Gujarat High Court
Mangal Singh F. Poon vs State Of Gujarat And Ors. on 21 January, 1991
Equivalent citations: (1991)2GLR1104
JUDGMENT S.D. Shah, J.
1. The petitioner who is dismissed from service, from the post of Police Sub-Inspector, vide order, dated 19th June, 1984 challenges the same by present petition under Article 226 of the Constitution of India.
2. The petitioner has a long service career starting from 20th September, 1952 to the date of his suspension, i.e., 10th November, 1973 ultimately resulting into order of dismissal, dated 19th June, 1984. A long period of 11 years is consumed by the departmental enquiry ultimately resulting into his dismissal from service. Even excluding said period, petitioner has actually served from 1952 to 1973.
3. Petitioner joined service on 20th September, 1952 as Armed Constable, and he came to be transferred as Un-armed Constable in 1958. In May, 1967 he was promoted as Head Constable. On 2nd July, 1967 he was selected as Police Sub-Inspector and continued to serve as such till he came to be suspended.
4. The incident which led to the giving of chargesheet and ultimate departmental enquiry against the petitioner took place on 13th August, 1973. Petitioner was issued chargesheet, dated 31st December, 1973. Unsatisfied by the reply of the petitioner to the chargesheet, the Enquiry Officer was appointed to conduct the enquiry, and in fact, during the period of 11 years more than six Enquiry Officers came to be appointed. During such enquiry the department examined as many as 17 witnesses. Period between 1-9-74 to 18th July, 1979 was consumed in recording evidence of departmental witnesses only. The defence witnesses were examined thereafter and submission of the petitioner was recorded on four different dates. Based on the evidence, oral as well documentary, produced before the Enquiry Officer, he submitted his report of enquiry. By the said report, the Enquiry Officer found that the charges levelled against the petitioner were not proved and, therefore, he concluded by stating that the charges levelled against the petitioner are held not proved because of insufficiency of evidence. He found that the evidence produced before him was not wholly reliable and it was not just and proper to punish the delinquent on such evidence which was insufficient, unreliable and not beyond doubt. He, therefore, recommended that the petitioner should be exonerated of the charges levelled against him.
5. The enquiry report was submitted by the Deputy Superintendent of Police, Baroda. The Director General of Police being the Disciplinary Authority for the petitioner perused the report of the Enquiry Officer as well as record of the entire enquiry, and he did not agree with the findings reached by the Enquiry Officer. He, therefore, issued notice to show cause to the petitioner, dated 7th March, 1984 informing the petitioner, that he does not agree with the findings reached by the Enquiry Officer to the effect that the petitioner was not guilty of the charges levelled against him, and he stated that according to him the charges levelled against the petitioner were proved. He, thereafter, proceeded to give special summary of reasons which weighed with him for differing from the findings reached by the Enquiry Officer, and thereafter, he has called upon the petitioner to show cause as to why action of dismissing the petitioner from service should not be taken since all the charges levelled against the petitioner were proved and they were of serious nature.
6. To this show cause notice issued by the Disciplinary Authority the petitioner submitted his written reply stating in detail the reasons why the report of the Enquiry Officer should be accepted, and as to how the Disciplinary Authority has failed to consider and appreciate the evidence which was fully appreciated by the Enquiry Officer. The Disciplinary Authority, however, did not agree with any of the submissions made by the petitioner in his reply, and by order, dated 19th June, 1984 dismissed the petitioner from service, and also directed that the period of suspension of the petitioner should be treated as such.
7. Being aggrieved by the order of the Disciplinary Authority, dated 19th June, 1984 petitioner preferred appeal to the State Government on 25th July, 1984. Detailed memo of appeal raising number of legal submissions was submitted by the petitioner. The State Government, vide its order, dated 5th April, 1986 was pleased to dismiss the said appeal and to confirm the order passed by the Disciplinary Authority.
8. Being aggrieved by the order of the State Government confirming the order of Disciplinary Authority, dated 19th June, 1984 the petitioner has filed the present petition.
9. Mr. Aran H. Mehta, learned Advocate for petitioner, makes the following submissions in support of his challenge to the order:
(i) The order of dismissal from service is vitiated inasmuch as reasonable opportunity to defend contemplated by Article 311(2) of the Constitution is denied to the petitioner because:
(a) six witnesses of the department were examined in the absence of the petitioner, and opportunity to cross-examine those witnesses was denied to the petitioner despite his written request to permit him to cross-examine those six witnesses;
(b) non-supply of number of documents on which reliance was placed;
(c) failure to provide him assistance of his friend to defend him in the enquiry.
(ii) There was unexplained and unreasonable delay in conducting enquiry which has deprived the petitioner of opportunity to effectively defend himself. For the incident that took place on 13th August, 1973 the chargesheet was given on 31st December, 1973 and the enquiry was conducted upto 1984 while the order of dismissal was passed on 19th June, 1984. During this period of 10 years number of witnesses has expired and the petitioner has forgotten various details as to what happened on 13th August, 1973, and such an unexplained delay vitiates the enquiry.
(iii) The Disciplinary Authority has failed to give any convincing, cogent and acceptable reasons for not agreeing with the findings reached by the Enquiry Officer and has failed to appreciate entire evidence which has resulted into Disciplinary Authority reaching findings which can be said to be unreasonable or perverse, and therefore also, the order of the Disciplinary Authority is vitiated.
10. Mr. S.D. Patel, learned Asst. Govt. Pleader, resists these submissions of the petitioner by submitting that the jurisdiction of this Court under Article 226 of the Constitution is very limited, and more so because of the decision of the Supreme Court in the case of Union of India v. Parma Nanda reported in AIR 1989 SC 1185. In the case before the Supreme Court the fundamental issue was that of jurisdiction of Civil Court or the Tribunal or High Court to interfere with the penalty imposed by the competent authority on the ground that it is not commensurate with delinquency of employee. The Supreme Court having noticed the scope of jurisdiction and the amplitude of powers of Tribunal and Courts observed that of late there was increasing tendency on the part of the Tribunals to interfere with the penalty awarded in the disciplinary proceedings. In view of the law declared by the Supreme Court it was held that the Tribunal has no such discretion to interfere with the penalty imposed by the Disciplinary Authority. In para 27 of the judgment, the Court observed as under:
We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishments cannot be enquated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of Inquiry Officer or competent authority where they are arbitrary to utterly perverse. It is appropriate to remember that the power to impose penalty on the delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
11. From these observations it is clear that if the enquiry is not consistent with the Rules of natural justice the Court has jurisdiction to interfere with the order by setting aside the same. In such an eventuality, ordinarily the enquiry would be vitiated and the order passed on such an enquiry would be quashed with liberty to hold fresh enquiry. I, therefore, do not agree with the submission of Mr. S.D. Patel that this Court has no jurisdiction to interfere with the ultimate order of penalty even if the Court comes to conclusion that the enquiry is vitiated it being in violation of Rules of natural justice.
12. Re-ground No. 1: (A) In order to appreciate the challenge of denial of reasonable opportunity to the petitioner, his grievance is required to be examined. It is the case of the petitioner that Mr. P.K. Dutta, D.S.P. who was the first Inquiry Officer appointed to conduct the enquiry examined two witnesses on 18th September, 1975. One another witness, Prabhatsingh, was examined on 19th September, 1975. Thereafter recording of evidence was adjourned since the other witnesses were not available. Petitioner and his friend who was to defend him were thereafter reinformed that five witnesses will be examined on 12th August, 1976. It is the case of the petitioner that on 12th August, 1976 five witnesses, being (i) Shri Somabhai, Police Constable, (ii) Shri Babubhai Ragho, Police Constable, (iii) Shri Machhendra, Police Constable, (iv) Shri Laxmansinh Nathusinh, Police Constable and (v) Shri Chhatrasinh Himatsinh, Police Constable remained present, but they came without their note-books and weekly diaries, Petitioner, therefore submitted letter, dated 12th August, 1976 to the Inquiry Officer which is produced at Annexure 'R' to the petition, whereby he pointed out that in the absence of note-books and diaries it will not be possible for him to cross-examine the said witnesses. It is the case of the petitioner that thereupon he was informed that the District Police Officer at Baroda had already issued memo, dated 31st July, 1976 and he specifically instructed all the five witnesses to remain present before the Inquiry Officer along with their notebooks and weekly diaries. It is further case of the petitioner that on the second day of enquiry, i.e., on 13th August, 1976 he remained present at the place of enquiry from 11-00 a.m. to 6-30 p.m. It is his case that thereafter the five witnesses referred to hereinabove were examined by the Inquiry Officer after 9-00 p.m. in the absence of petitioner and behind his back. These five witnesses were most material and important witnesses on whose depositions reliance is placed by the Disciplinary Authority and whose depositions are referred to by the Inquiry Officer. Since the petitioner was not present at night at the place of enquiry, action of the Inquiry Officer in proceeding further with the enquiry and in recording the statements of these persons in the absence of petitioner and behind his back has resulted into denial of reasonable opportunity of defence to the petitioner. Petitioner could have by cross-examining these witnesses established his innocence and he could have also established that those witnesses were not reliable and that they could not even corroborate the main witness, Prabhatsingh, Denial of this opportunity to cross-examine these witnesses submits Mr. A.H. Mehta, is fatal to the enquiry, and the order of dismissal passed on such ex parte evidence is vitiated.
13. Mr. S.D. Patel, learned Asst. Govt. Pleader, appearing for respondents, in this connection invites my attention to the affidavit-in-reply filed by the Dy. Inspector General of Police (Admn.). To the specific allegations made in para 13 of the memo of Special Civil Application the deponent of the affidavit-in-reply states that the letter, dated 12th August, 1976 referred to by the petitioner in para 13 of memo of special civil application is not in the record of proceedings. He further states that if said application was given there must be signature of the Presiding Officer about its receipt. According to deponent of the affidavit-in-reply no such application must have been given by the petitioner since the same does not find place in the record. He also states that the petitioner was directed to remain present on 13th August, 1976, but he remained absent, and therefore, 5 witnesses were examined by the Presiding Officer on 13th August, 1976. According to Mr. Patel, learned A.G.P. the petitioner did not avail of the opportunity of cross-examining the witnesses by remaining present on 13th August, 1976. He therefore cannot make any grievance of denial of reasonable opportunity.
14. In order to appreciate this grievance of the petitioner it is necessary to note that it is an admitted fact that the enquiry was to take place on 12th August, 1976. Though the letter addressed by the petitioner, dated 12th August, 1976 at Annexure 'R' to the petition, it is not admitted by the Dy. Inspector General of Police (Admn.) in his affidavit-in-reply on the ground that the said letter is not to be found on record. There is other intrinsic evidence to show that, in fact, the petitioner was present for enquiry on 12th August, 1976. In the affidavit-in-rejoinder, the petitioner has pointed out that not only he handed over the letter, dated 12th August, 1976 personally to Shri P.K. Dutta, who was then the Inquiry Officer, his friend and assistant in the enquiry, namely, Shri G.H. Malek also handed over one letter, dated 12th August, 1976 to the Enquiry Officer. The said letter is produced at Annexure 'X' to the affidavit-in-rejoinder. This letter is handed over to the Office Superintendent, Shri Dandiwala who was attached to Shri P.K. Dutta. There is specific endorsement to that effect on the said letter. In this letter also the petitioner has requested the Inquiry Officer to call the five witnesses along with necessary documents. In this letter petitioner has also stated that the five witnesses have not brought necessary documents. He has further stated that no purpose will be served by conducting enquiry in the absence of necessary documents. It is quite clear that on 12th August, 1976 the petitioner and his friend and assistant were present before the Inquiry Officer for proceeding further with the enquiry. There is no dispute about the fact that these five witneeses were summoned by the District Police Officer vide summons, dated 31st July, 1976 directing them to remain present with the note-books and case diaries on 12 & 13th August, 1976. It is the case of the petitioner that on 13th August, 1976 he had remained present from 11.00 a.m. to 6.30 p.m. at the venue of enquiry and he left the place only after the end of office hours. It is the positive case of the petitioner that these five witnesses were examined thereafter around 9.00 p.m. when the petitioner was absent. According to petitioner, in the Enquiry Officer proceeded to re-writ the statments of these five witnesses as if they are their police statements and he hurriedly proceeded to make endorsement to that effect, that the petitioner and his friend assistant were not present. In fact, petitioner could not have remained present at 9.00 p.m. especially when that was not the time givne to the petitioner for the purpose of enquiry. The respondents did not reply to this specific allegation of the petitioner. The place of enquiry and the time at which the Enquiry Officer proceeded to record the statements of these 5 witnesses is not stated in the affidavit-in-reply by the respondents. I therefore do not accept the say of the respondents that the petitioner remained absent on 13th August, 1976, and therefore, statments of these witnesses were recorded in his absence. From the pleadings there does not appear to be any denial of the presence of the petitioner from 11.00 a.m. to 6.30 p.m. at the venue of enquiry. There is no denial of the fact that the witnesses were examined at or after 9.00 p.m. on 13th August, 1976. In that view of the matter, it is difficult to accept the case of the respondents that the petitioner remained absent on 13th August, 1976.
15. To put an end to the controversy about his presence or absence at the time of recording of evidence of those five witnesses petitioner made sincere attempt by making application on 21st November, 1978 to recall the said five witnesses and to permit him to cross-examine the said witnesses. This application of the petitioner is replied vide reply, dated 20th December, 1978. Thereby petitioner is informed that since the witnesses were examined prior to two years no permission could be granted to him to cross-examine the said witnesses. The said letter is produced at page 270 by the petitioner along with his affidavit-in-rejoinder. In fact, the said letter is not disputed by the respondents. It is pertinent to note that the witnesses of the department were examined from 18th December, 1975 till 9th August, 1979. The Enquiry Officer commenced recording of defence evidence only in the year 1980. Therefore, there does not appear to be any justification for not recalling those five witnesses and affording opportunity of cross-examining those witnesses to the petitioner. It is not understood as to how delay of two years can make any difference, especially when the respondents have taken period from 1975 till 1979 for the purpose of cross-examining the departmental witnesses. The evidence of the department was yet not over. Therefore, the Enquiry Officer had no justifiable cause for rejecting the application of the petitioner to recall these five witnesses who were examined ex parte and to permit him to cross-examine those witnesses. This clearly amounted to denial of reasonable opportunity to defend to the petitioner.
16. From the record before the Enquiry Office, the petitioner is, even otherwise, able to establish that on 13th August, 1976 he was present at the venue of enquiry between 11-00 a.m. to 6-30 p.m. and that the five witnesses were examined only after he left the venue at night around 9-00 p.m. or thereafter. Out of those five witnesses, the petitioner has examined Machhendra Baburao as defence witness on 18th October, 1982. This witness has clearly stated before the Enquiry Officer that he was informed to remain present along with note-book and police diary before the Enquiry Officer on 13th August, 1976. He could not trace his note-book, and therefore, he went to the Inquiry Officer without note-book. According to him he waited at the venue of enquiry from 11.00 a.m. onwards. He also stated that the delinquent-petitioner and his friend-assistant were also present. He also stated that after 6.30 p.m. they left the venue of enquiry. He has stated that thereafter at late night he was examined by the Inquiry Officer and other persons were also examined by the Inquiry Officer. This witness is not at all cross-examined by the presenting officer. The effect is that the fact that the petitioner was present at the venue of inquiry from 11.00 a.m. to 6.30 p.m. on 13th June, 1978 is accepted. It is also established that the witnesses were examined late at night in the absence of petitioner. Petitioner has also examined his friend and assistant, Shri G.H. Malek who was present at the venue of inquiry on 13th August, 1976 from 11.00 a.m. to 6.30 p.m. This witness is also not cross-examined by the presenting officer. This very material on record itself establishes that the petitioner was present for enquiry on 13th August, 1976 from 11.00 a.m. to 6.30 p.m. It is also established that the five witnesses were examined only late at night in the absence of petitioner. Petitioner was, thus denied opportunity to cross-examine those witnesses. As stated hereinabove, the petitioner made another sincere attempt by requesting the Inquiry Officer to recall the said five witnesses, but the respondents without any justifiable cause turned down said request. Result is that the petitioner could not cross-examine those five witnesses.
17. Mr. S.D. Patel, learned A.G.P. for respondents, further submits that assuming that opportunity to cross-examine those witnesses was denied to the petitioner, no prejudice is caused to the petitioner inasmuch as petitioner has cross-examined other witnesses. I do not find any substance in this submission for the reasons that the Enquiry Officer has placed reliance upon the deposition of these witnesses and the Disciplinary Authority has placed great reliance upon the deposition of Laxmansingh Nathusingh. Extensive reference is made to the deposition of these five witnesses by the Enquiry Officer as well as by the Disciplinary Authority. Had an opportunity to cross-examined these witnesses been afforded to the petitioner he could have very well established that these witnesses were equally unrealiable as Prabhatsingh and that their depositions were not trustworthy. The Enquiry Officer in his report admits that in fact the five witnesses were examined in ex parte and the written request made by the petitioner-delinquent to cross-examine those witnesses subsequently was truned down by the District Police Officer. As a successor in-charge of enquiry he records that he cannot improve the situation and he also cannot aceept the request of the petitioner-delinquent to permit him to cross-examine the witnesses.
18. The Disciplinary Authority in his summary relies upon the evidence of Laxmansingh Nathusingh. While passing the final order, confronted with the submission of the petitioner that he was not permitted to cross-examine the five witnesses, the Disciplinary Authority records that when the petitioner-delinquent was asked to remain present, time and again, he has remained absent and therefore witnesses were examined in his absence. He also admits that the petitioner-delinquent has, thereafter applied for permitting him to cross-examine those five witnesses, but the said application was rejected because prior thereto he was given sufficient opportunity. Reasons given by the Disciplinary Authority in his order are factually not tenable. As stated hereinabove, the Disciplinary Authority was not justified in stating that the petitioner has remained absent during enquiry despite repeated instructions. It appears that the petitioner has remained present and has cross-examined all the witnesses. Even on 12th August, 1976 he was present and he and his friend assistant have submitted their applications. On 13th August, 1976 also he was present with his friend assistant from 11.00 a.m. to 6.30 p.m. In fact, one of such five witnesses deposed before the Inquiry Officer that they were present from 11.00 a.m. to 6.30 p.m. and that the petitioner-delinquent and his friend assistant were also present at the venue of enquiry, but the Enquiry Officer, in fact, recorded their statements at late night in the absence of petitioner.
19. Mr. S.D. Patel, learned A.G.P., further submits that the State Government has while deciding the revision application specifically dealt with these submissions. On page 197 of the paper book the revisional authority in fact, finds that some of the witnesses were examined ex parte. However, vague submission is made to the effect that despite information petitioner has remained absent. The revisional authority rejects this submission on the ground that below the statement of those five witnesses the Enquiry Officer has noted that the petitioner-delinquent and his friend assistant were not present, and therefore, the witnesses were examined ex parte. This is hardly the ground for rejecting the first submission. If witnesses are examined late at night and not during office hours when the petitioner and his friend assistant remained present and as corroborated by one of the witnesses who was examined on that day, the Enquiry Officer is bound to note absence of the petitioner late at night. The Government is not stating categorically that the witnesses were examined during office hours. It is not open to the Enquiry Officer to record evidence at any time. As regards the second submission of the petitioner, that he, in fact, has subsequently applied for recalling those witnesses and therefore opportunity should have been provided to him to cross-examine those witnesses, the revisional authority simply rejected the said submission by stating that there is no substance in said submission. The order of the revisional authority therefore, suffers from total non-application of mind and it shows that how casually the revision application is decided and it also shows as to how the revisional authority failed to look to the record and to find out as to when the said five witnesses were examined and as to why the opportunity to cross-examine the said witnesses is denied to the petitioner-delinquent subsequently when the evidence of the department was not yet over. Under these circumstances, I have no hesitation in holding that the five witnesses were examined by the department ex parte late at night on 13th August, 1976 and the petitioner was not given opportunity to cross-examine those witnesses. The deposition of said witnesses is material and relevant inasmuch as the Enquiry Officer as well as the Disciplinary Authority has sought reliance on the evidence of those witnesses. Denial of this opportunity to the petitioner has greatly prejudiced his defence.
20. In the case of Union of India v. T.R. Verma a five Judges Bench of the Supreme Court outlined the concept of reasonable opportunity and its bare minimum requirement in the following words:
Stating it broadly and without intending it be exhaustive, 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 materials should be relied on against him without his being given an opportunity of explaining them.
21. The trinity of rights flowing from the above observations consist of (i) opportunity of adducing all relevant evidence on which the party relies, (ii) the evidence of the opponent to be taken in presence of the party coupled with the right to cross-examine the witnesses examined by the opponent, and (iii) no material to be used against the party without providing opportunity to explain such material. In the present case petitioner is provided with opportunity to adduce whatever relevant evidence he wanted to adduce. However, the second requirement, namely, that of taking the evidence of the witnesses of the department in the presence of the petitioner, and further providing opportunity to cross-examine those witnesses was partially denied. As stated hereinabove, that has resulted into grave prejudice to the petitioner inasmuch as the evidence of those five witnesses was, in every respect material and was in fact, relied upon by Enquiry Officer as well as the Disciplinary Authority. This trinity of rights undoubtedly constitute the core of just process, because without them it would be difficult for any person to disprove the allegations made against them and when especially true. It is true that there is no prescribed standard of reasonableness, and therefore, what kind of procedural rights should be made available to a person in any proceedings depends upon the nature of proceedings in relation to which the rights are claimed. Kind of issues involved in the proceedings determine the kind of right available to persons who are parties to those proceedings. In case of departmental enquiry against Govt. servant the importance of right to cross-examine cannot be minimised. In case of Jack R. Goldbera v. John Kelly 1970(25) L Ed. 2d 287, 300, 301; Morrissey, Justice Branman of American Supreme Court said that in almost every setting where important decisions turn on questions of fact, due process requires and opportunity to confront and cross-examine adverse witnesses. In Green v. McElroy 1959(3) L Ed. 2d 1377, 1390, 1391 the learned Judge has observed as under:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where Governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be prejurers or persons motivated by malice, vindictiveness intolerance, prejudice, or jealousy. We have formalised these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment.... This Court has been zealous to protect these rights from erosion. It has spoken out from not only in criminal cases...but also in all types of cases where administrative...actions were under scrutiny.
In the case of Khemchand v. Union of India it was held that if the purpose of Article 311(2) was to give a Govt. servant an opportunity to exonerate himself from the charge, and if this opportunity is to be reasonable, he should be allowed to show that the evidence against him is not worth of credence or consideration and that "he can only do if he is given a chance to cross-examine the witnesses called upon against him", and when examined himself or any other witnesses in support of his defence. Thus, opportunity to cross-examine the witnesses in departmental proceedings regarded as a necessary concomitant of reasonableness, and denial thereof is said to vitiate the ultimate action. Yet, in another case of State of Punjab v. Dewan Chunilal reported in AIR 1970 SC 2086 the Supreme Court deprecated the practice of relying upon the adverse confidential reports of superior officer without tendering the superior officer for cross-examination. In the case before the Supreme Court adverse confidential reports of Police Sub-Inspector were relied upon for the purpose of dismissing him from service under relevant rules. The grievance of the petitioner-delinquent before the Supreme Court was that those superior officers who made the adverse entries in the Confidential Reports were never examined, and therefore, he had no opportunity to cross-examine those officers. The Supreme Court found that the delinquent has no reasonable opportunity to conduct his defence before the Enquiry Officer because none of the witnesses available for evidence were summoned which resulted into denial of opportunity to cross-examine those witnesses. In the present case five witnesses were examined by the Enquiry Officer, but opportunity to cross-examine them was denied to the petitioner. Petitioner was present at the venue of enquiry and witnesses were not examined in his presence. Witnesses were examined late at night or after 9.00 p.m. Assuming that the petitioner was not present at the venue of enquiry, his just request for recalling the witnesses for cross-examination should not have been rejected. The respondents could have shown fairness, at least by recalling those witnesses and by tendering them for cross-examination. Such a just request of the petitioner was rejected without any justifiable cause. The enquiry and the ultimate decision passed by the Disciplinary Authority are, therefore, vitiated. The order of dismissal, therefore, shall have to be quashed and set aside.
22. As regards the grievance of the petitioner for non-supply of copies of certain documents it is required to be stated that vide his application, dated 12th August, 1976 petitioner wanted those five witnesses to produce copies of notebooks of Police Constables and the diaries of officers. In fact, those witnesses were asked to come with those documents vide summons, dated 31st July, 1976. Admittedly the witnesses came without those documents. It is the case of respondents that the documents referred to and relied upon in the chargesheet were already supplied to the petitioner. The documents which were not relevant or not relied upon by the department were not required to be supplied. About original diaries and note-books it is the case of the respondents that they were not required to be supplied. It is not established by the petitioner as to how those documents were relevant. It is also true that the chargesheet nowhere refers to those documents. Non-production of those documents cannot be said to have resulted into denial of Rules of natural justice. I, therefore, do not find that the enquiry is vitiated because of non-production of certain documents referred to by the petitioner in the memo of the petition.
23. The third facet of the submission is that the petitioner was not provided assistance of his friend to defend him at the enquiry. The case of the petitioner in this behalf is that he asked for the services of one Shri I.U. Pathan as a friend to help him at the enquiry. This request was made by the petitioner vide letter, dated 27th September, 1974. This request is rejected by the D.S.P., Baroda City vide his letter, dated 5th October, 1974 on the ground that said Mr. Pathan was a retired P.S.I. and was not serving officer. Thereupon petitioner pointed out to the respondents that the Government has permitted Mr. Pathan to work as friend in case of one Mr. R.M. Rathod, P.S.I., even after his retirement. Thereupon, petitioner received a reply from D.S.P. Baroda City on 6th November, 1974 who rejected the just request of the petitioner and proceeded to observe as under:
I presume you being Sub-Inspector of Police for past some time are quite conversant with the provisions of rules and regulations etc. in vogue, and as such, you would be in position to defend yourself without any assistance of a friend.
Said Mr. Pathan was reinstated in service since his order of premature retirement was quashed by the High Court. Petitioner, thereafter, once again, made a request on 21st March, 1975 requesting the authority to appoint Shri Pathan as his friend/assistant at the enquiry. This request of the petitioner was also negatived on the ground that the departmental Head of Mr. Pathan has not spared him. Thereafter, petitioner was compelled to give three names of his choice by the Enquiry Officer for the purpose of appointing any one of them as his friend-assistant. Petitioner gave a panel of three more colleagues for the purpose of appointing any of them as his friend. The Enquiry Officer and the D.S.P. did not accept said request on the ground that two out of three officers were serving on deputation outside the department. Petitioner was informed that out of hundreds of fellow workers he has selected those who were, in fact, not available. It was also stated that some of the officers were not willing to assist the petitioner. I do not think it is necessary to go into the factual controversy in this case. I am of the opinion that the services of Mr. I.U. Pathan who was working as friend-assistant in case of other employees could have been provided to the petitioner. In fact, after his reinstatement in service, there was no justification in refusing his services to the petitioner. In fact, the approach of the Disciplinary Authority was that the petitioner being Police Sub-Inspector he could defend himself personally, and there was no need of providing him assistance of a friend. In such a case the approach of the authorities should be that the delinquent is provided assistance of his friend in the course of enquiry. To go on rejecting the application for appointment of a friend of his choice, and thereby to compel him to proceed with the enquiry, or to offer to appoint any one who is not a person of his choice is, in fact unjust and unfair because person faced with serious chargesheet may not be in a position to defend himself. He very often lacks the ease and composure to present his point of view. He may be tongue-tied, nervous or confused or wanting in intelligence. If justice is to be done to him, he must at least have the help of friend who can assist him in the enquiry. In fact, this right of legal assistance was accepted when the employer was represented by legally trained officer before the Enquiry Officer. In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. the Supreme Court accepted that where in an enquiry before domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. The atmosphere of departmental enquiry is very aptly described by the Supreme Court in the following words:
Domestic enquiry is claimed to be a managerial function. A man of the establishment dons the robe of a judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a Court presided over by an unbiased judge? The enquiry officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighed scales and tilted balances can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for Courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action. And a quasi-judicial tribunal cannot view the matter with equanimity on inequality of representation.
Thus, it is clear that in a domestic enquiry the delinquent is not free of mental tension and trouble. Very often he is not in a position to conduct enquiry himself. He is over involved and is not in a position to decipher facts and to look them dispassionately and independently. This is more so where charges are detailed and complicated. It is, therefore, necessary that such an employee is, at least, provided the assistance of friend of his choice at the enquiry. However, in the present case, I am of the opinion that though assistance of Mr. I.U. Pathan was denied to the petitioner, one Mr. Malek, who was appointed by him as his friend/assistant conducted the enquiry. It could not be said that not granting assistance of Mr. I.U. Pathan has resulted into any prejudice to the petitioner. I, therefore, hold that by not granting services of Mr. Pathan to the petitioner there is no violation of Rules of natural justice.
24. Re-ground No. 2: Mr. A.M. Mehta, learned Advocate for petitioner, submits that the enquiry is vitiated because for the incident which took place on 13th August, 1973 petitioner is dismissed from service vide order, dated 19th June, 1984, According to Mr. Mehta period of more than 11 years is taken for the purpose of completing the enquiry. He, therefore, submits that during this period of 11 years petitioner has forgotten and witnesses have also forgotten the various details of the incident which took place on 13th August, 1973. It is humanly impossible for the delinquent as well as the witnesses, submits Mr. Mehta, to remember chronologically as to what happened on 13th August, 1973, the sequence of events, persons who were present and the sequence in which the persons came and left the Potice Station. Mr. Mehta submits that lapse of such a long period is fatal to the departmental enquiry. In this connection, Mr. Mehta invites my attention to the decision of this Court in the case of Mohanbhai Dungarbhai Parmar v. Y.B. Zala and Anr. reported in 1970 XX GLR 497. I do not think the ratio of this decision would help the petitioner in the present case. It is to be noted that the incident took place on 13th August, 1973, petitioner is suspended on 10th November, 1973. He was given chargesheet on 31st December, 1973. Thus, within a period of four months departmental enquiry has already commenced. Recording of evidence commenced on 19th November, 1974. Therefore, it cannot be said that there was delay in commencement of enquiry. However, it is true that recording of evidence of departmental witnesses lasted upto 1979, i.e., for a period of five years. It cannot be ignored that the petitioner instituted civil suit on 15th August, 1976 and obtained stay of further proceedings for a period of one year. For this delay petitioner should thank himself inasmuch as he did not permit the enquiry to proceed further. After withdrawal of suit on 18th July, 1977 the enquiry proceeded. Petitioner examined defence witnesses from 1980 till 1984. Therefore for delay in examining the defence witnesses blame cannot be laid solely at the doors of the department. I, therefore, do not agree with Mr. Mehta that the delay caused in completing departmental enquiry has, in anyway, prejudiced the defence of the petitioner. I, therefore, do not find that the enquiry is vitiated on the ground of delay in conducting and completing the enquiry.
25. Re-ground No. 3: Mr. Mehta learned Advocate for petitioner, submits that the Disciplinary Authority has not properly considered the evidence. He submits that the Disciplinary Authority has ignored the evidence of number of witnesses. The Disciplinary Authority has not given any strong and cogent reasons for not agreeing with the findings reached by the Enquiry Officer. According to Mr. Mehta the findings reached by the Disciplinary Authority are absolutely perverse. I do not think that I can accept this submission of Mr. Mehta. A bare look at the order of the Disciplinary Authority would show that the Disciplinary Authority has considered the evidence of witness Prabatsingh. The Disciplinary Authority has accepted said evidence. It is not the case of no evidence. It is true that the Disciplinary Authority has not discussed the evidence of other witnesses. It is also nature that the Enquiry Officer has by considering other witnesses not relied upon the evidence of Prabatsingh. But the Disciplinary Authority finds that the evidence of Prabatsingh was relevant and in every respect sufficient to bring home the charge against the delinquent. I do not think it is permissible for me in this petition to reappreciate or reassess the evidence. Since it is not the case of no evidence and since the Disciplinary Authority has offered reasons given in his order accepted the evidence of Prabatsingh, I cannot hold that the order passed by the Disciplinary Authority is perverse or is one which no reasonable man would reach.
26. What relief?
Since I have already held that the enquiry is vitiated because of failure of respondents to tender five witnesses for cross-examination of the petitioner and because of the fact that reliance is placed upon the deposition of those five witnesses, the order of dismissal passed by the Disciplinary Authority shall have to be quashed and set aside. I, therefore, quash and set aside the order of the Disciplinary Authority, dated 19th June, 1984 and that of the appellate authority, dated 5th April, 1986.
27. Ordinarily, when the order imposing any penalty in departmental proceedings is set aside on the ground that it is in violation of Rules of natural justice the direction should be to permit the authority to hold enquiry afresh from the that stage. However, in the present case it is required to be noted that the petitioner was placed under suspension on 10th November, 1973. He was reinstated and the order of suspension was cancelled on 9th August, 1977. After 9th August, 1977 till 19th June, 1984, the petitioner was in service and has served and because of the order of dismissal dated 19th June, 1984 he is out of employment. Petitioner is to retire in the month of August, 1991. A direction to complete the enquiry after recalling five witnesses and giving opportunity to petitioner to cross-examine those five witnesses after such a long lapse of time would not meet the ends of justice. In fact before such directions could be carried out the petitioner would reach the age of superannuation. Petitioner would not, therefore, be in a position to serve with the department. Mr. Mehta, learned Advocate for petitioner, therefore, submits that the respondents should not be permitted to proceed ahead with the enquiry in view of the fact that only a period of 6 to 7 months is left and that fresh enquiry for incident which took place 18 years back is now not advisable. At this stage, it would be beneficial to refer to the course of action suggested by Louis L. Jqffe in his book "Judicial Control of Administrative Action" under the heading of "Remand: Utility or Futility?" When an order adverse to a department is passed, generally the matter is remanded for such proceedings as may be appropriate in view of the observations made or directions given by the judicial tribunals. Author has noticed that in number of cases remand has achieved no more than new rationalization for the same result. Very often the order of remand has proved futile because the department adheres stubbornly to that which it has once willed. Such an attitude is noticed in number of cases. Instead the Court can see the effect of judicial admonition and effect of invalidating the action of the department when other cases of identical nature come before it. The learned author suggested that the effectiveness of judicial supervision should be just not only in terms of the case in which correction was administered, but in its effect on doctrine in the long run. However, this kind of action requires constant judicial investigation. I am, therefore, of the opinion that the order of remand in cases where it is going to be futile and is likely to result into subjecting the delinquent to untold hardships and mental torture of enquiry either after his retirement or during the period of last few months preceding his retirement and when the misconduct attributed to the delinquent is not so grave and shocking so as to render his continuance in service opposed to public interest and or abhorent to administration, I think the approach should be that of refusing remand. Extremely short span of service and subjecting him to mental torture of departmental enquiry once against during retirement are relevant factors. Mr. Mehta invites my attention to the decision of Supreme Court in the case of Union of India v. M.B. Patnaik and Ors. reported in AIR 1981 SC 858. The Supreme Court in that case expressed the view that when the earlier order of penalty is quashed on technical ground second enquiry on merits could be held and that the order of reinstatement pursuant to quashing of earlier order on a technical ground is not a bar. However, before the Supreme Court in the facts of the case the Division Bench of the High Court declined to consider favourably the request of the department to continue departmental proceedings further in accordance with law on the ground that a period of more than 15 years had lapsed since the charges ware framed and that delinquent was suffering on account of being subjected to disciplinary proceeedings for such a long time. The Supreme Court accepted the view of the Division Bench of the High Court of Orissa and held that it would be mockery of justice, if after lapse of so many years the enquiry is commenced again on the same charges. In the present case incident has taken place in the year 1973. Period of more than 18 years have lapsed. Petitioner has also undergone tension of departmental enquiry for a period of 18 years. In fact, petitioner has been out of service since 1984. He was under suspension since 1973 till 1977. He has only 8 months to go in service inasmuch as he is to superannuate in the month of August, 1991. I therefore find substance in the submission of Mr. Mehta that it is not a fit case wherein departmental enquiry should be permitted to proceed further. Question which would immediately arise for consideration is as to what final order should be passed. When an order of dismissal is set aside on the ground that it is in violation of Rules of natural justice, and reasonable opportunity as stipulated by Article 311(2) of the Constitution of India is denied, the order of reinstatement of petitioner in service must follow. I, therefore, quash and set aside the order of dismissal, dated 19th June, 1984 as confirmed in appeal on 5th April, 1986, and I direct the respondents to reinstate the petitioner in service forthwith. However, as regards payment of back wages, normally on reinstatement of the petitioner, the direction for payment of full back wages should follow.
28. In the present case, since I am not permitting the respondents to hold the enquiry afresh and since it cannot be said that the enquiry was into false of concocted charges and since there is no evidence to the effect that the petitioner was not gainfully employed during this entire period, I order the respondents to pay 60% back wages to the petitioner with all the consequential benefits flowing from his reinstatement. However, the direction to treat the period of petitioner under suspension shall stand inasmuch as it could not be said that his suspension was not justified.
29. In the result, petition succeeds. The order of dismissal, dated 19th June, 1984 and confirmed by appellate authority vide order, dated 5th April, 1986 are hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service and are also directed to pay 60% back wages with all the consequential benefits flowing from his continuance in service. Rule is made absolute accordingly with no order as to costs.