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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: S.   S. MAKAPUR

DATE OF JUDGMENT: 03/05/1962

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  375            1963 SCR  (2) 943  CITATOR INFO :  R          1964 SC 708  (14,15)  D          1965 SC 719  (8)  RF         1969 SC 983  (9)  R          1970 SC 679  (12)  R          1970 SC1255  (19)  R          1976 SC1080  (9)

ACT: Government   Servant--Enquiry--Evidences  of  witnesses   in preliminary   investigation  brought  on   record--Witnesses tendered for cross-examination--Principle of natural justice if satisfied--Bombay Police Manual, s. 545(8).

HEADNOTE: After  an  enquiry held under s. 545 of  the  Bombay  Police Manual  the pay of the respondent was reduced from 125/-  to Rs.,  120/per mouth.  During the enquiry the  witnesses  who had been examined at the preliminary investigation were  re- called, and their previous statements were brought on record ,and  after putting few question to them they were  tendered for  cross  examination by the respondent and in  fact  that they were cross-examined in detail.  The respondents  appeal to  the  Deputy  Inspector General of Police  was  not  only dismissed  but  the  officer in exercise of  his  powers  in revision ordered ’his dismisal.  The respondent filed a writ petition  in  the  High  Court  of  Mysore  challenging  the validity of the order of dismissal on the ground inter  alia that the enquiry by the Deputy Superintendent of Police  was conducted in disregard of the rules of natural justice.  The High  Court  agreed  with the above view and  the  order  of dismissal  was set aside.  The High Court further held  that s.  545(8)  of  the  Bombay Police  Manual  was  bad  as  it contravened principles of natural justice. The Mysore Government came up in appeal by special leave  to the Supreme Court. Held, that the purpose of an examination in the presence  of a  party  against whom an enquiry is made,  is  sufficiently achieved, when a witness who has given a prior statement  is recalled,  that statement is put to him, and made  known  to

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the  opposite party, and the witness is tendered  for  cross examination by that party. HELD,  also, that tribunals exercising quasi-judicial  func- tion state not courts and that therefore they are not  bound to  follow the procedure prescribed for trial of actions  in courts 944 nor  are they bound by strict rules of evidence.   They  can unlike  courts,  obtain  all information  material  for  the points    under  the enquiry from all sources,  and  through all channels, without being fettered by rules and procedure, which  govern  proceedings in’ court.  The  only  obligation which  the law casts on them is that they should not act  on any information which they may receive unless they put it to the party against whom it is to be used and give him a  fair opportunity  to  explain  it.  What is  a  fair  opportunity depend  on  the facts circumstances of each case  but  where such an opportunity has been given, the proceedings are  not open  to  attack  on the ground that  the  enquiry  was  not conducted  in  accordance  with the  procedure  followed  in courts. Held,  further,  that cl. 8 of s. 543 of the  Bombay  Police Manual  is not bad as contravening the rules of the  natural justice. Union  of India v. T. R. Verma. [1958] S.C.R. 499, State  of Bombay v. Gajanan Mahadev, (1935) I.L.R. Bom. 913, Board  if Education v. Rice, [1911] A.C. 179.  Local Government  Board v.  Arlidge, [1915] A.C. 120, New Prakash Transport  Company Ltd. v. New Suwarna Transport Company Ltd., [1957] S.C.A. 98 and Phulbari Tea Estate v. Its Workmen, [1960] 1 S.C.R. 32.

JUDGMENT: CIVIL  APPELLATE   JURISDICTION : Civil Appeal  No.  400  of 1960. Appeal  by special leave from the judgment and  order  dated March  26, 1959, of the Mysore High Court in  Writ  Petition No. 41 of 1958. H.N.  Sanyal, Additional Solicitor General of  India,  R. Gopalakrishnan and P. D. Menon, for the appellants. K. B. Choudhri, for the respondent. 1962.  May 3. The Judgment of the Court was delivered by VENKATARAMA  AIYAR, J.-This is an appeal by  ,special  leave against  the judgment of the High Court of Mysore in a  Writ Petition filed by respondent challenging the validity of  an order  of  dismissal dated july 5, 1966 made by  the  Deputy Inspector 945 General of Police, Belgaum.  The respondent entered  service in  the Police Department as a constable in the District  of Bharwar  in  1940  and was ’at the  material  dates  a  sub- inspector of Police.  On a complaint preferred by one Machwe of  Kurdiwadi against him, Mr. Majumdar, Inspector C. I.  D. made  a  preliminary  investigation, examined  a  number  of witnesses  and recorded their statements, and submitted  his report  recommending  further action.  On  that  the  Deputy Superintendent’  of  Police,  Belgaum,  started  proceedings against the respondent, framed six charges against him,  and called for his explanation.  The respondent denied the char- ges and then a regular inquiry was held on November 4, 1954. Clause (8) of s. 545 of the Bombay Police Manual which  lays down  the procedure to be followed in such inquiries  is  as follows:-               "The  officer  conducting the  inquiry  should

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             then recall all necessary witnesses in support               of   the  charge  and,  in   the   defaulter’s               presence,  read  out any statements  they  may               have  made  in  the  preliminary  inquiry  and               record,  if necessary any  further  statements               they  may have to make.  He should  then  give               the   defaulter  an  opportunity   of   cross-               examining each witness after his statement  in               support  of the charge is completed, any  such               cross-examination  being  recorded  below  the               statement of the witness concerned. In accordance with this provision the Deputy  Superintendent recalled the witnesses who had been examined by Mr. Majumdar during the preliminary investigation, brought on record  the previous  statements given by them, and after putting a  few questions  to, them tendered them for  cross-examination  by the  respondent.   As a fact all the  witnesses  were  cross examined  by  the respondent in great  detail.   The  Deputy Superintendent held that a 946 the  charges framed against the respondent had  been  proved and he accordingly issued on December 14, 1954, a notice  to him  to show cause why he should not be punished by his  pay being reduced from Rs. 125/- to Rs. 120/- per month for  two years.   To this again the respondent submitted  his  expla- nation  and thereafter the Deputy Superintendent  passed  on January 5, 1955, an order reducing his pay as aforesaid. The respondent would have been well advised to have left the matter there.  But he choose to prefer an appeal against the order.   The  Deputy Inspector General of  Police,  Belgaum, before  whom it came, not only dismissed it but  issued,  in exercise  of  his  powers  in  revision,  a  notice  to  the respondent  to show cause why he should not be removed  from service  and  after  taking  his  explanation  ordered   his dismissal on July 5, 1956.  The respondent filed a  revision against this order to the Government of Bombay and under the States  Reorganisation  Act,  1956,  that  came  before  the Government  of Mysore and was dismissed on August 31,  1957. The respondent thereupon filed in the High Court of  Mysore, the  Writ Petition, out of which the present  appeal  arises questioning  the  validity of the order of  dismissal  dated July  5,  1956,  on  a number of grounds  of  which  we  are concerned  in  this appeal with only one, namely,  that  the inquiry by the Deputy Superintendent of Police was conducted in  disregard  of  the  rules  of  natural  justice  and  in consequence  the order made was bad.  The learned judges  of the, High Court agreed with this contention.  They held,  on the  authority of certain observation is made by this  Court in  the Union of India v. T.R. Verma (1) and by  the  Bombay High  Court  in the State of Bombay v. Gajanan  Mahadev  (2) that  principles  of  natural  justice  required  that,  the evidence of witnesses in (1) (1958) S.C.R. 499. (2) (1954) I.L.R.Bom.915.  947 support of the charges should be recorded in the presence of the  enquiring officer and of the person against whom it  is sought  to be used.  In this view they held further that  s. 545(8) of the Bombay Police Manual was bad as it contravened principles  of natural justice.  They accordingly held  that the enquiry was vitiated by the admission in evidence of the statements made by the witnesses before Mr. Majumdar without an  independent  examination  of  them  before  the   Deputy Superintendent of Police.  Inthe   result  the   order   of dismissal was set aside. It is the correctness of  this

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judgment that is now under challenge before us. The  sole point for determination in this, appeal  therefore is   whether   the   procedure   adopted   by   the   Deputy Superintendent  of  Police in admitting  the  statements  of witnesses  examined  before  Mr.  Majumdar  in  evidence  is opposed  to the rules of natural justice.  The  question  is one  of importance, because as appears from the cases  which have  come  before us the procedure followed by  the  Deputy Superintendent of Police in this case is the one followed by many  tribunals  exercising  quasijudicial  powers.   For  a correct  appreciation  of the position, it is  necessary  to repeat what has often said that tribunals exercising  quasi- judicial  functions are not courts and that  therefore  they are  not bound to follow the procedure prescribed for  trial of  actions in Courts nor are they bound by strict rules  of evidence.   They can, unlike Courts, obtain all  information material for the points under enquiry from all sources,  and through  all channels, without being fettered by  rules  and procedure,  which  govern proceedings; in Court.   The  only obligation  which the law casts on them is that they  should not  act  on any information which they may  receive  unless they  put it to the party against whom it is to be used  and give him a fair opportunity to explain it. 948 What  is  a fair opportunity must depend on  the  facts  and circumstances of each case but where such an opportunity had been  given, the proceedings are not open to attack  on  the ground  that  the enquiry was not conducted  in  accordance. with the procedure followed in courts. The question as to the content of the rules natural  justice has  been  subject of numerous decisions in England  and  in this country.  Dealing with this question Lord Loreburn,  L. C., observed, in Board of Education v. Rice’ (1) as follows               "In  such  cases the Board of  Education  will               have to ascertain the law as also to ascertain               the  facts.   I  need not add  that  in  doing               either they must act in good faith and  fairly               listen to both sides, for that is a duty lying               upon every one who decides anything.  But I do               not  think  they  are bound to  treat  such  a               question,  as  though it were a  trial.   They               have no power to administer an oath, and  need               not   examine  witnesses.   They  can   obtain               information in any way they think best, always               giving  a  fair opportunity to those  who  are               parties  in the controversy for correcting  or               contradicting    any    relevant     statement               prejudicial to their view. This statement of the law was adopted again by the House  of Lords in Local Government Board v. Arlidge This  question  has also- been considered by this  Court  in several  decisions.   One  of the earliest of  them  is  the decision  in  New Prakash Transport. Company.  Ltd.  v.  New Suwarna  Transport  Company Ltd (3).  There the  facts  were that a Tribunal constituted under the Motor Vehicles Act had (1) (1911) A.C. 179.182.  (2) (1945) 1  A.C.120 (3) (1957) S.C.R 949 refused  to  grant a permit to a company to run a bus  on  a certain route.  Then the company filed a writ application in the  High Court of Nagpur, attacking the order refusing  the permit  on  the ground, inter alia, that  the  Tribunal  had acted  on a police report which was produced at the time  of the   hearing  without  giving  the  petitioner   sufficient opportunity  to most it, and had thereby violated the  rules

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of  natural  justice.   Agreeing with  this  contention  the learned  Judges of the High Court had set aside  the  order. In  reversing  this order, this Court hold that  the  police report was information on which the Tribunal was entitled to act,  and as it was read at the enquiry, in the presence  of the  parties and they had been heard on it, there  had  been sufficient compliance with the rules of natural justice. We may next refer to the decision of this Court in the Union of  India  V.  T.R. Verma (1).  That arose out  of  a:  Writ Petition filed  by a Government servant in the High Court of Punjab,  calling  in question an order of  dismissal  passed against  him, on the ground that the enquiry which  resulted in  the order had not been conducted in accordance with  the rules  of  natural justice.  The facts were  that  when  the petitioner, and his witnesses appeared for giving  evidence, the  enquiring  officer  took  their  examination  on   hand himself,  put  them questions, and after  he  had  finished, asked  them to make their statements.  The complaint of  the petitioner  was that he and his witnesses should  have  been allowed to give their own evidence, and than cross-examined, and  that the departure from the normal procedure in  taking evidence,  was a violation of the rules of natural  justice. In rejecting this contention this Court observed as  follows :               "Stating  it broadly and without intending  it               to be exhaustive, it may be observed               (1)   (1958) S.C.R. 499.               950               that  rules of natural justice require that  a               party should- have the opportunity of adducing               all relevant evidence on which he relies, that               the  evidence of the opponent should be  taken               in  his presence, and that he should be  given               the   opportunity   of   cross-examining   the               witnesses examined by that party, and that  no               materials  should  be relied  on  against  him               without  his  being given  an  opportunity  of               explaining   them.    If   these   rules   are               satisfied,  the enquiry is not open to  attack               on the. ground that the procedure laid down in               the  Evidence Act for taking evidence was  not               strictly  followed.  Vide the recent  decision               of this Court in Now Prakash Transport Co.  v.               New Suwarna Transport Co., where this question               is discussed." It is on the observation that ,the evidence of the  opponent should  be taken in his presence" that the decision  of  the learned  Judges  that the evidence of  witnesses  should  be recorded in the presence of the person against whom it is to be  used is based. ,Read literally the passage quoted  above is susceptible of the construction which the learned  Judges have  put on it, but when read in the context of  the  facts stated  above,  it will be clear that that is not  its  true import.   No  question  arose  there  as  to  the  propriety admitting  in evidence the statement of a  witness  recorded behind  the  back of a party.  The entire oral  evidence  in that case was recorded before the enquiring officer, and  in the presence of the petitioner.  So there was no question of a  contrast  between evidence recorded behind  a  party  and admitted  in evidence against him, and evidence recorded  in his presence.  What was actually under consideration was the procedure  to  be  followed  by  quasi-judicial,  bodies  in holding  enquiries, and the decision was that they were  not bound  to adopt the procedure followed in ’Courts, and  that it was

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951 only  necessary  that rules of natural  justice-  should  be observed.  Discussing next what those rules required, it was observed  that  the  person against whom a  charge  is  made should  know  the evidence which is given against  him,.  so that  he  might be in a position to  give  his  explanation. When  the evidence is oral, normally the examination of  the witness  will in its entirety, take place before  the  party charged,  who will have full opportunity of  cross-examining him.  The position is the same when a witness is called, the statement  given  previously by him behind the back  of  the party  is  put  to him, and admitted  in  evidence,  a  copy thereof  is  given  to  the  party,  and  he  is  given   an opportunity  to cross-examine him.  To require in that  case that  the  contents  of the  previous  statement  should  be repeated  by  the  witness word by word.  and,  sentence  by sentence, is to insist on bare technicalities, and rules  of natural  jsutice  are   matters  not  of      from  but   of substance.   In our opinion they are  sufficiently  complied with  when previous statements given by witnesses  are  read over  to  them, marked on their  admission,  copies  thereof given to the person charged, and he is given an  opportunity to crosss-examine them. This  question came up for consideration by this Court  more recently  in Philbari Tea Estate v. Its  Workmen(1).   There the  foots  were  that One of the workmen,  B.  N.  Das  was dismissed by the management as the result of an enquiry into a  charge of theft.  The Industrial Tribunal set aside  this order  on the ground that there had been no proper  enquiry. What had happened was that the management had first made  an investigation,  and taken, statements of witnesses,  and  at the regular enquiry these statements were brought on  record but  they were not put to the witnesses, who  were  present, nor  had  copies thereof, been given to  the  workmen.   The question was whether the enquiry (1)(1960) 1 S.C.R. 32. 952 was  in  accordance  with  rules  of  natural  justice.   In answering  it in the negative, Wanchoo, J, speaking for  the Court, observed that the admission in evidence of the  prior statements under the circumstances stated above, was not  in consonance with the principles of natural justice laid  down in the Union of India v. T. R. Verma (1).  This decision  is clearly of no assistance to the respondent. Reliance  was also placed on the following  observations  by Chagla, C. J., in the State of Bombay v.     Gajanan Mahadev               "Even  assuming  that a statement  of  such  a               witness   is  furnished  to   the   Government               servant, it is a sound rule that courts of law               follow  and  which  even  domestic   tribunals               should follow that all evidence must be  given               in  the presence of an accused person  and  in               the  presence of a person against whom  action               is  proposed to be taken.  It is one thing  to               make a statement behind the back of person; it               is  entirely  a  different  thing  to  make  a               statement in front of the Court or a  domestic               tribunal  and  in  the presence  of  a  person               against  whom  you are going to  make  serious               charges." But  in  our opinion, the purpose of an examination  in  the presence  of  a party against whom an enquiry  is  made,  is sufficiently achieved, when a witness who has given a  prior statement  is  recalled, that statement is put to  him,  and made  known  to  the  opposite party,  and  the  witness  is

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tendered for cross-examination by that party.  In this  view we  must  hold  that the order dated July 5,  1956,  is  not liable  to  be set aside on the ground  that  the  procedure followed  at  the inquiry by the  Deputy  Superintendent  of police was in violation of the rules of natural (1) (1958) S.C.R. 499. (2) (1954) I.L.R. Bom. 915.  953 justice.  It is hardly necessary to add that cl. 8  of s.545 of the Bombay Police Manual can not be held to be bad as contravening the rules of natural justice. This finding however does not dispose of the entire  matter. It  is  the  contention of the respondent  that  the  Deputy Inspector General of police was not entitled in revision  to enhance  the  punishment  and this  question  has  not  been decided by the learned Judges.  It is therefore necessary to remand  this case for hearing on this and all  other  issues which  might arise for decision.  We accordingly  set  aside the  order in appeal and remand the case for hearing on  the other points in this case.  Costs of this appeal will  abide the result of the hearing in the Court below. Case remanded.