Gujarat High Court
Amumiyan Pirmiyan Kadri vs Gujarat State Road Transport ... on 18 December, 1991
Equivalent citations: (1994)1GLR326
JUDGMENT A.N. Divecha, J.
1. The Original Plaintiff of Regular Civil Suit No. 705 of 1977 decided by the learned Joint Civil Judge (J.D.) at Junagadh on 1st May, 1978 has preferred this Second Appeal against the judgment and the decree passed by the learned District Judge of Junagadh on 31st March, 1979 in Civil Regular Appeal No. 57 of 1978 and allied appeals. Thereby the lower Appellate Court was pleased to dismissed the appeal and to affirm the judgment and the decree passed by the trial Court dismissing the present Appellant's suit.
2. The facts giving rise to this Appeal may be summarised thus:
The respondent herein is a statutory Corporation established under the Road Transport Corporations Act, 1950 (the 'Act' for brief), I shall refer to respondent No. 1 as the Corporation for the sake of convenience. The appellant was at the relevant time serving as a Conductor in the Corporation. For the sake of convenience I shall refer to him as the 'delinquent'. He was in charge of one bus bearing No. 8239 going from Junagadh to Jamjodhpur on 19th March, 1977. That bus was checked by the checking party on that day. It was found that no tickets were issued to some 13 passengers going from Makhiyalla to Sharhad-patia though he collected the fare from them. Thereupon one charge-sheet bearing No. 107 of 23rd March, 1977 was issued to him calling upon him to explain why he should not be held guilty of the charge levelled against him. A copy of the charge-sheet is at Exh. 17 on the record of the trial Court. He appears to have submitted his reply to the charge-sheet on 23rd April, 1977 and denied the charges levelled against him. A copy of his reply to the charge-sheet is at Exh. 21 on the record of the trial Court. It appears that thereupon the disciplinary authority himself conducted the enquiry proceedings against the delinquent. The evidence was recorded therein. A copy of the deposition of the Reporter examined on behalf of the department is at Exh. 22 on the record of the trial Court. No witness appears to have been examined by or on behalf of the delinquent in the enquiry proceedings. It however appears that the disciplinary authority as the Enquiry Officer recorded some statement of the delinquent. Its copy is part of the copy of the deposition of the Reporter at Exh. 22. It appears that thereafter the enquiry report was prepared holding the delinquent guilty of the charge levelled against him. He was thereupon served with what is popularly known as the second show-cause notice on 6th October, 1977 accompanied by a copy of the enquiry report. The second show-cause notice together with its accompaniment is at Exh. 18 on the record of the trial Court. He appears to have submitted his reply to the second show-cause notice on 10th October, 1977. A copy of his reply is at Exh. 23 on the record of the trial Court. It appears that his reply at Exh. 24 was not found acceptable by the disciplinary authority. By the order passed on 15th November, 1977 by the disciplinary authority, the appellant came to be dismissed from service. The appellant thereupon filed a suit in the Court of the Civil Judge (J.D.) at Junagadh challenging the legality and validity of the order passed by the disciplinary authority of the Corporation dismissing him from service. It was registered as Regular Civil Suit No. 705 of 1977. It appears to have been assigned to the Joint Civil Judge (J.D.) at Junagadh. The Corporation and the disciplinary authority were impleaded as defendants Nos. 1, 2 and 3 and the Conciliation Officer of Government of Gujarat at Rajkot was impleded as defendants No. 4. The Corporation and its officers filed their written statements at Exh. 13 on the record of the trial Court and resisted the suit on various grounds. It appears that no written statement was filed by original defendant No. 4 in the suit. The learned trial Judge framed the necessary issues on the pleadings of the parties. By his judgment and decree passed on 1st May, 1978 in Regular Civil Suit No. 705 of 1977, the Joint Civil Judge (J.D.) at Junagadh was pleased to dismiss the suit. That aggrieved the present appellant. He, therefore, carried the matter in appeal before the District Judge of Junagadh. His appeal came to be registered as Civil Regular Appeal No. 57 of 1978. It was heard along with other allied appeals. The learned District Judge, by his judgment and order passed on 31st March, 1979 in Civil Regular Appeal No. 57 of 1978 and allied appeals, was pleased to dismiss the appeal and to affirm the judgment and the decree passed by the lower Court. The aggrieved appellant has thereupon preferred this Second Appeal before this Court questioning the correctness of the judgment and the decree passed by the lower Appellate Court.
3. Shri Mehta for the appellant has submitted that the Corporation did not examine, in the enquiry proceedings, the passengers who were found to be without tickets after payment of the fare to the delinquent in the bus in question, and as such the conclusion reached by the Enquiry Officer holding the delinquent guilty of the charge levelled against him can be said to have been based on no evidence. In support of his submission, Shri Mehta for the appellant has relied on the unreported ruling of this Court in Second Appeal No. 223 of 1977 decided on 26th June, 1991. As against this, Shri Desai for the respondents has submitted that, in view of the binding ruling of the Supreme Court in the case of State of Haryana and Anr. v. Rattan Singh , it was not necessary for the Corporation to have examined the passengers or any of them found to be without tickets though having paid fare to the delinquent at the relevant time. According to Shri Desai for the respondents, the aforesaid unreported ruling of this High Court in Second Appeal No. 223 of 1977 decided on 26th June, 1991 is given in ignorance of the aforesaid ruling of the Supreme Court in the case of Rattan Singh (supra) and as such it will have no binding value to this Court. Even otherwise, runs the submission of Shri Desai for the respondent, the aforesaid unreported ruling of this Court in Second Appeal No. 223 of 1977 decided on 26th June, 1991 is distinguishable on its own facts.
4. It is true that the Supreme Court in its aforesaid ruling in the case of Rattan Singh (supra) has ruled that it is not always necessary to examine in the enquiry proceedings against the Conductor the passengers or any of them travelling without ticket after payment of the fare to the Conductor. In that case it was found that a bus conductor of a State Transport undertaking was charge-sheeted for not collecting fares from certain passengers. His guilt was established at the proceedings. His services came to be terminated because of his long service and young age. In that case it was held that it could not be said that, merely because statements of passengers were not recorded by the Inspector of the flying squad, the order that followed was invalid. It was held that the evidence of the Inspector was some evidence which had relevance to the charge against the bus conductor. The order of simple termination of services was held to be valid in that case.
5. It is, however, not possible for me to agree with the submission that the aforesaid unreported ruling of this Court in Second Appeal No. 223 of 1977 decided on 26th June, 1991 can be said to be per incuriam on the ground that it was given without referring to the aforesaid binding ruling of the Supreme Court in the case of Rattan Singh (supra). It may be mentioned at this stage that the aforesaid ruling of the Supreme Court in the case of Rattan Singh (supra) does not lay down an invariable rule that passengers of the bus in such case need never be examined in the enquiry proceeding charging the conductor of misconduct of having collected fare from them and not issued tickets to them. Whether or not such passengers are required to be examined in the enquiry proceedings would depend on the facts and circumstances of each case.
6. In the aforesaid unreported ruling of this Court in Second Appeal No. 223 of 1977 decided on 26th June, 1991 the facts can be summarised thus : In that case the delinquent conductor was in charge of a bus plying between Okha and Porbandar on 17th September, 1967. The checking party checked the bus near Okha. At that time it was found that 7 passengers who were to get down at Village Arabhada were not given tickets though the fare at the rate of 0.20 ps. per ticket was recovered from them by the delinquent conductor. He came to be charge-sheeted for such misconduct. The disciplinary authority relied on the statements of the passengers which were recorded at the time of checking of the bus and the explanation given by the appellant during the enquiry was not found to be acceptable. The explanation of the delinquent conductor was that some three passengers individually gave Rs. 10/- each and one person on behalf of the group of four passengers also gave Rs. 10/-towards payment of their fare at the rate of 0.20 ps. per passenger. According to him, he was trying to return the balance amount when the checking was done. It was his case that he offered verification of his cash balance to the Inspector in charge of the inspecting party but it was not done. It cannot be gainsaid that, if the cash on hand with him was verified, the veracity of his statement could have easily been ascertained. It transpires from the record that nothing of the sort was done by person heading the inspecting party. In mat view of the matter, examination of the concerned passengers or some of them became necessary to bring the guilt home to the delinquent at the enquiry proceedings. Non-examination of the passengers or any of them in the enquiry proceedings was held by this Court to have vitiated the enquiry proceedings. In that view of the matter, I think the aforesaid unreported ruling of this Court in Second Appeal No. 223 of 1977 decided on 26th June, 1991 cannot be said to be contrary to the aforesaid ruling of the Supreme Court in the case of Rattan Singh (supra).
7. The aforesaid unreported ruling of this Court in Second Appeal No. 223 of 1977 decided on 26th June, 1991 is of no avail to the delinquent in the present case. The delinquent before me was charge-sheeted for not having issued tickets to some 13 passengers forming one group. In his reply at Exh. 21 on the record of the trial Court to the charge-sheet, the delinquent admitted his not having issued tickets to those passengers after collecting the fare from them. His defence was that the checking was done when he was about to give tickets to them. There was no question of considering the cash balance with him showing collection of fare from the passengers. In that view of the matter, it was not necessary for the Corporation to have examined in the enquiry proceedings those 13 passengers or any of them to bring the guilt home to the delinquent in the present case The evidence of the Reporter examined on behalf of the Corporation was acceptable evidence. It was some evidence of misconduct with which the delinquent in the present case stood charge-sheeted. That evidence has been accepted by the disciplinary authority conducting the enquiry proceedings himself. It would not be open to the Civil Court to sit in appeal over the findings of the disciplinary authority based on such evidence on record.
8. In this connection the ruling of the Supreme Court in the case of Rattan Singh (supra) deserves a reference. It has been held therein:
The sufficiency of evidence in proof of the finding by a domestic Tribunal is' beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record.
9. A reference also deserves to be made to the ruling of the Supreme Court in the case of R.C. Sharma v. Union of India and Ors. . It has been held therein:
A suit challenging the validity of departmental proceedings cannot be treated as an appeal from the findings in the departmental proceedings or the punishment inflicted upon the Government servant even if these are erroneous. A question which could affect the result in a Civil Suit has to be of such a nature that it goes to the root of the jurisdiction and the conduct of the departmental trial and vitiates the result. It is only if the departmental proceedings is null and void that a plaintiff in such a suit could obtain the reliefs he had asked for.
10. The aforesaid rulings of the Supreme Court in the cases of Rattan Singh (supra) and R.C. Sharma (supra) provide a complete answer to the aforesaid submission urged before me by Shri Mehta for the appellant.
11. Shri Mehta for the appellant has then urged that the disciplinary authority as the Enquiry Officer has not followed the procedure which resulted into contravention of principles of natural justice and as such the order of dismissal at Exh. 26 cannot be sustained in law. He has taken me through the purported statement of the delinquent at Exh. 22 as recorded by the disciplinary authority as the Enquiry Officer and has submitted that the Enquiry Officer had no power to record such statement. According to Shri Mehta for the delinquent, transgressing limits of his power on the part of the Enquiry Officer has resulted into contravention of principles of natural justice and consequently vitiated the ultimate order of the delinquent's dismissal from service. As against this, Shri Desai for the Corporation has submitted that the delinquent has been given the fullest possible opportunity of hearing and no procedure of the disciplinary proceedings has been contravened by the Enquiry Officer and no breach of principles of natural justice is made in the course of conducting the enquiry proceedings.
12. It appears that the Corporation has framed the Gujarat State Transport Employees' Service Regulations in exercise of its power under Section 45 of the Act (the 'Service Regulations' for brief). In exercise of its power under Regulation 80 of the Service Regulations, the Corporation has framed the Discipline and Appeal Procedure for the Gujarat State Road Transport Corporation Employees (the 'Appeal Procedure' for brief). Para 5 thereof prescribes the procedure for dealing with acts of misconduct of employees of the Corporation. Clause (b) thereof requires the issue of the charge-sheet to the employee found guilty of misconduct. The charge-sheeted person is required to submit his reply to the charge-sheet within 7 days from its receipt by him as provided in Clause (c) thereof. Thereafter the charged employee is required to be given an opportunity of making an oral statement in addition to the written statement, if any, submitted by him under Clause (d) thereof. Then comes Clause (e) thereof. Thereunder, the charge-sheeted employee is given an opportunity to inspect the documents relevant for the purpose of the disciplinary proceedings. Clause (f) thereof makes provision for production of documents on the part of the charge-sheeted employee. Clause (g) thereof requires the Enquiry Officer to record oral evidence in the presence of the defaulter, that is, the charge-sheeted employee. Clause (h) prescribes the procedure for recording such evidence. Clause (i) thereof lays down that pleaders will not be allowed to appear at the enquiry proceedings. A provision is made thereunder to provide for defence assistance to the defaulter or the charge-sheeted employee. Clause (j) thereof is not material for the present purpose. Then comes Clause (k) thereof. It reads:
After completing the enquiry and giving the persons charged a further opportunity of making a written or oral statement, if desired by the person charged, the Enquiry Officer, shall record his findings on such charges and the reasons for such findings.
The rest of the clauses of Para 5 are not material for the present purpose.
13. According to Shri Mehta for the delinquent, the Enquiry Officer has transgressed his limits prescribed under Para 5 of the Appeal Procedure. According to Shri Mehta, no power is given to the Enquiry Officer under Para 5 of the Appeal Procedure to cross-examine any witness or to compel the delinquent to give any statement. If any such power is assumed by the Enquiry Officer, runs the submission of Shri Mehta for the delinquent, it would amount to assumption of the role of the prosecutor by the Enquiry Officer who has to perform the role of the judge. According to Shri Mehta, it is a settled principle of law that no person can be both a judge and a prosecutor. Shri Mehta has urged that, if the Enquiry Officer performs the functions both of the judge and the prosecutor, he can be said to have been biased and to that extent principles of natural justice can be said to have been contravened. Shri Desai for the respondents has on the other hand submitted that there is no violation of any provision of the Appeal Procedure on the part of the Enquiry Officer. What the Enquiry Officer has done in the enquiry proceedings, according to Shri Desai for the respondents, was to put questions to certain witness in view of the fact that no presenting officer was appointed for presenting the case of the department in the enquiry proceedings. So far as the recording of the statement of the delinquent is concerned, Shri Desai for the respondents has submitted that it was in the nature of oral evidence given by the delinquent in the enquiry proceedings. In the alternative, runs the submission of Shri Desai for the respondents, the statement of the delinquent recorded by the Enquiry Officer can be said to be for the purpose of seeking the delinquent's explanation with respect to the circumstances against him on the record of the case. In that view of the matter, Shri Desai has urged that the Enquiry Officer cannot be said to have been guilty of any infraction of the Appeal Procedure and could not be said to have transgressed his limits resulting into contravention of principles of natural justice. Shri Desai has submitted that, by putting certain questions to the witness for the purpose of finding out the truth or to the delinquent with that end in view, it cannot be said that the Enquiry Officer has converted himself into the prosecutor from the judge.
14. It transpires from the record of the enquiry proceedings that the delinquent did not volunteer to give any oral testimony in the enquiry proceedings. It may be mentioned at this stage that he had no one as his defence assistant in the enquiry proceedings. If at all the delinquent wanted to give any oral testimony, his chief examination could have been recorded by himself. The so-called statement of the delinquent at Exh. 22 shows that no chief examination of his is taken. What is mentioned therein is that the delinquent was questioned by the Enquiry Officer. It would mean that the delinquent was required to give answers to the questions put to him by the Enquiry Officer. This makes one thing clear that the so-called statement at Exh. 22 can by no stretch of imagination be said to be his oral testimony in the enquiry proceedings.
15. The question then arises whether or not the Enquiry Officer could have recorded his explanatory statement in the manner it is recorded by the Criminal Court under Section 313 of the Criminal Procedure Code, 1973 on completion of the recording of the prosecution evidence. As aforesaid, the only provision made in that regard is in Clause (k) of Para 5 of the Appeal Procedure. Thereunder, the Enquiry Officer is invested with the limited power of giving a further opportunity to the delinquent of making a written or oral statement if desired by him. It would mean that, after completion of recording the evidence, the Enquiry Officer has to ascertain from the delinquent whether or not he has to say anything more with respect to the material on record. If the delinquent so desires, the option is given to him to make an oral or written statement in that regard. It thus becomes clear that such statement to be given by the delinquent after completion of the recording of the evidence should be out of his volition. It is not open to the Enquiry Officer to compel him to give any such statement. If the Enquiry Officer does so, even if be in the nature of seeking explanation of the delinquent with respect to the material on record pointing the finger of guilt against the delinquent, the Enquiry Officer can be said to be transgressing his limits laid down in Clause (k) of Para 5 of the Appeal Procedure.
16. In the instant case, what transpires from the purported statement at Exh. 22 recorded by the Enquiry Officer in the enquiry proceedings is that the Enquiry Officer has cross-examined the delinquent with respect to certain material on record. This it was certainly not open to him. Shri Desai for the respondents has failed to point out any provision in the Appeal Procedure enabling the Enquiry Officer to undertake such task. If the Enquiry Officer cross-examines the delinquent under the guise of recording his statement (which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the Judge on his shoulder. It is a settled principle of law that no person can be both a prosecutor and a Judge. If a person tries to be both, he can be said to be biased in conducting the enquiry proceedings. It is a well-known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice.
17. Shri Desai for the Corporation has, however, submitted that, even if it is found that the Enquiry Officer has contravened the principles of natural justice by cross-examining the delinquent in the enquiry proceedings, no prejudice is shown to have been caused to the delinquent thereby, and as such the order of dismissal from service at Exh. 26 cannot be held to be illegal and invalid on that score. Shri Desai for the Corporation has taken me through the statement of the delinquent at Exh. 22 as recorded by the Enquiry Officer in the enquiry proceedings. According to Shri Desai, the delinquent has admitted that the statement as recorded by the Enquiry Officer was given out of his own volition and was not under any coercion. In that view of the matter, runs the submission of Shri Desai for the Corporation, the delinquent did not object to the recording of his statement by the Enquiry Officer in the enquiry proceedings and he cannot now be permitted to urge that the enquiry proceedings stood vitiated on the ground that the statement recorded from him was in the nature of his cross-examination by the Enquiry Officer.
18. In this connection a reference deserves to be made to the binding ruling of the Supreme Court in the case of S.L. Kapoor v. Jagmohan and Ors. . It has been held therein:
The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It is comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
In view of the aforesaid dictum of law pronounced by the Supreme Court in its ruling in the case of S.L. Kapoor (supra), Shri Desai for the Corporation cannot be permitted to say that no prejudice is caused to the delinquent on account of contravention of principles of natural justice on the part of the disciplinary authority as the Enquiry Officer in conducting the enquiry proceedings. Shri Desai for the Corporation has however tried to distinguish the aforesaid ruling of the Supreme Court in the case of S.L. Kapoor (supra) on the ground that in that case the basic rule of natural justice, namely, the audi alter am partem rule, was found to have been contravened. It was not the case, runs his submission, where the rule of bias was found to have been contravened. I think the above-quoted observations of the Supreme Court from its aforesaid ruling in the case of S.L. Kapoor (supra) cannot be distinguished on the ground that they were made in the context of the audi alteram partem rule and not in the context of the bias rule. Natural Justice has broadly speaking two aspects. Firstly, no person can be condemned unheard. Secondly, no person can be a judge in his own cause. If either facet of natural justice is found not to have been complied with, the consequences would be annulment of the action or the order passed in such contravention.
19. Again, it may be argued that objection based on the rule of bias has to be pressed into service in the initial stage in view of the ruling of the Supreme Court in the case of Manak Lal v. Dr. Prem Chand Singhvi and Ors. as relied on by Shri Desai for the Corporation. This ruling of the Supreme Court can be distinguished on its own facts. In that case, one Advocate was facing the Bar Council proceedings. He challenged the conclusion on the ground of bias. The objection on the ground of bias was taken up for the first time before the High Court. In that context, the Supreme Court held that it could not be permitted to be done.
19.1 The aforesaid ruling of the Supreme Court in Manak Lal's case (supra) is distinguishable on its own facts. There, the person involved was a legal practitioner. It cannot be gainsaid that a legal practitioner possesses a legally trained mind. He can be said to be aware of the intricacies of law and also of disciplinary proceedings. He can very well be said to be in know of principles of natural justice and their true import and meaning and scope. If he found that some member of the disciplinary committee holding disciplinary proceedings against him was biased against him, he ought to have raised objection immediately. An Advocate or a legal practitioner is always considered to be an independent person. He is a professional. He is not subjected to any subordination. He does not thrive on the mercy of anyone. In that case, his objection, if any, in that regard could not have been just lightly brushed aside or overruled. He could not have been subjected to participation in the disciplinary proceedings against his will after taking such objection. Even if he could have been subjected to such participation, his such objection could not have been obliterated from the record.
20. As against this, a servant facing the disciplinary proceedings is pitted against his superior officer as the Enquiry Officer or as the disciplinary authority. Because of his peculiar predicament facing the disciplinary proceedings, he might not be in a proper frame of mind to raise any such objection based on the rule of bias. If he halfheartedly or timidly raised such objection, it can just be brushed aside or overruled without keeping anything on record and the poor fellow would be a helpless onlooker. He cannot be likened to an Advocate facing the disciplinary proceedings having a legally trained mind. In fact the record of the disciplinary proceedings shows that the delinquent was not assisted even by his co-worker or a union representative as provided in the Appeal Procedure. If he remained unassisted in the enquiry proceedings against him, it could not have been expected of him to press into service the rule of bias.
21. I think different considerations might have arisen if he had failed to press this point in his departmental appeal, if any, against the impugned order of his dismissal from service at Exh. 26 on the record of the trial Court. It is an admitted position on record that he did not challenge the orders snatching away his bread and butter before the appellate authority named in the Appeal Procedure. In that view of the matter, not pressing into service the rule of bias in the enquiry proceedings cannot come in his way in challenging the enquiry proceedings culminating into the order of his dismissal from service at Exh. 26 on the record of the trial Court before the Court of law.
22. In view of my aforesaid discussion, I am of the opinion that the impugned order at Exh. 26 on the record of the trial Court is passed on the basis of the enquiry proceedings conducted in contravention of the rule of bias as a basic principle of natural justice. Such order of dismissal from service cannot be sustained in law. It has to be declared illegal and invalid, null and void. Then arises the question as to what relief the appellant deserves to be granted. Ordinarily, the matter should be sent back to the Enquiry Officer from the stage the enquiry proceedings stood vitiated. It transpires from the record that the enquiry proceedings were held against the delinquent some time in 1977. Fourteen long years have rolled by since then. It is no use keeping the Sword of Democles hanging on the head of the appellant. Instead, it would be in the fitness of things to order his reinstatement in service without payment of any kind of backwages to him from the date he was relieved pursuant to the order of his dismissal from service at Exh. 26 till his reinstatement in service. It may be mentioned that the appellant has succeeded in this litigation on some technical ground. But for the Enquiry Officer's transgression of limits, it can be said, on the basis of the record of the enquiry proceedings, that the charge levelled against him was established. The loss of bread and butter for 14 long years would by itself be a penalty to him. That should deter him from slipping into his such act of misconduct in future. I am supported in this view of mine by the ruling of this Court in the case of Bhimsing Sardarsing v. District Supdt. of Police and Ors. reported in [1982 (2)] XXIII (2) GLR 410 and the unreported ruling of this Court in Special Civil Application No. 116 of 1988 decided on 22nd August, 1991.
23. In the result, the appellant succeeds. This Second Appeal of his is accepted. The judgment and the decree passed by the trial Court in Regular Civil Suit No. 705 of 1977 decided on 1st May, 1978 as affirmed by the lower Appellate Court on 31st March, 1979 in Civil Regular Appeal No. 57 of 1978 are hereby quashed and set aside. The impugned order of the appellant's dismissal from service at Exh. 26 on the record of the trial Court is declared to be illegal and invalid. The Corporation is directed to reinstate the appellant in service within four weeks from production of a certified copy of this judgment before it by or on behalf of the appellant without paying to him the backwages from the date he was relieved pursuant to the order of his dismissal from service at Exh. 26 on the record of the trial Court till his reinstatement in service. He should however be given continuity of service except grant of increments for the period he has lost his backwages as well as benefits of Provident Fund, etc., for that period. There shall however be no order as to costs on the facts and in the circumstances of the case.