Full Judgment Text
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PETITIONER:
STATE OF BOMBAY (NOW MAHARASTRA)
Vs.
RESPONDENT:
NARUL LATIF KHAN
DATE OF JUDGMENT:
22/02/1965
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
DAYAL, RAGHUBAR
RAMASWAMI, V.
CITATION:
1966 AIR 269 1965 SCR (3) 135
ACT:
Departmental Enquiry--Charge-sheeted officer desiring to
produce oral evidence--Refusal to record such evidence on
the ground that the case against the officer rested on
documents alone--Such refusal whether amounts to denial of
reasonable opportunity--Civil Services (Classification,
Control & Appeal) Rules r. 55-- Constitution of India, Art.
311(2).
HEADNOTE:
The appellant who was in the service of a State
Government asked for long leave which was refused.
Subsequently he asked for ten days’ leave which was granted.
On the expiry of the leave period he did not join duty on
the ground that he was seriously ill. The Government refused
to accept the plea and instituted a departmental inquiry
against him. The respondent wanted to produce oral evidence
in support of his plea including the evidence of doctors who
treated him, but the enquiry officer refused to record oral
evidence on the ground that the case against the appellant
rested on documents alone and therefore no oral evidence was
necessary. On the report of the enquiry’ officer the State
Government ordered the compulsory retirement of the
respondent. The latter filed a suit in which he claimed
inter alia that the constitutional provision in Art. 311 had
been contravened. The trial judge held against him but the
High Court decided in his favour. The State Government
appealed to the Supreme Court with certificate.
The narrow question to which the COurt had to address
itself was whether it was obligatory on the enquiry officer
to give a reasonable opportunity to the respondent to lead
oral evidence and examine his doctors.
HELD: (i) The Civil Services (ClassifiCation, Control
and Appeal) Rules provide in r. 55 that if the charge-
sheeted Officer so desires or if the authority concerned so
directs an oral enquiry shall be held. This provision is
mandatory and is based on considerations of natural justice
and fair play. Therefore when the respondent expressed his
desire to the enquiry officer that he wanted to lead
evidence in support of his plea, it was obligatory on the
enquiry officer to have fixed a date for recording such oral
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evidence and give due intimation to the respondent in that
behalf. [143 D-F]
(ii) Though an enquiry officer would be justified in
conducting the enquiry in such a way that its proceedings
are not allowed to be unduly or deliberately prolonged, it
would be impossible to accept the argument that if the
charge-sheeted officer wants to lead oral evidence the
enquiry officer can say that having regard to the charges
against the officer he would not hold any oral enquiry [143
H]
(iii) In the present case the witnesses whom the
respondent wanted to examine would undoubtedly have given
relevant evidence. He wanted to examine his doctors but the
enquiry officer failed to give him an opportunity to do so.
That introduced a fatal infirmity in the whole enquiry as
the respondent had not been given a reasonable opportunity
to de.fend himself within the meeting of Art. 311 (2).
The appeal of the State Government had therefore to be
dismissed. [144 A, C]
136
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1040/63.
C.K. Daphtary, Attorney General, M.S.K. Sastri and R.H.
Dhebar, for the appellant.
C.B. Agarwala and A.G. Ratnaparkhi, for the respondent.
The Judgment of the Court was delivered by--
Gajendragadkar, C.J. The short question of law which arises
in this appeal is whether the appellant, the State of Bombay
(now Maharashtra), shows that its predecessor State of
Madhya Pradesh (hereinafter called the Government) had given
a reasonable opportunity to. the respondent, Narul Latif
Khan, to defend himself before it passed the final order on
June 6, 1952 compulsorily retiring him under Article 353 of
the Civil Service Regulations. By this order, the respondent
was compulsorily retired and in relaxation of Art. 353,
the Government was pleased to allow the respondent to
draw a compassionate allowance equal to the pension which
would have been admissible to him had he been invalidated.
This order was challenged by the respondent by filing a
suit in the Court of the first Additional District Judge at
Nagpur. In his plaint, the respondent alleged that the
impugned order whereby he was compulsorily retired, was
invalid and he claimed a declaration that it was ultra vires
and inoperative. He also asked for a declaration that he was
entitled to be restored to the post which he held on July 6,
1950, and that he should be given all pay, allowances.
increments and promotions to which he would have been
entitled if he had been permitted to continue in service. In
the result, the respondent asked for a decree for Rs. 62,237
with interest at 6 per cent per annum from the date of the
suit till realisation.
This claim was resisted by the appellant on several
grounds. The principal ground on which the appellant
challenged the respondent’s claim, however, was that he had
been given a reasonable opportunity to defend himself, and
so, the impugned order was perfectly valid, and legal.
Several other pleas were also raised by the appellant. On
these pleas, the learned trial Judge framed appropriate
issues. The issue with which we are concerned in the present
appeal, however, centered round the question as to whether
the Constitutional provision prescribed by Art. 311
affording protection to the respondent had been contravened.
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The trial Judge made a finding against the respondent on
this issue. He also recorded his findings on the other
issues with which we are not directly concerned in the
present appeal. In regard to the money claim made by the
respondent, the learned trial Judge made a finding that in
case he was held entitled to such relief, a decree for Rs.
37,237 may have to be passed in his favour. In view of his
conclusion that the impugned order was valid, no question
arose
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for making such a decree in favour of the respondent. The
respondent’s suit, therefore, failed and was dismissed.
The respondent then took the matter in appeal before the
High Court of Judicature at Bombay, Nagpur Bench. The High
Court has, in substance, held that the constitutional
provisions prescribed by Art. 311 have not been complied
with by the appellant before it passed the impugned order
against the respondent. It has found that the departmental
enquiry which was held suffered from the serious infirmity
that the enquiry officer did not hold an oral enquiry and
did not allow an opportunity to the respondent to lead
his oral evidence. It has also held that the second
notice served by the appellant on the respondent
calling upon him to show cause why the report made by the
enquiry officer should not be accepted and appropriate
punishment should not be inflicted on him, was defective,
and that also made the impugned order invalid. The High
Court appears to have taken the view that the impugned order
does not show that the appellant had taken into account the
explanation offered by the respondent in response to the
second notice issued by the appellant. As a result of these
findings, the High Court has reversed the conclusion of the
trial Court on the main question and has found that the
impugned order is invalid and inoperative. On that view, the
High Court considered the money claim made by the
respondent, and it confirmed the finding of the trial Court
that the respondent would be entitled to a decree for Rs.
37,237. In fact, the alternative finding recorded by the
trial Court in respect of the amount to which the respondent
would be entitled in case he succeeded in challenging the
validity of the impugned order, was not questioned before
the High Court. In the result, the High Court allowed the
appeal and passed a money decree for Rs. 37,237 in favour
of the respondent in terms of prayer (A) of paragraph
31 of the plaint. The appellant then applied for and
obtained a certificate from the High Court and it is with
the said certificate that it has brought the present appeal
before this Court. That is how the main question which falls
for our decision is whether the constitutional provision
prescribed by Art. 311 has been complied with by the
appellant before it passed the impugned order.
At this stage, it may be relevant to refer to some
material facts. The respondent was appointed as Extra
Assistant Commissioner in 1926 and since then he had been
holding various offices in the State service of the then
Madhya Pradesh Government. In 1950, he was holding the post
of a Treasury Officer at Nagpur. It appears that privilege
leave for over a year was due to him and he had applied
for four months’ privilege leave. On June 12, 1950,
Government informed him that his request for leave was
rejected and he was told that no further application for
leave would be entertained in future. On July 7, 1950, the
respondent proceeded
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on casual leave for two days, and on July 8, 1950 he renewed
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his application for four months’ leave on medical grounds.
This application was accompanied by a certificate given by
Dr. Dange. Government, therefore, decided to constitute a
Medical Board for examining the respondent in order
to .decide whether leave on medical grounds should be
granted to him. Accordingly, the respondent appeared before
a Special Medical Board on July 22, 1950. The Medical Board,
however, could not come to a decision as to whether the
respondent should be granted leave on medical grounds for
four months. It recommended that the respondent should get
himself admitted in the Mayo Hospital, Nagpur. for
observation and investigation. In accordance with this
report, Government asked the respondent to get himself
admitted in the Mayo Hospital in time, so that the Board
could examine him on August 8, 1950. The respondent refused
to, go to the Mayo Hospital and pressed that he should be
allowed to go to Calcutta to receive medical treatment from
experts. It appears that on July 26, 1950, the respondent
received a telegram from Raipur stating that his daughter
was dangerously ill there. He, therefore, made another
application on the same day requesting for ten days’ leave
to enable him to go to Raipur and see his ailing daughter.
On July 31, 1950, Government granted the respondent’s
request. Accordingly, the respondent went to Raipur. From
Raipur he renewed his application for four months’ leave on
Medical grounds and produced certificates from Dr. Bhalerao
and Dr. Kashyap. That led to a lengthy correspondence
between the respondent and the Government which shows that
Government insisted on his appearing before the Medical
Board and the respondent was not prepared to go to. Nagpur
because he alleged that he was seriously ill and could not
undertake a journey to Nagpur. Ultimately, on September 9,
1950, Government called upon the respondent to resume his
duties within three days from the receipt of the said letter
failing which he was told that he would be suspended and a
departmental enquiry would be started against him. On
October 4, 1950, the respondent wrote a lengthily reply
setting forth his contentions in detail. Since he did not
resume his duties, Government decided to suspend him and
start a departmental enquiry against him. Mr. S.N. Mehta,
I.C.S., was accordingly appointed to hold the. enquiry. On
November 29, 1950, Mr. Mehta wrote to the respondent that
Government had directed him to conduct the departmental
enquiry, and called upon the respondent to attend his office
on December 7, 1950, at 11.00 a.m. The respondent, however.
did not appear before him and wrote to Mr. Mehta that owing
to his illness, he was unable to appear before him. He again
pleaded that he was seriously ill.
On January 15, 1951, Mr. Mehta served the respondent
with a charge-sheet. Three charges were framed against him.
The first charge was that he had deliberately disobeyed the
orders of Government when he was asked to get himself
admitted in the Mayo
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Hospital for observation and investigation. The second
charge was that he had failed to report for duty even though
no leave was sanctioned to him by Government and he was
specifically ordered by Government to report for duty. The
third charge was that he had persistently disobeyed the
orders of Government and he had thereby shown himself unfit
to continue as a member of the State Civil Service. Material
allegations on which reliance was placed against the
respondent in support of these charges were also specified
under the respective charges.
The respondent was, however, not prepared to appear
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before Mr. Mehta and he raised several technical
contentions. Ultimately, he sent his written statement and
denied all the charges. His case appears to have been that
he had not deliberately disobeyed any of the orders issued
by Government. In regard to his getting admitted in the Mayo
Hospital, he seems to have taken the plea that when he was
allowed to go on casual leave to see his ailing daughter at
Raipur, it was clear that he could not have got himself
admitted in the Mayo Hospital so as to enable the Medical
Board to examine him on August 8, 1950. In respect of the
charge that he had persistently refused to obey the orders
of Government, his case was that he was dangerously ill and
that he genuinely apprehended that if he undertook a journey
to resume his duty, he might even collapse. He requested the
enquiry officer to allow him to appear by a lawyer whom he
would instruct to cross-examine the witnesses whom the
Government would examine against him. He also stated that he
wanted to give evidence of his own doctors who would depose
to his ailing condition at the relevant time.
It appears that Mr. Mehta wanted to accommodate the
respondent as much as he could and when he found that the
respondent was not appearing in person before him, he in
fact fixed a date for hearing at Raipur on September 21,
1951 where he happened to be camping. On that date, the
respondent appeared before Mr. Mehta and Mr. Mehta made a
note as to what transpired on that date. The note shows that
"the whole case was discussed with the respondent. His plea
was that he should be allowed to appear through a counsel,
but it was explained to him in detail that as far as the
case can be seen from Government side at present, it does
not involve the taking up oral evidence. He agreed that he
would not press for this facility. He would, however, like
to give a detailed answer to the charge-sheet. He also
undertook to appear in person regularly in future".
Thereafter, Mr. Mehta required the respondent to file his
detailed written statement. and in fact, the respondent did
file his detailed written statement containing the pleas to
which we have already referred. On November 8. 1951, Mr.
Mehta wrote to the respondent that he would be glad to hear
him in person in case he wished to make an oral statement on
November 20, 1951, and when the respondent did not
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appear on the said date, Mr. Mehta proceeded to examine the
documentary evidence showing the failure of the respondent
to comply with the orders issued by Government and made his
report on November 24, 1951. He found that the three charges
framed against the respondent were proved. In his report,
Mr. Mehta observed that "the conduct of the respondent and
the language used by him from time to time in his
communications .discloses an attitude of disobedience and
insubordination which no Government can tolerate from its
subordinate officers". We may incidentally observe that the
comment thus made by Mr. Mehta in regard to the
communications addressed by the respondent to him appears to
us to be fully justified but, in our opinion, this aspect of
the matter cannot have any material bearing on the question
with which we are concerned. The validity of the impugned
order must be judged objectively without considering the
impropriety of the language used by the respondent or the
reluctance shown by him to appear before Mr. Mehta.
In his report, Mr. Mehta has also observed that when the
respondent met him, he explained to him that the case did
not involve recording of any oral evidence as it was based
on documents only. Mr. Mehta adds that according to the
impression he got at that time, the respondent was satisfied
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that in the circumstances, the assistance of a counsel was
unnecessary. It is, however, plain from the several letters
written by the respondent to Mr. Mehta that he was insisting
upon an oral enquiry and that he wanted to examine his
doctors to show that he was so iII at the relevant time that
he could not have resumed his duties. On March 2, 1951, the
respondent wrote to Mr. Mehta stating, inter alia, that he
wished to put in the witness-box a few high-ranking
Government officers and the doctors whom he had consulted
about his illness. Earlier on January 20, 1951, he had
written to Mr. Mehta requesting him to conduct an oral
enquiry as laid down in paragraph 8(iv) G.B. Circular 13.
Similarly, on April 23, 1951, he again informed Mr. Mehta
that in his opinion the institution of the departmental
enquiry after suspending him was illegal and had caused him
grave injury, and he added that oral and documentary
evidence will be produced in defence.
It does appear that Mr. Mehta explained to the
respondent that so far as Government was concerned, it
rested its case merely on documents and did not think it
necessary to examine any witnesses, and thereupon the
respondent agreed that he need not have the facility of the
assistance of a lawyer. But it is clear from the remarks
made by Mr. Mehta in the order sheet on September 21, 1951,
and the observations made by him in his report that the only
point on which the respondent agreed with Mr. Mehta was that
he need not be allowed the assistance of the lawyer in the
departmental enquiry. We have carefully examined the record
in
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this case and we see no justification for assuming that the
respondent at any time gave up his demand for an oral
enquiry in the sense that he should be given permission to
cite his doctors in support of his pica that his failure to
resume his duties was due to his ill-health. The charge
against him was that he had deliberately disobeyed the
Government orders, and it is conceivable that this charge
could have been met by the respondent by showing that though
he disobeyed the orders, the disobedience was in no sense
deliberate because his doctors had advised him to lie in
bed; and thus considered, his desire to lead medical
evidence cannot be treated as a mere subterfuge to prolong
the enquiry. It is true that the respondent did not give a
list of his witnesses; but he had named his doctors in his
communications to Mr. Mehta, and in fact Mr. Mehta never
fixed any date for taking the evidence of the witnesses whom
the respondent wanted to examine. If Mr. Mehta had told the
respondent that he would take the evidence of has witnesses
on a specified date and the respondent had failed to appear
on the said date with his witnesses, it would have been an
entirely different matter. Therefore, the position is that
Mr. Mehta did net hold an oral enquiry and did not give an
opportunity to the respondent to examine his witnesses and
so, the question which arises for our decision is: does the
failure of Mr. Mehta to hold an oral enquiry amount to a
failure to give a reasonable opportunity to the respondent
within the meaning of Art. 311 ?
The requirements of Art. 311(2) have been considered by
this Court on several occasions. At the relevant time, Art.
311(2) provided that no person to whom Art. 311 applies
shall be dismissed or removed or reduced in rank until he
has been given a reasonable opportunity of showing cause
against the action proposed to be taken in regard t9 him. It
is common ground that the impugned order of compulsory
retirement attracts the provisions of Art. 311 (2). If it
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appears that the relevant statutory rule regulating the
departmental enquiry which was held against the respondent
made it obligatory on the enquiry officer to hold an oral
enquiry if the respondent so demanded. then there would be
no doubt that the failure of the enquiry officer to hold
such an oral enquiry would introduce a serious infirmity in
the enquiry and would plainly amount to the failure of the
appellant to give a reasonable opportunity to the
respondent. This position is not disputed by the learned
Attorney-General and is indeed well-settled. So, the narrow
question to which we must address ourselves is whether it
was obligatory on Mr. Mehta to hold, an oral enquiry and
give d reasonable opportunity to the respondent to lead oral
evidence and examine his doctors. We will assume for the
purpose of this appeal that in a given case, Government
would be justified in placing its case against the charge-
sheeted officer only on documents and may be under no
obligation to examine any witnesses,
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though we may incidentally Observe that even in such cases,
if the officer desires that the persons whose reports or
orders are being relied upon against him should be offered
for cross-examination, it may have to be considered whether
such an opportunity ought not to be given to the officer;
but that aspect of the matter we will not consider in the
present appeal. Therefore, even if it is assumed that
Government could dispense with the examination of witnesses
in support of the charges framed against the respondent,
does the relevant rule make it obligatory on the Enquiry
Officer to hold an oral enquiry and give the respondent a
chance to examine his witnesses or not?
This question falls to be considered on the construction
of rule 55 of the Civil Services (Classification, Control
and Appeal) Rules. This rule reads thus:-
"Without prejudice to the provisions
of the Public Servants Inquiries Act, 1850, no
order of dismissal, removal or reduction shall
be passed on a member of a service (other than
an order based on facts which have led to the
conviction in a Criminal Court or by a Court,
Martial) unless he has been informed in
writing of the grounds on which it is proposed
to take action, and. has been afforded an
adequate opportunity of defending himself. The
grounds on which it is proposed to take action
shall be reduced to the form of a definite
charge or charges, which shall be communicated
to the person charged together with a
statement of the allegations on which each.
charge is based and of any other circumstances
which it is proposed to take into
consideration in passing orders on the case.
He shall be required within a reasonable time,
to put in a written statement of his defence
and to state whether he desires to be heard in
person. If he so desires or if the authority
concerned so direct, an oral enquiry shall be
held. At that enquiry oral evidence shall be
heard as to such of the allegations as are not
admitted, and the person charged shall be
entitled to cross-examine the witnesses, to
give evidence in person and to have such
witnesses called. as he may wish, provided
that the officer conducting the enquiry may,
for special and sufficient reason to be
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recorded in writing. refuse to call a witness.
The proceedings shall contain a sufficient
record of the evidence and a statement of the
findings and the grounds thereof."
It appears that the Government of Madhya Pradesh had issued
a Circular explaining this Rule. The Circular contained Rule
8 which is relevant. It provides that "particular attention
is invited to the provisions regarding oral enquiry. In case
the person charged desires that an oral enquiry should be
held, the authority holding the departmental enquiry has no
option to refuse it". The High
143
Court seems to have based its conclusion substantially, if
not entirely, on this rule. We do not propose to adopt that
course. The rule may be no more than a circular issued by
Government and we do not propose to examine the question as
to whether it has the force of a statutory rule. Our
decision would, therefore, be based on the construction of
Rule 55 of the Civil Services Rules which admittedly applied
and which admittedly is a statutory rule.
The relevant clause in this Rule provides that the
officer charge-sheeted shall be required within a reasonable
time to put in a written statement of his defence and to
state whether he desires to be heard in person. This clause
has been complied with m the present proceedings. Mr. Mehta
gave notice to the respondent to appear before him in person
on the 20th November, 1951 and the respondent did net appear
on that date. It is the next clause on which the decision of
the present appeal depends. This clause lays down that if
he, that is to say the charge-sheeted officer, so
desires or if the authority concerned so directs, an oral
enquiry shall be held. In our opinion, it is plain that the.
requirement that an oral enquiry shall be held if the
authority concerned so directs. or if the charge-sheeted
officer so desires is mandatory. Indeed. this requirement is
plainly based upon considerations of natural justice and
fairplay. If the charge-sheeted officer wants to lead his
own evidence in support of his plea, it is obviously
essential that he should be given an opportunity to lead
such evidence. Therefore. we feel no hesitation in
holding .that once the respondent expressed his desire to
Mr. Mehta that he wanted to lead evidence in support of his
plea that his alleged disobedience of the Government orders
was not deliberate, it was obligatory on Mr. Mehta to have
fixed a date for recording such oral evidence and give due
intimation to the respondent in that behalf.
It is true that the oral enquiry which the enquiry
officer is bound to hold can well be regulated by him in his
discretion. If the charge-sheeted officer starts cross-
examining the departmental witnesses in an irrelevant
manner, such cross-examination can be checked and
controlled. If the officer desires to examine witnesses
whose evidence may appear to the enquiry officer to be
thoroughly irrelevant, the enquiry officer may refuse to
examine such witnesses; but in doing so, he will have to
record his special and sufficient reasons. In other words,
the right given to the charges heated officer to cross-
examine the departmental witnesses or examine his own
witnesses can be legitimately examined and controlled by the
enquiry officer; he would be justified in conducting the
enquiry in such a way that its proceedings are not allowed
to be unduly or deliberately prolonged. But, in our opinion
it would be impossible to accept the argument that if
the charge-sheeted officer wants to lead oral evidence, the
enquiry officer can say that having regard to the charges
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framed against the officer. he would not hold any oral
enquiry. In the present case, the witnesse.
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whom the respondent wanted-to examine; would undoubtedly
have given relevant evidence. If the doctors who treated the
respondent had come and told the enquiry officer that the
condition of the respondent was so bad that he could not
resume work, that undoubtedly would have been a relevant and
material fact to consider in deciding whether the charges
framed against the respondent were proved. Even if we
disapprove of the attitude adopted by the respondent in the
course of this enquiry and condemn him for using extravagant
words and making unreasonable contentions in his
communications to the enquiry officer, the fact still
remains that he wanted to examine his doctors, and though he
intimated to Mr. Mehta that he desired to examine his
doctors, Mr. Mehta failed to give him an opportunity to do
so. That, in our opinion, introduces a fatal infirmity in
the whole enquiry which means that the respondent has not
been given a reasonable opportunity to defend himself within
the meaning of Art. 311(2). On that view of the matter, it
is unnecessary to consider whether the High Court was right
in its other conclusions that the second notice served by
the appellant on the respondent was defective and that the
final order was also defective inasmuch as it did not appear
that the appellant had taken into account the representation
made by respondent.
It is not disputed by the learned Attorney-General that
if we hold that the enquiry conducted by Mr. Mehta
contravened the mandatory provision of r. 55, the decision
of the High Court could be sustained on that ground
alone.
In the result. the appeal fails and is dismissed with cost.
Appeal dismissed.
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