Full Judgment Text
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PETITIONER:
MUMTAZ HUSSATN ANSARI,
Vs.
RESPONDENT:
STATE OF U.P. & ANR.
DATE OF JUDGMENT21/03/1984
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA
MISRA RANGNATH
CITATION:
1984 AIR 1116 1984 SCR (3) 244
1984 SCC (3) 295 1984 SCALE (1)515
ACT:
Travelling Allowances Rules (Financial Handbook Volume
Ill-Rule 20.(1)-Interpretation of.
G.O. No. 4197 R/VIIIA-500(146)68 Interpretation
Government must pay expenses of material’ defence witnesses.
Natural Justice-Asking delinquent officer to deposit
expenses of material defence witnesses-Violates principles
of natural justice.
HEADNOTE:
In a departmental inquiry conducted by the second
respondent U.P. Administrative Tribunal into certain charges
levelled against the appellant a Deputy Superintendent of
Police, the Tribunal dismissed the application of the
appellant praying for summoning 8 witnesses for being
examined in his defence. The Tribunal relied upon rule
20A(1) of the Travelling Allowances Rules (Financial
Handbook Volume III) and observed that the appellant had to
deposit the expenses of the witnesses, who were private
person, if he wanted to have them examined in his defence
within a specified time. The appellant did not deposit the
amount and the witnesses were not summoned. Pursuant to the
finding of the Tribunal the appellant was removed from
service. The appellant filed a writ petition in High Court
contending that in view of G.O.. No. 4197 R/VIIIA/500(146)68
travelling allowance and diet money of witnesses to be
examined before the Tribunal must have been paid by the
State Government but he was asked to deposit a sum of Rs.
900 for the witnesses being summoned and this was in
violation of the relevant provision relating to conduct of
proceeding before the Tribunal. The High Court dismissed the
writ petition in limine. In this appeal the question was
whether on this account there was non-compliance with the
principles of natural justice.,
Allowing the appeal,
^
HELD: There is no compliance with the principles of
natural justice in this case. [251C]
Rule 20A(1) of the Travelling Allowances Rules
(Financial Handbook Volume III) is not quite clear, for it
does not say who should bear the expenses initially or
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whether the reference to be made by the inquiring authority
under clause (c) should be made before or after the
examination of the witnesses. Clause (b) of this sub-rule
seems to have been considered
245
satisfied in the present case as the Tribunal had decided to
summon the witnesses provided the amount was deposited by
the appellant as directed. [249B-C]
G.O. No. 4191 R/VIIIA-500(146) which was evidently
intended to clarify Rule 20A of the Travelling Rules makes
it clear that responsibility for payment of travelling
allowance to defence witnesses produced in departmental
inquiry conducted under s. 7 of the Police Act is of the
Government and that if a witness has been permitted to be
produced in defence it is not open to the inquiry officer to
lay down a condition that his travelling expenses should be
first deposited by the delinquent officer before the witness
is examined. [250G-H]
In the present case, the Tribunal has considered the
witnesses to be material but has insisted on the appellant
depositing initially a sum of Rs. 900 for the travelling
expense and daily allowance of the witnesses with an
obligation to make good any shortfall in those allowances
and loss of professional income of the witnesses. The
respondent-State did not contend that this G.O.. does not
apply to the case of the appellant. Moreover, the appellant
was under suspension from 11-12-1967 and there is nothing on
record to show that he was financially sound and in a
position to deposit the sum of Rs. 900 and pay any further
amount which may be required to next any shortfall in the
travelling and daily allowances and the loss of professional
income of the 8 more witnesses whom he wanted to be examined
on his side. The failure to cause the production of those
witnesses at the expense of the Government might have caused
prejudice to the appellant for it cannot be predicated what
conclusion the Tribunal would have reached in regard to
charges 1 to 3 if the evidence of those witnesses was
available for its consideration. [250H, 251 A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1234 of
1977.
From the Judgment and Order dated 19.8.74 of Allahabad
High Court in Civil Writ Petition No. 4827 of 1974
R.K. Garg and Shakeel Ahmed Syed for the appellant.
Prithviraj, Mrs. S. Dikshit, S.K. Kulshreshta and P.
Mishra for the respondents .
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is
directed against an order of a Division Bench of the
Allahabad High Court dated 19.8.1974 dismissing in limine
Miscellaneous Writ Petition No. 4827 of 1974 which had been
filed by the appellant for quashing the
246
first respondent’s order dated 3.5.1974 removing him from
service pursuant to the finding of the second respondent,
U.P. Administrative Tribunal, Lucknow dated 10.7.1972 that
the appellant was guilty of three of the four charges framed
against him. The appellant was employed as a Deputy
Superintendent of Police at Pilibhit at the relevant time.
The fourth charge of which the appellant ’has been
exonerated was that he had transferred his Vespa Scooter
bearing Registration No. UPI-9117 and valued at more than
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Rs. 500/- to One Lal Mohd. without obtaining the previous
sanction of the appropriate authority and he thereby.
contravened Rule 24(2) of the U.P. Government Servants’
Conduct Rules, 1956. The appellant’s defence was that the
transfer was effected through a reputed dealer and therefore
previous sanction of the appropriate authority was not
necessary. The Tribunal found that the transaction of sale
of the scooter by the appellant to Lal Mohd was effected
through M/s. Anand Agencies, automobile engineers and
reputed dealers in scooters and therefore there was
sufficient compliance with Rule 24(2).
Charges 1 to 3 were more serious ones. The substance of
the first charge was that the appellant while posted as
Deputy Superintendent of Police at Pilibhit was granted 30
days leave with effect from 11.11.1967 and had to resume his
duties on 10.12.1967 but failed to resume his duties and
absented himself without previous permission or intimation
to the Superintendent of Public and without good or
sufficient cause. He failed to report about his whereabouts
until an application was made by him on 24.4.1968 for
extension of the leave. The appellant’s defence was that he
suffered from an attack of a mental disease, melancholia and
was under the treatment of Dr. Mukerji at Calcutta from
1.12.1967 to 20.4.1968 and he has informed about his sudden
illness and had applied for extension of the leave directly
and also through his wife and he had furnished his leave
address when he proceeded on 30 days leave. The substance of
the second charge was that while applying for extension of
leave on 20.4.1968 he attempted to willfully deceive the
Inspector General of Police by attempting to make him
believe that he had been ill from 1.12.1967 to 20.4.1968 and
was under treatment of a doctor at Calcutta although in fact
he had been to Pakistan during the period and had obtained a
medical certificate through deceitful and fraudulent’ means.
The defence of the appellant was one of denial. He
reiterated that he was under treatment of Dr. Mukerji at
Calcutta from 1.12.1967 to 20.4.1968 and contended that in
that
247
period he was treated by Dr. Das at Howrah from 10.1.1968 to
30.1.1968 for injuries to his nose. The substance of the
third charge was that after having proceeded on leave with
effect from 11.11.1967 he unauthorisedly and unlawfully
visited Karachi in Pakistan some-time between 22.11.1967 and
20.4.1968 without any valid passport or travel document and
the he by contravened s. 3 of the Passport Act, 1967. The
appellant denied the charge and contended that he had never
visited Karachi and had been suffering from melancholia and
treated by Dr. Mukerji at Calcutta.
A number of witnesses for the department and some
witnesses tor the defence were examined before the Tribunal
which a after considering the oral and documentary evidence
found charges 1 to 3 against the appellant. One Harish
Kumar, Superintendent of Police who was appointed as an
assessor in the inquiry conduct before the Tribunal agreed
with the findings of the Tribunal. Subsequently, the
Tribunal submitted copies of its findings to the Government
with its recommendation that the appellant may be dismissed
from service. The Governor accepted the Tribunal’s findings,
took a tentative decision to dismiss the appellant from
service; and issued a second show cause notice dated
29.9.1972 to him. The appellant submitted his interim reply
and final reply on 19.11.1972 and 31 3.1973 respectively.
After considering the appellant’s replies the Governor
agreed with the Tribunal that the charges 1 to 3 are fully
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established against the appellant and ordered his removal
from service by the order dated 1.8.1974.
The appellant challenged his removal from service in
W.P. No. 4827 of 1974 which was dismissed in limine by a
Division Bench of the Allahabad High Court. Hence this
appeal by special leave.
This appeal deserves to be allowed on a short point
which unfortunately has not been noticed by the learned
Judges of the High Court before dismissing the writ petition
in limine. The appellant had prayed for summoning 8
witnesses for being examined in his defence by filing an
application dated 17.1.1972 for that purpose. The Tribunal
dismissed that application on 19.1.1972 on the ground that
it had already taken into consideration the relevant rules
in the Financial Code Volume III and that it does not
consider it necessary to revise its views. The Tribunal
observed in that order that the appellant has to bear the
expenses of the witnesses who are private persons if he
wanted to have them examined in his
248
defence. He was, however, given one week’s time to deposit a
sum of Rs.900 initially by way of travelling and daily
allowances for the witnesses as well as compensation for the
loss of their professional income and he was ordered to make
good any shortfall. The appellant had not deposited that
amount and the witnesses had not been summoned for being
examined in his defence. The question for consideration is
whether on this account there is non-compliance with the
principles of natural justice.
The Tribunal has relied upon Rule 20A of the Travelling
Allowances Rules (Financial Handbook Volume III) in making
the above order. Sub-rule l of that Rule reads thus:
"20A. (13 Persons, who, not being servants of the
Government, are called as witnesses in a departmental
inquiry either by the authority conducting the inquiry
or on behalf of the government servant whose conduct is
under inquiry, shall receive the same travelling
allowance and diet money as are admissible to non-
official witnesses summoned in criminal cases, provided
that in the case of such persons who are called on
behalf of the government servant whose conduct is under
inquiry, the payment of travelling allowance and diet
money shall be subject to the following principles:
(a) travelling allowances may be Paid to witnesses
summoned in the event of the government servant
concerned clearing himself;
(b) such allowances will be paid only in respect
of witnesses whose evidence is considered of
material value by the authority conducting the
inquiry; and
(c) in exceptional cases the authority conducting
the & inquiry may, on grounds to be recorded,
recommend to the Government that the principles
laid down above be departed from owing to special
reasons. In such cases it will be for the
Government to decide, after taking into
consideration all the circumstances of the case,
whether the recommendation should be accepted or
not.
The authority, conducting the inquiry shall
determine the class of each witness for the purpose of
calculating travel-
249
ling allowance and diet money under the scale
prescribed for witnesses in criminal case."
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This sub-rule is not quite clear, for it does not say
who should bear the expenses initially or whether the
inference to be made by the inquiring authority under class
(c) should be made before or 1 after the examination of the
witnesses. Clause (b) of this sub-rule seems to have been
considered satisfied in the present case as the Tribunal had
decided to summon the witnesses provided the amount was
deposited by the appellant as directed. The appellant has
contended in para 31 of his writ petition that in view of
G.O. No. 4l97 R/VIIIA-500 (146)/68 travelling allowance and
diet money of witnesses to be examined before the Tribunal
must have been paid by the State Government but he was asked
to deposit a sum of Rs.900 for the witnesses being summoned
and this is in violation of the relevant provision relating
to conduct of proceedings before the Tribunal. The said G.O.
marked Annexure-11 to the writ petition relates to one Kunhi
Ram and was evidently intended to clarify. Rule 20A of the
Traveling Rules and it reads thus:
"In continuation of G.O. No. 1371-1/VIII 2000
(10/61, dt. July 3, 1961)- I am directed to say that in
the special appeal the appellant had contended that the
additional S.P. Agra had asked him to deposit the
expenses for T.A. etc. of defence witnesses before he
summoned them. The position in this connection has been
examined by the Govt and is being clarified here. Under
para 490(5) of the police regulations the S.P. has to
decide whether he should refuse to summon a , witness
whose evidence he does not consider material to the
issue. The witnesses who are accepted by the S.P. for
being produced in defence can be either summoned by him
or allowed to be produced by the party charged, So far
as the question of payment of expenses for the journey
by a defence witness is concerned it is not material
when once a witness is permitted to be produced whether
he is summoned officially or is called by the party
charged himself. The responsibility for payment of
travelling expenses to the defence witnesses produced
during departmental trial conducted under section 7 of
the Police Act is of the Government. Thus if a witness
has been permitted to be produced in defence, it is not
open to the inquiring officer to lay down a condition
that this travelling expenses should be first deposited
250
before he is summoned. However, no expenses are to be
paid for persons who are not permitted to be produced
in defence.
The position with regard to the payment of
travelling expenses to the defence witnesses is as
follows:
(i) Govt. servants who appear as defence witnesses to
give evidence of the facts which come to their
knowledge in their official capacity are governed
by Rule 59(1) of the Financial Handbook Volume III
for the purpose of travelling allowance;
(ii) As regards govt. servants who appear as witnesses
to facts which have come to their knowledge in the
private capacity and appear as private individuals
the position under rule 59(2) of Financial
Handbook Volume III is that they are entitled to
receive their actual travelling expenses from the
Court and as suck they will get T.A, on an ad hoc
basis and as on tour. Thus if he is a Govt.
servant travelling in a train..... as an ordinary
passenger and has to bear witness to that in his
private capacity he should be paid T.A. as on
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tour. The Meharrirs of the Police Stations
bringing records which they maintain at P.S.s. in
their official capacity will be governed by class
(1) above.
(iii) Non-official witnesses called or allowed to be
produced by the S.P. will get T.A. under rule 20A
of Financial Handbook Volume Ill."
This G.O.. makes it clear that responsibility for
payment of travelling allowance to defence witnesses
produced in departmental inquiry conducted under s. 7 of the
Police Act is of the Government and that if a witness has
been permitted to be produced in defence it is not open to
the inquiry officer to lay down a condition that his
travelling expenses should be first deposited by the
delinquent officer before the witness is examined. In the
present case, the Tribunal has considered the witnesses to
be material but has insisted on the appellant depositing
initially a sum of Rs. 900 for the travelling expense and
daily allowances of the witnesses with an obligation to make
good any shortfall in those allowances and loss of
professional income of the witnesses. Mr. Prithvi Raj,
Senior Counsel appearing
251
for the respondent-State did not contend that this G.O. does
not A apply to the case of the appellant.. Moreover, the
appellant was under suspension from 11.12.1967 and there is
nothing on record to show that he was financially sound and
in a position to deposit the sum of Rs.900 and pay any
further amount which may be required to meet any shortfall
in the travelling and daily allowances and the loss of
professional income of the 8 more witnesses whom he wanted -
to be examined on his side. The failure to cause the
production of - those witnesses at the expense, of the
Government might have caused prejudice to the appellant for
it cannot be predicated what conclusion the Tribunal would
have reached in regard to charges 1 to 3 if the evidence of
those witnesses was available for its consideration. We
are, therefore, of the opinion that there is no compliance
with the principles of natural justice in this case. The
appeal has to be allowed on this short ground and it is
accordingly allowed. The finding of the Tribunal that the
appellant is guilty of charges l to 3 and the consequent
order of the Government/Governor removing the appellant from
service are quashed. The matter is remitted to the Tribunal
for fresh disposal after summoning at government expense
such of the material witnesses as the appellant may wish to
be examined in his defence. The appellant shall be entitled
to costs quantified at Rs. 2,000. It is needless to say that
the appellant would be entitled to subsistence allowances
from the date of his removal from service until the
proceedings taken against him terminate and final order is
passed. This shall be paid in six weeks.
H.S.K. Appeal allowed
252