State of Punjab Vs. Dewan Chuni Lal
 INSC 23 (16 February 1970)
16/02/1970 MITTER, G.K.
CITATION: 1970 AIR 2086 1970 SCR (3) 694 1970
SCC (1) 479
RF 1982 SC 793 (5)
Constitution of India, Art. 311--Opportunity to show cause, against dismissal--Departmental enquiry is vitiated if officer
concerned is not given reasonable opportunity of conducting his defence.
Punjab Police Rules--Officer charged with
inefficiency 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 a Sub-Inspector of Police
and had served as such in various places which are now in Pakistan before being
posted to Gurgaon in 1948. His confidential 'service reports upto 1940 were
satisfactory. 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 a
particular case, but the charge was on enquiry-found to be false. On October
12, 1949 he was served with a 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 charge of
inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules.
A departmental enquiry was held and the
enquiry officer in 1950 recommended his dismissal. After a further show cause
notice the respondent was dismissed from service. He thereupon filed a suit in
which he challenged his dismissal as wrongful on the grounds inter alia that
(i) Reports relating to the years 1941 & 1942 should not have been taken into
consideration against him; (ii) that the enquiry officer did not allow him 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 considered 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 regarding
his behaviour. [699 H] (ii) On the facts of this case it was impossible to hold
that the respondent had been given reasonable opportunity of conducting his
defence before the enquiry officer. It was clear that if the enquiry officer
had summoned at least those witnesses who were available and who could have
thrown some light on the reports made against the,respondent the report might
will have been different.
Refusal of the right to examine witnesses who
had made general rem-arks against the respondent's character and were available
for examination at the enquiry amounted to denial of a reasonable opportunity
of showing cause against the action proposed. Although the case was governed by
Art. 311 as it stood prior to its 695 amendment in 1963 the respondent could not
be deprived of an effective right to make representation against the action of
dismissal. [701 F-G; 703 C-D] In this view the appeal by the State of Punjab
Sadananda Mohapatra v. State, A.I.R. 1967
Orissa 49 and State of Jammu & Kashmir v. Bakshi Ghulam Mohammed, 
Supp. S.C.R. 401, distinguished.
State of 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 Punjab High Court in Regular First Appeal No.
53 of 1956.
V. C. Mahajan, for the appellant.
N. S. Bindra and B. Datta, for the
The Judgment of the Court was delivered by
Mitter, J. By this appeal 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
inoperative. The respondent, a Sub Inspector of Police was called upon to
answer a 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 inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules.
The respondent had joined the police service
and had served as a 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 superior officers, over the years was not consistent.
In some years he got what is known as a 'B'
certificate and in others an 'A' certificate. According to rule 13.17 of the
Punjab Police Rules, Superintendents 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 that incremental
promotions should not be withheld while a 'B' report was to contain a
recommendation for reasons to be fully stated, that incremental promotions
should be withheld. The rule further shows that the purport of all 'B' reports
was to be formally communicated to the officer 696 concerned and his written
acknowledgment to, be taken. It also prescribed that the submission of two
successive 'B' reports regarding an officer would result, automatically in the
institution of departmental proceedings against him with a view to stoppage of
The punishments which could be awarded
departmentally are set out in rule 16.1 and under. rule 16.2(1) dismissal is
to, be awarded only for the gravest acts of misconduct or as the cumulative
effect of continued misconduct proving incorrigibility and complete unfitness
for police service.
Rule ) 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 proceed 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 conducting 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 procured without
undue delay and expense or inconvenience, if he considers such statement
necessary, and provided that it has been recorded and attested by a police officer
superior in rank to the accused officer or by a magistrate, and is signed by
the person making Further the accused officer was required to state the defence
witnesses whom he wished 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) a police officer called
upon to answer a charge of misconduct must be given every opportunity of
proving his innocence. Under sub-rule (2) of this rule, charges need not be
framed in relation only to a specific incident or act of misconduct and when
reports received. against an officer or a preliminary enquiry show that his
general behaviour has been such as to be unfitting his position or that he has
failed to reach or maintain a reasonable standard of efficiency he may and
should be charged accordingly, and a finding of guilty on such a 697 charge
would be valid ground for the infliction of any authorised departmental
punishment which might be considered suitable in the circumstances of the case.
The confidential reports extracts, whereof
were contained in the charge sheet make it clear that the respondent was being
accused of laziness and ineffectiveness and as having a doubtful reputation as
to his honesty.
Excepting for the year 1948 wherein a
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
the year 1942 When 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 hi& 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
dot a 'B' report and his honesty was characterised as doubtful. He got another
warning in that year. In 1946 the Superintendent of Police remarked that he was
a failure as a Station House Officer and was slow to carry out orders and had
no grip on his staff. I The 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 dismissal." 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
Range gave him a third warning.
The Superintendent of Police, Muzaffargarb,
however remarked that although his previous record was unsatisfactory he
appeared to be trying to mend himself. In the year 1948 he got a 'C' report and
the Superintendent of Police described him as "thoroughly corrupt"
The S.P. further remarked that "This officer fell to unheard of depths of
moral degradation in corrupt practices while posted to City 698 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 Rishawatdalals." 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 ;hat 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 a list of 63 witnesses whom he sought to examine in his
defence. He also gave a 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 a report that the charge had been fully
brought home to the respondent and it was suggested that he should be
The Deputy Inspector General asked him to
show cause why he should not be dismissed from service. After receipt of a
written representation made by the respondent and recording his statement the
Deputy Inspector General passed an order dismissing the respondent from service.
The respondent then filed his suit in the
court of the Subordinate 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 to him to cross examine 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 a selection grade
It was urged before us that the crossing of
the efficiency bar must be regarded as giving him a 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 the years 1945 and
1946 the respondent's complaint was that the Superintendent of Police.
Montgomary, was for certain communal reasons biased against him. As regards the
reports for the period May 27, 1946 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 699 Muzaffargarh. Shamsheer Singh had given him no adverse remark and
had left the column of honesty in the report "blank". Sadat Ali who
was biased against the respondent got the word "no" typed opposite
the column of honesty. The report for the year 1948 was based mainly on the
opium case and as he had been cleared of the charge in respect of that case,
there was no foundation 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 unfitness for police service which facts did not
exist in his case. A further complaint was made that the enquiry officer did
not care to summon A. L. Chopra, the Rehabilitation Inspector and Captain Chuni
Lal, Ex-military man although they had been allowed to be examined previously.
The deposition of Ram Chander, Assistant Surgeon, a defence witness was not
typed out and made a part of the record although his deposition was noted by
the stenotypist in the note book.
The order of dismissal was passed by the
Deputy Inspector General without considering this evidence. 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 efficiency, 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 avail-able, were not produced to enable the respondent 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 there
had been a 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
1940 were generally favourable to the plaintiff.
In our view reports earlier than 1942 should
not have been considered at all inasmuch as he was allowed to cross the
efficiency 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 700 have overlooked the same
and recommended the case of the officer as one fit for crossing the efficiency
bar in 1944.
It 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 behaviour.
It further appears from the judgment of the
High Court based mainly on the lengthy finding of the, Superintendent of
Police, Bishambar Das dated 25th May 1950 that from 1942 to April 1945 the
respondent got 'A' class reports though his superior officers were not certain
as regards his honesty. His integrity was, considered to be doubtful in the succeeding
reports up to 31st December 1946. As regards the first half of 1947 the
Superintendent of Police had noted that he was not in a position to make any
remark about his honesty as he had not seen the respondent s work at any police
station. The Deputy Commissioner however remarked that his work was quite
satisfactory, 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 1948 report
was a very damaging one and if the allegations contained therein had any
substratum 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 Superintendent 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 suit and his evidence showed that he had left the column for honesty in the
report for 1946 blank as he had not seen the respondent at his work. This
evidence went to show that if he had been examined by the enquiry officer a
portion of the report taken in consideration against the respondent would have
been found to be without substance. Another officer.
Chunilal Malhotra though not examined before
the enquiry 701 officer was called in defence in the suit. All that he could
say., was that he had received complaints against the respondent but he did not
remember whether they were oral or in writing. The High Court justifiably
commented that there was no sufficient reason for the enquiry officer refusing
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 effect
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 a
large number of witnesses including a Deputy commissioner, Under Secretary, two
Superintendents of Police, a few Magistrates and some Deputy Superintendents of
Police who had given evidence about the respondent's reputation and work.
Further the High Court took the view that the
remarks of the Deputy inspector General of Police against the respondent in the
year 1948 that he was not worth being retained in service had influenced the
entire approach of the enquiry officer who was a 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 to whom another
enquiry against the respondent had been entrusted earlier by Bishambar has 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 higher 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 and on the facts of this case it is impossible to hold that
the respondent had been given reasonable opportunity of conducting his defence
before the enquiry officer. From what we have stated it is clear that if the
enquiry officer had summoned at least those witnesses who Were available and
who could have thrown some light on the reports made against the respondent the
report might well have been different. We cannot also lose sight of the fact
that charge based on the reports for the years 1941 and 1942 should not have
been levelled against the respondent.
Learned-counsel for the appellant relied on
two decisions of the Orissa High Court in support of his contention that it was
not necessary to examine the authors of the confidential reports against I the
respondent. in sadananda Mohapatra v. State(') the court considered the
question as to whether reasonable Opportunity had (1) A.I.R. 1967 Orissa 49.
702 in fact been given to the petitioner
before the punishing authority ,had made use of the adverse remarks in the
confidential character -roll. According to the High Court the petitioner in his
examination 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 work led the punishing authority to impose a
lesser punishment and thus the confidential roll had helped 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 confidential character roll were not
included in the second show cause -notice inasmuch as the same had been
discussed at the personal 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 circumstances
.which had led to the making-of the adverse remarks and he was ,given no such
The second authority relied on for the
appellant was State of Orissa v. Sailabehari(1). In this case the entry in the
diary of a Deputy Collector went to show that the Special Assistant Agent,
-'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 witnesses in the departmental enquiry the touring officer
was examined as a witness and his tour diary proved at the inquiry and the
respondent had been given an opportunity to cross-examine him. 'On those facts
the High Court of Orissa after discussing this -position, took the view that
although insufficient for the establishment of a 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 a
decision of this Court in State of Jammu and Kashmir v. Bakshi Ghulam Mohammed
(2) where the Court was dealing with the proceedings of a Commission of Inquiry
under the Commission of Inquiry Act.
(1) A.I.R. 1963 Orissa 73.
(2)  Supp. S.C.R. 401.
703 Section 10 of that Act gave the
delinquent a right to be heard-but only a restricted right of
cross-examination, i.e., it was confined only to the witnesses called to depose
against the person demanding the right. It was further observed that as
"the Act did not contemplate a right of hearing to include a right to
cross-examine" "it -will be natural to think that the statute did not
intend that in other cases a party appearing before he Commission should have
any further right of cross-examination". On the facts before it the Court
came to the conclusion that no case had been made by Bakshi Ghulam Mohammad
that rules of natural justice required that he should have a right to cross examine
all the persons who had sworn affidavits supporting the allegations made
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 prior to its amendment in 1963 the respondent could not be deprived of
an effective right to make representation against the 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 a reasonable opportunity of showing cause against the
In the result we hold that the High Court
came to the correct conclusion and the appeal should be dismissed with costs.
G.C. Appeal dismissed.