Case ID: 524

Judgment:
: Civil Appeal No. 118 of 1957. Appeal by special leave from the judgment and order dated January 31	 1956	 of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ No. 243 D of 1954. C. K. Daphtary	 Solicitor General of India	 R. Ganapathy Iyer and R. H. Dhebar	 for the appellant. Purshottam Tricumdas	 T. section Venkataraman and K. R. Chaud hury	 for the respondent. September 18. The following Judgment of the Court was delivered by VENKATARAMA AIYAR	J: This is an appeal by special leave against the judgment and order of the High Court of Punjab in an application under article 226 of the Constitution setting aside an order dated September 16	 1954	 dismissing the respondent herein	 from Government service on the ground that it was in contravention of article 311 (2) of the Consti tution. The respondent was	 at the material dates	 an Assistant Controller in the Commerce Department of the Union Govern ment. 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 the Department. Information was given to Sri Tawakley an assistant in the Ministry of Commerce and Industry (Com plaints 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 an order in his favour had been made and communicated	 but he offered that he would get the respondent to stand as surety for payment by him. The police thereafter decided to set a trap for the respond ent	 and it war		 accordingly arranged that Sri 501 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 there incognito. Then	 there was a talk between Sri Tawak ley	 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. On March 28	 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. allega tions relating to meetings between the respondent and Sri Tawakley on March 17	 1953	 on March 21	 1953	 a telephonic conversation with reference to the same matter later on that day	 and the meeting in the Kwality Restaurant already mentioned. The respondent 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 Mt. J. Byrne	 Joint Chief Controller of Imports and Exports. On April 10	 1953	 the respondent submitted a detailed 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 Sri Bhan. The respondent also asked for an oral enquiry and desired to examine Sri Bhan	 Sri Fateh Singh and Sri Jai Narayan in support of his version. On April 17	 1953 Mc. Byrne gave notice to the 502 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 there in	 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	 was sent. Oil September 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 against him. The papers were then submitted to the Union Public Service Commission in accordance with article 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 Presi dent. 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. 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 been established. They held that the respondent had been denied an opportunity to cross examine witnesses	 who gave evidence in support of the charge	 that further	 503 he was not allowed to make his own statement	 but wag 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 examine them. These defects	 they observed	 amounted to a denial of reasonable opportunity to the 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 article 311(2). In the result	 they set aside the order	 and directed him to be reinstated. The correctness of this order is challenged by the Solicitor General on two grounds : (1) that the finding that the respondent had no reasonable opportunity afforded to him at the enquiry is not supported by the evidence; and (2) that even if there was a defect in the enquiry	 that was a matter that could be set right in the stage following the show cause notice	 and as the respondent did not ask for an opportunity to cross examine the witnesses	 he could not be heard to urge that the order dated September 16	 1954	 was bad as contravening article 311(2). At the very outset	 we have to observe that a writ petition under article 226 is not the appropriate proceeding for adjudi cation of disputes like the present. Under the law	 a person whose services have been wrongfully terminated	 is entitled to institute an action to vindicate his rights	 and in such an action	 the Court will be competent to award all the relief 's to which he may be entitled	 including some which would not be admissible in a writ petition. It is well settled that when an alternative and equally effica cious 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 Raghid Ahmed vs Municipal Board	 Kairana (1)	 " the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs ". Vide also K. section Rashid and (i) 504 Son vs The Income tax Investigation Commission And where such remedy exists	 it will be a sound exercise of discre tion to refuse to interfere in a petition under article 226	 unless there are good grounds therefor. None such appears in the present case. On the other hand	 the point for determination in this petition whether the respondent was denied a reasonable opportunity to present his case	 turns mainly on the question whether he was prevented from cross examining the witnesses	 who gave evidence in support of the charge. That is 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 a suit. In this appeal	 we should have ourselves adopted that course	 and passed the order which the learned Judges should have passed. But we feel pressed by the fact that the order dismissing the respondent having been made on September 16	 1954	 an action to set it aside would now be timebarred. As the High Court has gone into the matter on the merits	 we propose to dispose of this appeal on a consideration of the merits. The main ground on which the respondent attacked the order dated September 16	 1954	 was that at the enquiry held by Mr. Byrne	 he was not given an opportunity to cross examine the witnesses	 who deposed against him	 and that the find ings reached at such enquiry could not be accepted. But the question is 	whether that allegation has been made out. In para. 7 of his petition	 the respondent stated : " Despite repeated verbal requests of the petitioner	 the inquiry Officer did not permit him to crossexamine any wit ness	 who deposed against him." But this was contradicted by Mr. Byrne	 who filed a counter affidavit	 in which he stated: " (4) That it is incorrect that no opportunity was given to the petitioner at the time of the oral enquiry (1) ; 	 747. 505 to cross examine the witnesses who had deposed against the petitioner. (5) That all witnesses were examined in petitioner 's presence and he was asked by me at the end of each examina tion whether he had any questions to put. (6) That the petitioner only put questions to one witness Shri P. Govindan Nair	 and to others he did not. " On this affidavit	 Mr. Byrne was examined in Court	 and he repeated these allegations and added: " I have distinct recollection that I asked Shri T. R. Varma to put questions in cross examination to witnesses. " It was elicited in the course of his further examination that he did not make any note that he asked Shri T. R. Varma to put questions in cross examination to witnesses	 and that that might have been due to a slip on his part. We have thus before us two statements	 one by Mr. Byrne and the other by the respondent	 and they are in flat contradic tion 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 as true. He was admittedly an officer hold ing a high position	 and it is not suggested that there was any motive for him to give false evidence. There are more over	 features in the record	 which clearly show that the statement of Mr. Byrne must be correct. The examination of witnesses began on April 20	1953	 and four witnesses were examined on that date	 among them being Sri C. B. Tawakley. If	 as stated by the respondent	 he asked for permission to crossexamine witnesses	 and that was refused	 it is surpris ing 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 actual ly put a question in cross examination	 and it is difficult to reconcile this 506 with his statement that permission had been refused to cross examine the previous witnesses. A reading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions	 and elicited all rele vant 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 respond ent did not cross examine the witnesses because there was nothing left for him to cross examine. The learned Judges gave two reasons for accepting the statement of the re spondent 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 was disallowed. Then again	 the learned Judges say that the respondent was present at the hearing of the writ petition before them	 that they put questions to him	 and formed the opinion that he was sufficiently intelligent	 and that it was difficult to believe that he would not have cross examined the witnesses. We are of opinion that this was a consideration which ought not to have been taken into account in a judicial determination of the question	 and that it should have been wholly excluded. On a considera tion 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. The respondent attacked the enquiry on two other grounds	 which were stated by him in his petition in the following terms: "(C) That the petitioner was cross examined and was not enabled to make an ' oral statement on his own behalf. (D) That the defence witnesses were not given an opportuni ty to tell their own version or to be examined by the peti tioner as their depositions were confined 507 to answers in reply to questions put by the Inquiry Officer. " In 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 al lowed 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 en quiries 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 of law. 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 witnesses examined by that party	 and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satis fied	 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 deci sion of this Court in New Prakash Transport Co. vs New Suwarna Transport Co. (1)	 where this question is discussed. We have examined the record in the light of the above prin ciples	 and find that there has been no violation of the principles of natural justice. The (1) 65 508 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 the witnesses. 'Indeed	 the evidence of Sri Jai Narayan at p. 188 of the Paper Book shows that the only question on which the respondent wished this witness to testify was put to him by Mr. Byrne. The evidence of Sri Bhan and Sri Fateh Singh was	 it should be noted	 wholly in support of the respondent. The findings of Mr. Byrne are based entirely on an appreciation of the oral evidence taken in the presence of the respondent. It should also be mentioned that the respondent did not put forward these grounds of complaint in his explanation dated September 11	 1953	 and we are satis fied 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 himself of the same. 	 In this view	 it becomes unnecessary to express any opinion on the second question	 which was raised by the learned Solicitor General. In the result	 we allow the appeal	 set aside the order of the Court below	 and dismiss the writ application. There will be no order as to costs. Appeal allowed.

Summary:
The respondent was dismissed from service under the Govern ment of India in pursuance of an enquiry held under article 311 of the Constitution of India. He filed an application in the High Court under article 226 to quash the order of dismiss al on the grounds inter alia that in the enquiry the evi dence of the respondent and his witnesses was not taken in the mode prescribed by the Indian Evidence Act and that as a result. he was not given a reasonable opportunity as re quired under article 311(2). It was found that though the procedure laid down in that Act was not strictly followed the respondent was given a full opportunity of placing his evidence before the Enquiring Officer. Held : (1) Petitions under article 226 of the Constitution should not generally be entertained by the High Courts where an alternative and equally efficacious remedy is available. It is not the practice of Courts to decide in a writ peti tion disputed questions which cannot be satisfactorily decided without taking evidence. Rashid Ahmed vs Munsicipal Board	 Kairana	 ; and K. section Rashid and Son vs The Income tax Investigation Commission ; 	 relied on. (2) Tile Indian Evidence Act has no application to en quiries conducted by tribunals. The law only requires that tribunals should observe rules of natural justice such as 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 explaining them. If these rules are satis fied then the enquiry is not open to attack on the ground that the procedure laid down in the Indian Evidence Act for taking evidence was not strictly followed. New Prakash Transport Co. vs New Suwarna Transport Co		 	 followed	 64 500