Mumtaz Hussatn Ansari, Vs. State of
U.P. & ANR [1984] INSC 64 (21 March 1984)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA MISRA RANGNATH
CITATION: 1984 AIR 1116 1984 SCR (3) 244 1984
SCC (3) 295 1984 SCALE (1)515
ACT:
Travelling Allowances Rules (Financial
Handbook Volume Ill-Rule 20.(1)-Interpretation of G.O. No. 4197
R/VIIIA-500(146)68 Interpretation Government must pay expenses of material'
defence witnesses.
Natural Justice-Asking delinquent officer to
deposit expenses of material defence witnesses-Violates principles of natural
justice.
HEADNOTE:
In a departmental inquiry conducted by the
second respondent U.P. Administrative Tribunal into certain charges levelled
against the appellant a Deputy Superintendent of Police, the Tribunal dismissed
the application of the appellant praying for summoning 8 witnesses for being
examined in his defence. The Tribunal relied upon rule 20A(1) of the Travelling
Allowances Rules (Financial Handbook Volume III) and observed that the
appellant had to deposit the expenses of the witnesses, who were private
person, if he wanted to have them examined in his defence within a specified
time. The appellant did not deposit the amount and the witnesses were not
summoned. Pursuant to the finding of the Tribunal the appellant was removed
from service. The appellant filed a writ petition in High Court contending that
in view of G.O.. No. 4197 R/VIIIA/500(146)68 travelling allowance and diet
money of witnesses to be examined before the Tribunal must have been paid by
the State Government but he was asked to deposit a sum of Rs. 900 for the
witnesses being summoned and this was in violation of the relevant provision
relating to conduct of proceeding before the Tribunal. The High Court dismissed
the writ petition in limine. In this appeal the question was whether on this
account there was non-compliance with the principles of natural justice.,
Allowing the appeal,
HELD: There is no compliance with the
principles of natural justice in this case. [251C] Rule 20A(1) of the
Travelling Allowances Rules (Financial Handbook Volume III) is not quite clear,
for it does not say who should bear the expenses initially or whether the
reference to be made by the inquiring authority under clause (c) should be made
before or after the examination of the witnesses. Clause (b) of this sub-rule
seems to have been considered 245 satisfied in the present case as the Tribunal
had decided to summon the witnesses provided the amount was deposited by the
appellant as directed. [249B-C] G.O. No. 4191 R/VIIIA-500(146) which was
evidently intended to clarify Rule 20A of the Travelling Rules makes it clear
that responsibility for payment of travelling allowance to defence witnesses
produced in departmental inquiry conducted under s. 7 of the Police Act is of
the Government and that if a witness has been permitted to be produced in
defence it is not open to the inquiry officer to lay down a condition that his
travelling expenses should be first deposited by the delinquent officer before
the witness is examined. [250G-H] In the present case, the Tribunal has
considered the witnesses to be material but has insisted on the appellant
depositing initially a sum of Rs. 900 for the travelling expense and daily
allowance of the witnesses with an obligation to make good any shortfall in
those allowances and loss of professional income of the witnesses. The
respondent-State did not contend that this G.O.. does not apply to the case of
the appellant. Moreover, the appellant was under suspension from 11-12-1967 and
there is nothing on record to show that he was financially sound and in a
position to deposit the sum of Rs. 900 and pay any further amount which may be
required to next any shortfall in the travelling and daily allowances and the
loss of professional income of the 8 more witnesses whom he wanted to be
examined on his side. The failure to cause the production of those witnesses at
the expense of the Government might have caused prejudice to the appellant for
it cannot be predicated what conclusion the Tribunal would have reached in
regard to charges 1 to 3 if the evidence of those witnesses was available for
its consideration. [250H, 251 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1234 of 1977.
From the Judgment and Order dated 19.8.74 of
Allahabad High Court in Civil Writ Petition No. 4827 of 1974 R.K. Garg and
Shakeel Ahmed Syed for the appellant.
Prithviraj, Mrs. S. Dikshit, S.K. Kulshreshta
and P. Mishra for the respondents .
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is directed against an order of a
Division Bench of the Allahabad High Court dated 19.8.1974 dismissing in limine
Miscellaneous Writ Petition No. 4827 of 1974 which had been filed by the
appellant for quashing the 246 first respondent's order dated 3.5.1974 removing
him from service pursuant to the finding of the second respondent, U.P.
Administrative Tribunal, Lucknow dated 10.7.1972 that the appellant was guilty
of three of the four charges framed against him. The appellant was employed as
a Deputy Superintendent of Police at Pilibhit at the relevant time.
The fourth charge of which the appellant 'has
been exonerated was that he had transferred his Vespa Scooter bearing
Registration No. UPI-9117 and valued at more than Rs. 500/- to One Lal Mohd.
without obtaining the previous sanction of the appropriate authority and he
thereby.
contravened Rule 24(2) of the U.P. Government
Servants' Conduct Rules, 1956. The appellant's defence was that the transfer
was effected through a reputed dealer and therefore previous sanction of the
appropriate authority was not necessary. The Tribunal found that the
transaction of sale of the scooter by the appellant to Lal Mohd was effected
through M/s. Anand Agencies, automobile engineers and reputed dealers in
scooters and therefore there was sufficient compliance with Rule 24(2).
Charges 1 to 3 were more serious ones. The
substance of the first charge was that the appellant while posted as Deputy
Superintendent of Police at Pilibhit was granted 30 days leave with effect from
11.11.1967 and had to resume his duties on 10.12.1967 but failed to resume his
duties and absented himself without previous permission or intimation to the
Superintendent of Public and without good or sufficient cause. He failed to
report about his whereabouts until an application was made by him on 24.4.1968
for extension of the leave. The appellant's defence was that he suffered from
an attack of a mental disease, melancholia and was under the treatment of Dr.
Mukerji at Calcutta from 1.12.1967 to 20.4.1968 and he has informed about his
sudden illness and had applied for extension of the leave directly and also
through his wife and he had furnished his leave address when he proceeded on 30
days leave. The substance of the second charge was that while applying for
extension of leave on 20.4.1968 he attempted to willfully deceive the Inspector
General of Police by attempting to make him believe that he had been ill from
1.12.1967 to 20.4.1968 and was under treatment of a doctor at Calcutta although
in fact he had been to Pakistan during the period and had obtained a medical
certificate through deceitful and fraudulent' means.
The defence of the appellant was one of
denial. He reiterated that he was under treatment of Dr. Mukerji at Calcutta
from 1.12.1967 to 20.4.1968 and contended that in that 247 period he was
treated by Dr. Das at Howrah from 10.1.1968 to 30.1.1968 for injuries to his
nose. The substance of the third charge was that after having proceeded on
leave with effect from 11.11.1967 he unauthorisedly and unlawfully visited
Karachi in Pakistan some-time between 22.11.1967 and 20.4.1968 without any
valid passport or travel document and the he by contravened s. 3 of the
Passport Act, 1967. The appellant denied the charge and contended that he had
never visited Karachi and had been suffering from melancholia and treated by
Dr. Mukerji at Calcutta.
A number of witnesses for the department and
some witnesses to the defence were examined before the Tribunal which a after
considering the oral and documentary evidence found charges 1 to 3 against the
appellant. One Harish Kumar, Superintendent of Police who was appointed as an
assessor in the inquiry conduct before the Tribunal agreed with the findings of
the Tribunal. Subsequently, the Tribunal submitted copies of its findings to
the Government with its recommendation that the appellant may be dismissed from
service. The Governor accepted the Tribunal's findings, took a tentative
decision to dismiss the appellant from service; and issued a second show cause
notice dated 29.9.1972 to him. The appellant submitted his interim reply and
final reply on 19.11.1972 and 31 3.1973 respectively.
After considering the appellant's replies the
Governor agreed with the Tribunal that the charges 1 to 3 are fully established
against the appellant and ordered his removal from service by the order dated
1.8.1974.
The appellant challenged his removal from
service in W.P. No. 4827 of 1974 which was dismissed in limine by a Division
Bench of the Allahabad High Court. Hence this appeal by special leave.
This appeal deserves to be allowed on a short
point which unfortunately has not been noticed by the learned Judges of the
High Court before dismissing the writ petition in limine. The appellant had prayed
for summoning 8 witnesses for being examined in his defence by filing an
application dated 17.1.1972 for that purpose. The Tribunal dismissed that
application on 19.1.1972 on the ground that it had already taken into
consideration the relevant rules in the Financial Code Volume III and that it
does not consider it necessary to revise its views. The Tribunal observed in
that order that the appellant has to bear the expenses of the witnesses who are
private persons if he wanted to have them examined in his 248 defence. He was,
however, given one week's time to deposit a sum of Rs.900 initially by way of
travelling and daily allowances for the witnesses as well as compensation for
the loss of their professional income and he was ordered to make good any shortfall.
The appellant had not deposited that amount and the witnesses had not been
summoned for being examined in his defence. The question for consideration is
whether on this account there is non-compliance with the principles of natural
justice.
The Tribunal has relied upon Rule 20A of the
Travelling Allowances Rules (Financial Handbook Volume III) in making the above
order. Sub-rule l of that Rule reads thus:
"20A. (13 Persons, who, not being
servants of the Government, are called as witnesses in a departmental inquiry
either by the authority conducting the inquiry or on behalf of the government
servant whose conduct is under inquiry, shall receive the same travelling
allowance and diet money as are admissible to non- official witnesses summoned
in criminal cases, provided that in the case of such persons who are called on
behalf of the government servant whose conduct is under inquiry, the payment of
travelling allowance and diet money shall be subject to the following
principles:
(a) travelling allowances may be Paid to
witnesses summoned in the event of the government servant concerned clearing
himself;
(b) such allowances will be paid only in
respect of witnesses whose evidence is considered of material value by the
authority conducting the inquiry; and (c) in exceptional cases the authority
conducting the & inquiry may, on grounds to be recorded, recommend to the
Government that the principles laid down above be departed from owing to
special reasons. In such cases it will be for the Government to decide, after
taking into consideration all the circumstances of the case, whether the
recommendation should be accepted or not.
The authority, conducting the inquiry shall
determine the class of each witness for the purpose of calculating travel- 249
ling allowance and diet money under the scale prescribed for witnesses in
criminal case." This sub-rule is not quite clear, for it does not say who
should bear the expenses initially or whether the inference to be made by the
inquiring authority under class (c) should be made before or 1 after the
examination of the witnesses. Clause (b) of this sub-rule seems to have been
considered satisfied in the present case as the Tribunal had decided to summon
the witnesses provided the amount was deposited by the appellant as directed.
The appellant has contended in para 31 of his writ petition that in view of
G.O. No. 4l97 R/VIIIA-500 (146)/68 travelling allowance and diet money of
witnesses to be examined before the Tribunal must have been paid by the State
Government but he was asked to deposit a sum of Rs.900 for the witnesses being
summoned and this is in violation of the relevant provision relating to conduct
of proceedings before the Tribunal. The said G.O. marked Annexure-11 to the
writ petition relates to one Kunhi Ram and was evidently intended to clarify.
Rule 20A of the Traveling Rules and it reads thus:
"In continuation of G.O. No. 1371-1/VIII
2000 (10/61, dt. July 3, 1961)- I am directed to say that in the special appeal
the appellant had contended that the additional S.P. Agra had asked him to
deposit the expenses for T.A. etc. of defence witnesses before he summoned
them. The position in this connection has been examined by the Govt and is
being clarified here. Under para 490(5) of the police regulations the S.P. has
to decide whether he should refuse to summon a , witness whose evidence he does
not consider material to the issue. The witnesses who are accepted by the S.P.
for being produced in defence can be either summoned by him or allowed to be
produced by the party charged, So far as the question of payment of expenses
for the journey by a defence witness is concerned it is not material when once
a witness is permitted to be produced whether he is summoned officially or is
called by the party charged himself. The responsibility for payment of
travelling expenses to the defence witnesses produced during departmental trial
conducted under section 7 of the Police Act is of the Government. Thus if a
witness has been permitted to be produced in defence, it is not open to the
inquiring officer to lay down a condition that this travelling expenses should
be first deposited 250 before he is summoned. However, no expenses are to be
paid for persons who are not permitted to be produced in defence.
The position with regard to the payment of
travelling expenses to the defence witnesses is as follows:
(i) Govt. servants who appear as defence
witnesses to give evidence of the facts which come to their knowledge in their
official capacity are governed by Rule 59(1) of the Financial Handbook Volume
III for the purpose of travelling allowance;
(ii) As regards govt. servants who appear as
witnesses to facts which have come to their knowledge in the private capacity
and appear as private individuals the position under rule 59(2) of Financial
Handbook Volume III is that they are entitled to receive their actual
travelling expenses from the Court and as suck they will get T.A, on an ad hoc
basis and as on tour. Thus if he is a Govt. servant travelling in a train.....
as an ordinary passenger and has to bear witness to that in his private
capacity he should be paid T.A. as on tour. The Meharrirs of the Police
Stations bringing records which they maintain at P.S.s. in their official
capacity will be governed by class (1) above.
(iii) Non-official witnesses called or
allowed to be produced by the S.P. will get T.A. under rule 20A of Financial
Handbook Volume Ill." This G.O.. makes it clear that responsibility for
payment of travelling allowance to defence witnesses produced in departmental
inquiry conducted under s. 7 of the Police Act is of the Government and that if
a witness has been permitted to be produced in defence it is not open to the
inquiry officer to lay down a condition that his travelling expenses should be
first deposited by the delinquent officer before the witness is examined. In
the present case, the Tribunal has considered the witnesses to be material but
has insisted on the appellant depositing initially a sum of Rs. 900 for the
travelling expense and daily allowances of the witnesses with an obligation to
make good any shortfall in those allowances and loss of professional income of
the witnesses. Mr. Prithvi Raj, Senior Counsel appearing 251 for the
respondent-State did not contend that this G.O. does not A apply to the case of
the appellant.. Moreover, the appellant was under suspension from 11.12.1967
and there is nothing on record to show that he was financially sound and in a
position to deposit the sum of Rs.900 and pay any further amount which may be required
to meet any shortfall in the travelling and daily allowances and the loss of
professional income of the 8 more witnesses whom he wanted - to be examined on
his side. The failure to cause the production of - those witnesses at the
expense, of the Government might have caused prejudice to the appellant for it
cannot be predicated what conclusion the Tribunal would have reached in regard
to charges 1 to 3 if the evidence of those witnesses was available for its
consideration. We are, therefore, of the opinion that there is no compliance
with the principles of natural justice in this case. The appeal has to be
allowed on this short ground and it is accordingly allowed. The finding of the
Tribunal that the appellant is guilty of charges l to 3 and the consequent
order of the Government/Governor removing the appellant from service are
quashed. The matter is remitted to the Tribunal for fresh disposal after
summoning at government expense such of the material witnesses as the appellant
may wish to be examined in his defence. The appellant shall be entitled to
costs quantified at Rs. 2,000. It is needless to say that the appellant would
be entitled to subsistence allowances from the date of his removal from service
until the proceedings taken against him terminate and final order is passed.
This shall be paid in six weeks.
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