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2014 DIGILAW 1166 (PAT)

Suresh Prasad v. State of Bihar

2014-11-26

BIRENDRA PRASAD VERMA

body2014
Order Heard the parties. 2. The petitioner, a delinquent facing Departmental Proceeding No. 67/08, has filed the present writ petition under Article 226 of the Constitution of India assailing the validity and correctness of a portion (paragraph-4) of the order dated 16.06.2014 (Annexure-1) passed by the respondent Commissioner, Departmental Enquiry (respondent no.3), whereby the petitioner has been directed to furnish all the proposed questions which may be put by him to the proposed witnesses during the course of cross-examination. 3. Learned counsel appearing on behalf of the petitioner while assailing the validity and correctness of paragraph-4 of the impugned order has submitted that the direction issued by the respondent Commissioner to the petitioner for furnishing the list of proposed questions for the purposes of cross-examination of the proposed witnesses to be produced on behalf of the department/prosecution is contrary to the scheme and scope of the provisions of Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (In short “Rules, 2005) as also contrary to the provisions of Section 138 of The Indian Evidence Act, 1872 (In short Evidence Act) and the provisions contained in Order 18 Rule 4 of the Code of Civil Procedure (In short C.P.C.). According to him, the whole object of cross-examination of a witness is to test the veracity and correctness of deposition of that witness recorded in the examination-in-Chief, and the cross-examination is required to be made only when the evidence of a witness in examination-in-chief has already been recorded. Once a delinquent or an adversary party is asked to furnish the list of proposed questions to be put to that witness during the cross-examination, the whole object of cross-examination shall stand defeated, as by cross-examining the witnesses truth is required to be elicited. Therefore, according to him, paragraph-4 of the impugned order dated 16.06.2014 (Annexure-1) passed by the respondent no.3 is fit to be set aside and quashed. 4. Learned Additional Advocate General XI appearing on behalf of the respondents has strongly opposed the prayer made on behalf of the petitioner and has tried to support the impugned order by referring to the averments made in the counter-affidavit filed on behalf of the respondent no.3. According to him, the provisions of the Evidence Act do not apply sensu-stricto in a departmental proceeding. According to him, the provisions of the Evidence Act do not apply sensu-stricto in a departmental proceeding. It is contended that, in fact, under the provisions of Rule 17(14) of the Rules, 2005 the respondent Commissioner of the Departmental Enquiry was fully justified in asking the petitioner to provide the list of probable questions to be put by him to the proposed Departmental witnesses during the course of cross-examination. It is further contended that despite furnishing the list of probable questions to be put during the course of cross-examination, the petitioner would be at liberty to further cross-examine the witness and to put some more questions, if need be. Therefore, it is submitted that the impugned order is fit to be affirmed by this Court. 5. At this stage, it is to be noted that despite repeatedly being asked by the Court no judgment/case law, reported or unreported, was cited either by the learned counsel appearing on behalf of the petitioner or by the learned AAG XI appearing on behalf of the respondents. 6. In order to appreciate the points raised on behalf of the parties Section 138 of The Indian Evidence Act, 1872, relevant portion of Order 18 Rule 4 C.P.C. as also Rule 17(14) of the Rules, 2005 are reproduced herein below:- Section 138 of The Indian Evidence Act, 1872:- “138. Order of examinations-Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” Order XVIII Rule-4 of the Code of Civil Procedure: “4. Recording of evidence.-(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court. (2) The evidence (cross- examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit: (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) x x x” Rule 17(14) of the Rules, 2005: “17. Procedure for imposing major penalties.- x x x x x x (14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses, as it thinks fit.” 7. It is true that the departmental proceedings are not strictly governed by the provisions of the Evidence Act. Chapter-X of the Evidence Act provides the procedure for examination of witnesses in a civil and/or criminal proceeding. Section 138 of the Evidence Act provides that a witness shall be firstly examined-in-chief, whereafter he shall be cross-examined by the adversary party, if so desired, and then he can be re-examined by the party calling him for recording his evidence. It further provides that the examination and cross-examination of a witness must be with respect to relevant facts, but so far as the cross-examination is concerned that need not be confined to the facts, which have been testified by that witness in the examination-in-chief. 8. It further provides that the examination and cross-examination of a witness must be with respect to relevant facts, but so far as the cross-examination is concerned that need not be confined to the facts, which have been testified by that witness in the examination-in-chief. 8. Similarly, Order-18 CPC provides the procedure for hearing of a suit and examination of witnesses. These provisions strictly apply with respect to civil suits/proceedings brought under the provisions of the CPC. Order-18 Rule 4 CPC, as amended/substituted by the Code of Civil Procedure (Amendment) Act, 2002 provides that examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party. However, so far cross-examination and/or re-examination of that witness is concerned, that has necessarily to be recorded either by the court or by the Commissioner appointed by it. Neither under Section 138 of the Evidence Act nor under Order 18 Rule 4 CPC, it has been provided that list of probable questions should be furnished in advance by the adversary party for the purposes of cross-examining the witness whose evidence has been recorded in examination-in-chief. 9. It would be relevant to mention here that Rule 17 of the Rules, 2005 prescribes the procedure for imposing major penalties on a government servant, who is subjected to a departmental proceeding on the charge of any misconduct or misbehaviour. Rule 17(14) of the Rules, 2005 provides that oral and documentary evidence can be produced by or on behalf of the disciplinary authority for proving articles of charges. The witnesses can be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the government servant/delinquent. Rule 17 of the Rules, 2005 nowhere prescribes that list of proposed questions should be furnished in advance by the government servant for the purposes of cross-examination of a witness whose evidence has been recorded on behalf of the Presenting Officer. 10. Rule 17 of the Rules, 2005 nowhere prescribes that list of proposed questions should be furnished in advance by the government servant for the purposes of cross-examination of a witness whose evidence has been recorded on behalf of the Presenting Officer. 10. From the plain examination of the scheme of the relevant provisions of the Evidence Act, CPC and Rules, 2005, referred to above, it is apparent that whole object of cross- examination of a witness either in a civil suit or criminal trial or a departmental proceeding is to test the veracity and truthfulness of that witness as also to elicit truth from that witness so that right conclusion is arrived at either by the Court or the authority concerned. 11. It is well established canon of law that before holding a person guilty either in a criminal trial or in a departmental proceeding, the person concerned must be given reasonable opportunity to defend himself/herself. The rules of natural justice must be adhered to. The Hon’ble Apex Court in the case of K.L. Shinde v. State of Mysore [ AIR 1976 SC 1080 ] has observed in paragraph-8 that: “It is well settled that whether a delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid in that behalf.” It has further been observed in paragraph 9 of that judgment that “departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required.” It has also been observed that the departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act, but the delinquent must be given reasonable opportunity to cross-examine the witness. 12. The Hon’ble Apex Court in the case of R.C. Sharma v. Union of India [ AIR 1976 SC 2037 ] while considering the matter relating to the departmental proceeding has observed in paragraph-6 that in a departmental proceeding when a reasonable opportunity to lead evidence and to be heard is denied and rule of natural justice is not followed, then it vitiates the whole departmental trial. However, these are largely a question of facts, which are required to be proved by the government servant. 13. However, these are largely a question of facts, which are required to be proved by the government servant. 13. In the case of Bank of India v. Degala Suryanarayana [ AIR 1999 SC 2407 = (1999)5 SCC 762 ], Hon’ble Apex Court has once again reiterated the aforesaid principles. The relevant portion of paragraph-11 of the judgment is reproduced herein below: “Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings.” 14. In view of the law laid down by the Hon’ble Apex Court, referred to above, now it is well settled that the provisions of the Evidence Act do not apply in sensu-stricto in a departmental proceeding, but a government servant must be given a reasonable opportunity to lead his evidence and to defend himself from the charge/charges of misconduct/misbehaviour. The government servant must be given full opportunity to cross-examine the witness whose evidence in examination-in-chief has been recorded. He must not and should not be prevented from eliciting the truth while cross examining the witness. He should also be given liberty to cross-examine a witness in a manner, so that truthfulness and veracity of his evidence recorded in the examination-in-chief is tested in its true sense, and the enquiring officer or the disciplinary authority, as the case may, come to a right conclusion after analysing the evidence recorded during the examination-in-chief as also during his cross-examination. If the government servant is asked to furnish the probable questions to be put in a cross-examination to a witness, then, in all probabilities a clever witness shall become conscious and shall not divulge the truth. In that case, the whole object of cross- examination shall stand defeated and reasonable opportunity to defend himself shall stand denied to a government servant/delinquent. 15. Now, Judging the impugned order on the aforesaid touch stone, this Court is of the opinion that paragraph-4 of the impugned order dated 16.06.2014 (Annexure-1) cannot be sustained in law. 16. For the reasons recorded above, Paragraph-4 of the impugned order dated 16.06.2014 (Annexure-1) is set aside and quashed. 15. Now, Judging the impugned order on the aforesaid touch stone, this Court is of the opinion that paragraph-4 of the impugned order dated 16.06.2014 (Annexure-1) cannot be sustained in law. 16. For the reasons recorded above, Paragraph-4 of the impugned order dated 16.06.2014 (Annexure-1) is set aside and quashed. Now, the respondent no. 3 shall proceed further in the aforesaid departmental proceeding strictly in accordance with law and the observations made above. He shall be at liberty to take up the aforesaid departmental proceeding on day to day basis, as it is pending since 2008, and shall make all endeavours to conclude the same at an early date preferably within a maximum period of 4 months from the date of receipt/production of a copy of this order. The petitioner shall be obliged to co-operate in early conclusion of the aforesaid departmental proceeding and shall not seek unnecessary adjournment. However, he shall be at liberty to cross-examine all the witnesses once his/her evidence is recorded in examination-in-chief. 17. In the result, the writ petition stands allowed to the extent indicated above. However, the parties are left to bear their own costs.