Mumtaz Hussain Ansari v. State Of U.p. & Anr.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1234 of expense of the Government ‘might have caused prejudice to ths appellant for ° “it cannot be predicated what conclusion the Tribunal would have reached in

4827 of 1974 which had been filed by the appellant for quashing th .

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246 SS _- SUPREME COURT REPORTS P ne 1984] 3 SCRE - first respondent's order “dated 3. 5. 1974 removing him from service vo ; “ceparshant to.the ‘finding of the second : xespondent, U.P.:Administra— |

‘tive Tribunal, Lucknow dated 10.7.1972 that the appellant was’ guilty "of three of the four charges framed against him. The appellant was- - employed as a Deputy Superintendent of. Police ‘at’ Pilibhit at. the relevant time.’ The fourth charge of which the appellant ‘has been exonerated was that he had transferred his Vespa. Scooter bearing.” | ~ Registration. No. UPI-9117 and valued at more than Rs. 500/- to one. Lal Mohd. without obtaining the previous sanction: of the’ appro— . priate authority and he thereby contravened Rule 24(2) of the U.P.

Government . Servants’ Conduct - Rules, 1956." The appellant's: . .

* defence was that the transfer was effected through a reputed dealer

7 and ‘therefore previous sanction of the appropriate authority was ‘not

“>

-mecessary. - The Tribunal found that the ‘transaction of sale: of the. - 7

“scooter by. the appellant to Lal. Mohd. was effected through M/s. _ Anand: Agencies, automobile ‘engineers and reputed.:dealers in -

- _ Scooters and therefore: ‘there _ was sufficient compliance with Rule --.

od

. Charges 1 1 to Sawer more serious ones. The substance of the: first charge was that the appellant. while posted as” Deputy Superin-, “ tendent of Police at Pilibhit was granted 30 days leave with effect:

from. 1. Il. 1967: and. had -to .resume his duties on 10.12.1967 but .

failed to. ‘Fesume: his “duties and absented himself without previous. - “permission or intimation to the Superintendent of Police and without good or sufficient cause. He failed to report. about his whereabouts a until an application was made by him om 24.4:1968- for extension of - “the leave. The appéllant’s defence was that’ he’ suffered ‘from. an.”

F. aa attack of a mental disease, melancholia and was under. the treatment ,

~~“ 6f Dr. Mukerji at Calcutta from’ 1.12.1967 to 20.4.1968 and he had”

informed about his sudden illness and had applied. for- extension of .. . dhe'leave’ directly and also through his wife: and: he had furnished his leave’ address wh en he proceeded - on-30 days - leave, -The |. substance of the second charge was that while applyi ing for extension.“ oF leave on 20. 4: 1968 he attempted to” wilfully deceive the Inspector. a

- General of Police by. attempting to make him - believe that le had a

L _ been iJ] from 1-12/1967 to. 20.4.1968 and was under. treatment of ‘a _

__ doctor at Calcutta although i in fact he had been to Pakistan durin e m the period: and had obtained a medical -esttificate through deceitful * ~ and. fraudulent means. : The defence | of: the appellant ' Wasoneof -. - denial. He reiterated that he was under treatment of Dr:Mukerji*’

at Caleutta, from 1. 12. 1967, to 20, 4. 1968 and contended ‘that i in that - a a - oe s . Me = b aa

. .MLH. ANSARI y, U.P. STATE (Varadarajan, J.) - . 347

‘period He was treated by Dr. Das at Howrah from 10.1.1968 to

30.1.1968 for injurigs to his nose. The substance of the third charge - was that after having proceeded on leave with effect from 11.11.1967

“he unavthorisedly and unlawfully visited Karachi in Pakistan some- time between 22.11. 1967 and 20.4.1968 without any. valid: pa$sport or travel document and he thereby contravened s. 3 of the Passport |

Act, 1967.. The appellant denied the charge and contended that he had never visited Karachi and had betn: suffering. ‘from mefancholia and treated ay Dr.-Muke ji at Calcutta,

‘A number of witnesses for the. departmént: and some ‘wit-

“nesses for the defence were examined ‘before the Tribunal which . _ after considering the oral and documzntary evidence found charges

1 to 3 against.the.appellant. One Harish Kumar, Superintendent -of Police who was appoiated as an assessor in the inquiry conducted ‘before the Tribunal agreed with the findings of ‘the Tribunal. ‘Subsequently, the Tribunal submitted copies of its findings. to'.the “Government with its recommendation that the appellant may be

«dismissed from service. The Governor accepted the Tribunal’s findings, took a tentative decision to dismiss the appellant from -service; and issued a ‘second show cause notice dated 29.9.1972 to him. The appeHant submitted his interim reply and ‘final reply on 19.11.1972 and ‘31.3.1973 respectively. After. .considering * the-

-appellant’s replies the Governor agreed with the Tribunal that the charges | to 3 are fully established-against the appellant-and ordered — hhis removal from service by the Order dated 1.8.1974, .

The appellant challenged’ his removal from sevice in W.P:

No. 4827 of 1974 which was dismissed in limine ‘by. a Division Bench | of the Allahabad High Court. Hence this appeal: by special ‘leave.

- This appeal deserves to be allowed on ‘a short point which ‘unfortunately has not been noticed ‘by the learned Judges of the

High Court before: dismissing the writ petition in. -limine. The ~ appellant had-prayed for summoning 8 witnesses for being examined in his ‘defence ‘by filing an application dated. 17.1.1972 for that purpose. The Tribunal dismissed that’ application ‘on 19.1.3972 on the ground that it had already taken into consideration the relevant _wules in the Financial Gode Volume Hi and that it-does not consider jit necessary to revise its views. The Tribunal observed in that order \that the appellant hasto bear the .éxpenses of the witnesses who

_are “private persons if he wanted ‘to. -have.them examined in: his |

248 _ SUPREME COURT REPORTS. = [1984] 3 SOR.

- defence, "He was, however, given one week’s time to deposit a sun ~ of Rs.900 initially by way of travelling and. daily allowances for the witnesses as well as compensation for the loss of their professionak income and- he was ordered to make good any shortfall. ‘The - appedlant had not deposited that amount.and the witnesses had not been summoned for being.examined in his defence. The questiom for consideration is whether’on this account there is non-compliance: ' with thé principles of natural justice. “

. The Tribunal has relied upon: Rule 20A of the Travelling Allowances Rules (Financial Handbook Volume III) in making” the above order. Sub-rule 1 of that Rule reads thus:

“20A. (1) “Persons, who, not being servants of the , ‘Government, ‘are called as witnesses in a. departmental:

- Inquiry either by the authority conducting the inquiry or dn behalf of the government servant whose conduct is ‘under ~ inquiry, shall receive the same ‘travelling allowance and diet © money as are admissible to non-official witnesses summoned? in criminal cases, provided that in thé case of such persons’ who are called on behalf of the government servant whose | ‘conduct is under inquiry, the payment of travelling allowance: and diet money shall be subject to the following principles:

(a) travelling allowances may be paid to witnesses. . Summoned. in the event of the government servant concerned clearing himself

(b) such allowances willbe paid only in respect. of wit- ° _ nesses whose evidence is considered of material’ value by the authority conducting the inquiry; and

(c) in exceptional cases “the authority conducting ‘the | . inquiry may, on grounds to be recorded, recommend to _ the Government that the principles laid down above be- ‘departed. from owing to special réasons. In such ‘cases. it will be for the Government to decide, after taking into consideration all the circumstances of the case; whether the recommendation should be accepted or not. | “ The authority conducting the inquiry shalt ‘determine: the. class of each witness for the. purpose of calculating travel~

" MH. ANSARI y. U.P, STATE (Varadarajan, J.) 249 ling allowance and diet - ‘money under the .scale prescribed for witnesses in ‘criminal cases.”

This sub-rule is not quite clear, for it does not say who should bear. the expenses initially or whether the reference.to be made by the inquiring authority under class (c) should be made before or after the examination of the witnesses. Clause (b) of this sub-rule seems to have been considered satisfied in the present case as the Tribunal had decided to summon the witnesses provided the amount

-was deposited by the appellant as directed. The appellant has contended in para 31 of his writ petition that in view of G.O. No. 4197 R/VHIA- 500 (146)/68 travelling allowance and diet money of witnesses to be examined before the Tribunal must have been paid by the State Government but he was asked to deposit a sum of

-Rs.900 for the witnesses being summoned and this is in violation of the relevant provision relating to conduct of proceedings before the Tribunal. The said G.O. marked as Annexure-11 to the writ petition relates to one Kunhi Ram and was. evidently intendedeto clarify:

Rule 20A of the Travelling Riiles and it réads thus:

“In continuation of G.O, No. 1371- vin B 2000 (10/61; dt. July 3,-1961) Iam directed to say that in the «- - special appeal the appellant ‘had contended that the additional _S.P. Agra had asked him to deposit the expenses for T.A.' etc. of defence witnesses before he summoned them. The position in this connection has béen examined by the Govt. and is being clarified here. - Under para 490(5) of the police regulations the S.P. has to decide wheather he should refuse: to’summon a witness whose evidence he does not consider material to the issue. The witnesses who are accepted by the $.P. for being produced in defence can be either summoned by him or allowed to be produced by the party charged, So far 4s the question of payment of expenses for the journey by a defence witness is concerned it is not material when once a witness is permitted to be produced whether he is summoned officially or is called by the party charged himself. The responsibility for payment of travelling expenses to the defence witnesses produced during departmental trial conduc-. ted under section 7 of the Police Actsis of the Government. Thus ‘if a witness has been permitted to be ' produced in defence, it is not open.to’ the inquiring officer tolay down a. condition that his travelling expenses should be first deposited -

'

2500 °° _ SUPREME COURT REPORTS a 11984) 35 JOR. “ before he j is summoned. ‘However, no. expenses ate to be paid for r persons who are not permitted to be produced in defence,

' The position with regard to the. payment of travelling = expenses to the defence witnesses is as follqws: () Govt. servants ‘who | appear as defence witnesses to give . evidence of the facts which.dome to their knowledge. in - théir official capacity are governed by Rule 59(1) of the ~.

Financial Handbook Volume UL for. the purpose of : travelling allowance;

(ii), As regards, govt. ‘servants who appear “as witnesses to.

facts which have come to théir knowledge in the private

_ capacity and appear as private individuals the ‘position —

_ under rule 59(2) of Financial Handbook Volume ILI. is — that they are entitled to receive their actual travelling © “expenses from the Caurt and as such they. will get T.A, _ on an ad hoc basis and as-on'tour: This if hie'is a Govt. > Servant travelling in a train..-... as an ordinary passenger

-and-has to bear witness to that in his private sapacity-he 5 ‘should be paid T.A. as on tour. The Meharrirs. ‘of, ‘the . Police Stations bringing records which they maintain at ~ °. PS.s. in their official capacity. will be _Boverned by. dass es €1) above, Sots - ae

’ aid

“Gi: ‘Non-official witnesses called of allowed to bé produced * by the S:P. will get T.A. ‘under rule 20A of Financial

| Handbook’ ‘Volume Ii. aa os

This G.0. makes it clear that responsibility for vt payrilent of na

; “te travelling allowance tg defence witnesses produced - in departmental ‘ingiiry conducted under s. 7 of tlie Police Act is of the Gévetnment ’

and that if a ‘Witness has. béén permitted to be produéed in defence

@ it is dot open to ‘the inquiry officer to lay down a condition. that - his travelling experises, should’ be first deposited by. the delinquent officer before the witness is examined. In the. present: case, the Tri- .

buial Kas considered the witnesses to be material but has insisted on:

the. ‘appellant depositing initially a sum of Rs. 900. for the travelling expense and daily: allowances. of the’ ‘witnesses with an Obligation to

| “make good any shoftfall in those allowances and José of professional income of the Witneshes. Mr. Prithvi: Ra, Senior Coitnse] | Bppeating ee ay

M.H. ANSARI », U.P, STATE (Varadarajan, J.) 251

- for the respondent-State’ did not contend that this G.O. does not apply. to the ¢ase ofthe. appellant. Moreover, the appellant was "under suspension from 11.12,1967 and there is nothing on record to show that he was financially sound and.in a position t6 deposit the' -sum of Rs.900 and pay any further amount which may be required . “to meet any shortfall in the travelling and daliy allowances and the

Joss of professional income of the 8 more witnesses whom he wanted | ©

‘to be examined on his:side. " The failure to cause the production Of ‘those witnesses at the éxpense of the Government might have caused prejudice to the appellant for it cannot be predicated what conclusion

“the Tribunal would have reached in regard to charges 1 to 3 if the evidence of those witnesses was available for its considération. We are, therefore, of the opinion that there is: no’ compliance with the ‘principles of natural justice in this case. The appeal has to be -allowed on this short ground and it is accordingly allowed. The finding of the Tribunal that the appellant is guilty of charges 1 to 3

-and the consequent order of the Government/Governor removing -,

‘the appellant from service are quashed. T he. matter. is rethitted to.

the Tribunal for fresh disposal after summoning at government _ expense such of the material witnesses as the appellant may wish to

‘be examined in his defence. The appellant shall be entitled to costs

“ -quantified at Rs.2,000. It is needless: ‘to say that.the appellant would: “be entitled to subsistance allowances from the | ‘date of his removal.

from service until the proceedings taken against him terminate and ‘final order is passed. This shall be’ paid i in six weeks,

A ppeal allowed.

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