Punjab-Haryana High Court
The State Of Haryana And Ors. vs Roshan Lal Sharma on 6 December, 1968
JUDGMENT S.B. Capoor, J.
1. This Letters Patent appeal under Clause X of the Letters Patent is directed against the judgment dated the 22nd July, 1968, whereby the Civil Writ Petition under Article 226 of the Constitution of India by Roshan Lal Sharma Teshildar (under suspension) now respondent, was partly allowed by the learned Single Judge. The appellants are (1) State of Haryana (2) Financial Commissioner, State of Haryana, Chandigarh and (3) Commissioner. Ambala Division, Ambala, who were respondents to the writ petition.
2. The respondent was serving as Tehsildar, and after the creation of the State of Haryana, his services were allotted to that State. Before the reorganization of the Punjab there were certain allegations of mis-conduct against the respondent and Mr. A.L. Fletcher who was then Financial Commissioner, Revenue framed a charge sheet containing a number of charges against him which was served on him together with a summary of allegations by the Commissioner, Ambala Division vide Memorandum No. 519/ST/KF/EA-II-25152, dated the 13th September, 1966. He was told that it was proposed to take action against him under Rule 14 of the Punjab Tahsildari Rules, 1932, hereinafter to be referred to as the Rules. The respondent denied the allegations in his reply dated the 26th September, 1966. The case was put up before Mr. Fletcher who found that charges 3, 4, 5 ,7 and 10 framed against the respondent were baseless and he ordered the Commissioner, Ambala Division, to make a enquiry into the remaining charges which were comparatively less serious. This order was duly conveyed to the Commissioner, Ambala Division, vide memorandum No. 8137-E(II)-66, dated the 31st October, 1966.
3. The State of Punjab was reorganized, in consequence of which the State of Haryana came into existence on the 1st of November, 1966, and the respondent's services were allotted to this State. Mr. S.N. Grewal was the Financial Commissioner. Revenue in the State of Haryana and the case as set out in the petition was that actuated by mala fides and personal enmity Mr. Grewal made an order that the enquiry against the respondent would be proceeded with into all the charges which had been framed against him including thore which had beee ordered by Mr. Fletcher to be dropped. This was on the 9th of November, 1966, and by order of the Commissioner. Ambala Division, dated the 29th of November, 1966, the respondent was placed under suspension and dispite the respondent's objection to the departmental enquiry proceeding even on the charges which had been dropped, the enquiry was being proceeded with.
4. In the return on behalf of the respondents which was verified by the Deputy Secretary Government of Haryana, Revenue Department, the allegations as to mala fides were denied and it was maintained that shortly before the reorganization of the Punjab, the respondent was able to muster some political support in consequence of which the consideration of the explanation submitted by him to the charge sheet was rushed through. His explanation running into about 39 pages was received in the office on the 30th of October, 1966, with the suggestions that charges 3, 4, 5, 7 and 10 should be dropped, charges 2 and 6 stood substantiated and charges 1, 8, 9 and 11 deserved to be enquired into. Mr. Fletcher without applying the normal judicial tests passed an order on the 31st of October, 1966, which was merely as proposed and so comparatively more serious charges were maneuvered to be dropped. It was further maintained that since Mr. Fletcher's order was not communicated to the respondent. It was open to his successor to review it and that this was done with the approval of the Minister Incharge and the Chief Minister. Thus the order directing enquiry into the charges which were previously dropped by Mr. Fletcher was not illegal. It was also pointed out that during the pendency of the writ petition the enquiry had been proceeded with. The respondent had been provided ample opportunity to defend himself before the Enquiry Officer (Commissioner, Ambala Division). The respondent had also been served with a show cause notice, dated the 30th of June, 1967, calling upon him within 21st day from the receipt of the notice by him as to why he should not be dismissed from service.
5. Two matters were pressed before the learned Single Judge:--
(1) That under the rules Mr. Grewal could not legally review the order passed by Mr. Fletcher and direct enquiry on those charges which had been dropped by the latter.
(2) That Mr. Grewal's order was malafide being actuated by personal enmity between him and the respondent.
6. Both these points were found by the learned Single Judge in favour of the respondent and he held that the enquiry into charges 3, 4, 5, 7 and 10 had been restarted under the prejudicing influence of extraneous considerations. He further held that there was no bar to the enquiry into the remaining 1, 8, 9 and 11. In the result, he partly allowed the petition directing that the findings of the Enquiry Officer on charges 3, 4, 5, 7 and 10 should not be taken into account by the punishing authority and that these charges and report thereon are to be ignored altogether. This direction was not to fetter the discretion of the punishing authority to pass any order in accordance with law in respect of charges 1,8,9 and 11 after taking into consideration the report of the Enquiry Officer on these four charges.
7. The case of the respondent so far as the mala-fides on Mr. B. S. Grewal is concerned is as follows:--
The respondent belongs to the same village as Shri Hardwari Lal who was once a Minister in the State of Haryana and was an editor of an English weekly known as 'Punjab Sentinel.' 'In that paper various articles were being published in which though Mr. Grewal was not named but since in those articles there were allegations against the conduct and integrity of an officer who referred to as 'a top Government Official' and a very senior officer of the Haryana Government', the reference was obviously to Mr. Grewal, who thus got an impression that on account of the friendship of respondent and his father Shri Ratti Ram, who was a retired Superintendent of the Punjab Civil Secretariate with Shri Hardwari Lal, the respondent was responsible for getting the articles published against him. Shri Ratti Ram had also published an article in that journal critising Mr. Grewal by describing him as "top civil officer of the State of Haryana."
8. With regard to these allegations, the position taken up in the affidavit of Mr. Sukhdev Parshad, Deputy Secretary was as follows:--
"I also deny for want of knowledge if any material was published in 'Punjab Sentinel' against Respondent No. 2. As such the question of having any animosity with the petitioner does not arise."
9. The learned Single Judge observed that Mr. Grewal had not cared to refute those allegations by filing any counter affidavit and even the Deputy Secretary, Revenue, had not ventured to deny specifically that the respondent's father had published an article against Shri B. S. Grewal in the paper edited by Shri Hardwari Lal. On the basis of certain observations in R.P. Kapur and Ors. v. Sardar Partap Singh Kairon and Ors. (A. I. R. 1961 S.C. 1117) Sardar Partap Singh v. State of Punjab (A. I. R. 1964 S.C. 72 and Lokesh Chandra v. Commissioner, Rohilkhen Division Bareilly and Ors. (A. I. R. 1956 Allahabad 147), the learned Single Judge came to the conclusion that the facts alleged in the affidavit of the petitioner (respondent in the L. P. A.) with regard to the supposed mala fides of Mr. Grewal towards him were such as could only be in the personal knowledge of Mr. Grewal, and since he had not chosen to file any counter affidavit the facts alleged in the petitioner's affidavit are to be accepted as true.
10. We are constrained to observe that the allegations as to malice made in the affidavit of the petitioner were of the vaguest character and not only was Mr. Grewal not named in the articles supposed to have been published against him in the Punjab Sentinel, but the dates of the issues in which they were published were also not mentioned. Mr. Grewal was not personally made a respondent and it cannot be assumed that either he had read them or one of the readers of this journal brought those articles to his knowledge. In the circumstances, it would not be correct to say that the allegations of malice were based on anything which "could only be in the personal knowledge of Mr. Grewal" and we are unable to agree with the learned single Judge that it was incumbent on him to file his counter affidavit. In the circumstances, the Deputy Secretary's affidavit as to want to knowledge of any circumstance of personal animosity between the Financial Commissioner and the respondent was sufficient. It is also to be emphasized that the reference in the article to a top civil officer of Haryana Government could as well be to some other top civil officer of that Govt. such as the Chief Secretary.
11. The cases relied upon the learned Single Judge as mentioned above can be distinguished. In R.P. Kapur's case (supra) Sardar Partap Singh Kairon who was Chief Minister, Punjab, was made a party respondent to the petition. Serious allegations were made against him and it was held that he owed a duty to the Supreme Court to file an affidavit stating what the correct position was so far as he remembered it, and not to leave the refutation of allegations to the Secretaries and other officers who could only speak from the record. In Sardar Partap Singh v. State of Punjab (supra) the appellant-petitioner had made an application to the High Court for impleading Sardar Partap Singh Kairon, the Chief Minister, as a party. That application was declined. There was evidence produced on behalf of the appellant about certain talks recorded on the tape recorder in support of his assertion as to what passed between him and the Chief Minister and the members of the latter's family. In the counter affidavits there was no denial of the genuiness of the tape recording and so they were taken into consideration. In the case of Lokesh Chandra (supra), there was no counter affidavit at all by the respondents, and so it was held that the facts alleged in the affidavit filed in support of the petition were to be accepted as true. The circumstances in the case before us are obviously different from those in the above cases.
12. In ground No. 45 of the Grounds of Appeal, it is stated as follows:--
"That all the allegations of personal bias made against Shri B. S. Grewal, Financial Commissioner, Haryana, in para 17 of the Writ Petition are vague and did not relate to any matter which could be said to be in exclusive personal knowledge of Shri B. S. Grewal. No dates of the alleged publication of articles in the Punjab Sentinel are mentioned. It is not even alleged that the articles were published before the impugned order was passed. The fact of the matter is that the alleged articles were published in the issues of the paper dated 24-11-1966, "8-12-1966 and 5-1-1967, whereas the impugned order had been passed by Shri B. S. Grewal, on 9-11-1966".
13. Mr. U. D. Gaur, learned counsel for the respondent has not disputed the assertions made in the Grounds of Appeal as to the dates of the issues of the Punjab Sentinel in which the alleged articles were published and the last one viz; of the 5th January, 1967 is by Shri Ratti Ram, father of the respondent. He stated, however, that earlier also a similar article was published in the Punjab Sentinel dated the 13th October, 1966, and he produced it in Court but in that all that was said was that an officer whose conduct has been under enquiry for charges of corruption and misappropriation of public funds more than once, had been drafted to Haryana and assigned highly important duties. It would however, be much too far fetched te argue firstly that Mr. Grewal must have known about the publication of this article or that he should have inferred that it referred to him. On the other hand, the articles of the 24th of November, 1966, 8th of December, 1966, and 5th January, 1967, did refer to a top Government official suspected of misconduct' and 'a very senior officer of the Haryana Government, "while in the issue of 5th January, 1967, it was mentioned a top most Civil Officer of Haryana'. There could be no manner of doubt that when in the writ petition allegations of Mala fides were made on the basis of the publication of certain articles in the Punjab Sentinel, these three issues that is of the 24th November, 1966, 8th December, 1966, and 5th January, 1967 must have been in respondents mind. These are all after the date of Mr. Grewal's impugned order viz. 9th November, 1966, and it could not, therefore possibly have been influenced by these articles. In the instant case, the conclusion is irresistible that the allegations of mala fides in this respect were deliberate lies calculated to prejudice the Court for obtaining admission of the writ petition having regard to the pronouncement of the Supreme Court that if allegations of mala fide are made the writ petition is not to be dismissed in limine (vide British India Corporation Ltd. v. The Industrial Tribunal Punjab and Anr. A. I. R. 1957 S.C.--357.
14. It has been held by a Bench of this Court in U.C. Rekhi v. The Income Tax Officer 1st 'F' Ward, New Delhi (A. I. R. 1951 Simla 1) that in a writ of prohibition of ex-parte injunction, uberima fides is essential where an application is made for a rule nisi and therefore if there is a suppression of material facts in the applicant's affidavit the Court will refuse the writ without going into the merits. This is on the basis of certain observations of Lord Cozens' Hardy M. R. in The King v. Kensington Income tax Commissioners (1917 (1) K. B. 486). These observations have been quoted with approval in a Full Bench judgment of the Allahabad High Court in Asiatic Engineering Co. v. Achhru Ram and Ors. (A.I.R. 1951 Allahabad 746) in which the learned Judges had held that a person obtaining an ex-parte order or a rule nisi by means of petition for exercise of the extra ordinary powers under Article 226 of the Constitution must come with clean hands must not suppress any relevant facts from the Court must refrain from making misleading statements and from giving incorrect information to the Court. Courts for their own protection, should insist that persons invoking these extra ordinary powers should not attempt in any manner, to is misuse this valuable right by obtaining exparte orders by suppression, misrepresentation or misstatement of facts. If the facts are stated in such a way as to mislead and deceived the Court there is power inherent in the Court, in order to protect itself and to prevent an abuse of its process, to discharge the interim order and to refuse to proceed further with the examination on the merits of the application for the issues of rule for writs of certiorari, prohibition and mandamus.
15. In view of the conduct of the petitioner in the petition from which this appeal arises we were first inclined to allow the appeal and dismiss the writ petition. However, the learned Single Judge after examining the merits of the case has held that the enquiry against the respondent cannot legally be proceeded with on certain charges, and the dismissal of the writ petition at this stage will mean that even those charges are to be taken into consideration against the respondent. Accordingly, we have considered it proper to go into the merits also.
16. The crux of the matter is that whether at the stage at which the departmental enquiry against the respondent had reached, the dropping of certain charges against him by Mr. Fletcher became final and not liable to be reopened by his successor Mr. Bhagirath Dass, Learned Counsel for the appellants, contended that no formal departmental enquiry had yet been initiated against the respondent and that what had been done before Mr. Fletcher's order of 31st of October, 1966, was a mere fact-finding enquiry. For the distinction between a fact finding enquiry and a formal departmental enquiry. Mr. Bhagirath Dass relied on Champak Lal Chiman Lal Shah v. The Union of India (A.I.R. 1964 S.C. 1854, at pages 1861-62). It was observed there that when it is intended to take action for an alleged misconduct of a public servant by way of punishment what usually happens is that something in the nature of a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An enquiry officer is appointed who holds the formal departmental enquiry and this is to be held in accordance with the principles of natural justice. Such a preliminary enquiry may even be held exparte, for it is merely for the satisfaction of Government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. In the next case cited by the Mr. Bhagirath Dass The State of Punjab and Anr. v. Sukh Raj Bhadur (1968 S. L. R. 701) it was observed that if there is a full scale departmental enquiry envisaged by Article 311 of the Constitution of India, an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered. On the other hand Mr. U.D. Gaur, learned Counsel for the respondent, relied of Amulya Rattan Mukherjee v. Deputy Chief Mechanical Engineer Eastern Railway and Ors. (A.I.R. 1961 Calcutta 40) for the proposition that the formal departmental enquiry as distinguished from the fact finding enquiry starts from the charge sheet. We have therefore, to see what was the particular stage reached in the enquiry against the respondent. The memorandum with which the charge sheet was sent to the respondent is Annexure A2 which specifically mentions that it was proposed to take action against him under Rule 14 of the Punjab Tehsildari Rule 1932, on the grounds set out in the charge sheet and statement of allegations appended thereto. He was also required to state in writing, within a period of 21 days from the receipt of the memorandum by him, whether the admitted the truth of all or any of the charges, what explanation or defence, if any, he bad to offer and whether he desired to be heard in person. The charge-sheet (Annexure A-3) and the statement of allegations (Annexure A-4) are in very great detail. The procedure was thus in strict accordance with Rule 14 of the Rules and there can, therefore, be no manner of doubt that the formal departmental enquiry against the respondent had commenced. The general principle is that once a departmental enquiry is over and a public servant has been exonerated, no second departmental enquiry on the same facts can be ordered unless there is a specific provisions for reviewing an order of exoneration in the Service Rules or any law. Dwarka Chand's case (supra). A distinction was sought to be made on behalf of the appellants between the "dropping of certain charges" and "exoneration" from those charges, but this is merely a verbal distinction, and the essence of the matter is, so far as Mr. Fletcher's order who was then Financial Commissioner, was concerned, the enquiry on the charges 3, 4, 5, 7 and 10 was not to be proceeded with Mr. Bhagirath Dass maintained on the basis of the observations made in Raja Kishore Dass v. The State of Orissa (A. I. R. 1965 Orissa 183, at page 186) that an alteration or addition or amending of a charge is merely a matter of procedure and so long as ample notice of such alteration or addition or amendmeng of a charge is merely a matter of procedure and so long as ample notice of such alternation or addition or amendment is given and adequate opportunities for defence are afforded to the delinquent officer, there will be no violation of the rules of equity. The case before us is not, however, of any alternation or amendment or addition of the charge, but of the dropping of certain charges which would tantamount to exoneration from these charges. Mr. Bhagirath Dass then sought resort to Section 10 of the Punjab General Clauses Act, 1898 (Punjab Act 1 of 1898) according to which where power to issue notifications or make orders, rules or bye laws is conferred it includes a power exercisable in the like manner and subject to the like sanction and conditions, if any to add, amend, vary of rescind them. But what is said in this section is inapt for our purpose and more appropriate is the fundamental principle that unless the relevant rules so provide, the punishing authority has no power to review its own order.
17. The next argument put forward on behalf of the appellants was that under Section 15 of the Punjab Land Revenue Act, 1887 (Punjab Act, No. 15 of 1887), a Revenue Officer may, either of his own motion or on the application of any party interested, review, and on so reviewing modify, reverse or confirm any order passed by himself or by any of his predecessors in office and in as much as the Punjab Tahsildari Rules, 1932, were made under Section 9 of the aforesaid Act it should be held that Mr. Grewal as a successor of Mr. Fletcher had the power to review or modify that order. The argument is based on a misconception. Section 9 of the Punjab Land Revenue Act, as amended by the Government of India Adaptation of Indian Laws Order, 1937 no longer enables the Financial Commissioner to make rules for the appointment and removal of Tahsildars, and as explained in the State of Punjab and Anr. v. S. Gian Singh (A. I. R. 1960 Punjab 168) though the Punjab Tahsildari Rules, 1932, continued to be in foree by virtue of paragraphs 9 and 10 of the said order these rules must be deemed to have been made under the appropriate provisions of the Government of Indian Act, 1935, the amendments to the rules are made by the Governor of the Punjab in exercise of the powers conferred to him by the proviso to Article 309 of the Constitution of India. It follows accordingly that the power of review as conferred under Section 15 of the Punjab Land Revenue Act will be confined only to orders made under the that Act aad not to disciplinary action taken under Tehsildari Rules which do not confer any power to review final orders passed in disciplinary proceedings taken under Rule 14 of the Rules.
18. Mr. Bhagirath Dass as a last resort argued on the basis of observations made in paragraph 11 in Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court (A.I.R. 1956 S.C. 285) that the exercise of the power to appoint or dismiss an officer is that exercise not of judicial power but of an administrative power, and so the impugned order of Mr. Grewal reviewing certain charges against the respondent was not open to question by the Court. The distinction made by Mr. Bhagirath Dass is unreal. It has been held in Bachhittar Singh v. State of Punjab and Anr. (A.I.R. 1963 S.C. 395) that proceedings in an departmental enquiry held against a Government servant cannot be divided into (a) the enquiry and (b) taking action against him and after so dividing the first point cannot be treated as involving a decision on the evidence and described as judicial while the latter as purely an administrative decision liable to be changed by the State. Both the stages are equally judicial and the second stage of the proceeding is no less judicial then the earlier one. If as held by the Supreme Court in this case, any action taken in a departmental enquiry against an officer is to be a judicial order not liable to be varied at the will of the authority which is empowered to impose a punishment equally the dropping of certain charges against the public servant meaning the exoneration therefrom is a quasi judicial order and no liable to be varied at the will be fo the authority unless the relevant statute or the rules give the authority the power to review. Not only the Full Bench of this Court in Deep Chand v. Additional Director Consolidation of Holdings, Punjab Jullundur (1964 P.L.R. 318) but also the Supreme Court in Harbhajan Singh v. Karam Singh and Ors. (A.I.R. 1966 S.C. 6 1) has held that in the case of a quasi judicial order unless the statute grants express power of review that order cannot be recalled or reviewed by the authority which made it however erroneous or unjust it may eventually be discovered to have been.
19. Mr. Bhagirath Dass then maintained that the order of Mr. Fletcher dropping certain charges was not officially communicated to the respondent and as such it was open to the Government to vary it whenever it liked and reliance was placed on the observations at page 398 in Bachhittar Singh's case (supra) to the effect that before something amounts to the order of the State Government, it has to be communicated to the person effected by it before the State and that person can be bound be that order. The respondent has alleged that on the 1st November 1966 he appeared before Mr. Fletcher and the latter informed him that charges 3, 4, 5, 7 and 10 had been dropped. This may or may not be true but even if correct it would be of no consequence. In this respect Bachhittar Singh's case (supra) has to be distinguished because the observations relied upon by the learned counsel for the appellants was made in the context of an order in departmental proceedings made by a Minister of the Punjab Government, and the learned Judge of the Supreme Court held that before something amounts to an order of the State Government it has to be expressed in he name of the Governor as required by Clause (1) of Article 166 of the Constitution and then it has to be communicated. The ratio was that constitutionally speaking the Minister was no more than an adviser and until such advice is accepted by the Governor as the Head of the State, it does not become the action of the State, and it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Minister may express quite a different opinion, one which may be completely opposed to the earlier opinion. It is obvious that the ratio is not applicable to the present case where the punishing authority in the case of Tahsildar, as provided in Appendix, 'A' to the Rules, was the Financial Commissioner. Even thought the order may not have been communicated either informally or officially to the respondent it had been forwarded for compliance before the 1st of November, 1966, to the Commissioner, Ambala Division, who had been appointed to make an enquiry against the respondent. Accordingly, it must be held that the order had achieved finality and was not liable to be reviewed.
20. Finally, Mr. Bhagirath Dass Sought to point out that Mr. Fletcher's order of the 30th October, 1966, was merely an endorsement of the office noting and was made in such a hustle that he could not have applied his judicial mind to the matter. This Court cannot, however, go into such matters. As held a by the Bench of Rajasthan High Court in Dwarka Chand v. State of Rajasthan (A.I.R. 1958 Raj. 38), at page 40, the contention that the conclusion by the publishing officer has been arrived at in a very slipshod manner or even dishonestly cannot prevail with the High Court in its writ jurisdiction. If a superior officer holds a departmental enquiry in a slipshod manner or even dishonestly the State can take action against the superior officer and it is also open to it to prosecute in a court of law a person once exonerated in a departmental enquiry. On the other hand, if a second departmental enquiry could be ordered without the authority of the statute or the relevant service rules the danger of harassment to Government officers would be immense and in the present climate of rapid political change we would add that such a course would be very demoralizing of the public servant.
21. In the result, even though the allegations as to the impugned order having been vitiated by malice were unfounded and even deliberately misleading, we endorse the view of the learned Single Judge that the order of Mr. Fletcher dated the 30th of October, 1966, could not be reviewed by Mr. Grewal.
22. It is necessary to add that we do not express nor indeed the learned Single Judge has expressed any opinion on the question, whether it would or would not be open for the Enquiry Officer to take the view that even on the charge which now subsist the case is one meriting removal or dismissal from the service.
23. The Letters patent Appeal is accordingly dismissed but without any order as to costs.
R.S. Narula, J.
24. I agree.