http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: MUMTAZ HUSSATN ANSARI,

       Vs.

RESPONDENT: STATE OF U.P. & ANR.

DATE OF JUDGMENT21/03/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA MISRA RANGNATH

CITATION:  1984 AIR 1116            1984 SCR  (3) 244  1984 SCC  (3) 295        1984 SCALE  (1)515

ACT:      Travelling Allowances  Rules (Financial Handbook Volume Ill-Rule 20.(1)-Interpretation of.      G.O.   No.   4197   R/VIIIA-500(146)68   Interpretation Government must pay expenses of material’ defence witnesses.      Natural Justice-Asking  delinquent officer  to  deposit expenses of  material defence  witnesses-Violates principles of natural justice.

HEADNOTE:      In a  departmental  inquiry  conducted  by  the  second respondent U.P. Administrative Tribunal into certain charges levelled against  the appellant  a Deputy  Superintendent of Police,  the  Tribunal  dismissed  the  application  of  the appellant  praying  for  summoning  8  witnesses  for  being examined in  his defence.  The  Tribunal  relied  upon  rule 20A(1)  of   the  Travelling   Allowances  Rules  (Financial Handbook Volume  III) and observed that the appellant had to deposit the  expenses of  the witnesses,  who  were  private person, if  he wanted  to have  them examined in his defence within a  specified time.  The appellant did not deposit the amount and  the witnesses were not summoned. Pursuant to the finding of  the Tribunal  the  appellant  was  removed  from service. The  appellant filed  a writ petition in High Court contending that in view of G.O.. No. 4197 R/VIIIA/500(146)68 travelling allowance  and diet  money  of  witnesses  to  be examined before  the Tribunal  must have  been paid  by  the State Government  but he  was asked  to deposit a sum of Rs. 900 for  the  witnesses  being  summoned  and  this  was  in violation of  the relevant  provision relating to conduct of proceeding before the Tribunal. The High Court dismissed the writ petition  in limine.  In this  appeal the  question was whether on  this account  there was  non-compliance with the principles of natural justice.,      Allowing the appeal, ^      HELD: There  is no  compliance with  the principles  of natural justice in this case. [251C]      Rule  20A(1)   of  the   Travelling  Allowances   Rules (Financial Handbook  Volume III)  is not quite clear, for it does not  say who  should bear  the  expenses  initially  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

whether the  reference to be made by the inquiring authority under  clause  (c)  should  be  made  before  or  after  the examination of  the witnesses.  Clause (b)  of this sub-rule seems to have been considered 245 satisfied in the present case as the Tribunal had decided to summon the  witnesses provided  the amount  was deposited by the appellant as directed. [249B-C]      G.O. No.  4191  R/VIIIA-500(146)  which  was  evidently intended to  clarify Rule  20A of the Travelling Rules makes it clear  that  responsibility  for  payment  of  travelling allowance to  defence  witnesses  produced  in  departmental inquiry conducted  under s.  7 of  the Police  Act is of the Government and  that if  a witness  has been permitted to be produced in defence it is not open to the inquiry officer to lay down  a condition that his travelling expenses should be first deposited by the delinquent officer before the witness is examined. [250G-H]      In the  present case,  the Tribunal  has considered the witnesses to  be material  but has insisted on the appellant depositing initially  a sum  of Rs.  900 for  the travelling expense  and  daily  allowance  of  the  witnesses  with  an obligation to  make good  any shortfall  in those allowances and loss  of  professional  income  of  the  witnesses.  The respondent-State did  not contend  that this  G.O.. does not apply to  the case of the appellant. Moreover, the appellant was under suspension from 11-12-1967 and there is nothing on record to  show that  he was  financially  sound  and  in  a position to  deposit the  sum of Rs. 900 and pay any further amount which  may be  required to  next any shortfall in the travelling and daily allowances and the loss of professional income of the 8 more witnesses whom he wanted to be examined on his  side. The  failure to  cause the production of those witnesses at the expense of the Government might have caused prejudice to  the appellant for it cannot be predicated what conclusion the  Tribunal would  have reached  in  regard  to charges 1  to 3  if the  evidence  of  those  witnesses  was available for its consideration. [250H, 251 A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1234 of 1977.      From the  Judgment and Order dated 19.8.74 of Allahabad High Court in Civil Writ Petition No. 4827 of 1974      R.K. Garg and Shakeel Ahmed Syed for the appellant.      Prithviraj, Mrs.  S. Dikshit,  S.K. Kulshreshta  and P. Mishra for the respondents .      The Judgment of the Court was delivered by      VARADARAJAN,  J.   This  appeal  by  special  leave  is directed against  an  order  of  a  Division  Bench  of  the Allahabad High  Court dated  19.8.1974 dismissing  in limine Miscellaneous Writ  Petition No. 4827 of 1974 which had been filed by the appellant for quashing the 246 first respondent’s  order dated  3.5.1974 removing  him from service pursuant  to the  finding of  the second respondent, U.P. Administrative  Tribunal, Lucknow  dated 10.7.1972 that the appellant was guilty of three of the four charges framed against  him.   The  appellant  was  employed  as  a  Deputy Superintendent of  Police at  Pilibhit at the relevant time. The  fourth   charge  of   which  the  appellant  ’has  been exonerated was  that he  had transferred  his Vespa  Scooter bearing Registration  No. UPI-9117  and valued  at more than

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Rs. 500/-  to One  Lal Mohd.  without obtaining the previous sanction  of  the  appropriate  authority  and  he  thereby. contravened Rule  24(2) of  the  U.P.  Government  Servants’ Conduct Rules,  1956. The  appellant’s defence  was that the transfer was effected through a reputed dealer and therefore previous sanction  of  the  appropriate  authority  was  not necessary. The  Tribunal found  that the transaction of sale of the  scooter by  the appellant  to Lal  Mohd was effected through  M/s.   Anand  Agencies,  automobile  engineers  and reputed  dealers   in  scooters   and  therefore  there  was sufficient compliance with Rule 24(2).      Charges 1 to 3 were more serious ones. The substance of the first  charge was  that the  appellant while  posted  as Deputy Superintendent  of Police  at Pilibhit was granted 30 days leave with effect from 11.11.1967 and had to resume his duties on  10.12.1967 but  failed to  resume his  duties and absented himself  without previous  permission or intimation to  the   Superintendent  of  Public  and  without  good  or sufficient cause.  He failed to report about his whereabouts until an  application was  made  by  him  on  24.4.1968  for extension of  the leave. The appellant’s defence was that he suffered from an attack of a mental disease, melancholia and was under  the treatment  of Dr.  Mukerji at  Calcutta  from 1.12.1967 to  20.4.1968 and he has informed about his sudden illness and  had applied for extension of the leave directly and also  through his  wife and  he had  furnished his leave address when he proceeded on 30 days leave. The substance of the second  charge was  that while applying for extension of leave on  20.4.1968 he  attempted to  willfully deceive  the Inspector General  of  Police  by  attempting  to  make  him believe that he had been ill from 1.12.1967 to 20.4.1968 and was under treatment of a doctor at Calcutta although in fact he had been to Pakistan during the period and had obtained a medical certificate through deceitful and fraudulent’ means. The  defence   of  the  appellant  was  one  of  denial.  He reiterated that  he was  under treatment  of Dr.  Mukerji at Calcutta from  1.12.1967 to  20.4.1968 and contended that in that 247 period he was treated by Dr. Das at Howrah from 10.1.1968 to 30.1.1968 for  injuries to  his nose.  The substance  of the third charge  was that  after having proceeded on leave with effect from  11.11.1967  he  unauthorisedly  and  unlawfully visited Karachi in Pakistan some-time between 22.11.1967 and 20.4.1968 without  any valid passport or travel document and the he  by contravened  s. 3  of the Passport Act, 1967. The appellant denied  the charge and contended that he had never visited Karachi  and had been suffering from melancholia and treated by Dr. Mukerji at Calcutta.      A number  of witnesses  for  the  department  and  some witnesses tor  the defence were examined before the Tribunal which a  after considering the oral and documentary evidence found charges  1 to  3 against  the  appellant.  One  Harish Kumar, Superintendent  of Police  who was  appointed  as  an assessor in  the inquiry  conduct before the Tribunal agreed with  the   findings  of  the  Tribunal.  Subsequently,  the Tribunal submitted  copies of its findings to the Government with its  recommendation that the appellant may be dismissed from service. The Governor accepted the Tribunal’s findings, took a  tentative decision  to dismiss  the  appellant  from service;  and  issued  a  second  show  cause  notice  dated 29.9.1972 to  him. The appellant submitted his interim reply and final  reply on  19.11.1972 and  31 3.1973 respectively. After  considering  the  appellant’s  replies  the  Governor agreed with  the Tribunal  that the charges 1 to 3 are fully

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

established against  the appellant  and ordered  his removal from service by the order dated 1.8.1974.      The appellant  challenged his  removal from  service in W.P. No.  4827 of  1974 which  was dismissed  in limine by a Division Bench  of the  Allahabad  High  Court.  Hence  this appeal by special leave.      This appeal  deserves to  be allowed  on a  short point which unfortunately  has not  been noticed  by  the  learned Judges of the High Court before dismissing the writ petition in  limine.   The  appellant  had  prayed  for  summoning  8 witnesses for  being examined  in his  defence by  filing an application dated  17.1.1972 for  that purpose. The Tribunal dismissed that  application on  19.1.1972 on the ground that it had  already taken  into consideration the relevant rules in the  Financial Code  Volume III  and  that  it  does  not consider it  necessary to  revise its  views.  The  Tribunal observed in  that order  that the  appellant has to bear the expenses of  the witnesses  who are  private persons  if  he wanted to have them examined in his 248 defence. He was, however, given one week’s time to deposit a sum of  Rs.900 initially  by way  of  travelling  and  daily allowances for the witnesses as well as compensation for the loss of their professional income and he was ordered to make good any  shortfall. The  appellant had  not deposited  that amount and  the witnesses  had not  been summoned  for being examined in  his defence.  The question for consideration is whether on  this account  there is  non-compliance with  the principles of natural justice.      The Tribunal has relied upon Rule 20A of the Travelling Allowances Rules  (Financial Handbook  Volume III) in making the above order. Sub-rule l of that Rule reads thus:           "20A. (13  Persons, who, not being servants of the      Government, are  called as  witnesses in a departmental      inquiry either  by the authority conducting the inquiry      or on behalf of the government servant whose conduct is      under  inquiry,   shall  receive  the  same  travelling      allowance and  diet money  as are  admissible  to  non-      official witnesses summoned in criminal cases, provided      that in  the case  of such  persons who  are called  on      behalf of the government servant whose conduct is under      inquiry, the  payment of  travelling allowance and diet      money shall be subject to the following principles:           (a) travelling allowances may be Paid to witnesses           summoned in  the event  of the  government servant           concerned clearing himself;           (b) such  allowances will  be paid only in respect           of  witnesses  whose  evidence  is  considered  of           material value  by the  authority  conducting  the           inquiry; and           (c) in  exceptional cases the authority conducting           the &  inquiry may,  on grounds  to  be  recorded,           recommend to  the Government  that the  principles           laid down  above be departed from owing to special           reasons.  In   such  cases  it  will  be  for  the           Government   to    decide,   after   taking   into           consideration all  the circumstances  of the case,           whether the  recommendation should  be accepted or           not.           The  authority,   conducting  the   inquiry  shall      determine the  class of each witness for the purpose of      calculating travel- 249      ling  allowance   and  diet   money  under   the  scale      prescribed for witnesses in criminal case."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

    This sub-rule  is not  quite clear, for it does not say who should  bear  the  expenses  initially  or  whether  the inference to  be made by the inquiring authority under class (c) should  be made before or 1 after the examination of the witnesses. Clause  (b) of  this sub-rule  seems to have been considered satisfied in the present case as the Tribunal had decided to  summon the  witnesses provided  the  amount  was deposited by  the appellant  as directed.  The appellant has contended in  para 31  of his  writ petition that in view of G.O. No.  4l97 R/VIIIA-500 (146)/68 travelling allowance and diet money  of witnesses  to be examined before the Tribunal must have been paid by the State Government but he was asked to deposit  a sum of Rs.900 for the witnesses being summoned and this  is in violation of the relevant provision relating to conduct of proceedings before the Tribunal. The said G.O. marked Annexure-11 to the writ petition relates to one Kunhi Ram and  was evidently  intended to clarify. Rule 20A of the Traveling Rules and it reads thus:           "In continuation  of  G.O.  No.  1371-1/VIII  2000      (10/61, dt. July 3, 1961)- I am directed to say that in      the special appeal the appellant had contended that the      additional S.P.  Agra had  asked  him  to  deposit  the      expenses for  T.A. etc.  of defence witnesses before he      summoned them. The position in this connection has been      examined by the Govt and is being clarified here. Under      para 490(5)  of the  police regulations the S.P. has to      decide whether  he should  refuse to summon a , witness      whose evidence  he does  not consider  material to  the      issue. The  witnesses who  are accepted by the S.P. for      being produced in defence can be either summoned by him      or allowed  to be produced by the party charged, So far      as the  question of payment of expenses for the journey      by a  defence witness  is concerned  it is not material      when once a witness is permitted to be produced whether      he is  summoned officially  or is  called by  the party      charged himself.  The  responsibility  for  payment  of      travelling expenses  to the  defence witnesses produced      during departmental  trial conducted under section 7 of      the Police  Act is of the Government. Thus if a witness      has been permitted to be produced in defence, it is not      open to  the inquiring  officer to lay down a condition      that this travelling expenses should be first deposited 250      before he  is summoned.  However, no expenses are to be      paid for  persons who  are not permitted to be produced      in defence.           The  position   with  regard  to  the  payment  of      travelling expenses  to the  defence  witnesses  is  as      follows:      (i)  Govt. servants  who appear as defence witnesses to           give evidence  of the  facts which  come to  their           knowledge in  their official capacity are governed           by Rule 59(1) of the Financial Handbook Volume III           for the purpose of travelling allowance;      (ii) As  regards govt. servants who appear as witnesses           to facts which have come to their knowledge in the           private capacity and appear as private individuals           the  position   under  rule   59(2)  of  Financial           Handbook Volume  III is  that they are entitled to           receive their  actual travelling expenses from the           Court and  as suck they will get T.A, on an ad hoc           basis and  as on  tour. Thus  if  he  is  a  Govt.           servant travelling  in a train..... as an ordinary           passenger and  has to  bear witness to that in his           private capacity  he should  be paid  T.A.  as  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

         tour.  The   Meharrirs  of   the  Police  Stations           bringing records  which they maintain at P.S.s. in           their official  capacity will be governed by class           (1) above.     (iii)   Non-official  witnesses called  or allowed to be           produced by  the S.P. will get T.A. under rule 20A           of Financial Handbook Volume Ill."      This G.O..  makes  it  clear  that  responsibility  for payment  of   travelling  allowance   to  defence  witnesses produced in departmental inquiry conducted under s. 7 of the Police Act  is of  the Government  and that if a witness has been permitted  to be  produced in defence it is not open to the inquiry  officer  to  lay  down  a  condition  that  his travelling  expenses   should  be  first  deposited  by  the delinquent officer  before the  witness is  examined. In the present case,  the Tribunal  has considered the witnesses to be material  but has  insisted on  the appellant  depositing initially a  sum of  Rs. 900  for the travelling expense and daily allowances of the witnesses with an obligation to make good  any   shortfall  in   those  allowances  and  loss  of professional income  of  the  witnesses.  Mr.  Prithvi  Raj, Senior Counsel appearing 251 for the respondent-State did not contend that this G.O. does not A  apply to  the case  of the  appellant.. Moreover, the appellant was  under suspension from 11.12.1967 and there is nothing on  record to show that he was financially sound and in a  position to  deposit the  sum of  Rs.900 and  pay  any further amount  which may  be required to meet any shortfall in the  travelling and  daily allowances  and  the  loss  of professional income of the 8 more witnesses whom he wanted - to be  examined on  his  side.  The  failure  to  cause  the production of  - those  witnesses at  the  expense,  of  the Government might  have caused prejudice to the appellant for it cannot  be predicated  what conclusion the Tribunal would have reached  in regard to charges 1 to 3 if the evidence of those witnesses  was available  for  its  consideration.  We are, therefore,  of the  opinion that there is no compliance with the  principles of  natural justice  in this  case. The appeal has  to be  allowed on  this short  ground and  it is accordingly allowed.  The finding  of the  Tribunal that the appellant is  guilty of  charges l  to 3  and the consequent order of the Government/Governor removing the appellant from service are  quashed. The matter is remitted to the Tribunal for fresh  disposal after  summoning at  government  expense such of  the material witnesses as the appellant may wish to be examined  in his defence. The appellant shall be entitled to costs quantified at Rs. 2,000. It is needless to say that the appellant  would be  entitled to  subsistence allowances from  the  date  of  his  removal  from  service  until  the proceedings taken  against him  terminate and final order is passed. This shall be paid in six weeks. H.S.K.                                        Appeal allowed 252