Arjun Chaubey Vs. Union of India & Ors [1984] INSC 65 (23 March 1984)

CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D.

PATHAK, R.S.

MADON, D.P.

THAKKAR, M.P. (J)

CITATION: 1984 AIR 1356 1984 SCR (3) 302 1984 SCC (2) 578 1984 SCALE (1)612

CITATOR INFO :

F 1985 SC1416 (130)

ACT:

Service Jurisprudence-Dismissal order passed by the competent authority dispensing with an enquiry under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules 1968 read with Proviso (b) to Article 311(2) of the Constitution Majority of charges of appellant's misconduct are in relation to competent authority who dismissed him- Doctrine of bias-Accusser cannot be a judge of his own cause-Natural Justice, Principles, violated.

HEADNOTE:

The appellant was working as a senior clerk in the office of the chief Commercial Superintendent. Northern Railway, Varanasi on May 22, 1982, the senior Commercial officer wrote a letter to him calling upon him to offer his explanation in regard to twelve charges of gross indiscipline, mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation to the charges by his reply dated June 9, 1982. On the very next day, the Deputy Chief Commercial Superintendent served a second notice upon the appellant saying that the explanation offered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him earlier. By this letter, the appellant was also called upon to submit his explanation within three days' as to why deterrent disciplinary action should not be taken against him. The appellant submitted his further explanation on June 14, 1982, but on the very next day, the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service.

The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on various grounds. The writ petition was dismissed and hence the appeal special leave of the Court.

Allowing the appeal, the Court.

HELD: 1: 1. The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the appellant and Respondent No. 3 (the dismissing authority) was speaking the truth was decided by Respondent No. 3. The main thrust of the charges against the appellant related to his conduct qua Respondent

3. Therefore, it was not open to the latter to sit in Judgment over the explanation offered by the appellant and decided that the explanation was untrue. No person can be a judge in his own 303 cause and no witness can certify that his own testimony is true. Anyone who has a personal stake in an enquiry must keep himself aloof from the conduct of the inquiry. [306 F- H] 1: 2. On the facts of the case, the illegality touching the proceedings which ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an indelible stamp of infirmity" on the decision of Respondent No. 3. [307 B-C]

2. From the charges 2 to 7 and 11, it is obvious that if an enquiry were to be held into the charges framed against the appellant, the principal witness for the Department would have been Respondent No. 3 (the dismissing authority) himself as the main accuser and the target of appellant's misconduct. Surprisingly, the explanation dated June 9, 1982 of the appellant to the letter of accusation dated May 22,1982 was considered on its merits by Respondent himself. Thereby, the accuser became the Judge. [305 G-H, 306 A] Not only that, the further explanation submitted by the appellant was considered by Respondent No. 3 himself. The order of dismissal dated June 15, 1962 which was issued by Respondent No. 3 recites that he was fully satisfied that it was not reasonably practicable to hold an inquiry into the appellant's conduct as provided by the Rules and that he had come to the conclusion that the appellant was not fit to be retained in service and had, therefore, to be dismissed, Evidently, Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was truthful person and the appellant a liar. In doing this Respondent No. 3 violated a fundamental principle of natural justice. [305 B-C, 306 F] The State of U.P. v. Mohammad Nooh [1958] SCR 595, referred to.

3. The contention that inspite of the above legal position, the appellant does not deserve the assistance of the court, since he was habitually guilty of acts subversive of discipline cannot be accepted. In the first place, to hold the appellant guilty of habitual acts of indiscipline is to assume something which remains unproved, Secondly, the illegality from which the order of dismissal passed by Respondent No. 3 suffers is of a character so grave and fundamental that the alleged habitual misbehaviour on the part of the appellant cannot cure or condone it. [307 C-E]

4. The aviod needless complications in working out the mutual rights and obligations of the parties, the court directed:

(i) The appellant who is due to retire from service shall be treated as having retired from service with effect from April 1, 1984:

(ii) He shall be paid arrears of salary due until March 31, 1984 on the basis of salary last drawn by him on June 15, 1982 without taking into account the increments which he might have earned subsequent to that date:

304 (iii) The Provident Fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules, as if no order of dismissal was passed against him; and (iv) he may not and shall not rejoin his duties and he will be treated as on leave between 23rd March, 1984 and 31st March, 1984. [307 F-H, 308 A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2613 of 1983.

From the Judgment and order dated 19-11-82 of Allahabad High Court in Civil Misc. Writ No. 8287 of 1982.

R.K Garg, S.N. Singh and D.K. Garg, for the appellant.

P.R. Mridul, Miss A. Subhashini, R.N. Poddar, C.V. Subba Rao and A.K. Ganguli for the respondents.

The judgment of the Court was delivered by CHANDRACHUD, C.J. The appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. On May 22, 1982 the Senior Commercial officer wrote a letter to him, calling upon him to offer his explanation in regard to 12 charges of gross indiscipline. The appellant submitted his explanation to the charges by his reply dated June 9, 1982. On the very next day, the Deputy Chief Commercial Superintendent served a second notice upon the appellant, saying that the explanation offered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him by the letter of May 22, 1982. By this letter, the appellant was also called upon to submit his explanation within three days as to why deterrent disciplinary action should not be taken against him. The appellant submitted his further explanation on June 14, 1982, but on the very next day, the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service.

The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on various grounds. The Union of India, the Senior Commercial officer and the Deputy Chief Commercial Superintendent were impleaded to that petition 305 as Respondents 1 to 3. That writ petition having been dismissed by the High Court, the appellant has filed this appeal by special leave.

The order dismissing the appellant from service was passed by Respondent 3 under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 read with Proviso (b) to Article 311(2) of the Constitution.

Respondent 3 recorded his reasons in writing for coming to the conclusion that it was not reasonably practicable to hold an inquiry into the conduct of the appellant in the manner provided by the relevant rules, and thereafter, he proceeded to pass the order of dismissal without holding any inquiry.

Quite some time was taken by the appellant's counsel in arguing upon the true meaning and intendment of the Discipline and Appeal Rules, 1968 and in urging that the appellant should have been afforded an opportunity of being heard on the question as to whether, it was or was not reasonably practicable to hold an inquiry into the charges levelled against him. It was also urged by the learned counsel that the fact that it was not reasonably practicable to hold a full-fledged inquiry as contemplated by the Rules, did not justify the non-holding of any inquiry at all. We do not propose to enter into the merits of these contentions since, the appellant is entitled to succeed on another ground.

The letter dated May 22, 1982 which contains accusations of gross misconduct against the appellant enumerates 12 charges, out of which Charges Nos. 2 to 7 and 11 refer to the appellant's misconduct in relation to Respondent 3. For example, the second charge alleges that the appellant entered the office of Respondent 3 and challenged him in an offensive and derogatory language.

Charge No. 3 says that the appellant was in the habit of forcing himself on Respondent 3 two or three times every day with petty complaints. Charge No. 4 alleges that the appellant stormed into the office of Respondent 3 and shouted at him, using foul words. Charges 5, 6 and 7 contain similar allegations. The allegation contained in Charge No.

11 is to the effect that behaving as a leader of goondas, the appellant hired the services of other goondas and created security problems for Respondent 3 and the members of his family. It is obvious that if an inquiry were to be held into the charges framed against the appellant, the principal witness for the Department would have been Respondent 3 himself as the main accuser and the target of appellant's misconduct. It is surprising in this context that the 306 explanation dated June 9, 1982 which was furnished by the appellant to the letter of accusation dated May 22, 1982 was considered on its merits by Respondent 3 himself. Thereby, the accuser became the judge. The letter written to the appellant by Respondent 3 on June 10, 1982 says:

"I have carefully gone through your defence explanation dated 9.6.82. to the charges given in this office letter of even No. dated 22.5.82 and the same is not convincing at all. Before taking any action under D. & A.R., I would like to offer you another chance for giving your explanation to the specific charges conveyed to you vide this office letter dated 22.5.82.

Please submit your defence explanation within three days as to why a deterrent disciplinary action should not be taken against you".

The appellant submitted his further explanation, which also was considered by Respondent 3 himself.

The order of dismissal dated June 15, 1982 which was issued by Respondent 3 recites that he was fully satisfied that it was not reasonably practicable to hold an inquiry into the appellant's conduct as provided by the Rules and that he had come to the conclusion that the appellant was not fit to be retained in service and had, therefore, to be dismissed. Evidently, Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was a truthful person and the appellant a liar.

In doing this, Respondent 3 violated a fundamental principle of natural justice.

The main thrust of the charges against the appellant related to his conduct qua Respondent 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry.

The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the 307 appellant and Respondent 3, was speaking the truth was decided by Respondent 3 himself.

In The State of Uttar Pradesh v. Mohammad Nooh, 1 S.R. Das, C.J., observed, while speaking for the majority, that the roles of a judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined that the judge can hold the scales of justice even. We may borrow the language of Das, C.J., and record a finding on the facts of the case before us that the illegality touching the proceedings which ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an indelible stamp of infirmity" on the decision of Respondent 3.

Mr. Mridul, appearing on behalf of the respondent, contended' that though this may be the true legal position, the appellant does not deserve the assistance of the Court since, he was habitually guilty of acts subversive of discipline. This argument does not impress us.

In the first place, to hold the appellant guilty of habitual acts of indiscipline is to assume something which remains unproved. Secondly, the illegality from which the order of dismissal passed by Respondent 3 suffers is of a character so grave and fundamental that the alleged habitual misbehavior on the part of the appellant cannot cure or condone it.

In the result, we allow the appeal and set aside the judgment of the High Court. The order dated June 15, 1982 whereby the appellant was dismissed from service is set aside. In order, however, to avoid needless complications in working out the mutual rights and obligations of the parties, we direct that the appellant, who is due to retire within about six months, shall be treated as having retired from service with effect from April 1, 1984. He shall be paid the arrears of his salary due until March 31, 1984 on the basis of the salary last drawn by him on June 15, 1982, without taking into account the increments which he might have earned subsequent to that date. The provident fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules, as if no order of dismissal was passed against him. The appellant may 308 not and shall not rejoin his duties. He will be treated as on leave between now and March 31, 1984.

The arrears of salary until March 31, 1984 shall be paid to the appellant on the basis indicated above, on or before that date and, in any event, not later than May 1, 1984. The provident fund and gratuity shall be paid to him within a period of two months from today.

Mr. Garg made a statement before us on behalf of his client, the appellant, that the appellant is neither in occupation of any official residential accommodation, nor is he in possession of the garage which is referred to in Charge No. 6 in the letter of May 22, 1982.

The appeal will stand disposed of in terms of the above order. Respondent 1, the Union of India, shall pay to the appellant a sum of Rs. 1,000/- (Rupees one thousand) as his costs.

S.R. Appeal allowed.

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