Full Judgment Text
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PETITIONER:
K. L. SHINDE
Vs.
RESPONDENT:
STATE OF MYSORE
DATE OF JUDGMENT26/03/1976
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1976 AIR 1080 1976 SCR (3) 913
1976 SCC (3) 76
ACT:
Constitution-Article 311-Domestic inquiry-Reasonable
opportunity of effectively defending-Dismissal pursuant to
departmental proceedings-Whether Court can sit in appeal-
Whether Evidence Act applies to departmental proceedings.
HEADNOTE:
The appellant was a Police Constable. Some persons were
convicted for transporting smuggled illicit liquor under
section 66(b) of the Bombay Prohibition Act. The Police Sub
Inspector submitted a Confidential report on that incident
to the Superintendent of Police and pointed out that some
Police Constables including the appellant were indulging in
smuggling illicit liquor. The Superintendent of Police
directed the P.S.I. to record the statements of three
constables, Akki, Waman and Nishikant. The Police Sub
Inspector, therefore, recorded the statements of those
constables in the presence of the Superintendent of Police.
The statements of Akki and Nishikant disclosed their
complicity as well as complicity of six other Police
constables including the appellant D.S.P. ordered the
S.D.P.O. to hold a departmental enquiry against them. They
were all transferred from Belgaum and directed not to leave
their new station without the permission of the D.S.P.
except for purposes of or in connection with departmental
enquiry. The appellant did not plead guilty. The Enquiry
Officer held enquiry. A number of witnesses were examined
both by the prosecution and the defence. The Enquiry Officer
made a report to the Superintendent of Police that the
charge against the appellant was not established. He,
however, recommended that the appellant should be
administered a severe warning since he was guilty of
misconduct and dereliction of duty. The Superintendent of
Police did not agree with the finding of the Enquiry Officer
and directed him to examine Police Constable Akki whose
statement had been recorded before the enquiry was ordered
against the appellant. Akki was accordingly examined but he
resiled from his earlier statement. The Enquiry Officer
again submitted a further report and struck to his former
recommendation regarding administration of severe warning to
the appellant. The Superintendent of Police disagreed with
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the report of the Enquiry Officer and found that there was
sufficient evidence against the appellant to prove his
guilt. Accordingly, he issued a notice to the appellant
calling upon him to show cause why he should not be
dismissed from service. Not feeling satisfied with the
explanation tendered by the appelant the Superintendent of
Police passed an order dismissing the appellant from
service. An appeal filed to the D.I.G. was unsuccessful and
so was a revision to the Government.
Thereafter, the appellant filed a suit challenging the
order of dismissal and claiming arrears of pay. The Trial
Court dismissed the suit. The Lower Appellate Court reversed
the judgment of the Trial Court. The High Court allowed the
second appeal filed by the State.
In an appeal by Special Leave, the appellant contended:
(1) The appellant was deprived of a reasonable
opportunity of defending himself during the course of the
departmental enquiry. He was not permitted to remain at
Belgaum during the period of his suspension. Evidence of
some of the prosecution witnesses was recorded in his
absence.
(2) The impugned judgment and decree cannot be
sustained as there is no cogent legal evidence to establish
the charge against the appellant.
Dismissing the appeal,
^
HELD: (1) Whether a delinquent had a reasonable
opportunity of effectively defending himself is a, question
of fact depending on circumstances of each
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case and no hard and fast rule can be laid in that behalf.
In the instant case, the order restricting his movement was
not such as can be said to have deprived him of reasonable
opportunity of making his defence. The order did not place
any embargo on the appellant going to Belgaum for the
purpose of and in connection with the departmental enquiry.
In fact, the appellant fully participated in the enquiry
held at that place. He also made full use of the assistance
of a policeman called Police friend, Provided to him to
conduct the defence on his behalf. He was furnished with the
statements recorded of the 3 constables before the enquiry
was ordered. The witnesses examined by the prosecution were
tendered for cross-examination. It, therefore, cannot be
held that a reasonable opportunity as contemplated by
Article 311 of the Constitution was denied to the appellant.
[916-D G]
(2) Neither the High Court nor this Court can re-
examine and reassess the evidence in domestic enquiries of
the instant nature. Whether or not there is sufficient
evidence agaiast a delinquent to justify his dismissal from
service is a matter on which this Court cannot embark. The
departmental proceedings do not stand on the same footing as
criminal proceedings in which high degree of proof is
required. The departmental proceedings are not covered by
strict rules of evidence as contained in the Evidence Act. A
copy of the statement made by Akki earlier was furnished to
the appellant and he examined all the 3 constables including
Akki who made statements before the enquiry was ordered.
[916 H, 917 A-C]
State of Mysore v. Shivasappa, [1963] 2 S.C.R. 943;
A.I.R. 1963 S.C. 375; State of U.P. v. Om Prakash, A.I.R.
1970 S.C. 669 followed; Ghanshyam Das Shrivastava v. State
of Madhya Pradesh, A.I.R. 1973 S.C. 1183 distinguished.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 847 of
1974.
Appeal by Special Leave from the Judgment and Decree
dated the 3-10-72 of the Mysore High Court in Regular Second
Appeal No. 729 of 1967.
S. S. Javali and H. K. Puri, for the Appellant.
Narain Nettar, for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is
directed against the judgment and decree dated October 3,
1972, passed by a Single Judge of the Mysore High Court
whereby allowing the respondent’s second appeal No. 729 of
1967, he set aside the appellate judgment and decree dated
April, 18, 1967 passed by Civil Judge, Belgaum, declaring
the order dismissing the appellant from service as illegal
and ultra vires.
Facts material for the purpose of this appeal are: The
appellant herein was a Police Constable attached to Khade-
bazar Police Station at Belgaum in 1960. In the small hours
of the morning of November 17, 1960, the Cantonment Police
intercepted a tonga transporting smuggled illicit liquor in
four tubes from Devi Temple to the cantonment area with the
intention of disposing of the same to bootleggers. After
registering a case under section 66(b) of the Bombay
Prohibition Act, the Cantonment P.S.I. proceeded against the
tonga driver and another person who was found following the
tonga, in a criminal court of competent jurisdiction and
succeeded in securing their conviction for the aforesaid
offence. On November 18, 1960, the Cantonment P.S.I.
submitted a confidential report about the incident to the
Superintendent of Police, Belgaum, and brought to the notice
of the latter
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that some police constables including the appellant who were
newly recruited and attached to different police stations in
Belgaum were indulging in smuggling illicit liquor. On
receipt of this report, the Superintendent of Police
directed the P.S.I. Khade-bazar police station, to record
the statements of three constables namely M. Y. Akki, Waman
Mangesh, and Nishikant Shimaji Satyannawar. Pursuant to
these directions, the P.S.I. recorded the statements of the
aforesaid police constables in the presence of the
Superintendent of Police. The statement of Nishikant and
Akki, constables disclosed their own and six other police
constables, complicity in the aforesaid smuggling activity.
The Superintendent of Police thereupon suspended the
appellant and the other six constables and ordered the
S.D.P.O. to hold a departmental enquiry against them. The
Superintendent of Police also transferred all the seven
deliquents from Belgaum and directed that they would not
leave their new stations without his permission except for
purposes of or in connection with the department enquiry.
Though the appellant sought permission to stay at Belgaum
during the period of his suspension, his request was
refused.
As the appellant did not plead guilty to the charge
framed against him, the Enquiry Officer proceeded to hold
the enquiry against him in accordance with the rules
contained in the Bombay Police Manual, 1950. On the
conclusion of the enquiry during the course of which a
number of witnesses were examined both by the prosecution
and the defence, the Enquiry Officer reported to the
Superintendent of Police on November 10, 1961, that the
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charge against the appellant was not established. He,
however, recommended that the appellant should be
administered a severe warning as he was convinced that he
had been guilty of misconduct and dereliction of duty. The
Superintendent of Police did not agree with the findings of
the Enquiry Officer and directed him to examine police
constable Akki whose statement had been recorded before the
charge was framed against the appellant. Akki was
accordingly examined but he resiled from his earlier
statement. The Enquiry Officer in the course of his second
report dated November 30, 1961, submitted to the
Superintendent of Police that no fresh evidence was
forthcoming against the appellant. He, however, stuck to his
former recommendation regarding administration of severe
warning to the appellant.
The Superintendent of Police again disagreed with the
report of the Enquiry Officer and found that there was
sufficient evidence against the appellant to prove his
guilt. Accordingly he issued a notice to the appellant on
December 20, 1961, calling upon the latter to show cause why
he should not be dismissed from service. Not feeling
satisfied with the explanation tendered by the appellant,
the Superintendent of Police passed an order on February 9,
1962, dismissing the appellant from service. Aggrieved by
this order, the appellant went up in appeal to the D.I.G. of
Police but was unsuccessful. He also took the matter in
revision to the Government but there also he failed.
Eventually he brought a suit in the Court of the IInd
Additional Munsiff, Belgaum, challenging the aforesaid
orders of his dismissal and claiming the arrears of his pay.
916
The principal contentions raised by the appellant were
two-fold: (1) That no reasonable opportunity was given to
him to dedend himself and (2) that the Superintendent of
Police was wrong in relying on the statements of the
witnesses recorded before the charge was framed against him
and in re-assessing the evidence contrary to the conclusion
arrived at by the Enquiry Officer who held that there was no
evidence to substantiate the charge against him.
After a regular trial, the suit was dismissed by the
Munsiff, Belgaum. On appeal, the Civil Judge, Belgaum
reversed the judgment of the Munsiff and decreed the suit.
Aggrieved by the decision of the Civil Judge, Belgaum, the
State Government preferred an appeal to the High Court of
Mysore which, as stated above, was allowed.
Counsel for the appellant has, while supporting the
appeal, vehemently contended that the aforesaid judgment and
decree of the High Court cannot be sustained as the
appellant was deprived of a reasonable opportunity of
defending himself during the course of the departmental
enquiry. Elaborating his submission, counsel has urged that
as restrictions were placed on the movement of the appellant
and he was not permitted to remain at Belgaum during the
period of his suspension and evidence of some of the
prosecution witnesses was recorded in his absence, there has
been a gross violation of the provisions of Article 311 of
the Constitution and the principles of natural justice.
Counsel has further contended that the impugned judgment and
decree cannot also be sustained as there is no cogent and
legal evidence to establish the charge against the
appellant.
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.
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In the instant case, the order restricting the movement of
the appellant on which strong reliance has been placed on
his behalf for assailing the impugned order of his dismissal
was not such as can be said to have deprived him of a
reasonable opportunity of making his defence. The order, it
would be noted, did not place any embargo on the appellant’s
going to Belgaum for the purpose of and in connection with
the departmental enquiry. In fact the appellant fully
participated in the enquiry held at that place. He also made
full use of the assistance of a police man (called police
friend) provided to him to conduct the defence on his
behalf. The police friend appeared on his behalf before the
Enquiry Officer and cross-examined all the witnesses whom
the prosecution examined or tendered for cross-examination.
He was also furnished with copies of the statements of the
three police constables recorded by the Cantonment P.S.I.
and allowed an adequate opportunity of cross-examining them.
There is also nothing to indicate that the appellant’s
request for an opportunity to examine any witness in his
defence was refused. In fact, he did examine some witnesses
in his defence. In view of all this, it cannot be held that
a reasonable opportunity of defending himself as
contemplated by Article 311 of the Constitution was denied
to the appellant.
917
Regarding the appellant’s contention that there was no
cogent evidence to substantiate the charge against him, it
may be observed that neither the High Court nor this Court
can re-examine and ressess the evidence adduced in domestic
enquiries of the nature with which we are at present
concerned. Whether or not there is sufficient evidence
against a delinquent to justify his dismissal from service
is a matter on which this Court cannot embark. It may also
be observed that departmental proceedings do not stand on
the same footing as criminal prosecutions in which high
degree of proof is required. It is true that in the instant
case, reliance was placed by the Superintendent of Police on
the earlier statements made by the three police constables
including Akki from which they resiled but that did not
vitiate the enquiry or the impugned order of dismissal, as
departmental proceedings are not governed by strict rules of
evidence as contained in the Evidence Act. That apart, as
already stated, copies of the statements made by these
constables were furnished to the appellant and he cross-
examined all of them with the help of the police friend
provided to him. It is also significant that Akki admitted
in the course of his statement that he did make the former
statement before the P.S.I. Khade-bazar police station,
Belgaum, on November 21, 1961 (which revealed appellant’s
complicity in the smuggling activity) but when asked to
explain as to why he made that statement, he expressed his
inability to do so. The present case is, in our opinion,
covered by a decision of this Court in State of Mysore v.
Shivabsappa(1) where it was held as follows:-
"Domestic tribunals exercising quasi-judicial
functions are not courts and therefore, they are not
bound to follow the procedure prescribed for trial of
actions in courts nor are they bound by strict rules of
evidence. They can, unlike courts, obtain all
information material for the points under enquiry from
all sources, and through all channels, without being
fettered by rules and procedures which govern
proceedings in court. The only obligation which the law
casts on them is that they should not act on any
information which they may receive unless they put it
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to the party against whom it is to be used and give him
a fair opportunity to explain it. What is a fair
opportunity must depend on the facts and circumstances
of each case, but where such an opportunity has been
given, the proceedings are not open to attack on the
ground that the enquiry was not conducted in accordance
with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry
before such tribunal, the person against whom a charge
is made should know the evidence which is given against
him, so that he might be in a position to give his
explanation. When the evidence is oral, normally the
explanation of the witness will in its entirety, take
place before the party charged who will have full
opportunity of cross-examining him. The position is the
same when a witness is called, the statement given
previously by him behind the back of the party is put
918
to him, and admitted in evidence, a copy thereof is
given to the party and he is given an opportunity to
cross-examine him. To require in that case that the
contents of the previous statement should be repeated
by the witness word by word and sentence by sentence,
is to insist on bare technicalities and rules of
natural justice are matters not of form but of
substance. They are sufficiently complied with when
previous statements given by witnesses are read over to
them, marked on their admission, copies thereof given
to the person charged and he is given an opportunity to
cross examine them."
Following the above decision, this Court held in State
of U.P. v. Om Prakash(1) that the enquiry is not vitiated if
the statements taken at the preliminary stage of enquiry are
made available to the delinquent officer and he is given an
opportunity to cross-examine the witnesses in respect of
those statements.
The decision of this Court in Ghanshyam Das Shrivastava
v. State of Madhya Pradesh(2) on which strong reliance is
placed is clearly distinguishable and is not at all helpful
to the appellant. In that case the appellant was deprived of
the opportunity to defend himself by participating in the
enquiry which was held at Jagdalpur, 500 kilometres away
from Rewa where the appellant was residing on account of
paucity of funds resulting from non payment of subsistence
allowance during his suspension.
For the foregoing reasons, we do not find any force in
the contention of counsel for the appellant that there was
no evidence on the record which could justify the
appellant’s dismissal from service.
Both the contentions raised on behalf of the appellant
being without any substance, we find ourselves unable to
interfere with the judgment and decree passed by the High
Court.
The appeal accordingly fails and is dismissed but in
the circumstances of the case without any order as to costs.
P.H.P. Appeal dismissed.
919