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PETITIONER: SAWAI SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT02/05/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR  995            1986 SCR  (2) 957  1986 SCC  (3) 454        1986 SCALE  (1)1282

ACT:      1. Termination of services - Nature of charge vague and difficult for  any accused  to  meet  the  charge  and  also unsupported by  evidence, absence of opportunity for cross - examination non-examination  of handwriting  expert  etc.  - Order of termination of service is bad in law. C      2. Burden  of proof  a serious  offence -  Evidence  of handwriting expert  necessary but  dead  -  The  prosecution should call  another handwriting  expert to  corroborate the charge Penal Code S.463 read with Section 45 Evidence Act.      3. Natural  justice principle  of  -  Applicability  to Service cases, explained.

HEADNOTE:      The appellant  who was working as Superintendent, Sheep and Wool,  Nagaur was  appointed as  a Returning  Officer to conduct Panchayat  elections at  Sardi in  Panchayat  Samiti Ladnun held  in the  month of  December, 1960. On the 2nd of July  1965,   the  Government   of  Rajasthan  informed  the appellant that  an inquiry  was proposed  to be held against him for  showing undue  favour  to  one  of  the  contesting candidate’s  by   wrongly  rejecting   another   candidate’s nomination  paper  after  committing  forgery  by  effecting erasion of the the word "Panch" on the nomination paper. The Additional Commissioner  for departmental  inquiry held  the enquiry and  on the  basis of  his report  dated 27th March, 1967, the  Government issued  a show  cause  notice  on  3rd October 1968 and after receipt of the reply cancelled it and issued a  fresh show  cause notice  to which  the  appellant again gave  an elaborate  reply. However  by an  order dated 5.4.1971  the   Government  directed   the  removal  of  the appellant from  service. The  Writ  Petition  filed  by  the appellant  challenging   the  orders   of  termination   was dismissed summarily. The writ appeal also met the same fate. Hence the appeal by special leave.      Allowing the appeal, the Court, 958 ^      HELD: 1.1.  If the  charges are  vague and  it is  very difficult for any accused to meet the charges fairly and the evidence adduced  perfunctory and  did not at all bring home the guilt of the accused is entitled to be exonerated of the

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offence  charged  with.  Non-allegation  by  the  delinquent either before  the enquiry  officer or before the High Court that the charges were vague does not by itself exonerate the department to  bring home the charges. Though a departmental enquiry is  not like a criminal trial, the charges involving consequences of termination of service must be specific.[965 C-F]      Suresh   Chandra   Chakrabarty   v.   State   of   West Bengal,[1971] 3  S.C.R. 1; and State of Andhra Pradesh v. S. Sree Rsma Rao, [1964] 3 S.C.R. 25 referred to.      1.2 Having  regard to  the consequences of the offences with which  the deliquent  officer was  charged  and  having regard to  the nature  of charge  and the  evidence of hand- writing expert  and the  absence of  opportunity for  cross- emamination  and  the  conflicting  nature  of  evidence  of Chaturbhuj and  nature of  evidence given  by Jiwan Dass, in the instant  case, the report of the Inquiry Officer and the consequent termination order passed by the Government cannot be sustained. [966 D-E]      2. In  a case where an offence under section 463 Indian Penal Code  is involved  and the  allegation is sought to be proved  by  the  evidence  of  handwriting  expert  and  the handwriting expert  was not  available for cross-examination on the  ground that  at that  time he  was dead, then it was necessary on  the part  of the department to adduce evidence to call  another handwriting  expert  to  corroborate  their charge. In  the absence  of such  discharge of the burden of proof, the  Court may draw an adverse inference supported by other evidence against the prosecution. [964 B-Cl      3.1 There  is no  such rule  that  an  offence  is  not established unless  it is  proved beyond  doubt.  But  in  a departmental enquiry entailing consequences like loss of job which now-a-days  means loss  of livelihood,  there must  be fair play  in action,  in  respect  of  an  order  involving adverse or  penal consequences against an employee and there must be  investigations to  the charges  consistent with the requirement 959 Of the  situation  in  accordance  with  the  principles  of natural justice  in so  far as  these are  applicable  in  a particular situation. [965 F-G]      3.2 The  application of  those  principles  of  natural justice must  always be in conformity with the scheme of the Act and  the subject  matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is  to  be  applied.  There  is  no  such  thing  as technical  natural  justice.  The  requirements  of  natural justice depend upon the facts and circumstances of the case, the nature of the enquiry the rules under which the Tribunal is acting,  the subject  matter to  be dealt with and so on. Concept of fair play in action which is the basis of natural justice must  depend upon  the particular  lis  between  the parties. Rules  and practices  are constantly  developing to ensure fairness  in the  making of  decisions  which  affect people in  their daily  lives and  livelihood. Without  such fairness democratic  governments cannot  exist.  Beyond  all rules and  procedures that  is the sine qua non. [965 H; 966 A-D]      K.L. Tripathi  v. State  Bank of India & Ors., [1984] 1 S.C.C. 43 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal  No. 2179

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(N) of 1972.      From the  Judgment and  Order 7.4.1972 of the Rajasthan High Court in Special Appeal No. 74 of 1972.      Tapas Roy, S.K. Jain for the Appellant. F      Badri Das  Sharma, Surya  Kant Sharma and Miss Maya Rao for the Respondent.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. This  is an  appeal by special leave granted  by this  court against  the order  dated  7th April, 1972  of the  High Court of Judicature for Rajasthan, at Jodhpur, in Special Appeal No. 74 of 1972. The High Court of Rajasthan Jodhpur in the said appeal refused to interfere with the  order of  the learned  single Judge  of that  High Court. The H 960 learned single  judge had dismissed the writ petition of the appellant  challenging  the  order  of  termination  of  his services.      The  appellant   was  an   employee  of  the  Rajasthan Government and was appointed as returning officer to conduct Panchayat elections  at Sardi  in Panchayat Samiti Ladnun in the district  of Nagpur held in the month of December, 1960. At that  time, the  appellant was working as Superintendent, Sheep & Wool, Nagpur. The election was to take place on 26th December, 1960  and the  date for  submission of  nomination forms was  25th December,  1960. Four  persons, namely, Shri Chaturbhuj, Shri  Purna Ram,  Shri Jiwan  Ram and Shri Jiwan Dass filed  their nomination  forms. m  e  nomination  paper filed by  Shri Chaturbhuj  was alleged  to have  been  found incomplete and  it was,  therefore, rejected. The nomination paper was said to be defective for the following reasons -           (i) In  the opening  line the  Ward Number was not           filled in  and the  space provided  therefore  was           left blank ;           (ii) In  the second  line out  of the  words Panch           Sarpanch one  of the  two was  not struck  out; so           that  there   was  no   indication   whether   the           nomination was  for the office of Panch or that of           Sarpanch.           (iii) In  the third  line of the blank space again           intended  to   specify  the   office,   the   said           Chaturbhuj had filled in his own name thus instead           of  stating  that  he  was  proposing  himself  as           candidate for  the office of Panch or Sarpanch, it           was  found   that  he  was  proposing  himself  as           Chaturbhuj.           (iv) At  the end of sub-paragraph (1) containing a           declaration   by   the   candidate   as   to   his           qualifications the  said Chaturbhuj did not strike           off one of the two words Panch/Sarpanch.      In  view   of  the  above,  the  nomination  paper  was rejected. Shri  Jiwan Dass and Shri Jiwan Ram withdrew their candidature and  Shri Purna  Ram was left alone in the field and was, therefore, elected to the office of Sarpanch.                           MANOHAR 961      On the  2nd July,  1965, the  government  of  Rajasthan informed the  appellant that  an enquiry  was proposed to be held against him on charge which was as follows :           "That the said Shri Sawai Singh, while functioning           as District  Sheep ˜  Wool Officer, Nagaur, during           the year  1960 was  appointed as Returning Officer           to  conduct   Panchayat  Election   at  Sardi   in           Panchayat Samiti  Ladnun in the month of December,           1960. That  the said Shri Sawai Singh showed undue

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         favour to  one of  the contesting  candidates Shri           Purna Ram.  He manipulated  the withdrawal of Shri           Jeewan Dass  a dummy  candidate of Shri Chaturbhuj           who was  contesting candidate  against Shri  Purna           Ram. The  said Shri  Sawai Singh committed forgery           by effecting  erasion in  the word  "panch" on the           nomination paper of Shri Chaturbhuj and malafidely           and improperly rejected his nomination form."      The statement  of allegations  was also  sent alongwith the forwarding  letter and  it was  mentioned  in  the  said statement as follows :           "4. Shri Sawai Singh manipulated the withdrawal of           Shri Jeevan  Dass a  dummy candidate of Chaturbhuj           by cheating.           5.  He  further  committed  forgery  by  effecting           erasion in  the word  ’panch’  on  the  nomination           paper of  Shri  Chatur  Bhuj  and  malafidely  and           improperly  rejected   the  nomination   form   of           Chaturbhuj and thereby acted in furtherance of the           prospects of  the election  of Shri  Purna Ram  as           Sarpanch Sardi."      A reply  to the  said charge-sheet was submitted by the appellant. He  denied the charge levelled against him. By an order dated 4th November, 1965, the Government appointed the Additional Commissioner for departmental enquiry, Rajasthan, Jaipur as an Enquiry Officer to hold the enquiry against the appellant. The  enquiry Officer submitted his report on 27th March, 1967. Perusal of the enquiry report makes perfunctory reading -  comparing the  evidence  of  Chaturbhuj  and  the appellant it  is difficult  to  accept  on  what  basis  the enquiry H 962 Officer  accepted  the  Chaturbhuj’s  version.  The  Enquiry Officer did  not discuss the inherent improbabilities of the statements of Chaturbhuj which will be noted later.      On 3rd  October, 1968,  the government  issued a  show- cause notice to the appellant which was as follows :           "According to  the report  of the  Enquiry Officer           the charge  has been  proved to  this extent  that           Shri  Sawai  Singh  with  dishonest  intention  to           declare candidate Poornaram uncontested successful           Sarpanch made  changes in  the nomination  form of           Shri Chaturbhuj  which was  complete at  the  time           when was presented and thus made it incomplete and           thereafter  illegally   rejected  it.   The  State           Government   has    provisionally   accepted   the           decision. The  State Government  has provisionally           taken further  decision that  Shri Sawai  Singh be           removed from  State Service  for the said mistake.           Hence  Shri   Sawai  Singh   is  hereby  given  an           opportunity  that   if  he   wants   to   file   a           representation against the provisional decision he           may present  it within  15 days  From the  date OF           receipt of this letter to the undersigned."      It may  be mentioned that what was the dishonest motive except the  inference from  the rejection  of the nomination paper on  alleged improper  grounds nothing was indicated in the report of the Enquiry Officer.      This notice,  however, was  later on  cancelled  and  a fresh show-cause  notice was  issued. The  appellant gave an elaborate  reply   to  the  said  notice.  To  complete  the narration of  events, the  government by  an order dated 5th April, 1971 accepted the findings of the Enquiry Officer and directed his  removal from  service. The  appellant filed  a writ petition  before the  High Court. The writ petition was

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heard by  P.N. Signal,  J. as  the learned judge then was of the High  Court and  he by his order dated 31st August, 1971 dismissed the same summarily.      The  appellant   filed  a  special  Appeal  before  the Division Bench. The said appeal was also summarily dismissed on 7th  April, 1972. Thereafter on refusal of the High Court to grant 963 a certificate,  by special  leave, this appeal has come up A before  us   nearly  15   years  after  the  termination  of employment.      Shri Tapash  Chandra  Roy,  learned  advocate  for  the appellant, urged  before us  three main submissions, namely, (i) the  charges were not clear ; (ii) there was no evidence to support  the  charges  and  on  the  contrary  (iii)  the evidence on  record was  contrary to  the charges  made. The charges framed  have been  noted namely,  (i) the  appellant showed undue favour to one of the candidates Shri Purna Ram. (ii) He  manipulated the withdrawal of Jiwan Dass, the dummy candidate  of   Shri  Chaturbhuj   who  was  the  contesting candidate against  Shri Purna Ram and (iii) Shri Sawai Singh committed forgery  by effecting  erasion of the word ’panch’ on the  nomination paper  of Shri  Chaturbhuj and malafidely rejected his  nomination paper.  The second  charge i.e. the withdrawal of Jiwan Dass can only be understood in the light of the  statement of Shri Jiwan Dass. Shri Jiwan Dass stated thus in  his evidence which was on the record of the enquiry :           "I withdrew  my nomination  paper at 3 P.M. I only           heard in  the evening that the nomination paper of           Chaturbhuj  had  been  rejected.  I  do  not  know           whether symbol was issued to Chaturbhuj or not. My           statement was  recorded by  Collector Ex. P.11 and           also by C.I. which is Ex. P.12. I had withdrawn my           nomination paper  voluntarily. No one told me that           nomination paper  of Chaturbhuj had been accepted,           and on  that basis, I should withdraw I had stated           in portion  A to  of the statement marked Ex. P.12           that I  was told  regarding the  acceptance of the           nomination form  of Chaturbhuj.  For that reason I           had  withdrawn  my  nomination  form.  I  was  not           present when  Chaturbhuj had  asked the reason for           rejection  of  his  nomination  paper.  I  do  not           remember whether  I had given the statement marked           to in Ex. P.12 P.A. to (sic). The statement of Ex.           P.ll was  taken by  the steno  of the Collector in           the absence  of Collector.  The steno was drunk at           that time.  I cannot  say what  he recorded  in my           statement. I  had not stated as marked A to and to           in Ex. P.ll. On cross-examination the Departmental           Officer stated  that my nomination form was filled           by Sohan Singh. I was not dummy candidate." 964      A fair  reading of  the said  statement  would  give  a complete lie  to the  charge that  the appellant manipulated the withdrawal  of Jiwan  Dass. It  is clear  that the first charge was  not clear,  in the  sense, how the appellant had alleged to have manipulated the withdrawal of Jiwan Dass. It is difficult  for any  officer to  meet  a  charge  of  this nature. The  second  charge  was  about  committing  forgery effecting erasion  of the  word ’panch’  on  the  nomination paper of  Shri Chaturbhuj.  This allegation was sought to be proved by  the evidence  of hand-writing  expert. The  hand- writing expert  was not  available for  cross-examination on the ground that at that time he was dead. But if evidence of

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hand-writing expert  was necessary to prove the guilt of the appellant  then   it  was  necessary  on  the  part  of  the department to  adduce evidence  to call another hand-writing expert to corroborate their charge.      In order  to  prove  the  charge  against  him  it  was necessary  to  establish  that  Shri  Chaturbhuj  had  filed nomination being  Ex. P.13,  complete in  all respects. Shri Chaturbhuj is  the complainant and his evidence on filing of the nomination  paper is  not only  contradictory  but  also leads one  to  believe  that  he  had  filed  an  incomplete nomination form.  Shri Chatur  Bhuj in  Ex. E.H.  Pl  (D.E.) stated that  his nomination paper was duly filled in by him. This was  taken by  the Enquiry  Officer to  mean  that  the nomination paper  was complete  in all  respects and wrongly rejected. Shri  Chaturbhuj on  8th July,  1966 was shown the nomination from  Ex. P.13 and he admitted that Ex. P13 bears his signatures and that he had submitted it for Sarpanch but he did  not say  that whether  he had  struck off  the  word ’panch’ in the nomination paper so as to convey his proposal for Sarpanch. He also could not say on seeing the nomination paper that the word ’Panch’ in the nomination paper marked A & by  the Additional  Commissioner Departmental  Enquiry had been struck off or not. He could not say whether any rubbing or erasion  of the word ’Panch’ had taken place or not. Shri Chaturbhuj had  stated that  he did  not  remember  who  had written his nomination paper. There were two persons present at that  time. One  was his  brother Shri  Dhar who  was not produced in the Departmental Enquiry and the other was Puran Chand Sharma of Ladnun. This was an ambiguous and misleading statement. On  the other hand, in the evidence of Shri Puran Chand, he said that he had filled up one form for 965 Shri Chaturbhuj  for Sarpanchship and identified the same to be Ex.13.  He stated  after a look at Ex. P.13 that the form was filled  up by  him in his own hand except the signatures which were  done by Shri Chaturbhuj himself in his presence. When  the   form  was   shown  to  him,  he  stated  in  his examination-in-chief that the name of Shri Chaturbhuj in Ex. P.13 marked  to and  I to  J was in the hand-writing of Shri Chaturbhuj himself  and also  the signatures  K to L were in the handwriting  of Shri  Chatur Bhuj.  There  were  several other contradictions  in the  said statement  of Puran Chand which were  mentioned in  paragraphs 11  to 13  of the  writ petition before the High Court. These were not considered by the High Court.      Quite apart  from that  fact, it appears to us that the charges were  vague and it was difficult to meet the charges Fairly by  any accused. Evidence adduced was perfunctory and did not at all bring home the guilt of the accused.      Shri B.D.  Sharma, learned advocate for the respondent, contended that  no allegations  had  been  made  before  the enquiry officer  or before  the High Court, that the charges were vague.  In fact  the appellant  had participated in the enquiry. That does not by itself exonerate the department to bring home the charges.      It has  been observed  by this  Court in Suresh Cbandra Chakrabarty v.  State of  West Bengal [1971] 3 S.C.R. 1 that charges involving  consequences of  termination  of  service must be  specific, though a departmental enquiry is not like a criminal  trial as  was noted by this Court in the case of State of  Andhra Pradesh v. S. Sree Rama Rao [1964] 3 S.C.R. 25 and  as such there is no such rule that an offence is not established  unless   it  is  proved  beyond  doubt.  But  a departmental enquiry entailing consequences like loss of job which now-a-days  means loss  of livelihood,  there must  be

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fair play  in action,  in  respect  of  an  order  involving adverse or  penal consequences  against an  employee,  there must be  investigations to  the charges  consistent with the requirement  of   the  situation   in  accordance  with  the principles of  natural  justice  in  so  far  as  these  are applicable in a particular situation.      The application of those principles of natural justice 966 must always  be in conformity with the scheme of the Act and the subject  matter of  the case.  It is not possible to lay down any  rigid rules  as  to  which  principle  of  natural justice is  to  be  applied.  There  is  no  such  thing  as technical  natural  justice.  The  requirements  of  natural justice depend upon the facts and circumstances of the case, the nature  of  the  enquiry,  the  rules  under  which  the Tribunal is  acting, the subject matter to be dealt with and so on.  Concept of fair play in action which is the basis of natural justice  must depend upon the particular lis between the parties.  (See K.L.  Tripathi v.  State Bank  of India & Ors., [1984] 1 S.C.C. 43) Rules and practices are constantly developing to  ensure fairness  in the  making of  decisions which affect  people in  their daily  lives and  livelihood. Without such  fairness democratic  governments cannot exist. Beyond all rules and procedures that is the sine qua non.      Having regard  to the consequences of the offences with which the  delinquent officer  was charged and having regard to the  nature of  charge and  the evidence  of hand-writing expert and  the absence Of opportunity for cross-examination and the  conflicting nature  of evidence  of Chaturbhuj  and nature of  evidence given  by Jiwan  Dass,  we  are  OF  the opinion that  the report  of the enquiry officer Finding the appellant guilty  should not  have been  sustained  and  the government should  not have acted upon it. The High Court in our opinion, with great respect, was in error in not bearing in  mind   these   aspects   which   have   been   indicated hereinbefore.      In that view of the matter, the order of the High Court cannot be sustained. In the premises, the order and judgment of the  High Court are set aside. The appeal is allowed. The appellant is  entitled to  the costs  of  this  appeal.  The appellant would  also be  entitled to  his remuneration  and salary for  all this  period. We  do not  know if during the pendency of  this appeal the appellant has superannuated and retired. If  that is  so, he  should be  in service upto the date J  of superannuation with the entitlement of pensionary relief. If not, he should be re-instated. S.R.                                          Appeal allowed 967