State of Mysore Vs. S. S. Makapur
[1962] INSC 192 (3 May 1962)
03/05/1962 AIYYAR, T.L. VENKATARAMA AIYYAR,
T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 375 1963 SCR (2) 943
CITATOR INFO :
R 1964 SC 708 (14,15) D 1965 SC 719 (8) RF
1969 SC 983 (9) R 1970 SC 679 (12) R 1970 SC1255 (19) R 1976 SC1080 (9)
ACT:
Government Servant--Enquiry--Evidences of
witnesses in preliminary investigation brought on record--Witnesses tendered for
cross-examination--Principle of natural justice if satisfied--Bombay Police
Manual, s. 545(8).
HEADNOTE:
After an enquiry held under s. 545 of the
Bombay Police Manual the pay of the respondent was reduced from 125/to Rs.,
120/per mouth. During the enquiry the witnesses who had been examined at the
preliminary investigation were recalled, and their previous statements were
brought on record ,and after putting few question to them they were tendered
for cross examination by the respondent and in fact that they were
cross-examined in detail. The respondents appeal to the Deputy Inspector
General of Police was not only dismissed but the officer in exercise of his
powers in revision ordered 'his dismisal. The respondent filed a writ petition
in the High Court of Mysore challenging the validity of the order of dismissal
on the ground inter alia that the enquiry by the Deputy Superintendent of
Police was conducted in disregard of the rules of natural justice. The High
Court agreed with the above view and the order of dismissal was set aside. The
High Court further held that s. 545(8) of the Bombay Police Manual was bad as
it contravened principles of natural justice.
The Mysore Government came up in appeal by
special leave to the Supreme Court.
Held, that the purpose of an examination in
the presence of a party against whom an enquiry is made, is sufficiently
achieved, when a witness who has given a prior statement is recalled, that
statement is put to him, and made known to the opposite party, and the witness
is tendered for cross examination by that party.
HELD, also, that tribunals exercising
quasi-judicial function state not courts and that therefore they are not bound
to follow the procedure prescribed for trial of actions in courts 944 nor are
they bound by strict rules of evidence. They can unlike courts, obtain all
information material for the points under the enquiry from all sources, and
through all channels, without being fettered by rules and procedure, which
govern proceedings in' court. The only obligation which the law casts on them
is that they should not act on any information which they may receive unless
they put it to the party against whom it is to be used and give him a fair
opportunity to explain it. What is a fair opportunity depend on the facts
circumstances of each case but where such an opportunity has been given, the
proceedings are not open to attack on the ground that the enquiry was not
conducted in accordance with the procedure followed in courts.
Held, further, that cl. 8 of s. 543 of the
Bombay Police Manual is not bad as contravening the rules of the natural
justice.
Union of India v. T. R. Verma. [1958] S.C.R.
499, State of Bombay v. Gajanan Mahadev, (1935) I.L.R. Bom. 913, Board if
Education v. Rice, [1911] A.C. 179. Local Government Board v. Arlidge, [1915]
A.C. 120, New Prakash Transport Company Ltd. v. New Suwarna Transport Company
Ltd., [1957] S.C.A. 98 and Phulbari Tea Estate v. Its Workmen, [1960] 1 S.C.R.
32.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 400 of 1960.
Appeal by special leave from the judgment and
order dated March 26, 1959, of the Mysore High Court in Writ Petition No. 41 of
1958.
H.N. Sanyal, Additional Solicitor General of
India, R. Gopalakrishnan and P. D. Menon, for the appellants.
K. B. Choudhri, for the respondent.
1962. May 3. The Judgment of the Court was
delivered by VENKATARAMA AIYAR, J.-This is an appeal by ,special leave against
the judgment of the High Court of Mysore in a Writ Petition filed by respondent
challenging the validity of an order of dismissal dated July 5, 1966 made by
the Deputy Inspector 945 General of Police, Belgaum. The respondent entered
service in the Police Department as a constable in the District of Bharwar in
1940 and was 'at the material dates a subinspector of Police. On a complaint
preferred by one Machwe of Kurdiwadi against him, Mr. Majumdar, Inspector C. I.
D.
made a preliminary investigation, examined a
number of witnesses and recorded their statements, and submitted his report
recommending further action. On that the Deputy Superintendent' of Police,
Belgaum, started proceedings against the respondent, framed six charges against
him, and called for his explanation. The respondent denied the charges and then
a regular inquiry was held on November 4, 1954.
Clause (8) of s. 545 of the Bombay Police
Manual which lays down the procedure to be followed in such inquiries is as
follows:"The officer conducting the inquiry should then recall all
necessary witnesses in support of the charge and, in the defaulter's presence,
read out any statements they may have made in the preliminary inquiry and
record, if necessary any further statements they may have to make. He should
then give the defaulter an opportunity of cross-examining each witness after
his statement in support of the charge is completed, any such cross-examination
being recorded below the statement of the witness concerned.
In accordance with this provision the Deputy
Superintendent recalled the witnesses who had been examined by Mr. Majumdar during
the preliminary investigation, brought on record the previous statements given
by them, and after putting a few questions to, them tendered them for
cross-examination by the respondent. As a fact all the witnesses were cross
examined by the respondent in great detail. The Deputy Superintendent held that
a 946 the charges framed against the respondent had been proved and he
accordingly issued on December 14, 1954, a notice to him to show cause why he
should not be punished by his pay being reduced from Rs. 125/to Rs. 120/per
month for two years. To this again the respondent submitted his explanation and
thereafter the Deputy Superintendent passed on January 5, 1955, an order
reducing his pay as aforesaid.
The respondent would have been well advised
to have left the matter there. But he choose to prefer an appeal against the
order. The Deputy Inspector General of Police, Belgaum, before whom it came,
not only dismissed it but issued, in exercise of his powers in revision, a
notice to the respondent to show cause why he should not be removed from
service and after taking his explanation ordered his dismissal on July 5, 1956.
The respondent filed a revision against this order to the Government of Bombay
and under the States Reorganisation Act, 1956, that came before the Government
of Mysore and was dismissed on August 31, 1957.
The respondent thereupon filed in the High
Court of Mysore, the Writ Petition, out of which the present appeal arises
questioning the validity of the order of dismissal dated July 5, 1956, on a
number of grounds of which we are concerned in this appeal with only one,
namely, that the inquiry by the Deputy Superintendent of Police was conducted
in disregard of the rules of natural justice and in consequence the order made
was bad. The learned judges of the, High Court agreed with this contention.
They held, on the authority of certain observation is made by this Court in the
Union of India v. T.R. Verma (1) and by the Bombay High Court in the State of
Bombay v. Gajanan Mahadev (2) that principles of natural justice required that,
the evidence of witnesses in (1) (1958) S.C.R. 499.
(2) (1954) I.L.R.Bom.915.
947 support of the charges should be recorded
in the presence of the enquiring officer and of the person against whom it is
sought to be used. In this view they held further that s. 545(8) of the Bombay
Police Manual was bad as it contravened principles of natural justice. They
accordingly held that the enquiry was vitiated by the admission in evidence of
the statements made by the witnesses before Mr. Majumdar without an independent
examination of them before the Deputy Superintendent of Police. In the result
the order of dismissal was set aside. It is the correctness of this judgment
that is now under challenge before us.
The sole point for determination in this,
appeal therefore is whether the procedure adopted by the Deputy Superintendent
of Police in admitting the statements of witnesses examined before Mr. Majumdar
in evidence is opposed to the rules of natural justice. The question is one of
importance, because as appears from the cases which have come before us the
procedure followed by the Deputy Superintendent of Police in this case is the
one followed by many tribunals exercising quasi-judicial powers. For a correct
appreciation of the position, it is necessary to repeat what has often said
that tribunals exercising quasijudicial functions are not courts and that
therefore they are not bound to follow the procedure prescribed for trial of
actions in Courts nor are they bound by strict rules of evidence. They can,
unlike Courts, obtain all information material for the points under enquiry
from all sources, and through all channels, without being fettered by rules and
procedure, which govern proceedings; in Court. The only obligation which the
law casts on them is that they should not act on any information which they may
receive unless they put it to the party against whom it is to be used and give
him a fair opportunity to explain it.
948 What is a fair opportunity must depend on
the facts and circumstances of each case but where such an opportunity had been
given, the proceedings are not open to attack on the ground that the enquiry
was not conducted in accordance.
with the procedure followed in courts.
The question as to the content of the rules
natural justice has been subject of numerous decisions in England and in this
country. Dealing with this question Lord Loreburn, L.
C., observed, in Board of Education v. Rice'
(1) as follows "In such cases the Board of Education will have to
ascertain the law as also to ascertain the facts. I need not add that in doing
either they must act in good faith and fairly listen to both sides, for that is
a duty lying upon everyone who decides anything. But I do not think they are
bound to treat such a question, as though it were a trial. They have no power
to administer an oath, and need not examine witnesses. They can obtain
information in any way they think best, always giving a fair opportunity to
those who are parties in the controversy for correcting or contradicting any
relevant statement prejudicial to their view.
This statement of the law was adopted again
by the House of Lords in Local Government Board v. Arlidge This question has
also been considered by this Court in several decisions. One of the earliest of
them is the decision in New Prakash Transport. Company. Ltd. v. New Suwarna
Transport Company Ltd (3). There the facts were that a Tribunal constituted
under the Motor Vehicles Act had (1) (1911) A.C. 179.182. (2) (1945) 1 A.C.120
(3) (1957) S.C.R 949 refused to grant a permit to a company to run a bus on a
certain route. Then the company filed a writ application in the High Court of
Nagpur, attacking the order refusing the permit on the ground, inter alia, that
the Tribunal had acted on a police report which was produced at the time of the
hearing without giving the petitioner sufficient opportunity to most it, and
had thereby violated the rules of natural justice. Agreeing with this
contention the learned Judges of the High Court had set aside the order.
In reversing this order, this Court hold that
the police report was information on which the Tribunal was entitled to act,
and as it was read at the enquiry, in the presence of the parties and they had
been heard on it, there had been sufficient compliance with the rules of
natural justice.
We may next refer to the decision of this
Court in the Union of India V. T.R. Verma (1). That arose out of a: Writ
Petition filed by a Government servant in the High Court of Punjab, calling in
question an order of dismissal passed against him, on the ground that the
enquiry which resulted in the order had not been conducted in accordance with
the rules of natural justice. The facts were that when the petitioner, and his
witnesses appeared for giving evidence, the enquiring officer took their
examination on hand himself, put them questions, and after he had finished,
asked them to make their statements. The complaint of the petitioner was that
he and his witnesses should have been allowed to give their own evidence, and
than cross-examined, and that the departure from the normal procedure in taking
evidence, was a violation of the rules of natural justice.
In rejecting this contention this Court
observed as follows :
"Stating it broadly and without
intending it to be exhaustive, it may be observed (1) (1958) S.C.R. 499.
950 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 Now Prakash Transport Co.
v. New Suwarna Transport Co., where this question is discussed." It is on
the observation that ,the evidence of the opponent should be taken in his
presence" that the decision of the learned Judges that the evidence of
witnesses should be recorded in the presence of the person against whom it is
to be used is based. ,Read literally the passage quoted above is susceptible of
the construction which the learned Judges have put on it, but when read in the context
of the facts stated above, it will be clear that that is not its true import.
No question arose there as to the propriety admitting in evidence the statement
of a witness recorded behind the back of a party. The entire oral evidence in
that case was recorded before the enquiring officer, and in the presence of the
petitioner. So there was no question of a contrast between evidence recorded
behind a party and admitted in evidence against him, and evidence recorded in
his presence. What was actually under consideration was the procedure to be
followed by quasi-judicial, bodies in holding enquiries, and the decision was
that they were not bound to adopt the procedure followed in 'Courts, and that
it was 951 only necessary that rules of natural justices hould be observed.
Discussing next what those rules required, it was observed that the person
against whom a charge is made should know the evidence which is given against
him,. so that he might be in a position to give his explanation.
When the evidence is oral, normally the
examination of the witness will in its entirety, take place before the party
charged, who will have full opportunity of cross-examining him. The position is
the same when a witness is called, the statement given previously by him behind
the back of the party is put to him, and admitted in evidence, a copy thereof
is given to the party, and he is given an opportunity to cross-examine him. To
require in that case that the contents of the previous statement should be
repeated by the witness word by word. and, sentence by sentence, is to insist
on bare technicalities, and rules of natural jsutice are matters not of from
but of substance. In our opinion they are sufficiently complied with when
previous statements given by witnesses are read over to them, marked on their
admission, copies thereof given to the person charged, and he is given an
opportunity to cross-examine them.
This question came up for consideration by
this Court more recently in Philbari Tea Estate v. Its Workmen(1). There the
foots were that One of the workmen, B. N. Das was dismissed by the management
as the result of an enquiry into a charge of theft. The Industrial Tribunal set
aside this order on the ground that there had been no proper enquiry.
What had happened was that the management had
first made an investigation, and taken, statements of witnesses, and at the
regular enquiry these statements were brought on record but they were not put
to the witnesses, who were present, nor had copies thereof, been given to the workmen.
The question was whether the enquiry (1)(1960) 1 S.C.R. 32.
952 was in accordance with rules of natural
justice. In answering it in the negative, Wanchoo, J, speaking for the Court,
observed that the admission in evidence of the prior statements under the
circumstances stated above, was not in consonance with the principles of
natural justice laid down in the Union of India v. T. R. Verma (1). This
decision is clearly of no assistance to the respondent.
Reliance was also placed on the following observations
by Chagla, C. J., in the State of Bombay v. Gajanan Mahadev "Even assuming
that a statement of such a witness is furnished to the Government servant, it
is a sound rule that courts of law follow and which even domestic tribunals
should follow that all evidence must be given in the presence of an accused
person and in the presence of a person against whom action is proposed to be
taken. It is one thing to make a statement behind the back of person; it is
entirely a different thing to make a statement in front of the Court or a
domestic tribunal and in the presence of a person against whom you are going to
make serious charges." But in our opinion, the purpose of an examination
in the presence of a party against whom an enquiry is made, is sufficiently
achieved, when a witness who has given a prior statement is recalled, that
statement is put to him, and made known to the opposite party, and the witness
is tendered for cross-examination by that party. In this view we must hold that
the order dated July 5, 1956, is not liable to be set aside on the ground that
the procedure followed at the inquiry by the Deputy Superintendent of police
was in violation of the rules of natural (1) (1958) S.C.R. 499.
(2) (1954) I.L.R. Bom. 915.
953 justice. It is hardly necessary to add
that cl. 8 of s.545 of the Bombay Police Manual cannot be held to be bad as
contravening the rules of natural justice.
This finding however does not dispose of the
entire matter.
It is the contention of the respondent that
the Deputy Inspector General of police was not entitled in revision to enhance
the punishment and this question has not been decided by the learned Judges. It
is therefore necessary to remand this case for hearing on this and all other
issues which might arise for decision. We accordingly set aside the order in
appeal and remand the case for hearing on the other points in this case. Costs
of this appeal will abide the result of the hearing in the Court below.
Case remanded.
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