or breach of orders.'

The language of S. 10 clearly shows that the rules framed by the State Government under that section relate to the punishment of subordinate police officers for negligence of duty and other reasons. The reference to Art. 311 of the Constitution in that section also reinforces this inference. S. 9 also enables rules to be passed thereunder having statutory force. But the language of that section indicates that the rules framed thereunder do not cover the punishment or disciplinary action against subordinate police officers. The words used in S. 9 imply that the rules contemplated therein are rules which relate to the administrative aspect of the police force.

(6) We were shown the original Government Order of the year 1932, which led to the framing of P.S.O. 90(B)(b) as well as the Government order which amended it in 1946. Though these Government orders purport to have been issued on a correspondence, which originated from the Inspector General of Police, on issuing the orders in question, the Government do not purport to exercise their statutory power under S. 9. A perusal of the several provisions in the Police Standing Orders shows that many of them are of an administrative nature. The margin gives the G.Os, in which the instructions were issued. It is quite likely that the Government in exercise if their administrative control over the police department have issued orders from time to time and that the more important of these orders found their way into the Police Standing Orders.

(7) Reference was made by the learned counsel for the respondent to Note 2(1) of the Prefatory Note of the Madras Police Standing Orders to the effect that orders marked with asterisk are issued by the Inspector General of Police; under S. 9 of the Madras District Police Act, 1859 (XXIV of 1859), with the approval of the Government. Order 90 retains an asterisk in the margin. But one cannot be quite sure that these asterisks in spite of the prefatory note above could be used safely as the guiding factor in all cases for determining whether a rule is statutory or not. We have been shown an edition of the Police Standing Order Book issued in 1950 in which Order 90 does not contain an asterisk. A perusal of the several portions of Order 90 gives the impression that the order includes a great deal of material of an advisory or directory character issued from an administrative point of view for the guidance of subordinate officers and they do not appear to be worded in the formal manner which one associates with statutory orders. Thus, there are two notes under Order 90(2)(c)(vi) and (vii) in the 1950 edition of the Madras Police Standing Orders. The note under sub-clause (vi) is to the effect that 'in grave cases it is often desirable to conduct an oral enquiry whether the delinquent wants it or not'. The note under sub-clause (vii) is to the effect that 'every item of the charge should be carefully and accurately framed, and that it should be remembered that an exact copy of items (i) and (iii) of Order 90(2)(c) will have to be gone into the minute'. This type of instruction found in Order 90 appears to indicate that the above order was intended merely for the guidance of officers when they apply the statutory rules for disciplinary action, framed under S. 10 of the Madras District Police Act, and which are embodied in Annexure III of the Police Standing Orders.

It is also necessary to point out that Order 90(1) makes a reference to Annexure III, as containing the procedure to be followed for imposing the penalty of reduction, suspension etc., and thereafter it proceeds to give several instructions for the guidance of the officers who have to apply the statutory rules contained in Annexure III. Another item of intrinsic evidence furnished by the order itself to show its non-statutory character is the cross-reference to statutory orders found in Order 90. Thus, Order 90(4)(a), (1938) Edn. reads:

'From the moment the investigating officer makes up his mind to proceed against an officer, the requirements of the 'statutory orders' must be observed.'

In the same edition, Order 90(4)(d) reads:

'It is particularly important that the formalities prescribed in the 'statutory order' should be followed if the investigating officer is in the position of a prosecutor.........(Italics (here into ' ') ours).

The above reference to a statutory order is de novo standing Order 90. This would show that Order 90 does not itself have the force of a statutory order and that the appropriate statutory orders for disciplinary purposes must be looked for outside Order 90; they are found in Annexure III of the book of P.S.Os.

(8) Our attention was drawn to a reference to the use of the asterisk made by the Supreme Court in one of the cases, ( : [1964]3SCR742 , State of Andhra Pradesh v. Venugopal) that came up before it. But in that decision apparently no attack was made as was done in this case that the asterisks themselves did not provide the essential clue for making the distinction. The G.O. under which the particular police order was issued did not also show that it was issued under any statutory authority. In view of the discussion mentioned above, it appears to us to be safer to go to the original Government Order itself for the purpose of deciding whether a particular order in the police order book is one issued under the statutory power, or whether it is merely an order which embodies an administrative direction. It will not be sufficient if the Government is shown to have issued a particular order, but it will be necessary to prove that the order was issued in exercise of the statutory power under S. 9 of the Madras District Police Act. In this connection we refer to the decision of the Supreme Court in C.A. No. 453 of 1962: : (1965)ILLJ103SC where a rule issued under a provision closely analogous to S. 9 of the Madras District Police Act, namely, Section 12 of the Central Police Act (Act V of 1861) was referred to, for the purpose of finding out whether certain standing orders in force in Uttar Pradesh should be deemed to be statutory orders, issued under S. 12 of the Central Act V of 1861. S. 12 of that Act reads:

'The Inspector General of Police may, from time to time, subject to the approval of the State Government, frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution, of the police force the place at which the members of the force shall reside, and the particular services to be performed by them..........'

A comparison of this section with S. 9 of the Madras District Police Act shows their close analogy. The Standing Order under examination in that decision, dealt with a rule providing for guidance in the matter of promotion as well as confirmation of subordinate police officers. Taking up for consideration the question whether the order, which purported to have been issued by the Inspector General of Police, had any legal efficacy, the Supreme Court observed:

'This would depend upon the Standing Orders having been issued by a competent authority under the provisions of a statute which empowered that authority to prescribe 'conditions of service'. For undoubtedly if it were not so, it would be merely an administrative instruction issued by the Inspector General of Police for the guidance of his officers but could not determine service conditions fixed by statute or statutory rules by competent authorities or confer any legal rights which in the event of non-observance could be the object of complaint in a court.'

Then, after referring to S. 12 of the Central Act V 1861, the Supreme Court observed:

'It is clear that the orders and rules referred to in this section have nothing to do with the determination of the service conditions of the officers recruited to the police force.'

Prima facie, bearing in mind the purpose for which S. 9 of the Madras District Police Act was enacted as stated in that section itself, it could not deal with the framing of rules for disciplinary action, for which the relevant section is S. 10 of the Act. Therefore, Order 90 (3)(b), which relates to disciplinary action, to have legal validity as a statutory rule, would have to be framed under S. 10 of the Act. But it is not the case of either party that it was so framed. It must be considered to be only a rule of a non-statutory and administrative nature.

(9) The next question for consideration is whether, even assuming for the sake of argument that the order aforesaid in the Madras Police Standing Orders is a statutory order, its violation must necessarily lead to the quashing of the order of dismissal. Sri K. K. Venugopal, appearing for the respondent, referred to a judgment of Ramachandra Iyer J. (as he then was) in an unreported decision--W.P. 1525 of 1956 (Mad). In that case, the question for consideration was whether the order of Government transferring the petitioner as a Sub-Inspector of police from the Police Service, where he was a probationer, to the Excise Service, was proper or not. Observing that probation, once commenced, could be terminated only under the rules, that the terms and conditions of the service of a probationer would, be governed by the rules framed in that behalf, and that the petitioner would be entitled to the protection which those rules provide, the learned Judge held:

'The Madras District Police Act and the Rules framed thereunder have statutory force, and, if there is a contravention of these provisions, the officer affected would have a right to approach the court, as the contravention of a statute or rules framed thereunder would be justiciable in the absence of any provision therein to the contrary. Even in a case where there was a mere breach of the service rules framed by the executive Government without a violation of the constitutional safeguards, it has been held that the High Court could issue a writ to quash the order in disciplinary proceedings against an officer where the order was void.'

Thereafter, the learned Judge allowed the writ petition.

(10) A somewhat different view has been held by Rajagopalan J. in Sambandhan v. R.T.S. Southern Rly., : (1957)2MLJ541 , where at page 553, of the report (Mad LJ): (at p. 247 of AIR) he observed:

'......... the fact that the Executive had framed rules to regulate the conditions of service does not by itself clothe the civil servant with a right to seek the aid of the court, when he has been wronged by violation of any of those rules. To hold that the court has that jurisdiction would, it appears to me, constitute an inroad on the concept, that the civil servant holds office during the pleasure of the Executive, and warranted by the terms of the Constitution.'

The learned Judge purported to follow earlier decisions, which he had cited in his judgment. Rajagopalan J also observed that the rules constitute a solemn assurance on the part of the Executive that its pleasure would be exercised in accordance with the rules, but they do not bring into existence rights and obligations enforceable in a court, and that the wrong suffered by a civil servant by any contravention of the rules has to be redressed by the Executive itself to whose pleasure the Constitution has committed him.

But the above view has to be reconsidered in the light of the later decision of the Supreme Court in State of Uttar Pradesh v. Baburam, : 1961CriLJ773 , wherein there is an analysis of the history of what can be called, for brevity, the pleasure doctrine, in regard to the holding of office by Government servants, as evolved in the successive Government of India Acts and finally embodied in the present Constitution. The same decision also contains weighty observations which are binding on this Court, and which relate to the effect of statutory rules framed under Art. 309 of the Constitution in the context of the pleasure doctrine enunciated in Art. 310 of the Constitution. Though the learned counsel for the respondent Sri K. K. Venugopal took us through this history of the pleasure doctrine, it is unnecessary to recapitulate them in this judgment, because they have been adverted to in several decisions both of this Court as well as of the Supreme Court. But it is important to make a note of the result of the Supreme Court's decision in : 1961CriLJ773 on this statutory principles. The Supreme Court reached two crucial conclusions, which are binding on this Court. Firstly, the pleasure, subject to which a public servant holds an office as expressed in Art. 310(1) of the Constitution, is the individual pleasure of the President in the case of a Central Government servant or of the Governor in the case of a State Government servant. This power of the President or the Governor to dismiss a civil servant at pleasure, cannot be delegated to any subordinate officer and can be exercised only by named authorities, namely, the President or the Governor. The only restriction in the exercise of the pleasure by these two authorities, is the one provided in Art. 311 of the Constitution; this inference has to be spelt out from the use of the words 'except as expressly provided by this Constitution' in Art. 310(1) of the Constitution. Secondly, so far as the rules and laws framed or enacted under Art. 309 of the Constitution are concerned, they cannot override the power conferred upon the President or the Governor under Art. 310 as qualified by Art. 311. The authorities mentioned in Art. 309 can make laws and frame rules subject to this overriding power. While so doing they can also lay down laws and frame rules regulating the scope and content of the doctrine of reasonable opportunity embodied in Art. 311 of the Constitution.

(11) This discussion would lead to the result that rules framed under Art. 309 of the Constitution can include rules which are intended to regulate the scope and content of the doctrine of reasonable opportunity under Art. 311 of the Constitution. The violation of such rules will be justiciable. But, rules can also be framed under the statutory power under Art. 309 of the Constitution, which need not have the aforesaid object. There can be rules designed purely for the purpose of administrative guidance. The question is how far the violation of such rules will be justiciable.

(12) This question about the justiciability of rules framed under Art. 309 of the Constitution came up for consideration before the learned Judges of the Supreme Court in : 1961CriLJ773 . Taking up the specific question of the justiciability of the rules framed under Art. 309 of the Constitution, which might not fall within the category of rules regarding the scope and content of the doctrine of reasonable opportunity the learned Judges proceeded to discuss the conditions which would be necessary before the violation of such rules could be held to be justiciable. For this purpose, they applied a distinction well known in the law of interpretation of statutes, the distinction between directory and mandatory rules. Learned counsel Sri K. K. Venugopal, appearing for the respondent, took us through several chapters of 'Craies on Statute Law' dealing with absolute and directory enactments. He stressed on the use of the negative in the order under consideration in this case and urged that this word provide a clue to its mandatory character. But even Craies observes that this test cannot be laid down as a universal rule, and that while no universal rule can be laid down for this purpose, it is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. As pointed out by the Supreme Court in : 1961CriLJ773 , the court may consider inter alia the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, and the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions or is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.

(13) Examining the Police Standing Order No. 90(3)(b) under consideration, from this point of view, we note, first of all, that decisions of the Supreme Court have repeatedly held that the findings of the officer who conducted the preliminary enquiry are not conclusive so far as the delinquent officer is concerned. They can be deferred from or accepted according to the decision of the punishing authority. In Union of India v. H. C. Goel, : (1964)ILLJ38SC , the Supreme Court observed at page 367:

'The object of the enquiry is plain. It is to enable the Government to hold an investigation into the charges framed against a delinquent public servant; so that the Government can, in due course, consider the evidence adduced and decide whether the said charges are proved or not. The interposition of the enquiry which is held by a duly appointed enquiry officer does not alter the true legal position that the charges are framed by the Government and it is the Government which is empowered to impose punishment on the delinquent public servant. Therefore, on principle, it is difficult to see how the respondent is justified in contending that the findings recorded by the enquiry officer bind the appellant in the present case.'

(14) Likewise, the Supreme Court in Kapur Singh v. Union of India, : [1960]2SCR569 observed:

'The President of India was not bound before passing an order dismissing the appellant, to hear the evidence of witnesses. He could arrive at his conclusion on the evidence already recorded in the inquiry by the Enquiry Commissioner. '

The Supreme Court followed the observation of Lord Thankerton in the Privy Council decision in the High Commissioner for India v. I. M. Lall :

'In the opinion of their Lordships no action is proposed within the meaning of the sub-section (S. 240, clause (3)) until a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined on. 'Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical' (Italics (here into ' ') ours). At the same time it should be made clear that the enquiry officer is not an amanuensis regarding the deposition of witnesses. He is entitled to give his findings and the punishing authority is bound to take a note of them, but there is this overriding qualification that the findings of the enquiry officer are supplied to the delinquent, who has got a right to make his representations to the punishing authority against those findings, and it is the conclusion reached by the punishing authority, after he had considered the findings of the enquiry officer on the one hand and the representations of the delinquent officer on the other, that is really binding and conclusive in the case.'

(15) This shows that the requirement in the Order in question that the officer, who holds the oral enquiry, should himself write the report or minute of the findings, must be deemed to be only of a directory character and not mandatory, because the findings of the enquiry officer do not have a conclusive or binding effect on the punishing authority. The position in the case of such preliminary enquiry is therefore different from criminal trials, where one Judge is transferred and another Judge takes his place. In such a case, the accused has the right to ask for a de novo trial under S. 350 Cri P.C. The implications of this right to ask for a de novo trial given to the accused, have been considered at length by a Full Bench of this Court in Fernandes In re 1958 2 MLJ 294: AIR 1958 Mad 571 , where the question arose whether a right of de novo trial can be claimed by the accused in a case of trial by a Special Judge and the Bench laid down the principle that except in cases, where the statute made a provision for the purpose, the entire oral evidence should be heard by the presiding officer before he could pronounce judgment in a criminal case. But this salutary principle is applicable to cases where the binding judgment or decision has to be given by the officer who holds the enquiry. That there may be an appeal against his decision, is a different matter. There is a fundamental distinction between an officer who holds a preliminary departmental enquiry against a delinquent officer and submits his findings to the punishing authority with the limitation that the findings have no final or conclusive value, but are only provisional and may or may not be accepted by the punishing authority, and a court engaged in the trial of a criminal case, which has got the power to pronounce, on the guilt of the accused and the decision, is final, so far as trial Court is concerned.

Further reinforcement to the inference now drawn, that the rule is directory rather than mandatory is provided by the fact that subsequent amendments to Order 90 have treated the present provision as involving a lacuna requiring amendment. The new amended order reads:

'The officer who conducts the oral enquiry and appraises the evidence should ordinarily write the minute. But if for any reason the officer is not able to complete the enquiry another officer may continue the enquiry and write the minute with the evidence so recorded by the previous officer and partly recorded by that officer and partly recorded by himself. If, however, the officer is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may resummon any such witness and after such further examination, cross-examination and re-examination, if any, as he may permit the witness shall be discharged.'

In other words, the requirement that the same office should hold the enquiry and write the minute cannot in all cases, be treated as absolute, to ensure justice to the delinquent. It has to be applied only subject to reasonable safeguards. One such safeguard will be an option given to the delinquent officer to ask for a de novo enquiry or to waive it. In the present case, it has to be pointed out that the delinquent officer waived a de novo enquiry at an earlier stage when there was change in the personnel of the enquiring officer. Only when there was a further change in the personnel of the officer and a dispute arose about the order in which the P.W. 4 to be recalled for cross examination and the D.W. 4 had to be examined did he insist upon a de novo enquiry. As already pointed out the delinquent officer, unlike the accused in a criminal case, has got an opportunity to make a further representation against the findings of enquiry officer, when the matter comes up before the punishing authority at the final stage. That representation may include very well a representation about the inadequacy of the preliminary enquiry, or even include a necessity for a direction for a fresh enquiry. It, therefore, appears to us that as long as the findings of the officer holding the preliminary enquiry have no value as a conclusive determination of the case against the delinquent officer, the order now under consideration should be considered to be directory rather than mandatory. We would also like to point out in this connection that when we asked the learned Government Pleader whether there is a similar provision in the rules for departmental enquiry in the case of other departments, he has was not able to show us any such rule. In State of Mysore v. Shivabasappa, : (1964)ILLJ24SC the Supreme Court accepted the position that even a reading over of the prior statements of witnesses to the delinquent officer would satisfy the requirements of natural justice.

(16) Learned counsel appearing for the respondent referred to certain decisions in this connection dealing with the demeanour of witnesses. One of them is a decision of the Gujarat High Court in Hemrajsinhji v. I.G. of Police, : AIR1961Guj63 , where at page 67 there was an observation to the effect that the enquiry was vitiated because the officer who had the occasion to see the witness and observe the demeanour had not written any summing up, but it was written by his successor. The first point to observe is that the Gujarat High Court had also taken into account several other irregularities in the trial including the addition of a charge at a subsequent stage and the absence of proof for one of the charges. It is after taking all these into consideration together that the Gujarat High Court set aside the decision. Further, the Gujarat High Court did not have the opportunity of reading the observations in : (1964)ILLJ38SC , referred to above and wherein stress has been laid on the value to be given to the findings of the officer who conducted the preliminary enquiry.

Again another decision referred to by the learned counsel for respondent is a decision of a single Judge of the Calcutta High Court in Amulya Kumar v. L. M. Bakshi, : AIR1958Cal470 . The Calcutta High Court construed the decisions of the Privy Council in Chainchal Singh v. Emperor , and of the Calcutta High Court in Sarba Ranjan Bysack v. Sm. Haripriya Dassi, 53 Cal WN 569, which referred to the trial of civil or criminal cases. Those decisions laid down the principle, that it is an elementary right of an accused person in a criminal case, or a litigant in a civil suit, that a witness who is to testify against him should give his evidence before the Court trying the case, or a litigant in a civil suit, that a witness who is to testify against him should give his evidence before the Court trying the case which then has the opportunity of seeing the witness and observing their demeanour. The Calcutta High Court also referred to another criminal case, King Emperor v. Sakharam, ILR 26 Bom 50 where it was held that under the Code of Criminal Procedure the Sessions Judge was not authorised to try a case partly upon evidence not recorded by himself and that he could not do so although the accused had given consent to such a course. The Calcutta High Court after noting that departmental proceedings were not governed by the Indian Evidence Act, observed that to satisfy to the rules of natural justice, the officer who has to come to a conclusion as to the guilt of the delinquent, should be the same officer who heard the evidence and observed the demeanour of the witnesses. Here again, the essential distinction between a preliminary departmental enquiry, where the findings are purely tentative and do not have a binding force, and a criminal or a civil case where the trial court has got the duty to come to a conclusive decision on the dispute, has not been adverted to, by the Calcutta High Court. This substantial distinction between the proceedings in a civil or criminal court on the one hand and the proceedings in a departmental enquiry on the other, has to be borne in mind when the procedure wherein the officer who held the enquiry did not write the minute, but a different officer, has been challenged as having vitiated the enquiry.

(17) G. Nageswara Rao v. A.P.S.R.T. Corporation, : AIR1959SC308 which was relied upon by the learned counsel for the respondent in this connection, dealt with an entirely different set of circumstances. There, a question arose as to the implementation of the scheme framed by the Andhra Government for a State Transport Undertaking taking over the transport of buses to the exclusion complete or partial of other persons. The scheme provided for an enquiry followed by disposal of the objections. For carrying out the scheme, the rules framed by the Government imposed a duty on the Secretary to the Government to hear the objections and the Chief Minister to decide on the objections. The Supreme Court observed that the above divided responsibility was restrictive of the concept of judicial hearing and such a procedure defeated the object of personal hearing, that personal hearing enabled the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned arguments to accept his point of view, and that if one person heard and another decided, then personal hearing became an empty formality. The Supreme Court then observed that the said procedure followed in the case offended another basic principle of judicial procedure. The first point to note is that in the above case there is a clear finding that though a body constituted under the rules to decide the objections was an administrative tribunal, if it is called upon to decide the respective rights of contesting parties, in other words, if there is a lis, the Tribunal has got a duty to decide the dispute judicially and in that particular case, it is obvious that the State Government has to act judicially in approving the scheme proposed by the State Transport Undertaking. But in the present case of an enquiry for punishing a departmental subordinate for irregularities, there is no question of two parties or a lis pending between them. Secondly, several decisions cited above have held that there is no irregularity where such departmental enquiries provide for a preliminary enquiry which involves the writing down of depositions of witnesses being held by one officer as delegate of the punishing authority, and the punishing authority thereafter acting upon the statements so recorded, taking into consideration the findings given by the enquiring officer and after giving an opportunity to the delinquent officer to make his representations, dispose of the case by punishing or exonerating the delinquent officer. The principles laid down in : AIR1959SC308 must, therefore, be applied only to proceedings which are quasi judicial in nature and cannot be invoked for dealing with a departmental enquiry conducted according to the statutory rules against a delinquent Government officer. In our opinion, for the reasons mentioned above, the order in question is a directory Order and not a mandatory Order, and no error of jurisdiction vitiating the enquiry has resulted in the present case, through its non-compliance.

(18) Next, we come to the second point regarding the merits of the allegation that the procedure adopted for punishing the respondent involved a violation of the rules of natural justice, in the sense that the opportunity given to him to defend himself was not a real one.

(19) We will briefly summarise the procedure adopted at the enquiry. First of all, there were complaints from anonymous persons and other sources that the respondent was corrupt. Investigation was undertaken by the X branch of C.I.D. and based on the report of the Officer, who conducted this investigation, charges were framed against the respondent, and the Assistant Superintendent of Police, Hosur, Mr. M. V. N. Rao, was directed to hold the enquiry into 16 charges of alleged corruption. The respondent submitted his explanation on 16-12-1952. The enquiry before Mr. M. V. N. Rao began on 19-12-1952. On 7-1-1953, 29 prosecution witnesses were examined, and on 2-3-1953, another seven prosecution witnesses were examined. By 2-3-1953, the case against the delinquent officer, i.e., the prosecution evidence so to say was over. While this enquiry was proceeding, the respondent felt that he had not been given an opportunity of perusing all the records of the prior investigation so that he could cross-examine the prosecution witnesses. In particular, he mentioned in a petition dated 14-1-1953 to the Assistant Superintendent of Police, Hosur, that he would like to peruse the petition on which the C.I.D. took up investigation on the allegation of corruption against him and also the report of the Inspector of Police, X Branch C.I.D. who conducted the investigation. He also requested that some of the prosecution witnesses might be recalled for further cross-examination, besides defence witnesses. Mr. M. V. N. Rao, the enquiring officer, informed the respondent on 21-1-1953, that the defence should be completed and then such of the prosecution witnesses whom the respondent wished to recall for further cross-examination would be recalled if the officer holding the enquiry was satisfied that further questions which he wished to put to such witnesses were relevant. Mr. M. V. N. Rao drew the respondent's attention to P.S.O. 90(6). On 24-1-1953, the respondent made a representation to the enquiring officer that further cross-examination of the prosecution witnesses should precede the examination of the defence witnesses.

Sometime after this, Mr. M. V. N. Rao was transferred and one Mr. Balasundaram was posted in his place as Deputy Superintendent of Police, and he commenced the enquiry. This new officer sent a memorandum to the respondent on 15-4-1953 asking him if he required a de novo enquiry. The respondent stated that since he had cited most of the prosecution witnesses as defence witnesses, he was dispensing with a de novo enquiry. Thereafter, Mr. Balasundaram drew up a programme for examining the defence witnesses as well as the prosecution witnesses, whose examination was required by the respondent, and this programme was communicated to the respondent by a Memorandum dated 27-4-1953. A perusal of this memorandum shows that under each heading of charge, the names of the defence witnesses were first given and then the names of the prosecution witnesses whom the respondent required for being recalled were given subsequently. Thus, for the hearing on 3-5-1953, two witnesses cited as defence witnesses were given ranks as 1 and 2 and P.Ws. 1 and 2 recalled were given the ranks 3 and 4. In the meantime, the respondent was pursuing his request for perusal of documents for the purpose of the cross-examination of the witnesses already examined by the prosecution at a time when he did not have access to the records. Apparently, most of the records were given to the respondent for perusal and he informed the enquiring officer on 24-1-1953 that he was grateful to the officer for having allowed him to peruse the statement recorded by the X Branch Inspector and he requested the officer to grant him copies of statements of six witnesses. Thus, it would appear that the statements of important witnesses already recorded during the investigation were given to the respondent for perusal before 24-1-1953 and that he had no objections outstanding in regard to those statements.

In the meantime, Mr. Balasundaram was transferred and one Mr. Rangabashyam was posted to his place and directed to conduct the enquiry. Mr. Rangabashyam posted to enquiry before him on 25-6-1953 and 30-6-1953. At this stage, the respondent came forward with two requisitions, one was for perusal of the records that he had already called for and the other was for further examination of the recalled prosecution witnesses before the examination of the defence witnesses. In regard to the second request, Mr. Rangabashyam, the enquiring officer, insisted that the respondent should examine his defence witnesses first before the prosecution witnesses were recalled to enable the respondent to cross-examine them. The respondent also sent a petition to the Deputy Inspector General of Police on 2-7-1953, representing among other requests, that he should be given an opportunity to cross-examine the recalled prosecution witness first before the defence witnesses and to peruse all the records. The Deputy Inspector General of police in his reply dated 7-7-1953 stated that the respondent would be permitted to peruse at the oral enquiry, i.e., in the presence of the officer holding the enquiry, any records having a bearing on the enquiry other than any statements or notes, records or any preliminary or confidential documents. He also stated that if any record was considered unnecessary to be produced at the enquiry, written reasons would be recorded by the officer holding the enquiry. The officer holding the enquiry was made responsible for obtaining the presence of all witnesses including those cited by the respondent. No specific direction was given regarding the prayer for the examination of the recalled prosecution witnesses first before the examination of the defence witnesses.

Mr. Rangabashyam informed the respondent on 26-6-1953 peremptorily that the respondent had been already informed by the previous enquiring officer that under the provisions of P.S.O. 90(6) the defence witnesses would have to be examined first before the recalled prosecution witnesses. This Memorandum also pointed out that on 25-6-1953, when the respondent appeared before the enquiring officer, he gave a typed petition and walked away abruptly without waiting for orders. The Memorandum also informed the respondent that if he did not appear before the enquiring officer within five days after the receipt of the Memo, the oral enquiry would be closed and the charges against him would be disposed of against him on merits. After the Deputy Inspector General's directions dated 7-7-1953 were received, the enquiring officer again gave a Memorandum directing the respondent to appear before him on 13-7-1953 and 14-7-1953. On 14-7-1953, the respondent again insisted upon the recalled prosecution witnesses being examined first before the examination of the defence witnesses. He again asked for an opportunity to inspect the records at Salem on 13-7-1953 and 14-7-1953. If his request could not be complied with, he prayed for a de novo enquiry. In this letter the respondent drew attention to the Memorandum of Mr. Balasundaram, Deputy Superintendent of Police, dated 27-4-1953 in which all the witnesses and the records that he had cited in his defence had been summoned, and that he was unable to know why the new officer Mr. Rangabashyam had cancelled the earlier order. The enquiring officer replied to this, refusing the alteration in the order of examination of the witnesses and also refusing a de novo enquiry. The Memorandum mentioned that as many as 20 witnesses cited as defence witnesses had been summoned and were present on that day for examination, that the remaining witnesses could be called as and when necessary, and that if the respondent was not prepared to examine the defence witnesses present on that day, the proceedings would be conducted ex parte.

Soon afterwards, the respondent gave a written reply to the enquiring officer that the oral enquiry might be stopped at that stage, so that he could take up the matter to the Deputy Inspector General of Police or the Inspector General of Police for redress. Thereafter, the respondent did not take any further part in the enquiry. But it appears from the record that one defence witness was examined or 22-7-1953 and afterwards D.Ws. 2 to 12 were examined on 28-8-1953 and D.Ws. 13 to 15 were examined on 30-8-1953. Immediately after he was told that the proceedings would be continued ex parte against him without granting a de novo enquiry, he sent a petition to the Deputy Inspector General of Police on 24-7-1953 for a de novo enquiry and the Deputy Inspector General refused his request by an order passed on 25-8-1953.

This order of the Deputy Inspector General of Police can be extracted below:

'You have already been given an opportunity to examine any witness who may have anything to state which has any bearing on the enquiry in which you are concerned. It has been reported that you did not wish to examine them when an opportunity was given to you. It has therefore been correctly taken that you have changed your mind and did not wish to examine them.

(2) As you are not the officer holding the enquiry you cannot be permitted to hold the enquiry as you wish. The officer holding the enquiry had been examining the witnesses in the order most suitable to the enquiry.

(3) You have been trying to adopt stupid and obstructive tactic during the enquiry by asking for witnesses to be questioned and documents to be produced which have no bearing on his enquiry. The enquiry of course will not be started all over again.'

It was presumably after the above order of the Deputy Inspector General of Police that the enquiring officer examined all 11 defence witnesses on 29-8-1953 and 3 defence witnesses on 30-8-1953 at a time when the respondent was not present. Thereafter, Mr. Rangabashyam drew up a minute finding the respondent guilty of most of the charges and these findings were accepted by the Deputy Inspector General of Police, and the respondent was dismissed from service and the Inspector General of Police rejected the appeal preferred by the respondent.

(20) The respondent in the writ petitions attacked the procedure as being opposed to the principles of natural justice and amounting to a denial of reasonable right of defence, under several headings. We will refer to them briefly:

1. There was refusal to supply to the respondent the former statements of witnesses recorded by the X Branch C.I.D. Inspector. We have already referred to the fact that though at the earlier stages of the enquiry of the prosecution witnesses these statements were not made available to the respondent he was allowed to peruse them at a subsequent stage and he expressed his gratitude to the enquiring officer Mr. M. V. N. Rao, for allowing him to peruse the records. It is possible that he could have taken notes of these statements and kept them for the purpose of cross-examining the witnesses, when they were expected to appear at a subsequent stage after being recalled. It is therefore difficult to understand why he should insist upon perusing these statements again at the subsequent stage of the enquiry. We therefore do not consider that this objection has any substance.

(2) The second objection is that he wanted copies of certain documents, which were not supplied to him. The first item is a copy of the petition on which the X Branch investigation commenced. This petition is said to be a pseudonymous one--vide paragraph 3 of the affidavit. The respondent referred to a prior communication dated 17-2-1953 in which the department had offered to make the petition available as soon it was received, but he was subsequently informed on 23-7-1953 that the petition on which the C.I.D. took up the investigation was not available. But in the counter affidavit in paragraph 40, the State Government stated that the petition was of a pseudonymous nature and it was sent by the Inspector General of Police to the enquiring officer. If it was an essential document, it could have been obtained from the Inspector General of Police. Since it was admittedly a pseudonymous petition, there would be no question of confronting any of the prosecution witnesses with a prior statement, even if a copy of this pseudonymous petition was supplied to the respondent. We therefore consider this ground to be baseless.

Reference was next made to the request of the respondent for being supplied with a copy of the accident register kept in the hospital at Salem. It was urged by the respondent that this accident register would show that he was present in the hospital, to which place he had taken a person injured in the course of an accident, at a time, when according to the department he is alleged to have been engaged in receiving bribes to release a person on bail. The respondent's contention was that this accident register, if produced, would be an effective alibi for him. The respondent wanted this document to be summoned because, after his suspension, he could not go about in his uniform and the District Medical Officer refused to allow a police officer without uniform to peruse the entries in the accident register. The respondent cited this document as a document for his defence in respect of charge No. 7.

The Assistant Superintendent of Police Mr. M. V. N. Rao, who conducted the enquiry, intimated the respondent that he would meet the District Medical Officer, Salem, and see that he was allowed to peruse the accident register, But nothing is known as to what happened to the summoning of this document, but it is admitted that this document refers only to one of the 16 charges against the respondent, under 14 of which he has been found guilty. Therefore, even assuming that this document should have been summoned to give an opportunity to the respondent for his defence, it would affect only one of the 14 charges, and cannot be construed as a document which had prejudiced the disposal of the rest of the charges.

The third item referred to was refusal to supply of a list of investigation records received by the Deputy Superintendent of Police, Salem. After several reminders, the respondent was told by the enquiring officer that the list of records received by the Deputy Superintendent of Police was not relevant and was not evidence by itself. It was open to the enquiring officer to admit only such of the documents as he considered relevant and therefore this objection appears to us to be groundless.

The fourth item related to the denial of the list of records handed over to Assistant Superintendent of Police, Hosur, by the Inspector on 21-12-1952. On 13-7-1953, respondent's request for the above list was refused on the ground that it was not relevant. The respondent contended that the enquiring officer had admitted on an earlier occasion that he had given the document to the respondent for perusal on 7-1-1953. But that will not affect the merits of the decisions given on 13-7-1953, about the irrelevancy of the document.

The fifth item was denial to supply a copy of the petition sent to the Deputy Superintendent of Police, on which he investigated the case. This was a pseudonymous communication sent to the Deputy Superintendent of Police. The respondent alleged in his affidavit that on the allegations in the pseudonymous petition, the District Superintendent of Police, had submitted a report that there was no such allegation against the respondent when he was in charge of the Mecheri police station. To the request of the respondent for this document, he was told that the document was probably in the chief office, Madras, and steps would be taken to get it, if possible. The document was thereafter never supplied to him. Learned counsel for the respondent stated that the counter affidavit in regard to this allegation stated that pseudonymous petition related to a C.I.D. enquiry and it was not made available for perusal by the respondent. This may not be quite a satisfactory explanation. What we have already observed earlier in connection with another pseudonymous petition will apply to this document also.

Similarly, another petition by one Perumal Goundan to the Inspector General of police was summoned by the respondent. The petition was to the effect that some congressmen were coercing the respondent and other villagers to give false evidence against a delinquent officer. On 13-7-1953, the enquiring officer informed the respondent that steps were being taken to ascertain whether a copy of it was received by the Inspector and make it available if possible. But subsequently the enquiry was conducted ex parte. We are of the opinion that none of the above grounds are adequate for holding the enquiry to be vitiated because of denial of natural justice or of reasonable opportunity to the respondent.

3. Another ground urged was that the enquiry was vitiated because Mr. Rangabashyam, the third enquiring officer, declined to grant a de novo enquiry. It was pressed on us by the learned counsel for the respondent that the enquiring authorities had conceded the principle that whenever there was a change in the personnel of the enquiring officer, a de novo enquiry could be claimed by the delinquent officer, vide the procedure adopted by Mr. Balasundaram, the second enquiring officer, when he took the place of the first enquiring officer Mr. M.V.N. Rao. In our opinion, the fact that the second enquiring officer, Mr. Balasundaram, gave an opportunity to the respondent to state whether the respondent would require a de novo enquiry, would not lead to the conclusion that a similar opportunity should be given at all subsequent stages when there was a change of personnel of the enquiring officer. No rule has been shown to us that the respondent could insist on a de novo enquiry in such circumstances as a matter of right. It is quite possible that Mr. Rangabashyam considering the time taken and considering the stage at which the enquiry had reached, when he took charge (by that time the evidence of the prosecution witnesses was already taken), could have very well refused a de novo enquiry on the ground that it was bound to lead to protraction of the proceedings unduly.

(21) A similar ground was urged before us that the previous enquiring officer, Mr. Balasundaram has arranged for the examination of the prosecution witnesses and the defence witnesses in a programme by his notice dated 27-4-1953, and that this programme clearly showed that he was prepared to concede the request of the respondent to examine the defence witnesses after the examination of the recalled prosecution witnesses. A perusal of this memorandum of Mr. Balasundaram dated 27-4-1943 shows that on the days when he had posted the enquiry for examining the witnesses, the names of defence witnesses are mentioned first and the names of recalled prosecution witnesses are mentioned next under each heading of charge. It cannot, therefore, be held that the principle that the recalled prosecution witnesses should be examined first before the examination of the defence witnesses had been conceded by the second enquiring officer, Balasundaram and that therefore Mr. Rangabhashyam, the third enquiring officer, deliberately ignored this principle, and thereby caused a failure of natural justice. However, there is one important difference in the procedure adopted by Mr. Rangabashyam when he took up the enquiry. He had not adopted the procedure of hearing the witnesses both for the defence as well as the prosecution, charge by charge. There was a large number of defence witnesses whom he had summoned for the hearing on 22-6-1953, and without any reference to the grouping of witnesses under each charge, Mr. Rangabashyam insisted upon all the defence witnesses being examined first before the recalled prosecution witnesses could be cross-examined on any of the charges. Mr. Rangabashyam by this procedure seems to have proposed a rather summary method of dealing with the defence witnesses and ignored the more logical method suggested in the memorandum dated 27-4-1953. But on that ground it cannot be held that any principle of natural justice had been violated.

It would appear that Police Standing Order 90(6) contains a clause that after the completion of the defence the enquiring officer should allow the delinquent officer to recall any witness for further examination, when the delinquent officer expresses his desire for that purpose. This provision has been relied upon by Mr. Rangabashyam and also by Mr. Balasundaram, when they insisted that the defence witnesses should be examined first before the recalled prosecution witnesses. But they have differed as to whether this rule should be applied charge by charge after splitting up the witnesses over the different charges for which they had to speak--the procedure adopted by Mr. Rangabashyam--or whether they should be examined together irrespective of the charges--the procedure adopted by Mr. Rangabashyam. It can be stated that the delinquent officer cannot insist upon the enquiring officer following any particular order for the examination of the witnesses cited by him. But what is important to bear in mind is that neither Mr. Balasundaram nor Mr. Rangabashyam conceded the demands of the respondent that the recalled prosecution witnesses should be examined first before the defence witnesses. It is also important to note that the respondent did not demur to the procedure adopted by Mr. Balasundaram, when, in respect of each charge, the defence witnesses were proposed to be examined first before the recalled prosecution witnesses. For the aforesaid reason, one may reasonably hold that the respondent adopted an obstructive attitude when he insisted before Mr. Rangabashyam, that the defence witnesses should be examined last after the recalled prosecution witnesses were examined. Since he had only to cross-examine the recalled prosecution witnesses wherever there was a prior statement, for the purpose of contradiction he could have very well submitted to the direction of Mr. Rangabashyam instead of taking the obstructive attitude which he did in refusing to take part in the enquiry any further.

(22) However, we are of the opinion that, after what happened on 22-7-1953, before the enquiring officer, the subsequent procedure adopted by the department cannot be supported on any reasonable interpretation, of the principles of natural justice. We recall that on 22-7-1953, the delinquent officer asked Mr. Rangabashyam to stop further enquiry. Since the order in which the defence witnesses had to be examined was not conceded to his satisfaction, he asked for a de novo enquiry. He stated that if de novo enquiry was not to be granted, he would address the Deputy Inspector General of Police for clarifying the matter and in the meantime the proceedings should not go on. On that day, 20 of the defence witnesses cited by the respondent were present. But for some reason, which is not very clear, one of the defence witnesses was examined by Mr. Rangabashyam on that day itself. The enquiry seems to have been thereafter adjourned for nearly a month. The long interval up to 29-8-1953 shows that the enquiring officer was prepared to postpone the proceedings from 22-7-1953 for a sufficiently long period to allow the result of the respondent's petition to the Deputy Inspector General of Police to be known. The Deputy Inspector General turned down the request of the respondent on 25-8-1953 and informed the respondent of that fact. He must have also informed the local police officers of that fact. But on 29-8-1953 the enquiring officer examined D.Ws. 2 to 12 and again on 30-8-1953, he examined D.Ws. 13 to 15. This part of the enquiry was held behind the back of the respondent. Learned counsel appearing for the respondent urged that the respondent applied for the postponement of the proceedings on 22-7-1953 only for the purpose of obtaining orders from the higher authorities about the propriety of the procedure, but after the Deputy Inspector General turned down his request by order dated 25-8-1953, the enquiring officer was bound to give a notice to the respondent stating that he was going to recommence the enquiry in the light of the orders of the Deputy Inspector General. The enquiring officer was not at all justified in proceeding to examine a large number of the respondent's own witnesses without giving notice to him and behind his back. This grievance has been put down in paragraphs 15 and 16 of affidavit of the respondent thus:

'.............. unfortunately the Deputy Inspector General of Police, Western Range, turned down my petition asking for the four reliefs......... Even though I was waiting for intimation for the further dates of the holding of the enquiry and the witnesses to be examined on each date, in view of the fact that my petition to the Deputy Inspector General of police had been disposed of by him by his order dated 25-8-1953, no such notice was ever received by me. It came rather as a shock to me, therefore, when I received the show cause notice dated 2-11-1953 on 5-11-1953, enclosing a copy of the minute drawn up by the Deputy Superintendent of Police, Mettur.........asking me why I should not be dismissed from service for having been found guilty of 12 out of 16 charges. Fifteen days' time was given to me for submitting any explanation to this lengthy minute. It was then I understood that some of the defence witnesses cited by me were examined on 29th and 30th of July 1953, without notice to me and behind my back.'

The reply of the State in the counter affidavit to this allegation was this :

'Defence witnesses present on 22-7-1953 were refused to be examined by the petitioner (respondent) and when he had walked out refusing to participate in the enquiry, the enquiring officer in all fairness examined them himself. It is submitted that no notice was necessary to be sent to the petitioner (respondent), when he had been informed that the proceedings would be completed ex parte without further reference to him.'

Not merely were these defence witnesses examined behind the back of the respondent, but as pointed out by the learned counsel for the respondent in the minutes prepared by the enquiring officer, the evidence of these witnesses had been incorporated while dealing with charges 4 and 5.

(23) It appears to us on the facts of the case that on 22-7-1953, there was a clear representation by the respondent that he was making a submission to the Deputy Inspector General on the propriety of the action of the enquiring officer in the matter of examination of the witnesses, and that until the orders of the Deputy Inspector General were received, he was not going to take part in the enquiry. The fact that the enquiry thereafter was not taken up for nearly a month would lead to the inference that the enquiring officer was not prepared to put into force immediately after 22-7-1953, his decision to proceed with the enquiry ex parte, and that the enquiring officer decided to adjourn the proceedings to await the result of the representation to the Deputy Inspector General. No doubt, one defence witness was examined on 22-7-1953. It is not clear whether he was examined either before or after the contest arose in the matter of the procedure. But the substantial number of defence witnesses were examined only after the decision of the Deputy Inspector General was given. It was, therefore, the duty of the enquiring officer to intimate the respondent, after the orders of the Deputy Inspector General were received, that in view of these orders the enquiry against him would be resumed, and give him a chance to appear at the further stage of the enquiry. It appears to us that, in the circumstances of the case, such a notice to the respondent was clearly called for. We cannot support the attitude of the department in holding that by reason of the conduct of the respondent on 22-7-1953, it was no longer necessary to intimate him the fact that in view of the orders of the Deputy Inspector General of Police, the enquiry against him would be proceeded with according to the direction of Mr. Rangabashyam, which was confirmed by the Deputy Inspector General. It was because of this unfortunate omission on the part of the department that the respondent has made a complaint at all subsequent stages that there was a denial of natural justice to him by reason of the fact that after the rejection of his request by the Deputy Inspector General, he was not given a further opportunity to take part in the subsequent stages of the enquiry when his own witnesses were examined by the enquiring officer.

Rajagopalan J, in his order, now under appeal, observed:

'As the learned Additional Government Pleader pointed out, the petitioner (respondent) himself did not urge in the written representation he submitted to the Deputy Inspector General, in response to the notice to show cause against the proposed punishment, that the petitioner (respondent) had been prejudiced in the conduct of his defence by the examination of the witness by Mr. Rangabashyam on 22-7-1953, and onwards.'

This representation of the learned Additional Government Pleader, which was accepted by Rajagopalan J. was clearly inaccurate, because in the written representation made by the respondent to the Deputy Inspector General on 17-11-1953, in response to the show cause notice he stated:

'The fact that the defence witnesses were examined in my absence also proved another denial to me of a chance to put forth my case as against the prosecution case.'

Thus, the respondent at all material stages, after the preliminary enquiry was over, had taken the stand that the enquiry conducted by Mr. Rangabashyam after 22-7-1953 and after the orders of the Deputy Inspector General were received amounted to a denial to him of a chance to put forth his case as against the prosecution.

As against this argument, the learned Additional Government Pleader contended that even if these two charges (charges 4 and 5) for which the evidence of defence witnesses taken behind the back of the respondent were relied upon, were to be ignored, there were still other charges for which the respondent had been found guilty and they would support the order of dismissal against him. But the objection raised by the respondent to this procedure goes somewhat deeper than the point that the evidence of defence witnesses were relied upon only for two of the charges. What happened at the enquiry before the enquiring officer after 22-7-1953, was that a brief note was made of what each defence witness had to depose. Several of these witnesses were official witnesses. It was surely the function of the respondent to decide which of these defence witnesses cited by him should be examined and what questions should be put to them in the light of the materials in his possession. The procedure adopted by the enquiring officer of taking formal statements from these defence witnesses could not take the place of their being properly examined by the delinquent officer, who had cited them in his defence.

(24) The learned Additional Government Pleader argued that it is open to us to treat the hearing of the case closed as on 22-7-1953, when the examination of the prosecution witnesses was over, and ignore charges 4 and 5 about which the defence witnesses had spoken on 29-8-1953 and 30-8-1953, and hold the dismissal to be valid in regard to the rest of the charges. But this contention would amount to saying that it is open to the department to split up the enquiry into two stages one representing a valid stage and the other representing an invalid stage and ask the court to affirm the findings in so far as what transpired at the valid stage. The departmental enquiry against an officer must be treated as a single and entire proceeding leading upto the findings against him. If that enquiry involved a stage where the proceedings were vitiated, it will not be proper to speculate that what transpired during the invalid stage of the enquiry was not material and that what had happened prior to the invalid stage would be sufficiently material to support the findings of the guilt of the delinquent officer and consequently the order of dismissal against him. Where there are number of charges against a delinquent officer, and some of them are proved and some of them are held to be not proved, it is open to the High Court in writ proceedings to hold that the order of punishment would be valid even on the basis of the charges found proved as has been held by the Supreme Court in the Orissa case. But that principle cannot be extended to this case in the manner sought by the learned Additional Government Pleader by breaking up the enquiry itself into portions and ignore a stage of the enquiry that must be treated as invalid, and rely on the evidence elicited at the anterior stage where the enquiry was valid.

(25) For this last mentioned reason, we are of the opinion that the respondent was not given a reasonable opportunity to defend himself, that the enquiry was opposed to the principles of natural justice and that the order of dismissal requires to be quashed.

(26) Learned counsel for the respondent referred us to some other grounds for attacking the propriety of the order. Thus, he claimed that after the closing of the enquiry the respondent should have been given an opportunity to file a further written statement, that the time given for submitting his explanation to the show cause notice, namely, 15 days, without extension was inadequate, that the punishing authority should have granted him permission to interview him, as requested by him and that the non-compliance with these requests also vitiated the enquiry. But so far as the last mentioned point is concerned, the relevant rule of the disciplinary rules contained in Appendix III of the Police Standing Order is Rule 2(b)(i) which entitles the delinquent officer to put in a further written statement of his defence; but it is for him to offer to put a further written statement and there is no suggestion that that offer was turned down. It is provided in the same rule that if no oral enquiry had been held and if the delinquent officer desires to be heard in person, he shall be so heard by the punishing authority. Similarly, under Rule 2(b)(ii) the officer empowered to impose the penalty, who acts upon the report of the enquiring officer, is required to call upon the delinquent officer, to show cause within a reasonable time not ordinarily exceeding one month against the particular penalty proposed to be inflicted and any representation in this behalf submitted by the person charged shall be taken for consideration before the passing of the final orders by the punishing officer. This rule does not make it mandatory that at this last mentioned stage, the punishing officer should give to the delinquent officer an oral interview. The word used is 'representation' and it is not the same thing as a personal hearing. The other contentions mentioned above do not appear to us to be material ones for the purpose of vitiating the enquiry.

(27) In view of our finding above, we are of the opinion that this is a case where the order dismissing the respondent has not been in conformity with Article 311 of the Constitution and the principles of natural justice have been violated. We, therefore, dismiss the appeal, though for reasons different from those mentioned by Rajagopalan J. There will be no order as to costs.

(28) Appeal dismissed.


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