AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
89 paragraphs · 12,619 wordsM.N. Roy, J.—In this Rule, the Petitioner has impeached the issue of a charge-sheet dated June 20, 1972, the final order passed thereon and the order dated September 14, 1973, made in an appeal from the said order.
The Petitioner was first appointed as a constable in the year 1950 and in or about 1963 he was promoted to the post of Assistant, Sub-Inspector of Police, after passing the departmental examination and was put in the scale of Rs. 125-200 plus dearness allowance with yearly increment of Rs. 5 He has stated to have served in the said post upto June 1971 and from July 1971 till the date of the initiation of the proceeding as mentioned hereinafter he was employed as Sub-Inspector of Police, Gaighata P.S. 24-Parganas, under the Superintendent of Police, district 24-Parganas He has stated that during the tenure of the service as aforesaid he has discharged his duties and functions honestly, sincerely and to the entire satisfaction of his superiors apart from the fact that at all material times he had a clear, satisfactory and unblemished service record The latter portion of the statements, as aforesaid, have of course been denied by the answering Respondents in their affidavit-in opposition dated August 22, 1974, (hereinafter referred to as the said affidavit) The Petitioner has also claimed to have received as many as 23 money rewards and 2 other rewards The number of money rewards, as mentioned hereinbefore, have of course been stated by the said Respondents in their said affidavit to be 19 only On or about June 20, 1972, a charge-sheet against the Petitioner for misconduct was issued by the Superintendent of Police (Respondent No. 4) and the terms of the said charge-sheet were as under:
In the year 1965 while you were functioning as Assistant Sub-Inspector of Police at Baranagar Police Station you had been found to have disproportionate assets to the extent of Rs. 3,500 (Rupees Three Thousand Five Hundred only) and this you failed to account for satisfactorily.
In the year 1967 while you were functioning as Asstt. Sub-Inspector of Police at Baranagar Police Station you purchased landed properties worth Rs. 1,000 (Rupees One Thousand only) at village Chakda without taking any permission from your appointing authority and thereby you violated Rule 15(2)(a) of West Bengal Government Servants'' Conduct Rules.
The said charge-sheet is at annex A to the petition and the statement of allegations on which the charges were based are:
(1) During the year 1965, the total emoluments drawn by the officiating Sub-Inspector Bipad Bhanjan Sarkar was Rs. 200 per month approximately He was then attached to Baranagar Police Station as Assistant Sub-Inspector of Police He had large family consisting of 7 children, yet he deposited Rs. 2,100 in the postal account standing in the name of his wife His declaration of assets as stood on January 1, 1965, showed cash of Rs. 1,500 and in subsequent year, he himself showed it as Rs. 5,000 He has no other visible source of income and such glaring increase in assets with such small pay in the large family remains unexplained.
(2) This officer while functioning as Assistant Sub-Inspector of Police at Baranagar in the year 1967 purchased landed properties worth Rs. 1,000 at village Chakda without taking any permission from his appointing authority and thus he violated the provisions as mentioned in Rule 15(2)(a) of the West Bengal Government Servants'' Conduct Rules, 1959 This charge could be disproved if the officer did take permission for the purchase of the landed properties in the year 1967.
The Petitioner on June 24, 1972, filed his reply to the said charge-sheet contending the same to be false, baseless, mala fide and concocted Apart from this, he demanded an open enquiry into the purported charges and also requested the said Superintendent of Police to supply copies of documents likely to be exhibited at the enquiry and allow him to be represented at the enquiry through a counsel He has alleged that the said Superintendent of Police did neither supply any such documents to him nor he was given an Opportunity to be defended by a lawyer in the connected proceedings He also submitted that such refusal of his case being defended by a lawyer was also improper and violative of the principles of natural justice, more so when the investigating officer, who is a Sub-Inspector attached to the Vigilance Department and in fact, had sufficient experience in dealing with legal proceedings, was allowed by the Respondent No. 5, namely the Commissioner, Departmental Enquiry and the Enquiry authority to represent the department Such denial, the Petitioner has also termed to be irrational and arbitrary apart from being in violation of the principles of natural justice. It has been contended by the Petitioner in the facts, as stated Hereinbefore, that without giving him proper opportunities to defend his case, he was served with a notice of enquiry appointing the said Respondent No. 5 as the Enquiry Officer In this matter, the Petitioner referred to Reg. 861(c) of the Police Regulations, Bengal (hereinafter referred to as the said Regulations), which is to the following, effect:
... ... ...
(c) Proceedings against Inspectors and in cases of serious misconduct against officers of and below the rank of Sub-Inspector shall be drawn up by the Superintendent, In other cases, proceedings may be drawn up and evidence recorded by an officer not below the rank of Inspector (excluding Armed Inspectors not so empowered) who shall then submit the record to the Superintendent for perusal, examination and issue of records.
He contended that such initiation was violation of the said Regulations inasmuch as it was obligatory on the part of the said Superintendent of Police to draw up proceedings by himself against the Petitioner In any event, it was submitted that an enquiry against the Police officer, which the Petitioner was, could not be held by any person other than a Police officer and since the Respondent No. 5 was not such an officer or an officer of the Police Force, he had no authority or jurisdiction to hold the purported enquiry against him.
However, there is no denial of the fact that the enquiry in question was started effectively on September 9,1972 It appears that, before initiation of the said enquiry, the Petitioner by letter of December 6,1972, desired to produce (1) Sri S.K. Biswas, M.A., L.L.B., income tax Officer, 40 Strand Road, Calcutta and (2) Sri Kumud Ranjan Biswas, son of late Baikuntha Nath Biswas, Salua, P.S. Chakda, district Nadia, for the purposes of his defence and requested the Enquiry Officer to summon those witnesses for their examination in the proceedings The Petitioner has alleged that the Enquiry Officer of course did not call or issue summons-against those witnesses and such action on his part; he has contended, to be violative of Reg. 861(c) of the said Regulations, which is to; the following effect:
861(c) The person charged shall be required to put in with in a reasonable time a written statement of his defence and to state whether he desires to be heard in person If he states that the does not desire to put in a written statement or to be heard in person, this fact shall be recorded in the proceedings Where the person charged, from whom a written statement is so required, fails to present the same within the time fixed by the enquiring officer, the enquiring officer may record a finding against him or make such orders in relation to the proceedings as he thinks fit.
The Petitioner has further submitted that the Enquiry Officer concerned, not having called those witnesses, further denied reasonable opportunities to him to defend himself and as such, the Petitioner has termed the said enquiry proceedings to be arbitrary, mala fide and also in violation of the principles of natural justice He has further contended that if those witnesses were called, they would have proved convincingly that he received Rs. 2,500 from one Sm. Annapurna Majumdar, one of his relatives, who requested him to keep the same in safe custody and in fact, he had returned the said sum to her subsequently and also that the Petitioner''s younger brother, who at the material time was in the service at the Air Force at Delhi, used to remit money to his wife, which she deposited in a Savings Bank Account. It was also contended by the Petitioner that the evidence of the said Sri S.K. Biswas, who holds a responsible Central Government post as income tax Officer, if allowed to be adduced, could never have been lightly brushed aside by the Enquiry Officer He also stated that the said Sri Biswas was his cousin and as such, well-acquainted with his family affairs and thus he was competent to depose on his behalf The Petitioner has further stated that he had no idea or any intimation beforehand that those witnesses would not be called at the enquiry and as such, he has been highly prejudiced in his defence for want of necessary summons on them requiring thereby their attendance in the enquiry.
The Enquiry Officer, however, by his report in annex D, made in proceeding No. 40/72, found the Petitioner guilty of both the charges, holding inter alia amongst others that the Petitioner could not establish or explain the increase of assets and furthermore, he could not also establish the source wherefrom the money for the purchase of the landed properties at Chakda came.
The Petitioner not only contended the said enquiry to be defectively continued and held but stated that the appointment of the Enquiry Officer was also void for reasons as stated hereinbefore and the findings arrived at by him were perverse inasmuch as they were based on inadmissible evidence He further contended that at the said enquiry evidence was tendered which was not duly proved and although a list of witnesses accompanying the charge-sheet wherein it was stated that a competent witness on behalf of the prosecution would be examined to prove the declaration of assets and pay statement of the Petitioner, in fact the prosecution did not produce any such competent witness and that vitiated the enquiry The Petitioner also contended the findings of the Enquiry Officer to be perverse as the same was based on or arrived at on the basis of the sole deposition of the investigating officer Sri Binoy Sarkar, whose competence he has also challenged The Petitioner has also made a charge that his wife Sm. Charubala Sarkar, who could have testified the veracity of his statements in respect of the postal account in her name and on which the prosecution duly relied, was not produced or called and that has also vitiated the entire proceedings It was also submitted by the Petitioner that the Reserve office, which is the Branch office under the said Superintendent of Police and concerned mainly with matters relating to discipline and general administration of the whole affairs of each district and no officer from the said Reserve office having been produced before the enquiry for the purpose of getting the correct datas and figures about his pay and emoluments, the charges as levelled against him on that account should not also have been accepted to have been proved and established by the Enquiry Officer and more so when there is a note by the Reserve office to the following effect:
that the original pay bill showing deductions and drawals of actual allowance in respect of the officer Sub-Inspector B.B. Sarkar of 24-Parganas during the year 1965 cannot be traced out as yet and as such, it has not been possible to furnish particulars concerning the pay bill just now.
The Petitioner has stated that on the basis of the perverse findings as aforesaid by the Enquiry Officer, the said Superintendent of Police passed a provisional final order of dismissal dated February 31, 1973, against him He has contended such action to be void as the same was passed without considering his previous character of service and without granting him a personal hearing, which he has also contended to be obligatory on the part of the said Superintendent of Police in terms of the provision of Reg. 861(e) of the said Regulations, which is to the following effect:
861(e). After the, evidence of the witnesses and further statement, if any in defence of the person charged have been placed on record, the officer conducting the enquiry shall in, writing.
(i) discuss separately each charge,
(ii) arrive at a finding on each charge, and
(iii)make an order or recommend an order to the authority empowered to pass an order When the Enquiring Officer belongs to a department other than the Police, the proceedings shall always be forwarded to the parent district unit for final order.
Note : In case in which the Enquiring Officer does not pass the final order and recommends an order to the authority empowered to pass an order, the person charged shall be furnished with a copy of Enquiring Officer''s finding and/or the recommendations of the forwarding authority, so that, he may at the personal hearing be in a position to object to or refute, anything therein stated which, in his opinion, is incorrect.
It was also submitted by the Petitioner that inasmuch as the procedure for promotion of the Assistant Sub-Inspector of Police to the Sub-Inspector of Police is to the following effect:
Names of Assistant Sub-Inspectors of promotion shall be submitted by the Superintendent of Police to the Range Deputy Inspector-General The final selection shall be made by a Board consisting of Range Deputy Inspector-General and two Superintendents of Police of his Range selected by him. A list of officers selected shall be prepared by the Board and forwarded to the Superintendents of Police of the districts concerned Who shall promote them to the rank of Sub-Inspector and issue the necessary notifications.
The said Superintendent of Police had no power to make appointments at his discretion and therefore, he was incompetent to pass the purported order of dismissal against him The Petitioner, however, showed cause against the said order by his representation on April 10, 1973.
Thereafter, by an order dated Julie 26, 1973, issued by the said Superintendent of Police, the Petitioner was dismissed from service with effect from June 27, 1973, after consideration of his reply The Petitioner has contended that the said order was issued by the said Superintendent of Police without considering the defects in the purported enquiry and the points, raised by him. He has further alleged that, from the tenor of the proceedings, it is clear and there is no room for the second opinion that the said Superintendent of Police was bent upon not to consider the points and defects of the prosecution, which were duly taken, relied on and pointed out by him The Petitioner has further alleged that at no stages in the purported proceedings or before passing the purported Order his service book was produced or consulted in any manner and as such, the provisions of Regs. 920 and 921 of the said Regulations, which are to the following effect:
920 : (a) Service books shall be kept in Bengal Form No. 912 and B.P. Form No. 179 should be attached thereto for all subordinate Police officers of and above the rank of Sub-Inspector The service book shall be purchased from the local treasury at three annas a copy, the cost being realized from the officer for whom the book is supplied.
(b) Service rolls shall be kept in B P Form No. 180 or all Police officers below the rank of Sub-Inspector (viz. Assistant Sub-Inspector, head constables, naiks and constables) and crews of steam launches and boats and shall be supplied by the Forms Department.
(c) Service books Or rolls may also be maintained for non-gazetted servants of the Crown holding temporary or officiating posts, whose service is transferable and who are likely to he made permanent, in order that a systematic record of their service may be maintained for the purpose of calculating their leave under S.R. 275 of the Fundamental Rules and Rule 215 of the Bengal Service Rules and also for determining their pay and seniority at the time of confirmation
(d) Service books or rolls shall remain in the custody of the Armed Inspector or the Reserve Office Inspector where one exists under lock and key and he will be responsible that they are properly kept and upto date.
(e) Service rolls shall be arranged in files of 100 books.
(f) Service books or rolls of 7 each rank shall be separately numbered The number so given shall indicate in what file the the service book or roll is to be found and the case of a head constable, naik and constable shall be the same as the brass number which he wears as the district number Service book or roll of persons no longer in the force shall be, removed as soon as a casualty occurs and filed separately.
(g) Service rolls in Bengal Form No. 2509 shall be maintained for all inferior servants No service record need be maintained for the menials paid from the contract contingent grant (See also Section Rs. 244-246 and 256 of the Fundamental Rules and Appendix 8 (Part IV) of the Bengal Service Rules).
921 : (a) Every step in the official life of a servant of the Crown must be recorded in his service book or roll and every period of suspension from employment and every other interruption of service must be noted, with full details of its duration, in any entry made across the page of the service book or roll and must be attested by the attesting officer It is the duty of the attesting officer to see that such entries are promptly made If a servant of the Crown is reduced to a lower substantive post, the reason of the reduction must be briefly shown An officer''s service book or roll should be consulted when any question of promotion, transfer or punishment arises.
(b) At a fixed time early in the year the service books or rolls should be taken up for verification by the head of the office, who after satisfying himself that the services of the servant of the Crown concerned are correctly recorded in each service book or roll shall record in it a certificate in the following form over his signature:
Service verified upto (date) from (the record from which the verification is made)
The head of the office in recording the annual certificate of verification should, in the case of any portion of service that cannot be verified from office records, distinctly state that for the excepted periods (naming them) a statement in writing by the servant of the Crown, as well as a record of the evidence of his contemporaries, is attached to the book.
(c) All rewards, all convictions in a criminal Court and all major and minor punishments shall be entered in the service book, or roll Brief details showing the reason for and the amount of punishment or reward shall be noted and a reference shall be made in appropriate columns to the number and year of the entry in the district order book When service books or rolls are sent to other districts, they shall be accompanied by copies of all district orders relating to rewards and punishments.
(d) No particulars are required as to the possession of landed property in the case of constables or the members of launch or boat crews In the case of all other officers, the entry shall be brought upto date annually by the 15th of April of each year It is incumbent on every Police officer to give information of any property acquired either by himself or his wife, either in his own name or in the names of children, relatives, servants or dependants or otherwise benami.
(e) Details of adult male relatives in the district in which an officer is employed shall be entered in the space provided for the purpose and shall be revised each year after enquiries from the officers concerned.
(f) In the case of officers re-enlisted, or who have served in some other department prior to joining the Police, details regarding their previous service shall be carefully ascertained and noted in the service book or roll A reference shall also be made, when necessary, to any orders condoning any deficiency in height or chest measurement, or sanctioning re-enlistment.
(g) The nature of leave granted shall be specified in words and not merely by a reference to the leave rules Leave granted need not be entered until it is actually taken.
(h) In the case of Inspectors, Sergeants and Sub-Inspectors, an entry shall be made in red ink whenever they draw travelling allowance for journeys to attend an examination in language or law and procedure.
(i) In the case of recruits an entry shall be made in their service rolls to show whether they have been supplied with a durrie.
(j) The entries in the service rolls of constables, head constables and Assistant Sub-Inspectors relating to their literary qualifications shall be made after careful enquiry No officer shall be shown as literate in any language unless he can read and write names only shall not be considered sufficient for the purpose.
(k) It is the duty of every servant of the Crown to see that his service book or roll is properly maintained in order that there may be no difficulty in verifying his service for pension. The head of the office should, therefore, permit a servant of the Crown to examine his service book or roll should he at any time desire to do so,
(l) Every entry made in a service book or roll shall be signed in full by the Superintendent, Assistant or Deputy Superintendent or the Office Inspector The Superintendent must see that the book or roll contains no erasure or overwriting, all corrections being neatly made and properly attested.
were complied with and in fact, they have been violated by the officer concerned From such determination, there is no doubt that the Petitioner preferred an appeal to the Deputy Inspector-General of Police, the Respondent No. 3, who on September 14, 1973, rejected the appeal holding, inter alia, amongst others that he did not find any reasonable ground to interfere with the final order passed by the Superintendent of Police This order, the Petitioner also submitted, to have been passed without considering the points as were raised by him in the appeal and furthermore, he submitted that such suo motu rejection of the appeal, without hearing him, was invalid He further submitted that such appeal was rejected on no valid grounds and without considering his service record. In view of that, the Petitioner contended that the said Respondent No. 3 did not act in accordance with the provisions of Reg. 883 of the said Regulations, which is to the following effect:
883 : Petitions of appeal or for revision shall be presented to the officer, against whose order the appeal is preferred, within ''37 days of the date of receipt of the order by the Petitioner Every petition of appeal or for revision shall be accompanied '' by certified copies of the charges made, of the written statement of the defence, if any and of the order appealed against. Such officer, when transmitting such petition to the appellate authority, shall send the proceedings; service book Or roll and confidential report book of the Appellant together with a covering letter Only relevant papers shall be sent and they shall be properly flagged for reference
Note : The above procedure shall be followed, so far as may be, in submitting original proceedings for orders of a higher authority.
Apart from their defence, as aforesaid, the Respondents contended that the records do not disclose that the Petitioner ever requested for supply of copies of the documents likely to be exhibited in the enquiry and in fact, they have contended that inspection of relevant documents was given to him and in fact, he duly availed of the opportunities that were offered It was also contended that the enquiry was held on due compliance with the required and necessary formalities and in fact, there was no violation of principles of natural justice The Respondents also contended that the charges against the Petitioner being simple in nature no assistance of a counsel was necessary and in that view of the matter there was or has been no violation of either the principles of natural justice or of the Regulations It was also contended by the Respondents that by an order of the Governor of West Bengal, being No. 215-PLS dated May 9, 1972, the requirements of Reg. 861(c) were relaxed and on such relaxation the Respondent No. 5 was duly appointed as the Enquiry Officer Such relaxation, the Respondents have submitted, is permissible in view of Section 2A of the West Bengal Amendment of the Police Act, 1961, which is to the following effect:
2A : Power of the State Government to make Rules:
(a) Subject to the provision of this Act, the State Government may make rules relating to the recruitment, condition of service, disciplinary proceedings and appointments in respect of the members of the subordinate rank of the Police force.
(b) Any rules, orders or regulations made before the commencement of the Police (West Bengal Amendment) Act, 1963, by any authority in respect of the aforesaid matter shall, in so far as they are not inconsistent with the provisions of the Act, be deemed to have been validly made and shall continue in force until other provisions are made in this behalf.
The Respondents further denied that there was violation of any alleged principle of natural justice for their action in not issuing summons to the persons as mentioned by the Petitioner and more so, when he himself produced and examined D.W. 1 Sri Kumud Biswas on December 18, 1972 and D.W. 2 Sri Nalini Ranjan Sarkar on January 4, 1973, without any summons and failed to produce his cousin the said Sri S.K. Biswas in spite of the fact that two dates were given to him by the Enquiry Officer for the said purpose It, was submitted that when the Petitioner could produce the witnesses as mentioned hereinbefore without summons,'' then he could have easily produced his cousin the said Sri Biswas and his wife without any summons being issued Such objections of the Petitioner have been termed as afterthoughts and not bona fide in view of his relationship with those witnesses and it has been contended that if the Petitioner was serious or he really intended the same, he could have produced those witnesses of his own In any event, it was stated that there was no need or any necessity to call the wife of the Petitioner to prove the postal account (Ex 3) since the admissibility of the documents relied on were not challenged by the Petitioner and more so, when he himself certified the correctness of the copy of the account which was prepared by the investigating officer from the original Pass Book The allegations of the Petitioner about the defective nature and character of the enquiry were categorically denied It was further contended that there was also no basis in the allegations of the Petitioner that his salary was not duly proved since he himself did not challenge the correctness of the same The Respondents also contended that the action in the instant case was duly taken by an officer who was appropriately authorised These apart, the Respondents contended that the impugned orders were duly made and passed on proper consideration of the documents and records and that too after affording appropriate opportunities to the Petitioner.
At the hearing of the Rule, Mr. Gupta, appearing for the Petitioner, apart from submitting the points as mentioned hereinbefore, also referred to the said Section 2A of the Police Act, 1961 and submitted that the said provision had nothing to do with the making of rules He submitted that the same was only a rule-making power and therefore, in the facts and circumstances of this case there was a violation of Reg. 861(c) of the said Regulations Such submission was made by Mr. Gupta as the Respondents through their learned Advocate Mr. Rai Chowdhury relied on the said Section 2A of the Police Act It was also submitted by Mr. Gupta that Reg. 861(c) of the said Regulations required and that too in terms of the principles of natural justice that reasons should be recorded and no reasons in the instant case having been recorded or disclosed, the entire proceeding had been vitiated He also submitted that no one had a right to pre-judge evidence and that fact having admittedly been done in the instant case, the entire proceeding was also vitiated It was also submitted by Mr. Gupta that no relevant or cogent ground having been mentioned for refusing to examine the wife of the Petitioner, when her evidence was relevant and in view of the refusal to summon her and his cousin the income tax Officer, it should be held that the Enquiry Officer proceeded in a most unauthorised and perfunctory manner Mr. Gupta, relying on the observations of the Supreme Court in the case of Union of India v. T.R. Verma AIR S.C. 882 to the following effect,
The Evidence Act has no application to enquiries conducted by the Tribunals, even though they may be judicial in character The law requires that such Tribunal should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be rejected on that 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 Plaintiff 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 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,
submitted that the right to adduce evidence is an inherent right under Article 311 of the Constitution of India Apart from the above case, Mr. Gupta also relied on the case of The Provincial Transport Service Vs. State Industrial Court, wherein it has been observed that where a proper enquiry is not held against an employee and the management dismisses him on the basis of the findings in the said enquiry, the order as passed should be set aside.
15 Mr. Gupta further submitted that the production of the service records and the pay bills of the Petitioner was not effected and as such they could not be taken into consideration in the enquiry although the same was obligatory on the part of the Respondents under the said Regulations as quoted hereinbefore He then referred to the annexs ''F'', ''G'' and ''H'' for the purpose of establishing his challenge as aforesaid, as according to him, the said records do not contain any mention of the service records of the Petitioner or consideration thereof He also submitted with reference to Regs. 861(a) and (e)(iii), 856 and 883 that in all the stages in the proceedings, starting from the initiation upto the appellate stage, past service records, as incorporated in the service book maintained under Reg. 921, will have to be considered and on consideration of them in terms of Reg. 858(b) which is to the following effect:
... ... ...
(b) Every order of punishment inflicted by officers referred to in Sub-clause (6) of Clause (a) shall be put up by the Reserve Officer with the delinquent''s service book to the Superintendent who shall decide whether, in view of the man''s previous character, proceedings should be drawn up against him or whether the minor punishment awarded to him requires modification.
Note : An officer cannot, be dismissed or removed from service by an authority subordinate to the appointing authority.
Prior to 1st March, 1936, Sergeants and Sub-Inspectors were appointed by the Inspector-General and Assistant Sub-Inspectors were appointed by the Deputy Inspectors-General Such officers, therefore, cannot be dismissed or removed from service, the authorities referred to in this Regulation, but officers appointed substantively to those ranks after 1st March, 1936, may be so dismissed or removed from service.
Proceedings against Sub-Inspectors appointed prior to 1st March, 1936, containing recommendations of dismissal or removal from the service should be forwarded by the Superintendent direct to the Inspector-General for orders, the punishment in question could only be inflicted.
Mr. Gupta further submitted that, in view of the above, the officer or officers, who made entries in the service records of the Petitioner, were required to be produced and examined when the impugned penal action had been taken against him and such admitted non-production of these officers or the records in the enquiry also vitiated the entire proceedings In support of his contentions, Mr. Gupta relied on the case of The State of Punjab Vs. Dewan Chuni Lal, , where it had been observed that when the charges against the delinquent was based on inefficiency and dishonesty coupled with adverse reports of superior officers and such officer, though available was not examined to enable the delinquent to cross-examine them, would mean or amount to denial of reasonable opportunity of showing cause against the proposed action Apart from the above, relying on Reg. 861 as mentioned hereinbefore, Mr. Gupta submitted that there was also violation of principles of natural justice as the documents asked for were neither produced nor furnished, in addition to his other branch of submissions on reliance to Reg. 861(c) as quoted hereinbefore and to effect that such refusal to grant permission to engage a lawyer was also unfair and constituted denial of fair and reasonable opportunities to the Petitioner to defend his case duly and properly Mr. Gupta further submitted that since admittedly the department was being represented by a trained prosecutor, the Petitioner who was a layman, without any knowledge of law and its application and more so, when charges were grave and serious, should have been given the opportunity as was asked for, unless, such prayer was against public policy or the refusal was on that account and he submitted that such action had resulted in violation of principles of natural justice and refusal to afford reasonable opportunities to the Petitioner in the proceedings In support of his contentions, Mr. Gupta first relied on the case in the Special Bench judgment of this Court in the case of Nripendra Nath Bagchi Vs. Chief Secretary, Govt. of West Bengal, where it has been observed by the majority decision that if on particular facts and complexity of a case, assistance of a lawyer is regarded as a part of reasonable opportunity, then denial of such an opportunity is violation alike of the constitutional protection under Article 311(2) of the Constitution of India Such view was taken because of the volume of depositions, number of witnesses and documents dealt with in the departmental proceedings and particularly so in view of the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and more particularly when the officer concerned was denied of the opportunities of engaging a lawyer even for the purpose of making notices Reliance was next placed on the case of C.K. Rajanandam v. Director of Postal Services Andhra Pradesh and Anr. 1972 Lab. I.C. 89 where it has been held that unless there are consideration of public policy overriding the claims of natural justice in any particular case the assistance of counsel should be considered as necessary if a person is to have fair opportunity to meet the case against him Mr. Gupta next relied on the case of C.L. Subramaniam Vs. Collector of Customs, Cochin, , a case where violation of Rule 15(5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1967 and consequently denial of reasonable opportunities under Article 311(2) were alleged and it had been held that Rule 15 was a mandatory Rule That Rule regulates the guarantee given to Government servants under Article 311, who by and large have no legal training Moreover, when a man is charged with the breach of a Rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be That is why Rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the Rule by another Government servant or in appropriate cases by a legal practitioner It has further been held that the breach of the guarantee or reasonable opportunity vitiates the enquiry Mr. Gupta also submits that even if Reg. 861(c) is against the granting of permission to be represented by a lawyer, that cannot be an absolute bar He submitted that even in cases like the one under consideration, the opportunities as prayed for should have been given Mr. Gupta also referred to a Bench decision of this Court in the case of Director-General of Posts and Telegraphs if Ors. v. N.G. Majumdar 78 C.W.N. 265, which was also a case where the said Rule 15(5) came up for consideration and A.K. Sinha J. speaking for the Court observed amongst others that under the said Rule 15(5) it was obligatory on the Disciplinary Authority (a) to permit a Government servant to be represented by a legal practitioner if such authority had nominated a legal practitioner to represent the Government''s case or (b) even if no legal practitioner had been nominated on behalf of the Government to consider the facts and circumstances of the particular case and decide whether the assistance of a legal practitioner was necessary on the facts and circumstances before he could refuse such permission In fact, Mr. Gupta submitted in short that reasonable opportunity was and should be the necessary test and criteria.
These apart, Mr. Gupta relying on Reg. 861(c) contended that since no oral evidence was admittedly recorded and the order of dismissal, in the facts of the case, was not passed by the appointing authority, the action as taken was void and irregular He, in fact, contended that since Sub-Inspectors, one which the Petitioner was, are appointed by a committee consisting of the Deputy Inspector-General and others, the Superintendent of Police, the Respondent No. 4, had no authority or competence to determine and terminate his services He, as stated hereinbefore, has also submitted that the orders as made, not being speaking orders, cannot be given effect to or acted upon He further submitted that in terms of note to Reg. 861(e) personal hearing was to be given by the Disciplinary Authority and such hearing not having been given by the said authority, the entire proceeding was further vitiated.
Apart from contending that in view of the aforesaid West Bengal amendment, viz Section 2A of the Police Act, relaxation was duly made and followed by the Governor, being the appointing authority under Reg. 861, on the question of affording opportunities for the appointment of a counsel, Mr. Rai Chowdhury submitted that previous to the determination in the case of Nripendra Nath Bagchi v. Chief Secretary Government of West Bengal (Supra), the law on the point was uniform and in fact, the said determination set the ball in motion on the question of opportunity to appoint lawyers in departmental proceedings He, however, submitted that the tests and requirements on such exigencies would differ and they would be different in the facts and circumstances of the case It was submitted that charges in the said determination were serious and since they are not so in this case, the said determination would have no application In short, Mr. Rai Chowdhury submitted that the complexity of each case would have to be considered before making a determination In support of his contentions as aforesaid, Mr. Rai Chowdhury relied on the case of Jagmohandas Jagjivandas Mody Vs. State of Bombay (Now Gujarat State), where it has been observed that reasonable opportunity of showing cause does not necessarily imply permission to engage a lawyer and the question of granting such permission would depend on the facts and circumstances of each case For the proposition that there would ordinarily be no violation, if permission to engage a lawyer is refused, Mr. Rai Chowdhury also relied on the case of Manuaru Veeraswami Vs. The Provincial Government of Madras and Another, , which is a case u/s 240(3) of the Government of India Act, 1935 and wherein it has been held that if the rights of a Government servant are created by a Statute or by Rule, the extent of his rights must be gathered only from a reading of those Statutes or Rules; and he cannot have any right apart from those Rules or Statutes There is, therefore, no common law right in a Government servant to be represented by counsel in the enquiry against him Reliance is also placed on the case of T. Rajagopala Aiyanagar Vs. The Collector of Salt Revenue, , a case, again, under the provisions of the Government of India Act, 1935 and Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, wherein it has been held amongst others, on consideration of the words of the said Rules, f that no Government servant, in an enquiry under the said Rule, has any right to appear by counsel In addition to the above, Mr. Rai Chowdhury placed the case of Krishna Chandra Tandon Vs. The Union of India (UOI), where also it has been observed that if the delinquent is not entitled under the rules to the assistance of an Advocate at the enquiry and the enquiry is such that a trained lawyer can hardly help him in his defence, the refusal of the opportunity of engaging a lawyer would not amount to the denial of reasonable opportunity to defend the case. In that case, it has further been held that there is no set form for disciplinary enquiries But the Enquiry Officer is not entitled to make a private enquiry behind the back of the delinquent on the charges as framed and to arrive at his finding on the basis thereof It was submitted by Mr. Rai Chowdhury that since there was no legal complexity in the instant case, so there was no need or any occasion for the assistance of a lawyer and alternatively, he argued that in any event due opportunities were given to the Petitioner It was further submitted that there had been no mala fide use of power in refusing to grant permission to the Petitioner to be assisted by a lawyer and in fact, such charge had neither been duly made nor established Mr. Rai Chowdhury has contended that since there is no provision in the Police Regulations, Bengal, for the lawyer''s assistance or any form is prescribed, it must also be held that there was or has been no violation in the enquiry on that account.
On the question of the enquiry Mr. Rai Chowdhury submitted that the same was not only duly held, but all opportunities in fact were afforded to the Petitioner in defending his case In fact, he produced the records and referred to the fact that notice on Sri S.K. Biswas was duly sent on December 18, 1972 and submitted that when the said intimation was duly sent to the said Sri Biswas at his last known or given address, the presumption wound be in favour of service of the same and more particularly, when no contrary evidence was available In any event, it was submitted alternatively by Mr. Rai Chowdhury that when the said Sri Biswas had no direct connection with the happenings or affairs in the instant case, service of summons on him was redundant as in view of the above, he was not competent to prove anything In fact, he contended that the said Sri Biswas had nothing to prove for substantiating the defence as was made out or put forward by the Petitioner Relying on the determination in the case'' of Government of Andhra Pradesh v. Mohammad Mominuddin AIR 1964 A.P. 906 it was submitted by Mr. Rai Chowdhury that there had not only been no violation of principles of natural justice in the instant case, but the Petitioner had also no right to put forward the challenges as made be cause Article 311 gives a two fold protection to persons who come within that Article, viz (1) against dismissal or removal by an authority subordinate to that by which they were appointed and (2) against the dismissal, removal, or reduction in rank without giving them a reasonable opportunity to show cause against the action proposed to be taken in regard to them Article 311 has improved the position of Civil Servants inasmuch as the guarantee under it extends even to a case of removal The position has been considerably changed with the advent of the Constitution Whenever there is a breach of a restriction imposed by the Statute (example, the safeguards to Civil Servants embodied in the Constitution) by the Government or the Crown, the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court Mr. Rat Chowdhury relying on the principles enunciated in the case of Jagadish Prasad Saxena v. The State of Madhya Bharat AIR 1961 S.C. 1070 on the question of reasonable opportunity, submitted that in the facts of the present case there was no violation of any of such principles at all That apart, on the question of natural justice and the form of enquiry, he relied on the cases of Probodh Chandra Ghose v. Executive Engineer AIR 1955 Cal. 976 and Baisnah Charan Das v. State of Orissa AIR 1957 Oris. 70.
It was also submitted by Mr. Rai Chowdhury that the points as are sought to be argued by the Petitioner, being new and not either taken earlier or in his defence, should not be allowed to be agitated now and in this proceedings He further contended that the objections as to the competency of the proceedings or on the basis of the other alleged defects cannot or should not be allowed to be raised in a writ proceeding for the first time Such submission of Mr. Rai Chowdhury has relation or reference mainly to the arguments of the Petitioner on the question of the concerned Regulations Mr. Rai Chowdhury of course contended otherwise as according to him there was no clash between the Regulations in question and the findings arrived at in the connected proceedings It is also submitted by him relying on the determinations in the cases of The High Commissioner for India v. I.M. Lal AIR 1949 P.C. 121 and A.R.S. Choudhury Vs. The Union of India (UOI) and Others, that no interference in the instant case should be made as the law and procedure applicable in a judicial proceeding are not applicable in a departmental enquiry, more so when the same is not a judicial proceeding and all the more when in the instant case there is or has been no effective challenge on the basis of arbitrariness of the charges or the proceedings relating thereto or arising therefrom Lastly, on the question of the enquiry and application of the principles of natural justice in the same, Mr. Rai Chowdhury relied on the case of State of Uttar Pradesh Vs. Om Prakash Gupta, where it has been observed that--
It is true that an enquiry u/s 311(2) of the Constitution must be conducted in accordance with the principles of natural justice Those principles are not embodied principles What principle of natural justice should be applied in a particular case depends on the facts and circumstances of that case All that the Courts have to see is whether the non-observance of any of those principles in a given case is likely to have resulted in deflecting the course of justice.
and then to the case of State of Andhra Pradesh and Others Vs. Chitra Venkata Rao, where it has been held that--
The High Court is not a Court of Appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charges, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching at a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction The Court exercises it not as an appellate Court The findings of fact reached by an inferior Court or Tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings An error of law, which is apparent on the face of the record, can be corrected by a writ but not an error of fact however grave it may appear to be In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding Again, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led On a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.
and contended that non-observance of the formalities, even if they are admitted, would not make the enquiry illegal and no interference in the instant case and in this jurisdiction should be made in view of the limited or restricted powers of the Court in matters like these In any event, he submitted further that the totality of the effect in a departmental proceeding will have to be considered and repeated that non-observance of some or certain formalities will not make the enquiry void and more so in case of minor irregularities t if any It was further submitted by him that since in the instant case, charges of mala fide, although alleged, have not been established, so following the determinations in the case of Province of Bombay Vs. Madhukar Ganpat Nerlekar, which incidentally is a, ease under the Bombay District Police Act (IV of 1890) and where the following observation has been made--
A domestic Tribunal must act honestly and with good faith and must give the delinquent a chance o� explanation and defence If its rules postulate an enquiry, the delinquent must have a reasonable opportunity of being heard and of correcting and contradicting a relevant statement prejudicial to his view The expression ''rules of natural justice'' has been the subject of consideration in many cases and it has been held that so long as a domestic Tribunal acts honestly, in good faith, with a sense of responsibility and in consonance with its own rules, its decision cannot be questioned on ground of breach of rules of natural justice, for the reason that in that case the rules of natural justice will be deemed to have been observed.
It should be held that the Petitioner has no cause for maintaining the petition It was further argued by Mr. Rai Chowdhury that the discretion in the matter of punishment is unfettered in the punishing authority and the punishment for any misdemeanor, when the same is established or imposition of any lesser punishment, is not illegal or irregular In support of the above contentions reliance was placed on the case of A.N. D''silva Vs. Union of India (UOI), and it was also submitted that when the guilt was established, even through an enquiry with minor procedural irregularities, no interference should be made in this writ jurisdiction.
To meet the arguments of Mr. Gupta on the point of ''speaking orders'', Mr. Rai Chowdhury placed the concerned orders in annexs F, G and H and accepted the proposition that, while dealing with and determining the services of an employee, speaking orders should be passed because such determinations might be subject to review by higher authorities But placing the orders as mentioned hereinbefore, it was submitted by him that in this case there had, in fact, been no deviation from the said rule Mr. Rai Chowdhury further submits that if the reasons are available and can be found out on a complete and total reading of the impugned orders, then the determination in the case of Bharat Raja Vs. The Union of India (UOI) and Others, will not be applicable and more so, when in that case the order of dismissal was passed practically by using the word ''rejected'' only.
22 Mr. Rai Chowdhury thereafter placed the relevant Regulations as quoted hereinbefore and submitted that, in the instant case, there was no violation of any one of them or if at all such violation was negligible He further submitted that those Regulations or any one of them are not in conflict He also submitted that the service book of the Petitioner was not relied upon at the enquiry Further, relying on the principles enunciated in the case of State of Mysore Vs. K. Manche Gowda, . The submitted that there was or has been no infraction from or deviation'' of the rules or procedure.
Lastly, relying on the case of D.L.F. Housing Construction (P) Ltd. Vs. Delhi Municipal Corpn. and Others, . Mr. Rai Chowdhury submits that since the basic facts in this case are in dispute and it involves the determination of complicated questions of law and fact depending on evidence, the writ Court is not the proper forum for seeking the necessary relief and as such, the Petitioner should have field a suit and this Court in this jurisdiction should not interfere.
Thus, on the pleadings of the parties and the arguments as mentioned hereinbefore, first thing which would be required to be considered, whether the proceedings under Reg. 860(c) were duly initiated The Respondents have admitted that such proceedings were initiated under the authority or the power to relax in terms of Section 2A of the West Bengal Amendment of the Police Act, 1961, which empowers the State Government to frame rules relating to recruitments, conditions of service, disciplinary proceedings and appointments in respect of the members of the subordinate rank of the Police Force and Sub-section (b) of the same makes it further clear that any rules, orders or regulations made before the commencement of the said Amending Act by any authority in respect of those matters, snail in so tar as they are not inconsistent with the provisions of the Act, be deemed to have been validity made, the said Ponce Act is an Act for the regulation of Ponce and was incorporated as it was felt expedient to reorganise the Police and to make it a more ethcient instrument for the prevention and detection of crime and the regulations concerned in this case, viz Police Regulations, Bengal, winch prescribe the appointments and conditions of service of Deputy Superintendents of Police and the members of the subordinate ranks of the Bengal Police were initially made pursuant to the notifications issued by the Governor in exercise of powers conferred by Section 241(2)(b) of the Government of India Act, 1935, read with Section 2 of the Police Act (V of 1861) and Section 243 of the Government of India Act, 1935 and the disciplinary regulations for members of the subordinate staff were incorporated by Notification No. 9469-P1 by the Governor in exercise of powers conferred by Section 7 of the said Police Act read with Section 243 of the Government of India Act as aforesaid Thus, the said Section 2A empowers the State Government to frame rules in certain specific and specified cases and so relaxation as has been done in the instant case was possible under the said section Therefore, the initiation of the proceedings on the relaxation of Reg. 861(c) as has been done in terms of Section 2A as aforesaid, was permissible the Petitioner in the instant case was thus dealt with by an authority duly authorised and competent and he was afforded opportunities So, following the determinations in the case of AIR 1944 72 (Federal Court) , it must be held that the proceedings in the instant case was not unauthorised and the same was completed duly Thus, I hold that the initiation of the proceedings in the instant case was proper and regular It, further, appears that there was or has been no violation of Reg. 861(c) since the Petitioner was afforded reasonable opportunities to substantiate his case On receipt of the charge-sheet (annex A), the Petitioner by his reply dated June 24, 1972, (annex B) pleaded his innocence and prayed for an open enquiry apart from asking for copies of the relevant documents and liberty to have his case conducted by a lawyer as, according to him, the charges were serious He, as appears from his representation dated December 6,1972, addressed to the Enquiry Officer (annex CI), submitted his list of witnesses and prayed for summons to be issued on them, without of course mentioning why the issue of such summons was necessary In fact, in his said representation, the Petitioner has not mentioned that without the service of necessary summons it would not be possible for the witnesses mentioned therein to appear and depose in his favour or to the facts The Petitioner, in the said representation, has just mentioned that the issue of Such summons on those witnesses were necessary for ends of justice it; is an admitted fact that one of the witnesses, viz Kumud Behari Biswas described as Kumud Ranjan Biswas in annex CI did appear and he deposed in the proceedings even without the necessary summons and although the issue of summons on the wife of the Petitioner, viz Sm. Charubala Sarkar, was not asked for in the said representation, yet at the hearing of the rule, such refusal was sought to be agitated In my view, there is nothing to find that the assessment of the available evidence, as has been done by the Enquiry Officer, was either illegal or irregular and improper There is also no basis for the Petitioner''s allegation that the principles of natural justice has been violated or the charges have not been brought home against him for non-production of the originals of the pay bills I am of the view that principles of natural justice, as alleged, have not been violated in the instant case by not affording the Petitioner reasonable facilities to lead evidence as alleged through his wife and his cousin Sri S.K. Biswas So far the Said Sri Biswas is concerned, it is an admitted fact that the Petitioner was given adjournments more than once to produce him and notice was duly sent to the said Sri Biswas''s last known address When the notice has been sent in the above manner and there is no contrary evidence available, it must be presumed that the same duly reached the addressee So far his wife is concerned, there was no difficulty for the Petitioner to produce her in support of his defence, if he had really liked or intended to have her evidence and for such failure on the part of the Petitioner, it should not be presumed that the Petitioner was not afforded reasonable opportunities in the enquiry and more so when there was no evidence to show that he had no control over her. The same analogy also applies in the case of the said Sri Biswas since he was also closely related to the Petitioner and in fact, there could not have been any difficulty at all in having the said Sri Biswas produced by the Petitioner and particularly, when there was no evidence to the effect that without a summons it was not possible rather it was difficult for the said Sri Biswas to depose in the proceedings In any event, I am of the view and that too on consideration of the relevant records and the contentions as raised, that the non-production of those two witnesses has not materially affected the proceedings It may also be mentioned that apart from the said Sri Kumud Behari Biswas, the Petitioner, led evidence through Sri Nalini Ranjan Sarkar and the evidence as produced by him has been duly considered The other violation of principles of natural justice, viz refusing the Petitioner to have the assistance of a lawyer would be considered hereafter.
In view of the fact that the Respondents have made it categorically clear that the past service records of the Petitioner have not been taken into consideration in inflicting the punishment, I think and that too following the determinations in the case of State of Mysore v. K Manche Gowda (Supra) there has neither been any violation of principles of natural justice nor the enquiry proceeding has been vitiated for that I also find that the submissions of Mr. Gupta on Regs. 920 arid 921 have ho force at all and taking the totality of the evidence and records, it cannot also be held that the provisions of Reg. 861(e) have not been complied with and more so when from a perusal of the original records, which were produced at the hearing of the Rule, it appears that the Enquiry Officer has duly recorded them and he has made his report in annex. U after due compliance with the provisions of the said Regulation In fact, there has been due compliance with the said Regulation. It must also be mentioned that the point regarding non-compliance with Regs. 920 and 921 has been effectively made for the first time in this proceeding; and as such, Mr. Rai Chowdhury was justified in his submissions that those submissions should not be looked into or considered now as the relevant facts were not before the enquiry proceedings and no determination could possibly be made on them.
On the arguments as advanced by Mr. Guota for non-compliance with the provisions of Reg. 883 I find that there Is little substance in the same Admittedly, the impugned order of termination in the instant case, on consideration of the Petitioner''s reply to the second show cause notice, was made on Tune 20 1972 (annex G) and the date when the said order was received by the Petitioner is not available in this proceeding But it appears that the Petitioner has alleged to have preferred an appeal under Reg. 882 on July 23 1973. The Petitioner has neither annexed nor produced the said memorandum of appeal, but the one which was produced by, the Respondents showed the date of presentation of the appeal as July 5, 1973 and on July 23, 1973, he had filed further and additional grounds to the same There was admitted non-compliance with the mandatory provisions of the said Reg. 883 by the Petitioner inasmuch as the said memorandum of appeal was not accompanied by the certified copies of the charges as made in the written statement and the order appealed against Furthermore, there is no convincing evidence to show that the records, necessary to be transmitted along with the memorandum were not sent But the impugned order rejecting the appeal shows that before making the same the proceedings file was looked into or considered The fact that the appeal petition was forwarded to the appellate authority, viz the Deputy Inspector-General of Police, along with the concerned file of proceeding No. 40 dated June 20,1972, with all the connected papers and the service book of the delinquent officer, also finds support from the records which were produced before me and in that view of the matter, I think I shall not be justified in holding others wise than what has been mentioned hereinbefore The provisions for consideration of the past service records at every stage of the proceedings, as has been contended by Mr. Gupta, in my view is not mandatory and Reg. 858(b) merely makes provisions for the consideration of such records in appropriate cases and leaves a discretion with the authorities concerned. In any event, I further hold that non-compliance, if any, with the provisions of the said Regulation, would not vitiate the entire proceedings and furthermore, the officer concerned, who made the entries in the Petitioner''s service book, as has been contended by Mr. Gupta, was not required to be proceeded in the absence of any challenge to such entries and more so when the misconduct alleged could be established from other available evidence In view of the above, I find that the decision in the case of State of Punjab v. Dewan Chuni Lal (Supra) is distinguishable and in fact, has no application Or bearing in the facts of this case The arguments advanced by Mr. Gupta for non-production of the relevant documents at the enquiry, on the basis of Reg. 861 (b), lost its force on perusal of the records and more particularly the report in annex. D, which unequivocally proves that the Petitioner himself inspected the necessary documents which he had asked for and which were, used at the enquiry.
Now, going back to the question of violation of principles of natural justice on account of refusal to the Petitioner to have the assistance of a lawyer at the enquiry, the relevant provision for consideration would be Reg. 861(c) It is an admitted fact that the charges, so far as the Petitioner was concerned, were serious, he was neither a trained lawyer nor a person acquainted with law and the ''procedure in the enquiry, the provisions of the Evidence Act and the department on the other hand was represented by a trained prosecutor On the basis of the decisions as cited, it may be Said that the delinquent officer may not ordinarily be granted the assistance of a lawyer in the enquiry if the connected Rules do not permit the same and more so when the enquiry is such that the assistance of a trained lawyer cannot either help the delinquent or would hardly be of any assistance in his defence. It is also true that no Government servant in the enquiry has any absolute right to appear through a counsel or to have his assistance and as stated hereinbefore, when such right is not created or could be gathered from the Statutes relevant for determining his terms of service and conditions of employment It is also true that the question whether a delinquent should be granted leave to have the assistance of a lawyer in an enquiry would depend upon various factors and circumstances depending on the facts of each case Thus, if the charges are grave and serious and the delinquent has a feeling that he would not be able to have his case defended properly and more particularly, in view of the fact that he will have to face a trained prosecutor, the question of granting him the assistance of a lawyer oh application of general principles of natural justice, even in the absence, of the provisions for such assistance in the relevant Rules, will have to be considered, keeping in view that when an employee is charged with serious charges of misconduct, may lose his mental equilibrium and lie may not also be able to deal with the complicated questions of fact and law as involved The Regulations in the instant case must be followed and complied with in consonance with the principles of natural justice Apart from the findings as aforesaid, I also hold that if the charges against the delinquent are grave and serious, which incidentally is the case of the Petitioner, he should have been given the opportunity to have the assistance of a lawyer, more so when such prayer was not either against public policy or was refused on that ground The complexity of a case in relation to the delinquent and the circumstances in which he has been placed, should be the criteria or the guideline for refusing the assistance of a lawyer It is true and as submitted by Mr. Rai Chowdhury, relying on the case of Union of India v. T.R. Verma (Supra) that the Evidence Act has no application to enquiries conducted by Tribunals, even though they may be judicial in character But that does not mean that such Tribunals should not observe rules of natural justice in the conduct of the enquiry It is also true that no interference is heeded in case such Tribunals hold the enquiry in accordance with the manner as stated hereinbefore But, in case the Court finds, that such Tribunal has not duly followed the rules of natural justice, then the decision as made can be interfered with In the instant case, since I am of the view that there was violation of the rules of natural justice on the refusal to permit the Petitioner to have the assistance of a lawyer, the determination as made can be interfered with The rules of natural justice would also require that the delinquent officer must have a feeling that justice has been done in his case and no injustice has been caused to him by the refusal to him to have the assistance of a lawyer Regulation 861 which deals with proceedings in cases of major punishment do content plate a fair hearing Under the said Regulation, the delinquent officer is entitled to know the case which he is required to meet and also to have an adequate opportunity to meet the charges Thus, when the delinquent officer is entitled to a hearing, he will also be entitled not only to lead evidence, call for witnesses and other facilities necessary for presentation of his case properly Therefore, when the delinquent officer is entitled to appear in person, he would also be entitled to appear by agent or counsel unless there is an express provision to the contrary or such appearance though a lawyer is against public interest or policy Such view gets support from the determination in the case of R. v. Assessment Committee of St. Mary Abbots Kingston (1891) 1 Q.B. 378 where it has been held that as the Statute gave the objector the right to appear and be heard in support of his objection and contained no provision prohibiting him from appearing by agent, the Assessment Committee had no power to limit the objector''s common law right to appear by agent Since in the regulations concerned in this case there is no absolute or any such provision prohibiting appearance by agent or lawyer, I think the authorities concerned did not act properly and fairly in refusing the Petitioner the assistance of a lawyer and that too in the facts and circumstances of the case and such refusal has vitiated the proceedings.
I further find that the contentions of Mr. Rai Chowdhury that following the determinations in the cases of State of Andhra Pradesh if Ors. v. Chitra Venkata Rao (Supra) and A.N. D''Silva v. Union of India (Supra) no interference should be made in this jurisdiction, are baseless inasmuch as there has been admitted violation of the rules of natural justice in such refusal of the assistance of a lawyer to the Petitioner I, further, hold that the said refusal of the assistance of a lawyer in the facts and circumstances of the case has made the entire proceedings void I am also of the view that since there is no disputed questions of fact involved in the instant case, the case of D L F Housing Construction Pvt. Ltd. v. Delhi Municipal Corporation if Ors. (Supra) has no application.
I am also of the view that, taking the total effect of the impugned orders in annexs F, G and H, the determinations in the case of Bhagat Rajaw Union of India and Ors. (Supra) will have no application in this case inasmuch as from the determinations as made through the said annexures, the reasons for making them for being scrutinized by this Court, are available I, further, find and hold that violation in the instant case, viz refusal to grant leave to the Petitioner to have his case conducted by a lawyer was substantial and not negligible and in fact, there has been a great infraction so far the rights of the Petitioner and as such, the case of State of Mysore v. K. Manche Gowda (Supra) is of no assistance to the Respondents.
In view of the above, all the points advanced by Mr. Gupta excepting the arguments regarding the violation of principles of natural justice on the question of refusal to afford opportunities to the Petitioner to have the assistance of a lawyer, fail and as such, the Rule is made absolute only on that limited ground Let appropriate writ or writs toe issued cancelling the impugned proceedings from the enquiry stage and requiring the Respondents further not to give effect to or act da the basis of the impugned orders of termination in annexs F, G and H to the petition.
There will, however, be no order for costs.
This order will not, however, preclude the Respondents from proceeding against the Petitioner afresh and in accordance with law from the enquiry stage, if they intend to do so.