Bimla Chopra vs Punjab State and others

P.D. Sharma, J.—This is a second appeal from the judgment and decree of the learned District Judge, Ambala, upholding the dismissal of the Plaintiff''s suit by the trial Court.

Shrimati Bimla Chopra Plaintiff was serving as a permanent teacher under the erstwhile Patiala and East Punjab States Union and on 3rd July, l956, was postad at Sabathu when she received a telegram from the Divisional Inspectress of Schools, Patiala Division Defendant No. 5 intimating that she had been suspended from service vide Government order No. 236 dated 25th May, 1956. Subsequently in the month of September, 1956. she was transferred from Sabathu to the Government Girls High School, Nalagarh, where she reported for duty on 17th September, 1956. The Headmistress of the Nalagarh High School allowed her to work for a couple of days only and then relieved her of the charge saying that she was still under suspension.

The Director of Public Instruction, Punjab, by his order dated 15th March(, 1958, Exhibit D. 10., through the Inspectress of Schools, Patiala Division, served the Plaintiff with the charge-sheet Exhibit D. 11. The Plaintiff was asked to submit her explanation within a fortnight of the receipt of the charge-sheet and was also informed that she could inspect any relevant record in the office of the Director of Public Instruction, Punjab, if she wanted to do so. The Plaintiff sent her explanation Exhibit D 24/A on 20th March, 1958. The Director of Public Instruction, Punjab, by his order dated l0th June. 1958, Exhibit P. 3, appointed Mrs. G. Parampal Singh, Principal, Government College for Women, Patiala, as Enquiry Officer, in the matter. The Enquiry Officer by her letter Exhibit P. 4 informed the Plaintiff that she would hold the enquiry on 21st and 22nd June, l958, in her office at Patiala. The Plaintiff expressed her inability to participate in the enquiry at Patiala till copies of certain documents and statements of witnesses already recorded during investigation of the complaint alleged to have been received against her were supplied. The Enquiry Officer sent the due reply. After exchange of a few letters between them the Enquiry Officer proceeded ex parte in the matter and submitted her report Exhibit D. 12 to the Director of Public Instruction, Punjab (the Disciplinary Authority), who after prescribed notice to the Plaintiff dismissed her from Government service by his order dated 19th May, 1959,copy Exhibit D. 9.

The Plaintiff challenged correctness of the above order by a writ petition in this Court under Articles 226 and 227 of the Constitution which was dismissed by Gosain J. on 8th March, 1960. Thereafter she instituted the present suit in the Court of the Subordinate Judge, First Class, Ambala, on 5th May, 1960, for a declaration that the order of her dismissal from service by the Director of Public Instruction, Punjab, Defendant No 2, was illegal, improper, unjustified, ultra vires and void and that she was still in service of the Punjab State Defendant No. and was entitled to get her pay and allowances according to Rules of the service from the date of her suspension till the disposal of the suit. She alleged that appontment of Mrs. G. Parampal Singh Defendant No 4 as Enquiry Officer was against the principles of natural justice, equity and good conscience because she was her witness in the enquiry and was also inimically disposed towards her. She further averred that no reasonable opportunity to show cause against her dismissal from service was given to her as provided in Article 311 (2) of the Constitution and that the Enquiry Officer committed material ir-regularties and illegalities as detailed in paragraph 8 of the plaint. Miss S. Sen, Deputy Director of Public Instruction, Punjab, Defendant No. 3 before the enquiry was instituted against her is said to have sent for and asked her whether she would like to resign from the job or stand the enquiry which in her opinion prejudiced her case. She also contended that the Director did not consider a large number of representations made by her from time to time which vitiated the proceedings held by him while dismissing her from service.

The Defendants controverted the above allegations and added that the suit was barred by the rule of res judicata as all the points in dispute between the parties stood finally determined in the writ petition filed by the Plaintiff and dismissed by Gosain J. They also alleged that the suit in the present form was not maintainable as the plantiff could have also sued for the specific amount due to her as pay and allwances

TV trial Judge by his order dated 28th October, 1960, decided that the suit was not barred by the rule of res judicata. He framed the following issues on merits:

(1) whether the order of the Plaintiff''s dismissal is illegal, ultra vires, void and inoperative for reasons stated in paragraphs 6 to 13 of the plaint?

(2) whether the suit is not maintainable for objection in additional pleas, paragraph l?

(3) Relief.

Issue No. 1 was decided against the Plaintiff. As regards issue No. 2, the learned trial Judge observed that the plantiff had sued for a declaration that she was still in service and entitled to her pay and allowances but did not pray for the recovery thereof which was open to her. He held that when further relief or suit for specific amount alleged to be due to her was maintainable the present suit for simple declaration to that extent was barred. In the circumstances the suit was dismissed but the parties were left to bear their own costs.

The learned Counsel for the Appellant in his arguments assailed the proceedings held by the Enquiry Officer in the matter and order of dismissal passed by the Disciplinary Authority on the following grounds:

(1) The transfer of the Plaintiff-Appellant from Sabathu to Nalagarh amounted to re-instatement as it is presumed that Shrimati Mohinder-want Kaur Defendant No a who had been appointed Enquiry Officer first must have held enquiry and exonerated her of the charges and the second enquiry on the same charges was (sic)ad in law.

(2) The appointment of Mrs. G. Parampal Singh Defendant No. 4 as Enquiry Officer was illegal as she was not only a witness in the case bat was also inimically disposed towards the Appellant.

(8) The statement of allegations and copies of statements of witnesses and documents had not been furnished to the Appellant before commencement of the enquiry as prayed for by her.

(4) The change of venue of enquiry from Gobindgarh to Patiala without the permission of the Director of Public Instruction, Punjab, also vitiated the proceedings.

(5) The Enquiry Officer relied on inadmissible evidence and that being so her report was not based on any evidence and so should not have been relied upon by the Disciplinary Authority while dismissing the Appellant from service.

There is no doubt that the Plaintiff-Appellant was transferred from Sabathu to the Government Girls High School, Nalagarh, by the Divisional Inspectress of Schools, Patiala, Division, on 12th September, 195a. It is also correct that she took over at Nalagarh on 17th September, 1956, and an intimation to this effect was sent by the Headmistress of the said School to the Divisional Inspectress whnch reached her office in due course. The mistake was detected and the Headmisistrss was directed to relieve the Plaintiff-Appellant of the charge as she continued to be under suspension. There is no evidence on the record to suggest that Shrimati Mohinderwant Kaur, Divisional Inspectress, had been directed at one stage to hold enquiry into the conduct of the Plaintiff-Appellant. The circumstances also indicate that she could not have been so deputed as the charge-sheet was issued to the Appellant by the Director of Public Instruction, Punjab, for the first time on 15th March, 1958. Appointment of an Enquiry Officer for obvious reasons could not have preceded this communication. Thus it could nut be legitima-tely urged that transfer of the plaintiff-Appellant to Nalagarh amounted to reinstatement. The plea that Mrs. G. Parampal Singh held the enquiry second time when the Plaintiff Appellant had been found innocent on the same charges by Shrimati Mohinderwant Kaur is equally untenable as the latter at no time was appointed as an Enquiry Officer in the matter.

The learned Counsel for the Plaintiff-Appellant contended that the appointment of Mrs. G Parampal Singh as Enquiry Officer was against the rules of natural justice as she was her witness, and was also not on good terms with her. The plaintiff Appellant was appointed for the first time at Kapurthala by Mrs. G. parampal Singh and given an undertaking that she would be entitled to free accommodation besides her pay and allowances. The Plaintiff-Appellant wanted to cite her as a witness to prove this fact in order to meet charge No. 1 where she had been accused of having occupied Government School building without permission of the Department. Both the Courts below held that this fact alone did not invalidate the appointment of Mrs. G. Parampal Singh as Enquiry Officer because if anybody stood to suffer, it was the Department and not the Plaintiff-Appellant. I agree with them. Furthermore, the Plaintiff-Appellant has not proved that the Enquiry Officer was in any way prejudiced against her The Enquiry Officer appeared as a witness before the trial Judge and denied her bad relations with the Plaintiff-Appellant. Her statement carried conviction with both the Courts below and 1 see no reason to come to any other conclusion, particularly when Chuni Lal (P. W. 4), Mukhtiar of the Appellant, also conceded that she was on good terms with them. The appointment of Mrs. G. Parampal Singh as Enquiry Officer could not be assailed on any valid ground.

The learned Counsel for the Plaintiff Appellant in support of his argument that it was incumbent on the Department to supply the Plaintiff-Appellant with a statement of allegations on which each charge was based along with the charge-sheet and their omission to do so was fatal to the proceedings relied on Sub-rule (2) of role 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, which runs as:

(2) The grounds on which it is proposed to take such action, shall be reduced to the form of a definite charge or charges which shall be communicated in writing to the persons charged together with a statement of allegations on which each charge is based and of any other circumstance which it is proposed to take into consideration in passing orders on the case and he shall be required within a reasonable time to state in writing whether he admits the truth of all, or any, of the charges, what explanation or defence, if any, he has to offer and whether he desires to be heard in person * * *

It is common ground that the Department served the plain tiff-Appellant with the charge-sheet which was not accompanied with the statement of allegations alluded to above. The trial Court as well as the first appellate Court after carefully examining contents of the charge-sheet inferred that the Department''s omission to supply the Plaintiff Appellant with a statement of allegations was not an irregularity of the magnitude to vitiate the proceedings. In their opinion the charge-sheet was a detailed document and furnished all particulars which the Plaintiff-Appellant could have appropriately required to submit her explanation and indeed she furnished her reply thereto, it seems without feeling any impediment. This is a finding of fact which cannot be set aside at this stage, particularly when a careful reading of the charge-sheet lends support to the same. The mere omission to strictly follow Rule 7(2) cannot be deemed as enough to offend Article 311 of the Constitution since it has not brought about a miscarriage of justice. This view finds support from the decision given in Kapur Singh "Narang Villa" Simla v. union of India through Secretary to Govt of India, Ministry of Home Affairs, New Delhi, A. I. R. 1956 P&H 58, at page 62 (para 6). Therefore, to say that the Department''s failure to furnish the Plaintiff Appellant with the statement of allegations amounted to denial of reasonable opportunity of showing cause against the action proposed to be taken against her would be a negation of truth.

The Plaintiff-Appellant at the time of replying to charge No. 2 about her alleged illicit connection with Sain Dass asked for copies of certain documents vide Exhibit D. 24/A. 1 he Enquiry Officer in her letter dated 9th June, 1958, copy Exhibit D. 26, while informing the Plaintiff-Appellant that the enquiry would be held at at Patiala on 21st and 22nd June, l958, also stated that orders had been solicited from the higher authorities about the supply of copies of the documents asked for by her and as soon as those were received the copies would be made available to her. In the meantime she could call at her office on any working day before the date of enquiry and inspect the documents. The same thing Was repeated by the Enquiry Officer in her letter dated 12th June, 1958, copy Exhibit D 17. The Plaintiff Appellant was again assured by the Enquiry Officer in her letter dated 13th June, 1958, copy Exhibit D. 16, that most of the copies of Government documents that she wanted would be examined and taken into account by her in order to sift the truth of allegations and in case she wanted some more documents to prove her innocence those also would be made available and placed on the file. The above assurances were reiterated by her further in letters dated 21st June, 27th June and 29th June 1953, copies Exhibits D. 18, D 20, and D 19, respectively. The Plaintiff-Appellant in spite of all this did not take the care of participating in the enquiry and instead continued repeating her stale requests ad nauseam for the supply of copies of documents. It appears that she was evading or at least delaying the enquiry on one lame excuse or the other. The learned Subordinate Judge and the District Judge very correctly held that the Plaintiff-Appellant''s defence in the matter did not suffer for the reason that copies of documents were not supplied to her immediately after her request Their conclusions are affirmed.

The Director of Public Instruction, Punjab, was examined as a witness by the Plaintiff-Appellant, who stated that at the instance of the Enquiry Officer the venue of Enquiry was changed from Gobindgarh to Patiala because the documents required in the enquiry were at Patiala. The learned Counsel for the Plaintiff-Appellant was not able to elucidate as to how this change of venue adversely affected merits of the enquiry against her.

The Plaintiff Appellant''s objection that report of the Enquiry Officer is not based on any evidence has no force. The Enquiry Officer in support of her report largely depended on the following evidence:

(a) Attested affidavits of the residents of Gobindgarh, who were either neighbours of Miss Bimla Chopra, or were in the know of the matter personally.

(b) Statement of Mst. Sharifan (Midwife) who was present at the time of first child birth to Miss Bimla Chopra at Deoband.

(c) Statement of Shrimati Savitri Devi legally wedded wife of Shri Sain Dass.

(d) Certified copy of the birth entry of the first child at Deoband.

(e) Statement of Mst. Man Kaur (Midwife) of Muzaffar Nagar, who was present at the time of second child birth to Miss Bimla Chopra.

(f) Letters from the Manager, Shiksha Sadan J. H. School, Muzaffar Nagar dated 9th July, 1958 and addressed to the D. I. S. Patiala and her respectively.

(g) Invitation card issued by Sain Dass to celebrate the birth of his son (i e. his third child) from Miss Bimla Chopra.

(h) Letters from one Ghanshyam Dass Chawla dated l?th and 21st June, 1958, addressed to her as Enquiry Officer.

(j) Statement of Miss S. S. Sabharwal, Headmistress, Girls School, Sabathu.

It cannot lead to an inference that her report is not based on any evidence at all. In the case, Union of India v. T.R. Varma, AIR 1957 S.C. 862, it was laid down that:

The Evidence 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 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 with-out his being given an opportunity of explaining them. If these 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.

The Enquiry Officer while admitting evidence in no way contravened the directions given by their Lordships of the Supreme Court in the above cited case and so it will be incorrect to hold that the enquiry report was not based on any evidence. The Plaintiff-Appellant was afforded ample opportunity to participate in the enquiry and to challenge the veracity of the evidence adduced by the Department and to produce whatever evidence she liked in her defence but she failed to avail of it. Now she cannot turn round and say that the witnesses were not examined by the Enquiry Officer and instead the affidavits filed by them were relied upon. It cannot be disputed that in such proceedings affidavits can be admitted into evidence and also given their due weight. The report of the Enquiry Officer thus could not have been ignored on the ground that it is not based on evidence.

The learned Counsel for the Respondents in the concluding part of his arguments also contended that the present suit was barred by the rule of res judicata since the Plaintiff Appellant''s writ petition under Articles 226 and 227 of the Constitution praying the same relief stood dismissed by Gosain J. He relied on the case, Daryao v. State of Uttar Pradesh, AIR 1961 S.C. 1437, where the question was whether a writ petition filed in High Court under Article 226 and dismissed can operate as res judicata when a similar writ petition under Article 32 is put in the Supreme Court. Their Lordships of the Supreme Court amongst other things also observed as under:

The argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Article 32 cannot be accepted. The rule of res judicata as indicated in S. 11 of the CPC has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests isfounded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.

The binding character of judgments pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. On general considera-tions of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pro-nounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure presrci-bed by the Constitution.

It makes no difference to the application of the rule of res judicata that the decision on which the plea of res judicata is raised is a decision not of Supreme Court but of a High Court exercising its jurisdiction under Article 226 It is doubtful if the technical requirement prescribed by S. 11 as to the competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Article 226 is substantially the same as the jurisdiction of this Court in entertaining an application under Article 32. Article 226 confers jurisdiction on the High Court to entertain a suitable writ petition, whereas Article 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Article 32 cannot be entertained by a High Court under Art, 226 is without any substance ; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it can not entertain a petition under Article 32 must be rejected,

The jurisdiction of the High Court and the Supreme Court for entertaining the wit petitions of the category enumerated in the above cited case is almost co-extensive but this is not true in the case of a writ petition filed in the High Court and a suit instituted in the Civil Court, may be for the same relief. The High Court in disposing of writs is not required to go into the detailed examination of facts while in regular civil suits facts can be examined meticulously. In the instant case Gosain J. while disposing of the writ petition filed by the Plaintiff-Appellant remarked. "The learned Counsel for the Petitioner was wholly unable to state how and in what manner the Petitioner was prejudiced by the non-supply of the statement of allegations, and in these proceedings for extraordinary remedies I am not prepared to quash the order of dismissal on this technical point." Furthermore, as observed by the trial Judge the Plaintiff had assailed order of her dismissal also on grounds other than which she had urged in the writ petition because those could not have been available to her in those proceedings. The scope of the writ petition and the regular civil suits not being the same, the judgment delivered in the writ petition cannot operate as res judicata on the points in dispute between the parties in the civil suit. 1 he learned Subordinate Judge, therefore, cannot be said to nave committed any mistake in holding as he did that the present suit was not barred by the rale of res judicata.

The Plaintiff-Appellant was given another opportunity by the Director of Public (Instruction, Punjab, as Disciplinary Authority, to show cause against the order of dismissal which he then proposed to pass against her but she failed to avail of it and for no good reasons. In the case, Union of India v. Shri Dharampal Chopra, (1957) 59 P.L.R. 472 it was held that where a person does not deem it necessary to make use of the opportunity or refuses to take part in the enquiry, he cannot as of right demand the enquiry to be held over again at the final stage. The Plaintiff-Appellant herself is to be blamed for her sorry plight. She has hardly made out any case for interference by this Court in the order of her dismissal from service by the Discipilinary Authority.

For the above reasons, the appeal fails and is dismissed. The parties are left to bear their own costs.