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2004 DIGILAW 1779 (ALL)

Mahesh Bahadur Saxena v. State of U. P.

2004-09-09

TARUN AGARWALA

body2004
JUDGMENT Tarun Agarwala, J.—The plaintiff was posted as a clerk in the office of the Regional Inspectress of Girls School at Bareilly in 1962. On 11.7.1966, the plaintiff placed a written note on the leave application of his brother by concealing material facts, which benefited his brother. In the month of August, 1966, the plaintiff applied to the Regional Inspectress of Girls Schools, Bareilly, for his transfer to the Government Girls Junior Training College at Chandpur in order to secure a higher educational degree. The Regional Inspectress of Girls Schools, Bareilly granted permission to the plaintiff to attend B. A. classes and also transferred him to Chandpur by order dated 2.9.1966. On 5.9.1966, the Regional Inspectress of Girls Schools, Bareilly came to know about the leave episode and gave a notice to the plaintiff that he had ignored the departmental orders and that the plaintiff deliberately did not place the departmental orders in order to give undue benefit to his brother. The Regional Inspectress of Girls Schools, Bareilly by the said order cancelled the order by which the plaintiff was allowed to join B. A. classes, Notwithstanding the passing of the aforesaid order, the plaintiff relieved himself on 6.9.1966 and joined at Chandpur. The plaintiff thereafter, applied for permission to attend B. A. classes, which was granted by the Principal of the Institution. 2. On 17.12.1966, the plaintiff was placed under suspension and a charge-sheet dated 26.12.1966 was served upon the plaintiff. Two charges were levelled, namely, that a wrong note was placed by the plaintiff on the leave application, concealing material facts thereby committing breach of rules and also cheated his superiors. Secondly, by joining the classes, the plaintiff defied departmental orders and committed an act of deliberate negligence of duty and insubordination. 3. The plaintiff denied the charges and pleaded his bona fides in the matter of the note placed by him on the leave application. The plaintiff further submitted that the Regional Inspectress of Girls Schools, Bareilly, had never granted permission to join B. A. classes and therefore, the question of withdrawal of that permission was meaningless. Further, permission to attend B. A. classes could only be given by the Principal and not by the Regional Inspectress of Girls Schools. 4. Since the reply was not satisfactory, a domestic enquiry was set up and the disciplinary authority herself became the enquiry officer. Further, permission to attend B. A. classes could only be given by the Principal and not by the Regional Inspectress of Girls Schools. 4. Since the reply was not satisfactory, a domestic enquiry was set up and the disciplinary authority herself became the enquiry officer. It transpires that the plaintiff moved an application praying that he should be permitted to cross-examine the Regional Inspectress of Girls Schools, Bareilly, the head clerk and the Principal. The plaintiff also contended that he wanted some other person to become the Enquiry Officer and for this purpose he proposed to file an application before the Additional Director as he wanted to cross examine the Regional Inspectress of Girls Schools. 5. During the enquiry proceedings, the Regional Inspectress of Girls Schools, Bareilly, went on leave and Smt. Sinha became the Enquiry Officer and recorded the statement of the plaintiff to the effect that he had no objection to her conducting the enquiry and that he did not wish to cross-examine the disciplinary authority any longer. Smt. Sinha, accordingly, conducted the enquiry and recorded the statement of the plaintiff. The Regional Inspectress of Girls Schools, Bareilly after coming back from leave again took over the departmental proceedings and fixed a date for cross examination of the head clerk and the Principal but the plaintiff did not avail of this opportunity and declined to appear. 6. The Regional Inspectress of Girls Schools, Bareilly thereafter, submitted the enquiry report holding that the charges levelled against the plaintiff stood proved. Thereafter, a show cause notice was served upon the plaintiff to show cause why he should not be removed from the service. The plaintiff submitted a detailed reply and thereafter, the Regional Inspectress of Girls Schools, Bareilly passed an order dated 26.4.1967 removing the plaintiff from the service. The plaintiff filed an appeal, which was also rejected by an order dated 19.9.1968. 7. The plaintiff thereafter, filed a suit for a declaration praying that the order dated 26.4.67 removing him from service and the order dated 19.9.68 dismissing the appeal are void and illegal and that a decree be passed reinstating him in service with all benefits including arrears of wages, etc. 8. The trial court after framing the issues, dismissed the suit holding that the charges levelled against the plaintiff were not vague and that the charges were clear and that there was no ambiguity in it. 8. The trial court after framing the issues, dismissed the suit holding that the charges levelled against the plaintiff were not vague and that the charges were clear and that there was no ambiguity in it. The trial court further held that the copy of evidence, etc. was duly supplied on the basis of which a detailed reply to the show cause notice was given by the plaintiff. The trial court held that the principles of natural justice were duly complied with and that, in any case, the plaintiff could show no cause of prejudice. The trial court further found that there was no need to cross-examine the Regional Inspectress of Girls Schools, Bareilly and that the mere fact that the Regional Inspectress of Girls Schools, Bareilly had issued the charge-sheet and conducted the enquiry, no prejudice had been caused to the plaintiff. The trial court held that there was no bar that the competent authority could not be the enquiry officer. The trial court held that merely because the competent authority had issued a charge-sheet did not mean that she should be called as a witness for cross examination. The trial court further found that no prejudice had been caused for not cross examining the Regional Inspectress of Girls Schools, Bareilly. The trial court found that the enquiry was fair and proper and that the findings of the enquiry officer was just and proper. 9. Aggrieved by the decision of the trial court, the plaintiff filed an appeal which was also dismissed and the findings of the trial court was duly affirmed by the appellate court. The plaintiff has now preferred the second appeal. 10. Heard Sri Praveen Misra, the learned counsel for the plaintiff appellant, holding the brief of Sri Bharatji Agrawal, the learned senior counsel and Sri V. N. Agarwal, the learned counsel for the respondents. 11. The learned counsel for the appellant submitted that the Regional Inspectress of Girls Schools, Bareilly, who had framed the charge-sheet was not competent to hold the enquiry. The learned counsel for the appellant submitted that the plaintiff should have been given an opportunity to cross-examine the Regional Inspectress of Girls Schools, Bareilly and the denial of this right was not only violative of the principles of natural justice, but also prejudiced the plaintiff. 12. The submission made by the learned counsel for the plaintiff are devoid of any merit. 12. The submission made by the learned counsel for the plaintiff are devoid of any merit. There is no embargo that the disciplinary authority could not hold the enquiry. In order to give a fair trial, and remove any kind of bias, it is always appropriate that an enquiry should be conducted by another person, but there is no embargo that the disciplinary authority could not hold the enquiry. Merely by making an allegation that the disciplinary authority should not become the judge of his own cause by itself is not sufficient. The plaintiff must show what prejudice was caused to him by the enquiry being conducted by the disciplinary authority. In the present case, both the Courts below have given concurrent findings that no prejudice was caused to the plaintiff on account of the enquiry being conducted by the disciplinary authority. Therefore, the enquiry could not be vitiated on this ground. In any case, in view of the concurrent findings of fact given by both the courts below, there is no room for any interference in the second appeal. 13. The contention that the plaintiff was not allowed to cross-examine the Regional Inspectress of Girls Schools, Bareilly and therefore, the enquiry proceedings stood vitiated is wholly erroneous. In my view, there is no breach of the principles of natural justice. The plaintiff himself conceded before the officiating enquiry officer that he no longer wished to cross-examine the Regional Inspectress of Girls Schools, Bareilly, and that the enquiry may proceed. In view of this statement made before the enquiry officer, it was no longer open to the plaintiff to allege that he was not allowed to cross-examine the Regional Inspectress of Girls Schools, Bareilly. 14. Both the Courts below have held that there was no requirement or need to cross-examine the Regional Inspectress of Girls Schools, Bareilly and that, even otherwise, no prejudice had been caused to the plaintiff. It may be stated here, that merely because the Regional Inspectress of Girls Schools, Bareilly had framed the charge-sheet does not mean that she became a star witness and that she was required to enter the witness box for cross-examination. If this is allowed, it would open a Pandora’s box and in every case the disciplinary authority would be required to enter the witness box merely because the disciplinary authority had framed the charge-sheet. If this is allowed, it would open a Pandora’s box and in every case the disciplinary authority would be required to enter the witness box merely because the disciplinary authority had framed the charge-sheet. Unless and until the delinquent shows that the disciplinary authority was biased and showed malice towards him and that the action of the disciplinary authority was mala fide, only in that event the disciplinary authority would, in a given case, be called for cross-examination. In the present case, I do not find any charges of malice or bias against the Regional Inspectress of Girls Schools, Bareilly. The contention of the learned counsel therefore has no force and is accordingly rejected. 15. The learned counsel for the appellant in support of his case has placed reliance upon 1998 (5) SCC 573, AIR 1984 SC 1356 and AIR 1958 SC 86 on the proposition that a person who has a personal stake in the enquiry must keep himself aloof from the enquiry and that a Judge and a witness cannot be played by the same person and that the enquiry should be vitiated even if there exists a real likelihood of bias or reasonable suspicion of bias. 16. In my view, the decisions cited aforesaid, are not applicable to the present facts and circumstances of the case. Both the courts below have given concurrent findings that no prejudice or bias had been caused to the plaintiff and that the disciplinary authority could also conduct the enquiry proceedings. The question of bias does not arise, as the plaintiff has not proved any malice or mala fides against the Regional Inspectress of Girls Schools, Bareilly. The judgments relied upon are therefore not helpful to the appellant’s case. 17. The learned counsel for the appellant also relied upon AIR 1963 SC 1719 ; 1994 Supp (2) SCC 256 and 2001 (1) AWC 258 , on the proposition that the person charged is entitled to cross-examine the witness and call such witnesses as he may wish. 18. There is no quarrel with the aforesaid proposition as laid down in the aforesaid cases. The underlying purpose is to give sufficient opportunity to the delinquent to exonerate himself from the charges. However, in order to cross-examine the disciplinary authority, the plaintiff must show and explain why he wants to cross-examine the disciplinary authority. 18. There is no quarrel with the aforesaid proposition as laid down in the aforesaid cases. The underlying purpose is to give sufficient opportunity to the delinquent to exonerate himself from the charges. However, in order to cross-examine the disciplinary authority, the plaintiff must show and explain why he wants to cross-examine the disciplinary authority. The plaintiff must allege malice and mala fides against the disciplinary authority and must show that the action of the disciplinary authority is biased and that he has been prejudiced by the action of the disciplinary authority. In the present case, none of the aforesaid is found. The courts below further found that no prejudice has been caused to the plaintiff for not examining the Regional Inspectress of Girls Schools, Bareilly. In any case, the plaintiff himself had waived this right during the enquiry proceedings. Thus, the judgments cited above, are not applicable in the present case. 19. In view of the concurrent findings of facts given by the Courts below and in view of the aforesaid, I find that no substantial questions of law arises for consideration. Accordingly, the appeal is devoid of any merit and is dismissed. In the circumstances of the case, there shall be no order as to cost.