Sursari Prasad vs State

S.P. Bhargava, J.—This appeal has been filed by the Plaintiff against the decision of the Additional District Judge, Sidhi, dismissing his suit for declaration and arrears of pay. The suit was originally brought against the State of Vindhya Pradesh but after there-organization of States, the State of Madhya Pradesh has been substituted as Defendant.

The facts relevant for consideration at this stage are not in dispute. The Appellant held the post of head constable in the year 1953 in the Police Department of the State and was posted at the Hinoti Police Station. He was charged with remissness and unfitness in the discharge of his duty within the meaning of Section 7 of the Police Act on the allegation that on 7.11.1953 when one Ramrajsingh went to the Police Station to lodge a report with regard to a theft, the Appellant instead of registering the case directed him to return back and thus the crime was attempted to be hid-den. The charge-sheet, dated 10-3-1954, was supplied to the Appellant under the signatures of Lal Pratapsingh who was the Superintendent of Police, Sidhi, at that time. Under the orders of the Superintendent of Police, the departmental enquiry was held by the Circle Inspector who recommended the punishment of dismissal. The Superin-tendent of Police acting on this recommendation passed orders for the dismissal of the Appellant on 16-6-1954. The Appellant went up in appeal to the Inspector General of Police who maintained the finding but reduced the punishment from dismissal to reduction in rank and made the Appellant a constable for a period of three years. His order is Ex. P-4 on record A revision was then filed against the order of the Inspector General of Police but it did not meet with success (vide Ex. P-5). In the departmental enquiry, Lal Pratapsingh who was the dismissing authority himself figured as a witness against the Appellant to prove that Ramrajsingh did visit the Police Station on 7-11-1953 to make his report.

The case of the Appellant was that the report was made on 8-11-1953. This report is Ex. P-8-C on record. One of the grounds urged for snowing that the enquiry was illegal was that the dismissing authority, Lal Pratap singh, had himself figured as a witness in the departmental enquiry against the Appellant before the Circle Inspector and later on, he himself awarded the punishment of dismissal on 16-6-1954.

The trial Court dismissed the Plaintiff''s suit mainly on two grounds:

(1) That the Appellant did not plead in the plaint that in the departmental enquiry he was not given reason able opportunity to defend himself under the provisions of Article 311 of the Constitution of India; and,

(2) That no prejudice could be inferred in the circumstances of this case because the Superintendent of Police, Lal Pratapsingh, figured as a witness in the departmental enquiry.

The learned Government Advocate has tried to justify the decision of the trial Court on these very grounds before us.

As regards the objection that the Plaintiff failed to raise this plea in the plaint that he was not given proper opportunity to defend himself, we may clearly refer to the allegation made in para 4 of the plaint where it has been categorically stated that the enquiry which was made was irregular and illegal on the ground that Lal Pratapsingh himself figured as a wit-ness in the departmental enquiry and subsequently, he passed orders with regard to the dismissal of the Appellant on 16-6-1954. It was not necessary for the Plaintiff to refer to Article 311 (2) of the Constitution of India in his plaint. All that was necessary was to mention those facts on which he relied to point out the irregularity or illegality and that has clearly been done. The trial Court has crept into an error in reaching the conclusion that the Plaintiff (Appellant) had sought relief on the grounds he had not pleaded in the plaint.

As regards the contention that the whole enquiry was bad because Lal pratapsingh who passed the orders of dismissal was a very important witness in the enquiry against the Appellant, it would be helpful to refer to some rulings. In U.P. State v. Mohd. Noor AIR 1958 S C. 86, the facts were that in a departmental ''trial'' of the Petitioner who was a police constable under the U. P. Police Regulations, the officer holding the trial had offered himself as a witness for the department and against the Petitioner. Later on, he had himself convicted him by passing an order of dismissal. It was held that the trial was one held in gross violation of principle of natural justice. Their Lordships observed:

....the act of Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the Respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the Respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri B. N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.

A Division Bench of this Court in the case reported in Nandkishore v. Commissioner, Jabalpur, 1961 J. L. J. 776 considered the same question in the context of these facts that a charge sheet together with the statement of allegations and a forwarding memo directing the holding of a departmental enquiry, all signed by the Collector, were served on the Petitioner and he was directed to submit his reply to the charges framed to the enquiring officer. Thereafter, the enquiry was completed by the enquiring officer and a report was submitted to the Collector who provisionally came to the conclusion that the two charges were established against the Petitioner and issued a notice calling upon him to show cause why he should not be dismissed. On receiving the Petitioner''s reply, subsequently the Collector passed an order to the effect that a certain statement was made by the Petitioner to him which was of great importance and. therefore, the enquiring officer should have examined him. He remanded the case for further enquiry to the enquiring officer. The Collector was then examined and a fresh report exonerating the Petitioner of the two charges but finding him guilty of gross negligence in the discharge of his duties was submitted. As the Collector had appeared as the witness in the enquiry, a report was sent to the Commissioner with the remarks of the Additional Collector who in his forwarding note considered the evidence led against the Petitioner and recorded the opinion that the two charges were clearly proved. While considering the propriety and the legality of the procedure that was adopted, their Lordships observed:

It was urged, we think with much justification, that the Collector, who subsequently appeared as a witness in the enquiry on the basis of facts, which came to his knowledge before its commencement, could not have dealt with it at all. In our opinion, the Collector should have realised from the start that he was likely to be a witness in the enquiry and should have therefore refrained from functioning as the authority competent to award punishment, as he actually did between 10th February 1959 and 22 August 1959. By acting in that manner, he clearly violated the rules of natural justice and disregarded all canons of fair play...

Ultimately, in view of the above mentioned infirmity in the enquiry and some other infirmities which need not be stated here, their Lordships quashed the order of dismissal of the Petitioner which was passed by the Commissioner.

Considering the principle enunciated in the cases, discussed above, it cannot be doubted that it was highly improper for the Collector to have chosen to act as the dismissing authority when he himself had figured as a witness. Only reasonable and proper course consistent with the principles of natural justice was that he should have refrained from expressing any opinion as judge in the cause when he had figured as a witness. The facts of the case bear a close similarity with the facts present in U.P. State v. Mohd. Noor (supra).

The evidence given by Lal Pratapsingh in the case was on a very crucial point and the question to be decided was as to whether the fact of Ramrajsingh having gone to the police station to lodge certain report on the night of 7-11-1953 was to be believed which found corroboration in the statement of the superintendent of Police, Lal Pratapsingh, or the other testimony which was adduced on behalf of the Petitioner was to be believed. Lal Pratapsingh having pitted his evidence against that of the other witnesses entered the arena as a witness. The two roles could not obviously be played by one and the same person. It is futile to expect that he could, in the cir-cumstances, hold the scale even, and Lal Pratapsingh was obviously most ill suited to undertake the task of inflicting the penalty on the Petitioner. In the circumstances of the case, it has been suggested that there was other evidence in the case and in the appeal before the Inspector General of Police who has duly considered and reappreciated the entire evidence and so no prejudice could result to the Petitioner. In our opinion, it is not easy to gauge the extent of prejudice that must have been caused in the case when it suffered from the infirmity, referred to above, at the stage of trial. The opportunity that is required to be given under the constitutional safe-guard has to be substantial and not merely a show of opportunity. In the circumstances of the case, it is not possible to escape the conclusion that the rules of natural justice and fair play were violated. There cannot be any dispute that under Article 311 (2) of the Constitution, the Appellant was entitled to have a reasonable opportunity not only at one or some stages of the trial but throughout and if an important link in the process of enquiry against him is demostrated to be suffering from gross violation of natural justice, the enquiry against him loses all its significance and the decision arrived at by such process cannot possibly be regarded as valid or binding on the Appellant.

The Appellant claimed in his suit Rs. 489/4/6 on account of the loss sustained by him due to the orders challenged in the suit. The total amount that he has claimed includes a claim of Rs. 215/- in all as cycle allowance, Rs. 34/- as grade increment and the remaining Rs. 240/4/3 representing the amount of his salary including clearness allowance from 1-12-1953 to 31-10-1956. We are of the (sic) what the Appellant is not entitled to claim the amount of cycle allowance from the State. Cycle allowance is granted to afford convenience in the discharge of duty and does not represent the loss of salary or other losses. During the entire period for which the cycle allowance is claimed the Appellant was admittedly not required to per-form any duty of his office. So, he is not entitled to this item. He is, of course, entitled to the remaining amount of Rs. 274/4/5, that being the loss of his salary and dearness-allowance, and grade increment.

The result is that this appeal succeeds though in part. Instead of the decree of dismissal of the claim passed by the trial Court, we make the following decree:

(1) It is declared that the order passed by the Superintendent of Police, Sidhi, on 16-6-1954 and the order of the Inspector General, of Police Vindhya Pradesh, of 1-9-1954, are illegal and ineffective and the position and rank of the Plaintiff-Appellant in the police personnel was: not affected by these orders.

(2) We pass a decree for Rs. 274/4/6 with proportionare costs of suit in both the Courts in favour of the Plaintiff-Appellant against the Defendant-State of Madhya Pradesh, and direct that the decretal amount shall be paid to the Appellant within four months of the date of the decree.

We may, however, add that the decree passed by us in this appeal may not be construed to preclude the State Government to, make the enquiry again against the Appellant if it is so advised.