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PETITIONER: STATE OF UTTAR PRADESH & ANR.

       Vs.

RESPONDENT: SRI C.S. SHARMA

DATE OF JUDGMENT: 01/05/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  158            1967 SCR  (3) 848

ACT:    Civil  Services  (Classification,  Control  and   Appeal) Rules,  r. 55, Sub rr. (1) and (3)--Difference in nature  of enquiries  under the two subrules--Enquiry under sub-r.  (1) relates  to misconduct affecting character of  a  Government servant--Full  opportunity  to  defend  himself   necessary- Enquiry  vitiated  when  officer not  given  opportunity  to produce his defence witnesses.

HEADNOTE:     The  respondent was a Sales-tax Officer under the  Uttar Pradesh  Government.   Inquiries against him in  respect  of some charges of corruption were first made by the  Assistant Commissioner of Sales-tax  who examined some witnesses.  The enquiry   was then passed on to the Commissioner who neither examined  the witnesses against the respondent  himself  nor gave an opportunity to the respondent, despite  the latter’s repeated  ’requests  to produce his defence  witnesses.   On orders  of  dismissal  being passed after  the  enquiry  the respondent filed a writ petition before the High Court which succeeded.  The State appealed. It was conceded on behalf of the State that the enquiry was under sub- (1)  or r. 55 of the Civil Services (Classification  Control and Appeal) Rules.  The distinction between ’sub:ft. (1) and (3) was considered. HELD: The third sub-rule deals with the unsuitability of  an officer  for the service or with a charge for  any  specific fault.   This fault means  a fault in the execution  of  his duties and not a misconduct such as taking scribe etc. which are  charges  of  a  more  serious   nature  affecting   the character of the individual concerned.  The  collocation  of the   words   any  specific  fault’  or   ’on   account   of unsuitability for service’ give  the clue to the distinction between the third sub-rule and the first sub-rule. [852B-C] Sub-rule (1) of r. 55 is the general rule for enquiries when the conduct of a person is inquired into for misconduct.   A person  cannot  the charged with  criminal  conduct  without affording  him adequate opportunity to clear his  character. If  therefore  the   procedure under the first sub-rule  had to  be followed adequate opportunity had to be given to  the respondent  to  lead  evidence on his own  behalf  to  clear himself.  No such opportunity having been given the  enquiry

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could  not be said to comply with the elementary  principles of   natural justice  and the High Court rightly  held  that the enquiry was  vitiated. [851 F-G; 852 853 F-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1260  of 966.       Appeal  from  the judgment and decree dated  July  10. 1962  the  Allahabad High Court. Lucknow  Bench  in  Special Appeal No. 551 of 1960. C.B. Agarwala and O.P. Rana, for the appellants. B.C. Misra, B.P. Jha and C.L. Lal, for the respondent. 849 The Judgment of the Court was delivered by Hidayatullah,  J.  This is an appeal by the State  of  Uttar Pradesh against the judgment and order of the High Court  of Allahabad,  October 24, 1962, confirming_ in special  appeal the decision of a learned Single Judge dated July 10,  1962. By  that  order the High Court has set aside  the  order  of dismissal   made  by  the  State  Government   against   the respondent C. S. Sharma on the ground that he did not have a fair  enquiry  before  the Commissioner of  Sales  Tax  when certain charges against him were inquired into. The facts of the case are as follows.  The respondent C.  S. Sharma was appointed as a Sales Tax Officer in January  1949 and was transferred on April 1, 1950 to Hathras where he re- mained till the end of September 1952.  An enquiry was  made with reference to certain allegations against him during his period  of  stay  at Hathras.  On October 3,  1952,  he  was transferred to Lakhampur Kheri and was ordered not to  visit Hathras  until allowed by the authorities.  It appears  that in  November  1952,  an ex-parte inquiry  was  made  by  the Assistant  Commissioner and the proceedings  were  submitted with  a  preliminary report to ’lie  Commissioner.   On  the basis  of  this  report an order of  suspension  was  passed against  him  on  February 18,1953 and  he  was  placed  for inquiry  before  the  Commissioner.  A set  of  charges  was delivered  to  him on April 15, 1953; then  a  supplementary charge-sheet  was issued on July 8, 1953.  Sharma asked  for the  inspection of the record of the preliminary inquiry  as also  the report, but he was told to submit his  explanation to the charges first before inspection could be allowed.  He submitted  his  explanation  and  in  compliance  with   the directions  contained in the charge-sheet issued to him,  he submitted a list of three. defence witnesses whom he  wished to  examine in support of his case.  He requested  that  the witnesses  against  him should be examined vivavoce  in  his presence before he was asked to meet that evidence and  also wished  to be heard in person.  On October 31, 1953,  Sharma submitted  the  list of witnesses above-mentioned.   On  the same  day the Commissioner informed Sharma that he would  be permitted  to produce the witnesses mentioned in his  letter in  due course.  In another communication he was  told  that another date would be fixed for hearing the witnesses in his defence.   It is not necessary to describe the charges  here because  many  of  them, though found  against  him  by  the Commissioner,  were  not accepted by the  State  Government. The  order  of dismissal was based  upon  three  allegations which  are allegation No. 5 in charge No. 1 and  allegations No.   1  and 3 in charges Nos. 2 and  3  respectively.   The Commissioner in his report found him guilty of these charges and also of other allegations which the State Government did

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not accept.  We shall refer to these charges presently after completing  the narration of events which took place  before the Enquiring Officer. 850 After  the inquiry opened, the Commissioner did not  examine the   witnesses  afresh,  but  their  previous   statements. recorded  at the earlier enquiry, were tendered in  evidence and  Sharma  was asked to cross-examine them.   Sharma  duly cross-examined  those witnesses and then the question  arose whether he would be allowed to lead his defence or not.   In the  first application which he had made giving the list  of witnesses  he had named three witnesses and had  also  added that  they  were to be examined in relation  to  a  specific charge  about a car owned by him.  Oil February 2, 1954,  he made  an  application for 20 (lays’ extension  of  time  for giving  the  list of witnesses he wished to examine  in  his defence.   Third February had been fixed for summerising  of the.  witnesses against him but no date till  then.  ,,.,Lis fixed  for  the examination of his defence  witnesses.   His application  of  February  2,  1954  was  rejected  by   the Commissioner on February 6, 1954, without fixing a date  for the  examination  of  the witnesses or  for  giving  him  an opportunity to give evidence in his own behalf.  Not knowing that  he would not be even any further opportunity.   Sharma submitted  a list of four witnesses oil February  10,  1954, but  stated that he could not give the addresses of some  of the  witnesses because he did not know where they were.   On February 24, 1954, he again stated that he wanted to examine defence witnesses and to examine himself.  No order was how- ever,  made  on these applications.  On April 8,  1954,  the Commissioner  made his report recommending the dismissal  of Sharma and the order of the State Government was made  after due  opportunity  to  show  cause  why  he  should  not   be dismissed.   In  reply  to  the  show  cause  notice  Sharma complained that he had not been allowed to lead evidence  on his  own  ’behalf  that is one of  the  contentions  in  the present case. The charges against him which have been held proved  against him and to which we have referred were as follows Charge No. 1, Allegation No. 5               "You  accepted the accounts of Sarvsri  Radhey               Shiam Brij Kishore without due verification.."               Charge No. 2, Allegation No. I               "Sarvsri  Damodar  Das Radhey Shiam  had  been               declared  non-assessable for 1948-49  and  for               three quarters of 1949-50 by your predecessor.               The  Judge  (Appeals) had  also  declared  the               dealer unassessable in an appeal against  Your               orders.   Still you assessed the  dealers  for               the  first  three  quarters  to  harass   him.               Ultimately    you    declared    the    dealer               unassessable."               851               Charge No. 3, Allegation No. 3               "You accepted Rs. 5001- from Mithoo Lal of the               firm Noor Mohammed Mithoo Lal as bribe through               Chhotey Lal vakil." In, addition to these charges there was a charge against him that  he was in possession of a car which his means did  not allow him to purchase andin  respect  of which  he  had made a reply that he had received this car from his  father- in-law.  This was charge No. 4 and inrelation   to   this charge apparently he had cited the first list ofthree witnesses  for the examination in his defence.  This  charge was  not  accepted by the State Government when  the  matter

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reached it. After  the order of dismissal was made, Sharma filed a  writ petition  in  the High Court of Allahabad  asking  that  the order  made against him be quashed and his allegations  were that the enquiry against him was made by a Commissioner  who was  biased against him; that the witnesses for the  enquiry were  not examined viva voce in his presence but  were  only tendered  for crossexamination and lastly that  no  adequate opportunity  was  given  to him for  summoning  his  defence witnesses or to examine himself.  The High Court in the  two orders  which  were made, reached the  conclusion  that  the enquiry was defective, but different reasons were given  ’by the  learned Single Judge and the Division Bench.   We  need not  go into this matter elaborately because in our  opinion the appeal here must be dismissed because’ we are  satisfied that no adequate opportunity was afforded to Sharma to  lead his   defence  which  the  principles  of  natural   justice required. The  first question is whether this inquiry was  made  under sub-rule  (1)  or  (3)  of  r.  55  of  the  Civil  Services (Classification,  Control  and  Appeal)  Rules.   It  is  an admitted  fact  that  Sharma was a  temporary  employee  and therefore his case would fall to be governed by sub-rule (3) of  r.  55 if it could be said that the  enquiry  which  was being  made  was for a specific fault or on account  of  his unsuitability  for  service.  Sub-rule  1 ) of r.  55  is  a general rule for enquiries where the conduct of a person  is inquired into for misconduct but sub-rule (3) says that that subrule  shall not apply where it is proposed  to  terminate the  employement of a probationer, or to dismiss, remove  or reduce  in  rank  a temporary  government  servant  for  any specific  fault or on account of his unsuitability  for  the service.   Sub-rule  (3)  says  that  in  such  cases,   the probationer or temporary government servant concerned  shall be  apprised  of  the grounds of  such  proposal,  given  an opportunity  to  show cause against the action to  be  taken against  him,  and his explanation in this behalf,  if  any. shall  be  duly considered before orders are passed  by  the competent  authority.  If the third sub-rule applied, it  is obvious  that  the kind of enquiry made  complied  with  its requirements.  The first sub- 852 rule, however,- provides for a full-blooded enquiry which is the  counter-part of a regular trial : witnesses have to  be examined  in support of the allegations, opportunity has  to be  given to the delinquent, officer to  cross-examine  them and  to lead evidence in his defence.  In our  judgment  the present case was governed by the first sub-rule and not  the third   sub-rule.   The  third  sub-rule  deals   with   the unsuitability of an officer for the service or with a charge for  any  specific fault.  This fault means a fault  in  the execution of his duties and not a misconduct such as  taking bribe  etc.  which  are charges of a  more  serious  nature, affecting  the character of the individual  concerned.   The collocation of the words "any specific fault" or "on account of   unsuitability  for  service"  give  the  clue  of   the distinction  between the third sub-rule and the  first  sub- rule.   An officer who is, for example, habitually  lazy  or makes  mistakes frequently or is not polite or decorous  may be  considered unsuitable for the service.  Another  officer who  makes a grievous default in the execution of  his  work may be charged for the specific individual fault, that is  a dereliction or defect in the execution of that duty.   Where there  is  an  allegation that an officer  is  guilty  of  a misconduct  such as accepting bribe or showing favours,  the

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matter is not one of specific fault in the execution of  his work  but  something  more.  That matter  will  fall  to  be governed  by the first sub-rule because you cannot charge  a man  with  criminal conduct without affording  him  adequate opportunity  to  clear his character.  Mr.  Aggarwal  fairly pointed out that the Government had appointed the  enquiring officer  to take action under r. 55(1) and it is thus  quite clear that Government viewed the matter also in this light. It, therefore, follows that if the procedure under the first subrule  had to be followed, adequate opportunity had to  be given to Sharma to lead evidence on his own behalf to  clear himself  of serious charges which were levelled against  him and give evidence on his own behalf.  It is obvious that  he has not been able to lead his defence or to give evidence on his  own  behalf.  The question is whether he has  to  thank himself or the omission proceeded because of some action  on the  part of the enquiring officer.  Considering  the  whole matter  we are satisfied that the enquiring officer  was  to blame and we shall now show why we think so. Throughout the enquiry, as late as February 24, 1954, Sharma had  again  and again given indication that  he  would  lead evidence  in his defence.  At first he had given a  list  of three witnesses which he later amplified to four leaving out one from the original list and adding two new names.  He had also  stated  that  he  wanted to  examine  himself  in  his defence.   The  learned  Commissioner who  was  holding  the enquiry  on more than one occasion stated that he  would  be afforded  this  opportunity and also that a  date  would  be fixed for the examination of the defence wit- 853 nesses.  It is true that Sharma was playing for time and  on the 2nd of February (before the date of hearing came) he put in  an application that he would like an adjournment  of  20 days  before  he submitted a final list  of  witnesses  with their addresses.  This application was rejected on  February 6, but between February 6,  and April 8, when the report was made,  two  long months passed and it was possible  for  the Commissioner  to have fixed a date, on which, if he  was  so minded,  Sharma could bring his witnesses in support of  his case or tender himself for examination.  No action was taken between February 6, 1954 and April 8, 1954 to enable  Sharma to  lead his defence, if any, in support of his part of  the case.   This  omission  in our judgment  was  sufficient  to vitiate the whole proceeding because no enquiry of this type in which there are charges of a criminal nature, can be said to be properly conducted when the defence of the officer  is either frustrated or ruled out. It  was  submitted by Mr. Agarwal,that  the  witnesses  were being  summoned  by him to clear himself of  the  charge  of owning  a car without having the visible means to afford  it and  this charge was not accepted by the  State  Government. This  is true enough, but the State Government came  on  the scene  much later.  In so far as the enquiring  officer  was concerned, he had accepted the allegation against Sharma and even if the original list be considered, Sharma was entitled to  lead  evidence  with regard to the car  itself.   It  is possible  that if a date had been fixed, he would, not  only have  led  evidence with regard to the car, but  would  have brought witnesses to clear himself of other charges, but  no such  opportunity  was  clearly afforded  to  him.   Further before  the case closed, the Commissioner had before  him  a list  of  four  witnesses and fair play  demanded,  that  he should  have fixed a date and left it to Sharma  to  procure attendance of his witnesses on that date, but if no date was fixed,  Sharma was not expected to bring hi,, witnesses  day

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after  day in the hope that the Commissioner  would  examine them any day.  The enquiry cannot be said to comply with the elementary  principles of natural justice and  therefore  we have  no  hesitation in accepting the decision of  the  High Court that the enquiry was vitiated. We  may  not  omit to state that  there  was  an  allegation against the Commissioner that he was biased against  Sharma. It does appear that the Commissioner, in one of his letters, stated  that  he had heard witnesses and  satisfied  himself that  Sharma was definitely corrupt.  This statement of  the Commissioner  showed  that :he approached the  case  with  a feeling that Sharma was guilty although the State Government cannot  be said to share this bias of the Commissioner.   We would  have said something more about this, if the  occasion had demanded this, but as we are upholding the order of  the High Court on the ground that no reasonable 8 54 opportunity was afforded to Sharma to lead his evidence,  it is  not necessary to say whether an officer in the  position of  the Commissioner, who on the basis of  secret  enquiries behind  the  ’back of ,delinquent officer  has  reached  the conclusion that there are good grounds for holding that  the officer  is  corrupt, should himself ,conduct  the  enquiry. That matter may be left for consideration in another case. On  the whole, therefore, we think that the ends of  justice will  be  served in maintaining the order made by  the  High Court.  The enquiry, if Government so decides, must  proceed before an officer who will examine the witnesses in  support of  the  charge in the manner laid down by  this  Court  and afford  Sharma  an opportunity -of leading his  defence,  if any. The appeal, therefore, fails and is dismissed with costs. G.C.                              Appeal dismissed. 855