State of U. P. v. Basisth Narain Singh — 1971 DIGILAW 493 (ALL)

JUDGMENT T.S. Misra, J. - This appeal is directed against the decision of the Additional Civil Judge in Civil Appeal No. 648 of 1963. 2. The facts giving rise to this appeal are, in brief, as follows:- The plaintiff filed the suit for declaration that the entire proceedings taken against him under Section 7 of the U.P Police Act culminating in the dismissal order dated 6th June, 1960 were illegal, void, ineffectual and contrary to the provisions of law and that he continues to be in service as constable in the Police Force of U.P. State with all rights of pay and allowances to which he was entitled. He alleged that he was appointed as constable in the Police Force of the U.P. State and several proceedings under the Police Act were taken against him, which were in contravention of the mandatory provisions of paragraph 486-i of the U.P. Police Regulations in as much as the charge sheet was not in accordance with the said Regulations. he further alleged that the evidence and documents necessary to establish the charges were never placed in the file at the time of the starting of the proceedings and he was not given the reasonable opportunity of inspecting the documents. He also contended that the charge sheet did not give full information of the matter against him and the proceedings were therefore, in violation of para 490 of the said Regulations. The R.I. was not a gazetted officer and the Statements recorded by him behind the back of the plaintiff had been illegally made use of. The enquiry officer was not legally authorised to hold the same and the proceedings were in contravention of the provisions of Article 311 (2) of the Constitution of India. 3. The State contested the suit and denied all the allegations made by the plaintiff. It was alleged that the proceedings of the departmental inquiry were in conformity with the Police Regulations and Article 311 (2) of the Constitution and that the Enquiry Officer was fully competent to conduct the inquiry. It was urged that the suit was barred by Section 21 and 42 of the Specific Relief Act and Section 80 of the Civil Procedure Code. The jurisdiction of the Court was also challenged. 4. On the said pleadings, the learned Munsif framed the following issues:- 1. It was urged that the suit was barred by Section 21 and 42 of the Specific Relief Act and Section 80 of the Civil Procedure Code. The jurisdiction of the Court was also challenged. 4. On the said pleadings, the learned Munsif framed the following issues:- 1. Whether there has been any illegality and irregularity in proceedings under Section 7, Police Act against the plaintiff? If so, its effect? 2. Whether the defendant's order for dismissal of the plaintiff is void due to reasons disclosed in paragraph 2 of the plaint? 3. Whether the defendants have been served with legal notice under Section 80 of Civil Procedure Code. 4. Whether the suit is barred by Section 21 and 42. S.R. Act? 5. Whether the suit lies in this court? 6. To what relief, if any, is the plaintiff entitled? 5. The trial Court held that it has jurisdiction to try the suit. It also held that the notice under Section 80 Civil Procedure Code served by the plaintiff on the defendant was valid and the suit was not barred by Sections 21 and 42 of the Specific Relief Act. he further held that the charge sheet served on the plaintiff was quite specific, precise and in consonance with paragraph 490 of the U.P. Police Regulations. he did not believe the contention of the plaintiff that he was not allowed inspection of the documents. He held that the submission of the plaintiff that the documents were not placed on record was untenable. He, however, held that the plaintiff was tried by an unconfirmed Dy. S.P. and it was not proved that he was specifically authorised by the D.I.G. to conduct the inquiry. Consequently, he declared the order of dismissal illegal, void and ineffective. 6. Aggrieved by the said decision, the State filed the appeal No. 648 of 1963. The defendant filed before the appellate Court the original order of the D.I.G. of Gorakhpur Range (Ext. A22), which was passed in the year 1958 empowering Sri R.B. Misra, Dy. S.P. to exercise all the powers of the Superintendent of Police detailed in sub paras 9d) and (e) of para 479 of the Police Regulations other than the powers relating to the punishment of Inspectors of Police and powers under Fundamental Rules 24 and 25. A22), which was passed in the year 1958 empowering Sri R.B. Misra, Dy. S.P. to exercise all the powers of the Superintendent of Police detailed in sub paras 9d) and (e) of para 479 of the Police Regulations other than the powers relating to the punishment of Inspectors of Police and powers under Fundamental Rules 24 and 25. On the basis of the order of the D.I.G., the learned Civil Judge recorded a finding of fact that the conferment of the powers vide Ex. A.22 is valid and the Dy.S.P. Shri R.B. Misra was competent to punish the subordinate officials under clause 'F' of para 479 of the Police Regulations. After discussing the entire circumstances, the learned Civil Judge held that the said Dy.S.P. was competent to conduct the trial. It was, however urged before him that the provisions of para 486 sub para III were not complied with prior to the departmental trial against the plaintiff respondent and the charges framed against the plaintiff at the departmental trial were defective as he was not informed about the witnesses and documentary evidence in the charge sheet and thus he was deprived of reasonable opportunity as contemplated in Article 311 (2) of the Constitution of India, and the second show cause notice is illegal. The contentions of the plaintiff that he was not allowed the inspection of the documents and file and that there was breach of rule contained in para 483 of the Regulations and that the Enquiry Officer illegally considered the statements of the witnesses, who were not examined during the trial were not pressed before the learned Civil Judge and were also not pressed before me. The learned Civil Judge held that the provisions of para 486 sub para III of the Police Regulations were complied with and no breach of rules of the said Regulations was committed. he also held that the second show cause notice was given to the plaintiff and that it was not illegal. It may be mentioned at this stage that the learned counsel for the respondent did not urge before me in this appeal that no second show cause notice was given or that the notice Ex. A3 is illegal. he also did not argue before that the provisions of Para 486 sub para III of the Police Regulations were not complied with prior to the departmental trial against the plaintiff. A3 is illegal. he also did not argue before that the provisions of Para 486 sub para III of the Police Regulations were not complied with prior to the departmental trial against the plaintiff. The learned counsel for the respondent, however, supports the judgement of the learned Civil Judge on the ground that the defendant (Plaintiff) was not afforded the reasonable opportunity defend himself as contemplated by Article 311(2) of the Constitution of India in as much as the charges framed against the plaintiff were defective and he was not informed of the evidence which was to be produced against him during the trial. He also urged that the Enquiry Officer was not competent to conduct the inquiry. The learned Civil Judge having come to the conclusion that the plaintiff was not given reasonable opportunity for defence as contemplated by Article 311(2) of the Constitution declared that the impugned order of dismissal was illegal and invalid and, therefore, dismissed the appeal. 7. Aggrieved by this decision, the State of U.P. has come to this Court in second appeal. 8. It was urged on behalf of the appellant that the court below erred in holding that the plaintiff respondent was not given the reasonable opportunity to defend as contemplated by Article 311(2) of the Constitutions of India. The learned counsel for the State argued that under para 490 of the Police Regulations, it is not necessary to specify the evidence also in the charge sheet. The departmental proceedings were to be taken against the plaintiff under Section 7 of the Police Act read with the U.P. Police Regulations. Para 490 (1) of the U.P. Police Regulations only requires the substance of the accusation to the reduced to the form of a charge which must be as precise as possible. He submitted that this rule did not require that the charge sheet should also specifically mention the evidence to be produced against the delinquent official. The charge sheet served on the plaintiff complied with the requirements of this rule and was not bad in law. It was urged that the evidence against the plaintiff was recorded in his presence and he had full opportunity to cross-examine the witnesses and rebut the evidence produced against him. The plaintiff also produced evidence in defence. The charge sheet served on the plaintiff complied with the requirements of this rule and was not bad in law. It was urged that the evidence against the plaintiff was recorded in his presence and he had full opportunity to cross-examine the witnesses and rebut the evidence produced against him. The plaintiff also produced evidence in defence. Thus the reasonable opportunity was afforded to the plaintiff to defend himself as contemplated by Article 311(2) of the Constitution of India. 9. The learned counsel for the respondent has submitted that the charge sheet must not only contain the charges but should also specify the evidence, which the department would like to produce against him in support of the charge, so that he may prepare his defence accordingly. It is only then that he would be able to defend himself properly and make effective cross examination. It was, therefore, argued that the charge sheet must not only comply with the3 requirements of U.P. Police Regulations but should also comply with the requirements of Article 311(2) of the Constitution of India. In support of this argument, he placed reliance on a decision of the Supreme Court in the case of Khem Chand v. Union of India, reported in A.I.R. 1958 SC 300 and submitted that as in the instant case, the charge sheet did not specify the evidence relied upon against the plaintiff no reasonable opportunity to defend was given to the plaintiff as contemplated by Article 311 (2) of the Constitution of India. 10. The main controversy centres round the two points namely: (1) Whether the charge sheet should also specify the evidence against the charged officer, and (2) whether Enquiry Officer in the instant case was competent to conduct the inquiry. 11. The answer to the first point urged before me depends on the construction of para 490 of the U.P.Police Regulations and the scope and ambit of Article 311 (2) of the Constitution of India. 12. Para 490 of the U.P. Police Regulations gives a detailed procedure to be followed in the departmental trials. Sub para (1) stipulates that after the preliminary inquiry, the substance of the accusation must be reduced to the form of a charge which must be as precise as possible. The charge must be read and explained to the officer charged and a copy of the charge must be given to him. Sub para (1) stipulates that after the preliminary inquiry, the substance of the accusation must be reduced to the form of a charge which must be as precise as possible. The charge must be read and explained to the officer charged and a copy of the charge must be given to him. Thereafter as provided in sub para (2), the delinquent official should be asked whether he accepts the charges. If he denies the charges, that much evidence must then be placed on record as the Superintendent of Police considers necessary to establish the charge under Section 7 of the Police Act. The evidence may either be oral or documentary and must be material to the charge. If it is oral evidence it must be recorded by the Superintendent of Police in the presence of the party charged, who will be allowed to cross examine the witnesses. When documents are relied on in support of the charge they should be put in evidence as exhibits, and the officer charged must before he is called upon to make his defence be allowed to inspect such exhibits. Those documents should not be put in as exhibits whose contents are inadmissible in evidence. Sub-para 5 is material, which lays down that the officer charged must be asked to file written statement of defence within such fixed period, not less than a week, as the Superintendent of Police may consider reasonable. He should also at this stage be asked whether he wishes to produce any defence witnesses or to file any documentary exhibits. Sub para 6 requires recording of the oral statement of the charged officer. Thereafter the statements of defence witnesses are to be recorded who may be cross examined and in the end the Superintendent of Police must write a finding. In all cases in which the Superintendent of Police is empowered to inflict punishment of dismissal, removal or reduction in rant he must supply the officer charged with a copy of his finding and call upon him to show cause with in a reasonable time (which shall not be less than one week) against the imposition of punishment. 13. In all cases in which the Superintendent of Police is empowered to inflict punishment of dismissal, removal or reduction in rant he must supply the officer charged with a copy of his finding and call upon him to show cause with in a reasonable time (which shall not be less than one week) against the imposition of punishment. 13. Thus under para 490 of the said Regulations the officer charged is first served with a charge sheet and if he denies the charges, oral and documentary evidence in support of the charges is brought on the file and thereafter the officer charged is invited to file a defence, and to produce his evidence in support thereof. 14. The charge is an accusation based on certain allegations and sub para 1, of para 490 requires that the substance of accusation must be reduced to the form of a charge. So, the charge framed must contain the substance of accusation and it must be as precise as possible. In other words, the allegations on the basis of which the accusation is being made must be brought home to the charged officer so that he must know what he has to meet in his defence. he must not be left to guessing. This rule is obviously to be read along with the mandatory provisions of Article 311 (2) of the Constitution, which require that a reasonable opportunity must be given to the charged officer. The reasonable opportunity as contemplated under Article 311(2) of the Constitution envisages the opportunity to deny the guilt and establish the innocence which the charged officer can do only if he is informed of the accusation made against him. If a charge is vague, the officer against whom such a charge is levelled would neither be able to submit a proper defence nor would be in a position to make effective cross examination of the witnesses. The material particulars of the specific act of misconduct must therefore, be given either in the charge or in the statement of allegation appended thereto. The allegations on which the charges are based may either be integral part of the charge or the charge sheet may refer to the statement of allegations to be found in a separate document appended thereto. The allegations on which the charges are based may either be integral part of the charge or the charge sheet may refer to the statement of allegations to be found in a separate document appended thereto. The charges must, however, be specific and precise and should convey to the delinquent official in the clearest possible term the act of misconduct levelled against him. This can be done either by giving the material particulars of the specific act of misconduct in the charge itself or in the statement of allegations appended thereto. 15. The learned counsel for the respondent submitted that as in the instant case, the charge sheet did not mention specifically the evidence to be produced against the plaintiff, he was denied reasonable opportunity for defence as envisaged by Article 311 (2) of the Constitution of India. In support of this argument, he cited A.I.R. 1959 , All 614. A.I.R. 1963 Pat 38 and A.I.R. 1958 Supreme Court 300. 16. In the case of Benchery Lal. v. State of U.P., AIR 1959 Allahabad 614 the charge sheet which was given to the petitioner reads as under:- "That you on7.2.1956 attended the emergent meeting of the Shahjahanpur Collectorate. Ministerial Association, held at 4-45 P.M. in which you seconded a resolution calling on all the officials of the Collectorate and Tahsils, to observe a pendown strike for two minutes on the noon of February 10,1956 as a mark of sympathy towards Shri Radhey Lal Gupta, a Collectorate Official. The right of going on strike is not conceded by the Collectorate and Tahsils officials. This action of yours shows that you abetted the strike and you yourself took part in the same when it actually came off on 10.2.1956. You have thus committed an act of gross indiscipline." 17. This charge consisted of two parts. The first part dealt with the act of the petitioner seconding the resolution calling upon all the officials to observe a pendown strike for two minutes. The second part mentioned that the petitioner took part in the strike when it actually came off on 10.2.1956. It was observed by this Court that before the charge could be established against the petitioner the fact that the strike did take place on the 10th February, and the petitioner participated in it had to be established. The second part mentioned that the petitioner took part in the strike when it actually came off on 10.2.1956. It was observed by this Court that before the charge could be established against the petitioner the fact that the strike did take place on the 10th February, and the petitioner participated in it had to be established. No evidence had been referred to in the charge sheet, which would establish the fact of the strike having taken place on 10.2.1956 nor was any reference made to any evidence to prove that the officials stopped work in a manner which would constitute a strike and that the petitioner participated in it. It was held that stopping of work by an employee itself may not amount to a strike. It was in these circumstances held that it is necessary to mention in the charge sheet the evidence on which the department wished to rely to establish the facts which would be to make the act of the official stopping work a strike and as the same was not done in that case, it was held that it amounted to violation of the principles of natural justice. 18. In this case of Shiv Kant Upadhyaya v. Union of India, A.I.R. 1963 Pat. 38 it was held that the evidence oral or documentary which forms the basis of the decision must be made available to the petitioner and if that is not done it would be contrary to natural justice. In that case it was observed that there was nothing to show that the report of the Enquiry Committee is based upon evidence, documentary or oral which was not available to the petitioner. This ruling does not apply to the facts and circumstances of the instant case. 19. In the case of State of Madhya Pradesh v. Chintaman, A.I.R. 1961 SC 1923 the Supreme Court laid down that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decision reached by the Enquiry Officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in courts of law. 20. 20. The Supreme Court in the case of A.I.R. 1958 Supreme Court 300 laid down that reasonable opportunity envisaged by the provisions of Article 311 (2) of the Constitution includes an opportunity to deny his guilt and establish his innocence which the delinquent can only do if he is told what the charges levelled against him are and the allegations on which such charges are based. 21. It is thus well settled that in order to afford the delinquent a reasonable opportunity for defence as envisaged by the provisions of Article 311 (2) of the Constitution, he should be informed of the charges levelled against him as well as of the allegations on which such charges are based. These charges should be precise and not vague and the material allegations on which such charges are based may either be mentioned in the charge sheet or in a separate document appended to the charge sheet with sufficient clarity so that he should be able to put a proper and effective defence. He must be informed of the facts and circumstances which would be sought to be established against him in support of the charge. It is, however, not necessary that the oral and documentary evidence should be enumerated separately from the statement of the allegations. In fact the statement of the allegations or the charges itself may give an idea of the evidence which is against him. 22. What constitutes reasonable opportunity within the meaning of Article 311(2) of the Constitution of India thus generally depends upon the facts and circumstances of each case. There can be no dispute that the proceedings against the police officers under Section 7 of the Police Act must be in conformity with the rules contained in the U.P. Police Regulations and the provisions of Article 311 (2) of the Constitution of India. The Police Officers are as such entitled to the protection of Article 311(2) as any other person holding the civil post. The question which, therefore, falls for determination is as to whether the charge sheet in the present case meets the requirements of Article 311(2) of the Constitution of India as well as the relevant paras of the Police Regulations. The Police Officers are as such entitled to the protection of Article 311(2) as any other person holding the civil post. The question which, therefore, falls for determination is as to whether the charge sheet in the present case meets the requirements of Article 311(2) of the Constitution of India as well as the relevant paras of the Police Regulations. The court below found that the charges framed against the plaintiff were as clear as day light but the plaintiff was not given the reasonable opportunity to meet the charges as required by Article 311(2) of the Constitution of India because the charge sheet Ex.6 did not disclose the information about the evidence to be produced against the plaintiff. 23. The charges in respect of which the departmental enquiry was held against the plaintiff-respondent were as follows:- CHARGES You constable (Civil Petition No.199) Vashist Narain Singh are hereby charged under Section 7, Police Act for negligence and remissness in discharge of your duties and your unfitness for being a police officer on the following accounts:- 1. On 16.6.1959 while posted at O.P. Padrauna you entered the house of one Brahmachari Tewari and virtually arrested one Tej Bahadur Singh therefrom and later on released him without getting any of these facts recorded in the G.D. 2. On 17.8.1959 while posted at O.P. Padrauna, you forced a boy Harish Chandra Pathak to vacate a ricksha for you by throwing him down from it. 3. On the same date (18.8.1959) on being called later on by the Tahsildar Padrauna for looking into the matter contained in charge 2 you appeared intoxicated before him and concealed your identity by giving him a wrong name on oath. 4. On the evening of 22.10.1959 while in police lines under suspension, you got drunk and abused T.P.G./30 Chandrika Singh who was returning from his duty at a public place viz. the road in front of Marwari College giving thus a very poor account of yourself. 5. On the same night (viz. 22.10.1959) at about 3.45 P.M. you severely assaulted T.P.C./30 Chandrika Singh with a cane within the premises of police lines. 6. On 22.10.1959 you were found absent from Police Lines without permission at 9 P.M. You are hereby required to submit a reply to the above charges within 8 (eight) days of the receipt of this. 22.10.1959) at about 3.45 P.M. you severely assaulted T.P.C./30 Chandrika Singh with a cane within the premises of police lines. 6. On 22.10.1959 you were found absent from Police Lines without permission at 9 P.M. You are hereby required to submit a reply to the above charges within 8 (eight) days of the receipt of this. You are further informed that if no reply to the above charges is received from you within the specific time it will be presumed that you have none to offer and necessary orders will be passed without further awaiting the same. (Sd) B.R. Misra, C.C.I. Deoria. 24. If may be noticed that these charges do not contain sufficient information about the evidence which would be produced against the plaintiff in support thereof. No separate statement of allegations was appended to the charge sheet. Material particulars are lacking in each of the said charges and must is left out for speculation. After the receipt of the charge sheet the plaintiff complained that the charge sheet did not specify the evidence to be produced against him and as such he was handicapped in submitting effective defence. This grievance was ignored on the ground that there was no provision in U.P. Police Regulations requiring the mentioning of the evidence in the charge sheet. The plaintiff repeated his objection before the higher authorities as well but the same was overruled on the same ground by them as well. The plaintiff has attached the impugned order on this ground in this suit also. Thus from the very outset the plaintiff had been complaining that he was being denied reasonable opportunity to defend himself in as much as the charge sheet did not mention the evidence sought to be relied against him in support of the charges. In my view the statement of accusation in the said charge sheet did not give sufficient information from which the plaintiff could know as to what evidence would be used against him in support of the charge. he was thus denied a reasonable opportunity to defend himself effectively as envisaged by Article 311(2) of the Constitution. The impugned order of dismissal from service cannot, therefore, be maintained. 25. The learned counsel for the respondent also urged that the Enquiry Officer was not competent to conduct the enquiry. This submission has not merits. Ex. he was thus denied a reasonable opportunity to defend himself effectively as envisaged by Article 311(2) of the Constitution. The impugned order of dismissal from service cannot, therefore, be maintained. 25. The learned counsel for the respondent also urged that the Enquiry Officer was not competent to conduct the enquiry. This submission has not merits. Ex. A-22 is the order of the D.I.G. Police Gorakhpur Range authorising Ravi Bhaskar Misra, Dy. S.P. to exercise all the powers of Superintendent of Police detailed in sub-paras (d) and (c) of Para 479 of the Police Regulations other than the powers relating to punishment of Inspectors of Police and powers under Fundamental Rules 24 and 25. Consequently, Inquiry Officer Shri R.B. Misra. Dy. S.P. was competent to conduct the inquiry. The learned Civil Judge has given a detailed finding on this issue and there is no reason to interfere with the same. 26. Under the circumstances, this appeal has no merits and is accordingly dismissed with costs.