DIRECTOR GENERAL OF POSTS v. N. C. MAJUMDAR — 1973 DIGILAW 30 (CAL)

SINHA, J. ( 1 ) : This appeal is preferred by the Director General, Posts and Telegraphs, Union of India, and others against the judgment and order of P. K. Banerjee, J. passed in writ jurisdiction of this Court upon an application under Article 226 of the Constitution made by the respondents quashing the order of dismissal from his service. Briefly stated, the facts are as follows: - ( 2 ) THE petitioner, who was at the material time an Assistant Engineer of Calcutta Telephones, was charge-sheeted for his failure to maintain absolute integrity in the performance of his duty as required under Rule 3 of the Central Civil Service (Conduct) Rules, 1955. Substantially, the allegations were that there were alterations and interpolations in the sub-vouchers submitted along with certain bills, entries had not been made in case of few purchases of materials of contingent nature in the stock register while in some other cases delayed entries were made, details of cash memos were not entered in the accounts and the petitioner used three receipts for taxi-hire amounting to Rs. 4. 50 in order to drive undue financial advantage. Along with him another officer named G. C. Roy was also charge-sheeted for making wrong entries or delayed entries of the purchase in the relevant stock register with reference to cash memos or failure to give cash memos or to give certificate for those purposes. The disciplinary proceeding was started both against the petitioner and G. C. Roy with the issue of charge-sheet after the preliminary investigation made by the Deputy Superintendent of Police, Special Police Establishment, Calcutta. ( 3 ) THE petitioner in reply to the charge showed cause denying all material allegations made in the statement of allegations annexed to the charge-sheet and one Mr. K. Thomas Kora was appointed the Enquiry Officer for an enquiry into the charges and for submission of his report to the Disciplinary Authority. In course of the proceeding the respondent made several representations before the Director General, Posts and Telegraphs, praying for assistance of a legal practitioner in the enquiry proceeding and also for inspection of the report of the Special Police Establishment. They refused both these prayers and these representations were rejected. In course of the proceeding the respondent made several representations before the Director General, Posts and Telegraphs, praying for assistance of a legal practitioner in the enquiry proceeding and also for inspection of the report of the Special Police Establishment. They refused both these prayers and these representations were rejected. In the enquiry proceeding, however, 25 witnesses were examined on behalf of the departmental Disciplinary Authority and two witnesses were examined by the respondent including the evidence of two experts on either side and a number of documents were exhibited in this case. The Enquiry Officer on consideration of evidence submitted his report holding, inter alia, that the charges made against the respondent were established. After giving a second opportunity to the respondent, the Disciplinary Authority, also on consideration of the report and all other evidence and materials dismissed the petitioner from his service. ( 4 ) THE petitioner preferred a departmental appeal which was also dismissed. The petitioner then moved this Court in its writ jurisdiction and obtained a rule, Banerjee, J. found that there was violation of the principles of natural justice on two points, namely, (i) the refusal to permit the petitioner to take the assistance of a legal practitioner and (ii) the refusal of the Disciplinary Authority to all inspection of the report of the Investigating Officer of the Special Police Establishment. As such, failures deprived the petitioner-respondent of reasonable opportunity to defend his case. The impugned order of dismissal was, accordingly, quashed and the rule was made absolute. That is how in short the appellant felt aggrieved and preferred the present appeal. ( 5 ) IN the appeal before us it is contended in the first place by Mr. Banerjee, learned Counsel for the appellant, that it was not right that the refusal to permit the petitioner to take assistance of a legal practitioner on the facts of this case resulted in violation of the rules and principles of natural justice. Mr. ( 5 ) IN the appeal before us it is contended in the first place by Mr. Banerjee, learned Counsel for the appellant, that it was not right that the refusal to permit the petitioner to take assistance of a legal practitioner on the facts of this case resulted in violation of the rules and principles of natural justice. Mr. Banerjee, we should say very fairly, placed before us the decision of Special Bench of this Court in (1) N. N. Bagchi v. State of West Bengal, AIR 1961 Cal 1 referred to by the learned trial Judge and drew our attention to paras 54, 55 and 56 of the report to show -that if on the particular facts and complexity of a case assistance of a legal practitioner is regarded as a part of reasonable opportunity, then denial of such an opportunity is violation alike of the constitutional protection under Article 311 (2) and the principles of natural justice. It has been contended that it has to be seen on the facts of a particular case, therefore, as to whether or not by refusal to take the assistance of a lawyer the petitioner has been denied reasonable opportunity within the meaning of provision of Article 311 (2) of the Constitution. It is said that applying that principle to the present case there cannot be any question of violation of rules and principles of natural justice. It is argued that having regard to the relevant rules, namely, Rule 15 (5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, it is to be seen whether there has been failure on the part of the Disciplinary Authority to afford adequate opportunity to the delinquent servant to defend his case by the Authority's refusal to permit the servant to take the assistance of a legal practitioner in an enquiry proceeding. In the Special Bench case it appears that the Court had to construe Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, where there was not such provision as Rule 15 (5) of the new set of the same Rules framed in 1957. ( 6 ) QUESTION, therefore, is whether there has been any violation of rules and principles of natural justice by refusal to give opportunity to the petitioner to take the assistance of a legal practitioner in the facts of this case. ( 6 ) QUESTION, therefore, is whether there has been any violation of rules and principles of natural justice by refusal to give opportunity to the petitioner to take the assistance of a legal practitioner in the facts of this case. Rule 15 (5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, provides as follows: -the Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereunder referred to as the Inquiring Authority ). The Government servant may present in his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority having regard to the circumstances of the case so permits. From a fair reading of the above Rule it seems clearly obligatory upon the Disciplinary Authority to, firstly, allow the assistance of a legal practitioner to a Government servant if the person nominated by the Disciplinary Authority for presentation of its case is also a legal practitioner; even it is not so, then also it is equally obligatory upon the Disciplinary Authority to consider all other relevant circumstances of the case and then either to accord or refuse such permission. In other words, even where there is no legal practitioner nominated on behalf of the Disciplinary Authority, the Disciplinary Authority is bound to consider the facts and circumstances of the given case before it could refuse permission to engage a legal practitioner to assist the Government servant. It would, therefore, be a clear breach of duty on the part of the Disciplinary Authority if it would refuse to allow the petitioner to engage legal practitioner only on the view that no legal practitioner was nominated by the Disciplinary Authority in presenting its own case. That being so, it is quite clear that the Disciplinary Authority, in the present case, refused to allow the petitioner to take the assistance of a legal practitioner simply because the case did not satisfy the first part of the Rule, namely, that there was no legal practitioner nominated by the authority for presentation of its own case. That being so, it is quite clear that the Disciplinary Authority, in the present case, refused to allow the petitioner to take the assistance of a legal practitioner simply because the case did not satisfy the first part of the Rule, namely, that there was no legal practitioner nominated by the authority for presentation of its own case. But at the same time the Disciplinary Authority failed to comply with the other part of the Rule is that it did not make into consideration all the facts and circumstances of the instant case for refusing permission to the respondent to take help of a legal practitioner. Quite clearly, in taking such a decision refusing permission to the petitioner to take the help of a legal practitioner, there was violation of Rule 15 (5) and, therefore, the petitioner must be deemed to have been denied reasonable opportunity afforded by Article 311 (2) of the Constitution consistent with the terms of Rule 15 (5) and this contravened the rules and principles of natural justice. This view is supported by a comparatively recent decision of the Supreme Court cited by Mr. Banerjee in (2) C. L. Subramaniam v. The Collector of Customs, Cochin, AIR 1972 SC 2178 . In this case, the petitioner asked for the assistance of a legal practitioner on the ground that a trained prosecutor of the status of a high Police official was being engaged by the Disciplinary Authority. Considering this aspect of the matter it has been held by the Supreme Court that this was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scale should be weighed against him. But the Disciplinary Authority completely ignored that circumstances and, therefore, that authority clearly failed to exercise the power conferred on it under the Rule. It has also been held that this refusal caused serious prejudice to the appellant and amounted to a denial of reasonable opportunity to defend himself. On a construction of Rule 15 (5) the Supreme Court also has laid down that this is a mandatory rule and it has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate cases by a legal practitioner. ( 7 ) MR. On a construction of Rule 15 (5) the Supreme Court also has laid down that this is a mandatory rule and it has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate cases by a legal practitioner. ( 7 ) MR. Banerjee has, however, sought to distinguish this case on facts but, as noticed earlier, the facts appear to be almost identical on question relating to this aspect of the matter. Here, in the instant case, apart from the question that there were voluminous deposition of as many as 27 witnesses, quite a considerable number of documents exhibited and also the two opinions of experts adduced on either side, one Deputy Superintendent of Police, Special Establishment, who carried on the preliminary Police investigation was nominated by the Disciplinary Authority to present its case in the enquiry proceeding. This high official is undoubtedly a trained Police prosecutor and it was, therefore, necessary that the petitioner ought to be allowed, as observed by the Supreme Court, the assistance of a legal practitioner to effectively defend himself. In our opinion, therefore, refusal to allow the petitioner to have the assistance of a legal practitioner in the departmental enquiry proceeding resulted, no doubt, in violation of rules and principles of natural justice as embodied in Rule 15 (5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and Article 311 (2) of the Constitution. ( 8 ) SECONDLY, Mr. Banerjee has contended that refusal to permit the respondent to inspect the report of the Superintendent of Police could not constitute failure to comply with the mandatory provisions of rules and principles of natural justice. It is argued that the decision of the Supreme Court in (3) State of Madhya Pradesh v. Chintaman Sadashiva Walshampayan, AIR 1961 SC 1623 has no application to the facts of this case. Mr. Banerjee has very strongly relied on the Patna case considered by the Supreme Court in this decision of (4) Dr. It is argued that the decision of the Supreme Court in (3) State of Madhya Pradesh v. Chintaman Sadashiva Walshampayan, AIR 1961 SC 1623 has no application to the facts of this case. Mr. Banerjee has very strongly relied on the Patna case considered by the Supreme Court in this decision of (4) Dr. Tribhuwan Nath v. State of Bihar, AIR 1960 Patna 116 wherein it was held that refusal t permit inspection of a report of the Anti-Corruption Department made in a confidential enquiry against the concerned Government servant, which did not form part of the evidence in the departmental enquiry proceeding could not bring about consequential violation of rules and principles of natural justice. We may say that this was also the view of the Special Bench of this Court in Nripen Bagchi's case (supra ). While the proposition laid down in these cases cannot be disputed, we think, it has no application to the facts of the present case. Apart from the question of effective cross-examination we find that in fact the Enquiring Officer relied upon this report which no doubt, influenced his consideration in concluding that the charges were established against the respondent. There was some dispute on the question as to whether at the material time the respondent was also in charge of 47' Exchange, Internal, also for purchase of a contingent nature were effected by him for this exchange. In this connection, the Enquiring Officer has clearly stated that during investigations this aspect does not appear have been taken into consideration. As mentioned by Shri P. C. Majumder, D. S. P. S. P. E. , this might have been due to the fact that at that time the investigation started Shri N. C. Mazumdar was only in charge of 44' Exchange, Internal and External. It is clear from this statement that the Enquiring Officer himself had looked to the report of the Investigating Officer and he collected information from this report undoubtedly influenced his consideration in determining the question whether or not the respondent was also in charge of 47' Exchange. It is clear from this statement that the Enquiring Officer himself had looked to the report of the Investigating Officer and he collected information from this report undoubtedly influenced his consideration in determining the question whether or not the respondent was also in charge of 47' Exchange. It is also in evidence that the charges were framed on the basis of this report of the S. P. E. In this case, the Police Officer concerned who submitted the report after his investigation appears to be the prosecutor on behalf of the departmental authority and himself gave evidence explaining away the cause of the omission made in the report on the question as to whether he was also in charge of 47' Exchange or not. From these facts it is clear that the report was considered by the Enquiring Officer as a part of the evidence and materials on record in the enquiry proceeding, but the respondent was not given any opportunity even to have an inspection of this report. In our opinion, therefore, refusal of permission to the respondent to inspect the report of the S. P. also resulted in violation of the rules and principles of natural justice in the departmental enquiry proceeding against the respondent. We are supported in our view, again by a decision of the Supreme Court also cited by Mr. Banerjee in (5) State of Assam v. M. . Das, AIR 1970 SC 1255 where, while considering a similar question, it was held when the Enquiring Officer had collected information from third parties and acted upon the information so collected without disclosing the same to the accused that the proceeding would be vitiated being contrary to the rules of natural justice. This being the position, we agree with the learned trial Judge that the enquiry proceeding culminating in the order of removal by the Disciplinary Authority and the appellate order affirming such order of removal suffer from serious infirmities resulting in violation of rules and principles of natural justice and must be struck down as invalid. ( 9 ) IN the view we have taken it is sufficient to dispose of the appeal but Mr. Bhattacharjee, learned Advocate for the respondent, has pressed his cross-objection. ( 9 ) IN the view we have taken it is sufficient to dispose of the appeal but Mr. Bhattacharjee, learned Advocate for the respondent, has pressed his cross-objection. First question raised is that the Vigilance Officer, who was a witness in this case, was all along present during the enquiry proceeding and, therefore, he must have exercised his influence over all the witnesses and that really vitiated the entire enquiry proceeding. In the second place, it is stated that the charge actually framed was vague and not in compliance with Rule 15. Thirdly, it is pointed out that the relevant account register 47' Internal Exchange, although admitted in evidence and considered by the Enquiring Officer in his report, was not disclosed to the respondent along with other documents relied on by the departmental authority in course of the enquiry proceeding. Fourthly, it is stated that G. C. Roy, who was also chargesheeted in this case along with the present respondent but ultimately exonerated, made certain statements before the Enquiring Officer in the proceeding which was accepted without offering the respondent any opportunity of cross-examining him. It is argued by Mr. Bhattacharjee that the enquiry proceeding also suffers from violation of rules and principles of natural justice on the above grounds. We do not think, it would be fair for us to enter into these question now raised in the cross-objection in absence of any indication in the judgment as to whether these were actually argued before the learned trial Judge. There are no particulars even in the cross-objection excepting a bold statement that the learned Judge erred in recording that the learned Counsel for the petitioner had contended only two points before him for consideration and that the learned Judge should have made the rule absolute also on the ground urged by the Counsel. Such being the position, we can not determine any of the question now raised in support of the cross-objection. ( 10 ) ACCORDINGLY, both the appeal and the cross-objection dismissed. We direct the appellant to pay costs to the appearing respondent, hearing fee being assessed at ten Gold Mohurs. ( 11 ) AS we have dismissed the appeal we direct that the respondent No. 1 be restored to the position he would have been entitled to by now and allowed to join his office forthwith. We direct the appellant to pay costs to the appearing respondent, hearing fee being assessed at ten Gold Mohurs. ( 11 ) AS we have dismissed the appeal we direct that the respondent No. 1 be restored to the position he would have been entitled to by now and allowed to join his office forthwith. Prayer for staying of the operation of the order made today by the learned Counsel on behalf of the appellant is refused. Banerjee, J. : I agree. Appeal and cross objection be dismissed.