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1977 DIGILAW 112 (CAL)

UNION OF INDIA v. Inder Nath

1977-04-07

M.M.Dutt, SABYASACHI MUKHARJEE

body1977
JUDGMENT 1. THIS appeal is at the instance of Union of India and others and is directed against the judgment of Chittatosh Mookerjee J. making the Rule obtained by the respondent Inder Nath on his application under Article 226 of the Constitution, absolute. 2. THE respondent was appointed a lower grade clerk in the Amalgamated Clerical Establishment of the Andaman and Nicobar Administration by the Chief Commissioner. Thereafter, he was promoted to the officiating post of higher grade clerk in the office of the District and Sessions Judge, Port Blair. On December 1, 1967 he was placed under suspension and on December 5, 1967 a charge-sheet containing 11 Articles of charge was served upon him by the District and Sessions Judge of the Andaman and Nicobar Islands. On the next day, the respondent made an application to the District and Sessions Judge praying for inspection of all the relevant documents so as to enable him to file his explanation within the stipulated time. It was further prayed by him that the copies of all relevant documents to be produced before the Enquiring Officer might also be furnished to him so that he might be able to defend himself property. The District and Sessions Judge by his order dated December 7, 1967 allowed the respondent's prayer for inspection of the relevant, documents. The respondent was permitted to inspect the documents in the Court room in the presence of the Bench Clerk from 1-15 P. M. to 3-30, P. M. Regarding supply of the copies of the documents, it was directed that the respondent might cite the rules under which he was. entitled to get copies. On December 8, 1967 the District and Sessions Judge refused the respondent's prayer for supply to him of copies of documents on the ground that preparation and furnishing of copies would involve harassment of proceedings and delay of the disposal of enquiry. The respondent made subsequent representations for the supply of copies, but the same were rejected. He was only permitted to inspect the records. On June 17, 1968 the documents relating to the articles of charge no. II was produced before him for inspection. The respondent made subsequent representations for the supply of copies, but the same were rejected. He was only permitted to inspect the records. On June 17, 1968 the documents relating to the articles of charge no. II was produced before him for inspection. The Enquiring Officer, however, disallowed the respondent to take notes of the documents in ink on the ground that Note 2 of Rule 394, Chapter XVIII of Civil Rules and Orders, Volume I, prohibited taking down of notes other than short memoranda to be written in pencil. The Enquiring Officer rejected the objection of the respondent that the said rule was inapplicable to the disciplinary proceeding which was being held under the Central Civil Service (Classification, Control and Appeal) Rules, 1965. In other words, the respondent was not allowed to take detailed notes either in ink or in pencil and as he insisted on taking down detailed notes in ink, the Enquiring Officer by his order passed on the same day, that is, on June 17, 1968 even cancelled his earlier orders dated June 12, 1968 and June 15, 1968 permitting the respondent to inspect the documents. He, however, granted liberty to the respondent to inspect the documents on 24 hours' notice in the manner as directed by the Enquiring Officer, that is, he would have to take short notes of the documents in pencil and not in ink. As the respondent was prevented from taking notes of the documents including certain reports against him which were all relied on by the disciplinary authority and mentioned in the Annexure to the charge-sheet issued by him, he could not file his written defence or explanation. The disciplinary proceeding; continued without the written defence of the respondent. On behalf of the disciplinary authority certain witnesses were examined at the enquiry and they were all cross-examined by the respondent. The witnesses were examined charge-wise, in consequence of which the same witness had to be examined and cross-examined more than once Certain witnesses who were not named in the Annexure to the charge-sheet were examined at the enquiry without any prior notice to the respondent. Further, certain documents which were not disclosed to the respondent at any stage and not even mentioned in the Annexure to the charge-sheet were also proved through the new witnesses. Further, certain documents which were not disclosed to the respondent at any stage and not even mentioned in the Annexure to the charge-sheet were also proved through the new witnesses. The respondent protested against the charge-wise examination of witnesses and also examination of new witnesses and admission of documents not mentioned in the charge-sheet and without any notice to him. But the Enquiring Officer overruled the said objection of the respondent; and proceeded with the enquiry. 3. IN his report, the Enquiring Officer found the respondent guilty of all the Articles of charge excepting Articles of charge nos. 3, 6 and 8. The District and Sessions Judge who was the disciplinary authority of the respondent was competent to impose only minor penalties as specified in classes (i) to (iv) of rule 11 of the Central Civil Service: (Classification Control and Appeal) Rules, 1965. The Chief Commissioner of the Andaman and Nicobar islands was also the disciplinary authority, and he was competent to impose major penalties as specified in clauses (v) to (ix) of rule 11. The District and Sessions Judge found the respondent partially guilty in respect of Article of charge no. 1. He agreed with the findings of the Enquiring Officer on the other charges excepting the Article of charge no. 5 in respect of which he found the respondent guilty. He took the view that the respondent should be dismissed from service and accordingly, in view of the provision of Rule 14 (21) (a) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 he forwarded the records to the Chief Commissioner who agreed with the findings of the District and Sessions Judge and provisionally came to the conclusion that the respondent was not a fit person to be retained in service. . He proposed to impose on the respondent the penalty of dismissal from service and asked him to show-cause against the penalty proposed. The respondent did not show any cause as called upon and the Chief Commissioner by his order dated June 15, 1970 dismissed the respondent from service with immediate effect. 4. BEING aggrieved by the said order of dismissal, the respondent preferred an appeal to the President of India. The Deputy Secretary to the Government of India by his order dated May 29, 1972 informed the respondent that the President had come to the conclusion that the Article of charge no. 4. BEING aggrieved by the said order of dismissal, the respondent preferred an appeal to the President of India. The Deputy Secretary to the Government of India by his order dated May 29, 1972 informed the respondent that the President had come to the conclusion that the Article of charge no. 1 was proved party and the Articles of charge nos. II, IV, VII, VIII and XI were fully proved against the respondent and rejected the appeal preferred by him. The respondent moved an application under Article 226 of the Constitution before this Court challenging the charge-sheet, the report of title Enquiring Officer, the order of dismissal and the appellate order and prayed for the quashing of the same on various grounds and obtained the Rule out of which this appeal arises. The Rule came as for hearing before Chittatosh Mookerjee J. and his Lordship by his judgment held as follows : (1) The Enquiring Officer clearly acted in violation of the principles of natural justice and also in disregard of Rule 14 (11) of the Central Civil Services (Classification, Control and Appeal) Rules in rejecting th6 petitioner's prayer for inspection of documents mentioned in the Annexure to the charge-sheet. He further found that neither Rule 394 of Chapter XVIII Volume I, of the Civil Rules and Orders, nor the notes there under had any manner of application to the disciplinary proceeding against the respondent and the Enquiring Officer clearly acted in violation of the principles of natural justice by purporting to apply the procedure laid down by rule 394 and by preventing the petitioner from taking notes from the documents in question, The Enquiring Officer, therefore, dearly denied the petitioner a reasonable opportunity of defending himself by cancelling his previous order dated June 15, 1968 whereby he permitted the respondent to inspect the documents, 2) The Enquiring ' Officer adopted a very novel procedure in the matter of examination of the witnesses by examining them charge-wise to the prejudice of the respondent. (3) The Enquiry Officer violated the provision of rule 14 (15)by examining some other witnesses the names of whom, were not mentioned in the Annexure to the charge-sheet to the prejudice of the respondent inspite of the protest made by the respondent. (3) The Enquiry Officer violated the provision of rule 14 (15)by examining some other witnesses the names of whom, were not mentioned in the Annexure to the charge-sheet to the prejudice of the respondent inspite of the protest made by the respondent. (4) The Appellate authority also committed an error apparent on the face of the record in not considering the aforesaid fatal lacunae in the disciplinary proceeding against the respondent. The said authority also failed to consider and deal with the material points raised in the petition of appeal of the respondent. Upon the said findings, Mookerjee J. made the Rule absolute and directed the issue of a Writ in the nature of Certiorari quashing the impugned disciplinary proceeding (after the stage of charge-sheet) including the enquiry report, the order of the District and Sessions Judge under Rule-14 (21) (a) of the Rules, the second show-cause notice, the punishment order and the order of the Appellate authority. He also directed the issue of a, Writ in the nature of Mandamus commanding the appellants to forbear from giving any effect or further effect to the said proceeding and orders. We, however, gave liberty to the appellants to further act and proceed in accordance with law. Hence, this appeal. 5. IT is contended by Mr. Nani Coomar Chakrabarty, learned Advocate appearing on behalf of the appellants that the Enquiring Officer in refusing the respondent to take down notes in ink or to take down detailed notes from the Court record did not violate any rules or act contrary to the principles of natural justice. He has also plated reliance on rule 394 of the Civil Rules and Orders. It has been submitted by him that as rule 14 (11) (i) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 only provides for granting inspection of documents and not for allowing the Government servant to take down notes of the documents, the Enquiring; Officer complied with this rule by granting inspection of the documents to the respondent. We are unable to Accept these contentions. Rule 394 of the Civil Rules and Orders does not in terms apply to a disciplinary proceeding. That rule applies between the parties to a litigation. We are unable to Accept these contentions. Rule 394 of the Civil Rules and Orders does not in terms apply to a disciplinary proceeding. That rule applies between the parties to a litigation. The Enquiring Officer, in our opinion, was not at all justified in insisting on the strict compliance of rule 394 which, as aforesaid has no manner of application to the respondent. The disciplinary proceeding started against the respondent is undoubtedly governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and not by any other rule or regulation. Even in the absence of any rule laying down the procedure to be followed in a disciplinary proceeding, the disciplinary authority or the Enquiring Officer appointed by him is required to follow the principles of natural justice. Rules governing any disciplinary proceeding are framed in accordance with the principles of natural justice. It is true that rule 14 (11) (i) does not provide for allowing the Government servant to take down notes of inspection of documents. But in our view, such a provision was not required to be made, for the provision for inspection of documents, by necessary implication, entitles a Government servant to take down notes of inspection. To say that a Government servant may inspect documents, but will not be entitled to take down notes of inspection, is meaningless and contrary to the rules of natural justice. Rule 14 (11) (i) has impliedly provided for allowing the Government servant concerned to take down notes of inspection. Such motes may amount to a verbatim copy of the entire document or they may be notes in the true sense of the term. No restriction can be put as to the type of the note that may be taken by a Government servant of a particular document. The Government servant may take such notes either in ink or in pencil as he likes. We fail to understand why the Enquiring Officer who is an Additional District Magistrate was so technical in the matter and refused the respondent to take down notes of the documents produced for inspection in his own way. The Enquiring Officer, in our opinion, violated the provision of rule 14 (11) (i) and also acted contrary to the rules of natural justice. there is therefore, no substance in the contentions made on behalf of the appellants. 6. The Enquiring Officer, in our opinion, violated the provision of rule 14 (11) (i) and also acted contrary to the rules of natural justice. there is therefore, no substance in the contentions made on behalf of the appellants. 6. IT is next contended on behalf of the appellants ' that by examining the witnesses charge-wise the Enquiring Officer acted quite in accordance with law. Mookerjee J. has observed that the Enquiring Officer adopted a novel procedure. In our opinion, there is much force in the said observation. There can be no doubt that the Enquiring Officer may evolve his own procedure, but he should not adopt a procedure which no reasonable man would adopt. It is said that in spite of such a procedure being followed by the Enquiring Officer for the examination of witnesses, the respondent was not at all prejudiced, for he was allowed to cross-examine the witnesses each time they came to depose in respect of different charges. It has been alleged by the respondent that he had been prejudiced and indeed he protested against the examination of witnesses chargewise. Although, it has not been specifically stated by the respondent how he has been prejudiced by the said procedure adopted by the Enquiring Officer for the examination of the witnesses, at the same time, the possibility of such prejudice cannot be altogether ruled out. Be that as it may, we disapprove the procedure followed by the Enquiring Officer for the examination of witnesses. It is, now to be considered whether the Enquiring Officer was justified in examining certain witnesses, the names of whom were neither mentioned in the Annexure to the charge-sheet nor was the respondent given a prior notice about the same. Rule 14 (15) of the Central Civil Services (Classification, Control and Appeal) Rules 1965 provides as follows : "if it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the is of further evidence proposed to be produced and. an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interests of justice. " 7. THE grievance of the respondent is that not only the Enquiring Officer examined new witnesses without any prior intimation to the respondent, but; also certain documents were brought on record through the said witnesses without giving the respondent an opportunity to inspect the same. In paragraph 38 of the writ petition, it has been categorically stated by the respondent that he had objected to the examination of new witnesses and asked for a copy of the list of evidence proposed to be produced and also asked for an adjournment of the enquiry for three days before the production of such new evidence as per rule 14 (15) An affidavit-in-opposition was filed on behalf of the appellants and it was sworn by Mr. A. K. Chatterjee, the District and Sessions Judge of the Andaman and Nicobar Islands. It may" be stated here, that Mr. Chatterjee took over charge of the office of the District and Sessions Judge after the completion of the disciplinary proceeding against the respondent. In paragraph 35 of the affidavit-in-opposition, he has strongly denied the correctness of the statements made in the said paragraph 38 and put the respondent to strict proof of his statements. Further, it has been averred by him that the respondent does not appear to have ever asked for any copy of the list of further evidence or for an adjournment of the enquiry as alleged. Mr. Chatterjee has no personal knowledge about the disciplinary proceeding. He was not, therefore competent to swear the affidavit in this regard. The most competent person who could deny the allegations of the respondent as made in paragraph 38 of the petition, is the Enquiring Officer himself. But no such affidavit has been filed by him although he was a party in the Rule. No explanation has been given why he did not swear any affidavit-in-opposition. The averments; made by Mr. The most competent person who could deny the allegations of the respondent as made in paragraph 38 of the petition, is the Enquiring Officer himself. But no such affidavit has been filed by him although he was a party in the Rule. No explanation has been given why he did not swear any affidavit-in-opposition. The averments; made by Mr. Chatterjee in paragraph 35 of the affidavit-in-opposition is somewhat vague and are not correct, for the allegations made by the respondent in paragraph 38 is borne out by the records of the proceeding. In the depositions of Pr. O. P. W. no. 1 and Pr. O. P. W. no. 2 it has been recorded by the Enquiring Officer that the respondent has protested against the examination of witnesses. In his petition of appeal to the President of India the respondent has also made the said allegations, namely, that he has protested against the examination of new witnesses and admission of documents without any notice to him. Further, it has been stated by him in the petition of appeal that he had asked for a copy of the list of further evidence caused to be produced and an adjournment of the enquiry for three clear days as provided in rule 14 (15. Thus it appears that it was not for the first time in this Court that the respondent had made the said allegations, but in the earliest opportunity he made those allegations to the Appellate authority. As stated already in the depositions of the said witnesses, the protest made by the respondent, has been noted by the Enquiring Officer himself. In such circumstances, vie do not find any reason to disbelieve the said allegations of the respondent as made in paragraph 38. We do not think that merely because a dispute has been raised by the appellants by denying the allegations of the respondent, this Court will be precluded from considering the truth or otherwise of the averments of the Respondent as made in paragraph 38 of the writ petition. It is true that a writ Court does not ordinarily enter into disputed questions of fact. Such a dispute raised by a party must have, prima facie, some basic foundation, so that it is difficult for the Court to come to a decision on the disputes arising out of averments made in the petition and the affidavits. It is true that a writ Court does not ordinarily enter into disputed questions of fact. Such a dispute raised by a party must have, prima facie, some basic foundation, so that it is difficult for the Court to come to a decision on the disputes arising out of averments made in the petition and the affidavits. In the instant case, we do not think that there is any foundation for the denial of the allegations made by the respondent. In our view, the denial made on behalf of the appellants in paragraph 35 of the affidavit-in-opposition has no foundation and accordingly, we do not think that any dispute has been raised by such a denial. It must be said, therefore, that the Enquiring Officer ignored and violated rule 14 (15) and thereby denied the respondent a reasonable opportunity to defend himself. 8. THE grievance of the respondent is that the Appellate authority also did not apply its mind to the contentions made by the respondent in his petition of appeal. No reason has been given by the appellate authority in upholding the order of dismissal. It has also not decided the points raised by the respondent in the petition of appeal which included refusal to him to take notes of the documents mentioned in the Annexure to the charge-sheet and examination of new witnesses and admission of new documents which were also not disclosed in the Annexure to the charge-sheet. Further, the respondent was not also supplied with a copy of the list of further evidence produced and was not granted an adjournment of the enquiry for three clear days before the production of such new evidence, even though a demand there for was made by him to the Enquiring Officer. The order of the Appellate authority, therefore, suffers from serious defects and cannot be upheld. It is however, contended by mr. Chakraborty that the Deputy secretary to the Government of India by his order dated May 29, 1972 only communicated the conclusions arrived at by the Appellate authority and not the decision containing reasons for such conclusions. It has been submitted by him that in the decision of the Appellate authority disposing of the appeal of the respondent, the points raised by the respondent must have been considered. The respondent not having asked for a copy of the decision it was not forwarded to him. It has been submitted by him that in the decision of the Appellate authority disposing of the appeal of the respondent, the points raised by the respondent must have been considered. The respondent not having asked for a copy of the decision it was not forwarded to him. In our opinion, the contention has no foundation and is without any substance. In the writ I petition, one of the complaints of the respondent is the non-consideration by the Appellate authority of the points raised by him in the petition of appeal. If there had been any such decisions with reasons as submitted on behalf of the appellants, they would have annexed a copy thereof to the their affidavit-in-opposition. Even in this appeal they could have produced before us the original decision of the Appellate authority from the records, but no attempt had been made in that regard. In these circumstances, we are of the view that besides the decision as contained in the said communication of the Deputy Secretary, there is no other decision of the Appellate authority. We are in agreement with the findings of Chittatosh Mookerjee, J. on the above points which have been argued before us on behalf of the appellants. In these circumstances, this appeal fails and is dismissed, but there will be no order as to costs. Appeal dismissed.