Moh.Shaft Sumbli vs University of Kashmir

V.K. Gupta, J.

1.This petition can be disposed of on a very short point and the detailed facts in the petition or the counter filed by the respondents, or for that

matter in the rejoinder of the petitioner need not detain us. It shall, however, be necessary to give a brief resume of the facts. The petitioner was

working as a Lecturer in the Department of Kashmiri in the University of Kashmir. On 8th July 1988 on the allegation that he had misbehaved with

a student Miss Baby Zytoon of his class and had indulged in moral turpitude, by order of the ViceChancellor he was placed under suspension. The

petitioner's suspension was followed by the serving upon him a charge sheet dated 30th July 1988 in which it was alleged inter alia that Miss Baby

Zytoon, a student of M.A. Kashmiri had levelled allegations against the petitioner involving acts of moral turpitude as also the gross misconduct.

The petitioner was called upon to give explanation to the charges. What followed later was the usual reply submitted by the petitioner and the

holding of an enquiry into the charges against him by the Enquiry Committee constituted by the University. At the culmination of the enquiry

proceedings, the impugned order dated 23rd January, 1989 came to be passed whereby the services of the petitioner as Lecturer were terminated

with immediate effect. It is this order which is under challenged in this petition filed under Article 226 of the Constitution.

The point on which this petition can be disposed of relates to an illegality which crept in the proceedings conducted by the Inquiry Committee

which was enquiring into the charges against the petitioner. The impugned order dated 23rd January, 1989 terminating the services of the petitioner

was passed on the basis of the report submitted by the Enquiry Committee, the report of the Inquiry Committee was placed before the University

Council which considered the same and after agreeing with it resolved to terminate the services of the petitioner. If, therefore, the petitioner was

thrown out of the services on the basis of the report of the Inquiry Committee, and if there was an illegality in the enquiry proceedings, everything

gets vitiated and consequently the termination order would naturally be the casualty.

Mr. P. Kohli, learned counsel appearing for the petitioner drew my attention to the averments contained in ground (n) of para 7 of the petition

and submitted that the petitioner very clearly, categorically and un equivocally has pleaded and averred that the enquiry was not conducted fairly

against the petitioner. According to the petitioner, the statement of Miss Baby Zytoon who was the complainant in the case was recorded by the

Inquiry Committee in the absence of the petitioner and subsequently when the petitioner came to know that her statement had been recorded in his

absence sought to crossexamine her. Even this prayer of the petitioner for crossexamining the complainant was declined by the Inquiry Committee.

These specific categorical and unequivocal averments of the petitioner have been admitted by the respondents in the counteraffidavit filed by and

on their behalf. It shall be advantageous to reproduce para7(n) of the counter affidavit which reads thus :

7(n) In reply to para 7(n), it is submitted that rules of natural justice have been observed in the case. The statement of Miss Baby Zytoon was

recorded by the Inquiry Committee in presence of her father. After her statement was recorded, in which she was crossexamined by the Inquiry

Committee, the copy of the statement was given to the writ petitioner. For the reasons recorded by the committee in its meeting dated 21.12.1988,

it was felt by the committee that Miss Baby Zytoon may not be subjected to crossexamination by the writ petitioner. The statement of Miss Baby

Zytoon was recorded by the Inquiry Committee on 25.11.1988. Copy of the statement was given to the writ petitioner on 10. 12.1988. A request

for recalling of Miss Baby Zyton on 21.12.1988 which, for the reasons recorded by the committee was not agreed to. It is categorically denied

that the enquiry proceedings were closed on 21.12.1988. As already submitted the defence witnesses were finally examined on 26.12.1988 and

thereafter, only one meeting was held on 2.1.1989.

Because a mention has been made of the meeting of the Inquiry Committee held on 21.12.1988, it shall be worthwhile to have a look at the

minutes of this meeting so as to find out as to what exactly was done by the Inquiry Committee with regard to the matter relating to the examination

of Miss Baby Zytoon and the request of the petitioner for her crossexamination. The relevant extract of the minutes is reproduced as under :

The Committee has informed the learned Counsel that the University does not intend to produce before it (Committee) any other witness or

document. Therefore, the Committee asked the Counsel as to whether Mr. Sumbili would like to produce before the Committee any other

document or witness in his defence and the same may be produced. The Counsel replied that I will produce the defence witnesses. The learned

Counsel stated that the statement of Miss Zytoon has been recorded in absence of his client on 25.11.1988 and the statement has been

authenticated by her father in presence of the members of the Committee. Therefore, my client be given opportunity of crossexamining her. The

Committee has informed him that Mr. Sumbili in writing represented before this Committee on 24th November 1988 that he be permitted to be

represented by a Counsel of his choice and the same permission was granted to him by the Committee. However, the Committee has recorded the

statement of Miss Zytoon in presence of her father who was accompanying her though on the said date, Mr. Sumbili was neither asked by the

Committee to present himself before it nor asked him to crossexamine her because the members were of the opinion that keeping in view the

reputation and honour of a girl we should ourselve crossexamine which we did for satisfaction of the Committee and in order to avoid her being

subjected to mental harassment we did think it fit to ask Mr. Sumbili to be resent on the occasion and crossexamine her. The Committee directed

Mr. Sumbili that all witnesses and documents whatever he has to present in his defence must be presented before the Committee on 26th of

December, 1988 at 11.30 a.m. in the office chamber of the Chairman, Committee.

It is a well settled principle of natural justice and a golden rule of modern services jurisprudence that every delinquent official who is facing

disciplinary proceedings has a right not only of defending himself, properly and effectively, participate in the enquiry proceedings held against him

and on being represented appropriately, but of defending himself in such a manner and participating in the enquiry proceedings so that he does not

complain of being treated as an unequal with same other party or being left out of the process of being defended in accordance with the age old

principles of natural justice, openness and fair play. The right of examining and crossexamining the witnesses who have appeared in the enquiry

proceedings, based on the aforesaid principles is one of such valuable rights available and guaranteed to a delinquent official faced with the charge

levelled against him and involved in disciplinary proceedings conducted against him by his employer. It is no doubt true that this court, in the

exercise of its extraordinary writ jurisdiction does not sit as a court of appeal against the finding of an Inquiry Committee because it is not the

province of this court to appreciate or reappreciate the evidence collected by the Inquiry Committee, but at the same time this court does not

hesitate in striking down adverse order against the delinquent official if the Inquiry Committee enquiring into the charges against him did not observe

the principles of natural justice, equity and fair play. Denying to a delinquent official the right to crossexamine a witness who has deposed against

him strikes at the very root of the enquiry process. Denying this right to him when the witness happens to be none other than the complainant

results in such a grave fatality that it vitiates the enquiry proceedings in every possible manner and renders the entire process into a sham

transaction, setting at naught everything that happened against the delinquent official during the course of the enquiry against him.

The respondents have admitted that the petitioner was denied the right to crossexamine the complainant. They have also admitted that the

statement of the complainant was recorded in his absence. The entire edifice of the case of the respondents against the petitioner hovered around

the allegation that the petitioner had misbehaved with Miss Baby Zytoon, the act of misbehaviour and misconduct involving the petitioner's moral

turpitude. Nothing, therefore, was more important to the petitioner than to be associated with the recording of the evidence of the complainant in

every possible manner and to be given a free hand in crossexamining her. The assertion of the respondents, reflected in the minutes of the meeting

of the Inquiry Committee held on 21.12.1988 that subjecting Miss Baby Zytoon to crossexamination by the petitioner and getting her statement

recorded in his presence would amount to her being subjected to mental harassment, keeping in view her reputation and honour. First of all, it is

not understood as to what did the members of the Inquiry Committee mean by this assertion. If a complainant in a charge against a delinquent

official is subjected to the crossexamination by the delinquent official with regard to the allegations levelled by her against him, no one can say that

she is being subjected to mental harassment or that her reputation and honour would be jeopardized or put at stake. It is not only golden, but

cardinal principle of fair play and justice that no one be condemned unheard and that opportunity of defending properly be provided to everyone.

Following from this undisputed principle is the right of every person either in a criminal case or facing a departmental enquiry to crossexamine every

witness who makes any deposition against him. If in the bargain, the witnesses (including a girl complainant) feels some inconvenience in being

crossexamined, one cannot help because the rights of an individual cannot be sacrificed merely because a witness, in the process of

crossexamination may intend to feel inconvenienced or harassed, as asserted by the Inquiry Committee. After all the purpose of crossexamining a

witness is not only to elicit truth, but to enable the defendant to build up his case in the manner that he would like it to be projected. If the approach

adopted by the Inquiry Committee was to be approved, in every criminal case being tried in a court of law, involving the persons belonging to the

female sex, like offences under sections 376, 366 or 354 RPC, where the complainant happens to be a lady or a girl, there would be no need to

insist on the participation of the accused during the trial, the requirement of the statements of all witnesses including the complainant being recorded

in the presence of the accused and the accused being allowed to crossexamine them. That being the case, in all such situations, therefore, if the

approach asserted by the Inquiry Committee was to be followed, the accused may be permitted to be convicted of such offences by holding the

trial in the aforesaid manner. The reality of course is that such an approach, apart from being totally illegal and unconstitutional is patently contrary

to the well established principles of criminal jurisprudence and the new codified provisions of the Constitution as well as various criminal and penal

laws. These golden principles which have stood the test of time have, therefore, to be imported, lock, stock and barrel into the departmental

proceedings or domestic enquiries being faced by the delinquent officials.

The petitioner, based on the aforesaid discussions had a valuable right of not only defending himself properly and effectively at the enquiry but

also to insist on the statements of all witnesses including the complainant being recorded in his presence and to be allowed to crossexamine them

without any fetters whatsoever. Because this right has been denied to him, enquiry proceedings against him stand totally vitiated and because the

impugned order was based on the report of the Inquiry Committee, and on no other material, it cannot be allowed to be sustained.

For the foregoing reasons, therefore, this petition is allowed. By issuance of writ of certiorari, the impugned order is quashed and set aside with

all necessary consequences. This, however, should not be construed as any bar for the respondents to initiate appropriate proceedings against the

petitioner, if they are so advised and if they so choose, afresh after following the principles laid down in this judgment. No order as to costs.

Petition allowed.