Central Administrative Tribunal - Allahabad
Sri Prasidh Narayan Srivastava vs Union Of India Through General Manager on 27 September, 2011
[Open Court)
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
*****
(THIS THE 27TH DAY OF SEPTEMBER, 2011)
HONBLE MR. A. K. BHARDWAJ, MEMBER (J)
Transfer Application No. 04 of 2007
(U/S 19, Administrative Tribunal Act, 1985)
Sri Prasidh Narayan Srivastava,
S/o Shri Baldev Prasad,
Resident of Village Pipra Jatampur,
Tappa Chaurabargaon,
Pargana Sidhua Jobna,
District Deoria.
Applicant
Present for Applicant : Sri Namit Srivastava, Advocate.
Vs.
Union of India through General Manager,
North Eastern Railway,
Gorakhpur.
Respondents
Present for Respondents: Shri Bashist Tiwari, Advocate
O R D E R
Mr. P. N. Srivastava, clerk posted in the office of ASO, Lucknow (Office of Security Officer) was placed under suspension w.e.f. 11.5.1955. An Enquiry Committee was set up to enquire into charges leveled against the applicant and Enquiry Committee submitted its report on 19 June, 1956 where upon a show cause notice was served upon the applicant asking him to show cause against his dismissal from service. Ultimately, the disciplinary authority passed an order dated 27 May, 1957 dismissing Mr. P.N.Srivastava (applicant) from service. Mr. P.N. Srivastava has filed Suit No. 49/59 seeking following relief a. On a declaration that the plaintiff dismissal was in-valid and a permanent injunction be passed against the defendant and he be allowed to function as a senior clerk in the Railway.
b. The defendant be ordered to pay Rs. 4248/- to the plaintiff.
c. The defendant be ordered to pay to the plaintiff per months salary and allowances from the date of suit to the date of reinstatement.
2. Having examined the issues and determined the same learned Trial Court dismissed the Suit filed by applicant. The order of Trial Court was assailed by Mr. P. N. Srivastava (applicant) before Lower Appellate Court and the said appeal was dismissed by judgment dated 29.9.1962. The Lower Appellate Court uphold finding of the Trial Court. Assailing the order of the First Appellate Court, applicant filed Second Appeal No. 1972/1971 before Honble High Court Judicator at Allahabad. By order dated 15th February, 1971 passed in said appeal, Honble High Court of Allahabad reversed the decision of Courts below and decreed the suit instituted by applicant. As it could be, applicant filed an application for execution of decree passed by Court of Civil Judge, First Class, Gorakhpur. In said Execution Petition No. 77/1982, Civil Judge, First Class viewed as under:-
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3. It is clear from the order of Honble High Court that applicant should have been allowed to work on the post of Senior Clerk in Railway Department. The decree passed by Honble High Court was not fully executed. Learned counsel appearing for respondents submit that in view of judgment of Honble Supreme Court in the case of Union of India and Others Vs. M. B. Patnayak and Ors., an order passed in appeal vacates the order of the First Tribunal on purely technical grounds and expressly states that it was being passed without prejudice, would means that it was not an order on merits of the case, and such an order does not debar fresh adjudicatory proceedings. Para 4 of the judgment read as under :-
4. Mr. Pal, who appeared for the Railway Administration before Misra and Mohanty, JJ., in these three writ petitions requested the leaned Judges to indicate that it is open to the disciplinary authority to continue learned counsel was perfectly justified in doing so. This Court has held in Anand Narain Shukla v. State of M. P. that when the earlier order or reversion was quashed on a technical ground, a second enquiry on merits could be held and that the order of reinstatement pursuant to the quashing of the earlier order on a technical ground is not a bar, and this Court negatived the contention that after the earlier order of reversion was quashed by the High Court and the government servant was reinstated, no second enquiry on the very same charge could be held and no second order of reversion could be legally and validly made. A similar view has been taken by this Court in Superintendent (Tech.I) Central Excise, I.D.D., Jabalpur v. Pratap Rai in which it has been held that where an order passed in appeal vacates the order of the First Tribunal on purely technical grounds and expressly states that it was being passed without prejudice, which means that it was not an order on merits of the case, such an order does not debar fresh adjudicatory proceedings which may be justified under the law and that when an order is struck down as invalid being in violation of the principles of natural justice, there is no final decision of the case and all that is done is that the inherent defect is removed but the proceedings are not terminated. But Misra and Mohanty, JJ. declined to consider favourably the request of the learned counsel for the Railway Administration before them namely, that they should indicate that it is open to the disciplinary authority to continue the proceeding in accordance with law on the ground that 15 years had elapsed since the charges were framed and the petitioners before them namely, the respondents in C.As. Nos. 2119-2121 of 1979, had been suffering on account of being subjected to disciplinary proceedings for such a long time and that it would be a mockery of justice if after the lapse of so many years the enquiry should commence again on the same charges.
4. Relying upon decision of Honble Supreme Court in the case of Divisional, Personnel Officer, Western Railway, Kota Vs. Sunder Dass, Mr. Dave, learned counsel for the respondent further submits that where a penalty of dismissal, removal or compulsory retirement from service imposed upon a railway servant is rendered void in consequence of the decision of a court of law and the disciplinary authority, on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was imposed, the railway servant shall be deemed to have been placed under suspension by the competent authority, para 8 of the judgment read as under :-
8. The fact that the respondent had been dismissed from service pursuant to the finding of guilt recorded in the fresh inquiry has not been disputed before us by the respondent who has appeared in person though the appellant in this appeallant in this appeal had been directed by this Court while ordering show cause notice in the special leave petition to deposit a sum of Rs. 1000 to enable the respondent to engage a counsel to appear for him in this Court and that amount had been deposited by the appellant and withdrawn by the respondent. We perused the record ofo the fresh inquiry and are satisfied that the respondent has admitted the fact of his discharge from service on April 12, 1944 while securing fresh employment under B.B. & C.I. Railway. Mr. Taluqdar, senior counsel, appearing for the appellant submitted that the respondent had been suspended from service on February 17, 1949 before he was originally dismissed from service on May 14, 1949 pursuant to a finding of guilt recorded in the departmental inquiry and that in the subsequent departmental inquiry also, he had been found guilty and was subsequently dismissed from service and therefore, by virtue of the provisions of Rule 1706(4) of the Indian Railway Establishment Code, he must be deemed to have been under suspension right through from February 17, 1949 and he would be entitled only to subsistence allowance and not to full wages for the period from February 17,1949. Clause (1) of Rule 1706 provides for a railway servant being placed under suspension inter alia where a disciplinary proceeding against him is contemplated or pending. Clause (4) of that rule reads thus :
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a railway servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against; him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the railway servant shall be deemed to have been placed under suspension by the competent authority, mentioned in Rule 1705, from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
5. Referring to decision of Honble Supreme Court in the case of Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh and Others (AIR) 1962 Supreme Court 1334. Mr. B. Tiwari, learned counsel appearing for the respondents submits that where the High Court decreed the suit of public servant on the ground that the procedure for imposing the penalty was irregular, such a decision cannot prevent the State from commencing another enquiry in respect of the same subject matter. Para 8, 9 of the judgment read as under:-
After an order passed in an enquiry against a public servant imposing a penalty is quashed servant by a civil court, a further proceeding can be commenced against him if in the proceeding in which the order quashing the enquiry was passed, the merits of the charge against the public servant concerned were never investigated. where the High Court decreed the suit of public servant on the ground that the procedure for imposing the penalty was irregular, such a decision cannot prevent the State from commencing another enquiry in respect of the same subject matter consistently with the provisions of Arts. 310 and 311 of the Constitution. It the State Government is competent to order a fresh enquiry, it would be competent to direct suspension of the publilc servant during the pendency of the enquiry.
6. Having relied upon aforementioned judgment of Honble Supreme Court, learned counsel for the respondents referred to judgment dated 15th February, 1971 passed by Honble High Court. He submits that Honble High Court had decreed the Suit of applicant only on technical ground. Relevant excerpt of order of Honble High Court read as under :-
In view of this the Committee had to take statement obtained by Sri Burnes during the course of investigation from Sri Ram Narain Srivastava that Sri Dhan Bahadur did pay Rs. 6/- to Sri P.N. Srivastava as correct. Sri Dhan Bahadur has also stated having paid the sum to Sri P.N. Srivastava. Although, there was the statement of Dhan Bahadur both in respect of charges No. 4 and 5, but the Committed was impressed by the statement made by Sri P. N. Srivastava to Inspector Sri Burnes It has already been stated that the statement so recorded was not made available to the appellant and he was not afforded an opportunity of cross-examining on the basis of the said report, which was recorded behind his back and which was recorded behind his back and which was being relied on by the Enquiry Committee. In my opinion this could not be done as it violate the rules of natural justice. In view of the authority of the Supreme Court laid down in the case of State of M.P. v. Chintamani, I hold that the conditions of Constitutional Protection have not been complied with in the present case as regards this aspect of the matter
7. A perusal of aforementioned judgment of Honble High Court reveal while decreed the suit of applicant, Honble High Court had not granted any permission to respondent to proceed against applicant in the matter from the stage of violation of principles of natural justice.
8. However, in view of the law laid down by Honble Supreme Court in AIR 1962 Supreme Court 1334 Devendra Pratap Narain Rai Sharma, Appellant Vs. State of Uttar Pradesh and Others, decree of suit by Honble High Court in Second Appeal could not debar as the respondents from proceeding against the applicant from the stage the technical fault was noted in disciplinary proceedings.
9. However, once the suit of applicant was decreed, he was entitled to function as a senior clerk in the Railway, pay of Rs. 4248/- and salary and allowances from the date of dismissal till the date of re-instatement.
10. In the present case after order of Honble High Court passed by it, allowing Second Appeal of applicant, respondents passed order dated 03.6.1975 treating the applicant under deemed suspension from 27.5.1957. It would not be gainsaid that once at the time of his dismissal from service, a Govt. Servant is under suspension, during pendency of disciplinary proceedings resumed from the stage of violation of principles of natural justice, a Government servant can be under suspension. However, in the present case, in the prayer made in the suit the applicant had specifically sought the relief of pay and salary from the date of dismissal till the date of re-instatement. Once the suit filed by applicant with aforementioned prayer was decreed, the respondents are bound to ensure that the decreed relief is accorded to applicant.
11. It is pertinent to note that after the order passed by Honble High Court in Second Appeal filed by the applicant, the judgment Debtor satisfied the decree in respect of relief contained in clause A and B of the claim but not the relief C. Thus, the applicant herein made application for execution. The judgment Debtor (respondents) opposed the execution of relief C the plea that Honble High Court had not intended to decree raising the suit for relief contained in clause C. The Executing Court accepted the said plea however, the First Appellate Court and Honble High Court did not accept the view taken by the Executing Court. Honble High Court specifically observed that the decree was also passed for relief C. When the matter again came up before Execution Court respondent raised further objection to execution of relief contained in the clause B stating that the applicant herein would be entitled to subsistence allowance for the intervening period. The executing Court again endorsed such objection raised by judgment debtor and viewed that the decree passed by Honble High Court could be executed only after making correction in the same. The order of Executing Court was assailed by applicant by filing Revision Petition. The Court of Additional District Judge, Gorakhpur allowed the said Revision Petition. Aforementioned order passed by District Judge was challenged before Honble High Court by filing Civil Misc. Writ Petition No. 136/1980, which was dismissed by Honble High Court. Said order read as under:-
Even if it is conceded in favour of the petitioner that it had the power notwithstanding the order of the Civil Court directing reinstatement of respondent no.1 and payment of his salary from the date of his removal to the date of his reinstatement to suspend him again with retrospective effect, I find it difficult to hold that the view taken by the Addl. District Judge that the petitioner was still bound to comply with the decree inter-parties requiring him to pay salary of respondent No. 1 from the date of removal till the date of reinstatement, suffers from any such error, which may justify interference under Art. 226 of the Constitution. Unless the decree itself was got modified, the petitioner was bound to comply with it notwithstanding fact that it passed another order of suspension after reinstating respondent No. 1 in pursuance of the decree of the Civil Court. The position may have been different, if the Civil Court had only granted a declaration that respondent No. 1 continued in service and no decree for payment of salary had specifically been passed.
In the result, I find no merit in this writ petition it is accordingly dismissed.
12. It would not be out of place to note that seeking execution of order dtd. 15.2.1974, the applicant had also filed E.C. No. 19/1985 before the Court of Civil Judge I, Gorakhpur. In the said E.C., the Railway administration raised the plea that in view of Section 29 of AT Act 1985, the proceedings for execution were no longer maintainable below Civil Court. Civil Judge Gorakhpur did not accept the plea of Railway Administration (UOI) and passed an order on 26.7.1986 holding that Section 29 of the Act did not control the jurisdiction of High Court.
Aforementioned order of learned Civil Judge was challenged before Honble Allahabad High Court by way of WP (C) No. 20651/1986. Said WP(C) was disposed of by Honble High Court with following order :-
Civil Misc. Writ Petition No. 20651 of 1986 Union of India through the General Manager, North Estern Railway, Gorakhpur Vs. 1st Civil Judge, Gorakhpur and another.
Honble S.U. Khan, J.
At the time of hearing no one appeared on behalf of the contesting respondents, hence only the arguments of the learned counsel for the petitioner were heard.
The question involved in this writ petition is as to whether execution proceedings pending before Civil Court for execution of earlier order dated 26.07.1986 passed by 1st Civil Judge, Gorakhpur has been transferred to the Administrative Tribunal by virtue of Section 29 of the Administrative Tribunals Act, 1985 or not. The relevant portion of the said section is quoted below:-
Section 29:- Every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act being a suit or proceeding, the cause of action, whereon it is based, is such that it would have been if it had arisen after such establishment within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal The Supreme Court in P. L. Kantha Rao and others, Vs. State of A.P. and others, AIR 1995 SC 807 has held that word Proceeding used in Section 29 includes execution. In Para-2 of the said authority, it has been held as follows:-
In the journey of litigation, there are several stages one of which is realization of the judicial adjudication, which attained finality. The word Proceeding though has not been defined under Section 29, it is a comprehensive term. The facts of the instant case are that Prasidh Narain Srivastava, Respondent No. 2 filed O.S. No. 49 of 1959 against the petitioner/railways in the Court of Civil Judge, Gorakhpur. The suit was decreed for the first time in Second Appeal by the High Court on 15.02.1974 (Second Appeal No. 1972 of 1971). Initially, suit had been dismissed by Trial Court as well as the Appellate Court. Unfortunately, High Court did not specify the decree. It only said that second appeal was allowed and the suit was decreed. The relief claimed in the suit was for a declaration that plaintiffs dismissal was invalid and for permanent injunction directing the defeandant to let the plaintiff work as senior clerk. Prayer for payment of Rs. 4248/- was also made. There is no dispute that said amount was paid after decree of the High Court. After the decree, passed by the High Court, respondent No.2 was also reinstated in service.. Thereafter, he retired in 1980 on reaching the age of superannuation. Respondent No.2 filed an execution application, which was registered as Execution Case No. 55 of 1982, praying therein that by virtue of decree passed by the High Court, he should be permitted to work till his death. The execution application was allowed on 29.09.1983 by Civil Judge, Gorakhpur. Ist Additional District Judge, Gorakhpur, set aside the said order through the judgment and order dated 16.03.1984 passed in Civil Revision No. 364 of 1983.
Thereafter, a fresh execution application, which was registered as Execution Case No. 19 of 1985, was filed by Respondent No. 2 praying for payment of gratuity and other retrial benefits. In the said execution case, petitioners raised the question of jurisdiction in terms of Section 29 of Administrative Tribunals Act, 1985 (Supra). Civil Judge, Gorakhpur, did not accept the contention of the petitioner and passed an order on 26.07.1986 holding that Section 29 of the Act did not control the jurisdiction of the High Court. The learned Civil Judge placed reliance upon the first proviso to Section 29 of the Act, which is quoted below:-
Provided that nothing in this section shall apply to any appeal pending as aforesaid before the High Court. It is true that the appeal, pending before the High Court, was not to be transferred to the Administrative Tribunal. However, appeal had already been decided by the High Court 11 years before passing of the Act. As held by the Supreme Court in the aforesaid authority, execution application is also to be heard by Administrative Tribunal and not by the Civil Court.
Accordingly, writ petition is allowed. Impugned order is set aside. It is held that execution case No. 19 of 1985 is not cognizable before Civil Court and is to be transferred to Administrative Tribunal under Section 29 of Administrative Tribunal Act. Date 16.04.2007 Sd./
13. After the aforementioned order passed by Honble High Court in E.C. No. 19/1985 was transferred to this Tribunal. Prayer contained in E.C. Read as under :-
It is, therefore prayed that the J.D. be directed to pay to the decree holder all the emoluments of arrears of salary, arrears of pension and the amount of gratuity as detailed in Annexure A, B, C, D, treating him in service of the J.D. upto 31.3.1980 and thereafter treating him as a retired Rly. servant. The J.D. be also directed to give monthly pension in future also and privileges of passes and P.T.Os The decree be enforced by attachment of the sale of G.Ms Rly. Bungalow No. 3, Near Accounts Office (South).
Prasidh Narain Srivastava Signature of Applicant
14. Said Execution Application No. 19/1985 is for implementation of order dated 15.02.1974 passed by Honble High Court in Second Appeal No. 1972 of 1971. In terms of said order passed by Honble High Court applicant would be entitled to arrear of salary subsistence allowance from the date of instituting suit No. 49/1959 till he could have continued in service after re-instatement i.e. 25.6.1979, when he was again removed from service after the order dated 15.2.1974, passed by Honble High Court. Applicant was suspended by order dated 03.06.1975. However, said order cannot have retrospective application.
15. Thus, in terms of judgment and decree dated 15.2.1974 passed by Honble High Court applicant would be entitled to arrear of salary from the date of dismissal till 03.6.1975. From 03.6.1975 till 30.6.1975 applicant may be entitled to subsistence allowance.
16. As far as prayer made by the applicant for pension and amount of gratuity and treating him in service 03.9.1980 is concerned, same is beyond the scope of order/decree of which execution is sought. It is stare decises that Execution Court cannot go beyond decree.
17. Respondents are liable to pay applicant salary from the date of filing a suit before Court at First instance till the order dated 03.06.1975 placing him under suspension was passed by the respondents. Regarding claim of applicant from 03.6.1975 to 25.6.1975 Execution Court has no jurisdiction for the period from 03.6.1975 till 25.6.1979 applicant is entitled to subsistence allowance. Aforementioned amount shall be released to applicant within three months. It goes without saying amount if any i.e. either subsistence allowance or any other allowances has already been paid to the applicant for aforementioned period same would be deducted from the arrear of salary/subsistence allowance payable to him, in terms of order dated 15.2.1974.
(A.K.Bhardwaj) Member (J) Shashi This is plaintiffs appeal. Plaintiff had filed a suit for a declaration that his dismissal was invalid and for a permanent injuction against the defendent that he be allowed to function as a senior clerk in the railways. It appears that the plaintiff was a clerk in the North Eastern Railway. There were certain charges against him as a result of which an Enquiry Committee was set up. The Enquiry Committee submitted a report on the 19th of June, 1956 whereupon a show cause notice was served on the plaintiff for his dismissal from the railway service. Ultimately on the 27th of May, 1957 the plaintiff was dismiss4ed from the service. It is against that order of dismissal that the plaintiff filed a suit No. 49 of 1959 and prayed for the reliefs as mentioned above.
In the suit the plaintiff had taken a variety of grounds to assail the order of dismissal. It was urged that the entire proceedings in connection with the enquiry and consequent dismissal were illegal and null and void. The main reasons therefore were that the officer conducting the enquiry or issuing show cause notice or passing order of dismissal was an officer lower in rank than the authority which had appointed the plaintiff to the service. According to him the Chief Security Officer is lower in rank to the Financial Adviser and Chief Accounts Officer of the North Eastern Railway. The departmental enquiry was also vitiated for the chargesheet sent to the plaintiff was not accompanied by the statement of allegations on which the charge was based and the copies of the statements of the witnesses examined by Mr. Burnes and by the police were not furnished to the plaintiff. In short the plaintiff was not afforded an adequate opportunity to defend himself and that the grounds for holding the charge proved and awarding punishment of dismissal were neither proper not adequate and were wrong. The suit was contested by the Railways, who denied the case set up by the plaintiff and urged that there was a full and complete compliance with the requirements of law before the order of dismissal was passed.
The trial court framed a number of issues and ultimately dismissed the plaintiffs suit. It held that the dismissal of the plaintiff from service not illegal nor null and viod for any of the reasons given in paragraph 10 of the plaint. The Chief Security Officer who passed the order of dismissal from service was competent to pass such order. The firstly; that one Ram Narain Srivastava was not produced for cross-examination nor was a copy of his statement given to the appellant. His statement was recorded by one Shri Burnes and even Mr. Burnes has not been produced. Yet the Enquiry Committee had relied upon the said statement of Mr. R.N. Srivastava. The second instance was that the copies of the complaints made by the two sainiks were not produced and had been used against the plaintiff-appellant. The third instance was that the appellant had made an application to make available the pay clerks for cross-examination and inspite of the application Ext-8 dated 3rd of October, 1955, they were not produced.
As regards the first point, learned counsel for the appellant laid emphasis on the following passage from the report of the Enquiry Committee Ext. 30:-
As regards charge No. 5, there are not eye witnesses of the monetory transaction supposed to have paid Rs. 200/- in two rupee notes in the presence of Shri Ram Narain Srivastava who is, however, not avaiolable. Although, there is no other proof, the Committee are inclined to have faith in the statements of these 2 sainiks as alo in the statement recorded by inspector Sri Burns of Sri Ram Narain Srivastava for the same reason cited in para above. Besides the usual interest displayed by the clerk about the sanctioning of these loans has also to be given due weight. It will be evident that the Enquiry Committee principally relied upon the statement of Ram Narain Srivastava, as recorded by Inspector Burnes. It was also stated therein that they had faith in the statement of Sri Ram Narain Srivastava. The Inquiry Committee also relied on the statements of the two Sainiks, but there statement could only be corroborated by the statement of Shri Ram Narain Srivastava as recorded by Shri Burnes. The statement of the two sainiks by itself did not prove charges Nos. 4 and 5. The Inquiry Committee did not rely exclusively on the statement of the two Sainiks. It would, therefore, be apparent that the Enquiry Committee had relied on the statement of Ram Narain Srivastava principally in the matter of the monetory transactions. It aslo appears from the above report that Sri Ram Narain Srivastava could not be made available for cross-examination. The statement of Sri Ram Narain Srivastava was recorded by Inspector Burnes, but it appears that during the course of enquiry no effort was made for its production or for the production of Sri Ram Narain Srivastava.
Learned cousel for the appellant relied on the decision in the case of State of Madhya Pradesh V. Chinta Mani (A.I.R. 1961 S.C. 1623) to say that a public servant is entitled to reasonable opportunity to defend at the stage of departmental enquiry and the principles of natural justice are applicable. If there is a denial of opportunity to cross-examine a witness who has given evidence against him and where the copies of documents to which the public servant was entitled were not supplied, the enquiry was not in accordance with the principle of natural justice and violated the provisions of Article 311(2) of the constitution. Their Lordships quoted a passage from the judgment of Venkataram Aiyer Jain in Union of India V. T.R. Verma (A.I.R. 1957 S.c. p. 882). That passage reads as follows :-
Stating it broadly and without intending it to be exhuastive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party and that no material should be relied on against him without his being given an opportunity of explaining them. Learned counsel for the respondent cited a case of State of Orissa V. Bidya Bhushan (A.I.R. 1963 S.C. 779) to say that if the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry office prima facie make out a case of misdemeanour to direct the authority to reconsider that order because in respect of some of the finding but not all, it appears that there had been villation of the rules of natural justice. It will be worthwhile to notice that the Supreme Court had observed in the above case that the High Court would have not jurisdiction to direct the Governor to review the penalty, for the order of dismissal passed by a competent authority on a public servant is not justiciable provided the conditions of constitutional protection have been complied with. The question therefore, that arised in the present case is whether the conditions of constitutional protection have been complied with in the present case. As stated earlier the case of the appellant is that Shri Ram Narain Srivastava (sri R.N. Srivastava) was not produced. His statement was recorded by Inspector Burnes. That statement was not made available as well. Yet the Enquiry Committee relied on his statement in regard to charges No. 4 and 6. In respect of charge No. 4 the Committee observed as follows :-
In view of this the Committee had to take statement obtained by Sri Burnes during the course of investigation from Sri Ram narain Srivastava that Shri Dhan Bhadur did pay Rs. 6/- to Sri P.N. Srivastava Although there was the statement of Dhan Bhadur both in respect of charges No. 4 and 5, but the Committee was impressed by the statement made by Sri R. N. Srivastava to Inspector Sri Burnes. It has already been stated that the statement so recorded was not made available to the appellant and he was not afforded an opportunity of cross-examining on the basis of the said report, which was recorded behind his back and which was recorded behind his back and which was being relied on by the Enquiry Committee. In my opinion this could not be done as it violate the rules of natural justice. In view of the authority of the Supreme Court laid down in the case of State of M.P. v. Chintamani, I hold that the conditions of Constitutional Protection have not been complied with in the present case as regards this aspect of the matter In regard to the second point, the non-production of the complaints made by the two sainiks is not material as it is found that the two sainiks were produced before the Enquiry Committee and were made available for cross-examination. Whatever they said was recorded and the appellant having been given an adequate opportunity of cross-examining them, nothing else remained to be complained of.
In respect of the third point, viz., the application made on 3.10.1955 for producing the pay clerks for evidence, it is apparent that in the application no particular person was named. It cannot be said that there was any failure to afford reasonable opportunity in this regard. When the pay clerks were neither produced not examined, no question of any prejudice being caused to ;the appellant.
I therefore, find no merits in points No. 2 and 3 but I find force in the first point. In this view of the matter it has to be held that the enquiry proceedings were vitiated for they had taken into consideration some material which had not been disclosed to the appellant and on which reliance had been placed. The decision of the court below will, therefore, have to be set aside and the plaintiffs suit will have to be decreed.
In the result, therefore, the appeal succeeds. The judgment and decree of the Court below is set aside and the suit of the plaintiff is decreed with costs.
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