STATE OF PUNJAB versus DEWAN CHUNI LAL

STATE OF PUNJAB

DEWAN CHUNI LAL

February 16, 19'70

[J. M. SHELAT AND G. K. MITTER, J1.J

Constitution of India, Art. 311-0pportunity to show cause "llflinst dismiss•·l-Departmental enquiry is vitiated if officer concerned Is not given reasonob/e opportunizy of conducting his defence.

Punjab Police Ru/es-Officer charged with inefjicie11ey ·within meaning of R. 16. 25(2)-Adverse reports relating to 1941 and 1942 not relevant when officer allowed to cross efficiency bar in 1944.

The respondent was Sub-l!jSpector of Police and had served as such in various places which are no,,V in Pakistan before being posteq to Gurgaon in 1948. His confi<lential service reports upto 1940 were satis-factory. In 1941 and 1942 he got bad reports. However he was allowed to cross the efficiency bar in 1944. The reports relating to 1945 and 1946 were again adverse.. In 1948 the report charged him with having taken bribe in particular case, but the charge was on enquiry found to be false. On October 12, 1949 he was served with charge sheet setting forth extracts from his confidential character roll imputing inefficiency and lack of probity while in service from 1941 to 1948. He was asked to answer to the prima facie chal'ge of inefficiency as envisaged in para-graph 16.25(2) of the Punjab Police Rules. departmental enquiry was held and the enquiry officer in 1950 recommended his dismissal. After further show cause notice the respondent was dismissed from seryice. He thereupon filed suit in which he challenged his dismissal as wrongful on the gj'ounds inter alia that (i) Reports relating to the years 1941 & 1942 should not have been taken into consideration against him; (ii) that the enquiry oljicer did not allow hiin to examine in defence the :officers who - had written adverse reports against him and other witnesses who could have thrown light on these reports. The trial court decreed the suit and the High Court also held in the appellant's favour mainly on the ground that Art. 311 of the Constitution had not been complied with. In appeal to this Court by the State of Punjab.

HELD: (i) Reports earlier than 1944 should not have been"<:onsider-ed at all inasmuch as the respondent was allowed to cross the efficiency bar in that year. It was unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports .for 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. Moreover there was no specific complaint in either of the two .years and at best there was only room for suspicion re-garding his behaviour. [699 HJ

(ii) On the facts of this case it was impossible to hold that the respon-dent had been given reasonable opportunity of conducting . his defence before the enquiry officer. It was clear that if the enquiry officer had summoried at least those witnesses who were available and who could have thrown some light on the reports made ag.ainst the respondent the report might will have been different. Refusal of the right to examine witness~ who had made general remarks against the respondent's.character and were available for ~xamination. at the ,enq~~ amoun~ to denial of reasonable opportunity of showmg cause agamst tlie action proposed. Although the case was governed by Art. 3tl as it stood prior to its

a!"endment in 1963 the, respondent could not be deprived of an effective nght to make representation against the aCtion of dismissal [70 I F-O· 703 C-D] . '

In this view the appeal by the State of Punjab must fail.

Sadananda Mohapatra v. State, A.I.R. 1967 Orissa 49 and State of lammu & Kashmir v. Bakshi Ghu/am Mohammed [1966] Supp S C.R 401, distinguished. ' · · •

State o/ Orissa v. ,Sailabehari, A,l.R. 1963< Orissa 73, referred to.

' CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2348 of 1966.

Appeal from the judgment and decree dated September 6, 1962, of the Poojab High Court in Regular First Appeal No. 53 of 1956.

V. C. Maha;an, for the appellant.

N. S. Bindra and B. Datta, for the respondent.

The Judgment of_ the Court was delivered by

Mitter, J. By this ~ppeal the State of Punjab challenges the judgment and order of the Punjab High Court upholding the decree of the Subordinate Judge, Gurgaon declaring that the dismissal of the respondent from service was illegal and inopera-tive. The respondent, Sub Inspector of Police was . called upon to answer charge framed on October 12, 1949 setting forth extracts from his confidential character roll showing his inefficiency and lack of probity while in service from 1941 to 1948 and to submit his answer to the prima facie charge .of in-efficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules.

The respondent had joined the police service and had served as Sub Inspector in various places which are now in Pakistan before he was posted to Gurgaon in the year 1948. It appears that the view taken of his conduct and reputation by his supetior officers, over the years was not consistent. In some years he got , what is known as 'B' certificate and in others an 'A' certificate. According to rule 13.17 of the Punjab Police Rules, Superinten-G dents of Police had to ,prepare personally and submit annually to the Deputy Inspector-General of Police confidential reports in the form prescribed on the working of all Assistant Sub Inspectors and Sub Inspectors serving under them. The reports were to be of two kinds 'A' and 'B' and to be marked as such. An 'A' report was for recommending tl!at incremental promotions should not be withhe_ld while 'B' report was to contain recommenda-H ti~n, for reasons to be fully stated, that incremental promotions should be withhel,d. The rule further shows that the purport of all 'B' reports was to be formally communicated to the officer

[1970] 3 S.C.R.

concerned and his written acknowledgment to be taken. It also prescribed tbat the submission of two successive 'B' reports regard-ing an officer would result, automatically in the institution of departmental proceedings against him witb view to stoppage of increment.

The punishments which could be awarded d~par.tmen~ally are set out in rule 16.1 and under rule 16.2 ( 1) dismtssal 1s to be awarded only for the gravest acts of miscond11ct or as the cumu-lative effect of continued misconduct proving in;:orrigibility and complete unfitness for police service. Rule J 6.24 sets out the procedure to be followed in departmental enquiries. The sum and substance of rule 16.24 is that in case the police officer did not admit the misconduct "the officer conducting the enquiry shall pro~eed to record such evidence, oral and documentary, in proof of the accusation as is available and necessary, to support the charge. Whenever possible, witnesses shall be examined direct, and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The officer con-ducting the enquiry is empowered, however, 'to bring on to the record the statement of any witness whose presence cannot, in the opinion of such officer, be pro-cured without undue delay and expense or inconveni-ence, if he considers such statement necessary, and provided that it has been recorded and attested by police officer superior in rank to the accused officer or by tnagistrate, and is signed by the person making it."

Further the accused officer was required to state the defence wit-nesses whom he wish~ to call together with a. summary of the facts as to which they would testify. The enquiring officer was empowered to refuse to hear any witnesses whose evidence he considered would be irrelevant or unnecessary in regard to the specific charge framed.

Under rule 16.25 ( 1) police officer called upon to answer ::1 ch~rg: of misconduct must be given every opportunity of prov-mg his mnocenc~. Under sub-rule (2) of this_!!!le, charges need n~t be framed m relation only to specific incident or act of niis~o~duct and :when reports r~eived against an officer or prehmtnary enqmry show that his general behaviour has been such as to be unfitting his position or that he has failed to reach or maintain reasonable standard of efficiency he may and should be charged accordingly, and finding of guilty on such

charge would be valid ground for the jnfilction .of any al!th~ departmental punishment which might be considered suitable m the circumstances of the case.

The confidential reports extracts whereof were contained. in the charge sheet make it clear that the respondent was bemg accused of laziness and ineffectiveness and as having doubtfµl reputation as to hi~_honesty. Excepting for the year 1948 wherein specific instance of corruption was charged against him the other reports only contained generally adverse remarks. For instance the remarks against him for the year 1941 were to the effect that he was "lazy and ineffective and that he had been warned for dishonesty, laziness and lack of control." In fl!e year 1942 wnen he was posted at Dera Gazi Khan his annual confidential report showed that although there were no definite complaints he had not shown any outstanding ability or energy.' The Superintendent of Police was not certain about his honesty but had no special complaints against him. The respondent was not allowed to cross the efficiency bar in that year in view of his past reports.

It is the common case of the parties that the respondent was allowed to cross the efficiency bar in 1944. In 1945 he was transferred to Montgomary and got 'B' report and his honesty was characterised as doubtful. He get another warning in that year. In 1946 the Superintendent of Police remarked that he was failure as Station House Officer and was slow to carry out orders and had no grip on his staff. T)le Deputy Inspector General of Police, Multan Range, summed up his 16 years' service with the note :

"From all accounts he is one of the worst Sub Inspectors in the Range and the department will be well rid of him, if action under r. 16.25 (2) can be successfully taken against him. Action under r. 16.25 cannot succeed at present but his past record is such that any further complaint should warrant his dis-missal."

In the. confidential reports of the year 1946, the Superintendent of Police, Muzaffargarh, stated that he was not honest and was very poor on parade. The Deputy Inspector General Multan R•nge gave him third warning. The Superintendent ~f Police, Muzaffargarh, ho:vever remarked that although his previous r:cord was unsatisfactory he appeared to be trying to-mend himself. In the year l 948 he-get=a 'C' report aud the Superinten-dent of Police described him as "thoroughly corrupt". The S.P. further remarked that

"Thi~ o~cer fell to unh~d of depths of moral degradal!On m corrupt .practices while posted to City

· Rewari inasmuch as he changed the opium recovered by him earlier with Rasaunt for Rs. 1,000/- bribe and then made over the opium for sale in the black market. He was known to have mixed up with bad characters, gamblers and Ris!lawatdalals."

According to the charge sheet the attested copies of these reports were to be used as evidence against him,

In regard to the year 1948 and the charge above mentioned it is enough to say that an enquiry was held against him and he was held entitled to an honourable acquittal.

The respondent pleaded not guilty to the charge and filed list of 63 witnesses whom he sought to examine in his defence. He also gave summary of the facts about which each of the witnesses was to depose. The enquiry officer allowed him to examine 21 witnesses in defence. No witness was examined on behalf of the department. On 25th May 1950 Bishambar Das, Superintendent of Police made report that the char_ge had been fully brought home to the respondent and it was suggested that he should be dismissed. The Deputy Inspector General asked him to show cause why he should not be dismissed from service. After receipt of written representation made by the respondent and recording his statement the Deputy lnsp~ctor General passed an order dismissing the respondent from service.

The respondent then filed his suit in the court of the Sub-ordinate Judge, Gurgaon, wherein his main complaint was that the enquiring officer did not record any evidence in support of the charge nor were the persons making the reports examined direct and in his presence with opportunity m him to ~ross­examine the persons who had made those reports : he also averred that good reports earned by him during his long period of service had not been taken into account. He also pleaded that he had been allowed to cross the efficiency bar in December 1944 and had been given selection grade in 1945.

It was urged before us that the crossing of the efficiency bar must be regarded as giving him clean bill up to that date and in view of this the reports of 1941 and 1942 should not have been taken into consideration against him.

As regards the reports for tji.e years 1945 and 1946 the res-pondent's complaint was· that the Superintendent of P01ice, Montgomary, was for certain communal reasons biased against him. As regards the reports for the period May 27, I 946 to 30th June 1946 and the rest of the year the same had been made by Shamsheer Singh and Sadat Ali, Superintendents of Police of

Muzaffargarh. Shamsheer Singh had given him no adverse remark. and had left the column of honesty ip the report "blank". Sadat. Ali who was biased against the respondent got the word "no'" typed opposite the column of hon_esty. The report for the year 1948 was based mainly on the opium case and as he hnd been cleared of the charge in respect of that case, there was no founda-B tion for. the report for that year. Further the order of dismissal was in violation of r. 16.2 as this punishment was to be awarded. for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete un-fitness for police service which facts did not exist in his 'ase. further complaint was made that the enquiry officer did not care to sUlllmon A. L. Chopra, the Rehabilitation Inspector and Captain Chuni Lal, Ex-military man although they had been allowed t0> be examined previously. The deposition of Ram Chander, Assistant Surgeon, defence witness was not typed out and made part of the record although his deposition was noted by the steno-typist in the note book. The order of dismissal was passed by the Deputy Inspector General without considering this evid-D ence. Besides the above, the evidence of well placed officers like Deputy Commissioners, Superintendents of Police, Sub Divisional Magistrates and others who had testified to the respondent's effi-ciency, honesty and reliability were totally ignored.

The Subordinate Judge held that the charge framed against the respondent was vague and indefinite and the enquiry was. unfair and inadequate because some of the authors of the reports adverse to the respondent, though available, were not produced to enable the rHpondent to cross-examine them. that oral and. documentary evidence sought by the respondent was withheld and. as such no reasonable opportunity of defence was afforded to him. In the result he held that the requirements of Art. 311 of the Constitution had been violated and the order of dismissal was inoperative.

The High Court did not agree that the charge was vague but focussed its attention mainly on the question as to whether tliere· had been substantial compliance with the requirements of Art. 311 and whether the enquiry conformed to the principles of fairplay and natural justice. Considering the Service Rules already mentioned the High Court observed that there was no dispute that reports till J 940 were generally favourable to the plaintiff.

In our view reports earlier than 1944 should not have been considered at all inasmuch as he was allowed to cross the effi-H ciency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could

have overlooked the same and recommended the case of the offi-cer as one fit for crossing the efficiency bar in 1944. I! will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regarding his j:>ehaviour.

It further appears from the judgment of the High Court ba.sed mainly on the lengthy finding of the Superintendent of Polle~, Bishambar Das dated 25th May 1950 that from 1942 to Apnl 1945 the respondent got 'A' class r7ports. though ~~ .super!or offi-.·cers were not certain as regards his honesty. His mtegnty was considered to be doubtful in the succeeding reports up to 3 lSt December 1946. As regards the first half of 194 7 the Superin-tendent of Police had noted that he was not in position to make any remark about his honesty as he ltad not seen the respondent's work at any police station. The Deputy Commissioner however remarked that his work was quite sati!factory and he was honest. For the remaining part of 1947 he received an 'A' report from the District Superintendent of Police who also stated that the respondent seemed to be honest and competent

There can be no doubt that the 19-48 report was very damai:-ing one and if the allegations contained therein had any sub-stratum of truth the respondent could be dismissed from service on the strength of the charges based on those allegations alone. But, as already noted, the respondent was cleared of this charge.

The High Court opined that the enquiry officer, Bishambar Das, should not have neglected to summon five officers who made reports about the respondent and were available for examination at the enquiry. They were Chunilal Malhotra, Choudhry Roshan Lal, Deputy Commissioner, Shri Ismail. Shri. Holiday and Shri Sant Prakash Singh• According to the High Court the defence of the respondent in the enquiry being that the reports against him were based upon no sufficient data and/ or were made partly because of the poisoning of the mind of the District Super-intendent of Police by the Deputy Superintendent of Police on communal considerations the only way the respondent could 'have substantiated his defence version would be by putting questions to the reporting officers if made available during the enquiry. One of the above officers Shamsher Singh was actually examined as the respondent's witness in the sui\ and his evidence showed that he had left the column for honesty in the report for 1946• blank as be had not seen the respondent at his work. This evidence wen. to show that if lie had been examined by the enquiry officer portion of the report taken in consideration against the respon-dent would have been found to be without substance. Another ufficer. Chunilal Malhotra though not examined before the enquiry

Olicer was· called in defence in the suit. All that he could say was that he bad received complamts .against ~ l'IS~t but he did not remember whether they were .oral or m wnting. 'I1le High Court justifiably col1UDC]lted th.at there was no suffici~t reason for the ehquiry officer refusmg to summon Chunilal Malhotra. On an overall consideration of the facts, the High Court took the view that :

"The approach of the enquiry officer was such that whatever be the testimony of other witnesses, it could not undo the efh>cg of the reports-made by the superior officers about the . plaintiff."

In other words the enquiry officer shut his mind to the testimony afforded by large number of witnesses including Deputy Com-missioner, Under Secretary, two Superinteudents of Police, few Magistrates and some Deputy Superintendents of Police who had given evidence about the respondent's reputation and work. ·

Further the High ~ourt took the view that thc:i remarks of the · Deputy lnspector Ge11-eral of Police against the res.pendent in the ~ 1948 that he was not worth being retained m service had influenced the entire· approach of the ·enquiry officer who was subordinate to the Deputy Inspector General of Police. The Deputy Superintendent of Police Lekhraj examined. at the hearing of the suit by the respondent and te whom another enquiry against I the respondent had been entrusted earlier by Bishambar Das, the inquiry officer, told the court that when he (Lekhraj) exonerated the respondent in the other enquiry, Bishambar Das had sent for him and told him that the hi~er authorities wanted to take serious action to the extent of dismissal of the respondent.

In our view the High Court arrived at the correct conclusion r and on the facts of this case it is impossible to hold that the res-pondent ·had been given reasonable opportunity of conducting hi! defence before the enquiry officer. From what we have stated it is clear that if the e11<J!liry officer had sunimoned at least those witnesses who were available and who could have thrown some light on the reports made against the flllpondent the report might well have been d.ilferent. We cannot also IOle sight of the fact that charges based on the reportl-·fOr the yea.rs 1941 and 1942 should not have been levelled apinst the re8pondent.

Learned counsel for the appellant relied on two decisions of the Ori&sa High Court in support of his cootention that it was not necessary to examine the authors of the confidential reports against ff the respondent. In Sadananda Mohapatra v. Stat~([1]) tk court considered the question as to whether reasonable ~ty had

an fact been given to the petitioner before the punishing authority .had made use of the adverse remarks in the confidential character Toll. According to the High Court the petitioner in his examina-·tion to the second show cause notice had referred to the good ·services that he had rendered to the department. The High Court 'Observed that the fact that the petitioner had done good wodt led the punishing authority to impose lesser punishment and thus the confidential roll h_ad h~lped the petitioner. It also appears •from the judgment that the punishing authority in that case had -during the personal hearing discussed the confidential character with the petitioner and accordingly the High Court was of opinion that even though the adverse remarks in the petitioner's confiden-·tial character roll were not included in the second show cause notice inasmuch as the same had been discussed at the persoruil hearing it could not be said that no reasonable opportunity had been given to the petitioner.

In our view the facts in this case are entirely different. The ·respondent before us wanted an opportunity by examining the -witnesses mentioned by him to explain away the circumstanees which had led to the making of the adver_se remarks and he was given no such chance.

The second authority relied on for the appellant was State of iOrissa v. Sailabehari('). In this case the entry in the diary of Deputy Collector went to show that the Special Assistant Agent, I i.e., the respondent, had no reputation for honesty. The diary mentioned the source of information on which the remarks were ·based and although none of the informants figured as· wit!lesses in th11 departmental enquiry the touring officer was examined as witness and his tour diary proved at the inquiry and the res--pondent had been iriven an opportunity to cross-examine him. On those facts the High Court of Orissa, after discussin1t this -position, took the view that although insufficient for the estab-lishment of criminal charge the position was different in 'the case of departmental enquiries where punishment could be based merely on general reputation for corrupt conduct.

In our view there was no flaw in the enquiry which the Orissa High Court was called upon to examine in that case and the above dictum of the High Court was not really called for.

Learned counsel also wanted to rely on decision of this Court in State of Jammu and Kci;hmir v. Bakshi Ghu/am Mohammed(') where the Court was dealing with the proceedings -0f Commission of Inquiry under the Commission of Inquiry Act.

(2) (1966] SUJJp. S.C.R. 401.

Section 10 of that Act gave the delinquent right to be heard but only .restricted right of cross-examina.tion, i.e .. it was confined only to the witnesses called to depose against the person demand-ing tile right. It was further observed that as "the Act did not contemplate right of hearing to include right to cross-examine" "it will be natural to think that the statute did not intend that in other c1!5es party appearing before he Commission should have any~ further right of cross-examination". On the facts befoie it the Court came to the conclusion that no case had been made by Bafshi Ghulam Mohammad tl>at rules of natural justice required that he should have right to cross-examine all the persons who had sworn affidavits supporting the allegations made against him.

c. In our opinion the above observation regarding the limit of the right to cross-examine dissociated from the context in which it was made cannot help the appellant. Although the case _ is governed by Art. 311 as it stood prioi to its amendment in 1963 the respondent could not be deprived of an effective right to make representation against t~- action of dismissal. In our opinion, refusal of the right to examine witnesses who had made general remarks against his character and were available for examination at the inquiry amounted to denial of reasonable opoprtunity of showing cause against the action.

In the result we hold that the High Court came to the correct conclusion and the appeal should be dismissed with costs.

Appeal dismissed.