Full Judgment Text
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PETITIONER:
NAND KISHORE PRASAD
Vs.
RESPONDENT:
STATE OF BIHAR AND ORS.
DATE OF JUDGMENT19/04/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KAILASAM, P.S.
CITATION:
1978 AIR 1277 1978 SCR (3) 708
1978 SCC (3) 366
ACT:
Constitution of India, 1950-Art. 226-Interference by High
Courts, only when an impugned order suffers from any error
of law or of no evidence.
HEADNOTE:
The appellant a Bench Clerk and one Trilok Prasad Sinha,
Fines Clerk were tried for various offences under sections
120B, 409, 466, 474 and 477A I.P.C. for embezzlement of a
sum of Rs. 1068/- being fines recovered by the Police and
remitted to the Court through Money Orders. The Trial
Magistrate discharged them. A departmental enquiry was,
thereafter, instituted against him and on the inquiry report
submitted by the Sub Divisional Officer, Sararam, the
District Magistrate who was the authority competent to
appoint and remove the appellant, held : "The conduct of
Nand Kishore Prasad is highly suspicious but for
insufficient evidence proceedings against him has to be
dropped." Thereafter, the Commissioner of Patna Division
called upon the appellant to show cause why he should not be
dismissed from service and after perusing the reply
submitted by the appellant reversed the order of the
District Magistrate and directed removal of the appellant
from service. An appeal made to the Board of Revenue
failed. The Writ Petitions filed in the Patna High Court,
against the said orders were dismissed holding that since
there was some evidence albeit not sufficient for conviction
in a criminal Court, it could not be quashed in proceedings
under the Art. 226 of the Constitution.
Dismissing the appeal by certificate, the Court
HELD : 1. Two principles as crystallised by judicial
decisions are to be born in mind, while dealing with a case
of the present type. The first is that disciplinary
proceedings before a domestic tribunal are of a quasi-
judicial character. Therefore, the minimum requirement of
the rules of natural justice is that the tribunal should
arrive at its conclusion on the basis of some evidence, i.e.
evidential material which with some degree of definiteness
points to the guilt of the delinquent in respect of the
charge against him. Suspicion cannot be allowed to take the
place of proof even in domestic inquiries. The second
principle, which is a corollary from the first, is that if
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the disciplinary inquiry has been conducted fairly without
bias or predilection, in accordance with the relevant
disciplinary rules and the Constitutional provisions, the
order passed by such authority cannot be interfered with in
proceedings under Article 226 of the Constitution, merely on
the ground that it was based on evidence which would be
insufficient for conviction of the delinquent on the same
charge at a criminal trial. [713 D-G]
Union of India v. H. C. Goel A.I.R. 1964 SC 364 referred to.
2. (a) In the instant case :-It was not a case of no
evidence, but of evidence which was not adequate enough to
carry conviction at a criminal trial. The High Court was,
therefore, right in holding that the impugned orders did not
suffer from any error of law which may warrant an
interference in proceedings under Art. 226 of the
Constitution. [715G]
(b) A conjoint reading and analysis of the impugned orders
of the Commissioner and the Member, Board of Revenue would
show that they purport to rest on these primary facts :
a. Fine amounting to Rs. 1,068/- was
realised by the Police and sent to the Court
of the Magistrate, Sasaram, by money orders,
where it was received on September 4, 1950.
b. When this fine was imposed, and the
aforesaid money orders were received, the
appellant (Nand Kishore Prasad) was the Bench
Clerk
709
of the Magistrate. The fine records were with
him and it was he who used to issue distress
warrants for realisation of outstanding fine.
But after 4-9-1950 he did not take further
action for recovery of the fine in question,
or for ensuring that the convicts suffered
imprisonment in default of payment of fine
inflicted on them by the Court.
A "receipt" (money order coupon) has
been produced "indicating that the Petitioner
(Nand Kishore Prasad) had received this
amount".
"It is clear from the circumstances of
the case that the money realised was not
deposited.... I see no reason to interfere
with the order of discharge" (passed by the
Commissioner holding that the amount of Rs.
1,068/- had been embezzled between Nand
Kishore Prasad, Bench Clerk, and Triloki Prasa
d
Sinha, Fines Clerk). [714A-D]
(c) While it is true that the impugned orders are
unjustifiably brief it is not correct that they are totally
bereft of reference to or discussion of evidence. There is
in the impugned orders a specific reference to the money
order coupon which the Member of the Board of Revenue has
termed as ’receipt’. Indeed, the main-stay of the impugned
orders is the circumstantial evidence furnished by the
conduct of the appellant in not taking further action for
the realisation of the fine. [714 H, 715 A]
(d) It is true that the impugned orders do not fully
measure up to the devoutly desired standard viz.
desirability of writing a self-contained speaking order in
disciplinary proceedings. Nevertheless, they do contain a
bald and general allusion to the primary facts and a cryptic
inference therefrom. As there was no specific reference to
or discussion of the evidence, the High Court examined the
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record of the disciplinary tribunal not with a view to make
out or reconstruct a new case, but only to see whether there
was some evidence of the primary fact relied upon by the
domestic tribunal in support of its conclusion. There is no
impropriety in the course adopted by the High Court. [715 A-
C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2313 (N) of
1968.
From the Judgment and Order dated 28th day of July 1966 of
the Patna High Court in Misc. Judl. Case No. 1273 of 1974.
A. B. N. Sinha, S. K. Sinha and K. K. Sinha for the
Appellant.
R. C. Prasad for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This is an appeal by certificate under Article
133 (1) (a) and (b) of the Constitution from a Judgment
dated July 28, 1966 of the Patna High Court, dismissing the
appellant’s writ petition under Article 226 of the
Constitution, for impugning an Order of his removal from
Government service.
The facts are as follows :-
The appellant, Nand Kishore Prasad, was appointed as a
ministerial servant by the District Magistrate, Shahabad, in
his office at Arrah on June 16, 1930. He was confirmed in
service in the year 1933.
710
In 1950, the appellant was transferred to Sasaram as a Bench
Clerk in the Court of Shri R. Singh, Judicial Magistrate.
His normal duty was to aid and assist the Court by putting
up cases for hearing and disposal.
In April 1952, he was transferred from Sasaram to Buxer as
an Election Clerk. On September 16, 1954, the Sub-
Divisional Officer, B Sasaram, summoned the appellant and
asked him to explain the outstanding fine of Case No. 886-
C/104 T.R. of 1950 (The State v. Sarju Chaubbe & Ors.),
decided by Shri R. Singh, Magistrate, Sasaram, on April 26,
1950.
Three Money Order coupons, two for Rs. 500/- each and one
for Rs. 68/-, were sent by the Police Sub-Inspector of
Kargahar to the C Magistrate, Shri R. Singh. These
amounts represented the fine recovered from the persons who
were convicted in the aforesaid case. The appellant was
confronted with those Money Order coupons which purported to
bear the initials of the appellant, and was asked to trace
if the money had been credited to the Government. The
appellant inspected the records and found an entry in the
Fine Register of the D Court relating to the year 1951
which was to the effect, that an appeal arising out of the
case, in question, had been allowed and the fine remitted.
’The appellant brought that entry to the notice of the then
Magistrate, Shri M. P. Singh, and submitted a written report
to the Sub-Divisional Officer, stating that the initials on
the Money Order coupons were not his and he had never
received the amounts. The’ appellant further mentioned that
he had discovered the aforesaid entry in the Fine
Register.
At the relevant time, one Triloki Prasad Sinha was the Fines
Clerk in the Court at Sasaram and the entry, in question, in
the Fine Register was in his hand-writing. Triloki Prasad
Sinha admitted that this entry of remission was in his hand-
writing, but alleged that he had made it on the basis of an
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extract of the order of the Appellate Court, transmitted
to him by the appellant. The appellant-denied that he had
sent any such extract or information to the Fines Clerk and
alleged that, according to the practice of the office,
appellate judgments were transmitted to the Fines Clerk, in
original, by all the Courts, regularly.
On January 26, 1955, the appellant was suspended from
service. On February 1. 1955, the Magistrate in-charge of
Fines, Sasaram, lodged a First Information Report in the
local Police Station for prosecution of Triloki Prasad Sinha
and the appellant in respect of offences under Sections 120-
B, 409, 466, 468, 474 and 477(A) of the Indian Penal Code.
After investigation, the Police submitted a charge-sheet in
the Court of the Sub-Divisional Magistrate, Sasaram, against
both Triloki Prasad Sinha and the appellant.
The Trial Magistrate, after making an inquiry under Chapter
XVII of the Criminal Procedure Code, 1898, discharged both
the accused persons, holding-(i) that there was nothing
direct against Nand Kishore Prasad (appellant herein) to
show that he had sent a
711
false or wrong extract to the Fines Clerk, "except the
statements of a co-accused exculpating himself which is of
little worth", and (ii) that "this accused cannot be
connected with the receipt of the money", i.e. the Money
Orders in question.
On February 29, 1956, after his discharge by the Criminal
Court, the appellant submitted his joining report to the
Sub-Divisional Officer, Buxer, and prayed for permission to
join duty. No orders were passed on that application of the
appellant, for a couple of months. His suspension was
continued and on July 31, 1956, a Departmental inquiry was
instituted against him on these charges :--
"(1) Dishonestly receiving Rs. 1,068/- being
the fine money collected and sent by three
M.0s. by the S.I. of Police, Kargahar, in
respect’ of Criminal Case No. GR 886/TR 104 on
4-9-50 to the Court of Shri R. Singh, Judicial
Magistrate, Sasaram, of whom he was the Bench
Clerk.
(2) Issuing an incorrect extract of order of
the Appellate Court in Criminal Appeal No. 65
of 1950 to Sliri Triloki Prasad, the then Fine
Clerk, and conspiring with Shri Triloki Prasad
and misappropriating Rs. 1,068/- sent by the
S.I. of Police, Kargabar on 4-9-50".
The inquiry was held by the Sub-Divisional Officer, Sasaram
who, after concluding it, submitted his report to the
District Magistrate, Sasaram, who was the authority
competent to appoint and remove the appellant from service.
The District Magistrate, ultimately, by his order, dated
March 19, 1950, held: "The conduct of Shri Nand Kishore
Prasad is highly suspicious but for insufficient evidence
proceeding against him has to be dropped". This order of
the District Magistrate was communicated to the appellant as
per Memo. No. 278, dated April 19, 1960.
More than two months thereafter, a letter, dated June 29,
1960, was sent by the P.A. to the Commissioner of Patna
Division, calling upon the appellant to show cause as to why
he should not be dismissed from service. To this "show-
cause" letter, the appellant submitted a detailed reply,
representing inter alia, that since the Magistrate had found
him not guilty, in the absence of fresh or further evidence
showing that he had received the Money Orders, it would be
violative of the elementary principles of natural justice,
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to punish him in the departmental proceedings by using a
portion only of the judgment of the Court of law. He
extracted copiously from the judgment of the Magistrate to
show that the charges against him were baseless. He
reiterated that he had not received the amount of the Money
Orders, and the initials on the Money Order coupons were not
his.
The Commissioner reversed the order of Lb(,, District
Magistrate and directed removal of the appellant from
service. Since a good
712
deal of argument before us centres around the legality
of the Commissioner’s order, dated October 8, 1960, it will
be worthwhile to quote its material portion in extenso :
"Although from the evidence recorded against
this Clerk it appears that there was no direct
independent proof of embezzlement by him, yet,
in my opinion, there is strong suspicion
against this clerk which has also been
indicated sufficiently clearly by the then
trying Court, Shri A. K. Sinha, Magistrate,
1st Class, Sasaram, while passing an order of
discharge against him under Section 207A of
Cr. P.C. in the Criminal case against him.
The Court observed as follows :
"One may suspect him about it, if at all, a
Bench Clerk as he was, as the M.O. coupons
purport to bear the like of his initials, but
that is not enough for justifying a criminal
action against him. The case is not raised
beyond a stage. of suspicion, if at an, as
against this accused."
"It is evident that the amount of the fine was
realised and sent to the Magistrate and it was
received by Shri Nand Kishore Prasad. The
fine records were with Shri Nand Kishore
Prasad and Shri Triloki Prasad Sinha. and
between them the amount of Rs. 1,068/was
embezzled. Shri Nand Kishore Prasad appears
to be thoroughly unreliable and the punishment
in respect of his conduct should be deterrent
in nature.
"Accordingly........ I hereby order that Shri
Nand Kishore Prasad be discharged from
service."
The appellant went in Revision to the Board of Revenue
against the Commissioner’s Order. The Board on August 31,
1963, by a short order, dismissed the Revision and
affirmed the order passed by the Commissioner. This order
of the Board of Revenue was communicated to him on February
14, 1964.
On September 23, 1964, the appellant moved the High Court at
Patna by a writ petition under Article 226 of the
Constitution, challenging his removal from service.
The learned Judges of the High Court while observing that
the Commissioner’s Order was somewhat cryptic and did not
make a specific and pointed reference to the evidence
against the writ petitioner, noted that the Commissioner had
drawn his conclusion about the guilt of the petitioner "from
the fact that the petitioner was in actual charge of the
fine record and it was his duty to take necessary action for
realization of the fine until due payment thereof". The H
High Court further observed that "the mere fact that the
Commissioner has not discussed in detail the circumstantial
evidence against the petitioner, was not a sufficient ground
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for setting aside the im-
713
pugned order, because this aspect has been more elaborately
referred to in the impugned order of the Board of Revenue.
The High Court concluded that since there was some evidence-
albeit not sufficient for conviction in t criminal court-in
support of the impugned order, it could not be quashed in
proceedings under Article 226 of the Constitution. In the
result, the writ petition was dismissed.
Learned counsel for the appellant contends that the impugned
orders are based merely on suspicions and conjectures, and
not on any evidence whatever, and as such, are bad in law.
It is submitted that the High Court had over-stepped its
writ jurisdiction inasmuch as it reappraised the evidence,
and reconstructed the case as if it were itself a domestic
tribunal, reviewing in appeal the orders of the Commissioner
and the Board of Revenue.
As against this, counsel for the Respondent submits that the
High Court had. examined the evidence on the record of the
domestic tribunal, not to make out a new case, but to
satisfy itself that the impugned orders were based on
circumstantial evidence which had been cryptically alluded
to by the Commissioner and more elaborately mentioned by the
Member of the Board of Revenue in the impugned order.
Before dealing with the contentions canvassed, we may remind
ourselves of the principles, in point, crystallised by
judicial decisions. The first of these principles is that
disciplinary proceedings before a domestic tribunal are of a
quasi-judicial character; therefore, the minimum requirement
of the rules of natural justice is that the tribunal should
arrive at its conclusion on the basis of some evidence, i.e.
evidential material which with some degree if definiteness
points to the guilt of the delinquent in respect of the
charge against him. Suspicion cannot be allowed to take the
place of proof even in domestic inquiries. As pointed out
by this Court in Union of India v. H. C. Goel(1) , the
principle that in punishing the guilty scrupulous care must
be taken to see that the innocent are not punished, applies
as much to regular criminal trials as to disciplinary
enquiries held under the statutory rules."
The second principle, which is a corollary from the first,
is, that if the disciplinary inquiry has been conducted
fairly without bias or predilection, in accordance with the
relevant disciplinary rules an the Constitutional
provisions, the order passed by such authority cannot be
interfered with in proceedings under Article 226 of the Con-
stitution, merely on the ground that it was based on
evidence which would be insufficient for conviction of the
delinquent on the same charge at a criminal trial.
The contentions in the instant case resolve into the narrow
issue : Whether the impugned orders do not rest on any
evidence whatever,’ but merely on suspicions, conjectures
and surmises.
(1 I.R. 1964 S.C. 364.
11-315SCI/78
714
A conjoint reading and analysis of the impugned orders of
the Commissioner and the Member, Board of Revenue would show
that they purport to rest on these primary facts :-
(a) That fine amounting to Rs. 1,068/- was realised by the
Police and sent to the Court of the Magistrate, Sasaram, by
money orders, where it was received on September 4, 1950.
(b) When this fine was imposed, and the aforesaid money
orders. were received, the appellant (Nand Kishore Prasad)
was the Bench Clerk of the Magistrate. The fine records
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were with Nand Kishore Prasad and it was he who used to
issue distress warrants for realisation of outstanding fine.
But after 4-9-1950, he did not take further action for
recovery of the fine in question, or for ensuring that the
convicts suffered imprisonment in default of payment of fine
inflicted on them by the Court.
(c) A "receipt" (money order coupon) has been produced
"indicating that the petitioner (Nand Kishore Prasad) has
received this amount".
(d) "It is clear from the circumstances of the case that
the money reallied was not deposited. I see no reason to
interfere with the order of discharge" (passed by the
Commissioner holding that the amount of Rs. 1068/- had been
embezzled between Nand Kishore Prasad, Bench Clerk, and
Triloki Prasad Sinha, Fines Clerk).
It wilt be noticed that the recovery of the fine and its
remittance to the Court as per money order (as set out in
(a) above) was never disputed by the appellant. He only
disputed that the initials on the money order coupons
purporting to be his, were not executed by him. His implied
defence was that somebody who had received the amount of the
money orders, had forged his (appellant’s) initials on the
Money Order Coupon. On this point, at the criminal trial of
the appellant’. a handwriting expert was examined, who
stated that no definite opinion could be given as to whether
these initials were executed by Nand Kishore Prasad. The
Magistrate, therefore, gave the appellant benefit of doubt
on this point. But the disciplinary Tribunals (i.e. the
Commissioner and the Member, Board of Revenue) have,
presumably on examining the disputed initials on the Money
Order Coupon (called "receipt" in the impugned order of the
Board) couple with the circumstance (b), mentioned above,
unanimously reached the finding that the amount of the
aforesaid Money Order was received by Nand Kishore Prasad.
From the appellant’s conduct in not taking any action
thereafter for realisation of the fine in question, they
concluded that he did not do so because the fine bad been
realised and the amount had been embezzled by him.
It was urged before us that since the impugned orders do not
specifically refer to any evidence or discuss it, they
should be taken to be based on no evidence, whatever. While
it is true that the impugned orders are unjustifiably brief,
it is not correct that they are totally bereft of all
reference to or discussion of evidence. There is in the
715
impugned orders a specific reference to the Money Order
coupon which the Member of the Board of Revenue has termed
as a "receipt". Indeed, the main-stay of the impugned
orders is the circumstantial evidence furnished by the
conduct of the appellant, in not taking any further action
for the realisation of the fine.
The desirability of writing a self-contained speaking order
in disciplinary proceeding culminating in an order of
removal of the delinquent from service, cannot be over-
emphasised. It is true that the impugned orders do not
fully measure upto this devoutly desired standard.
Nevertheless, they do contain a bald and general allusion to
the primary facts, and a cryptic inference therefrom. There
is no specific reference to or discussion of the evidence.
The High Court, therefore, examined the record of the
disciplinary tribunal, not with a view to make out or
reconstruct a new case, but only to see whether there was
some evidence of the primary facts relied upon by the
domestic tribunal in support of its conclusion. We do not
see any impropriety in the course adopted by the High Court.
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On examination of the Tribunal’s record, ’he High Court
found that there was oral and documentary evidence before
the disciplinary tribunal; that at all times material to the
imposition, realisation and receipt of the fine amounts in
question, all the fine record,; in the Court of the
Magistrate, Sasaram, used to remain. with the Bench Clerk,
i.e., the appellant. The Inquiry Officer had examined three
witnesses, namely : Triloki Prasad Sinha, Rang Bahadur Singh
and Kalka Prasad. The evidence of Triloki Prasad Sinha was
certainly of an accomplice character, but the evidence of
Ran- Bahadur Singh, who was the Fines Clerk before Triloki
Prasad Sinha, and of the Head Clerk Kalka Prasad, did not
suffer from such a flaw. From their evidence, it was clear
that in actual practice all the fine records, were being
maintained by the Bench Clerk, and it was he who used to
take all necessary steps, including the preparation and
issue of distress warrants for realisation of outstanding
fine. The Fines clerk made entries in the Fines Register in
accordance with the intimation sent by the Bench Clerk.
This practice continued till March 1951, when Mr. Gorden,
the then District Magistrate directed that all fine records
must be made over to the Fines Clerk by May 14, 1951. The
fine amounts in question, were evidently recovered in
execution of a distress-warrant, issued by the Magistrate.
In view of what has been said above, it is clear that this
was not a case of no evidence, but of evidence which was not
adequate enough to carry conviction at a criminal trial.
The High Court was, therefore, right in holding that the
impugned orders did not suffer from any error of law which
may warrant an interference in proceedings under Article 226
of the Constitution.
In the result, the appeal meets with failure and is
dismissed without any order as. to costs.
S.R. Appeal dismissed.
716