State of Uttar Pradesh & ANR Vs.
Sri C.S. Sharma [1967] INSC 132 (1 May 1967)
01/05/1967 HIDAYATULLAH, M.
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 158 1967 SCR (3) 848
ACT:
Civil Services (Classification, Control and
Appeal) Rules, r. 55, Sub rr. (1) and (3)--Difference in nature of enquiries
under the two sub rules--Enquiry under sub-r. (1) relates to misconduct
affecting character of a Government servant--Full opportunity to defend himself
necessary- Enquiry vitiated when officer not given opportunity to produce his
defence witnesses.
HEADNOTE:
The respondent was a Sales-tax Officer under
the Uttar Pradesh Government. Inquiries against him in respect of some charges
of corruption were first made by the Assistant Commissioner of Sales-tax who
examined some witnesses. The enquiry was then passed on to the Commissioner who
neither examined the witnesses against the respondent himself nor gave an
opportunity to the respondent, despite the latter's repeated 'requests to
produce his defence witnesses. On orders of dismissal being passed after the
enquiry the respondent filed a writ petition before the High Court which
succeeded. The State appealed. It was conceded on behalf of the State that the
enquiry was under sub- (1) or r. 55 of the Civil Services (Classification
Control and Appeal) Rules. The distinction between 'sub ft. (1) and (3) was
considered.
HELD: The third sub-rule deals with the
unsuitability of an officer for the service or with a charge for any specific
fault. This fault means a fault in the execution of his duties and not a
misconduct such as taking scribe etc. which are charges of a more serious
nature affecting the character of the individual concerned. The collocation of
the words any specific fault' or 'on account of unsuitability for service' give
the clue to the distinction between the third sub-rule and the first sub-rule.
[852B-C] Sub-rule (1) of r. 55 is the general rule for enquiries when the
conduct of a person is inquired into for misconduct. A person cannot the charged
with criminal conduct without affording him adequate opportunity to clear his
character.
If therefore the procedure under the first
sub-rule had to be followed adequate opportunity had to be given to the
respondent to lead evidence on his own behalf to clear himself. No such
opportunity having been given the enquiry could not be said to comply with the
elementary principles of natural justice and the High Court rightly held that
the enquiry was vitiated.
[851 F-G; 852 853 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1260 of 966.
Appeal from the judgment and decree dated
July 10.
1962 the Allahabad High Court. Lucknow Bench
in Special Appeal No. 551 of 1960.
C.B. Agarwala and O.P. Rana, for the
appellants.
B.C. Misra, B.P. Jha and C.L. Lal, for the
respondent.
849 The Judgment of the Court was delivered
by Hidayatullah, J. This is an appeal by the State of Uttar Pradesh against the
judgment and order of the High Court of Allahabad, October 24, 1962,
confirming_ in special appeal the decision of a learned Single Judge dated July
10, 1962.
By that order the High Court has set aside
the order of dismissal made by the State Government against the respondent C.
S. Sharma on the ground that he did not have a fair enquiry before the
Commissioner of Sales Tax when certain charges against him were inquired into.
The facts of the case are as follows. The
respondent C. S. Sharma was appointed as a Sales Tax Officer in January 1949
and was transferred on April 1, 1950 to Hathras where he re- mained till the
end of September 1952. An enquiry was made with reference to certain
allegations against him during his period of stay at Hathras. On October 3,
1952, he was transferred to Lakhampur Kheri and was ordered not to visit
Hathras until allowed by the authorities. It appears that in November 1952, an
ex-parte inquiry was made by the Assistant Commissioner and the proceedings
were submitted with a preliminary report to 'lie Commissioner. On the basis of
this report an order of suspension was passed against him on February 18,1953
and he was placed for inquiry before the Commissioner. A set of charges was
delivered to him on April 15, 1953; then a supplementary charge-sheet was
issued on July 8, 1953. Sharma asked for the inspection of the record of the preliminary
inquiry as also the report, but he was told to submit his explanation to the
charges first before inspection could be allowed. He submitted his explanation
and in compliance with the directions contained in the charge-sheet issued to
him, he submitted a list of three. defence witnesses whom he wished to examine
in support of his case. He requested that the witnesses against him should be
examined vivavoce in his presence before he was asked to meet that evidence and
also wished to be heard in person. On October 31, 1953, Sharma submitted the
list of witnesses above-mentioned. On the same day the Commissioner informed
Sharma that he would be permitted to produce the witnesses mentioned in his
letter in due course. In another communication he was told that another date
would be fixed for hearing the witnesses in his defence. It is not necessary to
describe the charges here because many of them, though found against him by the
Commissioner, were not accepted by the State Government.
The order of dismissal was based upon three
allegations which are allegation No. 5 in charge No. 1 and allegations No. 1
and 3 in charges Nos. 2 and 3 respectively. The Commissioner in his report
found him guilty of these charges and also of other allegations which the State
Government did not accept. We shall refer to these charges presently after
completing the narration of events which took place before the Enquiring
Officer.
850 After the inquiry opened, the
Commissioner did not examine the witnesses afresh, but their previous
statements.
recorded at the earlier enquiry, were
tendered in evidence and Sharma was asked to cross-examine them. Sharma duly
cross-examined those witnesses and then the question arose whether he would be
allowed to lead his defence or not. In the first application which he had made
giving the list of witnesses he had named three witnesses and had also added
that they were to be examined in relation to a specific charge about a car
owned by him. Oil February 2, 1954, he made an application for 20 (lays'
extension of time for giving the list of witnesses he wished to examine in his
defence. Third February had been fixed for summarizing of the. witnesses
against him but no date till then. ,,.,Lis fixed for the examination of his
defence witnesses. His application of February 2, 1954 was rejected by the
Commissioner on February 6, 1954, without fixing a date for the examination of
the witnesses or for giving him an opportunity to give evidence in his own
behalf. Not knowing that he would not be even any further opportunity. Sharma
submitted a list of four witnesses oil February 10, 1954, but stated that he
could not give the addresses of some of the witnesses because he did not know
where they were. On February 24, 1954, he again stated that he wanted to examine
defence witnesses and to examine himself. No order was how- ever, made on these
applications. On April 8, 1954, the Commissioner made his report recommending
the dismissal of Sharma and the order of the State Government was made after
due opportunity to show cause why he should not be dismissed. In reply to the
show cause notice Sharma complained that he had not been allowed to lead
evidence on his own 'behalf that is one of the contentions in the present case.
The charges against him which have been held
proved against him and to which we have referred were as follows Charge No. 1,
Allegation No. 5 "You accepted the accounts of Sarvsri Radhey Shiam Brij
Kishore without due verification.." Charge No. 2, Allegation No. I
"Sarvsri Damodar Das Radhey Shiam had been declared non-assessable for
1948-49 and for three quarters of 1949-50 by your predecessor.
The Judge (Appeals) had also declared the
dealer unassessable in an appeal against Your orders. Still you assessed the
dealers for the first three quarters to harass him.
Ultimately you declared the dealer
unassessable." 851 Charge No. 3, Allegation No. 3 "You accepted Rs.
5001- from Mithoo Lal of the firm Noor Mohammed Mithoo Lal as bribe through
Chhotey Lal vakil." In, addition to these charges there was a charge
against him that he was in possession of a car which his means did not allow
him to purchase and in respect of which he had made a reply that he had
received this car from his father- in-law. This was charge No. 4 and inrelation
to this charge apparently he had cited the first list of three witnesses for
the examination in his defence. This charge was not accepted by the State
Government when the matter reached it.
After the order of dismissal was made, Sharma
filed a writ petition in the High Court of Allahabad asking that the order made
against him be quashed and his allegations were that the enquiry against him
was made by a Commissioner who was biased against him; that the witnesses for
the enquiry were not examined viva voce in his presence but were only tendered
for cross examination and lastly that no adequate opportunity was given to him
for summoning his defence witnesses or to examine himself. The High Court in
the two orders which were made, reached the conclusion that the enquiry was defective,
but different reasons were given 'by the learned Single Judge and the Division
Bench. We need not go into this matter elaborately because in our opinion the
appeal here must be dismissed because' we are satisfied that no adequate
opportunity was afforded to Sharma to lead his defence which the principles of
natural justice required.
The first question is whether this inquiry
was made under sub-rule (1) or (3) of r. 55 of the Civil Services
(Classification, Control and Appeal) Rules. It is an admitted fact that Sharma
was a temporary employee and therefore his case would fall to be governed by
sub-rule (3) of r. 55 if it could be said that the enquiry which was being made
was for a specific fault or on account of his unsuitability for service. Sub-rule
1 ) of r. 55 is a general rule for enquiries where the conduct of a person is
inquired into for misconduct but sub-rule (3) says that that sub rule shall not
apply where it is proposed to terminate the employment of a probationer, or to
dismiss, remove or reduce in rank a temporary government servant for any
specific fault or on account of his unsuitability for the service. Sub-rule (3)
says that in such cases, the probationer or temporary government servant
concerned shall be apprised of the grounds of such proposal, given an
opportunity to show cause against the action to be taken against him, and his
explanation in this behalf, if any.
shall be duly considered before orders are
passed by the competent authority. If the third sub-rule applied, it is obvious
that the kind of enquiry made complied with its requirements. The first sub-
852 rule, however,- provides for a full-blooded enquiry which is the
counter-part of a regular trial : witnesses have to be examined in support of
the allegations, opportunity has to be given to the delinquent, officer to
cross-examine them and to lead evidence in his defence. In our judgment the
present case was governed by the first sub-rule and not the third sub-rule. The
third sub-rule deals with the unsuitability of an officer for the service or
with a charge for any specific fault. This fault means a fault in the execution
of his duties and not a misconduct such as taking bribe etc. which are charges
of a more serious nature, affecting the character of the individual concerned.
The collocation of the words "any specific fault" or "on account
of unsuitability for service" give the clue of the distinction between the
third sub-rule and the first sub- rule. An officer who is, for example,
habitually lazy or makes mistakes frequently or is not polite or decorous may
be considered unsuitable for the service. Another officer who makes a grievous
default in the execution of his work may be charged for the specific individual
fault, that is a dereliction or defect in the execution of that duty. Where
there is an allegation that an officer is guilty of a misconduct such as
accepting bribe or showing favours, the matter is not one of specific fault in
the execution of his work but something more. That matter will fall to be governed
by the first sub-rule because you cannot charge a man with criminal conduct
without affording him adequate opportunity to clear his character. Mr. Aggarwal
fairly pointed out that the Government had appointed the enquiring officer to
take action under r. 55(1) and it is thus quite clear that Government viewed
the matter also in this light.
It, therefore, follows that if the procedure
under the first subrule had to be followed, adequate opportunity had to be
given to Sharma to lead evidence on his own behalf to clear himself of serious
charges which were levelled against him and give evidence on his own behalf. It
is obvious that he has not been able to lead his defence or to give evidence on
his own behalf. The question is whether he has to thank himself or the omission
proceeded because of some action on the part of the enquiring officer.
Considering the whole matter we are satisfied that the enquiring officer was to
blame and we shall now show why we think so.
Throughout the enquiry, as late as February
24, 1954, Sharma had again and again given indication that he would lead
evidence in his defence. At first he had given a list of three witnesses which
he later amplified to four leaving out one from the original list and adding
two new names. He had also stated that he wanted to examine himself in his
defence. The learned Commissioner who was holding the enquiry on more than one
occasion stated that he would be afforded this opportunity and also that a date
would be fixed for the examination of the defence wit- 853 nesses. It is true
that Sharma was playing for time and on the 2nd of February (before the date of
hearing came) he put in an application that he would like an adjournment of 20
days before he submitted a final list of witnesses with their addresses. This
application was rejected on February 6, but between February 6, and April 8,
when the report was made, two long months passed and it was possible for the
Commissioner to have fixed a date, on which, if he was so minded, Sharma could
bring his witnesses in support of his case or tender himself for examination.
No action was taken between February 6, 1954 and April 8, 1954 to enable Sharma
to lead his defence, if any, in support of his part of the case. This omission
in our judgment was sufficient to vitiate the whole proceeding because no
enquiry of this type in which there are charges of a criminal nature, can be
said to be properly conducted when the defence of the officer is either
frustrated or ruled out.
It was submitted by Mr. Agarwal,that the
witnesses were being summoned by him to clear himself of the charge of owning a
car without having the visible means to afford it and this charge was not
accepted by the State Government.
This is true enough, but the State Government
came on the scene much later. In so far as the enquiring officer was concerned,
he had accepted the allegation against Sharma and even if the original list be
considered, Sharma was entitled to lead evidence with regard to the car itself.
It is possible that if a date had been fixed, he would, not only have led
evidence with regard to the car, but would have brought witnesses to clear
himself of other charges, but no such opportunity was clearly afforded to him.
Further before the case closed, the Commissioner had before him a list of four
witnesses and fair play demanded, that he should have fixed a date and left it
to Sharma to procure attendance of his witnesses on that date, but if no date
was fixed, Sharma was not expected to bring hi,, witnesses day after day in the
hope that the Commissioner would examine them any day. The enquiry cannot be
said to comply with the elementary principles of natural justice and therefore
we have no hesitation in accepting the decision of the High Court that the
enquiry was vitiated.
We may not omit to state that there was an
allegation against the Commissioner that he was biased against Sharma.
It does appear that the Commissioner, in one
of his letters, stated that he had heard witnesses and satisfied himself that
Sharma was definitely corrupt. This statement of the Commissioner showed that he
approached the case with a feeling that Sharma was guilty although the State
Government cannot be said to share this bias of the Commissioner. We would have
said something more about this, if the occasion had demanded this, but as we
are upholding the order of the High Court on the ground that no reasonable 8 54
opportunity was afforded to Sharma to lead his evidence, it is not necessary to
say whether an officer in the position of the Commissioner, who on the basis of
secret enquiries behind the 'back of ,delinquent officer has reached the
conclusion that there are good grounds for holding that the officer is corrupt,
should himself ,conduct the enquiry.
That matter may be left for consideration in
another case.
On the whole, therefore, we think that the
ends of justice will be served in maintaining the order made by the High Court.
The enquiry, if Government so decides, must proceed before an officer who will
examine the witnesses in support of the charge in the manner laid down by this
Court and afford Sharma an opportunity -of leading his defence, if any.
The appeal, therefore, fails and is dismissed
with costs.
G.C. Appeal dismissed.
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