JODHRAJ Vs. STATE OF M. P.

JUDGEMENT

(1.) THIS second appeal arises out of the judgment and decree dated 5 -8 -85 passed by the VIIIth Additional District Judge Indore in C. R.A. No. 5 -A/85 thereby affirming the judgment and decree dated 10 -12 -84 passed by the Vth Civil Judge Class II Indore in C. O S. No. 4 -A/81 dismissing the appellants suit with costs.

(2.) BRIEF facts necessary for decision of this appeal are that the appellant was a Class IV employee posted in the Collect orate, Indore. He had completed 32 years of service at the age of 48 by 17 -4 -1979. A charge sheet dated 16 -2 -78 Ex. p/33 was issued against the appellant enumerating the following charges against him (1) "applicant Manohar Shastri 109 Kailash Marg Indore had complained to the Hon'ble Prime Minister that (you) (the plaintiff -appellant) being a Government Servant, was running a shop selling milk and curd. You indulged in threatening and quarreling with people and extracting money, (2) You held property in the name of your children (3) You confessed to the Naib -Tehsildar that you had been convicted for an offence of adulteration of Milk." Out of these charges, the Inquiry Officer Suresh Jain found that a part of charge No.1 pertaining to selling of milk and curd was only proved and the charge No.3 was also established. Charge No.2 was not proved against the delinquent plaintiff. On these charges the respondents after holding an enquiry, and giving a show -cause notice as required by Sec. 311 (2) of the Constitution of India dismissed him from service on 17 -4 -79, by respondent No.4 and the dismissal was up -held by the respondent No.3 by order dated 18 -4 -79. Thereafter, on 5 -10 -80 the appellant served notices u/s 80 C. P. C. to the respondents which were served on them 10 -10 -80. As he failed in obtaining any relief, filed a suit praying for a declaratory decree that the order of dismissal as passed by the respondent No.4 and affirmed on appeal by respondent No.3 Were void and illegal. He also prayed for a mandatory injunction against the respondents that they should be directed to reinstate him in service with all the ancillary benefits thereof such as salary, seniority and promotion.

(3.) TAKING up the question of reasonable opportunity, the respondents in their joint written statement have submitted that the plaintiff appellant was given an opportunity to produce his witnesses. The plaintiff bas come out with a specific averment that on 6 -12 -78 when date of evidence was fixed be was required to accompany the Tehsildar with whom he was attached on tour and as such could not participate in the enquiry. He moved an application for the purpose. The respondents have denied this fact in their written statement. Thus, the witnesses for the Department were examined behind the back of the plaintiff. The application moved by him was not considered. It is significant to note that the defendant -respondents sought time to produce evidence on 10 -2 -83, 1 -2 -84, 16 -2 -84, 22 -3 -84, 27 -4 -84, 27 -6 -84, 25 -7 -84, 22 -8 -84, and ultimately on 19 -9 -84. The trial Court closed the case as no evidence was produced by the defendant -respondents. It is to be regretted that having sought so many opportunities for producing evidence, the respondents should have refrained from producing any witness as such in support of their case. In absence of any evidence whatsoever, it is difficult to disbelieve that statement. The plaintiff had very categorically stated that on 6 -12 -78 he was required to accompany the Tehsildar and the Revenue Inspector. On return from tour by about 2 P. M., he approached the respondent No.4 who told him that ex -parte evidence was recorded and order dismissing him had already been passed. Thus, he had no opportunity as such to cross -examine the witnesses who were in fact examined behind his back. He bas deposed that he moved an application but the same was not considered. If these facts are not controverted in evidence a mere denial in the written statement by itself would be of no avail to the respondents to substantiate their case. The plaintiff offered himself for cross - examination whereas no witness was produced by the defendants. If, as claimed by the respondent reasonable opportunity had in fact been granted to the plaintiff, it was necessary for the Enquiry Officer or someone concerned with the enquiry to enter the witness box and substantiate the denial as contained in the written statement. The lower Appellate Court bas missed this vital aspect of the matter. It is against all canons of natural justice to examine a witness behind the back of a delinquent and use that evidence in support of the proof of charge. The Courts below and particularly the lower Appellate Court has missed this rudimentary principle of natural justice while dealing with the question of reasonable opportunity having been afforded to the plaintiff. The learned counsel is right in his submission that it is inconceivable that witnesses could have been examined behind the back of a delinquent even in a Departmental Enquiry without their being any fault on the part of the delinquent. The Courts below forgot that the plaintiff a peon a Class IV employee was under the authority of the respondents and was bound to accompany his immediate superior on tour. If necessary, he should have teen relieved to attend the enquiry but what appears to have been done is, he was asked to accompany the Tehsildar and in his absence on that very day, the witnesses were examined at the Departmental Enquiry behind his back. The lower Appellate Court was right that the assessment and appreciation of evidence adduced at the Departmental Enquiry is the function of the Disciplinary Authority and the Civil Courts do not appreciate the evidence but at the same time the lower Appellate Court was palpably wrong in ignoring the fact that the delinquent, and no Court could have overlooked this fact, while considering the question of reasonable opportunity having been granted to a delinquent. Holding of a Departmental Enquiry, is a quasi -judicial function and even if treated to be an administrative one, principles of natural justice can and should not de overlooked by the Authority. The line between the administrative, and the quasi -judicial functions is not only thin but is slowly disappearing.