- (1.) THIS a special appeal under section 181 of the Rajasthan High Court Ordinance filed on behalf of the State of Rajasthan against the judgment of the learned Single Judge of this Court dated October 13, 1969 in S. B. Civil writ petition No. 535 of 1966 quashing the order dated September 7, 1950 passed by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur dismissing the respondent from service.
(2.) THE respondent Danmal, a Head Constable of police, was working as Accounts Clerk in policelines at Pali. On complaints of bribery and misappropriation the Superintendent of Police on February 6, 1953 went to the police on lines for physical checking of the cash balance in the hands of the respondent Danmal. According to the department, the respondent in first instance showed his willingness to unlock the cash box for checking, but soon-after changed his mind and avoided the checking of the cash on the ground that he had left the key of the cash box at his residence. THE Superintendent of Police allowed the respondent to bring the key of cash box from his residence. When the respondent did not return for a pretty long time the Superintendent of Police sealed the cash box and went away from the police lines. On February 7, 1963 Shri N. N. Diwan I. P. S. , Additional Superintendent of Police was deputed for physical verification of the cash but the respondent not only refused to allow Shri Diwan to make physical verification of the cash but also misbehaved with him and other police officers who had accompanied him. Shri N. N Diwan thereupon, took the respondent to the bungalow of the Superintendent of Police where also the respondent acted in in-disciplined, mannerless and insolent manner. He did not accede to the request of the Superintendent of Police for physical verification of the cash with the result that the Superintendent of Police had to approach the Sub Divisional Magistrate, Pali. At the persuation of the Sub-Divisional Magistrate, Pali the respondent allowed checking of the cash. It appears that at the time of the physical checking the respondent gave in writing to the Sub-Divisional Magistrate to permit him to mix such amount of cash which according to him was left in his pocket when he went home on February 6, 1953 to bring the key of the cash box. THE Sub-Divisional Magistrate did not permit the cash from the petitioner's pocket to be mixed with the cash lying in the cash box, but he counted separately the cash lying in the cash box and that offered by the respondent from his Pocket. It is alleged by the Department that the respondent absented himself from the police lines from February 7, 1953 to February 19, 1953. A case was registered against the respondent under section 409 I. P. C. and the police arrested him on February 19, 1953. After usual investigation the respondent was challaned in the court of Sub-Divisional Magistrate, Sojat for the offence under section 409 I. P. C. This criminal case ended in the discharge of the respondent. The department then initiated a departmental enquiry against the respondent. As the result of the departmental enquiry the respondent was ordered to be dismissed from service by the Deputy Inspector General of Police vide order dated March 11, 1965 The said order was affirmed in appeal, but this Court in its writ jurisdiction quashed the proceedings of the departmental enquiry and set aside the order of dismissal vide judgment dated August 19, 1959. The department again proposed to hold a fresh enquiry and served the following charge sheet to the respondent - "1. That you, H. C. Dan Mal (now under suspension) while you were working as Accounts Clerk in the Reserve Police Lines, Pali, on 6-2-1953, the police personnel had complained against you to the then S. P. that inspite of having drawn their pays; you were not inclined to disburse till they were prepared to pay him. The S. P. called you and enquired of this, but you could not satisfy him. Thereupon, the then S. P. with others went to the Lines for physical checking of the cash, but you feigned that you had not key with you. You were allowed to bring key but you did not turn up for about 3 hours and as such cash could nut be got checked that day. 2. That on 7-2-53 when Shri N. N. Diwan I. P. C. , asked you for getting the cash checked, you flatly refused. So you were taken to S. P. 's residence, but there also you refused. Ultimately, the S. D. M. had to be called in and after great hesitation, you opened it. Thus, you had knowingly well flouted the authority of the S. P. , A. S. P. and others and behaved with Shri Dewan in a most unbecoming and indisciplined manner unworthy of a Police Officer, in the Police Lines and used slang language at the residence of the S. P. Pali and before the then S. D. M. which amounts to insubordination. 3. You absented from the Police Lines on 7-2-53 till 19-2-53 when you were arrested u/s. 409 I. P. C. because of which supension order could not be served on you and this act of yours falls U/s 29 of the Police Act. " You are, therefore, charged for the above illegal acts, acts of omission and commissions, insubordinate, corrupt practices and unauthorised absence. " 4. Along with the charge sheet, statement of allegations was also served to the respondent. Mr. Tandon I. P,s. was appointed as the Enquiry Officer who conducted the enquiry. He submitted his report some time in the month of June, 1960, His report is Ex. 31. In his report Ex. 31 Mr. Tandon bifurcated charge No. 1 into the following two parts: - "charge No. 1 (a) that H. C. Danmal while he was working as Accounts Clerk in Police Lines, Pali on 6-2-53, some personal had complained to the then S. P. that inspite of having drawn their pays he was not inclined to disburse till they were prepared to pay him. (b) Then the S. P. went to the Police Lines for physical checking of the cash, the H. G. feigned he had no key with him. He was allowed to bring the key but he did not turn up for about 2 hours and as such cash could not be checked up. " The Enquiry Officer vide his report Ex. 31 held the respondent guilty on all counts except a part of charge No. 1 (a) relating to acceptance of illegal gratification by the respondent The report of the Enquiry Officer was accepted by the Disciplinary Authority. The respondent was ultimately dismissed from service by the Deputy Inspector General of Police by his order Ex. 33 dated September 7, 1960. The respondent appealed against this order of dismissal but without any success. He then filed a writ petition to this Court under Article 226 of the Constitution of India and prayed that the order of dismissal be quashed. The writ petition was opposed by the appellant i. e. the State of Rajasthan. Before the learned Single Judge the respondent challenged the impugned order of dismissal inter alia on the following grounds: - " (1) That the Inquiry Officer was throughout the inquiry taking the aid of the Public Prosecutor, but the petitioner was not permitted to engage a legal practioner to help him in the conduct of the inquiry under the Rajasthan Civil Services (Classification, Control & Appeal) Rules,, when the petitioner, as of right, could claim under clause (5) of Rule 16 the assistance of a legal adviser, if the Inquiry Officer took the assistance of the Public prosecutor for conducting the inquiry; (2) That the petitioner was not permitted by the Inquiry Officer to summon the defence witnesses and send for the documents which were necessary to prove his innocence; (3) That the charges were vague and the vagueness thereof vitiated the inquiry, (4) That the whole matter was decided on hearsay evidence and the the material witnesses were kept away from the inquiry. " The learned Single Judge after thorough probe into the matter arrived at the following conclusions: - " (1) That it was wrong that the Enquiry Officer took the aid of the Public Prosecutor during (he course of enquiry. (2) That the Enquiry Officer did not act erroneously in rejecting the prayer of the petitioner for engaging the legal practitioner during the course of the enquiry. (3) That the charges levelled against the respondent were not vague and on that ground it cannot be said that there was no proper enquiry. (4) That the Enquiry Officer committed serious error in denying opportunity to the respondent to produce his evidence in defence. " On the basis of the last finding, the learned Single Judge allowed the writ petition, quashed the order of dismissal dated September 7, 1960 and ordered re-instatement of the respondent. Dissatisfied with the said order this special appeal has been preferred on behalf of the State of Rajasthan. We have Reard Mr. A. K. Mathur the learned Govt. Advocate on behalf of the appellant and Mr. Mridul learned advocate for the respondent. We have also gone through the record of the case with due care. It is abundantly clear from the impugned judgment that the sole ground which persuaded the learned Single Judge to quash the order of dismissal was the denial of opportunity to the respondent to produce certain evidence in his defence. In this connection the relevant discussion in the judgment of the learned Single Judge finds place at page 204 of the paper book which runs as follows: - "the main ground on which a considerable stress has been laid by Mr. Mridul to challenge the order of dismissal is that the petitioner was not afforded an adequate opportunity to produce his defence. In this connection, reference has been made to an application submitted by the petitioner before the Inquiry Officer on 11-3-1960 in which the petitioner demanded certain documents to be summoned in his defence. Another application (Ex. 18) dated 21-5-60 was submitted by the petitioner wherein the petitioner had mentioned the names of certain persons whom he wanted to examine as his witnesses. From a perusal of document (Ex. l8), it is clear that the petitioner was very keen to examine certain witnesses named therein and the reasons why a particular witness was necessary to be examined by him were given against each name. The Inquiry Officer allowed only five witnesses, namely, Karan Ram, Deoratan, Smt. Ugam Kaur, Girdhari Lal and Gabru Ali but for the rest the request of the petitioner was rejected on a very superficial ground mentioned by the Inquiry Officer that they were irrelevant. Looking to the charge contained in Ex. 4, I find that one of the charges levelled against the petitioner was that he absented himself from duty without taking leave In order to rebut this charge, the petitioner, wanted to examine Moolchand, Mewa Ram and Sohansingh and had also summoned the cash book of the Police Lines, Pali of 7. 2. 1963 to 8. 2. 1963 which is alleged to have been written by him when he was on duty. The learned Inquiry Officer while rejecting the application of the petitioner for summoning these witnesses and the relevant documents viz. cash of the Police Lines. Pali and also the cash book of the office of the Superintendent of Police, Pali which was also alleged to have been written by the petitioner gave only this reason that they were irrelevant. Why and how these documents which are obviously quite relevant to the issue under inquiry were declared irrelevant by the Inquiry Officer, no reasons was advanced by the Inquiry Officer. The petitioner had also filed an application to summon certain other documents contained in Ex. 14 to establish certain facts which, if not rebutted, would have been read against him at the inquiry. The learned Inquiry officer without assinging any reason as to why he considered those documents also to be irrelevant for the inquiry rejected the petitioner's request and thus; deprived him of a very valuable right to rebut the charges for which the inquiry was going on. In such matters which are likely to bring in its make serious consequences for a person it is necessary for the ends of Justice that a proper opportunity is given to him to prove his innocence. If that is not done or if the petitioner is stopped from producing evidence which may have bearing on the questions in issue before the Inquiry Officer, than the Inquiry cannot be said to be a fair inquiry and it stands vitiated for denying proper opportunity to the delinquent officer to prove his innocence. These inquiries are of a quasi-criminal nature which entail penalties of dismissal and removal and therefore it is necessary that the Inquiry Officer should exercise his discretion while allowing or disallowing the evidence to be produced by the parties with due care and attention. The applications (Exhibits 14 & 18) filed by the petitioner before the Inquiry Officer speak for themselves and before the prayer of the petitioner could be rejected, it was the duty of the Inquiry Officer to have given reasons for not permitting the witnesses which the petitioner wanted to examine and for not summoning the documents which would have thrown adequate light on the subject matter of the inquiry In order to call a particular witness or a document irralerant, it is necessary for the Enquiry Officer to apply his mind seriously and it is only after weighing the pros and cons of the arguments advanced by both the parties that he should record his judgment for disallowing the delinquent officer to produce his witnesses. In my opinion, a serious error has crept in the inquiry that the petitioner was denied an opportunity to produce his witnesses before the Inquiry Officer and on that basis I can say that the order of dismissal passed against the delinquent officer on the strength of the report of the Inquiry Officer cannot be sustained. " It may be stated at the outset that the application Ex. 14 dated 11-3-1960 has nothing to do with (he production of the defence evidence, oral or documentary. The respondent in Ex. 14 merely requested, the Inquiry Officer to permit him to inspect and take extracts from the documents. It has no bearing on the production of the defence evidence. No grievance has been made be fore us on behalf of the respondent that the request of the respondent contained in Ex 14 was turned down for not complied with by the Inquiry Officer or that on that account any prejudice was caused to the respondent. In the circumstances Ex. 14 has no relevancy on the question of denial of opportunity to the respondent to produce evidence in defence.
(3.) THE only relevant application in this connection is Ex. 18 which contains list of witnesses to be examined and list of documents to be tendered in evidence by the respondent in his defence. A perusal of the application Ex, 18 shows that the respondent therein mentioned against each witness and each document the reason why he wanted to produce that witness or document. THE Enquiry Officer vide his order Ex. 19 disallowed examination of some of the witnesses and production of some of the documents mentioned therein on the ground that they were irrelevant. We have carefully gone through the application Ex. 18 and the order Ex. 19 passed thereon. We are satisfied that the witnesses as well as the documents whose examination or production was disallowed by the Enquiry Officer were either wholly irrelevant to the enquiry or were concerned to disprove charge No. 3 mentioned in charge sheet Ex. 4 viz absence of the respondent from the Police Lines, Pali from 7-2-1953 to 19 2-1953 Mr. Mridul was not able to point out from the order Ex. 19 that any such witness or any such document was disallowed by the Enquiry Officer which had any relevancy in regard to charges other than charge No. 3. In the circumstances, the utmost that can be said is that the order Ex. 19 prejudiced the respondent to prove his innocence in respect of charge No. 3 Even if this charge No 3 is ignored from consideration there still remains two other charges for which the respondent was found guilty by the Enquiry Officer as well as the Disciplinary Authority. It appears that this aspect of the case was not placed before the learned Single Judge. In the present case the Disciplinary Authority ordered dismissal of the respondent on the basis of the report of the Inquiry Officer who held that part of charge No. 1 (a), charge No. 1 (b), charge No. 2 and charge No. 3 were proved against the respondent. As already stated above the findings of the Inquiry Officer relating to charge No. 3 cannot be sustained as no adequate opportunity was offered to the respondent to prove his innocence in respect of that charge. It has been urged by Mr Mridul on behalf of the respondent that the findings of the Inquiry Officer on other charges, also cannot be sustained as there existed no evidence to support them. It is common ground that in proceedings under Art. 226 of the Constitution, the High Court cannot sit in appeal over the findings recorded by a competent Inquiry Officer in a departmental enquiry and therefore, cannot re-appreciate the evidence. At the same time it is also common ground that if it is show that the impugned findings recorded by the Inquiry Officer are not supported by any evidence, the High Court in exercise of its writ jurisdiction would be justified in setting aside the said findings. The question, therefore, which falls for our decision is whether the findings of the Inquiry Officer on charges Nos. 1 and 2 are not sustainable as they were based on no evidence. Before dealing with this point it will be necessary to set out the findings recorded against the respondent by the Inquiry Officer. As regards charge No. 1 (a) the Enquiry Officer found that there was no proof that the respondent had demanded illegal gratification before disbursing the pay. Having arrived at the above conclusion the Inquiry Officer still found the respondent guilty of charge No. 1 (a) saying that the respondent did not discharge his duties properly. In arriving at the above finding the Inquiry Officer relied upon the statements of F. C. Daulat Puri P. W 2 and P. W. 6 Hansraj. The relevant observations of the Enquiry Officer in respect of part (a) of charge No. 1 runs asunder: - "part (a) of charge No. 1 was the reason for the initiation of this enquiry in this connection only one witness P. W. 2 F. O. daulat Puri could be examined. This P. W. has deposed that he had appeared before the then S. P. shri Guman Singhji as he was not receiving his salary in time. He had appeared before the S. P. alongwith other Constables. Because of non-availability of these constables they could not be examined. But from the evidence of this witness it is clear that the salary was not being disbursed in time. As far as payment of H. C. Danmal before disbursing the pay is concerned this charge remains unproved because none other witness could come forward to support it. Certainly P. W. 6 Shri Hans Raj Accountant has corroborated this witness to the extent that constables complained to the S. P. that the delinquent officer was delaying the payment of salaries to the constables. This is sufficient to establish that the delinquent officer did not discharge his duties properly. " ;