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1972 DIGILAW 353 (ALL)

Abdul Wahab v. District Magistrate Basti

1972-09-04

J.S.TRIVEDI, N.D.OJHA, SATISH CHANDRA

body1972
JUDGMENT N.D. Ojha, J. - The Petitioner was Pradhan of Gaon Sabha Jamdashahi in the district of Basti. He was removed from that office u/s 95(1)(g) of the U.P. Panchayat Raj Act by the Sub-Divisional Officer, Basti, on May 6, 1969. An appeal filed by the Petitioner to the District Magistrate, Basti, failed on August 5, 1969. Thereupon the present petition was filed with the prayer to quash the aforesaid two orders passed by the Sub-Divisional Officer, Basti and the District Magistrate, Basti respectively. The writ petition came up for hearing before a learned Single Judge and it was pressed on only one ground, namely that the impugned order dated May 6, 1969 passed by the Sub-Divisional Officer, Basti was in contravention of the principles of natural justice. The learned Single Judge felt that there was a conflict in two Division Bench decisions of this Court reported in Ved Singh Pradhan Vs. Assistant Sub-Divisional Officer and Others, AIR 1965 All 370 and Hari Chand v. State of U.P. 1970 AWR 48 and he accordingly referred the case to a Full Bench and the writ petition has thus come up before us. 2. The learned Counsel for the Petitioner has attacked the order of removal of the Petitioner even before us only on one ground, namely that it was passed in violation of principles of natural justice. The facts of the case shorn of unnecessary details are in a narrow compass. A complaint was made to the Sub-Divisional Officer by one Bipat Husain and three others bringing to his notice certain illegal acts said to have been committed by the Petitioner in the discharge of his duties as a Pradhan and the Petitioner was accused of having abused his position as a Pradhan. The Sub-Divisional Officer directed the Tahsildar to make enquiry into the complaint and to submit report. The Tahsildar in his turn passed on the complaint to the Naib-Tahsildar for making an enquiry into the allegations made therein. A similar complaint made to the Chief Minister also reached the Naib-Tahsildar for enquiring in due course. The Naib-Tahsildar recorded the statement of the Petitioner and of certain other persons including the complainant Bipat Husain and submitted his report. The Tahsildar in his turn passed on the complaint to the Naib-Tahsildar for making an enquiry into the allegations made therein. A similar complaint made to the Chief Minister also reached the Naib-Tahsildar for enquiring in due course. The Naib-Tahsildar recorded the statement of the Petitioner and of certain other persons including the complainant Bipat Husain and submitted his report. Thereafter a charge-sheet was drawn up by the Sub-Divisional Officer and the Petitioner was required to submit his explanation to the charge as also to give a list of the witnesses whom he proposed to examine in defence and also to mention the name of those persons whom the Petitioner wanted to cross-examine. According to the Petitioner he made an application to the Sub-Divisional Officer for being supplied with the copies of the complaint made by Bipat Husain, report of the Naib-Tahsildar and the statements of the witnesses recorded by the Naib-Tahsildar, but he was supplied only with a copy of the report of the Naib-Tahsildar. The Petitioner submitted his explanation and towards the end of it, it was also mentioned that he would press and request for his right to cross-examine the witnesses on whose statements reliance was sought to be placed against him and also to adduce oral evidence of witnesses whose list would be submitted in due course. Certain proceedings took place after the explanation was furnished and ultimately the Sub-Divisional Officer fixed October 11, 1968 for evidence. As appears from the copy of the order-sheet dated October 11, 1968 which has been attached as Annexure 'B' to the counter-affidavit of Adya Prasad Tripathi the Naib-Tahsildar who conducted the enquiry, a statement was made on behalf of the Petitioner that he did not desire to produce any oral evidence and only wanted to have an opportunity of personal hearing. The Sub-Divisional Officer fixed October 28, 1968 for personal hearing. On the said date the Petitioner appeared along with his counsel and the order sheet of that date indicates that it was agreed (ab yeh tai paya gaya) that now the Petitioner would have no personal hearing and November 2, 1968 was fixed for arguments. Arguments could not be heard on November 2, 1968 and the case was adjourned to November 18, 1968. Arguments could not be heard on November 2, 1968 and the case was adjourned to November 18, 1968. Bipat Husain in the meantime seems to have made an application to the District Magistrate complaining that no evidence was being recorded against the Petitioner and that both the parties may be given adequate opportunity for producing evidence. An order was passed by the District Magistrate on November 16, 1968 to the effect that the Sub-Divisional Officer will take evidence of both the parties and then after hearing them, if they so wished pass necessary orders according to law. It appears that in pursuance of the said order the Sub-Divisional Officer on November 18, 1968 which was the date fixed in the case required the Petitioner as well as Bipat Husain to submit a list of their witnesses. Bipat Husain submitted two lists of witnesses, but the Petitioner did not submit any. On February 13, 1969 statement of Bipat Husain was recorded in part and March 1, 1969 was fixed for further evidence. On the said date, however, neither Bipat Husain nor the Petitioner appeared and the Sub-Divisional Officer fixed March 27, 1969 for arguments. On some application made by Bipat Husain the Sub-Divisional Officer passed an order on March 19, 1969 to the effect that the witnesses had already been examined in enquiry proceedings and there is no need to call them for fresh examination. Arguments could not be heard on March 27, 1969 and April 2, 1969 was fixed in the case. Bipat Husain seems to have in the meantime again made some application to the District Magistrate and the District Magistrate seems to have asked the Sub-Divisional Officer to take necessary action. Neither a copy of the said application nor the order passed thereon by the District Magistrate has been filed and it is not, therefore, possible to ascertain their contents but presumably acting upon the order that may have been passed by the District Magistrate the following order was passed by the Sub-Divisional Officer on April 2, 1969: Proceeding has been pending since long. Witnesses to be cross-examined by the Pradhan under suspension have not been produced on dates fixed. In case the Applicant wants to produce the witnesses he should produce them on 12-4-69, the last date for purpose. In case the Pradhan wants or does not want to cross-examine them, will be determined on that date. Witnesses to be cross-examined by the Pradhan under suspension have not been produced on dates fixed. In case the Applicant wants to produce the witnesses he should produce them on 12-4-69, the last date for purpose. In case the Pradhan wants or does not want to cross-examine them, will be determined on that date. 3. Bipat Husain produced 13 witnesses on April 12, 1969 who were tendered for cross-examination but the Petitioners' counsel declined to cross-examine them. Thereafter April 21, 1969 seems to have been fixed in the case and ultimately the impugned order removing the Petitioner was passed on May 6, 1969. 4. Learned Counsel for the Petitioner has made three submissions: (1) that the Petitioner was not given adequate and reasonable opportunity by the Sub-Divisional Officer to defend himself; (2) that the orders passed by the District Magistrate when proceedings were still going on before the Sub-Divisional Officer amounted to undue interference with the proceedings which had the effect of vitiating the proceedings; and (3) that neither the witnesses were examined by the Naib-Tahsildar in presence of the Petitioner nor were copies of statements supplied to him with the result that the opportunity which was given to him to cross-examine the said witnesses was illusory. On the basis of these submissions it is urged that the principles of natural justice were violated. 5. Before considering the question in regard to the scope of the principles of natural justice which may be held applicable it will be necessary to record a finding on the questions of fact raised in the case inasmuch as the findings so arrived at would constitute the basis for the determination of the question as to whether in the instant case the principles of natural-justice were violated and if so, in what manner? 6. So far as the Petitioner's grievance that he was not afforded adequate and reasonable opportunity to produce any evidence in defence is concerned we find no difficulty in holding that the complaint made be the Petitioner in this behalf is wholly unfounded. 6. So far as the Petitioner's grievance that he was not afforded adequate and reasonable opportunity to produce any evidence in defence is concerned we find no difficulty in holding that the complaint made be the Petitioner in this behalf is wholly unfounded. As would appear from the order-sheet of October 11, 1968 and October 28, 1968 a true copy of which has been filed as Annexure 'B' to the counter-affidavit of Adya Prasad Tripathi, it was specifically stated on behalf of the Petitioner on October 11, 1968 that he only wanted to have a personal hearing and did not desire to produce any oral evidence. On October 28, 1969 his counsel was heard and it was agreed that the Petitioner did not want any personal hearing. From the facts stated above it would appear that after these two dates no such evidence was recorded which was used against the Petitioner and therefore, there was no occasion for granting the Petitioner any further opportunity of rebuttal. 7. The submission on behalf of the Petitioner that the proceedings were vitiated on account of any inteference by the District Magistrate is also without any substance. It is true that on an application made by Bipat Husain the District Magistrate on November 10, 1968 directed the Sub-Divisional Officer to take evidence of both the parties but except recording the statement of Bipat Husain in part no other statement of any witnesses was recorded by the Sub-Divisional Officer and from the order of the Sub-Divisional Officer dated May 6, 1969 it does not appear that any reliance was placed on that part of the statement of Bipat Husain which was so recorded. So far as the second application made by Bipat Husain to the District Magistrate is concerned neither a copy of the said application has been filed nor a copy of the order passed thereon and it is not possible to ascertain their contents. Moreover, in pursuance of the said order the Petitioner himself was given additional opportunity to cross-examine the witnesses that were examined by the Naib Tahsildar which opportunity the Petitioner "declined to avail of and in these circumstances it cannot be said that the proceedings in any way were vitiated by the two orders referred to above passed by the District Magistrate. 8. 8. Now we proceed to consider the last submission made on behalf of the Petitioner that the Naib Tahsildar examined the witnesses behind the back of the Petitioner and that the copies of their statements were not given to the Petitioner with the result that the opportunity given to cross-examine those witnesses was illusory. A true copy of the explanation which was submitted by the Petitioner in reply to the charge-sheet has been attached as Annexure 'III' to the writ petition wherein it has been admitted that a copy of the report of the Naib-Tahsildar had been given to him. The copy of the report of the Naib-Tahsildar which was so given to the Petitioner has, however, not been filed. An uncertified copy of the said report was, however produced by the Petitioner's counsel for our perusal at the time of hearing along with a copy of the notice which was given by the Naib-Tahsildar on December 13, 1967 to the Petitioner. From a perusal of the copy so produced before us it appeared that to the report of the Naib-Tahsildar were annexed various documents including the complaints made against the Petitioner and the statements of the witnesses examined by the Naib-Tahsildar. The notice dated December 13, 1967 given by the Naib-Tahsildar to the Petitioner stated that the Naib-Tahsildar wanted to make enquiry on December 17, 1967 upon the application made by Fida Husain and others residents of village Jamdashahi against the Pradhan. The Pradhan was required to be present at Jamdashahi at 9.00 O'clock on the said date along with all the papers of the Land Management Committee. 9. The Petitioner was the Pradhan of the Gaon Sabha, Jamdashahi and from the aforesaid notice it was clear that the proceedings in connection with the enquiry made by the Naib-Tahsildar on December 17, 1967 were held at village Jamdashahi itself. It is admitted to the Petitioner in paragraph 5 of the writ petition that his statement was recorded by the Naib-Tahsildar on December 17, 1967 but he asserts that no other proceedings were taken in that connection on that date. It is admitted to the Petitioner in paragraph 5 of the writ petition that his statement was recorded by the Naib-Tahsildar on December 17, 1967 but he asserts that no other proceedings were taken in that connection on that date. When a complaint containing serious charges against him was being inquired into in the village itself after proper notice to the Pradhan and the statements are recorded during such enquiry it does not appeal to reason that the Petitioner after giving his statement became oblivious of the further proceedings that took place thereafter. Adya Prasad Tripathi the Naib-Tahsildar who conducted the enquiry has himself filed a counter-affidavit. In paragraph 5 of this counter-affidavit it has been stated on personal knowledge that the statements of some witnesses were also recorded on that date. It has further been stated that statements of some witnesses were recorded on December 25, 1967 and that all the statements were recorded in the presence of the Petitioner. It has also been stated in the said paragraph that on December 25, 1987 the Petitioner made a statement duly signed in Urdu that he did not want to give statement immediately and that he will do so in Basti on December 27, 1967 and that in spite of various opportunities being given to him thereafter the Petitioner did not either give any statement or produce any documentary evidence. A true copy of the statement of the Petitioner made on December 25, 1967 has been filed as Annexure 'A' to the counter affidavit and the statement as recorded by the Naib-Tahsildar reads thus: Sri Abdul Wahab Pradhan Aap is samai sabut nahin dena chahte. Aap kahte hain ki Basti men Sabut doonga. Atah dinank 27-12-67 ko apna Sabut Fida Husain ki darkhowast ke sambandh men tahsil men upasthit ho kar mere samaksh den. A. Pra. Tripathi Na. Ta. 25-12-67 Abdul Wahab Pradhan. 10. In Para. 6 of the rejoinder-affidavit which contains the reply of para. 5 of the counter-affidavit it has not been specifically stated that the Petitioner did not make any such statement and that the statement as filed along with the counter-affidavit does not contain his signature. The relevant averment in this behalf in para. Ta. 25-12-67 Abdul Wahab Pradhan. 10. In Para. 6 of the rejoinder-affidavit which contains the reply of para. 5 of the counter-affidavit it has not been specifically stated that the Petitioner did not make any such statement and that the statement as filed along with the counter-affidavit does not contain his signature. The relevant averment in this behalf in para. 6 of the rejoinder-affidavit reads thus: It is wrong to say that on 25-12-67 the deponent wanted time to give his statement on 27-12-67 and in fact no such question arises as the deponent had already been examined on 17-12-67. It would appear that without denying the fact of making statement under his signature a technical objection was sought to be raised in the rejoinder-affidavit based on the word "statement" used in para. 5 of the counter-affidavit. As would be clear from Annexure 'A' to the counter-affidavit what was stated was that the Petitioner did not want to adduce evidence in his defence (sabut) on December 25, 1967 and that he would give the same at Basti. Obviously the word "statement" in para. 5 of the counter-affidavit has to be read in that context. It would thus appear that the Petitioner had no courage to deny the fact that he did not make any such statement on December 25, 1967 as alleged in the counter-affidavit but only tried to take shelter on a hair-splitting interpretation of the word "statement." In view of what has been observed above we have no hesitation in accepting the facts stated in para. 5 of the counter-affidavit, namely that the statements of witnesses both on December 17, 1967 and December 25, 1967 were recorded in the presence of the Petitioner and that the Petitioner notwithstanding the fact that he was given various opportunities by the Naib-Tahsildar to enter defence did not avail of those opportunities. This conclusion finds further support from the explanation given by the Petitioner to the charge-sheet. Relevant portion of the explanation reads thus: In his eagerness to insist his enquiry with a certain amount of sanctity the learned N.T. even crossed the limits of illegality and put the witnesses as also me, an accused, on oath. It is common knowledge that oath is not only quite out of place in a preliminary enquiry of this type, but also goes to prejudice a fair and impartial assessment of the accusation made. 11. It is common knowledge that oath is not only quite out of place in a preliminary enquiry of this type, but also goes to prejudice a fair and impartial assessment of the accusation made. 11. According to the Petitioner when this explanation was submitted by him he had not been supplied with the copies of the statements of the witnesses and had been supplied only with the report of the Naib-Tahsildar. We asked the learned Counsel for the Petitioner to point out anything from the copy of the report of the Naib Tahsildar produced before us which may indicate that the statements of the witnesses were recorded on oath. The learned Counsel was, however, unable to point out any such thing and it is obvious that unless the statements were recorded in the presence of the Petitioner he could not have known that these statements were recorded on oath. 12. In view of the finding that the statements of the witnesses were recorded in presence of the Petitioner the assertion that the copies of their statements were not furnished to the Petitioner loses its significance. We may, however, point out that there is no assertion in the writ petition that the copy of the report of the Naib-Tahsildar which was supplied to the Petitioner was an incomplete copy. As observed above the copy of the report of the Naib-Tahsildar produced before us indicated that the complaints made against the Petitioner and the statements of the witnesses examined by the Naib-Tahsildar were annexed to the said report and it can be presumed that the copy of the report of the Naib-Tahsildar which was supplied to the Petitioner contained these annexures. The conduct the Petitioner in not filing the copy of the report as supplied to him gives rise to an inference against the Petitioner. The following extract from the explanation of the Petitioner supports the inference that copies of the statements of the witnesses and the complaints made against the Petitioner were annexed to the copy of the report of the Tahsildar which was furnished to the Petitioner: I cannot again remain without bringing to your kind notice that the attitude of the Enquiring N.T. had been extremely hostile to me in the course of Enquiry, bordering sometimes on unfairness. He should have, for instance, confined his enquiry to the compass provided by the complaining application made by Bipat and others. He should have, for instance, confined his enquiry to the compass provided by the complaining application made by Bipat and others. But in interrogating and recording the statements of witnesses he went out of his way by bringing and introducing charges against me which had no trace in the complaint in writing made against me. 13. According to the Petitioner he had neither been supplied with the copies of the complaints nor of the statements of the witnesses. If that was so it remains unexplained as to how did the Petitioner some to know that the Naib-Tahsildar in interrogating and recording the statements of the witnesses went out of his way by bringing and introducing charges against the Petitioner which had no trace in the complaint in writing made against him. To us, therefore, it appears that not only the witnesses were examined in the presence of the Petitioner but copies of their statements along with copies of the complaints were furnished to the Petitioner as part of the report of the Naib-Tahsildar. It may be that the copies of the statements of the witnesses or of the complaints may not have been separately furnished to the Petitioner and the assertion of the Petitioner in this behalf may be based on this technical view of the matter. 14. The position hence is that at the preliminary enquiry, the witnesses in support of the charges were examined in the presence of the Pradhan and that he was also furnished a copy of their depositions. But of his own accord, the Pradhan did not choose to cross-examine the witnesses when they were produced for that purpose. According to the Supreme Court, the rules of natural justice require that a party charged 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 materia is should be relied on against him without his being given an opportunity of explaining them- Union of India (UOI) Vs. T.R. Varma, AIR 1957 SC 882 , Phulbari Tea Estate Co. v. Its Workmen AIR 1959 SC 111, Central Bank of India Ltd. Vs. T.R. Varma, AIR 1957 SC 882 , Phulbari Tea Estate Co. v. Its Workmen AIR 1959 SC 111, Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983 , T.P. Tripathi v. Board of H.S. and Intermediate Education, U.P. 1972 AWR 330 FB. On facts, these principles were complied with in the present case. 15. Even where the statement of witnesses are recorded at the preliminary enquiry in the absence of the charged officer, still they are relevant and can be used, if those statements are made available to the delinquent officer and he is given an opportunity to cross-examine those witnesses- State of Uttar Pradesh Vs. Om Prakash Gupta, AIR 1970 SC 679 . 16. A Division Bench in Harichand v. State 1970 AWR 48 held that where no particular procedure is prescribed, as is the case u/s 95(1) of the Panchayat Raj Act, it would be enough compliance with the principles of natural justice if the charges are fully communicated to the person concerned, the result of the enquiry, if any, is made known to him and the material which is sought to be used against him is disclosed to him and he is afforded adequate opportunity to meet this charges and to lead evidence in rebuttal. In our opinion, this decision lays down the law in accordance with the principles enunciated by the Supreme Court. 17. In Ved Singh Pradhan Vs. Assistant Sub-Divisional Officer and Others, AIR 1965 All 370 , a Division Bench expressed the opinion that in the proceedings for removal of a Pradhan u/s 95(1)(g), the disciplinary authority was not required to act as a tribunal exercising quasi-judicial functions and hence in such an enquiry, the applicable principle of natural justice was only that the charged officer should be given an opportunity to explain the charges. There was no necessity to hold a regular trial by examining witnesses or allowing the charged officer to cross-examine them. This decision, in our opinion, does not lay down the law correctly. 18. It has now been ruled by the Supreme Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, AIR 1970 SC 150 that the dividing line between an administrative power and a quasi-judicial function is quite thin and is being gradually obliterated. Often it is not easy to draw a line that demarcates administrative enquiries from quasi-judicial enquiries. Union of India (UOI) and Others, AIR 1970 SC 150 that the dividing line between an administrative power and a quasi-judicial function is quite thin and is being gradually obliterated. Often it is not easy to draw a line that demarcates administrative enquiries from quasi-judicial enquiries. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. The purpose of the rules of natural justice is to prevent miscarriage of justice. One fails to see why these rules should be made inapplicable to administrative enquiries. 19. Thus the rules of natural justice are equally applicable, even though the nature and character of the enquiry be held to be administrative. 20. The Supreme Court in the State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, AIR 1967 SC 1269 held that even an administrative order, which involves civil consequences, must be trade consistently with the principles of natural justice. The distinction drawn in Ved Singh's case that if the enquiry is not quasi-judicial, then the applicable principle of natural justice is merely that the charged officer should be given an opportunity of explaining the charges, in our opinion, displays an incomplete statement of the law. All and the same principles of natural justice fully apply even if the enquiry is administrative in nature, provided it affects the rights of the charged officer and involves civil consequences. A proceeding for the removal of a Pradhan from the office to which he was elected clearly affects his rights and involves civil consequences upon him. Such an enquiry can only be made consistently with the principles of natural justice. 21. But, as already seen, these principles were complied with in the present case. The Appellant cannot have any legitimate complaint in that regard. 22. In the result, the writ petition has no merits and is dismissed with costs.