Daljit Singh vs Union Of India Through The ...
1969 Latest Caselaw 78 Del

JUDGMENT

S.N. Andley, J.

(1) The petitioner has filed this writ to quash the order dated October 20, 1967 dismissing him after a departmental inquiry.

(2) He was appointed as a temporary Lower Division Clerk in the then Federal Public Service Commission on June 10, 1942. On June 20, 1952, he was given a quasi permanent status as a Iii Division Clerk with effect from March 17, 1949. This order was issued by D. C. Das, Secretary, Union Public Service Commission. By an order dated December, 1, 1958 passed by the Deputy Secretary to the Government of India in the Ministry of Home Affairs, the petitioner was appointed substantively to Grade Ii of the Central Secretarial Clerical Service with effect from May 1, 1954.

(3) The petitioner was suspended on June 2, 1959 and a chargesheet dated September 9, 1960 was served on him on October 12, 1960. At this time, the petitioner was working as a Cashier in the office of the Union Public Service Commission and he was charged with grave misconduct on the allegation that "during the period from May, 1958 to June 1959 after drawing, on a number of occassions, Government money ostensibly for the purpose of obtaining Bank Drafts, he did nto deposit the money in the Reserve Bank of India promptly and "habitually and improperly retained the Government money and made untrue entries in the Cash Book with intent to conceal the improper retention of Government money".

(4) On November 4, 1960, the petitioner wrote a letter to the Deputy Secretary to the Government of India in the Ministry of Home Affairs stating that he wanted to inspect and have extract from documents, lists whereof were forwarded with the letter. The first list was headed "List of documents to be inspected" and enumerated seven documents, details of which it is nto necessary to mention. The second list was headed "List of documents copies of which may kindly be supplied". This list comprised of four items and the last item was "copies of the statements given by Shri S. S. Duggal, Shri E. N. Ramamurthi and other, in regard to the case against me." It appears that in response to this request, the Government, by its memorandum dated November 30, 1960 informed the petitioner to contact the Superintendent of Police, Special Police Establishment, New Delhi, who was to afford him facilities to inspect the "relevant documents and to take extracts thereform". A copy of this memorandum was endorsed to the Special Police Establishment. The documents mentioned in the two lists attached to the petitioner's letter dated November 4, 1960 were nto detailed in this memorandum. It appears that the petitioner did take an inspection in the office of the Inspector General of Police, Special Police Establishment, because there is a letter dated December 12, 1960 from the Deputy Inspector General of Police, Spe, to the Government by which the Government was informed that the petitioner had inspected the "relevant documents" on December 2, 1960. In this letter also the details of the documents of which inspection was given to the petitioner are nto given.

(5) It may here be stated that the main complaint of the petitioner is that he was given neither copies of the statements of S.S. Duggal and E. N. Ramamurti which they had made before the Special Police Establishment in the criminal investigation nor was he given inspection of these statements.

(6) On December 20, 1960 the petitioner filed his written statement to the charges. He made a request that the then Drawing and Disbursing Officer, E. N. Ramamurthi and the old Drawing and disbursing Officer S. S. Duggal be called as witnesses in the inquiry. No specific complaint was made in this letter either about the non-furnishing of copies of the statements of these two officers or about inspection of these statements nto having been permitted by the Special Police Establishment. The inquiry commenced on April 26, 1961 and, amongst others, the afore- said S.S. Duggal and E.N. Ramamurti were produced as witnesses by the Department but there was no cross-examination by the petitioner on the basis that these two officers had, in their statements before the Special Police Establishment, admitted that whatever was done by the petitioner was under their directions and orders. The petitioner filed written arguments before the Inquiry officer from which it appears that his defense was that -he was nto guilty of the charge because the disbursements made by him of Government money were under the orders of the Drawing and Disbursing Officers. In the written arguments also, the petitioner did nto complain about the failure of the Government to furnish him copies of the aforesaid statements of these two officers or the failure or refusal of the Special Police Establishment to allow him inspection thereof.

(7) The Inquiry Officer gave his report on December 20, 1961. In his report, the Inquiry Officer, inter alia, observed :-

"I agree with Daljit Singh to the extent that the D.D.O. must nto have been quite unaware of so many irregularities occurring in his Section. With the surprise checks and the monthly checks there should have been some detection. But at this stage I am nto looking into the responsibilities of the D.D.O. nor have I before me any charge against D.D.O. to be examined. I will, therefore, nto comment on his share of the responsibility in this transaction. But I can say that whatever his share may be and even if it is the whole share, Daljit Singh's responsibility as Cashier does nto diminish because of the responsibility of the D.D.O. and without a doubt Daljit Singh is responsible for all these misappropriations".

"NOTHING has been put forward in evidence to show that any of these misappropriations have been diverted by Daljit Singh to his personal use. When there were so many irregularities, it would have been possible to get some evidence of such misuse of money if really Daljit Singh had been using the money to his private purpose. I am, therefore, inclined to think that Daljit Singh has indulged into this irregular practice rather freely in negligence and over-confidence and used the monies for payment of bills of the Government in an over-lapping manner. The misappropriation seems to me to have arisen more out of confused way of handling the accounts and methods of payment than out of dishonest motives."

(8) The above observations show that the petitioner was pleading justification on the basis of the orders of the Drawing and Disbursing Officers and he was nto found guilty of utilising Government property to his private purpose but only of negligence and over confidence and using the monies for payment of the bills of the Government "in an over-lapping manner" rather than out of dishonest motives.

(9) The notice to show cause against his proposed dismissal was issued on January 30, 1962. Thereupon, the petitioner wrote to the Government on February 23, 1962 complaining that in spite of his request contained in his letter dated November, 4, 1960, most of the documents mentioned therein had neither been shown to him nor had any copies been supplied. He, therefore, requested that the documents listed in this letter may be allowed to be inspected and extracted. One of the items listed was in relation to the statements of S.S. Duggal and E.N. Ramamurti aforesaid. Reminders were issued by the petitioner on 4th and 5th April, 1962 and it was only on April 12, 1962 that copies of these statements were supplied to the petitioner. Various other letters were written by the petitioner to the Government requesting for inspection of other documents and these requests were granted partially by letter of the Government dated October 3, 1962. Then by his letter dated November 7, 1962, the petitioner requested that he may be afforded the opportunity of cross-examining the concerned officials with reference to the documents which had since been disclosed. No reply was sent to the respondent untill March 23, 1964 when, replying upon the documents of Article 311(2) of the Constitution which had been brought in by the Constitution (15th Amendment) Act, 1963, the request of the petitioner for cross-examination of the officials was turned down and the petitioner was called upon to file his written representation on the basis of the evidence adduced at the inquiry. The petitioner filed his representation to the show-cause notice on April 21, 1964 and repeated his grievance that copies or inspection of the two statements of S. S. Duggal and E. N. Ramamurti, amongst other documents, had nto been furnished to him and that he should be allowed to cross-examine the concerned officials. it was after 3" years on October 20, 1967, by which time S. S. Duggal had retired, that the Deputy Secretary, Union Public Service Commission, passed the order of dismissal against the petitioner.

(10) Against this dismissal, the petitioner filed an appeal to the Secretary, Union Public Service Commission on November 30, 1967 and repeated his aforesaid grievance about inspection and copies. Surprisingly, this appeal is still under consideration and has nto been disposed of. The present petition was filled in March, 1968.

(11) It will thus be seen that this Grade It Clerk who is the petitioner was given the show-cause notice on January 30, 1962; his request for further cross-examination was nto decided until two years later on March 23, 1964 and the order of his dismissal was nto passed until 3" years still later on October 20, 1967 by which time S. S. Duggal had retired and it is this delay, which appears to us to be unreasonable, which has given rise to the argument that the withholding of the order of dismissal was deliberate and mala fide to protect S. S. Duggal. The other points raised by the petitioner are that the petitioner has been appointed as a quasi permanent Iii Division Clerk by an order issued by the Secretary, Union Public Service Commission who, according to the petitioner, was the appointing authority, while the order of his dismissal was passed by the Deputy Secretary, Union Public Service Commission; the petitioner had nto been afforded a reasonable opportunity to defend himself because, inter alia, neither inspection nor copies of the statements of S. S. Duggal and E. N. Ramamurti had been furnished before or during the inquiry thereby disabling the petitioner to prove his case that he was merely obeying the orders and directions of a superior officer and that even after copies of the statements of the aforesaid persons, had been given to him after the show-cause notice, he was nto allowed the opportunity of cross-examining the aforesaid two persons.

(12) We do nto find any substance in the petitioner's contention that he had been dismissed by an authority subordinate to that by which he was appointed and that thereby clause (1) of Article 311 of the constitution had been violated. "Quasi-permanent service" means temporary service commencing from the date on which a declaration made under rule 3 takes effect and consists of periods of duty and leave (other than extraordinary leave) after that date (vide rule 2 (b) Central Civil Services (Temporary Service) Rules, 1965). "Appointing authority" has been defined by rule 2(a) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 as under :- 'APPOINTINGauthority' in relation to a Government servant means- (i) the authority empowered to make appointments to the Services of which the Government servant is for the time being a member or to the grade of the Service in which the Government Servant is for the time being included, or (ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or (iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or (i) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authoririty."

(13) For the purpose of clause (1) of Article 311, the post which the Government servant holds is to be taken into consideration. The post which the petitioner held substantively was in class Iii of the Central Secretarial Clerical Service and to this post he was appointed by the Deputy Secretary to the Government of India in the Ministry of Home Affairs as appears from Schedule Ii, Central Civil Service (Classification, Control and Appeal) Rules, 1965-Part Iii Central Civil Services, Class Iii and it is therein provided that this Deputy Secretary will also be authority competent to impose penalities. The temporary or quasi-permanent appointment of the petitioner earlier to his appointment to the substantive post cannto be taken into consideration for the purpose of clause (1) of Article 311. The order of dismissal having been passed by the Deputy Secretary was perfectly legal and valid and in compliance with this constitutional provision. The dismissal of the petitioner cannot, therefore, be challenged on this ground.

(14) MALA-FIDES is imputed to the respondents merely on the ground that almost 8 years have elapsed between the petitioner's suspension and his dismissal. Although the petitioner has been kept in suspense over this long period, mere delay cannto induce us to give a finding of mala fides against the respondents and we do nto find any substance in this ground also.

(15) Then it is contended that reasonable opportunity was nto afforded to the petitioner either before or during the enquiry in that he was nto given inspection or copies of the documents mentioned in his letter dated November 4, 1960 and even after service of the show-cause notice in that he was nto allowed to cross-examine the concerned officials including S. S. Duggal and E. N. Ramamurti after he had been furnished copies of these statements on his demand. The respondents admit that copies of the statements of S. S. Duggal and E. N. Ramamurti were nto given to the petitioner but they contend that the petitioner was allowed to and did inspect all relevant documents with the Special Police Establishment before the enquiry and, therefore, the mere non-supply of copies cannto amount to a denial of reasonable opportunity. The petitioner counters this by saying that the Special Police Establishment did nto allow him even to inspect the documents that he wanted to inspect as per the annexures to this letter dated November 4, 1960 including the statements made by S. S. Duggal and E. N. Ramamurti. The letter dated November 30, 1960 from the Government to the petitioner which was endorsed to the Special Police Establishment only request for facilities to inspect "relevant documents". The documents mentioned in the annexures to petitioner's letter dated November 4, 1960 are nto detailed in this letter of the Government. The Deputy Inspector General of Police, S.P.E., in his letter dated December 12, 1960 to the Government merely states that the petitioner has inspected the "relevant documents." It is clear from the petitioner's letters dated February 23, 1962; April 4, 1962 and April 5, 1962, mentioned earlier, that the petitioner had complained that he was nto afforded inspection or allowed to make extracts from the statements of S. S. Duggal and E. N. Ramamurti at any stage before or during the inquiry. This statement was nto denied by the respondents by any letter. In fact it appears from a statement made in petitioner's letter dated November 7, 1962 that copies of these two statements were given to him only on April 12, 1962. In these circumstances, we are unable to accept 'the stand of the respondents that inspection of these two statements had been taken by the petitioner in the Special Police Establishment prior to the inquiry and these two statements are included in the expression "relevant documents".

(16) That these two statements were material to the defense of the petitioner cannto be doubted because, according to the petitioner, S. S. Duggal and E. N. Ramamurti stated before the Special Police Establishment that the petitioner had made all disbursements under the orders and directions of the Drawing and Disbursing. Officers.

(17) In the case reported in Air 1961 S.C. 1623 in re : State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, the Supreme Court has observed:-- "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 witness examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective .exercise of this right has been prevented by the enquiry officer by nto giving to the officer relevant documents to which he is entitled, that inevitably would mean that the enquiry had nto been held in accordance with rules of natural justice."

(18) In the case of Tirlok Nath(2) the Supreme Court has held that if the public servant so requires for his defense, he has to be furnished with copies of all the relevant documents, that is, documents sought to be relied on by the Inquiry Officer or required by the Public servant for his defense. The right to cross-examine means to cross-examine effectively. In the absence of the copies of these two statements, the petitioner could nto confront S.S. Duggal and E.N. Ramamurti when they appeared as witnesses against him in the inquiry with their statements made to the Special Police Establishment. The fact that he in fact did nto put any question in cross-examination is of no consequence because, in the absence of the copies, it would certainly have been risky for him to do so. In our view, it is clear that the omission to allow the petitioner inspection of these two statements or to permit him to take extracts thereof certainly amounted to a denial of a reasonable opportunity.

(19) Then it is contended on behalf of the petitioner that this opportunity was denied to him again after the show-cause notice when the copies had been supplied to him at his request by nto permitting him to cross-examine these two witnesses at that stage. The respondents contended that when that stage had arrived, clause (2) of Article 311 had been amended by the Constitution (15th Amendment) Act, 1963 and as a result of that amendment, the petitioner had a right of making representation on the penalty proposed but only on the basis of the evidence adduced during such inquiry. The fact remains that the demand for cross-examination was made long before the amendment of clause (2) of Article 311 when he had a right to have witnesses recalled for further cross examination even on evidence which was made available to him and to produce fresh documents in his defense. The 15th Amendment is nto retrospective and the mere fact that the order of dismissal was passed after this amendment had come into force would nto entitle the respondents to have recourse to it as an answer to the petitioner's grievance. At the time of the show-cause notice, the petitioner had the right to cross-examine these two witnesses and to produce documents and by refusing to do so, the Government denied him a reasonable opportunity even at the second stage after the show-cause notice. Accordingly, we are of the opinion that the inquiry is vitiated by non-compliance with the principles of natural justice and so is the order of dismissal.

(20) In the result, the petition is allowed and the order of dismissal dated October 20, 1967 is hereby quashed. The petitioner will have his costs of this petition. Counsel's fee is assessed at Rs.200.00