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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: T. R. VARMA.

DATE OF JUDGMENT: 18/09/1957

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN (CJ) SINHA, BHUVNESHWAR P. KAPUR, J.L. SARKAR, A.K.

CITATION:  1957 AIR  882            1958 SCR  499

ACT:        Government  Servant-Dismissal-Enquiry-Procedure  for  taking        evidence-Applicability  of the Indian Evidence Act-Rules  of        natural   justice-Reasonable  opportunity--Constitution   of        India, Art. 311 (2).        Writ-Special  jurisdiction of High Court-Alternative  remedy        -Disputed questions involving taking of evidence-Practice of        the High Court-Constitution of India, Art. 226.

HEADNOTE:        The respondent was dismissed from service under the  Govern-        ment of India in pursuance of an enquiry held under Art. 311        of  the Constitution of India.  He filed an  application  in        the High Court under Art. 226 to quash the order of dismiss-        al  on the grounds inter alia that in the enquiry  the  evi-        dence  of the respondent and his witnesses was not taken  in        the mode prescribed by the Indian Evidence Act and that as a        result.  he  was not given a reasonable opportunity  as  re-        quired  under  Art. 311(2).  It was found  that  though  the        procedure  laid down in that Act was not  strictly  followed        the  respondent was given a full opportunity of placing  his        evidence before the Enquiring Officer.        Held  :  (1) Petitions under Art. 226  of  the  Constitution        should not generally be entertained by the High Courts where        an alternative and equally efficacious remedy is  available.        It  is not the practice of Courts to decide in a writ  peti-        tion  disputed  questions  which  cannot  be  satisfactorily        decided without taking evidence.        Rashid Ahmed v. Munsicipal Board, Kairana, (1950) S.C.R. 566        and  K.  S. Rashid and Son v. The  Income-tax  Investigation        Commission (1954) S.C.R. 738, relied on.        (2)  Tile  Indian  Evidence Act has no  application  to  en-        quiries conducted by tribunals.  The law only requires  that        tribunals  should observe rules of natural justice  such  as        that  a  party should have the opportunity of  adducing  all        relevant  evidence on which he relies, that the evidence  of        the  opponent  should be taken in his presence and  that  he        should  be  given  the opportunity  of  cross-examining  the        witnesses  examined  by that party, and  that  no  materials

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      should  be relied on against him without his being given  an        opportunity  of explaining them.  If these rules are  satis-        fied  then the enquiry is not open to attack on  the  ground        that the procedure laid down in the Indian Evidence Act  for        taking evidence was not strictly followed.        New  Prakash  Transport Co. v. New  Suwarna  Transport  Co,,        (1957) S.C.R. 98, followed,        64        500

JUDGMENT:        CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 118 of 1957.        Appeal  by special leave from the judgment and  order  dated        January  31, 1956, of the Circuit Bench of the  Punjab  High        Court at Delhi in Civil Writ No. 243-D of 1954.        C.   K.  Daphtary, Solicitor-General of India, R.  Ganapathy        Iyer and R. H. Dhebar, for the appellant.        Purshottam Tricumdas, T. S. Venkataraman and K.   R.  Chaud-        hury, for the respondent.        1957.  September 18.        The following Judgment of the Court was delivered by        VENKATARAMA  AIYAR,J:-This  is an appeal  by  special  leave        against  the judgment and order of the High Court of  Punjab        in an application under Art. 226 of the Constitution setting        aside  an  order dated September 16,  1954,  dismissing  the        respondent  herein,  from Government service on  the  ground        that it was in contravention of Art. 311 (2) of the  Consti-        tution.        The  respondent  was, at the material  dates,  an  Assistant        Controller  in the Commerce Department of the Union  Govern-        ment.  Sometime in the middle of March, 1953, one Shri Bhan,        a representative of a Calcutta firm styled Messrs.  Gattulal        Chhaganlal Joshi, came to Delhi with a view to get the  name        of  the  firm removed from black list in which it  had  been        placed, and for that purpose, he was contacting the officers        in the Department.  Information was given to Sri Tawakley an        assistant  in  the Ministry of Commerce and  Industry  (Com-        plaints  Branch), that Sri Bhan was offering to  give  bribe        for getting an order in his favour.  He immediately reported        the  matter  to the Special Police Establishment,  and  they        decided  to  lay  a trap for him.  Sri  Bhan,  however,  was        willing  to pay the bribe only after an order in his  favour        had been made and communicated, but he offered that he would        get  the respondent to stand as surety for payment  by  him.        The police thereafter decided to set a trap for the respond-        ent, and it war,, accordingly arranged that Sri        501        Tawakley  should  meet,  by appointment, Sri  Bhan  and  the        respondent in the Kwality Restaurant in the evening on March        24,  1953.   The meeting took place as arranged,  and  three        members  of  the Special Police Establishment  were  present        there incognito.  Then, there was a talk between Sri  Tawak-        ley, Sri Bhan and the respondent, and it is the case of  the        appellant  that during that talk, an assurance was given  by        the respondent to Sri Tawakley that the amount would be paid        by  Sri  Bhan.  After the conversation was  over,  when  the        respondent  was  about to depart, one of the  officers,  the        Superintendent  of Police, disclosed his identity, got  from        the respondent his identity card and initialled it, and  Sri        Bhan also initialled it.        On March 28, 1953, the respondent received a notice from the        Secretary to the Ministry of Commerce and Industry  charging        him  with aiding and abetting Sri Bhan in  offering  illegal

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      gratification  to Sri Tawakley and attempting to induce  Sri        Tawakley  to accept the gratification offered by  Sri  Bhan,        and in support of the charges, there were detailed.  allega-        tions  relating to meetings between the respondent  and  Sri        Tawakley on March 17, 1953, on March 21, 1953, a  telephonic        conversation with reference to the same matter later on that        day,  and  the  meeting in the  Kwality  Restaurant  already        mentioned.   The  respondent  was called upon  to  give  his        explanation  to  the charges, and he was directed  to  state        whether  he wished to lead oral or documentary  evidence  in        defence.  The enquiry was delegated to Mt.  J. Byrne,  Joint        Chief Controller of Imports and Exports.  On April 10, 1953,        the respondent submitted a detailed explanation denying that        he met Sri Tawakley either on the 17th or on the 21st March,        or that there was any telephonic conversation that day  with        him,  and stating that the conversation which he had in  the        Kwality  Restaurant  on  the 24th related  to  an  insurance        policy of his, and had nothing to do with any bribe proposed        to be offered by Sri Bhan.  The respondent also asked for an        oral  enquiry  and desired to examine Sri  Bhan,  Sri  Fateh        Singh  and  Sri Jai Narayan in support of his  version.   On        April 17, 1953 Mc.  Byrne gave notice to the        502        respondent that there would be an oral enquiry, and pursuant        thereto, witnesses were examined on April 20, 1953, and  the        following  days, and the hearing was concluded on April  27,        1953.        On July 28,1953, Mr. Byrne submitted his report, and  there-        in,  he  found that the charges against the  respondent  had        been  clearly  established.  On this,  a  communication  was        issued to the respondent on August 29, 1953, wherein he  was        informed that it was provisionally decided that he should be        dismissed,  and  asked to show cause  against  the  proposed        action.   Along with the notice, the whole of the report  of        Mr.  Byrne,  omitting his recommendations,  was  sent.   Oil        September  11,  1953, the respondent sent  his  explanation.        Therein,  he  again discussed at great length  the  evidence        that  had  been adduced, and submitted that the  finding  of        guilt  was  not proper, and that no action should  be  taken        against  him.  He also complained in this  explanation  that        the  enquiry was vitiated by the fact that he had  not  been        permitted to cross-examine. the witnesses, who gave evidence        against  him.  The papers were then submitted to  the  Union        Public  Service Commission in accordance with Art. 320,  and        it  sent its report on September 6, 1954, that  the  charges        were made out, that there was no substance in the  complaint        of  the respondent that he was not allowed to  cross-examine        the witnesses, and that he should be dismissed.  The  Presi-        dent. accepting the finding of the Enquiring Officer and the        recommendation of the Union Public Service Commission,  made        an order on September 16, 1954, that. the respondent  should        be dismissed from Government service.        The  respondent then filed the application out of which  the        present  appeal arises, in the High Court of Punjab  for  an        appropriate  writ  to  quash the order  of  dismissal  dated        September 16, 1954, for the reason that there was no  proper        enquiry.  As many as seven grounds were set forth in support        of the Petition, and of these, the learned Judges held  that        three  had been established.  They held that the  respondent        had  been denied an opportunity to cross-examine  witnesses,        who gave evidence in support of the charge, that further,                                    503        he was not allowed to make his own statement, but wag merely        cross-examined by the Enquiring Officer, and that  likewise,        his  witnesses  were merely cross-examined  by  the  Officer

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      without  the  respondent himself being  allowed  to  examine        them.  These defects, they observed, amounted to a denial of        reasonable  opportunity  to  the respondent  to  show  cause        against  his dismissal, and that the order  dated  September        16,  1954, which followed on such enquiry, was bad as  being        in  contravention of Art. 311(2).  In the result,  they  set        aside  the  order, and directed him to be  reinstated.   The        correctness  of this order is challenged by  the  Solicitor-        General  on  two  grounds : (1) that the  finding  that  the        respondent had no reasonable opportunity afforded to him  at        the  enquiry is not supported by the evidence; and (2)  that        even if there was a defect in the enquiry, that was a matter        that  could  be set right in the stage following  the  show-        cause-notice,  and  as  the respondent did not  ask  for  an        opportunity to cross-examine the witnesses, he could not  be        heard  to urge that the order dated September 16, 1954,  was        bad as contravening Art. 311(2).        At the very outset, we have to observe that a writ  petition        under Art. 226 is not the appropriate proceeding for adjudi-        cation  of  disputes  like the present.  Under  the  law,  a        person  whose services have been wrongfully  terminated,  is        entitled to institute an action to vindicate his rights, and        in such an action, the Court will be competent to award  all        the  relief’s  to which he may be entitled,  including  some        which  would  not be admissible in a writ petition.   It  is        well-settled  that when an alternative and  equally  effica-        cious remedy is open to a litigant, he should be required to        pursue  that remedy and not invoke the special  jurisdiction        of  the High Court to issue a prerogative writ.  It is  true        that  the  existence of another remedy does not  affect  the        jurisdiction of the Court to issue a writ; but, as  observed        by  this Court in Raghid Ahmed v. Municipal  Board,  Kairana        (1), " the existence of an adequate legal remedy is a  thing        to  be  taken into consideration in the matter  of  granting        writs ". Vide also K. S. Rashid and        (i)  [1950] S.C.R. 560.        504        Son  v.  The Income-tax Investigation Commission  And  where        such  remedy exists, it will be a sound exercise of  discre-        tion  to refuse to interfere in a petition under  Art.  226,        unless  there are good grounds therefor.  None such  appears        in  the  present  case.  On the other hand,  the  point  for        determination  in this petition whether the  respondent  was        denied  a reasonable opportunity to present his case,  turns        mainly on the question whether he was prevented from  cross-        examining the witnesses, who gave evidence in support of the        charge.   That  is a question on which there  is  a  serious        dispute,  which  cannot be  satisfactorily  decided  without        taking evidence.  It is not the practice of Courts to decide        questions of that character in a writ petition, and it would        have  been  a proper exercise of discretion in  the  present        case if the learned Judges had referred the respondent to  a        suit.  In this appeal, we should have ourselves adopted that        course, and passed the order which the learned Judges should        have passed.  But we feel pressed by the fact that the order        dismissing the respondent having been made on September  16,        1954, an action to set it aside would now be timebarred.  As        the  High Court has gone into the matter on the  merits,  we        propose to dispose of this appeal on a consideration of  the        merits.        The  main ground on which the respondent attacked the  order        dated  September 16, 1954, was that at the enquiry  held  by        Mr. Byrne, he was not given an opportunity to  cross-examine        the  witnesses, who deposed against him, and that the  find-        ings reached at such enquiry could not be accepted.  But the

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      question is ,whether that allegation has been made out.   In        para. 7 of his petition, the respondent stated :        "  Despite repeated verbal requests of the  petitioner,  the        inquiry Officer did not permit him to crossexamine any  wit-        ness, who deposed against him."        But this was contradicted by Mr. Byrne, who filed a counter-        affidavit, in which he stated:        " (4) That it is incorrect that no opportunity was given  to        the petitioner at the time of the oral enquiry        (1)  [1954] S.C.R. 738, 747.        505        to  cross-examine the witnesses who had deposed against  the        petitioner.        (5)  That  all  witnesses  were  examined  in   petitioner’s        presence and he was asked by me at the end of each  examina-        tion whether he had any questions to put.        (6)  That  the petitioner only put questions to one  witness        Shri P. Govindan Nair, and to others he did not."        On  this affidavit, Mr. Byrne was examined in Court, and  he        repeated these allegations and added:        " I have distinct recollection that I asked Shri T. R. Varma        to put questions in cross-examination to witnesses."        It  was  elicited in the course of his  further  examination        that he did not make any note that he asked Shri T. R. Varma        to put questions in cross-examination to witnesses, and that        that might have been due to a slip on his part.        We have thus before us two statements, one by Mr. Byrne  and        the other by the respondent, and they are in flat contradic-        tion of each other.  The question is which of them is to  be        accepted.   When  there  is a dispute as  to  what  happened        before  a court or tribunal, the statement of the  Presiding        Officer  in regard to it is generally taken to  be  correct,        and there is no reason why the statement of Mr. Byrne should        not be accepted as true.  He was admittedly an officer hold-        ing a high position, and it is not suggested that there  was        any motive for him to give false evidence.  There are  more-        over,  features in the record, which clearly show  that  the        statement of Mr. Byrne must be correct.  The examination  of        witnesses  began on April 20,1953, and four  witnesses  were        examined on that date, among them being Sri C. B.  Tawakley.        If, as stated by the respondent, he asked for permission  to        crossexamine witnesses, and that was refused, it is surpris-        ing that he should not have put the complaint in writing  on        the subsequent dates on which the enquiry was continued.  To        one of the witnesses, Sri.  P. Govindan Nair, he did actual-        ly put a question in cross-examination, and it is  difficult        to reconcile this        506        with  his  statement  that permission had  been  refused  to        cross-examine  the  previous witnesses.  A  reading  of  the        deposition of the witnesses shows that the Enquiring Officer        himself had put searching questions, and elicited all  rele-        vant facts.  It is not suggested that there was any specific        matter in respect of which cross-examination could have been        but was not directed.  We think it likely that the  respond-        ent  did not cross-examine the witnesses because  there  was        nothing  left for him to cross-examine.  The learned  Judges        gave  two  reasons for accepting -the statement of  the  re-        spondent  in preference to that of Mr. Byrne.  One  is  that        there was no record made in the depositions of the witnesses        that there was no cross-examination.  But what follows  from        this?  That, in fact, there was no cross-examination,  which        is a fact; not that the request of the respondent to  cross-        examine was disallowed.  Then again, the learned Judges  say        that  the respondent was present at the hearing of the  writ

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      petition  before them, that they put questions to  him,  and        formed the opinion that he was sufficiently intelligent, and        that  it  was difficult to believe that he  would  not  have        cross-examined  the witnesses.  We are of opinion that  this        was a consideration which ought not to have been taken  into        account  in  a judicial determination of the  question,  and        that  it should have been wholly excluded.  On a  considera-        tion  of the record and of the probabilities, we accept  the        statement of Mr. Byrne as true, and hold that the respondent        was  not refused permission to cross-examine the  witnesses,        and that the charge that the enquiry was defective for  this        reason cannot be sustained.        The  respondent attacked the enquiry on two  other  grounds,        which  were stated by him in his petition in  the  following        terms:        "(C)  That  the petitioner was cross-examined  and  was  not        enabled to make an’ oral statement on his own behalf.        (D)  That the defence witnesses were not given an opportuni-        ty to tell their own version or to be examined by the  peti-        tioner as their depositions were confined        507        to  answers  in  reply  to  questions  put  by  the  Inquiry        Officer."        In  substance,  the charge is that the  respondent  and  his        witnesses should have been allowed to give their evidence by        way  of examination-in-chief, and that only  thereafter  the        officer  should have cross-examined them, but that  he  took        upon  himself to cross-examine them from the very start  and        had  thereby  violated well-recognised rules  of  procedure.        There  is also a complaint that the respondent was  not  al-        lowed to put questions to them.        Now, it is no doubt true that the evidence of the respondent        and  his witnesses was not taken in the mode  prescribed  in        the  Evidence  Act; but that Act has no application  to  en-        quiries  conducted  by tribunals, even though  they  may  be        judicial in character.  The law requires that such tribunals        should  observe rules of natural justice in the  conduct  of        the enquiry, and if they do so, their decision is not liable        to  be impeached on the ground that the  procedure  followed        was not in accordance with that, which obtains in a Court of        law.   Stating  it broadly and without intending  it  to  be        exhaustive, it may be observed that rules of natural justice        require that a party should have the opportunity of adducing        all relevant evidence on which he relies, that the  evidence        of the opponent should be taken in his presence, and that he        should  be  given  the opportunity  of  cross-examining  the        witnesses  examined  by that party, and  that  no  materials        should  be relied on against him without his being given  an        opportunity  of explaining them.  If these rules are  satis-        fied,  the enquiry is not open to attack on the ground  that        the  procedure  laid  down in the Evidence  Act  for  taking        evidence  was not strictly followed.  Vide the recent  deci-        sion  of  this  Court in New Prakash Transport  Co.  v.  New        Suwarna Transport Co. (1), where this question is discussed.        We have examined the record in the light of the above  prin-        ciples,  and  find that there has been no violation  of  the        principles of natural justice.  The        (1)  [1957] S.C.R. 98.        65        508        witnesses  have  been,examined  at great  length,  and  have        spoken to all relevant facts bearing on the question, and it        is  not suggested that there is any other matter,  on  which        they could have spoken.  We do not accept the version of the        respondent  that he was not allowed to put any questions  to

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      the witnesses.  ’Indeed, the evidence of Sri Jai Narayan  at        p.  188  of the Paper Book shows that the only  question  on        which the respondent wished this witness to testify was  put        to him by Mr. Byrne.  The evidence of Sri Bhan and Sri Fateh        Singh  was,  it should be noted, wholly in  support  of  the        respondent.  The findings of Mr. Byrne are based entirely on        an  appreciation of the oral evidence taken in the  presence        of  the  respondent.  It should also be mentioned  that  the        respondent did not put forward these grounds of complaint in        his explanation dated September 11, 1953, and we are  satis-        fied  that  they are wholly without substance,  and  are  an        afterthought.   We  accordingly  hold,  differing  from  the        learned  Judges of the Court below, that the enquiry  before        Mr.  Byrne was not defective, that the respondent  had  full        opportunity of placing his evidence before him, -and that he        did  avail  himself of the same., In this view,  it  becomes        unnecessary  to express any opinion on the second  question,        which was raised by the learned Solicitor-General.        In  the result, we allow the appeal, set aside the order  of        the  Court below, and dismiss the writ  application.   There        will be no order as to costs.                                      Appeal allowed.        509