STATE OF UTTAR PRADESH & ANR.

l'.·

SRI C. S. SHARMA

May 1, 1967

[M. HlOAYATULLAH AND C. A. VAIDIALINGAM, JJ.) Civil Services (Classification, Control and Appeal) Rules, r . . 55, Suhu. (I) and (3)-Difference in nature of enquiries under the two subrules-Enquiry under sub-r. (I) relates to misconduct affecting character Of a Govenunent servant-Full opportunity to defend himself nccessary- Enquiry vitiated lVhen officer not given opportunity to produce his defence 1vi1nesses.

The respondent was a Sales-tax Officer under the Uttar Pradesh Gov- crnmcnt.

Inquiries against him in respect of some charges of corrup- 1ion 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 biter'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 r. (I) or r. 55 of the Civil Services (Classification, Control and Appeal) Rule.. The distinction between sub-n. (I) and (3) was considered.

HELD : The third sub-rule deals wifo the unsuitability of an oflicer 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 hribe etc. \vhich 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-CJ

Sub-rule (I) of r. 55 is the general rule for enquiries when the conduct of a person is inquited into for misconduct.

A person cannot he charged with criminal conduct without affording him adequate opportunity to clear his character. If therefore the procedure under the fir, t 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 could not be said to comply with the elementary principles of natural justice an<l the High Court rightly held that the enquiry was vitiated. (851 F-G; 852

E-F; 853 F-GJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1260 of 1966.

Appeal from the _judgment and decree dated July 10, 1962 of the Allahabad High Court, Lucknow Bench in Special Appeal No. 551 of 1960.

C. B. Agnnvala and 0. P. Rana, for the appellants.

B. C. Misra, B. P. Iha and C. L. Lal, for the respondent.

u:P. STATE v. c. s. SHARMA (Hidayatu/lah, J.) 849

The Judgment of the Court was delivered by Hidayatullah, J. This is an appehl 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 deci;, ion 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. Shanna 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 J anuaty 1949 and was transferred on April 1, 1950 to Hathras where he remained till the end of September 1952. An enquiry was made with reference to certain allegations against hin1 durmg his period of stay at Hathras.

On October 3, 1952, he .as tran;, ferred t?

Lakhampur Kheri and was ordered not to v1s1t 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 the 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 conuined in the charge-sheet issued to him, he submitted a list of three defence witnesses whom he wished to examine in support C'f his cae. 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, Shanna submitted the list of witnesses above-mentioned.

On tile same day the Commissioner informed Shanna that he would be permitted to produce the witnesses mentioned m his letter in due course. In another communication he was told that another date would be fixed for hearing the witnesses m his defence.

It is not necessary to describe the charges here because ma11y 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 char2c No. I and allegations Nos. 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 not accept.

We shall refer to these charges presently after completing the narration of events which took place before the Enquiring Officer.

After the inquiry opened, the Commissioner did no< examine the witnesses afresh, but their previous statements. recorded at the earlier enquiry, were tendered in evidence and Shanna was asked to cross-examine them.

Sharma duly cro-; s-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 n.uncd three witnesses and had also added that they were to be examined in relation to a specific charge about a car owned by him.

On February 2, 1954, he made an application for 20 days' extension of time for giving the list of witnesses he wished to examine in his defence.

Third February had been fixed for summon111g of the witnesses against him but no date till then was fixed for the examination of his defence witnesses.

His application of February 2, 1954 was rejected by the Commissioner ou February 6, 1954, without fixing a date for the examination of the witnesses or for giving him an opportunity to give evidence on his own behalf.

Not knowing that he would not be given any further opportunity, Sharma submitted a list of four witnesses on February 10, 1954, but stated that he could not give the addresses of some of the witnesses because he did not know where thev were.

On February 24, 1954, he again stated that he wanted to examine defence witnesses and to examine himself.

No order was, however, 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 fter due opportunity to show cause why he should not be dismi>sed.

In reply to the show cause notice Sharma complained that he had not been allowed to lead evidence on his own behalf and thtt is one of the contentions in the present case.

The charges against him which have been held prov~J against him and to which we have referred were as folicws :

Charge No. 1. Al/egatio11 No. 5

"You accepted the accounts of Sarvsri Radhey Shiam Brij Kishore without due verification."

Charge No. 2, A/legation No. 1

"Sarvsri Damodar Das Radhey Shianr 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 H 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."

U.P. STATE v. c. s. SHARMA (Hidayatullah, J.) 851

Charge No. 3, Allegation No. 3

"You accepted Rs. 500/- from Mithoo Lal of the firm Noor Mohammed Mithoo Lal as bribe through Chhotey Lal vakil." l.n 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 and in 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 in relation to this charge apparently he had cited the first list of three witnesses for the examination in his defence.

This charge was not accepted by the State Govermnent when the matter 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 opponunity was !liven to him for swnmoning his defence witnesses or to examine himself.

The High Court in the two orders which were made, reach ed 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 ela1>9rately 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 Sarvices (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 (I ) 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 appy where it is l?roJ?Osed to terminate the employment of a probationer, or to dismiss, remove or reduce in rank a temporary govrnn~nt servant for any specific fault or on ac- 7ount of his unsuttab1hty for the service.

Sub-rule ( 3) says that in such cases, the probationer or temporary government servant ~?ncemed shall e apprised of the grounds of such proposal,

'.'1vn an ?PPortumty to show aus~ against the action to be takeR agamst h1.m, and his explanation in this behalf, if any, shall be d.uly considered. before orders are passed by the competent authonty.

I~ the third sub-rule applied, it is obviou~ that the kind of enqmry made complied with its requirements.

The first subrule, 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 fo lead evidence in his defence.. In our judgrnent 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 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 witnesse5 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-

.ll

U.P. STATE v. c. s. SHARMA (Hidayatul/a/z, J.) 853

nesses.

It is true that Shanna 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 Shanna 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 Shanna to procure attendance of his witnesses on that date, but if no date was fixed, Sharma was not expected to bring his witnesses day 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 ma}' i; mt omit to state that. there was an allegation against the Comm1ss10ner 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 Shnna was defi. nitely corrupt.

This statement of the Commissioner showed that .he approached the case with a feeling that Shanna was guilty although the State Government cannot he said to share this bias of. th~ Commissi<!ner.

We would have said something more about this, 1f the occasion. had demanded this. but as we are upholdini; the order of the Htgh Court on the ground that no reasonable

opportunity was afforded to Shanila to lead his evidence, it is not A 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 B 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, c The appeal, therefore, fails and is dismissed with costs.

G.C.

Appeal dismissl'd.