Bombay High Court
State Of Maharashtra And Ors. vs Nanasaheb Mahanaji Deshmukh on 19 June, 1986
Equivalent citations: 1986(3)BOMCR357
JUDGMENT S.M. Daud, J.
1. This appeal raises an interesting question in relation to departmental enquires.
2. The points that arise for determination have to be considered in this following background. The respondent plaintiff was working as a Police Head Constable attached to the Washi Police Station, District Osmanabad between the 9th June, 1965 to 13th June, 1966. Brothers Laxman and Pralhad, the sons of Dattatraya Bargaje had fallen out to such an extent, that Laxman gave an application against his brother to the police entreating them to take action under section 145 of the Criminal Procedure Code. The application given by Laxman was made over to plaintiff for an enquiry. The enquiry was completed by the plaintiff in about November 1965 and the finding reached by him was that the dispute between the brothers was of a civil nature, for which reason Laxman had to resort to a Civil Court. Papers pertaining to the enquiry were made over to the custody of a writer constable. After the transfer of plaintiff, constable Dinkar Kulkarni, then at the Washi Police Station, was engaged in rearranging the papers. At that time he come across blank papers bearing the signature of witnesses connected with the application moved by Laxman. These papers were made over by constable Kulkarani to the P.S.I., who in turn reported the matter to the Superintendent of Police when that office carried out an inspection of the Police Station concerned. The S.P. directed the C.P.I. to conduct a preliminary enquiry and submit a report. The C.P.I. recorded statements of Laxman and other witnesses. He found a prima facie case that plaintiff had not recorded the statement of any witness and that the signatures on the blank papers had been obtained at his instance by Laxman, and, that a prima facie case having been established against the plaintiff, it was necessary to take further steps. The S.P. accepted the proposal and directed a departmental enquiry against the plaintiff, the task being assigned to the S.D.P.O., Lature. The Enquiry Officer framed charges against the plaintiff and made over copies of the statement recorded in the preliminary enquiry by the C.P.I. to the delinquent. Plaintiff denied the charges levelled against him. Witnesses who had been questioned by the C.P.I. were summoned before the S.D.P.O. The S.D.P.O. read out statements attributed to these witnesses. In the record prepared by the S.D.P.O., most of the witnesses denied that plaintiff had done anything that was wrong. In particular, it was Laxman's version that a police constable or Head Constable, whose name he did not know and who certainly was not the plaintiff had directed him to obtain signatures on blank papers of certain persons. This task was carried out by him and the signatures bearing, but otherwise blank papers were made over by him to the policeman who had given the direction to him. The S.D.P.O. held that none of the charges could be said to have been established against the plaintiff. However, he observed that the conduct of the plaintiff was quite suspicious and the plaintiff had behaved in a manner derogatory to his status. For this misconduct he proposed withholding of plaintiffs increment for a period of six months. A report to this effect was submitted by the S.D.P.O. to the S.P. The S.P. held that plaintiff was guilty of perverse conduct as charged, and, that he could not be exonerated. Plaintiff was given a Show Cause Notice as to why action should not be taken against him for having obtained signatures of persons without recording their statements etc. etc. plaintiff was quality and police force. Plaintiff's appeal/revision and representation to the competent authorities having proved of no avail, he filled a suit after having served the required notice under section 88 of the Civil Procedure Code.
3. In the suit, plaintiff contended that the departmental enquiry held against him was in contravention of his statutory and constitutional rights. In particular, it was his case that the Enquiry Officer committed a serious error in utilising statements recorded during the preliminary enquiry, in the course of the departmental enquiry. The appellant State denied that there had been any infraction of the statutory or constitutional rights of the plaintiff. It was contended that the S.P. had acted upon admissible material. Whether that was sufficient to warrant the punishment of removal from service, was, a question outside the jurisdiction of Civil Court. The courts below were of the view that Para 448 of the Bombay Police Manual, 1959 which governed the matter prohibited the reception of statements recorded in the absence of the delinquent at the stage of the enquiry against him. At the preliminary enquiry the delinquent was not present and no material incriminating him had come before the S.D.P.O. in the course of the departmental enquiry. Therefore, the enquiry was vitiated and the removal pursuant thereto could not be sustained. In appeal, it is contended that the courts below were in error.
4. Two questions which arise in the instant appeal are---
(1) Whether there was no incriminating material to hold the plaintiff guilty of the charge levelled against him ?
(2) Whether the S.P.'s order finding the plaintiff guilty was bereft of evidence ?
In-so-far as the first point is concerned, learned Counsel representing the appellants submits that statements recorded during the preliminary enquiry had been duly proved by the examination of the C.P.I. at the departmental enquiry. True, Laxman and the other witnesses went back on their statements given during the course of the preliminary enquiry. But it was open to the S.P. to hold that the statements recorded by the C.P.I. were based on what Laxman and other witnesses had stated before him. It was open to the S.P. to further hold that the witnesses had then stated the truth, and had retracted therefrom, in the course of the departmental enquiry out of some improper motive. Para 448 of the Bombay Police Manual, 1959 could not be repudiated. In terms, this paragraph requires the officer conducting the departmental enquiry to do this :
"The officer conducting the proceeding should then call all necessary witnesses in support of the charge and in the delinquent's presence, record statements they may have to make. He should then give the delinquent an opportunity of cross examining each witness after his statement in support of the charge is completed, any such cross-examination being recorded below the statement of the witness concerned."
A cautionary note to the Para reads as under :
"Previous statements should not be used in a Departmental Enquiry. However, they are useful as a sort of guide to the Presiding Officers who can contradict any witness turning hostile by using their previous statement for the purpose of cross-examination. Previous statement should be duly proved by examining the officer who recorded the statement. The Presiding Officer can then judge the value to be attached to the deposition of the witness."
Carefully read, the paragraph permits the use of a previous statement made, but subject to the important qualification that the said statement should have been made "in the presence of the delinquent". Mr. Deo submitted that hear-say material was not fully inadmissible or debarred in departmental enquires. In support of this proposition he relied upon, State of Haryana and another v. Rattan Singh, . In that case, it has been held that in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence, provided it has reasonable nexus and credibility. These observations made in a case arising out of a domestic enquiry, would also apply to a departmental enquiry against a public servant. However, the factual matrix in which the observations came to be made, have to be borne in mind. The departmental enquiry was against a Conductor of the Haryana Roadways, whose task it was to collect fares from passengers and issue tickets to them. A flying squad, headed by an Inspector, came across a bus being managed by the delinquent Conductor. The Inspector noticed as many as 15 persons who were without tickets. 11 of them, still in the bus, claimed that they had paid the fares but not been given tickets by the Conductor. Four had alighted without tickets at a way-side stop. The statement of the passengers attributing the lapse to the Conductor was made in his presence and within his hearing to the Inspector. At the stage of the departmental enquiry what was adduced against the Conductor was the report of the Inspector supplemented by his statement. It was in, the above context, that the Court made the observations recited in the beginning. Therefore, primary and incriminating material had been given expression to in the presence and hearing of the delinquent and repeated by one who had not merely heard the same, but was also an eye-witness in the proper sense of the word. The Inspector has been the 15 tickets travellers, had heard them say that they had paid the fares to the delinquent, had witnesses the demeanour of the delinquent when this accusation was made to his fact, and, it was this, that he set forth in a contemporaneously drawn up document. At the enquiry, the said report was supplemented by his account of what had happened in his presence. Therefore, this was not a case of hearsay, pure and simple. It rested upon something which was based on the observations and knowledge of the person making the accusation against the conductor. The difference with the present case is apparent. The C.P.I. had not witnessess plaintiff giving a direction to Laxman to obtain signatures of various persons. He had not seen Laxman obtaining signatures and making over the blank, But signed papers, to the plaintiff Laxman had made a statement before him and the C.P.I. could not guarantee its varacity. For aught we know, Laxman may have told lies to the C.P.I. when he claimed that blank signatures had been obtained by him pursuant to a direction given by the plaintiff. He may have made this allegation to cover up dubious conduct on his own part. It is of course possible, that plaintiff gave Laxman the directions mentioned in the preliminary statement given by him when questioned by the C.P.I. However, plaintiff was not present when the statement was made. Contrass this, with the presence of the Conductor, when the ticketless passengers in the bus alleged that they had paid the fares but had not been given tickets by the Conductor. The person to whom the passengers had given their statements was examined as a witness at the enquiry against the Conductor. When Laxman was examined before the S.D.P.O. He did not repeat what he had attributed to the plaintiff in the preliminary statement. These are material deficiencies and they made all the world of a difference to the fate of the delinquent. It was argued that the S.P. faced with two conflicting statements before him, had to make a decision as to which was the true one. In substance, the S.P. had preferred one, and, that was the version given by Laxman and the other witnesses in the preliminary enquiry. The fact that the preliminary statements had not been made before or in the presence of the plaintiff rendered them material which could not be utilised unless corroborated at the departmental enquiry. Such corroboration was not forth coming. It would have been a different matter, if the preliminary statements had been recorded in the presence of the plaintiff. It could have then been said that incriminating material had been collected in the presence of the delinquent. There is a difference in the admissibility of statements made at a preliminary enquiry, and, that depends upon the presence or absence of the delinquent when the said statements are recorded. There is a qualitative difference in accusations made in the presence of and the absence of the delinquent. The very presence of the delinquent may restrain the maker of the accusation-normally speaking-if the accusation is variance with the truth. On the other hand, the presence of the wrong-doer may so incites the accuser, that he will come out with a wholesale condemnation loudly uttered, which the person accused. May refrain from repudiating. The demeanour of the accused and the accuser, the words used by them, their responses and other surrounding circumstances would have a material bearing on the credibility or otherwise of the accusation and the response, in the light of the foregoing. I cannot but agree with the courts below.
The other reason for sustaining the decree passed, is more important. Taking the material for what it is worth, could any reasonable and prudent person say that plaintiff had done any thing that could be described as a lapse, misconduct or mis-demeanour ? He had directed Laxman to obtain signatures of various persons on blank papers. There is no material to hold that this direction was given for the purposes of fabricating material to implicate Pralhad. Assuming that plaintiff initially had the aim of falsely involving Pralhad, can this, in the light of what happened later, suffice to incriminate him ? For one full year plaintiff was at the Washi Police Station. He did not fabricate statements, though he had with him the signatures which Laxman had obtained on a direction given by him. That plaintiff left the signed blank papers as they were, would indicate that he assist Laxman in his fight against Pralhad. A mere preparation to commit an offence-exceptions apart-does not amount to an offence. This is because one who prepares, may abandon, the guilty path. It would be a different matter if the preparation has gone beyond and entered the arena of what constitutes 'attempt'. Here, there is no evidence to show that plaintiff had gone beyond the stage of preparation. This being the position, the finding of the S.P. that the plaintiff had committed misconduct warranting his removal from the police force, was one that cannot be sustained. No official or authority vested with the right to appraise the material, could reasonably hold plaintiff guilty, for this reason also, though the same has not been discussed by the Courts below the, decree will have to be upheld. The appeal fails and hence the order.
Appeal dismissed. Parities shall bear their own costs.