Sawai Singh Vs. State of Rajasthan
[1986] INSC 104 (2 May 1986)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) VENKATARAMIAH, E.S. (J)
CITATION: 1986 AIR 995 1986 SCR (2) 957 1986
SCC (3) 454 1986 SCALE (1)1282
ACT:
1.
Termination
of services - Nature of charge vague and difficult for any accused to meet the
charge and also unsupported by evidence, absence of opportunity for cross -
examination non-examination of handwriting expert etc. - Order of termination
of service is bad in law. C
2.
Burden
of proof a serious offence - Evidence of handwriting expert necessary but dead
- The prosecution should call another handwriting expert to corroborate the
charge Penal Code S.463 read with Section 45 Evidence Act.
3.
Natural
justice principle of - Applicability to Service cases, explained.
HEADNOTE:
The appellant who was working as
Superintendent, Sheep and Wool, Nagaur was appointed as a Returning Officer to
conduct Panchayat elections at Sardi in Panchayat Samiti Ladnun held in the
month of December, 1960. On the 2nd of July 1965, the Government of Rajasthan
informed the appellant that an inquiry was proposed to be held against him for
showing undue favour to one of the contesting candidate's by wrongly rejecting
another candidate's nomination paper after committing forgery by effecting
erasion of the the word "Panch" on the nomination paper. The
Additional Commissioner for departmental inquiry held the enquiry and on the
basis of his report dated 27th March, 1967, the Government issued a show cause
notice on 3rd October 1968 and after receipt of the reply cancelled it and
issued a fresh show cause notice to which the appellant again gave an elaborate
reply. However by an order dated 5.4.1971 the Government directed the removal
of the appellant from service. The Writ Petition filed by the appellant
challenging the orders of termination was dismissed summarily. The writ appeal
also met the same fate.
Hence the appeal by special leave.
Allowing the appeal, the Court, 958 ^
HELD: 1.1. If the charges are vague and it is
very difficult for any accused to meet the charges fairly and the evidence
adduced perfunctory and did not at all bring home the guilt of the accused is
entitled to be exonerated of the offence charged with. Non-allegation by the
delinquent either before the enquiry officer or before the High Court that the
charges were vague does not by itself exonerate the department to bring home
the charges. Though a departmental enquiry is not like a criminal trial, the
charges involving consequences of termination of service must be specific.[965
C-F] Suresh Chandra Chakrabarty v. State of West Bengal,[1971] 3 S.C.R. 1; and
State of Andhra Pradesh v. S. Sree Rsma Rao, [1964] 3 S.C.R. 25 referred to.
1.2 Having regard to the consequences of the
offences with which the deliquent officer was charged and having regard to the
nature of charge and the evidence of hand- writing expert and the absence of
opportunity for cross- emamination and the conflicting nature of evidence of
Chaturbhuj and nature of evidence given by Jiwan Dass, in the instant case, the
report of the Inquiry Officer and the consequent termination order passed by
the Government cannot be sustained. [966 D-E]
2. In a case where an offence under section
463 Indian Penal Code is involved and the allegation is sought to be proved by
the evidence of handwriting expert and the handwriting expert was not available
for cross-examination on the ground that at that time he was dead, then it was
necessary on the part of the department to adduce evidence to call another
handwriting expert to corroborate their charge. In the absence of such
discharge of the burden of proof, the Court may draw an adverse inference
supported by other evidence against the prosecution. [964 B-Cl
3.1 There is no such rule that an offence is
not established unless it is proved beyond doubt. But in a departmental enquiry
entailing consequences like loss of job which now-a-days means loss of
livelihood, there must be fair play in action, in respect of an order involving
adverse or penal consequences against an employee and there must be
investigations to the charges consistent with the requirement 959 Of the
situation in accordance with the principles of natural justice in so far as
these are applicable in a particular situation. [965 F-G]
3.2 The application of those principles of
natural justice must always be in conformity with the scheme of the Act and the
subject matter of the case. It is not possible to lay down any rigid rules as
to which principle of natural justice is to be applied. There is no such thing
as technical natural justice. The requirements of natural justice depend upon
the facts and circumstances of the case, the nature of the enquiry the rules
under which the Tribunal is acting, the subject matter to be dealt with and so
on.
Concept of fair play in action which is the
basis of natural justice must depend upon the particular lis between the
parties. Rules and practices are constantly developing to ensure fairness in
the making of decisions which affect people in their daily lives and
livelihood. Without such fairness democratic governments cannot exist. Beyond
all rules and procedures that is the sine qua non. [965 H; 966 A-D] K.L.
Tripathi v. State Bank of India & Ors., [1984] 1 S.C.C. 43 referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
2179 (N) of 1972.
From the Judgment and Order 7.4.1972 of the
Rajasthan High Court in Special Appeal No. 74 of 1972.
Tapas Roy, S.K. Jain for the Appellant. F
Badri Das Sharma, Surya Kant Sharma and Miss Maya Rao for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This is an appeal by special leave granted by this
court against the order dated 7th April, 1972 of the High Court of Judicature
for Rajasthan, at Jodhpur, in Special Appeal No. 74 of 1972. The High Court of
Rajasthan Jodhpur in the said appeal refused to interfere with the order of the
learned single Judge of that High Court. The H 960 learned single judge had
dismissed the writ petition of the appellant challenging the order of
termination of his services.
The appellant was an employee of the
Rajasthan Government and was appointed as returning officer to conduct
Panchayat elections at Sardi in Panchayat Samiti Ladnun in the district of
Nagpur held in the month of December, 1960.
At that time, the appellant was working as
Superintendent, Sheep & Wool, Nagpur. The election was to take place on
26th December, 1960 and the date for submission of nomination forms was 25th
December, 1960. Four persons, namely, Shri Chaturbhuj, Shri Purna Ram, Shri
Jiwan Ram and Shri Jiwan Dass filed their nomination forms. m e nomination
paper filed by Shri Chaturbhuj was alleged to have been found incomplete and it
was, therefore, rejected. The nomination paper was said to be defective for the
following reasons - (i) In the opening line the Ward Number was not filled in
and the space provided therefore was left blank ;
(ii) In the second line out of the words
Panch Sarpanch one of the two was not struck out; so that there was no
indication whether the nomination was for the office of Panch or that of
Sarpanch.
(iii) In the third line of the blank space
again intended to specify the office, the said Chaturbhuj had filled in his own
name thus instead of stating that he was proposing himself as candidate for the
office of Panch or Sarpanch, it was found that he was proposing himself as
Chaturbhuj.
(iv) At the end of sub-paragraph (1)
containing a declaration by the candidate as to his qualifications the said
Chaturbhuj did not strike off one of the two words Panch/Sarpanch.
In view of the above, the nomination paper
was rejected. Shri Jiwan Dass and Shri Jiwan Ram withdrew their candidature and
Shri Purna Ram was left alone in the field and was, therefore, elected to the
office of Sarpanch.
MANOHAR 961 On the 2nd July, 1965, the
government of Rajasthan informed the appellant that an enquiry was proposed to
be held against him on charge which was as follows :
"That the said Shri Sawai Singh, while
functioning as District Sheep ~ Wool Officer, Nagaur, during the year 1960 was
appointed as Returning Officer to conduct Panchayat Election at Sardi in
Panchayat Samiti Ladnun in the month of December, 1960. That the said Shri
Sawai Singh showed undue favour to one of the contesting candidates Shri Purna
Ram. He manipulated the withdrawal of Shri Jeewan Dass a dummy candidate of
Shri Chaturbhuj who was contesting candidate against Shri Purna Ram. The said
Shri Sawai Singh committed forgery by effecting erasion in the word
"panch" on the nomination paper of Shri Chaturbhuj and malafidely and
improperly rejected his nomination form." The statement of allegations was
also sent alongwith the forwarding letter and it was mentioned in the said
statement as follows :
"4. Shri Sawai Singh manipulated the
withdrawal of Shri Jeevan Dass a dummy candidate of Chaturbhuj by cheating.
5. He further committed forgery by effecting
erasion in the word 'panch' on the nomination paper of Shri Chatur Bhuj and
malafidely and improperly rejected the nomination form of Chaturbhuj and
thereby acted in furtherance of the prospects of the election of Shri Purna Ram
as Sarpanch Sardi." A reply to the said charge-sheet was submitted by the
appellant. He denied the charge levelled against him. By an order dated 4th
November, 1965, the Government appointed the Additional Commissioner for
departmental enquiry, Rajasthan, Jaipur as an Enquiry Officer to hold the
enquiry against the appellant. The enquiry Officer submitted his report on 27th
March, 1967. Perusal of the enquiry report makes perfunctory reading -
comparing the evidence of Chaturbhuj and the appellant it is difficult to
accept on what basis the enquiry H 962 Officer accepted the Chaturbhuj's
version. The Enquiry Officer did not discuss the inherent improbabilities of
the statements of Chaturbhuj which will be noted later.
On 3rd October, 1968, the government issued a
show- cause notice to the appellant which was as follows:
"According to the report of the Enquiry
Officer the charge has been proved to this extent that Shri Sawai Singh with
dishonest intention to declare candidate Poornaram uncontested successful
Sarpanch made changes in the nomination form of Shri Chaturbhuj which was
complete at the time when was presented and thus made it incomplete and
thereafter illegally rejected it. The State Government has provisionally
accepted the decision. The State Government has provisionally taken further
decision that Shri Sawai Singh be removed from State Service for the said
mistake.
Hence Shri Sawai Singh is hereby given an
opportunity that if he wants to file a representation against the provisional
decision he may present it within 15 days From the date OF receipt of this
letter to the undersigned." It may be mentioned that what was the
dishonest motive except the inference from the rejection of the nomination
paper on alleged improper grounds nothing was indicated in the report of the
Enquiry Officer.
This notice, however, was later on cancelled
and a fresh show-cause notice was issued. The appellant gave an elaborate reply
to the said notice. To complete the narration of events, the government by an
order dated 5th April, 1971 accepted the findings of the Enquiry Officer and
directed his removal from service. The appellant filed a writ petition before
the High Court. The writ petition was heard by P.N. Signal, J. as the learned
judge then was of the High Court and he by his order dated 31st August, 1971
dismissed the same summarily.
The appellant filed a special Appeal before
the Division Bench. The said appeal was also summarily dismissed on 7th April,
1972. Thereafter on refusal of the High Court to grant 963 a certificate, by
special leave, this appeal has come up A before us nearly 15 years after the
termination of employment.
Shri Tapash Chandra Roy, learned advocate for
the appellant, urged before us three main submissions, namely, (i) the charges
were not clear ; (ii) there was no evidence to support the charges and on the
contrary (iii) the evidence on record was contrary to the charges made. The
charges framed have been noted namely, (i) the appellant showed undue favour to
one of the candidates Shri Purna Ram.
(ii) He manipulated the withdrawal of Jiwan
Dass, the dummy candidate of Shri Chaturbhuj who was the contesting candidate
against Shri Purna Ram and (iii) Shri Sawai Singh committed forgery by
effecting erasion of the word 'panch' on the nomination paper of Shri
Chaturbhuj and malafidely rejected his nomination paper. The second charge i.e.
the withdrawal of Jiwan Dass can only be understood in the light of the statement
of Shri Jiwan Dass. Shri Jiwan Dass stated thus in his evidence which was on
the record of the enquiry :
"I withdrew my nomination paper at 3
P.M. I only heard in the evening that the nomination paper of Chaturbhuj had
been rejected. I do not know whether symbol was issued to Chaturbhuj or not. My
statement was recorded by Collector Ex. P.11 and also by C.I. which is Ex.
P.12. I had withdrawn my nomination paper voluntarily. No one told me that
nomination paper of Chaturbhuj had been accepted, and on that basis, I should
withdraw I had stated in portion A to of the statement marked Ex. P.12 that I
was told regarding the acceptance of the nomination form of Chaturbhuj. For
that reason I had withdrawn my nomination form. I was not present when Chaturbhuj
had asked the reason for rejection of his nomination paper. I do not remember
whether I had given the statement marked to in Ex. P.12 P.A. to (sic). The
statement of Ex.
P.ll was taken by the steno of the Collector
in the absence of Collector. The steno was drunk at that time. I cannot say
what he recorded in my statement. I had not stated as marked A to and to in Ex.
P.ll. On cross-examination the Departmental Officer stated that my nomination
form was filled by Sohan Singh. I was not dummy candidate." 964 A fair
reading of the said statement would give a complete lie to the charge that the
appellant manipulated the withdrawal of Jiwan Dass. It is clear that the first
charge was not clear, in the sense, how the appellant had alleged to have manipulated
the withdrawal of Jiwan Dass. It is difficult for any officer to meet a charge
of this nature. The second charge was about committing forgery effecting
erasion of the word 'panch' on the nomination paper of Shri Chaturbhuj. This
allegation was sought to be proved by the evidence of hand-writing expert. The
hand- writing expert was not available for cross-examination on the ground that
at that time he was dead. But if evidence of hand-writing expert was necessary
to prove the guilt of the appellant then it was necessary on the part of the
department to adduce evidence to call another hand-writing expert to
corroborate their charge.
In order to prove the charge against him it
was necessary to establish that Shri Chaturbhuj had filed nomination being Ex.
P.13, complete in all respects. Shri Chaturbhuj is the complainant and his
evidence on filing of the nomination paper is not only contradictory but also
leads one to believe that he had filed an incomplete nomination form. Shri
Chatur Bhuj in Ex. E.H. Pl (D.E.) stated that his nomination paper was duly
filled in by him.
This was taken by the Enquiry Officer to mean
that the nomination paper was complete in all respects and wrongly rejected.
Shri Chaturbhuj on 8th July, 1966 was shown the nomination from Ex. P.13 and he
admitted that Ex. P13 bears his signatures and that he had submitted it for
Sarpanch but he did not say that whether he had struck off the word 'panch' in
the nomination paper so as to convey his proposal for Sarpanch. He also could
not say on seeing the nomination paper that the word 'Panch' in the nomination
paper marked A & by the Additional Commissioner Departmental Enquiry had
been struck off or not. He could not say whether any rubbing or erasion of the
word 'Panch' had taken place or not. Shri Chaturbhuj had stated that he did not
remember who had written his nomination paper. There were two persons present
at that time. One was his brother Shri Dhar who was not produced in the
Departmental Enquiry and the other was Puran Chand Sharma of Ladnun. This was
an ambiguous and misleading statement. On the other hand, in the evidence of
Shri Puran Chand, he said that he had filled up one form for 965 Shri
Chaturbhuj for Sarpanchship and identified the same to be Ex.13. He stated
after a look at Ex. P.13 that the form was filled up by him in his own hand
except the signatures which were done by Shri Chaturbhuj himself in his
presence.
When the form was shown to him, he stated in
his examination-in-chief that the name of Shri Chaturbhuj in Ex. P.13 marked to
and I to J was in the hand-writing of Shri Chaturbhuj himself and also the
signatures K to L were in the handwriting of Shri Chatur Bhuj. There were
several other contradictions in the said statement of Puran Chand which were
mentioned in paragraphs 11 to 13 of the writ petition before the High Court.
These were not considered by the High Court.
Quite apart from that fact, it appears to us
that the charges were vague and it was difficult to meet the charges Fairly by
any accused. Evidence adduced was perfunctory and did not at all bring home the
guilt of the accused.
Shri B.D. Sharma, learned advocate for the
respondent, contended that no allegations had been made before the enquiry
officer or before the High Court, that the charges were vague. In fact the
appellant had participated in the enquiry. That does not by itself exonerate
the department to bring home the charges.
It has been observed by this Court in Suresh
Cbandra Chakrabarty v. State of West Bengal [1971] 3 S.C.R. 1 that charges
involving consequences of termination of service must be specific, though a
departmental enquiry is not like a criminal trial as was noted by this Court in
the case of State of Andhra Pradesh v. S. Sree Rama Rao [1964] 3 S.C.R. 25 and
as such there is no such rule that an offence is not established unless it is
proved beyond doubt. But a departmental enquiry entailing consequences like
loss of job which now-a-days means loss of livelihood, there must be fair play
in action, in respect of an order involving adverse or penal consequences
against an employee, there must be investigations to the charges consistent
with the requirement of the situation in accordance with the principles of
natural justice in so far as these are applicable in a particular situation.
The application of those principles of
natural justice 966 must always be in conformity with the scheme of the Act and
the subject matter of the case. It is not possible to lay down any rigid rules
as to which principle of natural justice is to be applied. There is no such
thing as technical natural justice. The requirements of natural justice depend
upon the facts and circumstances of the case, the nature of the enquiry, the
rules under which the Tribunal is acting, the subject matter to be dealt with
and so on. Concept of fair play in action which is the basis of natural justice
must depend upon the particular lis between the parties. (See K.L. Tripathi v.
State Bank of India & Ors., [1984] 1 S.C.C. 43) Rules and practices are
constantly developing to ensure fairness in the making of decisions which
affect people in their daily lives and livelihood.
Without such fairness democratic governments
cannot exist.
Beyond all rules and procedures that is the
sine qua non.
Having regard to the consequences of the offences
with which the delinquent officer was charged and having regard to the nature
of charge and the evidence of hand-writing expert and the absence Of
opportunity for cross-examination and the conflicting nature of evidence of
Chaturbhuj and nature of evidence given by Jiwan Dass, we are OF the opinion
that the report of the enquiry officer Finding the appellant guilty should not
have been sustained and the government should not have acted upon it. The High
Court in our opinion, with great respect, was in error in not bearing in mind
these aspects which have been indicated hereinbefore.
In that view of the matter, the order of the
High Court cannot be sustained. In the premises, the order and judgment of the
High Court are set aside. The appeal is allowed. The appellant is entitled to
the costs of this appeal. The appellant would also be entitled to his
remuneration and salary for all this period. We do not know if during the
pendency of this appeal the appellant has superannuated and retired. If that is
so, he should be in service upto the date J of superannuation with the
entitlement of pensionary relief. If not, he should be re-instated.
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