State of Bombay (Now Maharashtra) Vs.
Narul Latif Khan  INSC 41 (22 February 1965)
22/02/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) DAYAL, RAGHUBAR RAMASWAMI, V.
CITATION: 1966 AIR 269 1965 SCR (3) 135
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,
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
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 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
defend himself within the meeting of Art. 311 (2).
The appeal of the State Government had
therefore to be dismissed. [144 A, C] 136
CIVIL APPELLATE JURISDICTION: Civil Appeal
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
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,
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.
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 137 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 138 on casual
leave for two days, and on July 8, 1950 he renewed 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
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 139 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 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
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 140 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 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 141 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,
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 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, 142 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
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 framed against
the officer. he would not hold any oral enquiry. In the present case, the
144 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
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.