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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: DEWAN CHUNI LAL

DATE OF JUDGMENT: 16/02/1970

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SHELAT, J.M.

CITATION:  1970 AIR 2086            1970 SCR  (3) 694  1970 SCC  (1) 479  CITATOR INFO :  RF         1982 SC 793  (5)

ACT:      Constitution  of India, Art. 311--Opportunity  to  show cause,  against dismissal--Departmental enquiry is  vitiated if officer concerned is not given reasonable opportunity  of conducting his defence.      Punjab Police Rules--Officer charged with  inefficiency within meaning of R. 16. 25(2)--Adverse reports relating  to 1941  and  1942 not relevant when officer allowed  to  cross efficiency bar in 1944.

HEADNOTE:      The  respondent was a Sub-Inspector of Police  and  had served  as such in various places which are now in  Pakistan before  being posted to Gurgaon in 1948.   His  confidential ’service  reports upto 1940 were satisfactory.  In 1941  and 1942  he got bad reports.  However he was allowed  to  cross the  efficiency bar in 1944.  The reports relating  to  1945 and 1946 were again adverse.  In 1948 the report charged him with having taken bribe in a particular case, but the charge was  on enquiry-found to be false.  On October 12,  1949  he was  served with a charge sheet setting forth extracts  from his  confidential character roll imputing  inefficiency  and lack of probity while in service from 1941 to 1948.  He  was asked to answer to the prima facie charge of inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police  Rules. A  departmental enquiry was held and the enquiry officer  in 1950 recommended his dismissal.  After a further show  cause notice  the  respondent  was  dismissed  from  service.   He thereupon filed a suit in which he challenged his  dismissal as  wrongful  on  the grounds inter alia  that  (i)  Reports relating to the years 1941 & 1942 should not have been taken into  consideration  against  him;  (ii)  that  the  enquiry officer did not allow him to examine in defence the officers who  had  written  adverse reports  against  him  and  other witnesses who could have thrown light on these reports.  The trial court decreed the suit and the High Court also held in the appellant’s favour mainly on the ground that Art. 311 of the  Constitution had not been complied with.  In appeal  to this Court by the State of Punjab.

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    HELD  : (i) Reports earlier than 1944 should  not  have been  considered  at  all inasmuch  as  the  respondent  was allowed  to cross the efficiency bar in that year.   It  was unthinkable that if the authorities took any serious view of the  charge of dishonesty and inefficiency contained in  the confidential  reports  for  1941 and 1942  they  could  have overlooked the same and recommended the case of the  officer as  one  fit  for  crossing  the  efficiency  bar  in  1944. Moreover  there was no specific complaint in either  of  the two years and at best there was only room for suspicion  re- garding his behaviour. [699 H]      (ii) On  the  facts of this case it was  impossible  to hold   that  the  respondent  had  been   given   reasonable opportunity  of  conducting his defence before  the  enquiry officer.   It  was  clear that if the  enquiry  officer  had summoned at least those witnesses who were available and who could  have  thrown some light on the reports  made  against the,- respondent the report might will have been  different. Refusal  of  the  right to examine witnesses  who  had  made general rem-arks against the respondent’s character and were available for examination at the enquiry amounted to  denial of  a  reasonable opportunity of showing cause  against  the action proposed.  Although the case was governed by Art. 311 as it stood prior to its 695 amendment in 1963 the respondent could not be deprived of an effective right to make representation against the action of dismissal. [701 F-G; 703 C-D]     In  this  view the appeal by the State  of  Punjab  must fail.     Sadananda Mohapatra v. State, A.I.R. 1967 Orissa 49  and State  of Jammu & Kashmir v. Bakshi Ghulam Mohammed,  [1966] Supp.  S.C.R. 401, distinguished.     State  of Orissa v. Sailabehari, A.l.R. 1963 Orissa  73, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2348  Of 1966.     Appeal  from the judgment and decree dated September  6, 1962,  of the Punjab High Court in Regular First Appeal  No. 53 of 1956.     V. C.  Mahajan, for the appellant.     N. S. Bindra and B. Datta, for the respondent.     The Judgment of the Court was delivered by     Mitter, J. By this appeal the State of Punjab challenges the  judgment and order of the Punjab High  Court  upholding the decree of the Subordinate Judge, Gurgaon declaring  that the dismissal of the respondent from service was illegal and inoperative.  The respondent, a Sub Inspector of Police  was called  upon to answer a charge framed on October  12,  1949 setting forth extracts from his confidential character  roll -showing  his  inefficiency  and lack of  probity  while  in service  from 1941 to 1948 and to submit his answer  to  the prima facie charge of inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules.     The  respondent  had joined the police service  and  had served as a Sub Inspector in various places which are now in Pakistan  before he was posted to Gurgaon in the year  1948. It appears that the view taken of his conduct and reputation by his superior officers, over the years was not consistent. In some years he got what is known as a ’B’ certificate  and in  others an ’A’ certificate.  According to rule  13.17  of

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the  Punjab Police Rules, Superintendents of Police  had  to prepare  personally  and  submit  annually  to  the   Deputy Inspector-General of Police confidential reports in the form prescribed  on the working of all Assistant  Sub  Inspectors and Sub Inspectors serving under them.  The reports were  to be  of two kinds ’A’ and ’B’ and to be marked as  such.   An ’A’ report was for recommending that incremental  promotions should  not be withheld while a ’B’ report was to contain  a recommendation   for  reasons  to  be  fully  stated,   that incremental promotions should be withheld.  The rule further shows that the purport of all ’B’ reports was to be formally communicated to the officer 696 concerned  and his written acknowledgment to, be taken.   It also  prescribed that the submission of two  successive  ’B’ reports regarding an officer would result, automatically  in the institution of departmental proceedings against him with a view to stoppage of increment.      The  punishments which could be awarded  departmentally are  set out in rule 16.1 and under. rule 16.2(1)  dismissal is to, be awarded only for the gravest acts of misconduct or as  the  cumulative effect of continued  misconduct  proving incorrigibility  and complete unfitness for police  service. Rule  )  6.24  sets  out the procedure  to  be  followed  in -departmental  enquiries.   The sum and  substance  of  rule 16.24  is that in case the police officer did not admit  the misconduct     "the  officer  conducting the enquiry shall  proceed  to record such evidence, oral and documentary, in proof of  the accusation  as  is available and  necessary,to  support  the charge.   Whenever  possible, witnesses  shall  be  examined direct,  and  in the presence of the accused, who  shall  be given  opportunity  to take notes of  their  statements  and cross-examine  them.  The officer conducting the enquiry  is empowered,  however,,  to  bring  on  to  the.  record   the statement  of  any  witness whose presence  cannot,  in  the opinion of such officer, be procured without undue delay and expense  or  inconvenience, if he considers  such  statement necessary,  and  provided  that it  has  been  recorded  and attested by a police officer superior in rank to the accused officer  or  by a magistrate, and is signed  by  the  person making Further  the  accused  officer was  required  to  state  the defence  witnesses  whom he wished to call together  with  a summary  of the facts as to which they would  testify.   The enquiring  officer  was  empowered to  refuse  to  hear  any witnesses  whose evidence he considered would be  irrelevant or unnecessary in regard to the specific charge framed.      Under  rule  16.25(1) a police officer called  upon  to answer   a  charge  of  misconduct  must  be   given   every opportunity of proving his innocence.  Under sub-rule (2) of this rule, charges need not be framed in relation only to  a specific  incident  or act of misconduct  and  when  reports received.  against an officer or a preliminary enquiry  show that his general behaviour has been such as to be  unfitting his  position or that he has failed to reach  or maintain  a reasonable  standard  of  efficiency he may  and  should  be charged accordingly, and a finding of guilty on such a 697 charge  would  be  valid ground for the  infliction  of  any authorised departmental punishment which might be considered suitable in the circumstances of the case.     The   confidential   reports  extracts,   whereof   were contained  in  the  charge  sheet make  it  clear  that  the respondent was being accused of laziness and ineffectiveness

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and  as  having  a doubtful reputation as  to  his  honesty. Excepting  for the year 1948 wherein a specific instance  of corruption  was charged against him the other  reports  only contained  generally  adverse  remarks.   For  instance  the remarks  against  him for the year 1941 were to  the  effect that  he  was  "lazy and ineffective and that  he  had  been warned for dishonesty, laziness and lack of control." In the year  1942 When he was posted at Dera Gazi Khan  his  annual confidential  report  showed  that although  there  were  no definite complaints he had not shown any outstanding ability or  energy.   The Superintendent of Police was  not  certain about  hi&  honesty -but had no special  complaints  against him.  The respondent was not allowed to cross the efficiency bar in that year in view of his past reports.      It  is  the  common  case  of  the  parties  that   the respondent was allowed to cross the efficiency bar in  1944. in  1945  he  was transferred to Montgomary And  dot  a  ’B’ report  and his honesty was characterised as  doubtful.   He got   another   warning   in  that  year.    In   1946   the Superintendent of Police remarked that he was a failure as a Station  House Officer and was slow to carry out orders  and had no grip on his staff.  I The Deputy Inspector General of Police,  Multan Range, summed up his 16 years’ service  with the note               "From all accounts he is one of the worst  Sub               Inspectors  in  the Range and  the  department               will  be well rid of him, if action  under  r.               16.25(2)  can  be successfully  taken  against               him.  Action under r. 16.25 cannot succeed  at               present  but his past record is such that  any               further  complaint  should  warrant  his  dis-               missal." In   the  confidential  reports  of  the  year   1946,   the Superintendent  of Police, Muzaffargarh, stated that he  was not  honest  and  was  very  poor  on  parade.   The  Deputy Inspector  General, Multan Range gave him a  third  warning. The Superintendent of Police, Muzaffargarb, however remarked that  although  his previous record  was  unsatisfactory  he appeared to be trying to mend himself.  In the year 1948  he got a ’C’ report and the Superintendent of Police  described him as "thoroughly corrupt" The S.P. further remarked that                   "This officer fell to unheard of depths of               moral  degradation in corrupt practices  while               posted to City               698               Rewari  inasmuch  as  he  changed  the   opium               recovered by him earlier with Rasaunt for  Rs.               1,000/-bribe and then made over the opium  for               sale  in  the black market.  He was  known  to               have  mixed up with bad  characters,  gamblers               and Rishawatdalals." According  to the charge sheet the attested copies of  these reports were to be used as evidence against him.     In  regard  to  the  year  1948  and  the  charge  above mentioned  it  is  enough to say ;hat an  enquiry  was  held against  him  and  he was held  entitled  to  an  honourable acquittal.     The  respondent  pleaded not guilty to  the  charge  and filed  a list of 63 witnesses whom he sought to  examine  in his  defence.   He also gave a summary of  the  facts  about which  each  of the witnesses was to  depose.   The  enquiry officer allowed him to examine 21 witnesses in defence.   No witness  was examined on behalf of the department.  On  25th May  1950  Bishambar Das, Superintendent of  Police  made  a report  that the charge had been fully brought home  to  the

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respondent and it was suggested that he should be dismissed. The Deputy Inspector General asked him to show cause why  he should  not be dismissed from service.  After receipt  of  a written representation made by the respondent and  recording his  statement the Deputy Inspector General passed an  order dismissing the respondent from service.      The respondent then filed his suit in the court of  the Subordinate  Judge, Gurgaon, wherein his main complaint  was that  the enquiring officer did not record any  evidence  in support  of  the  charge nor were  the  persons  making  the reports examined direct and in his presence with opportunity to  him  to  crossexamine the persons  who  had  made  those reports  : he also averred that good reports earned  by  him during  his long period of service had not been  taken  into account.  He also pleaded that he had been allowed to  cross the  efficiency  bar in December 1944 and had been  given  a selection grade in 1,945.      It  was  urged  before  us that  the  crossing  of  the efficiency  bar must be regarded as giving him a clean  bill up to that date and in view of this the reports of 1941  and 1942  should not have been taken into consideration  against him.      As regards the reports for the years 1945 and 1946  the respondent’s  complaint  was  that  the  Superintendent   of Police.  Montgomary, was for certain communal reasons biased against him.  As regards the reports for the period May  27, 1946 to 30th June 1946 and the rest of the year the same had been made by Shamsheer Singh and Sadat Ali,  Superintendents of Police of 699 Muzaffargarh.   Shamsheer  Singh had given  him  no  adverse remark  and  had left the column of honesty  in  the  report "blank".   Sadat Ali who was biased against  the  respondent got the word "no" typed opposite the column of honesty.  The report for the year 1948 was based mainly on the opium  case and as he had been cleared of the charge in respect of  that case, there was no foundation for the report for that  year. Further  the order of dismissal was in violation of r.  16.2 as this punishment was to be awarded for the gravest acts of misconduct   or  as  the  cumulative  effect  of   continued misconduct  proving incorrigibility and  complete  unfitness for police service which facts did not exist in his case.  A further complaint was made that the enquiry officer did  not care  to summon A. L. Chopra, the  Rehabilitation  Inspector and  Captain  Chuni Lal, Ex-military man although  they  had been  allowed to be examined previously.  The deposition  of Ram  Chander, Assistant Surgeon, a defence witness  was  not typed  out  and  made  a part of  the  record  although  his deposition  was noted by the stenotypist in the  note  book. The  order of dismissal was passed by the  Deputy  Inspector General  without  considering this  evidence.   Besides  the above,  the  evidence of well placed  officers  like  Deputy Commissioners,  Superintendents  of Police,  Sub  Divisional Magistrates and others who had testified to the respondent’s efficiency, honesty and reliability were totally ignored.      The  Subordinate  Judge  held that  the  charge  framed against  the  respondent was vague and  indefinite  and  the enquiry  was.  unfair  and inadequate because  some  of  the authors  of  the reports adverse to the  respondent,  though avail-able,  were not produced to enable the  respondent  to cross-examine  them,  that oral  and,  documentary  evidence sought  by  the  respondent  was withheld  and  as  such  no reasonable  opportunity of defence was afforded to  him.  in the result he held that the requirements of Art. 311 of  the Constitution  had been violated and the order  of  dismissal

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was inoperative.       The High Court did not agree that the charge was vague but  focussed  its attention mainly on the  question  as  to whether  there  had been a substantial compliance  with  the requirements  of Art. 311 and whether the enquiry  conformed to   the  principles  of  fairplay  and   natural   justice. Considering  the  Service Rules already mentioned  the  High Court  observed that there was no dispute that reports  till 1940 were generally favourable to the plaintiff.       In our view reports earlier than 1942 should not  have been  considered at all inasmuch as he was allowed to  cross the efficiency bar in that year.  It is unthinkable that  if the  authorities  took  any serious view of  the  charge  of dishonesty  and inefficiency contained in  the  confidential reports of 1941 and 1942 they could 700 have  overlooked the same and recommended the case   of  the officer as one fit for crossing the efficiency bar in  1944. It  will  be noted that there was no specific  complaint  in either of the two years and at best there was only room  for suspicion regarding, his behaviour. It  further  appears from  the judgment of  the  High  Court based  mainly on the lengthy finding of the,  Superintendent of Police, Bishambar Das dated 25th May 1950 that from  1942 to  April 1945 the respondent got ’A’  class  reports,though his  superior  officers  were not  certain  as  regards  his honesty.   His integrity was, considered to be  doubtful  in the succeeding reports up to 31st December 1946.  As regards the  first  half of 1947 the Superintendent  of  Police  had noted that he was not in a position to make any remark about his honesty as he had not seen the respondent s work at  any police  station.  The Deputy Commissioner  however  remarked that  his  work was quite satisfactory, and he  was  honest. For  the  remaining part of 1947 he received an  ’A’  report from  the District Superintendent of Police who also  stated that the respondent seemed to be honest and competent.  There  can  be  no doubt that the 1948 report  was  a  very damaging  one and if the allegations contained  therein  had any  substratum of truth, the respondent could be  dismissed from service on the strength .of the charges based on’ those allegations alone. But, as already noted, the respondent was cleared of this charge.      The  High  Court  opined  that  the  enquiry   officer, Bishambar  Das,  should not have neglected  to  summon  five officers’  who  made reports about the respondent  and  were available  for  examination  at  the  enquiry.   They   were Chunilal Malhotra, Choudhry Roshan Lal, Deputy Commissioner, Shri  Ismail.   Shri, Holiday and Shri Sant  Prakash  Singh. According to the High Court the defence of the respondent in the  enquiry being that the reports against him  were  based upon  no sufficient data and/or were made partly because  of the poisoning of the mind of the District Superintendent  of Police  by the Deputy Superintendent of Police  on  communal considerations  the  only  way the  respondent  could  -have substantiated  -  his defence version would  be  by  putting questions to the reporting officers if made available during the  enquiry.  One of the above officers Shamsher Singh  was actually  examined as ’the respondent’s witness in the  suit and  his  evidence showed that he had left  the  column  for honesty in the report for 1946 blank as he had not seen  the respondent at his work.  This evidence went to show that  if he had been examined by the enquiry officer a portion of the report  taken in consideration against the respondent  would have  been found to be without substance.  Another  officer. Chunilal Malhotra though not examined before the enquiry

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701 officer  was  called in defence in the suit.   All  that  he could say., was that he had received complaints against  the respondent but he did not remember whether they were oral or in writing.  The High Court justifiably commented that there was no sufficient reason for the enquiry officer refusing to summon  Chunilal Malhotra.  On an overall  consideration  of the facts the High Court took the view that               "The approach of the enquiry officer was  such               that  whatever  be  the  testimony  of   other               witnesses, it could not undo the effect of the               reports  -made by the superior officers  about               the plaintiff." In  other  words the enquiry officer shut his  mind  to  the testimony, afforded by a large number of witnesses including a Deputy commissioner, Under Secretary, two  Superintendents of Police, a few Magistrates and some Deputy Superintendents of  Police  who had given evidence  about  the  respondent’s reputation and work.       Further the High Court took the view that the  remarks of  the  Deputy  inspector General  of  Police  against  the respondent  in  the year 1948 that he was  not  worth  being retained  in service had influenced the entire  approach  of the  enquiry  officer who was a subordinate  to  the  Deputy Inspector General of Police.  The.  Deputy Superintendent of Police  Lekhraj examined at the hearing of the suit  by  the respondent   and  to  whom  another  enquiry   against   the respondent  had been entrusted earlier by Bishambar has  the inquiry  officer,  told  the court that  when  he  (Lekhraj) exonerated  the respondent in the other  enquiry,  Bishambar Das  had  sent  for  him  and  told  him  that  the   higher authorities  wanted to take serious action to the extent  of dismissal of the respondent.       In  our  view the High Court arrived  at  the  correct conclusion and on the facts of this case it is impossible to hold   that  the  respondent  had  been   given   reasonable opportunity  of  conducting his defence before  the  enquiry officer.   From what we have stated it is clear that if  the enquiry  officer had summoned at least those  witnesses  who Were  available and who could have thrown some light on  the reports  made against the respondent the report  might  well have been different.  We cannot also lose sight of the  fact that charge based on the reports for the years 1941 and 1942 should not have been levelled against the respondent.        Learned-counsel  for  the  appellant  relied  on  two decisions  of  the  Orissa  High Court  in  support  of  his contention that it was not necessary to examine the  authors of  the  confidential reports against I the  respondent.  in sadananda  Mohapatra  v. State(’) the court  considered  the question as to whether reasonable Opportunity had (1) A.I.R. 1967 Orissa 49. 702 in  fact been given to the petitioner before  the  punishing authority  ,had  made  use of the  adverse  remarks  in  the confidential  character -roll.  According to the High  Court the  petitioner in his examination to the second show  cause notice  had  referred  to  the good  services  that  he  had rendered  to the department.  The High Court ,observed  that the  fact  that the petitioner had done good  work  led  the punishing  authority to impose a lesser punishment and  thus the  confidential roll had helped the petitioner.   It  also appears  from the judgment that the punishing  authority  in that  case  had ,during the personal hearing  discussed  the confidential  character with the petitioner and  accordingly the  High Court was of opinion that even though the  adverse

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remarks in the petitioner’s confidential character roll were not  included in the second show cause -notice  inasmuch  as the same had been discussed at the personal hearing it could not  be said that no reasonable opportunity had ’been  given to the petitioner,      In  our  view  the  facts in  this  case  are  entirely different.   The respondent before us wanted an  opportunity by examining the witnesses mentioned by him to explain  away the  circumstances  .which  had led  to  the  making-of  the adverse remarks and he was ,given no such chance.      The  second authority relied on for the  appellant  was State  of Orissa v. Sailabehari(1).  In this case the  entry in  the  diary of a Deputy Collector went to show  that  the Special  Assistant  Agent, -’i.e., the  respondent,  had  no reputation for honesty.  The diary -mentioned the source  of information  on  which the remarks were based  and  although none   of  the  informants  figured  as  witnesses  in   the departmental  enquiry the touring officer was examined as  a witness  and  his tour diary proved at the inquiry  and  the respondent  had been given an opportunity  to  cross-examine him.   ’On  those  facts  the High  Court  of  Orissa  after discussing  this  -position,  took the  view  that  although insufficient for the establishment of a criminal charge  the position was different in the case of departmental enquiries where   punishment  could  be  based  -merely   on   general reputation for corrupt conduct.      In our view there was no flaw in the enquiry which  the Orissa  High Court was called upon to examine in  that  case and  the  -above  dictum of the High Court  was  not  really called for.      Learned  counsel also wanted to rely on a  decision  of this  Court in State of Jammu and Kashmir v.  Bakshi  Ghulam Mohammed   (2)  where  the  Court  was  dealing   with   the proceedings ,of a Commission of Inquiry under the Commission of Inquiry Act. (1) A.I.R. 1963 Orissa 73. (2) [1966] Supp.  S.C.R. 401. 703 Section  10  of that Act gave the delinquent a right  to  be heard-but  only  a restricted  right  of  cross-examination, i.e., it was confined only to the witnesses called to depose against  the  person demanding the right.   It  was  further observed  that  as "the Act did not contemplate a  right  of hearing  to include a right to cross-examine" "it  -will  be natural  to  think that the statute did not intend  that  in other-  cases a party appearing before he Commission  should have any further right of cross-examination".  On the  facts before it the Court came to the conclusion that no case  had been  made by Bakshi Ghulam Mohammad that rules  of  natural justice  required  that  he should have a  right  to  cross- examine all the persons who had sworn affidavits  supporting the allegations made against him.       In  our  opinion the above observation  regarding  the limit  of  the right to cross-examine dissociated  from  the context  in  which it was made cannot  help  the  appellant. Although the case is governed by Art. 311 as it stood  prior to  its  amendment  in  1963 the  respondent  could  not  be deprived  of  an  effective  right  to  make  representation against the action of dismissal.  In our opinion, refusal of the right to examine witnesses who had made general  remarks against his character and were available for examination  at the  inquiry amounted to denial of a reasonable  opportunity of showing cause against the action.      In  the result we hold that the High Court came to  the correct  conclusion and the appeal should be dismissed  with

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costs. G.C.                           Appeal dismissed. 704