Full Judgment Text
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PETITIONER:
H.C. SARIN
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT14/04/1976
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
CHANDRACHUD, Y.V.
KRISHNAIYER, V.R.
CITATION:
1976 AIR 1686 1976 SCR 39
1976 SCC (4) 765
ACT:
Adminstrative Law-Departmental enquiry-Principles of
natural justice.
HEADNOTE:
Indian Railways Establishment Code, Vol. I r. 1730-
Right of delinquent officer to services of on advocate or
another Railway offcial.
The appellant was a railway official of the Indian
Railways, in London. In connection with the purchase of
stock from a West German firm three charges were framed
against him that he obtained illegal gratification from the
proprietor of that firm and that he had used official
influence for personal advancement. A board of enquiry as
set up by the Government of India and the enquiry was held
in London and West Germany. The board held that two of the
charges were proved and the appellant was dismissed from
service. He filed a writ petition in the High Court which
was dismissed.
In appeal to this Court, it was contended that the
enquiry was held in gross violation of the principles of
natural justice and requirements of Art. 311 of the
Constitution; that the proprietor of the German firm made
the false accusation against him in order to escape payment
of damages; that the chairman of the board of enquiry was
biased against him, and that the appellant was denied the
services of a professional lawyer or a railway official of
his choice from India for conducting his defence and for
cross-examining the proprietor of the German Firm.
Dismissing the appeal,
^
HELD: (1) The correspondence that passed between the
board and the appellant snows that there was no violation of
any principle of natural justice, that the appellant was
given inspection of all necessary documents; that he was
given adequate and reasonable opportunity to defend himself
and that the allegation that the chairman of the board was
biased against the appellant was totally false. [46 B-C]
(2) No principle of natural justice was violated in not
making available to the appellant the services of a
professional lawyer or of another railway official from
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India. [51 B]
(a) The enquiry was conducted in accordance with r.
1730 of the Indian Railways Establishment Code, Vol. I,
which prescribes the procedure for holding a departmental
enquiry. There is nothing in the rule about engagement of a
lawyer but the note appended to the rule provides that in a
departmental enquiry the accused may, if he so desires, be
accompanied by another railway officer, provided he is
approved by the competent authority, and provided that the
person so nominated shall not be a professional lawyer. [50
F-G]
(b) The notes are promulgated with the rules. Their
function is to provide procedure, to control discretion, and
to fill up gaps when rules are silent. Under the rule, the
appellant was not entitled to the services of a professional
lawyer.
[51 F-G]
Tara Singh etc. etc. v. State of Rajasthan and ors.,
[1975]3 SCR 1002, followed.
(c) Even if the note is treated as an executive
instruction and not part of the rule itself, there is no
reason why the authority should not follow the note. The
authority would still have a discretion in the matter. In
the present case, the question involved was a simple one
whether he had taken money from the
40
proprietor of the German firm. No prejudice was caused to
the appellant, because the proprietor was only a lawyer in
name but was actively in business and the services of a
professional lawyer were not necessary to cross-examine him.
[51 B]
(d) The appellant wanted an officer from India to
assist him in the conduct of his defence. Under the rule, he
was not entitled, as a matter of right, to have the services
of any railway officer stationed in India. He was in fact
given a choice to choose either one stationed in London or
on the Continent. [51 G-H]
C. L. Subramaniam v. Collector of Customs, Cochin,
[1972]3 SCR 485, explained and distinguished.
R. v. Secretary of State for the Home Department ex
parte Mughal [1973] All England Law Reports, 796, referred
to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1097 of
1970.
Appeal from the Judgment and order dated the 25th April
1967 of the Delhi High Court in Letters Patent Appeal No.
106-D of 1964.
M. N. Phadke, S. Balakrishnan and N. M. Ghatate, for
the Appellant.
L. N. Sinha, Sol. General, P. P. Rao and Girish
Chandra, for Respondents.
The Judgment of the Court was delivered by
UNTWALIA, J.-This appeal is by certificate granted by
the High Court of Delhi under Article 133 (1) (a) & (b) of
the Constitution of India as it stood prior to the 30th
Constitution Amendment Act. No substantial question of law
is involved in this appeal. It is to be decided mostly on
facts. And since we are in agreement with the judgment of
the Division Bench of the High Court given in the Letters
Patent appeal, we shall advert only to the necessary facts
and the main points argued before us.
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Shri H. C. Sarin-the appellant was employed in the
Indian Railways as Senior Railway Inspector attached to the
Office of the India Stores Department at London. He was in
that job from the 6th August, 1954. The Government of India
placed orders with various firms in the United Kingdom and
the continent for supply of rolling stock and other
materials for the Indian Railways. In December, 1956 the
appellant was deputed to the Essen Area of West Germany as
Senior Railway Inspector in which capacity he had to inspect
and pass the goods in the first instance at the site.
Although this work of inspection in West Germany was
entrusted to the German Federal Railway in January 1958, the
appellant remained there associated with the work till April
or May, 1958. In July, 1956 orders were placed with M/s Leo
Gottwald and Company for supply of several breakdown cranes-
both for meter gauge and broad gauge railway tracks in
India. This was a family concern of one Dr. Hans Dieter
Gottwald. Prior to the appellant’s going to the Essen Area
41
of West Germany, there were other Senior Railway Inspectors
doing the work of inspection including one S. N. Hussain
(since deceased) immediately preceding the appellant. One of
the clauses in the contract with Gottwald was that he would
be liable to pay liquidated damages in the specified sums if
he made delay in the delivery of the cranes. Eventually
there being delay, the amount of such damages was quantified
at a figure in the neighbourhood of & 45,000/-.
Dr. Gottwald carried on business of his firm at
Dusseldorf in West Germany. He came to London on July 30,
1958 to discuss with Shri L. T. Madmani, Railway Advisor
certain technical aspects of the cranes contract. A meeting
took place in the morning wherein were present other
officers including one Mr. Bayross. In the afternoon,
Gottwald saw S. N. Hussain at the lndia Stores Department
when the latter told the former that delay had occurred in
the supplies of cranes and consequently the firm of
contractors may have to pay liquidated damages. Upon this,
Gottwald disclosed that Sarin was responsible for the delay,
he had taken money by way of bribes from the firm and in
such a situation the firm was not liable to pay any damages.
Since the allegation made by Gottwald against Sarin was a
serious one S. N. Hussain advised him to inform Madnani
about it. He did accordingly. After some preliminary steps
Gottwald’s statement was recorded on September 8, 1958 at
India Stores Department where he gave a detailed account of
the allegedly corrupt practices of the appellant. Shri
Shukla was the Director General of the India Stores
Department at the relevant time. He directed Gottwald to
furnish some tentative proof in support of his accusation
against Sarin. Gottwald’s second statement was recorded on
October 21, 1958. One Shri M. A. Hussain, I. C. S. was the
Deputy High Commissioner for India stationed in U. K. at the
relevant time. On cxamining the papers and the statements of
Dr. Gottwald given before the various officers of the India
Stores Department the Deputy High Commissioner formed an
opinion that prima facie the accusations against the
appellant were such that required to be investigated in a
departmental enquiry. He accordingly made a recommendation
to that effect to the Government of India. The Government,
however, directed a preliminary enquiry to be made by Shri
N. S. Pandey, Financial Advisor to the Indian High
Commission and then to start a departmental enquiry, if
necessary. Accordingly, Pandey went to Gottwald’s place in
West Germany, made preliminary investigations and submitted
a report dated January 19, 1959 finding a prima facie case
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made out against the delinquent government servant. At the
instance of the Government of India, Ministry of Works,
Housing and Supply, charges were served upon the appellant
on April 7, 1959 along with two Annexures containing various
details of the accusations made by Gottwald against him. The
appellant was asked to indicate by April 15 the papers which
he wanted to inspect and the papers the copies of which he
required to enable him to enter his defence. He was asked to
submit his written explanation by 30th of April, 1959. In
the meantime he was placed under suspension.
42
Shorn of details which were to be found in the
Annexures the Charge-Sheet served on the appellant contained
the following three charges:
"CHARGE I.
That Shri H. C. Sarin, while functioning as the
Senior Railway Inspecting Officer in the India Stores
Department, London, during the period between December,
1956 and May, 1958, demanded and obtained illegal
gratification from the firm of Messrs. Leo Gottwald of
Dussaldorf.
CHARGE II.
That during the aforesaid period and while
functioning as aforesaid, the said Shri H. C. Sarin
violated Rule 10 of the Railway Services (Conduct)
Rules, 1956 in that he accepted an Opel Car from
Messrs. Talbots of Achen as a gift.
CHARGE III.
That during the aforesaid period and while
functioning as aforesaid, the said Shri Sarin used his
official influence for personal advancement."
Time for filing the written defence by the appellant was
extended. It was filed on May 27, 1959. The appellant denied
all the charges against him. The Board of Enquiry set up by
the Government of India consisted of the following :
(1) Shri M. A. Hussain, ICS, Deputy High
Commissioner, Chairman.
(2) Col. Hendricks, Deputy Director General
(Inspection), I. S. D., London, Member.
(3) Shri T. M. Duraiswamy, Deputy Director
General, I. S. D., London, Member.
The correspondence which passed between the appellant
and the Board in connection with the departmental enquiry
instituted against him is too voluminous to be referred to
in this judgment. No useful return will be achieved by
referring to the correspondence in any detail. Suffice it to
say at this stage that the correspondence does indicate a
calculated design and planned attempt on the part of the
appellant to non-cooperate with the enquiry and an anxiety
and earnestness on the part of the Board to proceed in the
matter as fairly as possible in the circumstances of the
case. The Board was obliged to go to Dusseldrof, hold an
enquiry at the spot by examining as many as 21 witnesses
there, some of whom had been cited by the appellant as his
defence witnesses and to examine the relevant papers,
documents and account books of the contractor’s firm. All
this proceeded ex-parte between July 14 to July 17, 1959.
The Board
43
returned to London on July 19 and examined some witnesses
there who had been cited as defence witnesses by the
appellant. Almost the entire departmental enquiry had to be
conducted ex-parte as the appellant would not participate in
it even with a pair of tongs.
The appellant had named S/Shri Bhalla, Sharma, Johri
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and Sen, Railway officers in India as his defence witnesses.
He was asked to examine them by quesionnaries as it was not
possible to call them to London for the purpose of the
enquiry. Nor was their evidence so material as to
necessitate their examination viva-voca before the Board.
The appellant refused to cooperate and did not submit any
questionnaire. The Board, thereupon, sent to all the four
officers aforesaid copies of the charges levelled against
the appellant and asked them to state if they had anything
to say in relation to them. Bayross was examined by the
Board in London on September 29, 1959 after copies of the
earlier statements of the witnesses and other papers had
been supplied to the appellant on September 21, 1959. The
appellant was present on September 29 but did not actively
participate in the enquiry, in that he did not take any part
in it by cross-examining Bayross.
The Board submitted its report to the Government of
India on November 2, 1959 holding that charges I and III had
been proved against the appellant and charge II had neither
been proved nor disproved. The Government gave a show-cause
notice on November 4, 1960 to the appellant asking him to
show cause against his removal. He filed his reply on
January 31, 1961. Later, however, the Government gave
another show cause notice dated September 20, 1961 to the
appellant to show cause as to why he should not be dismissed
from service. In October/November, 1961 the appellant filed
three show cause explanations in writing. He made another
representation to the Government on March 4, 1962 for
holding a fresh enquiry which naturally was not acceded to.
Eventually the appellant was dismissed from service by an
order of the Government of India dated September 10, 1962.
He filed a writ petition in the High Court on December 6,
1962 to challenge the order of dismissal on several grounds,
in nut shell, on the ground of violation of principles of
natural justice in the conduct of the enquiry. A learned
single Judge of the High Court by his judgment and order
dated August 3, 1964 allowed the writ petition and quashed
the order of dismissal without any further or consequential
order. A Letters Patent appeal was filed by the Government
which was disposed of by a Bench of the Delhi High Court on
April 25, 1967. The judgment if the single Judge was set
aside and the order of dismissal passed against the
appellant by the Government was maintained holding that
there was no violation of the principles of natural justice
in any manner. Since the amount of salary payable to the
appellant if the dismissal order could be found to be bad
would, indisputably have been more than Rs. 20,000/-
certificate was granted under Article 133(1)(a) & (b),
strictly speaking, under sub-clause (b). Thus comes this
appeal in this Court.
44
Mr. M. N. Phadke, learned counsel for the appellant
pressed only the following points in support of the appeal.
(1) That the appellant was not allowed to go to
Germany to examine and assess various matters
which were necessary for submission and
conduct of his defence. It was done so in
gross violation of the principles of natural
justice and requirement of Article 311 of the
Constitution.
(2) That copies and inspection of certain
relevant and necessary documents were not
allowed to the appellant by the Board. It was
not possible for him to cooperate and
participate in the enquiry without them.
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(3) That no adequate and reasonable opportunity
was given to the appellant to defend himself
at the enquiry.
(4) That the accusation made by Gottwald against
the appellant was maliciously false as it was
made with the ulterior motive of saving his
firm from the liability of liquidated
damages. As a matter of fact the firm was not
made to pay any damages in view of Gottwald’s
success in his false accusation against the
appellant.
(5) That Shri M. A. Hussain. Chairman of the
Board of Enquiry was highly biased against
the appellant and the enquiry conducted under
his stewardship was a farce.
(6) That Shri S. N. Hussain was inimically
disposed to wards and adversely interested
against the appellant.
(7) That the services of a professional lawyer
for cross examining Gottwald and a Railway
officer of his choice from India were not
made available to the appellant for
conducting his defence.
Learned Solicitor General appearing for the Union of
India-the respondent-refuted all the submissions made on
behalf of the appellant. In particular he focussed his
submissions on point nos. 1, 5 and 7 as the other four
points, counsel submitted, did not require any detailed
reply.
Point No. 1
When the appellant was placed under suspension, in
accordance with the relevant service rules he was asked not
to leave London without permission of the Board. As soon as
the Charge Sheet was served on him by his letter dated the
10th April, 1959 the appellant wanted permission to visit
Germany stating in para 6:
"In order for me to prepare my defence I would
request permission to visit Germany to collect
essential information
45
required when submitting my written defence, especially
as the charges refer to periods two to three years
ago."
The Chairman of the Board of Enquiry in his reply dated the
15 April, 1959 stated in para 3 thus:
"In regard to your request to be permitted to
visit Germany, the Board would like to have in writing
before April 20, 1959, the purpose for which you wish
to visit Germany and the names and addresses of
person/persons you wish to contact and the paper/papers
you may wish to examine."
The appellant sent his letter dated April 20, 1959 stating
in para 4 thus:
"Regarding the visit to Germany and the persons
and documents to be interviewed and seen, I thought it
was plain that this depended on the inspection of
documents referred to in paras 4 and 5 of your letter
under reply. Consequently until I have done this
properly, I shall not be in a position to know what
items or facts I require to investigate or check’ in
Germany. I shall therefore be glad if you will postpone
this application of mine so that I may in due course
specify the visits, persons and papers."
The Chairman, thereupon, by this letter dated April 21, 1959
asked the appellant to supply the information in respect of
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his visit to Germany by April 30, 1959. In his letter dated
April 30, 1959 the appellant stated in para 3 thus:
"I submit in view of the grave charges, false
allegations, it is necessary for me to examine in
detail Leo Gottwald’s system of accounting,
storekeeping, procedure for telephone accounting,
mailing letters etc. Likewise the system of telephone
connecting, booking, mailing letters etc. at other
firms mentioned by Dr. Gottwald, This is absolutely
imperative and my defence would be incomplete without
this. In the absence of full information, examination
of all documents studying systems of working mentioned
above, I am not in a position to submit names of
persons. I would request early arrangements may please
be made for me to study the systems of working
mentioned above at the respective firms in Germany."
The Chairman in para 4 of his letter dated May 1, 1959
informed the appellant:
"In regard to your request for visiting Germany in
order to examine the Leo Gottwald’s system of
accounting, store-keeping, mailing letters etc., it is
felt that it is not necessary for you to visit Germany
for the purpose because witnesses pertaining to all
these matters will be called by the Board for
examination and you will be given full
46
opportunity to elicit all relevant information required
by you."
Further correspondence followed in the matter and the
appellant was not given permission to visit Germany prior to
the visit of the Board of Enquiry.
In the light of the relevant correspondence which
passed between the appellant and the Chairman of the Board
of Enquiry we have come to the conclusion that it was not at
all necessary for the appellant to visit Germany for
preparing his defence. The Board committed no mistake and
violated no principles of natural justice in refusing the
permission. No useful purpose would have been served by such
a visit in the interest of the appellant’s defence, if any.
on the other hand his insistence to visit Germany at the
earliest opportunity smacks of some ulterior design on his
part in regard to his defence.
When the Board decided to visit Germany for holding the
enquiry, it gave ample opportunity to the appellant to
proceed to Germany to take part in it. The main part of the
enquiry. rather, the only substratum of the materials was to
be done and collected at Dusseldorf in Germany. Yet on one
excuse or the other the appellant, it appears, was advised
to adopt an attitude of non cooperation which was likely to
forge a ground of attack on the departmental enquiry,
thinking that participation in it would. perhaps, worsen his
case. It is found more often than not that Government
servants who have no real defence to take against the
accusations are advised, and sometimes not without success,
to non-cooperate with the enquiry. It seems to us this was
one such case.
The Chairman by his letter dated June 18, 1959 asked
the appellant whether he proposed to be present at the
enquiry at Dusseldorf and such other places as the Board may
determine on the dates to be intimated to him. The appellant
was specifically asked this question because he cast some
baseless aspertions against the Board in his letter dated
the 4th June, 59. The appellant in his letter dated the 14th
June had stated in para 14:
"In the circumstances that I have put into, and
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hardly been left any choice, I feel no useful purpose
call be served by my attending such an enquiry or
having anything further to do with such as enquiry."
The appellant’s reply dated June 20, 1959 clearly
demonstrates the unjustifiably non-cooperative attitude of
the appellant. He was running from pillar to post to find
out some excuse to justify his non cooperation at the
enquiry. He insisted that Dr. Gottwald’s statement recorded
in September, 1958 should be got signed by him which the
Board rightly did not consider it necessary to do. Another
with stand which the appellant had taken was that the
contents of his written defence submitted on May 27 were
made known to S. N. Hussain by some members of the Board of
Enquiry-an allegation
47
which was strongly refuted by the Board. Lastly in the 10th
paragraph of his letter dated June 20 the appellant said:
"What can I do Mr. Chairman in the position you have placed
me, you may proceed in any way you consider reasonable, just
and fair."
In spite of the unreasonable and unsustainable stand of
the appellant, the Board of Enquiry, constituted as it was
of high officials of the Government of India headed by the
Deputy High Commissioner stationed in London, time and again
expressed their anxiety to make the appellant participate in
the enquiry. But the appellant under a wrong advice played a
game of hide and seek, at times adopted a tantalizing
attitude showing his willingness to cooperate, but backed
out at the eleventh hour. To justify this comment we just
mention some other letters viz. letter of the Board dated
June 22, appellant’s reply dated June 23, Board’s letter
dated June 26, appellant’s sticking to his previous stand in
his letter dated June 29, Board asking the appellant to
proceed to Germany in their letter dated July 2 and the
appellant’s reiterating his previous stand in his letter
dated July 8. From the report of the Board it would appear
that Sarin did not give a categorical answer as to whether
or not he would go to Dusseldorf on July 13. On the 10th
July, he agreed to go and came to India Stores Department to
collect his advance of T. A. But on the evening of July 11,
he informed the Secretary to the Board that he would not
proceed to Dusseldorf to be present at the oral enquiry. Mr.
Phadke drew our attention to Sarin’s show cause reply dated
January 31, 1961 in which he stated that the Board permitted
him to go to Dusseldorf only if he agreed to participate in
the oral proceedings there, otherwise not. He therefore,
cancelled his reservations to proceed to Dusseldorf. He also
referred to the photostat copy of the appellant’s letter
dated July 24, 1959 and the addendum to this letter. Nothing
new; the same stand was taken by the appellant. This, to our
mind, makes patent the latent factor in the mental attitude
of the appellant. Did he want to go to Dusseldorf without
agreeing to take part in the enquiry ? or did he want to go
there to participate in it?
Having appreciated all that has been said for the
appellant in support of his first point we have come to the
conclusion that the appellant was not denied any reasonable
opportunity of visiting Germany at the proper time to
participate in the enquiry. He has to thank himself for
deciding not to go.
Point No. 2.
It is not necessary to enter into any detailed
discussion of this point. In agreement with the Bench of the
High Court we hold that all relevant documents were made
available to the appellant either for inspection or for
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copies. Some file containing the field inspection papers was
not traceable. The suspicion of the Board was that the
Prosecutor at the departmental enquiry was not to gain
anything by making the file untraceable. On the other hand
it was the appellant who was to gain by it. The very same
letters exchanged between the appellant and the Board in
June and July, 1959 dealt
48
with this aspect also. The High Court has extracted passages
from the relevant letters in this connection and has rightly
held:
"It appears to us to be clear from this
correspondence that all legitimate demands of the
respondent for the inspection of papers which were
available in the ISD office in London were fulfilled,
but the respondent went on making unfounded claims in
this behalf without specifying the documents. We
therefore, hold that all documents which were available
in the ISD office in London were made available to the
respondent."
Point No. 3.
In support of the third point arguments were advanced
with reference to letters dated July 18, August 6 and
October 6, 1959. Notes were handed over to us referring to
the other pieces of correspondence. We have studied them but
think it unnecessary to increase the bulk of our judgment by
referring to the correspondence in any detail. It merely
shows that on one ground or the other the appellant was
adopting delaying tactics, shifting stands and excuses for
not presenting himself at the enquiry either to cross-
examine the prosecution witnesses or to examine his defence
witnesses. All the time he was reiterating his stand taken
in his letters dated June 14, and June 20, 1959.
The detailed report of the Board of Enquiry, apart from the
correspondence which preceded it, is a clear proof of the
anxiety of the Board to conduct the encquiry as fairly and
fully as they could in the circumstances of the case. The
submission of the appellant is rejected as being devoid of
substance.
In view of the attitude taken by the appellant of
complete noncooperation in his letters dated June 14 and
June 20, 1959 no useful purpose would have been served by
associating him with the examination of the witnesses in
London. Madnani and S. N. Hussain were examined in July and
August. The appellant never expressed his willingness to
cooperate and be present at the examination of the witnesses
in London. His presence at the time of the examination of
Bayross was a make-believe more of cooperation to colour and
cloud his real attitude of non-cooperation. The Board
committed no irregularity or illegality in sending a general
questionnaire to S/Shri Bhalla, Sharma, Johri and Sen in
India as the appellant had refused to submit a
questionnaire. Copies of all the relevant statements and
papers given to the Board at Dusseldorf were given to the
appellant in September, 1959. Although there was some delay
in supply of these papers, that did not cause any prejudice
to the appellant.
Point No.4
This point mainly concerns the merits of the findings
of the Board of Enquiry and their final acceptance by the
Government of
49
India. Whether a charge levelled against the appellant was
true or false had to be and has been judged in the light of
the appellant’s stand that Gottwald had a motive to accuse
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falsely the appellant of having taken bribe from him in
order to establish that he was not at fault in the delay
which was made in the delivery of the contracted cranes.
Without much elaboration we reject this argument. Gottwald
was to gain by merely throwing the blame on the shoulders of
Sarin. He had nothing to gain and only to lose by making an
accusation of having paid bribe to Sarin under his pressure.
No person would like to involve himself in the deal of
payment of bribe to a Government servant merely for the
purpose of explaining the delay caused in effecting the
deliveries. Ordinarily bribe could be paid so that there may
not be any delay in inspection. But here was a case where it
is said delay was caused in the inspection because there was
delay in the payment of the bribe. It is not for us to
examine in any detail the correctness of the findings
recorded against the appellant at the departmental enquiry;
but in passing, we may just observe that it could not have
been possible for Gottwald to make a false accusation
against Sarin, and then support it before the Board by
examining his father, the bank records, vouchers, account
books and a large number of persons working in his firm.
There was nothing in the records of this case to show that
the claim of liquidated damages against the contractor was
given up in view of the finding of guilt of the appellant.
We were informed at the Bar by the Soilcitor General that
the claim was settled and not given up. Be that as it may,
we find the fourth submission made on behalf of the
appellant unsustainable.
Points 5 and 6
These points may be dealt with together as they have
got some inter-connection. It could not be substantiated on
behalf of the appellant that S. N. Hussain had any animus
against him or was adversely interested against him in the
matter. Some letters with reference to the work of S. N.
Hussain at Barmingham with comments of the appellant thereon
were placed before us. Mr. Phadke could not substantiate the
point with reference to them. Time and again he laid stress
on the fact that Gottwald made this complaint to Madnani on
July 30, 1958 on being asked to do so by S. N. Hussain
because he had his own axe to grind against Sarin. This
argument has been stated merely to be rejected. It was just
in the natural course of events that when S. N. Hussain was
finding fault with Gottwald for the delay in the execution
of the contract the latter became forced by circumstances to
blurt out the truth. The accusation against Sarin was too
serious to be taken note of by S. N. Hussain alone.
Naturally, therefore, he advised him to go and make this
complaint to the higher officer Madnani. No connection
between M. A. Hussain-the Chairman of the Board and S. N.
Hussain-a Senior Inspector who was in Essen Area of West
Germany immediately before the appellant, was established.
It is an argument of desperation to suggest that M. A.
Hussain was biased against the appellant to protect or help
S. N. Hussain. The charge of being communal levelled against
the Chairman by the appellant in his letter dated October
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5, 1959 written to the Government of India was obviously
made with an ulterior motive after conclusion of the enquiry
and sensing that it had gone against the appellant. Great
stress was led in court to show M. A. Hussain’s bias on the
ground that at the earlier stage in the later half of 1958
he had formed his opinion against the appellant and
recommended and insisted for the starting of a departmental
enquiry against him without any further preliminary enquiry.
Mr. Phadke submitted that the Government turned down the
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proposal of M. A. Hussain and directed a preliminary enquiry
to be made by Pandey. We do not appreciate the force of this
argument. It would appear from the enquiry report that M. A.
Hussain did not want, as he had no time, to be the Chairman
of the Board of Enquiry. Being a Deputy High Commissioner he
was too busy in other affairs of the State. But since the
matter to be enquired into was against a high official of
the Government, M. A. Hussain was appointed as the Chairman
of the Board. The appellant never objected to his being on
the Board, until after the conclusion of the enquiry. We are
dis tressed to find that the appellant was ill-advised to
invent at a late stage a crudse and false story that on the
5th October, 1959 Doraiswamy-a member of the Board of
Enquiry had shown the secret file to the appellant which
showed the bias of M. A. Hussain as he had dealt with the
matter in the latter half of 1958. Although according to the
statement in the Writ Petition (vide para 28) he had written
his letter dated October 5, 1959 after the alleged showing
of the confidential file by Doraiswamy to him, not a word is
to be found in the said letter to this effect. Such a story
was put forward in the written explanations which the
appellant filed in answer to the punishment show cause
notices. We reject points 5 and 6 of the appellant.
Point no. 7
The enquiry was being conducted in accordance with Rule
1730 of the Indian Railway Establishment Code, Volume I. In
the main body of the rule where a procedure for holding a
departmental enquiry has been provided for, there is nothing
said in relation to the engagement of a lawyer. Certain
notes are appended to the rule. They seem to have been
appended not on the basis of the executive instructions but
as parts of the rule itself. One such note was appended as
note 4, which subsequently became note 3, on September 25,
1956 by the President of India who had framed Rule 1730.
This note reads as follows:
"In a departmental enquiry, the accused railway
officer may, if he so desires, be accompanied by
another railway officer provided that the officer so
nominated as the defence counsel is approved by the
competent authority to act as such, and provided also
that the person so nominated shall not be a
professional lawyer. The term ’professional lawyer
includes those persons who are competent to practice in
a court of law.’
In face of the above note, treating it as a part of the
rule, the appellant was not entitled to the services of a
professional lawyer. Gottwald,
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as it appears, was a lawyer in name but actively in
business. The services of a professional lawyer were not
necessary to cross-examine him. The fact was a simple one as
to whether he had paid money to the tune of about 24,000
D.M. to the appellant from time to time. Even if we treat
the note aforesaid as one based merely on the executive
instructions and not a part of the rule itself, we see no
reason to say that the authority was obliged not to follow
the note but to go against it. At the most it had a
discretion in the matter. The question is whether the
discretion was rightly exercised or was it exercised so
arbitrarily as to lead to the conclusion that principles of
natural justice were violated when the services of a
professional lawyer were not made available to the
appellant. We give the answers against the appellant. Great
reliance was placed for the appellant on a decision of this
Court in C. L. Subramaniam v. Collector of Customs,
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Cochin(1). In this case the argument that, rule or no rule,
the services of a professional lawyer should be made
available at a departmental enquiry when asked for was not
accepted. What was held in that case was that the
disciplinary authority brushed aside the request of the
appellant before the Surpreme Court on a wrong ground
completely ignoring the circumstances which were relevant.
It was, therefore, said at page 490:
"Therefore that authority clearly failed to
exercise the power conferred on it under the rule. It
is not unlikely that the Disciplinary Authority’s
refusal to permit the appellant to engage a legal
practitioner in the circumstances mentioned earlier had
caused serious prejudice to the appellant and had
amounted to a denial of reasonable opportunity to
defend himself."
In Tara Singh etc. etc. v. State of Rajasthan and
Ors.(2) the importance which is to be attached to the note
appended the rule has been emphasized by Ray, C. J.
delivering the judgment on behalf of the Division Bench of
this Court to which one of us (Krishna Iyer, J) is a party,
in these terms:
"The notes are promulgated with the rules in
exercise of legislative power. The notes are made
contemporaneously with the rules. The function of the
notes is to provide procedure and to control
discretion. The real purpose of the notes is that when
rules are silent the notes will fill up gaps."
The appellant was not entitled as a matter of right to
have the services of any railway officer stationed in India
to assist him in the conduct of his defence. He wanted an
officer from India especially Shri Bhalla. It was not
possible to make available the services of an officer from
India. The appellant was given a wide field of choice either
to choose any railway official stationed in London or in the
continent or some other personnel of the Indian High
Commission in London. The accusations made against the
appellant were not
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such that required any expert or special skill. The question
was a simple one whether he had taken money from Gottwald in
discharge of his official duties. Having appreciated all the
facts and circumstances of the case we have come to the
conclusion that no principle of natural justice was violated
in not making available to the appellant the services of
Shri Bhalla or any other railway officer stationed in India
for the conduct of his defence.
In the entire background of this case we find a passage
occuring at page 803 in the Judgment of Lord Denning, Master
of the Rolls in the case of R v. Secretary of State for the
Home Department ex parte Mughal(1) quite apposite to be
quoted. The passage runs thus:
"The rules of natural justice must not be
stretched too far. Only too often the people who have
done wrong seek to invoke ’the rules of natural
justice’ so as to avoid the consequences."
In the result we find no merit in this appeal and
dismiss it with costs.
V.P.S. Appeal dismissed.
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