Union of India Vs. T. R. Varma [1957]
INSC 72 (18 September 1957)
AIYYAR, T.L. VENKATARAMA AIYYAR, T.L.
VENKATARAMA DAS, SUDHI RANJAN (CJ) SINHA, BHUVNESHWAR P.
KAPUR, J.L.
SARKAR, A.K.
CITATION: 1957 AIR 882 1958 SCR 499
ACT:
Government Servant-Dismissal-Enquiry-Procedure
for taking evidence-Applicability of the Indian Evidence Act-Rules of natural
justice-Reasonable opportunity--Constitution of India, Art. 311 (2). Writ-Special
jurisdiction of High Court-Alternative remedy -Disputed questions involving
taking of evidence-Practice of the High Court-Constitution of India, Art. 226.
HEADNOTE:
The respondent was dismissed from service
under the Government of India in pursuance of an enquiry held under Art. 311 of
the Constitution of India. He filed an application in the High Court under Art.
226 to quash the order of dismissal on the grounds inter alia that in the
enquiry the evidence of the respondent and his witnesses was not taken in the
mode prescribed by the Indian Evidence Act and that as a result. he was not
given a reasonable opportunity as required under Art. 311(2). It was found that
though the procedure laid down in that Act was not strictly followed the
respondent was given a full opportunity of placing his evidence before the
Enquiring Officer.
Held : (1) Petitions under Art. 226 of the
Constitution should not generally be entertained by the High Courts where an
alternative and equally efficacious remedy is available.
It is not the practice of Courts to decide in
a writ petition disputed questions which cannot be satisfactorily decided
without taking evidence.
Rashid Ahmed v. Munsicipal Board, Kairana,
(1950) S.C.R. 566 and K. S. Rashid and Son v. The Income-tax Investigation
Commission (1954) S.C.R. 738, relied on.
(2) Tile Indian Evidence Act has no
application to enquiries conducted by tribunals. The law only requires that
tribunals should observe rules of natural justice such as that a party should
have the opportunity of adducing all relevant evidence on which he relies, that
the evidence of the opponent should be taken in his presence and that he should
be given the opportunity of cross-examining the witnesses examined by that
party, and that no materials should be relied on against him without his being
given an opportunity of explaining them. If these rules are satisfied then the
enquiry is not open to attack on the ground that the procedure laid down in the
Indian Evidence Act for taking evidence was not strictly followed.
New Prakash Transport Co. v. New Suwarna
Transport Co,, (1957) S.C.R. 98, followed, 64 500
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 118 of 1957.
Appeal by special leave from the judgment and
order dated January 31, 1956, of the Circuit Bench of the Punjab High Court at
Delhi in Civil Writ No. 243-D of 1954.
C. K. Daphtary, Solicitor-General of India,
R. Ganapathy Iyer and R. H. Dhebar, for the appellant.
Purshottam Tricumdas, T. S. Venkataraman and
K. R. Chaudhury, for the respondent.
1957. September 18.
The following Judgment of the Court was
delivered by VENKATARAMA AIYAR,J:-This is an appeal by special leave against
the judgment and order of the High Court of Punjab in an application under Art.
226 of the Constitution setting aside an order dated September 16, 1954, dismissing
the respondent herein, from Government service on the ground that it was in
contravention of Art. 311 (2) of the Constitution.
The respondent was, at the material dates, an
Assistant Controller in the Commerce Department of the Union Government. Sometime
in the middle of March, 1953, one Shri Bhan, a representative of a Calcutta
firm styled Messrs. Gattulal Chhaganlal Joshi, came to Delhi with a view to get
the name of the firm removed from black list in which it had been placed, and
for that purpose, he was contacting the officers in the Department. Information
was given to Sri Tawakley an assistant in the Ministry of Commerce and Industry
(Complaints Branch), that Sri Bhan was offering to give bribe for getting an
order in his favour. He immediately reported the matter to the Special Police
Establishment, and they decided to lay a trap for him. Sri Bhan, however, was
willing to pay the bribe only after an order in his favour had been made and
communicated, but he offered that he would get the respondent to stand as
surety for payment by him.
The police thereafter decided to set a trap
for the respondent, and it war,, accordingly arranged that Sri 501 Tawakley
should meet, by appointment, Sri Bhan and the respondent in the Kwality
Restaurant in the evening on March 24, 1953. The meeting took place as
arranged, and three members of the Special Police Establishment were present
there incognito. Then, there was a talk between Sri Tawakley, Sri Bhan and the
respondent, and it is the case of the appellant that during that talk, an
assurance was given by the respondent to Sri Tawakley that the amount would be
paid by Sri Bhan. After the conversation was over, when the respondent was
about to depart, one of the officers, the Superintendent of Police, disclosed
his identity, got from the respondent his identity card and initialled it, and
Sri Bhan also initialled it.
On March 28, 1953, the respondent received a
notice from the Secretary to the Ministry of Commerce and Industry charging him
with aiding and abetting Sri Bhan in offering illegal gratification to Sri
Tawakley and attempting to induce Sri Tawakley to accept the gratification
offered by Sri Bhan, and in support of the charges, there were detailed. allegations
relating to meetings between the respondent and Sri Tawakley on March 17, 1953,
on March 21, 1953, a telephonic conversation with reference to the same matter
later on that day, and the meeting in the Kwality Restaurant already mentioned.
The respondent was called upon to give his explanation to the charges, and he
was directed to state whether he wished to lead oral or documentary evidence in
defence. The enquiry was delegated to Mt. J. Byrne, Joint Chief Controller of
Imports and Exports. On April 10, 1953, the respondent submitted a detailed
explanation denying that he met Sri Tawakley either on the 17th or on the 21st
March, or that there was any telephonic conversation that day with him, and
stating that the conversation which he had in the Kwality Restaurant on the
24th related to an insurance policy of his, and had nothing to do with any
bribe proposed to be offered by Sri Bhan. The respondent also asked for an oral
enquiry and desired to examine Sri Bhan, Sri Fateh Singh and Sri Jai Narayan in
support of his version. On April 17, 1953 Mc. Byrne gave notice to the 502
respondent that there would be an oral enquiry, and pursuant thereto, witnesses
were examined on April 20, 1953, and the following days, and the hearing was
concluded on April 27, 1953.
On July 28,1953, Mr. Byrne submitted his
report, and therein, he found that the charges against the respondent had been
clearly established. On this, a communication was issued to the respondent on
August 29, 1953, wherein he was informed that it was provisionally decided that
he should be dismissed, and asked to show cause against the proposed action.
Along with the notice, the whole of the report of Mr. Byrne, omitting his
recommendations, was sent. Oil September 11, 1953, the respondent sent his
explanation.
Therein, he again discussed at great length
the evidence that had been adduced, and submitted that the finding of guilt was
not proper, and that no action should be taken against him. He also complained
in this explanation that the enquiry was vitiated by the fact that he had not been
permitted to cross-examine. the witnesses, who gave evidence against him. The
papers were then submitted to the Union Public Service Commission in accordance
with Art. 320, and it sent its report on September 6, 1954, that the charges
were made out, that there was no substance in the complaint of the respondent
that he was not allowed to cross-examine the witnesses, and that he should be
dismissed. The President. accepting the finding of the Enquiring Officer and
the recommendation of the Union Public Service Commission, made an order on
September 16, 1954, that. the respondent should be dismissed from Government
service.
The respondent then filed the application out
of which the present appeal arises, in the High Court of Punjab for an
appropriate writ to quash the order of dismissal dated September 16, 1954, for
the reason that there was no proper enquiry. As many as seven grounds were set
forth in support of the Petition, and of these, the learned Judges held that
three had been established. They held that the respondent had been denied an
opportunity to cross-examine witnesses, who gave evidence in support of the
charge, that further, 503 he was not allowed to make his own statement, but wag
merely cross-examined by the Enquiring Officer, and that likewise, his
witnesses were merely cross-examined by the Officer without the respondent
himself being allowed to examine them. These defects, they observed, amounted
to a denial of reasonable opportunity to the respondent to show cause against
his dismissal, and that the order dated September 16, 1954, which followed on
such enquiry, was bad as being in contravention of Art. 311(2). In the result,
they set aside the order, and directed him to be reinstated. The correctness of
this order is challenged by the Solicitor General on two grounds : (1) that the
finding that the respondent had no reasonable opportunity afforded to him at
the enquiry is not supported by the evidence; and (2) that even if there was a
defect in the enquiry, that was a matter that could be set right in the stage
following the show cause-notice, and as the respondent did not ask for an
opportunity to cross-examine the witnesses, he could not be heard to urge that
the order dated September 16, 1954, was bad as contravening Art. 311(2).
At the very outset, we have to observe that a
writ petition under Art. 226 is not the appropriate proceeding for adjudication
of disputes like the present. Under the law, a person whose services have been
wrongfully terminated, is entitled to institute an action to vindicate his
rights, and in such an action, the Court will be competent to award all the
relief's to which he may be entitled, including some which would not be
admissible in a writ petition. It is well-settled that when an alternative and
equally efficacious remedy is open to a litigant, he should be required to
pursue that remedy and not invoke the special jurisdiction of the High Court to
issue a prerogative writ. It is true that the existence of another remedy does
not affect the jurisdiction of the Court to issue a writ; but, as observed by
this Court in Raghid Ahmed v. Municipal Board, Kairana (1), " the
existence of an adequate legal remedy is a thing to be taken into consideration
in the matter of granting writs ". Vide also K. S. Rashid and (i) [1950]
S.C.R. 560.
504 Son v. The Income-tax Investigation
Commission And where such remedy exists, it will be a sound exercise of discretion
to refuse to interfere in a petition under Art. 226, unless there are good
grounds there for. None such appears in the present case. On the other hand,
the point for determination in this petition whether the respondent was denied
a reasonable opportunity to present his case, turns mainly on the question
whether he was prevented from cross examining the witnesses, who gave evidence
in support of the charge. That is a question on which there is a serious
dispute, which cannot be satisfactorily decided without taking evidence. It is
not the practice of Courts to decide questions of that character in a writ petition,
and it would have been a proper exercise of discretion in the present case if
the learned Judges had referred the respondent to a suit. In this appeal, we
should have ourselves adopted that course, and passed the order which the
learned Judges should have passed. But we feel pressed by the fact that the
order dismissing the respondent having been made on September 16, 1954, an
action to set it aside would now be time barred. As the High Court has gone
into the matter on the merits, we propose to dispose of this appeal on a
consideration of the merits.
The main ground on which the respondent
attacked the order dated September 16, 1954, was that at the enquiry held by
Mr. Byrne, he was not given an opportunity to cross-examine the witnesses, who
deposed against him, and that the findings reached at such enquiry could not be
accepted. But the question is ,whether that allegation has been made out. In
para. 7 of his petition, the respondent stated :
" Despite repeated verbal requests of
the petitioner, the inquiry Officer did not permit him to cross examine any witness,
who deposed against him." But this was contradicted by Mr. Byrne, who
filed a counter affidavit, in which he stated:
" (4) That it is incorrect that no
opportunity was given to the petitioner at the time of the oral enquiry (1)
[1954] S.C.R. 738, 747.
505 to cross-examine the witnesses who had
deposed against the petitioner.
(5) That all witnesses were examined in
petitioner's presence and he was asked by me at the end of each examination
whether he had any questions to put.
(6) That the petitioner only put questions to
one witness Shri P. Govindan Nair, and to others he did not." On this
affidavit, Mr. Byrne was examined in Court, and he repeated these allegations
and added:
" I have distinct recollection that I
asked Shri T. R. Varma to put questions in cross-examination to
witnesses." It was elicited in the course of his further examination that
he did not make any note that he asked Shri T. R. Varma to put questions in
cross-examination to witnesses, and that that might have been due to a slip on
his part.
We have thus before us two statements, one by
Mr. Byrne and the other by the respondent, and they are in flat contradiction
of each other. The question is which of them is to be accepted. When there is a
dispute as to what happened before a court or tribunal, the statement of the
Presiding Officer in regard to it is generally taken to be correct, and there
is no reason why the statement of Mr. Byrne should not be accepted as true. He
was admittedly an officer holding a high position, and it is not suggested that
there was any motive for him to give false evidence. There are moreover,
features in the record, which clearly show that the statement of Mr. Byrne must
be correct. The examination of witnesses began on April 20,1953, and four
witnesses were examined on that date, among them being Sri C. B. Tawakley.
If, as stated by the respondent, he asked for
permission to cross examine witnesses, and that was refused, it is surprising
that he should not have put the complaint in writing on the subsequent dates on
which the enquiry was continued. To one of the witnesses, Sri. P. Govindan
Nair, he did actually put a question in cross-examination, and it is difficult
to reconcile this 506 with his statement that permission had been refused to
cross-examine the previous witnesses. A reading of the deposition of the
witnesses shows that the Enquiring Officer himself had put searching questions,
and elicited all relevant facts. It is not suggested that there was any
specific matter in respect of which cross-examination could have been but was
not directed. We think it likely that the respondent did not cross-examine the
witnesses because there was nothing left for him to cross-examine. The learned
Judges gave two reasons for accepting -the statement of the respondent in
preference to that of Mr. Byrne. One is that there was no record made in the
depositions of the witnesses that there was no cross-examination. But what
follows from this? That, in fact, there was no cross-examination, which is a
fact; not that the request of the respondent to cross examine was disallowed.
Then again, the learned Judges say that the respondent was present at the
hearing of the writ petition before them, that they put questions to him, and
formed the opinion that he was sufficiently intelligent, and that it was
difficult to believe that he would not have cross-examined the witnesses. We
are of opinion that this was a consideration which ought not to have been taken
into account in a judicial determination of the question, and that it should
have been wholly excluded. On a consideration of the record and of the
probabilities, we accept the statement of Mr. Byrne as true, and hold that the
respondent was not refused permission to cross-examine the witnesses, and that
the charge that the enquiry was defective for this reason cannot be sustained.
The respondent attacked the enquiry on two
other grounds, which were stated by him in his petition in the following terms:
"(C) That the petitioner was
cross-examined and was not enabled to make an' oral statement on his own
behalf.
(D) That the defence witnesses were not given
an opportunity to tell their own version or to be examined by the petitioner as
their depositions were confined 507 to answers in reply to questions put by the
Inquiry Officer." In substance, the charge is that the respondent and his
witnesses should have been allowed to give their evidence by way of
examination-in-chief, and that only thereafter the officer should have
cross-examined them, but that he took upon himself to cross-examine them from
the very start and had thereby violated well-recognised rules of procedure.
There is also a complaint that the respondent
was not allowed to put questions to them.
Now, it is no doubt true that the evidence of
the respondent and his witnesses was not taken in the mode prescribed in the
Evidence Act; but that Act has no application to enquiries conducted by
tribunals, even though they may be judicial in character. The law requires that
such tribunals should observe rules of natural justice in the conduct of the
enquiry, and if they do so, their decision is not liable to be impeached on the
ground that the procedure followed was not in accordance with that, which
obtains in a Court of law. Stating it broadly and without intending it to be
exhaustive, it may be observed that rules of natural justice require that a
party should have the opportunity of adducing all relevant evidence on which he
relies, that the evidence of the opponent should be taken in his presence, and
that he should be given the opportunity of cross-examining the witnesses
examined by that party, and that no materials should be relied on against him
without his being given an opportunity of explaining them. If these rules are
satisfied, the enquiry is not open to attack on the ground that the procedure
laid down in the Evidence Act for taking evidence was not strictly followed.
Vide the recent decision of this Court in New Prakash Transport Co. v. New
Suwarna Transport Co. (1), where this question is discussed.
We have examined the record in the light of
the above principles, and find that there has been no violation of the
principles of natural justice. The (1) [1957] S.C.R. 98.
65 508 witnesses have been examined at great
length, and have spoken to all relevant facts bearing on the question, and it
is not suggested that there is any other matter, on which they could have
spoken. We do not accept the version of the respondent that he was not allowed
to put any questions to the witnesses. 'Indeed, the evidence of Sri Jai Narayan
at p. 188 of the Paper Book shows that the only question on which the
respondent wished this witness to testify was put to him by Mr. Byrne. The
evidence of Sri Bhan and Sri Fateh Singh was, it should be noted, wholly in
support of the respondent. The findings of Mr. Byrne are based entirely on an
appreciation of the oral evidence taken in the presence of the respondent. It
should also be mentioned that the respondent did not put forward these grounds
of complaint in his explanation dated September 11, 1953, and we are satisfied
that they are wholly without substance, and are an afterthought. We accordingly
hold, differing from the learned Judges of the Court below, that the enquiry
before Mr. Byrne was not defective, that the respondent had full opportunity of
placing his evidence before him, -and that he did avail himself of the same.,
In this view, it becomes unnecessary to express any opinion on the second
question, which was raised by the learned Solicitor-General.
In the result, we allow the appeal, set aside
the order of the Court below, and dismiss the writ application. There will be
no order as to costs.
Appeal allowed.
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