, .. B

ARJUN CHAUBEY

v. '

UNION OF INDIA AND OTHERS

March 23, 1984

(Y.V. CHANDRACHUD, .C.J., V.D. TULZAPURKAR, R.S. PA1HAK, ·

'D.P. MADON AND M.P. THAKKf\R, JJ.J

Service Jurisprudence-Dismissal Order passed by the competent authority '-

dspensing with an enquiry under Rule I4(ii) of'tht R(li/way- Servants (Discipline and Appeal) Rafe., 1968 read with Proviso (b) to Article 311(2) of te Corutitution -Majority of charges of appellant's mlsconduct are in relation to competent authority who dismissed him-Doctrine 0fbias-Accusser cann'ot hf! a judge ofhiS own cause-NatuYa! Justice, Principles, violated.

The appellant was working as a senior clerk in the office of the cbiCf Com- . mercial Superintendent. 'Northern Railwa;, Vaanasi. On May 22, 198~, the ,.Caior Commercial Officer wrote a letter to him calling up.on him to offer his

expJanatic;>n i'n fegard to tWelve ch&rges of gross indiscipline, mos; Jy rel; lting to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation to the charges by his reply dated June 9, 1982. On the very next day, the Deputy Chief Commercial Superintendent served a second_ notice upon the appellant saying that the exPlanation offered by -him was not convincing but t'hat another chance was being given to him tq offer his' ep{anationregardi1g the spetjfic charges which were conveyed to him earlir. By this letter, the appellant was als9 caned up_on to submit his explanation within three days' as to why l}eter, rent disCiplinary action should not be t{lken against him. The appellant subrilitted his further explanation on June 14;1982. but on the very next d_ay, the Deputy Chief Commercial Superintendent passed an order dismissing him fiom service on the ground that he was not fit to be retained in service.

The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on variqus grounds. The .writ petition was-dismissed and hence the appeal special leave of the Court.

Allowing the appeal, the Court.

HELD : I : J. The order of dismissal passed against the appellant siands vitiated for the simple reson that the issue as to who, betwun the ap(>ellant and Respondent No. 3 (the dismissing authority) was speitking the truth was

dided by Respondent No. 3. The main thrust of the charges against the appel- . lant related to his conduct 'Illa Respondent '3. Therefore, it was not open to the

18.uer tO sit in Judgment over. the eXplanation offered by the appelJant and, decided that the explanation was untrue. No person can be a judge in his own

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ARJUN CHA UllEY V, UNIOl-l 303

cause and no witness can certify thttt his oWn tCstimony is true~ Any one who A has a pers6na1 stake in an .enquiry must keep himself aloof from the conduct of thejnquiry. [306 F-Hl

I : 2. On the facts of tho case, the illegality touching the proceedings which endetl in th~ dismissal of the appellant is, "so patent apd loudly obtrllsive that it leaves an indelible stamp of infirmity" on the decision of Respondent No. 3.

[307 B-C]

 B

• 2. From the-charges 2 to 7 and ll; it is obvious that if an enqiry were to be held into the charges framed against the appellant. the principal witness fen: the Department would have been Responden~ No. 3 (the dismisSing authority) himself as the main accuser and-the target of aP!iellant's misconduct. Surprisingly, the explanation dated June 9, 1982 of the appellant to the letter of accusation dated May 22, 1982 was considered on its merit~ by Respondent himself. Thereby, the accuser beame the Judge. [305 G-H, 306 Al

Not O!flY that, the further explanation submitted by the appeJlant was consi'.' dered by Respondent No. 3 himself. The order of dismissal dated-June 15", 1962 which was issued by Respondent No. 3 recites that he was fully . satisfied that it was not •easonabiy practicable to hold an inquiry into the appellant's conduct as provided by the Rules and that he had oome to the conclusion that the appellant was not fit to be"retained in service and had, therefore,· to be dismissed, Evidently, Respondent 3 assessed the weight of his own accusation~ againSt the appellant and Passed a jUdgent 'Y}lich is one of. the ea; iest to pass-~ namely~ that be himself was truthful person and the appellant a liar. In ding this, Respondent No. 3 violaed a fundamental principle or natural justice.

[305 B-C, 306 Fl

The State of U.P. v. Moltammad Nooh (1958) SCR ~95, referred to.

3, The contention that inspite of the -above legal po&ition, the appellant does not deserve the assiStanco of the court, since he was habitually guilty of acts subversive of discipline cannot be accepted. In the first place, to bold the appellant guilty of habitual acts of indiscipline is to assume something which

remain' unproved, Secondly, the illegaJity from which the order of dismissal Pl!Sfd by Respondent No. 3 suffers is of a character so grave and fundamental that the alleged habitual misbehiA-iour on the part of the appellant cannot cure . or condone it.

[301 CB]

4. The avio<; l needless complications in working out the mutual rights and obligations of the parties, the court directed :

(i) The appellant who is due to retire from service shall be treated as having retired from service with effect from April 1, 1984 ; .

(ii) He shall be paid arrears of salary due uhtil March 31, 1984 on the basis of salary last drkwn by him on June 15, 1982 without taking into

H account the increments which he might have earned subsequent to Ii\•\ . \l•t•: . . . .

. (iii)

/ The Provident Fund and gratuity sHall also be paid to the appellant as calculated in accordance with the rules, as if-no order'.or dismissal was passed against him; and '

(iv) he ma)' not and shall nof rejoin his duties and he will Ill' treated as OD leave between 23rd March, 1984 and 31st March, 1984.

)307 F-H, 308 A-Bl

CIVIL APPELLATE JURISDICTION : CivH Appeal No. 2613 of '-1: 1983. ~

From the Judgment and Order dated 19-11-82 of Allahabad High Court in Civil Misc. Writ No. 8287 ofJ982.

R..K. Garg, S.N. Singh and J).K. Garg, for the appellant. .

P.R. Mridul, Miss A. Subhashini, R.N., Poddar, C. V, Subba Rao :.:· and A.K, Ganguli for the respondents. .,..

The judgment of the ourt was. deliverd by

CHANDRACHl)D, C.J. The appellant was working as a senior clerk in ; tirn office of the Chief Commercial Superintendent, Northern .Railway, Varanasi. On May 22, 1982 the Senior Commercial Officer wrote a letter to him, calling upon him to offer his explanation in regard to 12 charges of gross indiscipline. The appellant submitted his explanation to the charges by bis reply .dated June 9, 1982. . . .

On the very next day, the Deputy Chief Commercial Superintendent served a second notice upon the appellant, saying that the explanation ottered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him by' the letter of May 22, 1982.

By this letter, the appellant was also cklled upon to submit hi!!' explanation within three days as to why deterrent disciplinary action should not be taken against him. The appellant submitted bis further explanation on June 1.4, 1982, but on the very next day; the Deputy Chief Commercial Superintendent' passed an order dismissing him from service on the ground that he was not fit to be retained in service. ·

 The appellant filed a writ' petition in the High Court of H Allahabad challenging the order of dismissal on various grounds.

The Union of India, the. Senior Commercial Officer and the Deputy

Chief Commercial Superintendent were impleaded to !hat petition

ARJUN CHAUBEY v. UN!ON (Chandrachud, C.J.) 305

as Respondents 1 to 3. That writ petition having been dismissed by A the High Conrt, the appellant has filed .this appear by. special leave. . . .

The order dismissing the appellant from service .was passed by Respondent 3 under Ru.le 14(ii) of the .Railway Servants (Discipline and Appeal) Rules, 1968 read with Proviso (b) to rticle 311(2) 9f B the Constitution. Respondent 3 recorded his reasons in writing for coming to the conclusion that it was not reasonably practicable to hold an inquiry into . the conduct of the appellant in the manner provided by the relevant rnles, and thereafter, he proceeded.to pass . .. the or<ler of dismissal without holding any inquiry.

Quite some time was taken by the appellant's counsel in-arguing upon the true meaning and intendment of the Disciplin~ and Appeal Ru\es, 1968 and in urging that the appellant should have

been affordetl an opportunity of being heard on the question as to whether, it was or was not reasonably practicable to hold an in, quiry. into the charges levelled against him. It was also urged by the learn-

D. ed counsel that the fact that it was not reasonably practicable to 1

hold a full-fledged inquiry as. contemplated by the Rules, did:not justify. the non-holdirig of any inquiry at alL We do not propose to enter into the merits of these contentions since, the appellant is entitled .to succeed on another ground.

The Jetter dated May 22, 1982 which contains accusations of gross misconduct against the appellant enumerates 12 charges, out . of which Charges Nos. 2 to 7 and JI refer to the appellant's misconduct In relation to Respondent 3. For exampfo, the second charge alleges that. the appellant entered the office of Respondent 3 and challenged him in an offensive and derogatory language. Charge No. 3 says .that the appellant was in the habit of forcing himself on }lespondent 3 two or three times every day with petty' complaints.

Charge No. 4 alleges that the appellant stormed into the office of Respondent 3 and shouted at him, using foul words. Charges 5, 6 and 7 contain similar allegations. The allegation contained in Charge No. 11 is to the effect that behaving as a leader of goondas, the appellant hired the services of other goondas and created security problems for Respondent 3 and the members ot his family. It is obvious that if an inquiry were to be held into the charges framed against the appellant, the principal witness for the Department would have been Respondent 3 himself as the main accuser and the target of appellant's roisconuct. It is surprising in \his context that tb~ . ' '

expl.anation dated June 9, 1982 which was furnished by the appellant to the letter of accusation dated May 22, .. 1982 was considered on its merits by . Respondent 3 himself. Thereby, the accuser beame the judge. The letter writt; n to the appellant by Respondent 3. on June 10,. 1982 says :· : .

"I have carefully gone through your defence explanation dated 9.6.82 to the charges given in this office Jetter of even No. dated 22.S.82 and the same i? not convincing at all.

Befqre taking any actipn under D. & A.R., I would like io offer you another chance for giving your explaniations to the specific charges conveyed to you vide this ojjlce letter dated 22:5.82. . .

Please submit your days as to .why a deterrent taken against you".

defence . explanation within three disciplinary action should•not be •

:rhe appellant submjtted his further explanation, V.:hieh also ~Q6 . considered by Respondent 3 himself. . .

The order of dillmissal dated June 15, 1982 which was issued by Respondent 3 recites that he was fully satisfied that it was:not reasonably praeticable to hold an inquiry into the appellant's conduct as provided bytlje Rule~ and that he had come to the conclusion that the appellant was not fit to be retained in service. and had, therefore, to be dismissec\. Evi.dently, Respondent 3 assessed.the weight of his own accusations against the , appellal)t and pas5ed a judgment which is one of the easiest to pass, namely, that he.himself was a trut11ful person and the appellant a liar. In doing , th~; Respondent 3 violated a fundamental principle of naturaLjustice.

The main thrust of the charges against the appellant related .to his conduct qua Respondent 3. Therefore, it was not open to t]le . latter to sit in judgment over the explanation offered. by the appel~ !ant and decide that the explanation was untrue. No person can be a judge in his own cause and no witµess can certify that hfs own testimony is true. Any one who has a personal .stake in, an lnquiy must keep himself aloof from the conduct of the : inqniry.

The order of dismissal passed against the appellant stands

vitillte~ for tile simple rea!ll:m th<it the issue as to who, between th

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AJRUN CHAUBEY ~· UNION (Chandrachud, C.J.) 307

"· appellant and Respondent 3; was speaking the truth was decided by A Respondent 3 himself.

In The State of U11ar Pradesh v. Mohammad Nooh,1 S.R. Das, C.J., observed, while. speaking for the majority, that the roles of a judge and a witness cannot.be played by Dne and the same person .. and that t is futile to expect, when those roles are combined, thatthe It. judge can hold the scales of justice e\'en .. We may borrow the lang-

>i uge of Das, C.J., and record a finding on the facts of the case be- .{ fore us that the illegality touching the proceedings whiclr ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an io, delible stamp of infirmity" on the decision of Respondent3. . C

Mr. Mridul, appearing on lie half of the respondent, contended that though this may be the true le.gal position, .the appellant does not deserve the assistance of the Court since, he was habitually guilty of acts subversive• of discipline. This argument does not im- D press us.·

In the first place, to' hold tli.e appellant gui'Jity of habitual acts of indiscipline is to assume something which remains unproved . . $econdly, the illegality.from which the order of dismissal passed by

Respondent- 3 suffers is of a character so grave and fundamental that the alleged habitual misbehivfour on the part of the appellant cannot cure or condone it. ·

In the result, we allow the appeal and set aside the judgment of the High Court. The order dated June 15, 1982 whereby the appellant was dlsinissed from service is set aside. In order, however, to avoid needless complications ' in working out the mutual rights. and obligations of the parties, we direct that the appellant, who is . due to retire within about six months, shall betreated as having retired from service with effect from April 1. 1984. He shall be paid the arrears of his salary due until March 31, 1984, on the basis of the salacy lasCdrawn by him on June 15, 1982, without taking itito account the increments which he might have earned subsequent to that date. The provident fund and gratuity shall also be paid to the appellant as calculated in accordance with the' rules, as if no order of dismissal w:ts passed against him.

The appellant may

(I) [1958] SCR 595, 609 . . ,

. not and shall not rejoin his .duties. He will be treated as on leave between.now and March 31, 1984.

The arrears of salary untilMarch 31, 1984 shall be paid to the appellant on the basis indicated above, on ot befoe that date and, in ariy event, not later than May I, 1984. The provident fund and gratuity shall be paid to him within a period of two months from today.. . y

Mr. Garg made a statement before us on behalf of his client, the appellant, that the appellant is neithi!'r in ocuption of any official residential accommodation, rior is.he. in possession of the garage which. is referred to in Ch; rge No. 6 in the letter of May 22,.

1982, .

The appeal \viii stand disposed of in terms of the above order. llespondent I, the Union of I.ndia, shall pay .to .the appellant a sum j of Rs. l; OOOf (Rupees one thousand) as .his costs.

• S.R.

Appeal allowed.

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