NAND KISHORE PRASAD versus STATE OF BIHAR AND ORS.

NAND KISHORE PRASAD

STATE OF BIHAR AND ORS.

April 19, 1978

[R. S. SARKARIA AND P. S. KAILASAM, JJ.]

Constitution of India, 1950-Art. 226-Interference by lligh f7ourts, only when an impugned order suffers fronl any error of law or of no Cf'idence.

The appellant Bench Clerk and one Trilok Prasad Sinha, Fines Clerk \Ve.re tried for various offences under sections 120B, 409, 466, 474 and 477 l.P.C. for embezzlement of sum of Rs. 1068/M being fines recovered by the Police and remitted to the Court through 1\ioney Orders. The Trial Magistrate discharged them. departmental enquiry was, thereafter, instituted against him and on the inquiry report submitted by the Sub Diviisonal Officer, Sasaram, the District Magistrate who was the authority competent to appoint and remove the appellant, held : "The conduct of Nand Kishore Prasad is higWy suspicious but for insufficient evidence proceedings against him has to be dropped." There-after, the Commissioner of Patna Division called upon the appellant to show cause why be should not be dismissed from service and after .perusing the reply submitted by the appellant reversed the order of the District 1\.fagistrate and directed removal of the appellant from service. An appeal inade to the Board of Revenue failed. The Writ Petitions filed in the Patna High Court, against the said orders were dismissed holding that since there was some evidence albeit not sufficient for conviction in crimi1,1al Court, it could not be quashed in proceedings under the Art. 226 of the Constitution.

Dismissing the appeal by certificate, the Court

HELD : 1. Two princi,ples as crystallised by judicial decision~: are to be borne in mind, while dealing with case of the present type. The first is that disciplinary proceedings before domestic tribunal are of quasi-judicial character. Therefore, the minimum requirement of the rules of natural justice is / that the tribunal should arrive at its conclusion on the basis of son:e evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspi:cion cannot be allowed to take the place of proof even in domestic inquiries. The second principle, which L<> corollary from the first, is that if the disciplinary inquiry has been conducted fairly without bias or predilection, in accordance with the relevant disciplinary rules and the Constitutional provisions, the order passed by such author_ity cannot be interfered with in proceedings under Article 226 of the Constitution, merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at criminal trial. [713 D-G]

Union of India v. H. C. Goel, A.LR. 1964 SC. 364 referred to.

2. (a) In the instant case :-It was not case of no evidence, but of evidence which was not adequate enough to carry conviction at criminal trial. The High Court was, therefore, right in holding that the impugned orders did not suffer from any error of law which may v.[1]arrant an interference in pro-ceedings under Art. 226 of the Constitution. [715 G]

(b) conjoint reading and analysis of the impugned orders of the Com-missioner and the Member, Board of Revenue would show that they purport to rest on these primary facts :

a. Fine amounting to Rs. 1.068/ -\:Vas realised by the Police and sent to the Court of the Magistrate, Sasaram, by money orders, where it was received on September 4, 1950.

b. When this fine was imposed, and the aforesaid money orders were received, the appellant (Nand Kishore Prasad) was the- Bench Clerk

of the Magistrate. The fine records were with him and it was he who used to issue distress warrants for realisation of outstanding fine. But after 4-9-1950 he did, not ta.ke further action for recovery or the fine in question, or for ensuring that the convicts suffered im-prisonmt;;nt in default of payment of fine inflicted on them by the Court.

c. "receipt" (money order coupon) has been produced· "indicating that the Petitioner (Nand Kishore Prasad) had received this amount".

d. "It is clear from the circumstances of the case that the money realised was not deposited .... I see no reason to interfere with the order of discharge" (passed by the Commissioner holding that the amount of Rs. 1,068/- had been embezzled between Nand Kishore Prasad,_ Bench Clerk, and Triloki :Prasad Sinha, Fines Clerk). [714 A-DJ

(c) While it is true that the impugned orders are unjustifiably brief it is not correct that they are totally bereft of reference to or discussion of evidence. There is in the impugned orders specific reference to the money order coupon which the Member of the Board of Revenue has termed as 'receipt'. Indeed the main-stay of the impugned orders is the circumstantial evidence furnished by the conduct of the appellant in not taking further action for the realisation of the fine. [714H, 715A]

(d) It is true that the impugned orders do not fully measure up to the devoutly desired standard viz. desirability of writing self-contained speaking order in disciplinary proceedings. Nevertheless, they do contain bald and general allusion to the primary facts and cryptic inference therefrom. As there was no specific reference to or discussion of the evidence, the High Court examined the record of the disciplinary tribunal not with view to make out or reconstruct new case, but only to see whether there was some evidence of the primary fact relied upon bv the domestic tribun2.J. in support of its conclusion. There is no impropriety in the course adopted by the High Court.

[715 A-Cl

Crvn. APPELLATE JURISDICTION: Civil Appeal No. 2313 (N) of 1968.

From the Judgment and Order dated 28th day of July 1966 of the Patna High Court in Misc. Judi. Case No. 1273 of 1974.

A. B. N. Sinha, S. K. Sinha and K. K. Sinha for the Appellant.

R. C. Prasad for the Respondent.

The Judgment of the Court was delivered by

SARKARIA, J. This is an appeal by certificate under Article 133 (1 )(a) and (b) of the Constitution from Judgment dated July 28, 1.966 of the P~tna High Court, dis~ss!ng the ~ppella~t's writ peti-tion under Article 226 of the Constitution, for 1mpugnmg an Order of his removal from Government service.

The facts are as follows :-

Tile appellant, Nand Kishore Prasad, was Qppointed as mmis-terial servant by the District Magistrate, Shahabad, in his office at Hl Arrah on June 16, 1930. He was confirmed in service in the year 1933.

In 1950, the appellant was transferred to Sasaram as Bench Clerk in the Court of Shri R. Singh, Judicial Magistrate. His normal duty was to aid and assist the Court by putting up cases for hearing and disposal.

In April J 952, he was transferred from Sasaram to Buxer as an Election Clerk. On September 16, 1954, the Sub·Divisional Officer, Sasaram, summoned the appellant and asked him to explain the out-standing fine of Case No. 886-Cl\04 T.R. of 1950 (The State v. Sarju Chauhe)' & Ors.), decided by Shri R. Singh, Magistrate, Sasi-ram, on April 26, 1950.

Three Money Order coupons, two for Rs· 5001- each and one for Rs. 681-, were sent by the Police Sub-Inspector 0! Kargahar to the Magistrate, Shri R. Singh. These amounts represented the fine re-covered from the persons who were convicted in the aforesaid case. The appellant was confronted with those Money Order con1pons which purported to bear the initials of the appellant, and ms asked to trace if the money bad been credited to the Government. The appellant inspected the records and found an entry in the Fine Register of the Court relating to the year 1951 which was to the effect, tha• an appeal arising out of the case, in question, had been allow,d and the fine remitted. The appellant brought that entry to the notice of the then Magistrate, Sbri M. P. Singh, and submitted written report to the Sub-Divisional Officer, stating that the initials on the Money Order coupons were not his and he had never received the amounts. The appellant furtl;er mentioned that he had discovered the aforesaid entry in the Fine Register.

At the relevant time, one Triloki Prasad Sinha wa!> the Fines Clerk in the Court at Sasaram and the entry, in question, in the Fine Register was in his hand-writing. Triloki Prasad Sir,ha admitted that this entry of remission was in his hand-writing, but alle:ged that he had made it on the basis of an extract of the order of the Appellate Court, transmitted to him by the appellant. The appellant denied that he had sent any such extract or information to the Fines Clerk and alleged that, according to the practice of the office, appellate judgments were transmitted to the Fines Clerk, in original, by all the Courts, regular1y.

On January 26, 1955, the appellant was suspended from service. On February 1, 1955, the Magistrate - in-charge of Fines, Sasaram, lodged First Information Report in the local Police Station for prosecution of Triloki Prasad Sinha and the appellant in respect of offences under Sections 120-B, 409, 466, 468, 474 and 477(A) of the Indian Penal Code. After investigation, the Police submitte-d charge-sheet in the Court of the Snb-Divisional Magistrate, Sasaram, against both Triloki Prasad Sinha and the appellant.

The Trial Magistrate, after making an inquiry under Chapter XVII of the Criminal Procedure Code, 1898, discharged both the accused persons, holding-(i) that there was nothing direct against Nand Kishore Prasad (appellant herein) to show trat he had sent

false or wrong extract to the Fines Clerk, "except ~he statements of co-accused e;;culpating himself which is of little worth", and (ii) that ''this accused cannot be connected with the receipt of the money", -i.e. the Money Orders in question.

On February 29, 1956, after his discharge by the Criminal Court, the appellam submitted his joining report to the Sub-Divisional Offi-cer, Buxcr, and prayed for permission to join Juty. No orders were passed on that application of the appellant, for couple of months. His suspension was continued and on July 31, 1956, Departmental foquiry was instituted against him on these charges :--

"(!) Dishonestly receiving Rs. 1,0681-being the fine money collected and sent by three M.Os. by the S.I. of Police, Kargahar, in respect of Criminal Case No. GR 886/TR 104 on 4-9-50 to the Court of Shri R. Singh, Judicial Magistrate, Sasaram, of whom he was the Bench Clerk.

(2) Issuing an incorrect extract of order of the Appel-late Court in Criminal Appeal No. 65 of 1950 to Sliri Triloki Prasad, the then Fine Clerk, and con-spiring with Shri Triloki Prasad and misappropriat-ing Rs. 1,0681- sent by the S.I. of Police, Kargahar on 4-9-50".

The inquiry was held by the Sub-Divisional Officer, Sasaram, who, after concluding it, submitted his report to the District Magistrate, Sasaram, who was the authority competent to appoint and remove iiie appellant from service.

The District Magistrate, ultimately, by his order, dated March 19, 1950, held: "The conduct of Shri Nand Kishore Prasad is highly sus-picious but for insufficient evidence proceeding against him has to be dropped". This order of the District Magistrate was communi-cated to the appellant as per Memo. No. 278, dated April 19, 1960 .

More than two months thereafter, Jetter, dated June 29, 1960, • was sent by the P.A. to the Commissioner of Patna Division, calling -._ . upon the appellant to show cause as to why he should not be dis-• missed from service. To this "show-cause" letter, the appellant sub-" mitted detailed reply, representing inter alia, that since the Magi.S-trate had found him not guilty, in the absence of fresh or further evi-dence showing that he had received the Money Orders, it would be violative of the elementary principles of natural justice, to punish him in the departmental proceedings by using portion only of the judg-ment of the Court of law. He extracted copiously from the judgment of the Magistrate to show that the charges against him were baseless. He reiterated that he had not received the amount of the Money Orders, and the initials on the Money Order coupons were not his.

The Commissioner reversed the order of the District Magistrate and directed removal of the appellant from service. Since good

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deal of argument before us centres around the legality of the Commis-sioner's order, dated October 8, 1960, it will be worthwhile to quote its material portion in extenso :

"Although from the evidence recorded against this Clerk it appears that there was no direct independent proof of embenlement by him, yet, in my opinion, there is strong suspicion against this clerk which has also been indicated sufficiently clearly by the then trying Court, Shri A. K. Sinha, Magistrate, 1st Class, Sasaram, while passing an order of discharge against him under Section 207 of Cr. P.C. in the Criminal case against him. The Court observed as follows:-"One may suspect him about it, if at all, Benca Clerk as he was, as the M.O. coupons purport to bear the like of his initials, but that is not enough for justi-fying criminal action against him. The case is not raised beyond stage of suspicion, if at all, as against this accused."

"It i,: evident that the amount of the fine was realised and sent to the Magistrate and it was received by Shri Nand Kishore Prasad. The fine records were with Shri Nand Kishore Prasad and Shri Triloki Pra-sad Sinha. and between them the amount of Rs. 1,0681-was embezzled. Shri Nand Kishorc Prasad appears to be throughly unreliable and the punishment in respect of his conduct should be deterrent in nature.

"Accordingly ........ I hereby order that Sbri Naild Kishore Prasad be discharged from service."

The appellant went in Revision to the Board of Revenue against the Commissioner's Order. The Board on August 31.. 1963, by short order, dismissed the Revision and affirmed the order passed by the Commissioner. This order of the Board of Revenue was com-municated to him on February 14, 1964.

On September 23, 1964, the appellant moved the High Courv---~ at Patna by writ petition under Article 226 of the Constitution, • challenging bis removal from service.

The learned Judges of the High Court while observing that the Commissioner's Order was somewhat cryptic and did not make specific and pointed reference to the evidence against the writ peti-tioner, noted that the Commissioner had drawn his conclusion about the guilt of the petitioner "from the fact that the petitioner was in actual charge of the fine record and it was his duty to take necessary action for realization of the fine until due payment thereof". The High Court further observed that "the mere fact that the Commis-sioner has not discussed in detail the circumstantial evidence againSt the petitioner, was not sufficient ground for setting aside the im-

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-pugned order, beeause this aspeet has been more elaborately referred to in the impugned order of the Board of Rewnuc. The High Court <Concluded that sinee there was some evidence-albeit not sufficient for conviction in criminal court-in support of the impugned order, it could not be quashed in proceedings under Article 226 of the Con-stitution. In the result, the writ petition was dismissed.

Learned counsel for the appellant contends that the impugned orders are. based merely on suspicions and conjectures, and not on any evidence whatever, and as such, are bad in law. It is ·,ubmitted that the High Court had over-stepped its writ jurisdiction inasmuch as it reappraised the evidence, and reconstructed the case as if it were itself domestic tribunal, reviewing in appeal the orders of the Com-missioner and the Board of Revenue. As againot I.his, counsel for the Respondent submits that the High Court had examined the evidence on the record of the domestic tri · bunal, not to make out ;i new case, but to satisfy itself that the im-pugned orders were based on circumstantial evidence which had been cryptically alluded to by the Commissioner and more elaborately men-tioned by the Member of the Board of Revenue in the impugried <Jrder. -

Before dealing with the contentions canvassed, we n~ay remind ourselves of the principles, in point, crystallised by judicial decisions. The first of these principles is that disciplin.ary proceedings before ,domestic tribunal are of quasi-judicial character; therefore, !Tie minimum requirement of the rules of natural justice is that the tribu-nal shculd arrive at its conclusion on the basis of some evidence, i.e. evidential material which with some degree cif difiniteness points to the guilt of the delinquent in respect of the charge against him. Sus-picion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by this Court in Union of lndia v. H. C. Guel('), "the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules."

The second principle, which is corollary from the first, is that if the disciplinary inquiry has been conducted fairly without bias or predilection, in accordance with the relevant disciplinary rules arid the Constitutional provisions, the order passed by such authority can-not be interfered with in proceedings under Article 226 of the Con-~titution, merely on the ground that it was based on evidence which would be imu/jicient for conviction of the delinquent on the same charge at criminal trial.

The contentions in the instant case resolve into the narrow issue : Whether the impugned orders do not rest on any evidence whatever, but merely on suspicions, conjectures and surmises.

(l .l.R. 1964 S.C. 364. ll-315SCI/78

conjoint reading and analysis of the impugned orders of the Commissioner and the Member, Board of Revenue would show that they purport to rest on these primary facts :-

(a) ThJt line amounting to Rs. 1,0681-was realised by the Police and sent to the Court of the Magistrate, Sasaram, by money orders, where it was received on S<;ptember 4, 19 50.

realised by the

(b) When this fine was imposed, and the aforesaid money orders were received, the appellant (Nand Kishore Praml) was the Bench Clerk of the Magistrate. The fine records were with Nand Kishore Prasad and it was he who nsed to issue distress warrants for realisa-tion of outstanding fine. But after 4-9-1950, fie did not take further action for recovery of the fine in question, or for ensuring that the convicts suftered imprisonment in default of payment of fine in-flicted on them by the Court.

(c) "receipt" (money order coupon) has been produced "indi-cating that the petitioner (Nand Kishore Prasad) has 1received thi& amount".

( d) "It is clear from the circumstances of the case that the money realistd was not deposited. I see no reason to interfere \\ith the order of discharge" (passed by the Commissioner holding that the amount of Rs. 1068/- had been embezzled between Narid Kishore Prasad, Bench Clerk, and Triloki Prasad Sinha, Fines Clerk). It will be noticed that the recovery of the tine and its remittance to the Court as per money order (as set out in (a) above) wa& never disputed by the appellant. He only disputed that the initial~ on the money order coupons purporting to be his, were not executed by him. His implied defence was that somebody who !rad received the amount of the money orders, had forged his (appellant's) initials on the Money Order Coupon. On this point, at the criminal trial of the appellant, handwriting expert was examined, who stated that no definite c.pinion could be given as to whether these initials were executed by Nand Kishore Prasad. The Magistrnte, therefore, gave the appellant benefit of doubt on this point. But the disciplinary Tribunals (i.e. the Commissioner and the Member, Board of Reve-nue) have, presumably on examining the disputed i'1i.tial5 on the . _,-Money Order Coupon (called "receipt" in the impugned order of the · Board) coupled with the circumstance (b), mentioned :1bove, un-G animously reached the finding that the amount of the aforesaid Money Order was received by Nand Kishore Prasad. From the appellant's conduct in not taking any action thereafter for realisation of the fine in question, they concluded that he did not do so because the fine had been realised and the amount had been embezzled by h'.m.

It was urged before us that since the impugned orders do not speci-fically refe.r to any evidence or discuss it, they should be taken to be based on no ~vid.ence, wh~tev~r.. While it is true that the impugned orders are unjustifiably bnef, 1t 1s not correct that they are totfilly bereft of all reference to or discussion of evidence. There is in the

impugned orders specific reference to the Money Order coupon which the Member of the Board of Revenue ha's termed as "recipt". Indeed, the main-slay of the impugned orders is the circumstantial evidence furnished by the conduct of the appellant, in not taking any further action for the realisation of the fine. The desirability of writing self-contained speaking order in dis-ciplinary proceeding cnlminating in an order of removal of the delin-quent from service, cannot be over-emphasised. It is true that the impngned orders do not fully measure npto this devontly desired stand-ard. Nevertheless, they do c.ontain bald and general allusion to the primary facts, and cryptic inference therefrom. There is no specific reference to or discussion of the evidence. The High Court, therefore, examined the record of the disciplinary tribunal, not with view to make out or reconstruct new case, but only to see whether there was some evidence of the primary facts relied upon by the domestic tribunal in support of its conclusion. We do not see any impropriety in the course adopted by the High Court.

On examination of the Tribunal's record, the High Court found that there was oral and documentary evidence before the disciplinary tribunal; that at all times material to the imposition, realisation and receipt of the fine amounts in question, all the fine records in the Court of the Magistrate, Sasaram, used to remain with the Bench Clerk, i.e., the rrppellant. The Inquiry Officer had examined three witnesses, namely : Triloki Prasad Sinha, RanK Bahaclur Singh and Kalka Prasad. The evidence of Triloki Prasad Sinha was certainly of an accomplice character, but the evidence of Rang Bahadur Singh, who was the Fines Clerk befote Triloki Prasa<l Sinha, and of the Mea<l Clerk Kalka Prasad, did not suffer from such ilaw. From their evidence, it was clear that in actual practice all the fine records were being maintained by the Bench Clerk, and it wa' he who used to take all necessary steps, including the preparation and issue of distress warrants for realisation of outstanding fine. The Fines clerk made entries in the Fines Register in accordance with the intimation sent by the Bench Clerk. This practice continued till March 1951, when Mr. Gorden, the then District Magistrale clirecteJ that all fine records must be made over to the Fines Clerk by !\Jay 14, 1951. The fine amounts in question, were evidently recovered in cxeculion of distress-warrant, issued by the Magistrate.

'-,,. -•

In view of what has been said above, it is dear that this was not case of no evidence, but of evidence which was not adequate enough to carry co11v:ction at criminal trial. The High Court was, therefore, right in holdint! that the impugned orders did not suffer from any error of law which may warrant an interference in proceedings under Article 226 of the Constitution.

In the 1esu1t, the appeal meets with failure and is dismissed with-out any order as to costs.

_ .....

ppeol dismissed.