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PETITIONER: SUNIL KUMAR BANERJEE

       Vs.

RESPONDENT: STATE OF WEST BENGAL AND ORS.

DATE OF JUDGMENT26/03/1980

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR 1170            1980 SCR  (3) 179  1980 SCC  (3) 304

ACT:      Service matter-All India Services Discipline and Appeal Rules  1969-Consultation  with  Vigilance  Commissioner,  if vitiates the  order-Enquiry Officer if combined the roles of prosecutor and judge-Reasonable opportunity, if denied.

HEADNOTE:      The appellant was a member of the Indian Administrative Service. In  an enquiry  under  rule  8  of  the  All  India Services (Discipline and Appeal) Rules, 1969 against him the Commissioner   for    Departmental   Enquiries,    Vigilance Commission,  West   Bengal  was  appointed  as  the  Enquiry Officer. He  held that  certain charges  framed against  the appellant were proved, certain others were partly proved and one was  considered to be a technical omission rather than a serious lapse.  The State Vigilance Commission expressed its view on  the Enquiry  Officer’s  Report.  Thereafter,  after consulting the  Union Public  Service Commission,  the State Government, which was the Disciplinary Authority, imposed on the appellant  the punishment  of reduction in rank from the stage of  Rs. 2,750 p.m. to the stage of Rs. 2,500 p.m. with certain other consequences.      The appellant’s writ petition was dismissed by a single Judge of the High Court and his appeal to the Division Bench was also dismissed.      In appeal  to  this  Court  it  was  contended  by  the appellant that  instead of holding the enquiry under the All India Services  Disciplinary Rules,  1969 it  was held under the All  India Services  (Discipline and Appeal) Rules, 1955 which were  repealed and  that this caused prejudice to him; as required  by rule  8 (19)  of the  1969 rules  he was not questioned with  reference to  the  circumstances  appearing against him  which denied him that opportunity of explaining the circumstances  which weighed  in the mind of the Enquiry Officer;  the  Government  should  not  have  consulted  the Vigilance Commissioner  who had  no statutory status; though the  ultimate  finding  was  based  on  the  report  of  the Vigilance Commission his report was not supplied to him; the Enquiry Officer  combined in  himself the role of prosecutor and judge  and he  was denied  a reasonable  opportunity  of defending himself  as important witnesses were not called to

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enable him to cross-examine them.      Dismissing the appeal, ^      HELD: 1.  There is  no substance in the contention that the 1955 rules and not 1969 rules were followed. The charges framed against  the appellant  as well as in the first show- cause notice,  the reference  was clearly to the 1969 rules. The appellant  himself mentioned  in one of his letters that the charges  had been  framed under  1969 rules. The enquiry report mentioned  that the  Enquiry  Officer  was  appointed under the 1969 rules. [183 B-C]      2. The  appellant was  not questioned  by  the  Enquiry Officer under  rule 8(19)  of the 1969 rules. The failure to comply with this requirement did 180 not vitiate  the enquiry  unless the  delinquent officer was able to establish prejudice. [183 C-D]      In the  instant case  the single  judge as  well as the Division Bench  found that  the  appellant  was  in  no  way prejudiced by the failure to observe the requirement of rule 8(19). [183 G]      3. The  provision incorporated in rule 8(19) is akin to section 342  of the  Criminal Procedure  Code  of  1898  and section 313  of the  Criminal Procedure  Code of 1974. It is now well-established  that mere non-examination or defective examination under  section 342  of the  1898 Code  is not  a ground for  interference unless  prejudice  is  established. [183 E-F]      K. C.  Mathew v. The State of Travancore-Cochin, [1955] 2 S.C.R. 1057; Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal, [1969] 2 S.C.R. 104; referred to.      4. The appellant was not in the least prejudiced by the failure of the Enquiry Officer to question him in accordance with rule  8 (19).  He cross examined the witnesses himself, submitted his  defence in writing in great detail and argued the case  himself at  all stages.  The appellant  was  fully alive to  the allegations  against him  and dealt  with  all aspects of the allegations in his written defence. [183 G-H, 184 A]      5. If  the disciplinary  authority arrived  at its  own conclusion on the material available to it, its findings and decision cannot  be said  to be  tainted with any illegality merely because  the  disciplinary  authority  consulted  the Vigilance Commission and obtained its views on the very same material. [184 D-E]      6.  The   findings  which   were  communicated  to  the appellant were  those of  the disciplinary  authority and it was wholly  unnecessary for  the disciplinary  authority  to furnish  the  appellant  the  copy  of  the  report  of  the Vigilance Commissioner when the findings communicated to the appellant were  those of  the disciplinary authority and not of the vigilance commission. [184 F-G]      7. From  the circumstances  that  the  Enquiry  Officer considered the  report of  investigation with a view to find out if  there was  material for framing charges and prepared draft charges,  it cannot  possibly be said that when he was later appointed  he constituted  himself both  as prosecutor and judge.  There is  nothing strange in the same Magistrate who finds  prima-facie case  at an  earlier stage trying the case, after framing charges. There is therefore no basis for the contention  that  the  Enquiry  Officer  was  prejudiced against the  appellant and  combined in  himself the role of the prosecutor and judge. [185 A, C-E]      8.  The   appellant  cross-examined   the   prosecution witnesses and  also examined  defence witnesses.  Thereafter

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when the matter was posted for argument and was adjourned at least once  at the  instance of the appellant, the appellant came forward  with  an  application  seeking  permission  to engage  a   lawyer.  The   Enquiry  Officer   rejected   the application noticing  that it was made at a very late stage. The rules give a discretion to the Enquiry Officer to permit or not to permit a delinquent officer to be represented by a lawyer. No prejudice has resulted by the denial of a lawyer. [185 E-G]      9. All the necessary documents were called and there is nothing in  the record  to suggest that the appellant wanted any particular  witness to  be called  and the  request  was turned down. The grievance of the appellant that if the 181 officers who made the notings on the file in connection with some of the charges had been called, he would have been in a position to  cross-examine them  and  elicit  statements  to substantiate his  defence, has  neither reasonable basis nor force. [186 B-C]

JUDGMENT:      CIVIL  APPELLATE   JURISDICTION  :   Civil  Appeal  No. 1277/1975.      Appeal by  Special Leave  from the  Judgment and  Order dated 19-9-1975  of the  Calcutta High  Court in  Appeal No. 299/73.      S. N. Chaudhary for the Appellant.      Gobinda  Mukhoty   and  G.   S.  Chatterjee   for   the Respondents.      The Judgment of the Court was delivered by.      CHINNAPPA REDDY,  J.-The appellant,  a  member  of  the Indian Administrative  Service, while  working as Divisional Commissioner, North  Bengal, was served on May 2, 1970, with a  memorandum   of  charges  and  was  informed  by  another memorandum to  which a  list of  documents and witnesses was attached, that  it was  proposed to  hold an enquiry against him under  Rule 8  of the All India Services (Discipline and Appeal) Rules,  1969,  and  that,  if  he  so  desired,  the appellant could  inspect  the  documents  mentioned  in  the enclosed list. He was further informed that he should submit a written statement of defence within fourteen days from the date of  completion of  inspection. The  appellant submitted his written  statement of defence on June 9, 1970. On August 12, 1970  Shri A.  N. Mukherjee, Commissioner for Department Enquiries, Vigilance  Commission, West Bengal, was appointed as Enquiry  Officer to  enquire into the charges against the appellant. After completing the enquiry, the Enquiry Officer submitted a  report  giving  his  findings  on  the  various charges. Charge  Nos. 2 and 5 were held to be proved, charge Nos. 3  and 4 partly proved and charge No. 1 also proved but considered to  be a  technical omission  rather than serious lapse. The Vigilance Commission which considered the Enquiry Officer’s report,  found that charge Nos. 1, 2, 3 and 5 were fully proved  and charge  No. 4  partly proved.  On April 6, 1971, the  disciplinary authority  namely the  Government of West Bengal  issued a  notice to the appellant informing him that, on  a consideration  of  the  report  of  the  Enquiry Officer they had come to the conclusion that charges Nos. 1, 2, 3  and 5  were fully  proved and  that charge  No. 4  was partly proved  and calling  upon the appellant to show cause why he  should not  be reduced  in rank.  The  Union  Public Service Commission  was  then  consulted  and  their  advice obtained. According  to the  Union Public Service Commission

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charge No.  3 had  not been  proved while  charge No.  1 was proved but was con- 182 sidered to  be a technical irregularity and charge Nos. 2, 4 and 5  were partly proved. Thereafter the Government of West Bengal came  to the  final conclusion  that charge No. 3 had not been proved, charge No. 1 had been proved but was only a technical irregularity  and charge  Nos. 2,  4  and  5  were partly proved.  On those  findings the  punishment which was imposed on  the appellant  was reduction  ’from the stage of Rs. 2750/- per month to the stage of Rs. 2500/- per month in the scale  of Rs.  2500/- 125/-  2750/- with effect from the date of  issue of the order’. This was, however, not to be a bar to  his earning  increments from the stage of Rs. 2500/- from the  date of reduction to the lower stage. Aggrieved by the order  of the  Government the  appellant  filed  a  Writ Petition in  the High  Court of  Calcutta. A  learned Single Judge of  the High  Court went  into  the  matter  in  great detail, almost  as if  he  was  hearing  a  regular  appeal, perhaps because  one of  the arguments  urged before him was that there  was no  evidence to  sustain any of the charges. The learned  Single Judge  found that charge Nos. 2, 3 and 5 were not  proved, charge No. 4 was partly proved, charge No. 1 was  proved but was only a technical irregularity. He was, however, of  the view that the punishment which was actually imposed on  the appellant  could be  imposed in  respect  of charge No.  4 to  the extent  to which  it was  proved.  He, therefore, dismissed  the Writ Petition. On appeal under the Letters Patent  a Division  Bench of the Calcutta High Court came to  the conclusion that charge No. 5 was proved, charge No. 1 was proved but was a technical irregularity and charge No. 2  was partly  proved. There was a difference of opinion on the  question whether  charge No.  4 was proved. Both the learned Judges agreed in dismissing the appeal.      The appellant  who argued  the appeal  in person raised several contentions.  He contended  that though  the enquiry was to  have been held under All India Services Disciplinary Rules 1969, it was in fact held under the All India Services (Discipline &  Appeal) Rules, 1955, which had been repealed. He was  thereby prejudiced  and in particular he pointed out that  he   was  not   questioned  with   reference  to   the circumstances appearing  against him as provided by sub rule 19 of  rule 8  of the  1969 rules.  He was  thus  denied  an opportunity of explaining the circumstances which weighed in the  mind   of  the  Enquiry  Officer.  The  appellant  also contended that  the Vigilance  Commissioner had no statutory status  and  he  should  not  have  been  consulted  by  the Government. He made a grievance of the circumstance that the report of  the Vigilance  Commissioner was  not furnished to him though  the ultimate  findings of  the  Government  were based on  the  report  of  the  Vigilance  Commissioner.  He further 183 submitted that  the Enquiry  Officer was  prejudiced against him and  that he  combined  in  himself  the  role  of  both prosecutor and  judge. He  further  submitted  that  he  was denied a  reasonable opportunity  of  defending  himself  as important witnesses  were not  called so as to enable him to cross examine  them though  the notings  made by them in the files were  relied upon  against him. Some of the additional documents sought by him were not also made available. He was also not permitted to engage a lawyer.      There  is   no  substance  in  the  contention  of  the appellant that  the 1955  rules and  not the 1969 rules were followed. As  pointed out  by the High Court, in the charges

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framed against  the appellant  and in  the first  show cause notice the  reference was  clearly to  the 1969  rules.  The appellant himself  mentioned in  one of his letters that the charges have  been framed  under the 1969 rules. The enquiry report mentions  that Shri  Mukherji  was  appointed  as  an Enquiry Officer  under the  1969 rules. It is, however, true that the appellant was not questioned by the Enquiry Officer under rule 8 (19) which provided as follows:           "The enquiring  authority may, after the member of      the services closes his case and shall if the member of      the  service   has  not   examined  himself,  generally      question him on the circumstances appearing against him      in the  evidence for the purpose of enabling the member      of the  service to  explain any circumstances appearing      in the evidence against him". It may  be noticed  straightaway that this provision is akin to section  342 of  the Criminal  Procedure Code of 1898 and section 313  of the  Criminal Procedure  Code of 1974. It is now well  established that mere non examination or defective examination under  section 342  of the  1898 Code  is not  a ground for  interference unless  prejudice  is  established, vide, K.  C. Mathew  v. State of Travancore-Cochin , Bibhuti Bhusan Das  Gupta &  Anr. v.  State of  West Bengal.  We are similarly of  the view  that  failure  to  comply  with  the requirements of  rule 8  (19) of  the 1969  rules  does  not vitiate the enquiry unless the delinquent officer is able to establish prejudice.  In this  case the learned single Judge of the  High Court  as well  as the  learned Judges  of  the Division Bench  found that  the appellant  was  in  the  way prejudiced by the failure to observe the requirement of rule 8 (19).  The appellant cross-examined the witnesses himself, submitted his defence in writing 184 in great  detail and  argued the case himself at all stages. The appellant was fully alive to the allegations against him and dealt  with all aspects of the allegation in his written defence. We do not think that he was in the least prejudiced by the  failure of  the Enquiry  Officer to  question him in accordance with rule 8 (19).      We do  not also  think that  the disciplinary authority committed any serious or material irregularity in consulting the Vigilance  Commissioner, even  assuming that  it was  so done. The  conclusion of  the disciplinary authority was not based on  the advice  tendered by the Vigilance Commissioner but was  arrived at  independently,  on  the  basis  of  the charges, the  relevant material  placed before  the  Enquiry Officer in  support of  the charges,  and the defence of the delinquent officer.  In fact  the final  conclusion  of  the disciplinary authority on the several charges are so much at variance with the opinion of the Vigilance Commissioner that it is  impossible to  say that  the disciplinary authority’s mind was  in any manner influenced by the advice tendered by the  Vigilance   Commissioner.  We   think   that   if   the disciplinary authority  arrived at its own conclusion on the material available  to it,  its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority  consulted the Vigilance Commissioner and obtained his views on the vary same material. One of the submissions of  the appellant  was that a copy of the report of  the   Vigilance  Commissioner   should  have  been  made available to  him when  he was called upon to show cause why the punishment  of reduction  in rank  should not be imposed upon him.  We do not see any justification for the insistent request made  by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made

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available  to  him.  In  the  preliminary  findings  of  the disciplinary  authority   which  were  communicated  to  the appellant there  was  no  reference  to  the  views  of  the Vigilance Commissioner. The findings which were communicated to the  appellant were  those of  the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish  the appellant  with a  copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were  those of  the disciplinary authority and not of the  Vigilance Commission.  That the preliminary findings of the  disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there.      We find  no basis  for the  contention of the appellant that there  was a  reasonable apprehension  in his mind that the Enquiry Officer 185 was prejudiced  against  him.  Nor  do  we  agree  with  the statement that  the Enquiry  Officer combined in himself the role of  the prosecutor  and the judge. It appears that when the preliminary  report of  investigation was  considered by the Vigilance  Commissioner with  a view to recommend to the disciplinary authority  whether  a  disciplinary  proceeding should be instituted or not, the report of investigation was referred by the Vigilance Commissioner to Shri A.N. Mukherji for his  views and  for the  preparation of draft charges if institution  of   disciplinary   proceedings   was   to   be recommended. Shri  Mukherji expressed his opinion that there was material  for framing  five charges and he also prepared five draft  charges and  forwarded  them  to  the  Vigilance Commissioner. The  Vigilance Commissioner  in turn forwarded the  papers   to  the  Government  who  finally  decided  to institute a  disciplinary proceeding  against the appellant. Thereafter Shri  A. N.  Mukherji was  appointed  as  Enquiry Officer. From the circumstance that Shri Mukherji considered the report of investigation with a view to find out if there was material for framing charges and prepared draft charges, it cannot possibly be said that Shri A. N. Mukherji, when he was later  appointed as  Enquiry Officer constituted himself both as  prosecutor and  judge. Anybody who is familiar with the working  of criminal  courts will  at once  realise that there is  nothing strange in the same Magistrate who finds a prima facie  case and  frames the  charges, trying  the case also. It  cannot for  a moment be argued that the Magistrate having found  a prima  facie case  at an  earlier stage  and framed charges is incompetent to try the case, after framing charges. This  was one  of the  circumstances on  which  the appellant  relied   to  substantiate   his   allegation   of apprehension of  bias. The  other circumstances were that he did not  permit the appellant to engage a lawyer and that he allowed  the  Presenting  Officer  to  introduce  extraneous matters. The  rules give a discretion to the Enquiry Officer to permit  or not  to permit  a  delinquent  Officer  to  be represented by  a lawyer.  In the present case the appellant cross-examined the  prosecution witnesses  and also examined defence witnesses. Thereafter when the matter was posted for arguments and  was adjourned atleast once at the instance of the  appellant,   the  appellant   came  forward   with   an application seeking  permission  to  engage  a  lawyer.  The Enquiry Officer  rejected the  application noticing  that it was made  at a  very belated stage. We think he was right in doing so.  Nor is  it possible for us to infer bias from the circumstance that  the Enquiry  Officer did  not  allow  the appellant to  engage a  lawyer.  We  may  mention  that  the appellant who  himself presented  his case  before us argued admirably and with such clarity

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186 and precision  as would  have done  credit to  the  best  of advocates. We  cannot conceive of any prejudice resulting to him by  the denial  of  a  lawyer.  The  other  circumstance regarding extraneous  matters being allowed to be brought in is also  equally weightless  and we  need say  nothing  more about it.      There  is   also  no  substance  in  complaint  of  the appellant that  necessary documents  and witnesses  were not called. All  necessary documents  were called  and there  is nothing in  the record  to suggest that the appellant wanted any particular  witness to  be called  and the  request  was turned down.  The grievance  of the appellant is that if the Officers who made the notings on the file in connection with some of the charges had been called, he would have been in a position to  cross examine  them and  elicit  statements  to substantiate his  defence. We do not think that there is any reasonable basis  in the  record for  such a  submission. We find no  force in  any of  the  contentions  raised  by  the appellant and  having given our earnest consideration to all the contentions raised by him we dismiss the appeal. but, in the circumstances  of the case, without costs. The appellant made a  complaint before  us  that  his  pension  and  other retirement benefits have not yet been finalised though it is quite a  considerable time since he voluntarily retired from service. Shri  Mukhoti learned counsel for the State of West Bengal stated  at the  Bar that all steps would now be taken to finalise  the matter.  We hope  the Government  will take immediate steps  to redress  forthwith this grievance of the appellant. N.K.A.                                     Appeal dismissed. 187