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Dev Raj Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberWrit Petn. No. 20 of 1963
Judge
Reported inAIR1966HP13
ActsConstitution of India - Articles 226, 226(1A) and 311(2)
AppellantDev Raj
RespondentUnion of India (Uoi) and ors.
Appellant Advocate Daulat Ram, Adv.
Respondent Advocate Jai Chand, Govt. Adv.
DispositionPetition allowed
Cases ReferredKhajoor Singh v. Union of India.
Excerpt:
.....burning aforesaid work orders - after serving show cause notice petitioner demoted to rank of assistant draftsman in rank of rs. 100-200 - petitioner contended that enquiry violated constitutional guarantee contained in section 311 (2) - facts revealed that petitioner was not permitted to cross examine certain witnesses nor given any opportunity to cross examine others - enquiry against petitioner held in violation of principles of natural justice - not afforded a reasonable opportunity to show cause against action proposed to be taken against him - enquiry, findings and order imposing punishment illegal and liable to be quashed on ground that it was held in contravention of provisions of article 311. - .....him by the members of the staff who were inimical towards him. after recording evidence, the enquiring authority submitted his report on 19-9-1961. his finding, on the first charge, was that the evidence, adduced, did not prove that the work orders were handed over to the petitioner and that it was not possible to fix responsibility for the delay in the disposal of the work orders. his finding on the second charge was that it stood established that the petitioner had burnt the work orders. 5. the enquiry report was submitted to respondent no 3, who recorded findings thereupon, respondent no. 3 held that both the charges stood proved against the petitioner. a show cause notice was served upon the petitioner why he should not be dismissed from government service. the petitioner.....
Judgment:
ORDER

Om Parkash, J.

1. This is a petition, under Articles 226 and 227 of the Constitution of India.

2. The petitioner was a Head Draftsman, in the scale of Rs. 200-300, in the Sutlej Valley Division, Karcham, Himachal Pradesh P. W. D. Disciplinary proceedings were started against the petitioner on two charges: (1) the petitioner had deliberately delayed the disposal of Work Orders Nos. 31328 to 31333, from 17-8-1960 to 27-10-1960, which fact reflected on his integrity, and (2) the petitioner had burnt the aforesaid Work Orders on 27-10-1960.

3. The statement of allegations, on which the above two charges were based, was to the following effect:--

The petitioner had received the Work Orders, on 17-8-1960, from the Sub-Divisional Officer, Tapari, but did not put them to the Executive Engineer for necessary action. The Sub-Divisional Officer, Tapari, was pressing for the approval of the Work Orders. On 27-10-1960, the Executive Engineer had enquired of the petitioner about the whereabouts of the Work Orders. The petitioner had denied that the Work Orders were with him. The Executive Engineer had asked the petitioner and other members of the staff to make a thorough search for the Work Orders and had directed that none should leave the office without his permission. In spite of this direction, the petitioner had left the office, without permission, for his house. The Executive Engineer, along with some other members of the staff, had followed the petitioner, to his house Smoke was coming out of the chimney of the kitchen. The door which had been bolted from inside was got opened by the Executive Engineer. There was fire in the hearth. The Executive Engineer had salvaged some burnt pieces of paper from the hearth. These were found to be portions of Work Orders. The Executive Engineer had recorded the statements of the members of the staff, with respect to the incident. The petitioner had also made a confessional statement to the Executive Engineer on 28-10-1960.

4. The enquiry, on the charges, against, the petitioner was conducted, by the Superintending Engineer. The petitioner denied the charges, levelled against him. He pleaded that he had never received the Work Orders and that the case was got up against him by the members of the staff who were inimical towards him. After recording evidence, the enquiring authority submitted his report on 19-9-1961. His finding, on the first charge, was that the evidence, adduced, did not prove that the Work Orders were handed over to the petitioner and that it was not possible to fix responsibility for the delay in the disposal of the Work Orders. His finding on the second charge was that it stood established that the petitioner had burnt the Work Orders.

5. The enquiry report was submitted to respondent No 3, who recorded findings thereupon, Respondent No. 3 held that both the charges stood proved against the petitioner. A show cause notice was served upon the petitioner why he should not be dismissed from Government service. The petitioner submitted his representation. After considering the representation, respondent No. 3 demoted the petitioner to the rank of Assistant Draftsman, in the scale of Rs. 100-200, and further debarred him from being considered for promotion for three years. Two annual increments of the petitioner with cumulative effect were also withheld. The petitioner appealed to the Lieutenant Governor against the order of respondent No. 3, but his appeal was rejected:

6. The petitioner has filed the present petition, questioning the order of respondent No. 3, imposing penalties upon him. The main grievance of the petitioner is that he was not afforded a reasonable opportunity of showing cause against the action proposed to be taken during the course of the enquiry, conducted against him, and that the enquiry violated the constitutional guarantee, contained in Article 311(2) of the Constitution and was illegal. The petitioner, also, contends that there was absolutely no evidence to support the charges against him and that the findings, recorded by the enquiring authority and respondent No. 3, were vitiated and illegal, being not supported by any evidence.

7. The petition has been opposed on behalf of the respondents. The contention of the petitioner that he was not afforded a reasonable opportunity to show cause has been controverted and it is pleaded that the petitioner was given full opportunity to defend himself and that the enquiry did not violate the provisions of Article 311(2) of the Constitution. It is, further, pleaded that the findings of the enquiring authority and respondent No. 3, on the charges, are amply supported by evidence. Preliminary objections, against the maintainability of the petition, have also been taken up, on behalf of the respondents. It is pleaded that the petition is not maintainable against Himachal Pradesh Administration respondent No. 2 and that this Court has no jurisdiction to issue any writ or direction, under Article 226 of the Constitution, against the Union of India, as it is not located in the territories in relation to which this Court exercises jurisdiction. It is, further, pleaded that the petition is liable to be dismissed on the ground that the petitioner was guilty of laches.

8. The first point, which requires decision, in the petition is whether the enquiry conducted against the petitioner, violated the provisions of Article 311(2) of the Constitution. It is not disputed that the demotion of the petitioner, from the rank of Head Draftsman, in the scale of Rs. 200-300, to the rank of Assistant Draftsman, in the scale of Rs. 100-200 amounted to reduction in rank and the provisions of Article 311(2) of the Constitution were attracted. The contention, on behalf of the petitioner, is that he was not given a reasonable opportunity, as contemplated by the above Article, of showing cause against the action proposed to be taken against him, inasmuch as he was not permitted to cross-examine some of the witnesses produced against him, and was not allowed any opportunity whatsoever to cross-examine other witnesses. It has been admitted, on behalf of the respondents, that Shri Tara Chand, Executive Engineer, Shri Rattan Lal Sub-Divisional Officer, Shri Hem Raj and Shri Dev Raj Kashyup were examined by the enquiring authority, through post.

The witnesses had replied to certain questions framed by the enquiring authority. The petitioner was not asked to put in cross-questions. The above witnesses were not examined in the presence of the petitioner. It is clear that the petitioner was not afforded any opportunity to cross-examine the above witnesses. From a perusal of the report of the enquiring authority, it is abundantly clear that he had relied strongly on the evidence of Shri Tara Chand, Executive Engineer, for holding that the second charge against the petitioner stood proved. Though the enquiring authority had not discussed the evidence of the other three witnesses in his report, yet it cannot be gainsaid, that their evidence must have influenced his decision. The evidence of the above witnesses was material to the charges against the petitioner. The failure of the enquiring authority to afford an opportunity to the petitioner to cross-examine the above witnesses violated the principle of natural justice.

9. Surinder Kumar, Rishi Raj, Joginder Singh and Mahesh Chand were examined in the presence of the petitioner. The complaint of the petitioner is that except Surinder Kumar, he was not permitted to cross-examine the other three witnesses. The petitioner has filed an affidavit to this effect. The proceedings of the enquiring authority do not indicate that Rishi Raj, Joginder Singh and Mahesh Chand were cross-examined. No affidavit of the enquiring authority has been filed that the petitioner was permitted to cross-examine the wit-nesses. In the absence of any indication in the proceedings and the affidavit of the enquiring authority, that the petitioner was given an opportunity to cross-examine Rishi Raj, Joginder Singh and Mahesh Chand, the complaint of the petitioner that he was not given such an opportunity cannot be dismissed as untrue.

10. There is another circumstance, which goes to show that the petitioner was not afforded an effective and real opportunity to cross-examine the witnesses. The petitioner had made several applications, commencing with 8th November, 1960, for obtaining copies of the statements of the members of the staff, recorded by the Executive Engineer, on 27-10-1960 All his applications were rejected. Most of the members of the staff, whose statements had been recorded on 27-10-1960, by the Executive Engineer, had appeared as witnesses in support of the charges. Those statements were material for the purpose of cross-examining the witnesses. Respondent No. 3 was not justified in refusing to supply the copies of the statements. The refusal to supply copies had materially prejudiced the petitioner in his defence.

11. Another circumstance which had materially prejudiced the petitioner in his defence was that though he had applied, on 10-7-1961, for permission to have the assistance of some person, in his defence, yet the permission was not granted until 22-7-1961. The enquiring authority had recorded the evidence of four witnesses, Surinder Kumar etc., on 14-7-1961. The enquiring authority should not have proceeded with the recording of evidence until the application of the petitioner for assistance was decided.

12. The enquiring authority had, in holding, that the second charge against the petitioner had been proved, relied on the so-called confessional statement, alleged to have been made by the petitioner, on 28-10-1960. The so-called confessional statement was never brought on the record of the enquiry. The petitioner was not afforded any opportunity to furnish any explanation about the so-called confessional statement. In the circumstances, the use of the so-called confessional statement against the petitioner violated the principle of natural justice that no material should be used against a party unless he has been given an opportunity of explaining it.

13. The inescapable conclusion, from the circumstances, narrated above, is that the petitioner was denied a reasonable opportunity, to defend himself. The following observations of their Lordships of the Supreme Court, made in State of Madhya Pradesh v. Chintaman Sadashiva, AIR 1961 SC 1628, aptly apply to the present case:

'Under Article 311 (2), a public servant is entitled to have a reasonable opportunity to meet the charges framed against him. A proper opportunity must be afforded to him at the stage of the enquiry after the charge is supplied to him as well as at the second stage when punishment is about to be imposed on him. If the first enquiry was materially defective and denied the public servant an opportunity to prove his case it is impossible to hold that a reasonable opportunity guaranteed to a public servant by Article 311 (2) had been afforded Io him.'

Further on, their Lordships observed:

'Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that Inevitably would mean that the enquiry had not been held in accordance with rules of natural Justice.'

14. In the instant case, the petitioner was not permitted to cross-examine certain witnesses and was not given any opportunity to cross-examine others. Though the petitioner had made several applications for the supply of copies of the previous statements, made by witnesses, yet all the applications were rejected and the copies were not supplied. The copies were material for the effective exercise of the right of cross-examination. The so-called confessional statement was not brought on record and the petitioner had no opportunity to furnish any explanation about that statement. The enquiry against the petitioner was held in violation of the principles of natural justice. He was not afforded a reasonable opportunity to show cause against the action proposed to be taken against him. The enquiry contravened the provisions of Article 311 (2) of the Constitution and was bad in law.

15. It was also, contended, on behalf of the petitioner, that there was absolutely no evidence to support the findings of the enquiring authority and respondent No. 3, on the charge, and that the enquiry and the order, imposing penalties were liable to be set aside. The learned counsel, for the respondents, questioned the jurisdiction of this Court to go info the question whether the findings were supported by any evidence or not. The objection raised, by the learned counsel for the respondents, does not appear to be sound. It was held in Union of India v H. C. Goel. AIR 1964 SC 364, that:

'In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported byany evidence al all.'

16. Of course, this Court will not go into the question whether the evidence adduced before the enquiring authority was insufficient or inadequate to sustain the impugned findings. But this Court has jurisdiction to go into the question whether there is no evidence al all to support the findings Though, this Court has jurisdiction to go into the question, raised by the learned counsel for the petitioner, yet it is not necessary to decide that question in view of the conclusion reached by the Court, that the enquiry, the findings and the order, imposing punishment, are illegal and liable to be quashed on the ground that the enquiry was held in contravention of the provisions of Article 311(2) of the Constitution.

17. The preliminary objections, taken up on behalf of the respondents, may, now be discussed. The preliminary objection that the petition was not competent against Himachal Pradesh Administration appears to be well founded. It has been held by this Court in Rajindra Singh v. Himachal Pradesh Administration, AIR 1964 HP 19, that Himachal Pradesh Administration is not a juristic entity and cannot sue or be sued. The present petition is therefore, not competent so far as Himachal Pradesh Administration, respondent No. 2, is concerned

18. The preliminary objection that this Court bad no jurisdiction to issue a writ against the Union of India as it is not located in the territories in relation to which this Court exercises jurisdiction is based on the decision of their Lordships of the Supreme Court in Khajoor Singh v. Union of India. AIR 1961 SC 532. It was held, in that case, that a writ, under Article 226 of the Constitution, may be issued to a person or authority or Government if the residence of that person or the scat of that authority or Government was located within the territories in relation to which the High Court exercises jurisdiction and that as the seal of the Central Government was located in New Delhi, situated within the territories, in relation to which the Punjab High Court exercises jurisdiction, a writ against the Central Government could be issued by that High Court only. Their Lordships, further, held that it was not possible to introduce the concept of cause of action in Article 226 of the Constitution so as the High Court in whose jurisdiction the cause of action arose could pass an order thereunder

19. Subsequent to the above decision, of the Hon'ble Supreme Court, the Parliament amended Article 226 of the Constitution, by adding Clause 1-A. This clause authorizes a High Court to issue directions, orders or writs to Government, an authority or a person if the cause of action wholly or in part had arisen, within the territories, in relation to which, that High Court exercises jurisdiction, notwithstanding the fact that the seat of such Government or authority or the residence of such person, is not within those territories. In the instant case, it is not disputed that the cause of action, for the present petition, had arisen to the petitioner, in Himachal Pradesh, within the jurisdiction of this Court. The petitioner was serving in the Himachal Pradesh P.W.D., as a Head Draftsman. The disciplinary proceedings were conducted against him in Himachal Pradesh and the order imposing penalties was also passed in Himachal Pradesh. As the cause of action for the petition had wholly arisen in Himachal Pradesh, this Court has jurisdiction, by virtue of Clause 1-A of Article 226 of the Constitution, to issue a writ or any direction or order, against the Union of India, notwithstanding the fact that its seat is not located in the territories in relation to which this Court exercises jurisdiction.

20. The preliminary objection that the petitioner was guilty of laches is without substance. The petitioner had received intimation that his appeal had been rejected by the Lieutenant Governor in December, 1962. After obtaining the necessary copies, the petitioner had filed the present petition on 7-3-1963. The petitioner was not guilty of any laches.

21. The result of the above discussion is that the petition is to be allowed and the order imposing penalties on the petitioner is to be quashed. Let a writ of certiorari, quashing the enquiry proceedings conducted against the petitioner and the order imposing penalties on him and the order rejecting his appeal be issued against respondents Nos. 1 and 3 and also a writ of mandamus, directing respondents Nos. 1 and 3 to restore the petitioner to the rank of Head Draftsman or to any other equivalent rank. The petition, against respondent No. 2, is dismissed as being incompetent. The parties will hear their own costs of the petition .

22. Lest there be any misapprehension, it is made clear that the order of this Court will not debar the appropriate authority to institute a fresh enquiry if it so desires, against the petitioner, in accordance with law.


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