JUDGMENT
H.L. Agrawal, J.
1. The petitioner, who was in Police Service and holding the post of Sub-Inspector is challenging the order of his dismissal passed by the Deputy Inspector General of Police (Eastern Range), Bhagalpur, communicated to the petition by his memo No. 2005 dated 14.10.1966 (Annexure ‘1’) and the order of rejection of his memorial submitted to the State Government dated 31.1.1972 communicated to the petitioner by the. Assistant Inspector General of Police (Q), a copy of which is Annexure ‘2’.
2. In February, 1961 the petitioner was posted at Rajmahal Police Station in the district of Sahebganj. A departmental proceeding being No. 1 of 1964 was drawn up against him in relation to his working as Officer-in-charge of the aforesaid Police Station on 10.2.1961. The charges that were framed against him in the Said proceeding were of misconduct and taking bribe. The petitioner had obtained a search warrant from the Resident Magistrate of Rajmahal for searching the house of one Sk. Asad Ali residing within the jurisdiction of the aforesaid police station. As a result of search, 5 pieces of mild iron rods suspected to be stollen property were recovered and seized by the petitioner. It is said that he had arrested the aforesaid suspect but released him after taking a bribe of Rs. 290/- and did not write any case diary nor did he send any report to the local Magistrate.
3. An enquiry was conducted by the Deputy Superintendent of Police (respondent No. 4) before whom seven witnesses were examined on behalf of the prosecution and four for the petitioner, besides a large number of documents were produced. On the Basis of the evidence he came to the conclusion that the petitioner was guilty of all the charges and recommended for a drastic action against him. A copy of his finding has been made Annexure ‘4’ to the writ application.
4. The second show cause notice (Annexure ‘5’) was issued to the petitioner on 17.7.1966 by respondent No. 3 asking him to show cause as to why, “he should not be dismissed/discharged from the Forde for having been found guilty in this proceeding.” It may be mentioned that in the second show cause notice it was directed that a copy of the same may also be forwarded to the petitioner for his needful by registered post. The Additional Superintendent of Police, Sahebganj in his provisional order said that the petitioner who was appointed on 3.1.1951 had during his 15 years of service, earned 51 rewards against 18 punishments one being major equivalent to three black remarks. He had accordingly suggested that, “In the interest of morale and discipline of the Force, such a dishonest officer should not be allowed to continue in the force.” Accordingly, he had recommended that the petitioner should be dismissed from the force forthwith.
5. The petitioner filed his show cause (Annexure ‘7’) in response to the notice (Annexure 5) and as already stated above has been (sic) dismissed by the impugned order (Annexure ‘1’).
6. The petitioner’s further case is that be had preferred a statutory appeal before respondent No. 2 on 16.4.1967 but order parsed on the said statutory appeal was never communicated to him in writing. But when he happened to learn that his appeal had been rejected, he submitted a memorial to respondent No. 1 in accordance with the provisions contained in Bihar Police Manual but the same was also rejected.
7. In this Court, Mr. Tarkeshwar Dayal in support of this petition has contended that the enquiry conducted by the Enquiry Officer was vitiated as he had referred to various in admissible materials and had closed the proceeding without affording adequate opportunity to the petitioner to examine more witnesses. Learned counsel further contended that the final order of dismissal passed by respondent No. 3 was also vitiated inasmuch a sit has also taken into consideration certain materials other than those subject matter of the charges which have weighed with the authority to pass the ultimate order of dismissal against the petitioner, who had no knowledge of the same.
8. In the counter affidavit filed on behalf of the respondents it has been stated that reasonable opportunity was given to the petitioner and there has been no violation, of the principles of natural justice. According to their stand, the order of dismissal was passed on the gravity of the offence committed by the petitioner and not on the basis of any other material complained of. I may just now indicate the other material. It is the major punishment already mentioned above and the adverse entries in the confi (sic). I shall deal with them little later and would like to dispose of the main grievances of the petitioner of his having not received a fair play at the hands of the Enquiry Officer during the course of the enquiry.
9. The petitioner wanted to examine three more witnesses in his defence. He could examine only one of them and for the two others, namely, Shri Shyam Sundar Saha, a Railway employee and Shri C.K. Singh, the then Inspector of Rajmahal, wireless messages had been sent on the request of the petitioner. The enquiry was adjourned for some time on different dates for the appearance of these two witnesses but as they did not turn up, the enquiry was closed. Shri C.K. Singh, the Inspector had sent a wireless message to the Enquiry Officer expressing his inability to attend the proceeding on 30.6.1965 making a request for postponment on account of his preoccupations. This was, however, not allowed. Similarly, with respect to other witness Sheyam Sundar Saha, the service return of the notice had not been received. The petitioner also complained of non-production of certain documents such as Malkhana register and despatch register for the month of February, 1961 although they were called for earlier and were in custody of the officer subordinate to the Enquiry Officer. There may be some force in the grievances of the petitioner on these counts. The question, however, remains as to whether for these reasons the enquiry could be said to be vitiated.
10. Learned Counsel for the petitioner on the basis of the authority in the case of Balchhittar Singh v. State of Punjab contended that the departmental enquiry against the petitioner at the first stage of finding out the truth of the charges as also at the second stage of awarding punishment, was judicial in nature and not administrative. He accordingly contended that the enquiry should be held from the very beginning to the end in full compliance of the provisions of the Evidence Act. He again referred to another decision of the Supreme Court in the case of Khem Chand v. Union of India for the proposition that the reasonable opportunity envisaged to the Government servant by the provisions contained in Article 311(2) includes, (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the punishments and communicates the same to the Government servant. The propositions initiated in these two decisions are of universal application and cannot be disputed as such.
11. In the case of State of Andhra Pradesh v. S. Sree Rama Rao the Supreme Court was considering the extent of power of the High Court under Article 226 to interfere with findings recorded in a departmental enquiry into misconduct of a Government servant. It was observed as follows:
In considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court, does not apply and even if that rule is not applied, the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.
12. The power of High Court under the writ jurisdiction in matters relating to departmental enquiry, in my opinion, is very much limited. It has, therefore, to be seen as to whether the findings recorded by the Enquiry Officer could be reasonably supported on the materials on the record or whether they are inconsistent with the rules of natural justice or in violation of any statutory rules.
13. The Supreme Court in the aforesaid case has further observed that the departmental authorities were the sole judges of fact and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be convased before the High Court in a proceeding for a writ under Articles 226 of the Constitution. It was not contended that there was no evidence on the record which the authority entrusted to hold the enquiry could not accept and the same did not reasonably support the allegation that the petitioner was guilty of the charge.
14. I may refer to an observation made in the order (Annexure ‘1’) itself which is as follows:
All the allegations made in this charge against the S.I. are almost admitted by the accused S.I. except that of accepting bribe.
The Enquiry officer, in his report, says regarding the witness C.K. Singh, “…did not appear to depose and, as such, I disallowed his evidence on the 4th date…I would like to mention the reason most probably of the Inspector’s not appearing to face the cross-examination by the prosecution.
It is not disputed by the petitioner that he had made a search of the house of Asad Ali after obtaining such warrant from the Resident Magistrate and had seized certain suspected stolen iron rods and arrested the suspect but released him without instituting any case. The only material issue in controversy was as to whether the release and the non-institution of a case was on account of his accepting any illegal gratification or not. The Enquiry officer has referred to in his evidence a number of prosecution witnesses and documents for coming to his conclusions.
Learned Government Pleader contended that the non-production of any documents or witness who were under the employment of the State could simply entitle the petitioner to ask for drawing an inference of fact in his favour and nothing beyond that, and, in spite of this, it was open to the Enquiry Officer to accept the testimony of the witnesses examined and the documents produced in support of the charge and, therefore, the grievance was not a matter failing within the purview of the enquiry being made by this Court. There seems to be some force in this connection.
15. The Supreme Court, again, in the case of the State of Bombay v. Nurul Latif Khan observed that, if the charge sheeted officer desires to examine witnesses whose evidence may appear to the Enquiry Officer to be thoroughly irrelevant, the Enquiry Officer may refuse to examine them, in doing so, however, he will have to record his special and sufficient reasons. The right given to the chargesheeted officer to cross-examine the departmental witnesses or examine his own witnesses can be legitimately examined and controlled by the Enquiry Officer, he would be justified in conducting the enquiry in such a manner that the proceedings are not allowed to be unduly or deliberately prolonged.
16. The Supreme Court, again, in the case of the State of Andhra Pradesh v. Chitra Venkata Rao held that where there is some evidence which the authority entrusted with the duty to hold enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of charge it is not the function of the High Court to review the evidence and to arrive at an independent finding on evidence. The finding of fact recorded Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate.
17. I have carefully examined the findings recorded by the Conducting Officer in his enquiry report and keeping in view the principles laid down in the above, authorities and the limitations of this Court in its supervisory powers under Article 226 of the Constitution, I do not find any merit in the contention raised on behalf of the petitioner with respect to his complaint that he had not received any fair play or was not given reasonable opportunity of defending himself.
However, I would still leave this matter open to reagitated by the petitioner at the second stage of the proceeding, if so advised, for proper appreciation for the view I propose to take with respect to the second contention raised by Mr. Tarkeshwar Dayal and any observation of mine would not in any way prejudice him to advance any contention; as an enquiry against a Government servant has one continuous process, though for convenience, it is done in two stages and the report of the enquiry Officer is only recommendatory in nature and the final authority has to scrutinize and impose punishment as the authority empowered to impose the same, after the second show cause (Annexure’5′).
18. I have already briefly indicated the basis of this argument in paragraph 8 of my judgment. In the second show cause notice mentioned above, reference was made to the finding of the Conducting Officer and the provisional order dated 17.12.1965 of the Additional S.P. holding the petitioner guilty of the charge. The Additional S.P., in his provisional order (Annexure ‘6’), had referred only to the service records of the petitioner earning eighteen punishments, one of which being major, equivalent to three black marks. No grievance on this account can be legitimately made by the petitioner. In my opinion, sufficient notice of this fact brought to his knowledge and a copy of the order of the Additional S.P. also was directed to be furnished to the petitioner by registered cover. The petitioner, therefore, could legitimately know that his service records were also operating on the mind of the authority concerned. There is no force in the contention of Mr. Tarkeshwar Dayal that previous records of the petitioner could not be referred to at the time of awarding punishment. The impugned order of dismissal, therefore could be rightly Abased upon previous service records of the petitioner as well as the finding recorded in the enquiry.
On examining the order of dismissal, it would, however, also appear that respondent No. 3 had felt fully satisfied “that the charges of the proceeding have been proved against the S.I.” which were grave charges and on looking at the service record “besides other punishment that he has earned the S.I. was given one major punishment.” After referring to these two materials, he has referred to the confidential character roll of the petitioner as well which showed “lack of integrity in him” and then after referring to all the three materials, namely, (1) the finding of the Enquiry Officer, (2) the service record of the petitioner and (3) the confidential character roll of the petitioner, he says, “in, view of what has been said above, there will be no other punishment suitable in this case except dismissed”. Accordingly, the petitioner was ordered to be dismissed from force with effect from the 15th of October, 1966.
The petitioner was not informed that the entries in his confidential character roll would also be looked into and considered at the second stage of the proceeding. There was no indication in the second notice of this fact. Under Article 311(2) of the Constitution, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and therefore, he must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice it would be well nigh impossible for him to predicate as to what is working in the mind of the authority concerned and he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive.
19. In the case of the State of Mysore v. K. Manche Gowda , it. was observed by the Supreme Court that, if the previous record of the Government servant on which the punishment was based was not disclosed in the notice, that meant, that the main reason for the proposed punishment was withheld (a circumstance in that case) from his knowledge and, if that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers; that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or, at any rate, approved by the superior officers. It cannot be disputed that, in awarding the punishment the entries made in the confidential character roll have also been taken into consideration and have influenced the mind of respondent No. 3. The Supreme Court in a large, number of cases has held that, if the court of fact arrives at a decision by considering the material which is irrelevant to the enquiry or partly relevant and partly irrelevant or bases its decision partly on conjectures and surmises, etc., than, in that situation, an issue of law arises. When a Court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at the decision finally. The punishment of dismissal recorded against the petitioner by respondent No. 3, therefore, in my opinion, cannot be sustained as it must be held to be vitiated because of the use of inadmissible material See Dhirajlal Girdharilal v. Commissioner of Income Tax, Bombay A.I.R. 1955 S.C. 27, I would accordingly set aside and cancel the order of dismissal passed by respondent No. 3 on 14.10.1966, a copy of which is Annexure ‘1’ to the writ application.
20. This order, however, will not preclude the Government from holding a second stage of the enquiry afresh and in accordance with law.
21. In the result, this application succeeds to the extent indicated above and the order of dismissal (Annexure ‘1’) is quashed. Let an appropriate writ issue accordingly. In the circumstances, I shall direct the petitioner to bear his own costs.