ivil 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 section 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 16252 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 1317 of 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 161 and under
rule 1621 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  624 sets out the procedure to be followed in departmental enquiries
The sum and substance of rule 1624 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 necessaryto 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 16251 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 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 16252 can be successfully taken against him
Action under r 1625 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 SP 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 1000 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 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 1945
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 162 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 article 311 of the Constitution had been violated and the order of dismissal 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 article 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 reportsthough 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 andor 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 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 vs State  the court considered the question as to whether reasonable Opportunity had 1 AIR 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 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 vs Sailabehari1
In this case the entry in the diary of a Deputy Collector went to show that the Special Assistant Agent ie 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 vs Bakshi Ghulam Mohammed 2 where the Court was dealing with the proceedings of a Commission of Inquiry under the Commission of Inquiry Act
1 AIR 1963 Orissa 73
2 1966 Supp
SCR 401
703 Section 10 of that Act gave the delinquent a right to be heard but only a restricted right of cross examination ie 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 article 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 costs
GC Appeal dismissed


Summary:
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 16252 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 article 311 of the Constitution had not been complied with
In appeal to this Court by the State of Punjab
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 article 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 vs State AIR 1967 Orissa 49 and State of Jammu  Kashmir vs Bakshi Ghulam Mohammed 1966 Supp
SCR 401 distinguished
State of Orissa vs Sailabehari Al
R 1963 Orissa 73 referred to