H.C. Sarin Vs. Union of India  INSC
112 (14 April 1976)
CITATION: 1976 AIR 1686 1976 SCR 39 1976 SCC
enquiry-Principles of natural justice.
Indian Railways Establishment Code, Vol. I r.
1730- Right of delinquent officer to services of on advocate or another Railway
The appellant was a railway official of the
Indian Railways, in London. In connection with the purchase of stock from a
West German firm three charges were framed against him that he obtained illegal
gratification from the proprietor of that firm and that he had used official
influence for personal advancement. A board of enquiry as set up by the Government
of India and the enquiry was held in London and West Germany. The board held
that two of the charges were proved and the appellant was dismissed from
service. He filed a writ petition in the High Court which was dismissed.
In appeal to this Court, it was contended
that the enquiry was held in gross violation of the principles of natural
justice and requirements of Art. 311 of the Constitution; that the proprietor
of the German firm made the false accusation against him in order to escape
payment of damages; that the chairman of the board of enquiry was biased
against him, and that the appellant was denied the services of a professional
lawyer or a railway official of his choice from India for conducting his
defence and for cross-examining the proprietor of the German Firm.
Dismissing the appeal,
HELD: (1) The correspondence that passed
between the board and the appellant snows that there was no violation of any
principle of natural justice, that the appellant was given inspection of all
necessary documents; that he was given adequate and reasonable opportunity to
defend himself and that the allegation that the chairman of the board was
biased against the appellant was totally false. [46 B-C] (2) No principle of
natural justice was violated in not making available to the appellant the
services of a professional lawyer or of another railway official from India.
[51 B] (a) The enquiry was conducted in accordance with r.
1730 of the Indian Railways Establishment
Code, Vol. I, which prescribes the procedure for holding a departmental
enquiry. There is nothing in the rule about engagement of a lawyer but the note
appended to the rule provides that in a departmental enquiry the accused may,
if he so desires, be accompanied by another railway officer, provided he is
approved by the competent authority, and provided that the person so nominated
shall not be a professional lawyer. [50 F-G] (b) The notes are promulgated with
the rules. Their function is to provide procedure, to control discretion, and
to fill up gaps when rules are silent. Under the rule, the appellant was not
entitled to the services of a professional lawyer.
[51 F-G] Tara Singh etc. etc. v. State of
Rajasthan and ors., 3 SCR 1002, followed.
(c) Even if the note is treated as an
executive instruction and not part of the rule itself, there is no reason why
the authority should not follow the note. The authority would still have a
discretion in the matter. In the present case, the question involved was a
simple one whether he had taken money from the 40 proprietor of the German
firm. No prejudice was caused to the appellant, because the proprietor was only
a lawyer in name but was actively in business and the services of a
professional lawyer were not necessary to cross-examine him.
[51 B] (d) The appellant wanted an officer
from India to assist him in the conduct of his defence. Under the rule, he was
not entitled, as a matter of right, to have the services of any railway officer
stationed in India. He was in fact given a choice to choose either one
stationed in London or on the Continent. [51 G-H] C. L. Subramaniam v.
Collector of Customs, Cochin, 3 SCR 485, explained and distinguished.
R. v. Secretary of State for the Home
Department ex parte Mughal  All England Law Reports, 796, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1097 of 1970.
Appeal from the Judgment and order dated the
25th April 1967 of the Delhi High Court in Letters Patent Appeal No.
106-D of 1964.
M. N. Phadke, S. Balakrishnan and N. M.
Ghatate, for the Appellant.
L. N. Sinha, Sol. General, P. P. Rao and
Girish Chandra, for Respondents.
The Judgment of the Court was delivered by
UNTWALIA, J.-This appeal is by certificate granted by the High Court of Delhi
under Article 133 (1) (a) & (b) of the Constitution of India as it stood
prior to the 30th Constitution Amendment Act. No substantial question of law is
involved in this appeal. It is to be decided mostly on facts. And since we are
in agreement with the judgment of the Division Bench of the High Court given in
the Letters Patent appeal, we shall advert only to the necessary facts and the
main points argued before us.
Shri H. C. Sarin-the appellant was employed
in the Indian Railways as Senior Railway Inspector attached to the Office of
the India Stores Department at London. He was in that job from the 6th August,
1954. The Government of India placed orders with various firms in the United
Kingdom and the continent for supply of rolling stock and other materials for
the Indian Railways. In December, 1956 the appellant was deputed to the Essen
Area of West Germany as Senior Railway Inspector in which capacity he had to
inspect and pass the goods in the first instance at the site.
Although this work of inspection in West
Germany was entrusted to the German Federal Railway in January 1958, the
appellant remained there associated with the work till April or May, 1958. In
July, 1956 orders were placed with M/s Leo Gottwald and Company for supply of
several breakdown cranes- both for meter gauge and broad gauge railway tracks
in India. This was a family concern of one Dr. Hans Dieter Gottwald. Prior to
the appellant's going to the Essen Area 41 of West Germany, there were other
Senior Railway Inspectors doing the work of inspection including one S. N. Hussain
(since deceased) immediately preceding the appellant. One of the clauses in the
contract with Gottwald was that he would be liable to pay liquidated damages in
the specified sums if he made delay in the delivery of the cranes. Eventually
there being delay, the amount of such damages was quantified at a figure in the
neighbourhood of & 45,000/-.
Dr. Gottwald carried on business of his firm
at Dusseldorf in West Germany. He came to London on July 30, 1958 to discuss
with Shri L. T. Madmani, Railway Advisor certain technical aspects of the
cranes contract. A meeting took place in the morning wherein were present other
officers including one Mr. Bayross. In the afternoon, Gottwald saw S. N.
Hussain at the lndia Stores Department when the latter told the former that
delay had occurred in the supplies of cranes and consequently the firm of
contractors may have to pay liquidated damages. Upon this, Gottwald disclosed
that Sarin was responsible for the delay, he had taken money by way of bribes
from the firm and in such a situation the firm was not liable to pay any
Since the allegation made by Gottwald against
Sarin was a serious one S. N. Hussain advised him to inform Madnani about it.
He did accordingly. After some preliminary steps Gottwald's statement was
recorded on September 8, 1958 at India Stores Department where he gave a
detailed account of the allegedly corrupt practices of the appellant. Shri
Shukla was the Director General of the India Stores Department at the relevant
time. He directed Gottwald to furnish some tentative proof in support of his
accusation against Sarin. Gottwald's second statement was recorded on October
21, 1958. One Shri M. A. Hussain, I. C. S. was the Deputy High Commissioner for
India stationed in U. K. at the relevant time. On cxamining the papers and the
statements of Dr. Gottwald given before the various officers of the India
Stores Department the Deputy High Commissioner formed an opinion that prima
facie the accusations against the appellant were such that required to be
investigated in a departmental enquiry. He accordingly made a recommendation to
that effect to the Government of India. The Government, however, directed a
preliminary enquiry to be made by Shri N. S. Pandey, Financial Advisor to the
Indian High Commission and then to start a departmental enquiry, if necessary.
Accordingly, Pandey went to Gottwald's place in West Germany, made preliminary
investigations and submitted a report dated January 19, 1959 finding a prima
facie case made out against the delinquent government servant. At the instance
of the Government of India, Ministry of Works, Housing and Supply, charges were
served upon the appellant on April 7, 1959 along with two Annexures containing
various details of the accusations made by Gottwald against him. The appellant
was asked to indicate by April 15 the papers which he wanted to inspect and the
papers the copies of which he required to enable him to enter his defence. He
was asked to submit his written explanation by 30th of April, 1959. In the
meantime he was placed under suspension.
42 Shorn of details which were to be found in
the Annexures the Charge-Sheet served on the appellant contained the following
That Shri H. C. Sarin, while functioning as
the Senior Railway Inspecting Officer in the India Stores Department, London,
during the period between December, 1956 and May, 1958, demanded and obtained
illegal gratification from the firm of Messrs. Leo Gottwald of Dussaldorf.
That during the aforesaid period and while
functioning as aforesaid, the said Shri H. C. Sarin violated Rule 10 of the
Railway Services (Conduct) Rules, 1956 in that he accepted an Opel Car from
Messrs. Talbots of Achen as a gift.
That during the aforesaid period and while
functioning as aforesaid, the said Shri Sarin used his official influence for
personal advancement." Time for filing the written defence by the
appellant was extended. It was filed on May 27, 1959. The appellant denied all
the charges against him. The Board of Enquiry set up by the Government of India
consisted of the following :
(1) Shri M. A. Hussain, ICS, Deputy High
(2) Col. Hendricks, Deputy Director General
(Inspection), I. S. D., London, Member.
(3) Shri T. M. Duraiswamy, Deputy Director
General, I. S. D., London, Member.
The correspondence which passed between the
appellant and the Board in connection with the departmental enquiry instituted
against him is too voluminous to be referred to in this judgment. No useful return
will be achieved by referring to the correspondence in any detail. Suffice it
to say at this stage that the correspondence does indicate a calculated design
and planned attempt on the part of the appellant to non-cooperate with the
enquiry and an anxiety and earnestness on the part of the Board to proceed in
the matter as fairly as possible in the circumstances of the case. The Board
was obliged to go to Dusseldrof, hold an enquiry at the spot by examining as
many as 21 witnesses there, some of whom had been cited by the appellant as his
defence witnesses and to examine the relevant papers, documents and account
books of the contractor's firm. All this proceeded ex-parte between July 14 to
July 17, 1959.
The Board 43 returned to London on July 19
and examined some witnesses there who had been cited as defence witnesses by
the appellant. Almost the entire departmental enquiry had to be conducted
ex-parte as the appellant would not participate in it even with a pair of
The appellant had named S/Shri Bhalla,
Sharma, Johri and Sen, Railway officers in India as his defence witnesses.
He was asked to examine them by quesionnaries
as it was not possible to call them to London for the purpose of the enquiry.
Nor was their evidence so material as to necessitate their examination
viva-voca before the Board.
The appellant refused to cooperate and did
not submit any questionnaire. The Board, thereupon, sent to all the four
officers aforesaid copies of the charges levelled against the appellant and
asked them to state if they had anything to say in relation to them. Bayross
was examined by the Board in London on September 29, 1959 after copies of the
earlier statements of the witnesses and other papers had been supplied to the
appellant on September 21, 1959. The appellant was present on September 29 but
did not actively participate in the enquiry, in that he did not take any part
in it by cross-examining Bayross.
The Board submitted its report to the
Government of India on November 2, 1959 holding that charges I and III had been
proved against the appellant and charge II had neither been proved nor
disproved. The Government gave a show-cause notice on November 4, 1960 to the
appellant asking him to show cause against his removal. He filed his reply on
January 31, 1961. Later, however, the Government gave another show cause notice
dated September 20, 1961 to the appellant to show cause as to why he should not
be dismissed from service. In October/November, 1961 the appellant filed three
show cause explanations in writing. He made another representation to the
Government on March 4, 1962 for holding a fresh enquiry which naturally was not
Eventually the appellant was dismissed from
service by an order of the Government of India dated September 10, 1962.
He filed a writ petition in the High Court on
December 6, 1962 to challenge the order of dismissal on several grounds, in nut
shell, on the ground of violation of principles of natural justice in the
conduct of the enquiry. A learned single Judge of the High Court by his
judgment and order dated August 3, 1964 allowed the writ petition and quashed
the order of dismissal without any further or consequential order. A Letters
Patent appeal was filed by the Government which was disposed of by a Bench of the
Delhi High Court on April 25, 1967. The judgment if the single Judge was set
aside and the order of dismissal passed against the appellant by the Government
was maintained holding that there was no violation of the principles of natural
justice in any manner. Since the amount of salary payable to the appellant if
the dismissal order could be found to be bad would, indisputably have been more
than Rs. 20,000/- certificate was granted under Article 133(1)(a) & (b),
strictly speaking, under sub-clause (b). Thus comes this appeal in this Court.
44 Mr. M. N. Phadke, learned counsel for the
appellant pressed only the following points in support of the appeal.
(1) That the appellant was not allowed to go
to Germany to examine and assess various matters which were necessary for
submission and conduct of his defence. It was done so in gross violation of the
principles of natural justice and requirement of Article 311 of the
(2) That copies and inspection of certain
relevant and necessary documents were not allowed to the appellant by the
Board. It was not possible for him to cooperate and participate in the enquiry
(3) That no adequate and reasonable
opportunity was given to the appellant to defend himself at the enquiry.
(4) That the accusation made by Gottwald
against the appellant was maliciously false as it was made with the ulterior
motive of saving his firm from the liability of liquidated damages. As a matter
of fact the firm was not made to pay any damages in view of Gottwald's success
in his false accusation against the appellant.
(5) That Shri M. A. Hussain. Chairman of the
Board of Enquiry was highly biased against the appellant and the enquiry
conducted under his stewardship was a farce.
(6) That Shri S. N. Hussain was inimically
disposed towards and adversely interested against the appellant.
(7) That the services of a professional
lawyer for cross examining Gottwald and a Railway officer of his choice from
India were not made available to the appellant for conducting his defence.
Learned Solicitor General appearing for the
Union of India-the respondent-refuted all the submissions made on behalf of the
appellant. In particular he focussed his submissions on point nos. 1, 5 and 7
as the other four points, counsel submitted, did not require any detailed
Point No. 1 When the appellant was placed
under suspension, in accordance with the relevant service rules he was asked
not to leave London without permission of the Board. As soon as the Charge
Sheet was served on him by his letter dated the 10th April, 1959 the appellant
wanted permission to visit Germany stating in para 6:
"In order for me to prepare my defence I
would request permission to visit Germany to collect essential information 45
required when submitting my written defence, especially as the charges refer to
periods two to three years ago." The Chairman of the Board of Enquiry in
his reply dated the 15 April, 1959 stated in para 3 thus:
"In regard to your request to be
permitted to visit Germany, the Board would like to have in writing before
April 20, 1959, the purpose for which you wish to visit Germany and the names
and addresses of person/persons you wish to contact and the paper/papers you
may wish to examine." The appellant sent his letter dated April 20, 1959
stating in para 4 thus:
"Regarding the visit to Germany and the
persons and documents to be interviewed and seen, I thought it was plain that
this depended on the inspection of documents referred to in paras 4 and 5 of
your letter under reply. Consequently until I have done this properly, I shall
not be in a position to know what items or facts I require to investigate or
check' in Germany. I shall therefore be glad if you will postpone this
application of mine so that I may in due course specify the visits, persons and
papers." The Chairman, thereupon, by this letter dated April 21, 1959
asked the appellant to supply the information in respect of his visit to
Germany by April 30, 1959. In his letter dated April 30, 1959 the appellant
stated in para 3 thus:
"I submit in view of the grave charges,
false allegations, it is necessary for me to examine in detail Leo Gottwald's
system of accounting, storekeeping, procedure for telephone accounting, mailing
letters etc. Likewise the system of telephone connecting, booking, mailing
letters etc. at other firms mentioned by Dr. Gottwald, This is absolutely
imperative and my defence would be incomplete without this. In the absence of
full information, examination of all documents studying systems of working
mentioned above, I am not in a position to submit names of persons. I would
request early arrangements may please be made for me to study the systems of
working mentioned above at the respective firms in Germany." The Chairman
in para 4 of his letter dated May 1, 1959 informed the appellant:
"In regard to your request for visiting
Germany in order to examine the Leo Gottwald's system of accounting,
store-keeping, mailing letters etc., it is felt that it is not necessary for
you to visit Germany for the purpose because witnesses pertaining to all these
matters will be called by the Board for examination and you will be given full
46 opportunity to elicit all relevant information required by you."
Further correspondence followed in the matter and the appellant was not given
permission to visit Germany prior to the visit of the Board of Enquiry.
In the light of the relevant correspondence
which passed between the appellant and the Chairman of the Board of Enquiry we
have come to the conclusion that it was not at all necessary for the appellant
to visit Germany for preparing his defence. The Board committed no mistake and
violated no principles of natural justice in refusing the permission. No useful
purpose would have been served by such a visit in the interest of the
appellant's defence, if any.
on the other hand his insistence to visit
Germany at the earliest opportunity smacks of some ulterior design on his part
in regard to his defence.
When the Board decided to visit Germany for
holding the enquiry, it gave ample opportunity to the appellant to proceed to
Germany to take part in it. The main part of the enquiry. rather, the only
substratum of the materials was to be done and collected at Dusseldorf in
Germany. Yet on one excuse or the other the appellant, it appears, was advised
to adopt an attitude of non cooperation which was likely to forge a ground of
attack on the departmental enquiry, thinking that participation in it would.
perhaps, worsen his case. It is found more often than not that Government servants
who have no real defence to take against the accusations are advised, and
sometimes not without success, to non-cooperate with the enquiry. It seems to
us this was one such case.
The Chairman by his letter dated June 18,
1959 asked the appellant whether he proposed to be present at the enquiry at
Dusseldorf and such other places as the Board may determine on the dates to be
intimated to him. The appellant was specifically asked this question because he
cast some baseless aspertions against the Board in his letter dated the 4th
June, 59. The appellant in his letter dated the 14th June had stated in para
"In the circumstances that I have put
into, and hardly been left any choice, I feel no useful purpose call be served
by my attending such an enquiry or having anything further to do with such as
enquiry." The appellant's reply dated June 20, 1959 clearly demonstrates
the unjustifiably non-cooperative attitude of the appellant. He was running
from pillar to post to find out some excuse to justify his non cooperation at
the enquiry. He insisted that Dr. Gottwald's statement recorded in September,
1958 should be got signed by him which the Board rightly did not consider it
necessary to do. Another with stand which the appellant had taken was that the
contents of his written defence submitted on May 27 were made known to S. N.
Hussain by some members of the Board of Enquiry-an allegation 47 which was
strongly refuted by the Board. Lastly in the 10th paragraph of his letter dated
June 20 the appellant said:
"What can I do Mr. Chairman in the
position you have placed me, you may proceed in any way you consider
reasonable, just and fair." In spite of the unreasonable and unsustainable
stand of the appellant, the Board of Enquiry, constituted as it was of high
officials of the Government of India headed by the Deputy High Commissioner
stationed in London, time and again expressed their anxiety to make the
appellant participate in the enquiry. But the appellant under a wrong advice
played a game of hide and seek, at times adopted a tantalizing attitude showing
his willingness to cooperate, but backed out at the eleventh hour. To justify
this comment we just mention some other letters viz. letter of the Board dated
June 22, appellant's reply dated June 23, Board's letter dated June 26,
appellant's sticking to his previous stand in his letter dated June 29, Board
asking the appellant to proceed to Germany in their letter dated July 2 and the
appellant's reiterating his previous stand in his letter dated July 8. From the
report of the Board it would appear that Sarin did not give a categorical
answer as to whether or not he would go to Dusseldorf on July 13. On the 10th
July, he agreed to go and came to India Stores Department to collect his
advance of T. A. But on the evening of July 11, he informed the Secretary to
the Board that he would not proceed to Dusseldorf to be present at the oral
enquiry. Mr. Phadke drew our attention to Sarin's show cause reply dated
January 31, 1961 in which he stated that the Board permitted him to go to
Dusseldorf only if he agreed to participate in the oral proceedings there,
otherwise not. He therefore, cancelled his reservations to proceed to
Dusseldorf. He also referred to the photostat copy of the appellant's letter
dated July 24, 1959 and the addendum to this letter. Nothing new; the same
stand was taken by the appellant. This, to our mind, makes patent the latent
factor in the mental attitude of the appellant. Did he want to go to Dusseldorf
without agreeing to take part in the enquiry ? or did he want to go there to
participate in it? Having appreciated all that has been said for the appellant
in support of his first point we have come to the conclusion that the appellant
was not denied any reasonable opportunity of visiting Germany at the proper
time to participate in the enquiry. He has to thank himself for deciding not to
Point No. 2.
It is not necessary to enter into any
detailed discussion of this point. In agreement with the Bench of the High
Court we hold that all relevant documents were made available to the appellant
either for inspection or for copies. Some file containing the field inspection
papers was not traceable. The suspicion of the Board was that the Prosecutor at
the departmental enquiry was not to gain anything by making the file
untraceable. On the other hand it was the appellant who was to gain by it. The
very same letters exchanged between the appellant and the Board in June and
July, 1959 dealt 48 with this aspect also. The High Court has extracted passages
from the relevant letters in this connection and has rightly held:
"It appears to us to be clear from this
correspondence that all legitimate demands of the respondent for the inspection
of papers which were available in the ISD office in London were fulfilled, but
the respondent went on making unfounded claims in this behalf without
specifying the documents. We therefore, hold that all documents which were
available in the ISD office in London were made available to the
respondent." Point No. 3.
In support of the third point arguments were
advanced with reference to letters dated July 18, August 6 and October 6, 1959.
Notes were handed over to us referring to the other pieces of correspondence.
We have studied them but think it unnecessary to increase the bulk of our
judgment by referring to the correspondence in any detail. It merely shows that
on one ground or the other the appellant was adopting delaying tactics,
shifting stands and excuses for not presenting himself at the enquiry either to
cross- examine the prosecution witnesses or to examine his defence witnesses.
All the time he was reiterating his stand taken in his letters dated June 14,
and June 20, 1959.
The detailed report of the Board of Enquiry,
apart from the correspondence which preceded it, is a clear proof of the
anxiety of the Board to conduct the encquiry as fairly and fully as they could
in the circumstances of the case. The submission of the appellant is rejected
as being devoid of substance.
In view of the attitude taken by the
appellant of complete noncooperation in his letters dated June 14 and June 20,
1959 no useful purpose would have been served by associating him with the
examination of the witnesses in London. Madnani and S. N. Hussain were examined
in July and August. The appellant never expressed his willingness to cooperate
and be present at the examination of the witnesses in London. His presence at
the time of the examination of Bayross was a make-believe more of cooperation
to colour and cloud his real attitude of non-cooperation. The Board committed
no irregularity or illegality in sending a general questionnaire to S/Shri
Bhalla, Sharma, Johri and Sen in India as the appellant had refused to submit a
questionnaire. Copies of all the relevant statements and papers given to the
Board at Dusseldorf were given to the appellant in September, 1959. Although
there was some delay in supply of these papers, that did not cause any
prejudice to the appellant.
Point No.4 This point mainly concerns the
merits of the findings of the Board of Enquiry and their final acceptance by
the Government of 49 India. Whether a charge levelled against the appellant was
true or false had to be and has been judged in the light of the appellant's
stand that Gottwald had a motive to accuse falsely the appellant of having
taken bribe from him in order to establish that he was not at fault in the
delay which was made in the delivery of the contracted cranes.
Without much elaboration we reject this
argument. Gottwald was to gain by merely throwing the blame on the shoulders of
Sarin. He had nothing to gain and only to lose by making an accusation of
having paid bribe to Sarin under his pressure.
No person would like to involve himself in
the deal of payment of bribe to a Government servant merely for the purpose of
explaining the delay caused in effecting the deliveries. Ordinarily bribe could
be paid so that there may not be any delay in inspection. But here was a case
where it is said delay was caused in the inspection because there was delay in
the payment of the bribe. It is not for us to examine in any detail the
correctness of the findings recorded against the appellant at the departmental
but in passing, we may just observe that it
could not have been possible for Gottwald to make a false accusation against
Sarin, and then support it before the Board by examining his father, the bank
records, vouchers, account books and a large number of persons working in his
There was nothing in the records of this case
to show that the claim of liquidated damages against the contractor was given
up in view of the finding of guilt of the appellant.
We were informed at the Bar by the Soilcitor
General that the claim was settled and not given up. Be that as it may, we find
the fourth submission made on behalf of the appellant unsustainable.
Points 5 and 6 These points may be dealt with
together as they have got some inter-connection. It could not be substantiated
on behalf of the appellant that S. N. Hussain had any animus against him or was
adversely interested against him in the matter. Some letters with reference to
the work of S. N.
Hussain at Barmingham with comments of the
appellant thereon were placed before us. Mr. Phadke could not substantiate the
point with reference to them. Time and again he laid stress on the fact that
Gottwald made this complaint to Madnani on July 30, 1958 on being asked to do
so by S. N. Hussain because he had his own axe to grind against Sarin. This
argument has been stated merely to be rejected. It was just in the natural
course of events that when S. N. Hussain was finding fault with Gottwald for
the delay in the execution of the contract the latter became forced by
circumstances to blurt out the truth. The accusation against Sarin was too
serious to be taken note of by S. N. Hussain alone.
Naturally, therefore, he advised him to go
and make this complaint to the higher officer Madnani. No connection between M.
A. Hussain-the Chairman of the Board and S. N. Hussain-a Senior Inspector who
was in Essen Area of West Germany immediately before the appellant, was
It is an argument of desperation to suggest
that M. A. Hussain was biased against the appellant to protect or help S. N.
Hussain. The charge of being communal levelled against the Chairman by the
appellant in his letter dated October 50 5, 1959 written to the Government of
India was obviously made with an ulterior motive after conclusion of the
enquiry and sensing that it had gone against the appellant. Great stress was
led in court to show M. A. Hussain's bias on the ground that at the earlier
stage in the later half of 1958 he had formed his opinion against the appellant
and recommended and insisted for the starting of a departmental enquiry against
him without any further preliminary enquiry.
Mr. Phadke submitted that the Government
turned down the proposal of M. A. Hussain and directed a preliminary enquiry to
be made by Pandey. We do not appreciate the force of this argument. It would
appear from the enquiry report that M. A. Hussain did not want, as he had no
time, to be the Chairman of the Board of Enquiry. Being a Deputy High
Commissioner he was too busy in other affairs of the State. But since the
matter to be enquired into was against a high official of the Government, M. A.
Hussain was appointed as the Chairman of the Board. The appellant never
objected to his being on the Board, until after the conclusion of the enquiry.
We are dis tressed to find that the appellant was ill-advised to invent at a
late stage a crudse and false story that on the 5th October, 1959 Doraiswamy-a
member of the Board of Enquiry had shown the secret file to the appellant which
showed the bias of M. A. Hussain as he had dealt with the matter in the latter
half of 1958. Although according to the statement in the Writ Petition (vide
para 28) he had written his letter dated October 5, 1959 after the alleged
showing of the confidential file by Doraiswamy to him, not a word is to be
found in the said letter to this effect. Such a story was put forward in the
written explanations which the appellant filed in answer to the punishment show
cause notices. We reject points 5 and 6 of the appellant.
Point no. 7 The enquiry was being conducted
in accordance with Rule 1730 of the Indian Railway Establishment Code, Volume
I. In the main body of the rule where a procedure for holding a departmental
enquiry has been provided for, there is nothing said in relation to the
engagement of a lawyer. Certain notes are appended to the rule. They seem to
have been appended not on the basis of the executive instructions but as parts
of the rule itself. One such note was appended as note 4, which subsequently
became note 3, on September 25, 1956 by the President of India who had framed
This note reads as follows:
"In a departmental enquiry, the accused
railway officer may, if he so desires, be accompanied by another railway
officer provided that the officer so nominated as the defence counsel is
approved by the competent authority to act as such, and provided also that the
person so nominated shall not be a professional lawyer. The term 'professional
lawyer includes those persons who are competent to practice in a court of law.'
In face of the above note, treating it as a part of the rule, the appellant was
not entitled to the services of a professional lawyer. Gottwald, 51 as it
appears, was a lawyer in name but actively in business. The services of a
professional lawyer were not necessary to cross-examine him. The fact was a
simple one as to whether he had paid money to the tune of about 24,000 D.M. to
the appellant from time to time. Even if we treat the note aforesaid as one
based merely on the executive instructions and not a part of the rule itself,
we see no reason to say that the authority was obliged not to follow the note
but to go against it. At the most it had a discretion in the matter. The
question is whether the discretion was rightly exercised or was it exercised so
arbitrarily as to lead to the conclusion that principles of natural justice
were violated when the services of a professional lawyer were not made
available to the appellant. We give the answers against the appellant. Great
reliance was placed for the appellant on a decision of this Court in C. L.
Subramaniam v. Collector of Customs, Cochin(1). In this case the argument that,
rule or no rule, the services of a professional lawyer should be made available
at a departmental enquiry when asked for was not accepted. What was held in
that case was that the disciplinary authority brushed aside the request of the
appellant before the Surpreme Court on a wrong ground completely ignoring the
circumstances which were relevant.
It was, therefore, said at page 490:
"Therefore that authority clearly failed
to exercise the power conferred on it under the rule. It is not unlikely that
the Disciplinary Authority's refusal to permit the appellant to engage a legal
practitioner in the circumstances mentioned earlier had caused serious
prejudice to the appellant and had amounted to a denial of reasonable
opportunity to defend himself." In Tara Singh etc. etc. v. State of
Rajasthan and Ors.(2) the importance which is to be attached to the note
appended the rule has been emphasized by Ray, C. J.
delivering the judgment on behalf of the
Division Bench of this Court to which one of us (Krishna Iyer, J) is a party,
in these terms:
"The notes are promulgated with the
rules in exercise of legislative power. The notes are made contemporaneously
with the rules. The function of the notes is to provide procedure and to
control discretion. The real purpose of the notes is that when rules are silent
the notes will fill up gaps." The appellant was not entitled as a matter
of right to have the services of any railway officer stationed in India to assist him in the conduct of his defence. He wanted an officer from India especially Shri Bhalla. It was not possible to make available the services of an
officer from India. The appellant was given a wide field of choice either to
choose any railway official stationed in London or in the continent or some
other personnel of the Indian High Commission in London. The accusations made
against the appellant were not 52 such that required any expert or special
skill. The question was a simple one whether he had taken money from Gottwald
in discharge of his official duties. Having appreciated all the facts and
circumstances of the case we have come to the conclusion that no principle of
natural justice was violated in not making available to the appellant the
services of Shri Bhalla or any other railway officer stationed in India for the conduct of his defence.
In the entire background of this case we find
a passage occuring at page 803 in the Judgment of Lord Denning, Master of the
Rolls in the case of R v. Secretary of State for the Home Department ex parte
Mughal(1) quite apposite to be quoted. The passage runs thus:
"The rules of natural justice must not
be stretched too far. Only too often the people who have done wrong seek to
invoke 'the rules of natural justice' so as to avoid the consequences." In
the result we find no merit in this appeal and dismiss it with costs.
V.P.S. Appeal dismissed.