Case: Union Of India Vs. T. R. Varma

2. The respondent was, at the material dates, an Assistant Controller in the Commerce Department of the Union Government. 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 thewas given to Sri Tawakley an assistant in the Ministry of Commerce and Industry (Complaints 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 order in his favour had been made and communicated, but he offered that he would get the respondent to stand as surety for payment bypolice thereafter decided to set a trap for the respondent and it was accordingly arranged that Sri 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 therethere was a talk between Sri Tawakley, 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.3. On March 26, 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 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 allegations relating to meetings between the respondent and Sri Tawakley on March 17,On March 21, 1953, a telephonic conversation with reference to the same matter later on that day, and the meeting in the Kwality Restaurant alreadyrespondent 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 Mr. J. Byrne, Joint Chief Controller of Imports and Exports. On April 10, 1953, the respondent submitted a detail 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 Srirespondent also asked for an oral enquiry and desired to examine Sri Bhan, Sri Feteh Singh and Sri Jai Narayan in support of his version. On April 17, 1953 Mr. Byrne gave notice to the 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 therein, 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, wasSeptember 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 againstpapers 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 President 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.5. 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 beenheld that the respondent had been denied an opportunity to cross-examine witnesses, who gave evidence in support of the charge, that further he was not allowed to make his own statement, but was merely cross-examined by the Enquiring Officer, and that likewise, his witnesses were merely cross-examined by the Officer without the respondent himself being allowed to examinedefects, they observed, amounted to a denial of reasonable opportunity to be 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.

Reasoning:
It is well-settled that when an alternative and equally efficacious 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 Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566 : (AIR 1950 SC 163 ) (A) "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 Son v. The Income-tax Investigation Commission, 1954 SCR 738   at p. 747: (AIR 1954 SC 207  at p. 210) (B). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor. None such appears in the presentis 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 apropose to dispose of this appeal on a consideration of thehave thus before us two statements, one by Mr. Byrne and the other by the respondent, and they are in flat contradiction 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 aswas admittedly an officer holding a high position, and it is not suggested that there was any motive for him to give false evidence. There are moreover, features in the record, which clearly show that the statement of Mr. Byrne must be correct. The examination of witnesses were examined on that date, among them being Sri C. B.as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising 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 actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to cross examine the previousreading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant 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 respondent did not cross-examine the witnesses because there was nothing left for him tolearned Judges gave two reasons for accepting the statement of the respondent 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 wasa consideration 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.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 allowed 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 enquiries 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 ofit 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 explainingthese rules are satisfied, 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 decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98 : ((S) AIR 1957 SC 232 ) (C) where this question is discussed.We have examined the record in the light of the above principles and find that there has been no violation of the principles of natural justice. The 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 thefindings of Mr. Byrne are based entirely on an appreciation of the oral evidence taken in the presence of theshould also be mentioned that the respondent did not put forward these grounds of complaint in his explanation dated September 11, 1953, and we are satisfied 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 him-self of the same. In this view, it becomes unnecessary necessary to express any opinion on the second question which was raised by the learned Solicitor-General.