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PETITIONER: ARJUN CHAUBEY

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT23/03/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: 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.

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^      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. Any  one 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

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         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]

JUDGMENT:      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

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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

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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. Any  one 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 th 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 misbehaviour 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

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costs. S.R.                                        Appeal allowed. 309