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PETITIONER: K. L. SHINDE

       Vs.

RESPONDENT: STATE OF MYSORE

DATE OF JUDGMENT26/03/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1976 AIR 1080            1976 SCR  (3) 913  1976 SCC  (3)  76

ACT:      Constitution-Article  311-Domestic   inquiry-Reasonable opportunity of  effectively defending-Dismissal  pursuant to departmental proceedings-Whether  Court can  sit in  appeal- Whether Evidence Act applies to departmental proceedings.

HEADNOTE:      The appellant was a Police Constable. Some persons were convicted for  transporting smuggled  illicit  liquor  under section 66(b)  of the Bombay Prohibition Act. The Police Sub Inspector submitted  a Confidential  report on that incident to the  Superintendent of  Police and  pointed out that some Police Constables  including the appellant were indulging in smuggling  illicit  liquor.  The  Superintendent  of  Police directed the  P.S.I.  to  record  the  statements  of  three constables,  Akki,  Waman  and  Nishikant.  The  Police  Sub Inspector,  therefore,  recorded  the  statements  of  those constables in  the presence of the Superintendent of Police. The  statements   of  Akki  and  Nishikant  disclosed  their complicity  as  well  as  complicity  of  six  other  Police constables  including   the  appellant  D.S.P.  ordered  the S.D.P.O. to  hold a  departmental enquiry against them. They were all  transferred from Belgaum and directed not to leave their new  station without  the  permission  of  the  D.S.P. except for  purposes of  or in  connection with departmental enquiry. The  appellant did  not plead  guilty. The  Enquiry Officer held  enquiry. A  number of  witnesses were examined both by the prosecution and the defence. The Enquiry Officer made a  report to  the Superintendent  of  Police  that  the charge  against  the  appellant  was  not  established.  He, however,  recommended   that   the   appellant   should   be administered  a  severe  warning  since  he  was  guilty  of misconduct and  dereliction of  duty. The  Superintendent of Police did not agree with the finding of the Enquiry Officer and directed  him to  examine Police  Constable  Akki  whose statement had  been recorded  before the enquiry was ordered against the  appellant. Akki was accordingly examined but he resiled from  his earlier  statement.  The  Enquiry  Officer again submitted  a further  report and  struck to his former recommendation regarding administration of severe warning to the appellant.  The Superintendent  of Police disagreed with

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the report  of the  Enquiry Officer and found that there was sufficient evidence  against  the  appellant  to  prove  his guilt. Accordingly,  he issued  a notice  to  the  appellant calling upon  him  to  show  cause  why  he  should  not  be dismissed from  service.  Not  feeling  satisfied  with  the explanation tendered  by the  appelant the Superintendent of Police  passed   an  order  dismissing  the  appellant  from service. An  appeal filed to the D.I.G. was unsuccessful and so was a revision to the Government.      Thereafter, the  appellant filed a suit challenging the order of  dismissal and  claiming arrears  of pay. The Trial Court dismissed the suit. The Lower Appellate Court reversed the judgment  of the Trial Court. The High Court allowed the second appeal filed by the State.      In an appeal by Special Leave, the appellant contended:      (1)  The   appellant  was   deprived  of  a  reasonable opportunity of  defending himself  during the  course of the departmental enquiry.  He was  not permitted  to  remain  at Belgaum during  the period  of his  suspension. Evidence  of some of  the  prosecution  witnesses  was  recorded  in  his absence.      (2)  The   impugned  judgment   and  decree  cannot  be sustained as  there is no cogent legal evidence to establish the charge against the appellant.      Dismissing the appeal, ^      HELD:  (1)   Whether  a  delinquent  had  a  reasonable opportunity of  effectively defending himself is a, question of fact depending on circumstances of each 914 case and  no hard  and fast rule can be laid in that behalf. In the  instant case, the order restricting his movement was not such  as can  be said to have deprived him of reasonable opportunity of  making his  defence. The order did not place any embargo  on the  appellant  going  to  Belgaum  for  the purpose of  and in connection with the departmental enquiry. In fact,  the appellant  fully participated  in the  enquiry held at  that place. He also made full use of the assistance of a  policeman called  Police friend,  Provided to  him  to conduct the defence on his behalf. He was furnished with the statements recorded  of the  3 constables before the enquiry was ordered.  The witnesses examined by the prosecution were tendered for  cross-examination. It,  therefore,  cannot  be held  that  a  reasonable  opportunity  as  contemplated  by Article 311 of the Constitution was denied to the appellant. [916-D G]      (2) Neither  the High  Court nor  this  Court  can  re- examine and  reassess the  evidence in domestic enquiries of the instant  nature. Whether  or  not  there  is  sufficient evidence agaiast  a delinquent to justify his dismissal from service is  a matter  on which this Court cannot embark. The departmental proceedings do not stand on the same footing as criminal proceedings  in  which  high  degree  of  proof  is required. The  departmental proceedings  are not  covered by strict rules of evidence as contained in the Evidence Act. A copy of  the statement made by Akki earlier was furnished to the appellant and he examined all the 3 constables including Akki who  made statements  before the  enquiry was  ordered. [916 H, 917 A-C]      State of  Mysore v.  Shivasappa, [1963]  2 S.C.R.  943; A.I.R. 1963  S.C. 375;  State of  U.P. v. Om Prakash, A.I.R. 1970 S.C.  669 followed;  Ghanshyam Das Shrivastava v. State of Madhya Pradesh, A.I.R. 1973 S.C. 1183 distinguished.

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 847 of 1974.      Appeal by  Special Leave  from the  Judgment and Decree dated the 3-10-72 of the Mysore High Court in Regular Second Appeal No. 729 of 1967.      S. S. Javali and H. K. Puri, for the Appellant.      Narain Nettar, for the Respondent.      The Judgment of the Court was delivered by      JASWANT SINGH,  J. This  appeal  by  special  leave  is directed against  the judgment  and decree  dated October 3, 1972, passed  by a  Single Judge  of the  Mysore High  Court whereby allowing  the respondent’s  second appeal No. 729 of 1967, he  set aside  the appellate judgment and decree dated April, 18,  1967 passed  by Civil  Judge, Belgaum, declaring the order  dismissing the  appellant from service as illegal and ultra vires.      Facts material  for the purpose of this appeal are: The appellant herein  was a  Police Constable attached to Khade- bazar Police  Station at Belgaum in 1960. In the small hours of the  morning of  November 17, 1960, the Cantonment Police intercepted a  tonga transporting smuggled illicit liquor in four tubes  from Devi Temple to the cantonment area with the intention of  disposing of  the same  to bootleggers.  After registering  a  case  under  section  66(b)  of  the  Bombay Prohibition Act, the Cantonment P.S.I. proceeded against the tonga driver  and another person who was found following the tonga, in  a criminal  court of  competent jurisdiction  and succeeded in  securing their  conviction for  the  aforesaid offence.  On   November  18,  1960,  the  Cantonment  P.S.I. submitted a  confidential report  about the  incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter 915 that some police constables including the appellant who were newly recruited and attached to different police stations in Belgaum were  indulging  in  smuggling  illicit  liquor.  On receipt  of   this  report,  the  Superintendent  of  Police directed the  P.S.I. Khade-bazar  police station,  to record the statements  of three constables namely M. Y. Akki, Waman Mangesh, and  Nishikant  Shimaji  Satyannawar.  Pursuant  to these directions,  the P.S.I. recorded the statements of the aforesaid  police   constables  in   the  presence   of  the Superintendent of  Police. The  statement of  Nishikant  and Akki, constables  disclosed their  own and  six other police constables, complicity  in the aforesaid smuggling activity. The  Superintendent   of  Police   thereupon  suspended  the appellant and  the other  six  constables  and  ordered  the S.D.P.O. to  hold a  departmental enquiry  against them. The Superintendent of  Police also  transferred  all  the  seven deliquents from  Belgaum and  directed that  they would  not leave their  new stations  without his permission except for purposes of  or in  connection with  the department enquiry. Though the  appellant sought  permission to  stay at Belgaum during  the  period  of  his  suspension,  his  request  was refused.      As the  appellant did  not plead  guilty to  the charge framed against  him, the  Enquiry Officer  proceeded to hold the  enquiry  against  him  in  accordance  with  the  rules contained  in   the  Bombay  Police  Manual,  1950.  On  the conclusion of  the enquiry  during the  course  of  which  a number of  witnesses were  examined both  by the prosecution and  the  defence,  the  Enquiry  Officer  reported  to  the Superintendent of  Police on  November 10,  1961,  that  the

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charge  against  the  appellant  was  not  established.  He, however,  recommended   that   the   appellant   should   be administered a  severe warning  as he  was convinced that he had been  guilty of  misconduct and dereliction of duty. The Superintendent of  Police did not agree with the findings of the Enquiry  Officer and  directed  him  to  examine  police constable Akki  whose statement had been recorded before the charge  was   framed  against   the  appellant.   Akki   was accordingly  examined   but  he  resiled  from  his  earlier statement. The  Enquiry Officer  in the course of his second report  dated   November  30,   1961,   submitted   to   the Superintendent  of   Police  that   no  fresh  evidence  was forthcoming against the appellant. He, however, stuck to his former recommendation  regarding  administration  of  severe warning to the appellant.      The Superintendent  of Police  again disagreed with the report of  the Enquiry  Officer and  found  that  there  was sufficient evidence  against  the  appellant  to  prove  his guilt. Accordingly  he issued  a notice  to the appellant on December 20, 1961, calling upon the latter to show cause why he  should  not  be  dismissed  from  service.  Not  feeling satisfied with  the explanation  tendered by  the appellant, the Superintendent  of Police passed an order on February 9, 1962, dismissing  the appellant  from service.  Aggrieved by this order, the appellant went up in appeal to the D.I.G. of Police but  was unsuccessful.  He also  took the  matter  in revision  to  the  Government  but  there  also  he  failed. Eventually he  brought a  suit in  the  Court  of  the  IInd Additional  Munsiff,   Belgaum,  challenging  the  aforesaid orders of his dismissal and claiming the arrears of his pay. 916      The principal  contentions raised by the appellant were two-fold: (1)  That no  reasonable opportunity  was given to him to  dedend himself  and (2)  that the  Superintendent of Police was  wrong  in  relying  on  the  statements  of  the witnesses recorded  before the charge was framed against him and in  re-assessing the evidence contrary to the conclusion arrived at by the Enquiry Officer who held that there was no evidence to substantiate the charge against him.      After a  regular trial,  the suit  was dismissed by the Munsiff,  Belgaum.  On  appeal,  the  Civil  Judge,  Belgaum reversed the  judgment of  the Munsiff and decreed the suit. Aggrieved by  the decision  of the Civil Judge, Belgaum, the State Government  preferred an  appeal to  the High Court of Mysore which, as stated above, was allowed.      Counsel for  the appellant  has, while  supporting  the appeal, vehemently contended that the aforesaid judgment and decree  of  the  High  Court  cannot  be  sustained  as  the appellant  was  deprived  of  a  reasonable  opportunity  of defending himself  during the  course  of  the  departmental enquiry. Elaborating  his submission, counsel has urged that as restrictions were placed on the movement of the appellant and he  was not  permitted to  remain at  Belgaum during the period of  his  suspension  and  evidence  of  some  of  the prosecution witnesses was recorded in his absence, there has been a  gross violation  of the provisions of Article 311 of the Constitution  and the  principles  of  natural  justice. Counsel has further contended that the impugned judgment and decree cannot  also be  sustained as  there is no cogent and legal  evidence   to  establish   the  charge   against  the appellant.      It is  well settled  that whether  a delinquent  had  a reasonable opportunity of effectively defending himself is a question of  fact depending  upon the  circumstances of each case and  no hard  and fast rule can be laid in that behalf.

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In the  instant case,  the order restricting the movement of the appellant  on which  strong reliance  has been placed on his behalf for assailing the impugned order of his dismissal was not  such as  can be  said to  have deprived  him  of  a reasonable opportunity  of making his defence. The order, it would be noted, did not place any embargo on the appellant’s going to  Belgaum for  the purpose of and in connection with the  departmental  enquiry.  In  fact  the  appellant  fully participated in the enquiry held at that place. He also made full use  of the  assistance of  a police man (called police friend) provided  to him  to  conduct  the  defence  on  his behalf. The  police friend appeared on his behalf before the Enquiry Officer  and cross-examined  all the  witnesses whom the prosecution  examined or tendered for cross-examination. He was  also furnished  with copies of the statements of the three police  constables recorded  by the  Cantonment P.S.I. and allowed an adequate opportunity of cross-examining them. There is  also nothing  to  indicate  that  the  appellant’s request for  an opportunity  to examine  any witness  in his defence was  refused. In fact, he did examine some witnesses in his  defence. In view of all this, it cannot be held that a   reasonable   opportunity   of   defending   himself   as contemplated by  Article 311  of the Constitution was denied to the appellant. 917      Regarding the  appellant’s contention that there was no cogent evidence  to substantiate  the charge against him, it may be  observed that  neither the High Court nor this Court can re-examine  and ressess the evidence adduced in domestic enquiries of  the  nature  with  which  we  are  at  present concerned. Whether  or  not  there  is  sufficient  evidence against a  delinquent to  justify his dismissal from service is a  matter on  which this Court cannot embark. It may also be observed  that departmental  proceedings do  not stand on the same  footing as  criminal prosecutions  in  which  high degree of  proof is required. It is true that in the instant case, reliance was placed by the Superintendent of Police on the earlier  statements made  by the three police constables including Akki  from which  they resiled  but that  did  not vitiate the  enquiry or  the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as  contained in  the Evidence  Act. That apart, as already stated,  copies of  the  statements  made  by  these constables were  furnished to  the appellant  and he  cross- examined all  of them  with the  help of  the police  friend provided to  him. It  is also significant that Akki admitted in the  course of  his statement that he did make the former statement before  the  P.S.I.  Khade-bazar  police  station, Belgaum, on  November 21,  1961 (which  revealed appellant’s complicity in  the smuggling  activity) but  when  asked  to explain as  to why  he made that statement, he expressed his inability to  do so.  The present  case is,  in our opinion, covered by  a decision  of this  Court in State of Mysore v. Shivabsappa(1) where it was held as follows:-           "Domestic  tribunals   exercising   quasi-judicial      functions are  not courts  and 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   procedures   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

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    to the party against whom it is to be used and give him      a fair  opportunity to  explain  it.  What  is  a  fair      opportunity must  depend on the facts and 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.      2. In  respect of  taking the  evidence in  an  enquiry      before such  tribunal, 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      explanation 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 918      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  justice   are  matters  not  of  form  but  of      substance. 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      cross examine them."      Following the  above decision, this Court held in State of U.P. v. Om Prakash(1) that the enquiry is not vitiated if the statements taken at the preliminary stage of enquiry are made available  to the delinquent officer and he is given an opportunity to  cross-examine the  witnesses in  respect  of those statements.      The decision of this Court in Ghanshyam Das Shrivastava v. State  of Madhya  Pradesh(2) on  which strong reliance is placed is  clearly distinguishable and is not at all helpful to the appellant. In that case the appellant was deprived of the opportunity  to defend  himself by  participating in the enquiry which  was held  at Jagdalpur,  500 kilometres  away from Rewa  where the  appellant was  residing on  account of paucity of  funds resulting  from non payment of subsistence allowance during his suspension.      For the  foregoing reasons, we do not find any force in the contention  of counsel  for the appellant that there was no  evidence   on  the   record  which   could  justify  the appellant’s dismissal from service.      Both the  contentions raised on behalf of the appellant being without  any substance,  we find  ourselves unable  to interfere with  the judgment  and decree  passed by the High Court.      The appeal  accordingly fails  and is  dismissed but in the circumstances of the case without any order as to costs. P.H.P.                                     Appeal dismissed. 919