Nand Kishore Prasad Vs. State of Bihar
& Ors [1978] INSC 88 (19 April 1978)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
KAILASAM, P.S.
CITATION: 1978 AIR 1277 1978 SCR (3) 708 1978
SCC (3) 366
ACT:
Constitution of India, 1950-Art.
226-Interference by High Courts, only when an impugned order suffers from any
error of law or of no evidence.
HEADNOTE:
The appellant a Bench Clerk and one Trilok
Prasad Sinha, Fines Clerk were tried for various offences under sections 120B,
409, 466, 474 and 477A I.P.C. for embezzlement of a sum of Rs. 1068/- being
fines recovered by the Police and remitted to the Court through Money Orders.
The Trial Magistrate discharged them. A departmental enquiry was, thereafter,
instituted against him and on the inquiry report submitted by the Sub
Divisional Officer, Sararam, the District Magistrate who was the authority
competent to appoint and remove the appellant, held : "The conduct of Nand
Kishore Prasad is highly suspicious but for insufficient evidence proceedings
against him has to be dropped." Thereafter, the Commissioner of Patna
Division called upon the appellant to show cause why he should not be dismissed
from service and after perusing the reply submitted by the appellant reversed
the order of the District Magistrate and directed removal of the appellant from
service. An appeal made to the Board of Revenue failed. The Writ Petitions
filed in the Patna High Court, against the said orders were dismissed holding
that since there was some evidence albeit not sufficient for conviction in a
criminal Court, it could not be quashed in proceedings under the Art. 226 of
the Constitution.
Dismissing the appeal by certificate, the
Court
HELD : 1. Two principles as crystallised by
judicial decisions are to be born in mind, while dealing with a case of the
present type. The first is that disciplinary proceedings before a domestic
tribunal are of a quasi- judicial character. Therefore, the minimum requirement
of the rules of natural justice is that the tribunal should arrive at its conclusion
on the basis of some evidence, i.e. evidential material which with some degree
of definiteness points to the guilt of the delinquent in respect of the charge
against him. Suspicion cannot be allowed to take the place of proof even in
domestic inquiries. The second principle, which is a corollary from the first,
is that if the disciplinary inquiry has been conducted fairly without bias or
predilection, in accordance with the relevant disciplinary rules and the
Constitutional provisions, the order passed by such authority cannot be
interfered with in proceedings under Article 226 of the Constitution, merely on
the ground that it was based on evidence which would be insufficient for
conviction of the delinquent on the same charge at a criminal trial. [713 D-G]
Union of India v. H. C. Goel A.I.R. 1964 SC 364 referred to.
2. (a) In the instant case :-It was not a
case of no evidence, but of evidence which was not adequate enough to carry
conviction at a criminal trial. The High Court was, therefore, right in holding
that the impugned orders did not suffer from any error of law which may warrant
an interference in proceedings under Art. 226 of the Constitution. [715G] (b) A
conjoint reading and analysis of the impugned orders of the Commissioner and
the Member, Board of Revenue would show that they purport to rest on these
primary facts :
a. Fine amounting to Rs. 1,068/- was realised
by the Police and sent to the Court of the Magistrate, Sasaram, by money
orders, where it was received on September 4, 1950.
b. When this fine was imposed, and the
aforesaid money orders were received, the appellant (Nand Kishore Prasad) was
the Bench Clerk 709 of the Magistrate. The fine records were with him and it
was he who used to issue distress warrants for realisation of outstanding fine.
But after 4-9-1950 he did not take further
action for recovery of the fine in question, or for ensuring that the convicts
suffered imprisonment in default of payment of fine inflicted on them by the
Court.
A "receipt" (money order coupon)
has been produced "indicating that the Petitioner (Nand Kishore Prasad)
had received this amount".
"It is clear from the circumstances of
the case that the money realised was not deposited.... I see no reason to
interfere with the order of discharge" (passed by the Commissioner holding
that the amount of Rs.
1,068/- had been embezzled between Nand
Kishore Prasad, Bench Clerk, and Triloki Prasa d Sinha, Fines Clerk). [714A-D]
(c) While it is true that the impugned orders are unjustifiably brief it is not
correct that they are totally bereft of reference to or discussion of evidence.
There is in the impugned orders a specific reference to the money order coupon
which the Member of the Board of Revenue has termed as 'receipt'. Indeed, the
main-stay of the impugned orders is the circumstantial evidence furnished by
the conduct of the appellant in not taking further action for the realisation
of the fine. [714 H, 715 A] (d) It is true that the impugned orders do not
fully measure up to the devoutly desired standard viz.
desirability of writing a self-contained
speaking order in disciplinary proceedings. Nevertheless, they do contain a
bald and general allusion to the primary facts and a cryptic inference
therefrom. As there was no specific reference to or discussion of the evidence,
the High Court examined the record of the disciplinary tribunal not with a view
to make out or reconstruct a new case, but only to see whether there was some
evidence of the primary fact relied upon by the domestic tribunal in support of
its conclusion. There is no impropriety in the course adopted by the High
Court. [715 A- C]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2313 (N) of 1968.
From the Judgment and Order dated 28th day of
July 1966 of the Patna High Court in Misc. Judl. Case No. 1273 of 1974.
A. B. N. Sinha, S. K. Sinha and K. K. Sinha
for the Appellant.
R. C. Prasad for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This is an appeal by certificate under Article 133 (1) (a) and (b)
of the Constitution from a Judgment dated July 28, 1966 of the Patna High
Court, dismissing the appellant's writ petition under Article 226 of the
Constitution, for impugning an Order of his removal from Government service.
The facts are as follows :- The appellant,
Nand Kishore Prasad, was appointed as a ministerial servant by the District
Magistrate, Shahabad, in his office at Arrah on June 16, 1930. He was confirmed
in service in the year 1933.
710 In 1950, the appellant was transferred to
Sasaram as a Bench Clerk in the Court of Shri R. Singh, Judicial Magistrate.
His normal duty was to aid and assist the
Court by putting up cases for hearing and disposal.
In April 1952, he was transferred from
Sasaram to Buxer as an Election Clerk. On September 16, 1954, the Sub-
Divisional Officer, B Sasaram, summoned the appellant and asked him to explain
the outstanding fine of Case No. 886- C/104 T.R. of 1950 (The State v. Sarju
Chaubbe & Ors.), decided by Shri R. Singh, Magistrate, Sasaram, on April
26, 1950.
Three Money Order coupons, two for Rs. 500/-
each and one for Rs. 68/-, were sent by the Police Sub-Inspector of Kargahar to
the C Magistrate, Shri R. Singh. These amounts represented the fine recovered
from the persons who were convicted in the aforesaid case. The appellant was
confronted with those Money Order coupons which purported to bear the initials
of the appellant, and was asked to trace if the money had been credited to the
Government. The appellant inspected the records and found an entry in the Fine Register
of the D Court relating to the year 1951 which was to the effect, that an
appeal arising out of the case, in question, had been allowed and the fine
remitted.
'The appellant brought that entry to the
notice of the then Magistrate, Shri M. P. Singh, and submitted a written report
to the Sub-Divisional Officer, stating that the initials on the Money Order
coupons were not his and he had never received the amounts. The' appellant
further mentioned that he had discovered the aforesaid entry in the Fine Register.
At the relevant time, one Triloki Prasad
Sinha was the Fines Clerk in the Court at Sasaram and the entry, in question,
in the Fine Register was in his hand-writing. Triloki Prasad Sinha admitted
that this entry of remission was in his hand- writing, but alleged that he had
made it on the basis of an extract of the order of the Appellate Court,
transmitted to him by the appellant. The appellant-denied that he had sent any
such extract or information to the Fines Clerk and alleged that, according to
the practice of the office, appellate judgments were transmitted to the Fines
Clerk, in original, by all the Courts, regularly.
On January 26, 1955, the appellant was
suspended from service. On February 1. 1955, the Magistrate in-charge of Fines,
Sasaram, lodged a First Information Report in the local Police Station for
prosecution of Triloki Prasad Sinha and the appellant in respect of offences
under Sections 120- B, 409, 466, 468, 474 and 477(A) of the Indian Penal Code.
After investigation, the Police submitted a
charge-sheet in the Court of the Sub-Divisional Magistrate, Sasaram, against
both Triloki Prasad Sinha and the appellant.
The Trial Magistrate, after making an inquiry
under Chapter XVII of the Criminal Procedure Code, 1898, discharged both the
accused persons, holding-(i) that there was nothing direct against Nand Kishore
Prasad (appellant herein) to show that he had sent a 711 false or wrong extract
to the Fines Clerk, "except the statements of a co-accused exculpating
himself which is of little worth", and (ii) that "this accused cannot
be connected with the receipt of the money", i.e. the Money Orders in
question.
On February 29, 1956, after his discharge by
the Criminal Court, the appellant submitted his joining report to the
Sub-Divisional Officer, Buxer, and prayed for permission to join duty. No
orders were passed on that application of the appellant, for a couple of
months. His suspension was continued and on July 31, 1956, a Departmental
inquiry was instituted against him on these charges :-- "(1) Dishonestly
receiving Rs. 1,068/- being the fine money collected and sent by three M.0s. by
the S.I. of Police, Kargahar, in respect' of Criminal Case No. GR 886/TR 104 on
4-9-50 to the Court of Shri R. Singh, Judicial Magistrate, Sasaram, of whom he
was the Bench Clerk.
(2) Issuing an incorrect extract of order of
the Appellate Court in Criminal Appeal No. 65 of 1950 to Sliri Triloki Prasad,
the then Fine Clerk, and conspiring with Shri Triloki Prasad and
misappropriating Rs. 1,068/- sent by the S.I. of Police, Kargabar on
4-9-50".
The inquiry was held by the Sub-Divisional
Officer, Sasaram who, after concluding it, submitted his report to the District
Magistrate, Sasaram, who was the authority competent to appoint and remove the
appellant from service.
The District Magistrate, ultimately, by his
order, dated March 19, 1950, held: "The conduct of Shri Nand Kishore
Prasad is highly suspicious but for insufficient evidence proceeding against
him has to be dropped". This order of the District Magistrate was
communicated to the appellant as per Memo. No. 278, dated April 19, 1960.
More than two months thereafter, a letter,
dated June 29, 1960, was sent by the P.A. to the Commissioner of Patna
Division, calling upon the appellant to show cause as to why he should not be
dismissed from service. To this "show- cause" letter, the appellant
submitted a detailed reply, representing inter alia, that since the Magistrate
had found him not guilty, in the absence of fresh or further evidence showing
that he had received the Money Orders, it would be violative of the elementary
principles of natural justice, to punish him in the departmental proceedings by
using a portion only of the judgment of the Court of law. He extracted
copiously from the judgment of the Magistrate to show that the charges against
him were baseless. He reiterated that he had not received the amount of the
Money Orders, and the initials on the Money Order coupons were not his.
The Commissioner reversed the order of Lb(,,
District Magistrate and directed removal of the appellant from service. Since a
good 712 deal of argument before us centres around the legality of the
Commissioner's order, dated October 8, 1960, it will be worthwhile to quote its
material portion in extenso :
"Although from the evidence recorded
against this Clerk it appears that there was no direct independent proof of
embezzlement by him, yet, in my opinion, there is strong suspicion against this
clerk which has also been indicated sufficiently clearly by the then trying
Court, Shri A. K. Sinha, Magistrate, 1st Class, Sasaram, while passing an order
of discharge against him under Section 207A of Cr. P.C. in the Criminal case
against him.
The Court observed as follows :
"One may suspect him about it, if at
all, a Bench Clerk as he was, as the M.O. coupons purport to bear the like of
his initials, but that is not enough for justifying a criminal action against
him. The case is not raised beyond a stage. of suspicion, if at an, as against
this accused." "It is evident that the amount of the fine was
realised and sent to the Magistrate and it was received by Shri Nand Kishore
Prasad. The fine records were with Shri Nand Kishore Prasad and Shri Triloki
Prasad Sinha. and between them the amount of Rs. 1,068/was embezzled. Shri Nand
Kishore Prasad appears to be thoroughly unreliable and the punishment in
respect of his conduct should be deterrent in nature.
"Accordingly........ I hereby order that
Shri Nand Kishore Prasad be discharged from service." The appellant went
in Revision to the Board of Revenue against the Commissioner's Order. The Board
on August 31, 1963, by a short order, dismissed the Revision and affirmed the
order passed by the Commissioner. This order of the Board of Revenue was
communicated to him on February 14, 1964.
On September 23, 1964, the appellant moved
the High Court at Patna by a writ petition under Article 226 of the
Constitution, challenging his removal from service.
The learned Judges of the High Court while
observing that the Commissioner's Order was somewhat cryptic and did not make a
specific and pointed reference to the evidence against the writ petitioner,
noted that the Commissioner had drawn his conclusion about the guilt of the
petitioner "from the fact that the petitioner was in actual charge of the
fine record and it was his duty to take necessary action for realization of the
fine until due payment thereof". The H High Court further observed that
"the mere fact that the Commissioner has not discussed in detail the
circumstantial evidence against the petitioner, was not a sufficient ground for
setting aside the im- 713 pugned order, because this aspect has been more
elaborately referred to in the impugned order of the Board of Revenue.
The High Court concluded that since there was
some evidence- albeit not sufficient for conviction in t criminal court-in
support of the impugned order, it could not be quashed in proceedings under
Article 226 of the Constitution. In the result, the writ petition was
dismissed.
Learned counsel for the appellant contends
that the impugned orders are based merely on suspicions and conjectures, and
not on any evidence whatever, and as such, are bad in law.
It is submitted that the High Court had
over-stepped its writ jurisdiction inasmuch as it reappraised the evidence, and
reconstructed the case as if it were itself a domestic tribunal, reviewing in
appeal the orders of the Commissioner and the Board of Revenue.
As against this, counsel for the Respondent
submits that the High Court had. examined the evidence on the record of the
domestic tribunal, not to make out a new case, but to satisfy itself that the
impugned orders were based on circumstantial evidence which had been
cryptically alluded to by the Commissioner and more elaborately mentioned by
the Member of the Board of Revenue in the impugned order.
Before dealing with the contentions
canvassed, we may remind ourselves of the principles, in point, crystallised by
judicial decisions. The first of these principles is that disciplinary
proceedings before a domestic tribunal are of a quasi-judicial character;
therefore, the minimum requirement of the rules of natural justice is that the
tribunal should arrive at its conclusion on the basis of some evidence, i.e. evidential
material which with some degree if definiteness points to the guilt of the
delinquent in respect of the charge against him. Suspicion cannot be allowed to
take the place of proof even in domestic inquiries. As pointed out by this
Court in Union of India v. H. C. Goel(1) , the principle that in punishing the
guilty scrupulous care must be taken to see that the innocent are not punished,
applies as much to regular criminal trials as to disciplinary enquiries held
under the statutory rules." The second principle, which is a corollary from
the first, is, that if the disciplinary inquiry has been conducted fairly
without bias or predilection, in accordance with the relevant disciplinary
rules an the Constitutional provisions, the order passed by such authority
cannot be interfered with in proceedings under Article 226 of the Con-
stitution, merely on the ground that it was based on evidence which would be
insufficient for conviction of the delinquent on the same charge at a criminal
trial.
The contentions in the instant case resolve
into the narrow issue : Whether the impugned orders do not rest on any evidence
whatever,' but merely on suspicions, conjectures and surmises.
(1 I.R. 1964 S.C. 364.
11-315SCI/78 714 A conjoint reading and
analysis of the impugned orders of the Commissioner and the Member, Board of
Revenue would show that they purport to rest on these primary facts :- (a) That
fine amounting to Rs. 1,068/- was realised by the Police and sent to the Court
of the Magistrate, Sasaram, by money orders, where it was received on September
4, 1950.
(b) When this fine was imposed, and the
aforesaid money orders. were received, the appellant (Nand Kishore Prasad) was
the Bench Clerk of the Magistrate. The fine records were with Nand Kishore
Prasad and it was he who used to issue distress warrants for realisation of
outstanding fine.
But after 4-9-1950, he did not take further
action for recovery of the fine in question, or for ensuring that the convicts
suffered imprisonment in default of payment of fine inflicted on them by the
Court.
(c) A "receipt" (money order
coupon) has been produced "indicating that the petitioner (Nand Kishore
Prasad) has received this amount".
(d) "It is clear from the circumstances
of the case that the money reallied was not deposited. I see no reason to
interfere with the order of discharge" (passed by the Commissioner holding
that the amount of Rs. 1068/- had been embezzled between Nand Kishore Prasad,
Bench Clerk, and Triloki Prasad Sinha, Fines Clerk).
It wilt be noticed that the recovery of the
fine and its remittance to the Court as per money order (as set out in (a)
above) was never disputed by the appellant. He only disputed that the initials
on the money order coupons purporting to be his, were not executed by him. His
implied defence was that somebody who had received the amount of the money
orders, had forged his (appellant's) initials on the Money Order Coupon. On
this point, at the criminal trial of the appellant'. a handwriting expert was
examined, who stated that no definite opinion could be given as to whether
these initials were executed by Nand Kishore Prasad. The Magistrate, therefore,
gave the appellant benefit of doubt on this point. But the disciplinary
Tribunals (i.e. the Commissioner and the Member, Board of Revenue) have,
presumably on examining the disputed initials on the Money Order Coupon (called
"receipt" in the impugned order of the Board) couple with the
circumstance (b), mentioned above, unanimously reached the finding that the
amount of the aforesaid Money Order was received by Nand Kishore Prasad.
From the appellant's conduct in not taking
any action thereafter for realisation of the fine in question, they concluded
that he did not do so because the fine bad been realised and the amount had
been embezzled by him.
It was urged before us that since the
impugned orders do not specifically refer to any evidence or discuss it, they
should be taken to be based on no evidence, whatever. While it is true that the
impugned orders are unjustifiably brief, it is not correct that they are totally
bereft of all reference to or discussion of evidence. There is in the 715
impugned orders a specific reference to the Money Order coupon which the Member
of the Board of Revenue has termed as a "receipt". Indeed, the
main-stay of the impugned orders is the circumstantial evidence furnished by
the conduct of the appellant, in not taking any further action for the
realisation of the fine.
The desirability of writing a self-contained
speaking order in disciplinary proceeding culminating in an order of removal of
the delinquent from service, cannot be over- emphasised. It is true that the
impugned orders do not fully measure upto this devoutly desired standard.
Nevertheless, they do contain a bald and
general allusion to the primary facts, and a cryptic inference therefrom. There
is no specific reference to or discussion of the evidence.
The High Court, therefore, examined the
record of the disciplinary tribunal, not with a view to make out or reconstruct
a new case, but only to see whether there was some evidence of the primary
facts relied upon by the domestic tribunal in support of its conclusion. We do
not see any impropriety in the course adopted by the High Court.
On examination of the Tribunal's record, 'he
High Court found that there was oral and documentary evidence before the
disciplinary tribunal; that at all times material to the imposition,
realisation and receipt of the fine amounts in question, all the fine record,;
in the Court of the Magistrate, Sasaram, used to remain. with the Bench Clerk,
i.e., the appellant. The Inquiry Officer had examined three witnesses, namely :
Triloki Prasad Sinha, Rang Bahadur Singh and Kalka Prasad. The evidence of
Triloki Prasad Sinha was certainly of an accomplice character, but the evidence
of Ran- Bahadur Singh, who was the Fines Clerk before Triloki Prasad Sinha, and
of the Head Clerk Kalka Prasad, did not suffer from such a flaw. From their
evidence, it was clear that in actual practice all the fine records, were being
maintained by the Bench Clerk, and it was he who used to take all necessary
steps, including the preparation and issue of distress warrants for realisation
of outstanding fine. The Fines clerk made entries in the Fines Register in
accordance with the intimation sent by the Bench Clerk.
This practice continued till March 1951, when
Mr. Gorden, the then District Magistrate directed that all fine records must be
made over to the Fines Clerk by May 14, 1951. The fine amounts in question,
were evidently recovered in execution of a distress-warrant, issued by the
Magistrate.
In view of what has been said above, it is
clear that this was not a case of no evidence, but of evidence which was not
adequate enough to carry conviction at a criminal trial.
The High Court was, therefore, right in
holding that the impugned orders did not suffer from any error of law which may
warrant an interference in proceedings under Article 226 of the Constitution.
In the result, the appeal meets with failure
and is dismissed without any order as. to costs.
S.R. Appeal dismissed.
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