MODI, J. -
(1.)THIS is a writ application by A. K. Vyas under Art. 226 of the Constitution by which he seeks to attack the order of the State Government dated the 21st November, 1958 (Ex. 1) removing him from service.
(2.)THE petitioner was a Superintendent, Archaeology and Museums, first at Udaipur in 1955 and then at Jodhpur from January, 1956 until the date of his removal. THE petitioner's case put very briefly is that there was bad blood between him and Mr. S. P. Shri-vastava, who was the Director of Archaeology and Museums at all material times. This bad blood was occasioned by the fact that both the petitioner and Shri Shrivastava were candidates for the headship of the Department of Archaeology and Museums and although the petitioner thought that he was far better qualified than Mr. Shrivastava, the latter stole a march over him. It is further alleged that as a result of this enmity Mr. Shrivastava started making complaints against the petitioner, on account of which, on the 8th of October, 1956 the petitioner was suspended. On the 7th of January, 1957, he was served with a charge sheet which contained 3 charges. We shall mention the relevant charges at the proper place. Mr. B. D. Thakur was first appointed as Enquiry Officer to investigate into the charges against the petitioner. For certain reasons, through which it is not necessary for us to go, it was not possible for Mr. Thakur to make any inquiry into the merits of the case of the petitioner, and he accordingly sent in his report to the Government to that effect. THE petitioner had also made his representation to the Government at that stage. It seems that in order to avoid any injustice to the petitioner the State Government by its order dated 26. 8. 57 appointed Mr. Ahuja, Commissioner for Departmental Enquiries, to make a proper enquiry into the case against the petitioner (See Ex. 13 ). In this order the Government, inter alia, made the following observations which deserve notice: - "it is not necessary to serve the charge sheet and obtain explanation of Shri Vyas again, but you may please proceed to examine witnesses on behalf of prosecution in the presence of Shri Vyas and give him an adequate opportunity to cross examine them. As the officer is under suspension, the enquiry may please be completed expeditiously in accordance with the provisions of R. 16 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1950, and your report submitted to Government as early as possible. "`
Mr. Ahuja made the enquiry and submitted his report, which is Ex. 3. At this stage, we may mention the relevant charges against the petitioner: - (1) That you did not cooperate with your head of Department and had little respect for his authority. In the official correspondence exchanged by you with him the language of your communications was not only imposite and ironical but also defiant and insolent. This is highly undesirable and amounts to breach of discipline. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Shri Durgalal Curator Sardar Museum, Jodhpur was transferred to Jaipur vice Shri J. S. Gahlot with immediate effect vide Govt. order dated 10. 8. 56. But you declined to relieve Shri Durgalal and accept Shri Gahlot until you were satisfied as to the latters official conduct and character after a detailed study of his past service record. Telegraphic communications making it clear to you that delay in carrying out the transfer orders could lead to your suspension and disciplinary action were also addressed to you. But all these communications produced no result. You have thus, defied and disobeyed Government orders. " A statement of allegations containing all the relevant information on which the aforesaid charges were based was also furnished to the petitioner. He was also allowed to file a fresh written statement or explanation. The Enquiry Officer, Mr. Ahuja, was of opinion that the first charge was fully established against the petitioner and that he was also guilty of the third charge, though according to the Enquiry Officer, in a technical sense. The report of the Enquiry Officer then engaged the attention of the Government who agreed with his opinion so far as the first charge is concerned, but came to a some what different conclusion as regards the third charge, and it has held that the petitioner was substantially guilty of the third charge also and not technically only. Having then come to the provisional conclusion that the petitioner deserved to be removed, the Government served a show cause notice on the petitioner why he should not be removed. The petitioner submitted his reply on the 1st of May, 1958. The case was then referred to the Public service commission who agreed with the findings arrived at by the State Government. All this culminated in the order of the State Government dated the 21st November, 1958, by which the petitioner was removed and it is this order which is being challenged.
The main contention of the petitioner may be summarised as below : - (1) He was not afforded a reasonable opportunity to defend himself inasmuch as he was not allowed to have copies of certain letters written by him to Mr. Shrivastava and extracts from which were held to be objectionable, nor was he allowed to have copies of Mr. Shrivastava's own letters to some of which they were sent in reply. (2) He was not allowed the opportunity to engage a legal practitioner to defend him. (3) No oral evidence was produced against the petitioner. (4) Certain documents were taken into consideration by the Government in coming to the conclusion, but) they were not made available to the petitioner. We shall now deal with each of these contentions in order.
We have carefully perused the charges against the petitioner and the statement of allegations which was handed over to him and on which the charges were based and also the report of the Enquiry Officer Mr. Ahuja. We have also perused in this connection the two letters addressed by the petitioner to the Enquiry Officer Exs. 12 and 9, dated the 4th and nth September, 1957, respectively. In these letters the petitioner appears to have asked the Enquiry Officer to send for certain letters addressed to the petitioner by the Director Mr. Shrivastava to which his own letters containing the allegedly objectionable extracts were sent in reply as also some other correspondence exchanged between the two. It may be pointed out that, so far as we can see, all this correspondence does not have any direct bearing on the charges served on the petitioner, but that was sought to be summoned to show that the Director himself in his correspondence with the petitioner was far from cordial or polite and, indeed at times, he was provocative, and it was this attitude of the Director that led the petitioner to write to him in the manner in which he did. We may also refer in this connection to an order sheet dated 11. 9. 57 on the file of the Enquiry Officer in which the petitioner stated as follows: - "i do not wish to adduce any further evidence in defence. I only desire that the letters to which I had replied should be sent for and seen in order to judge whether my letters were couched in temperate or intemperate language. " We have carefully gone through the report of the Enquiry Officer as also through all this correspondence and are fully satisfied that he (the Enquiry Officer ) must have gone through all this correspondence in detail, else he would not have made certain observations in the course of his report with regard to the Director Mr. Shrivastava as he did. As we are not concerned with the conduct of the latter officer, we do not propose to make any remarks of our own as to his behaviour. What we are concerned with, however, is to see whether there has been any serious and gross violation of the statutory rules relating to enquiry into the conduct of the government servants, and having regard to the circumstances to which we have invited attention above, we are not at all satisfied that the petitioner can legitimately claim that he had no reasonable opportunity to defend himself on this particular score.
As regards second contention raised by the learned counsel that his client was not allowed the facility of being represented by a legal practitioner, and on this account also he had been prejudiced in making his defence, we are clearly of opinion that there is no force in this contention. So far as we know and from what had been pointed out to us, there is no rule which gives an officer against whom a departmental enquiry is being made a right to be represented by a member of the legal profession. Speaking generally, the relationship between a State Government and its servants is, after all, a relationship of master and servant or an employer and an employee, and a master or an employer would be within his rights to dispense with the services of his servant or the employee whenever he thinks fit to do so and the master or the employer is restricted in the exercise of his choice only to the extent to which he may have agreed to bind himself by any rules in this contention. These rules, so far as servants of this State are concerned, were for the relevant period contained in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, hereinafter called the Rules of 1950. These rules have since been substituted by the Rajasthan Civil Services ( Classification, Control and Appeal) Rules, 1958, but with these we are not really concerned here. There is nothing in the Rules of 1950 to show that a State employee has a right to be defended by a legal practitioner at any departmental enquiry. We are definitely of the opinion that there was therefore, no breach of any rule on the part of the Enquiry Officer, when he refused to allow the petitioner to defend himself by a legal practitioner as the enquiry, and we therefore, overrule this contention also.
The third contention of the petitioner is that the Government did not produce any oral evidence at the enquiry. The relevant portion of rule 16 of the Rules of 1950, reads as follows: - "16 (a) Without prejudice to the provisions Of the public servants Inquiries Act, 1850, no order imposing the penalty of dismissal, removal or reduction shall be passed on a member of a service. . . . . . . . . . . . unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral enquiry shall be held. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses, give evidence and to have such witnesses called, as he may wish provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing refuse to call a witness"
Now, it has been strenuously contended before us that no oral evidence was led against the petitioner, nor was he allowed to cross-examine the Director Mr. Shrivastava when he appeared before the Enquiry Officer to produce certain letters which contained the objectionable extracts for which the enquiry had been set up against the petitioner, it is true that Mr. Shrivastava said that he did not with to produce oral evidence, and he would be content to produce the letters which contained the objectionable matter and which spoke for themselves. It is also true that at that stage the petitioner made a request to the Enquiry Officer that he should be allowed to cross-examine Mr. Shrivastava, but this request was turned down. It seems to us that the Enquiry Officer was not correct when he refused the request of the petitioner to cross-examine Mr. Shrivastava. Evidently, the Enquiry Officer seems to have been under the impression that Mr. Shrivastava had only appeared before him to produce certain documents and therefore, he could not be allowed to be cross-examined, according to the procedure contemplated under the Evidence Act sec. 139 of the Evidence Act in this connection. It may however be pointed out that a departmental enquiry is not governed by the provisions either of the Evidence Act or of the Code of Civil Procedure and that, broadly speaking, it would be sufficient to observe that the enquiry should be in accordance with the rules of natural justice, and if such rules are substantially followed in the conduct of an enquiry and no prejudice is caused to the officer concerned, a mere failure to observe a particular rule should, in our opinion not be enough to quash the enquiry (see Union of India us. T. R. Varma (A. I. R. 1957 S. C. 882 ). Having regard to the circumstances of the case before us, we are quite satisfied that it was hardly necessary for the prosecutor to lead any oral evidence in a case like the present, which depends very largely, if not, entirely, on documentary evidence. We may also point out that although the language of R. 16 which we have quoted above, is not very happy, it can hardly mean that oral evidence must as an inevitable necessity, be recorded, even where the charge or charges against the officer concerned rest wholly on documentary evidence. It may also be observed that the rule, as it is worded does not contain any provision for the leading of documentary evidence at the oral enquiry, but it would be absurd, in our opinion that such evidence cannot be allowed to be led at such an enquiry in fact, where a case depends on documentary evidence and such evidence is not led to prove the charge set against an officer, any enquiry, where such evidence may not be produced, will be open to gravest objection. The provisions contained in r. 16 are, after all is said and done, matters of procedure and we are clearly of the view that any and every breach of these provisions, in our opinion, would not be enough to destroy the value of an enquiry where no real prejudice has been caused to the officer concerned on account of the alleged breach. We are fully satisfied that in the circumstances of the present case it was hardly necessary to produce any oral evidence, because the charges against the petitioners were all founded on documentary material which has been produced before the Enquiry Officer. In this view of the matter we have arrived at the conclusion that no fault can be found with the enquiry officer on this ground. We may add however that it should have been better if the enquiry-officer had permitted the petitioner to cross examine Mr. Shrivastava when he appeared before him to produce the various letters to which we have referred above and he the enquiry officer need not have thought that he was prohibited from doing so by any thing contained in the Evidence Act. Then, again we think that this failure must be tested on the ground of prejudice, and we have hardly any hesitation in coming to the conclusion that the petitioner has not suffered any prejudice on that account. The entire cross examination which could have been levelled against Mr. Shrivastava should have been as to the bad blood which existed between the petitioner and Mr. Shrivastava) and so far as that matter is concerned, we feel satisfied that the Enquiry Officer had formed an opinion in favour of the petitioner rather than against him and it was on that very account that he seems to have taken a somewhat lenient view as to the petitioner's conduct; and that being so, we are disposed to hold the view that any failure in this connection on the part of the enquiry officer is not sufficient to vitiate the enquiry.
The last ground which remains to deal with is that the Government took into consideration certain material in arriving at the conclusion at which they did while such material had not been shown to the petitioner nor an opportunity was given to him to explain the same. This should have been a serious ground if it would have been established but learned counsel for the petitioner has not been able to point out to us any such material which the Govt. had taken into consideration in punishing the petitioner and which they did not make available to the petitioner to be explained by him.
We are, therefore, satisfied that the departmental enquiry conducted against the petitioner does not suffer from any serious infirmity and has been carried out in substantial compliance with the statutory rules of service.
In the result, we dismiss this application with costs.
Leave to appeal is refused. .