{"id":60889,"date":"1970-03-18T00:00:00","date_gmt":"1970-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-assam-and-another-vs-mahendra-kumar-das-and-others-on-18-march-1970"},"modified":"2017-07-26T15:09:57","modified_gmt":"2017-07-26T09:39:57","slug":"the-state-of-assam-and-another-vs-mahendra-kumar-das-and-others-on-18-march-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-assam-and-another-vs-mahendra-kumar-das-and-others-on-18-march-1970","title":{"rendered":"The State Of Assam And Another vs Mahendra Kumar Das And Others on 18 March, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Assam And Another vs Mahendra Kumar Das And Others on 18 March, 1970<\/div>\n
Equivalent citations: 1970 AIR 1255, \t\t 1971 SCR (1)\t 87<\/div>\n
Author: C Vaidyialingam<\/div>\n
Bench: Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nTHE STATE OF ASSAM AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nMAHENDRA KUMAR DAS AND OTHERS\n\nDATE OF JUDGMENT:\n18\/03\/1970\n\nBENCH:\nVAIDYIALINGAM, C.A.\nBENCH:\nVAIDYIALINGAM, C.A.\nSIKRI, S.M.\nBHARGAVA, VISHISHTHA\n\nCITATION:\n 1970 AIR 1255\t\t  1971 SCR  (1)\t 87\n 1970 SCC  (1) 709\n CITATOR INFO :\n RF\t    1988 SC 117\t (3,6)\n\n\nACT:\nNatural\t Justice--Departmental\tEnquiry--Consultations\theld\nand   material\t collected   behind   back   of\t  delinquent\nofficer--Whether   enquiry  is\tvitiated--Enquiry   is\t not\nvitiated if such material not taken into account and enquiry\nofficer not influenced.\nAssam Police Manual, Part III, Rule 66--Appointing Authority\nin case of Sub-Inspector is Superintendent of Police.\n\n\n\nHEADNOTE:\nThe  first  respondent\twas  at the  relevant  time  a\tSub-\nInspector  in the service of the State of Assam.  In  regard\nto  certain  allegations  a confidential  enquiry  was\theld\nagainst him by the Superintendent of Police  Anti-Corruption\nBranch\twho submitted his report to the Government in  1957.\nA  departmental enquiry was thereafter held.  On receipt  of\nthe  enquiry officer's report, the Superintendent of  Police\nasked  for  the respondent's explanation and  thereafter  in\nDecember  1958\tordered\t his  dismissal.   The\trespondent's\nappeal before the Deputy Inspector-General of Police and his\nrevisions   before  the\t Inspector-General  and\t the   State\nGovernment  failed.  Thereupon the respondent filed  a\twrit\npetition  before the High Court challenging the validity  of\nthe  departmental enquiry and the order of  dismissal.\t The\nHigh  Court  allowed  the petition on the  ground  that\t the\nenquiry\t officer  had  during  the  course  of\tthe  enquiry\nconsulted  the\tSuperintendent\tof  Police   Anti-Corruption\nBranch\tand  had  taken\t into  consideration  the  materials\ngathered  from\tthe records of\tthe  Anti-Corruption  Branch\nwithout\t making\t the  report of that  Branch  and  the\tsaid\nmaterial available to the respondent.  The State appealed to\nthis  Court  by\t special leave contending  that\t :  (i)\t the\nenquiry officer was not influenced by his consultations with\nthe Superintendent of Police Anti-Corruption Branch and (ii)\nin  any event the Superintendent of Police  before  ordering\nthe respondent's dismissal had himself considered the entire\nevidence.   It was submitted that the  appellate  authority,\ni.e., the Deputy Inspector-General of Police had also made a\nsimilar\t approach while considering the respondent's  appeal\nand  therefore there had been no denial of natural  justice.\nOn  behalf  of the respondent it was urged that\t the  orders\nrelating  to the appointment of the respondent as  permanent\nSub-Inspector  had been passed by the  Inspector-General  of\nPolice\tand therefore the Superintendent of Police  was\t not\ncompetent to order his dismissal.\nHELD  :\t (i) It is highly improper for\tan  enquiry  officer\nduring\tthe conduct of an enquiry to attempt to collect\t any\nmaterials from outside sources and not make that information\nso  collected,\tavailable  to  the  delinquent\tofficer\t and\nfurther\t make  use of the same in the  enquiry\tproceedings.\nThere  may  also  be cases where a very\t clever\t and  astute\nenquiry\t officer may collect outside information behind\t the\nback  of  the delinquent officer and, without  any  apparent\nreference  to  the information so collected, may  have\tbeen\ninfluenced  in the conclusions recorded by him\tagainst\t the\ndelinquent officer concerned.  If it is established that any\nmaterial  had been collected during the enquiry\t behind\t the\nback  of the delinquent officer and such material  had\tbeen\nrelied on by the enquiry officer, without being disclosed to\nthe  delinquent officer, it can be stated that\tthe  enquiry\nproceedings are vitiated. [96 F-H]\n88\nIn  the\t present case however there was no warrant  for\t the\nHigh  Court's  view  that  the\tenquiry\t officer  took\tinto\nconsideration  the  materials found by\tthe  Anti-Corruption\nBranch.\t  On the other hand, a perusal of the report  showed\nthat  each and every item of charge had been discussed\twith\nreference  to the evidence bearing on the same and  findings\nrecorded on the basis of such evidence.\t Therefore it  could\nnot  be\t stated that the enquiry officer in  this  case\t had\ntaken  into  account the materials if any that he  may\thave\ncollected  from the Anti-Corruption Branch.  Nor  was  there\nanything to show, in the discussion contained in his  report\nthat  the enquiry officer was in any way influenced  by\t the\nconsultations  that he had with the Anti-Corruption  Branch.\nIf  so,\t it could not be held that the\tenquiry\t proceedings\nwere violative of the principles of natural justice.[97 E-G]\nThe  fact that a copy of the report, of the  Anti-Corruption\nBranch\twas   not  furnished to the  respondent\t was  of  no\nconsequence  in\t relation to the  actual  enquiry  conducted\nagainst the respondent inasmuch as he had a full opportunity\nto  cross-examine the witnesses for the prosecution  and  of\nadducing  evidence in his favour.  Even assuming that  there\nwas  some  defect in the enquiry proceedings, there  was  no\nviolation  of principles of natural justice in\tthe  present\ncase because the punishing authority, the Superintendent  of\nPolice,\t and the appellate authority, the Deputy  Inspector-\nGeneral\t of Police had independently considered\t the  matter\nand  found the respondent guilty on the evidence on  record.\n[98 A-E]\nState  of Mysore v. S. S. Makapur,<\/a> [1963] 2 S.C.R. 943,\t The\nCollector  of Central Excise and Land Customs v.  Sanawarmal\nPurhoit, Civil Appeals Nos. 1362-1363 of 1967 decided on 16-\n2-1968, applied.\nExecutive Committee of U.P. State Warehousing Corporation v.\nChandra\t Kiran Tyagi, Civil Appeal No.<\/a> 559 of 1967,  decided\non 8-9-1969, distinguished.\n(iii)  In  view of Rule 66 of Part 11 of  the  Assam  Police\nManual and in view of the evidence on record the  contention\nof  the respondent that the Superintendent of Police is\t not\nthe  appointing authority for a Sub-Inspector, could not  be\naccepted. [99 F-H; 100 C-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2210 of 1966.
\nAppeal by special   leave from the judgment and order dated
\nJanuary 20, 1966 of the Assam and Nagaland High Court in
\nCivil Rule No. 184 of\t 1964.\n<\/p>\n
Naunit Lal, for the appellants.\n<\/p>\n
D. N. Mukherjee, for respondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nVaidialingam, J. This appeal, by special leave, is  directed
\nagainst\t the  judgment, dated January 20, 1966 of  the\tHigh
\nCourt  of Assam and Nagaland, in Civil Rule No. 184 of\t1964
\nby  which  the High Court quashed  the\tinquiry\t proceedings
\nconducted by the 4th respondent therein and the order, dated
\nDecember 3, 1958 passed by the 3rd respondent dismissing the
\nfirst  respondent  (hereinafter shortly referred to  as\t the
\nrespondent)  from  service and the orders of  the  appellate
\nauthorities confirming the same.\n<\/p>\n
89<\/span><\/p>\n
The  respondent\t joined\t the  Assam  Police  Service  as   a
\nconstable in 1933 and was promoted to the post of  Assistant
\nSub-Inspector  of Police in 1936.  He was then\tpromoted  as
\nSub-Inspector  of Police in 1944.  He was made permanent  as
\nSub-Inspector  of  .police  in\t1952.\tIn  1955,  when\t the
\nrespondent  was the Officer incharge of the  Sorbhog  Police
\nStation,  certain  allegations\tappear\tto  have  been\tmade
\nagainst\t him in consequence of which a confidential  enquiry
\nwas  conducted\tby  the\t Superintendent\t of  Police,   Anti-
\nCorruption Branch, who submitted a report to the  Government
\non  December 21, 1957.\tIn view of the\tcomplaints  received
\nagainst\t him, the respondent had already been  placed  under
\nsuspension with effect from July 24, 1957.\n<\/p>\n
The  Sub-Divisional  Police Officer,  Barpeta,\thaving\tbeen
\nauthorised under s. 7 of the Police Act, 1861 framed charges
\nagainst the respondent on March 22, 1958.  It is not  really
\nnecessary  to  enumerate the various items of  charges,\t but
\nthey  can be grouped under three broad heads.  Under  charge
\nno.  1,\t the  respondent  was  alleged\tnot  to\t have  taken
\ncognisance  of the items of cognizable offences reported  to
\nhim  and enumerated under that charge and, as such,  he\t had
\nneglected to perform his duty as a police-officer in  charge
\nof  a  Police  Station.\t The second charge  related  to\t his
\nhaving\taccumulated  assets in his name as well as  in\t.the
\nname  of his wife, far beyond his known sources\t of  income.
\nItems of assets purchased by the respondent were again given
\nin  detail.   The  third charge related\t to  the  respondent
\nhaving\tconcealed the items, enumerated therein,  and  given
\nfalse statements regarding his assets in the declaration  of
\nassets submitted to the authorities on July 22, 1957.
\nThe  respondent submitted his explanation  contravening\t the
\nallegations made against him.  The enquiry was conducted  by
\nthe Sub-Divisional Police Officer, Barpeta (shortly referred
\nto  as\tthe Enquiry Officer) and,. as many as  14  witnesses
\nwere   examined\t on  the  side\tof  the\t prosecution.\t The
\nrespondent  cross-examined  those  witnesses  and  he\talso
\nexamined four witnesses on his side.\n<\/p>\n
The Enquiry Officer, by his report dated September 11,\t1958
\nfound\tthe  respondent\t guilty\t of  the  various   charges,
\nexcepting  regarding  one item under the first\tcharge.\t  He
\ndeclined  to place any reliance on the evidence\t adduced  by
\nthe  respondent\t and rejected the explanation  furnished  by
\nhim.   Ultimately,  the Enquiry Officer, after\tfinding\t the
\nrespondent    guilty,\tsubmitted   his\t  report   to\t the
\nSuperintendent\tof  Police, Kamrup.  The  Superintendent  of
\nPolice,\t after referring to the charges framed\tagainst\t the
\nrespondent,  the nature of the evidence adduced\t before\t the
\nEnquiry Officer as well as the finding recorded by the\tsaid
\nOfficer,  issued a memo, dated October 18, 1958\t asking\t the
\nrespondent to submit his explanation.  A copy of the  report
\nof the Enquiry L 11 SupCI\/70-7
\n90<\/span>
\nOfficer had already been given to the respondent.  Still the
\nSuperintendent\tof  Police also sent a copy along  with\t his
\nmemo.\n<\/p>\n
On receipt of this memo, the respondent requested the Super-
\nintendent  of Police, by his letter dated October  29,\t1958
\nfor  being furnished with copies of the depositions  of\t the
\nprosecution  and defence witnesses recorded by\tthe  Enquiry
\nOfficer\t to enable him to submit his explanation.  But\tthis
\nrequest was rejected by the Superintendent of Police stating
\nthat there was no rule for giving copies of statements.
\nThe  respondent submitted a fairly long\t explanation,  dated
\nNovember  21,  1958.   He disputed the\tcorrectness  of\t the
\nfindings  recorded against him by the Enquiry  Officer\tand,
\nultimately stated that he was innocent and was not guilty of
\nany offence.  He prayed that if in case he was found guilty,
\nhe should not be awarded the extreme punishment of dismissal
\nfrom service.  But he ,added a request to the effect that he
\nshould be allowed to examine witnesses and submit  documents
\nand he should be exonerated by the Superintendent of  Police
\nafter a perusal and consideration of the same.
\nOn receipt of the explanation, the Superintendent of Police,
\nby his order dated December 3, 1958 rejected the explanation
\nof  the\t respondent, accepted the findings  of\tthe  Enquiry
\nOfficer and holding that the charges had been proved  beyond
\nall reasonable doubt, dismissed the respondent from  service
\nwith   immediate   effect.    In   the\t said\torder,\t the
\nSuperintendent of Police had referred to the charges  framed
\nagainst the respondent, the explanation furnished by him  as
\nwell  as  the evidence recorded during the enquiry  and\t the
\nfindings recorded by the Officer and the explanation sent by
\nthe respondent to the show cause notice and ultimately\theld
\nthat  the charges had all been proved established  and\tthat
\nthe  findings recorded by the Enquiry Officer were  correct.
\nWith  regard  to the request made by the respondent  in\t his
\nexplanation   dated  November  21,  1958  the\tdisciplinary
\nauthority stated that the respondent was afforded a full and
\nfair  opportunity to adduce all evidence that he desired  to
\nbe  placed before the Enquiry Officer and  that\t opportunity
\nhad  also been fully utilised by the respondent.   Therefore
\nthere was no further necessity for giving the respondent  an
\nopportunity   to  furnish  documentary\tor  oral   evidence.
\nRegarding  the punishment to be awarded, the  Superintendent
\nof  Police  stated  that  the  charges\tproved\tagainst\t the
\nrespondent, who was a member of the Police force, were\tvery
\nserious and hence no leniency could be shown.
\nThe respondent filed an appeal. before the Deputy Inspector-
\nGeneral of Police, Range, Assam, who, by his order dated May
\n11, 1960 dismissed the same.\n<\/p>\n
91<\/span><\/p>\n
The  respondent\t thereupon  filed  a  revision\tbefore\t the
\nInspector  General  of\tPolice,\t Assam,\t which,\t again,\t was
\nrejected on June 30, 1961.  A further revision, filed before
\nthe State Government was also dismissed on January 21, 1964.
\nOn August 17, 1964 the respondent filed the writ petition in
\nquestion, challenging the disciplinary proceedings initiated
\nagainst him and the orders of dismissal passed on the  basis
\nof  the\t enquiry conducted by the Enquiry Officer.   He\t had
\ntaken several grounds of attack as against the\tdisciplinary
\nproceedings.  He alleged that no reasonable opportunity\t was
\nafforded to him during the enquiry proceedings.\t During\t the
\nenquiry,  the Enquiry Officer was in  frequent\tconsultation
\nand contact with the Deputy Superintendent of Police of\t the
\nAnti  Corruption  Branch, regarding the charges\t which\twere
\nbeing  tried  by  him.\tIn particular, he  referred  to\t the
\nrecord\tmade by the Enquiry Officer in his proceedings\tthat
\non   July   14\tand  15,  1958\the  consulted\tthe   Deputy
\nSuperintendent\tof Police, Anti Corruption Branch about\t the
\nproceedings  and  went through his records relating  to\t the
\ncharges.  He averred that the nature of the consolation\t and
\nthe  materials\tcollected by the Enquiry  Officer  from\t the
\nDeputy Superintendent, Anti Corruption Branch, were not made
\nknown to him and those materials had been taken into account
\nin recording the findings against him.\tHe also alleged that
\ncopies\tof the report of the Anti Corruption Department,  on
\nthe  basis  of\twhich  disciplinary  proceedings  had\tbeen
\ninitiated, had not been furnished to him nor were the copies
\nof  the evidence recorded during the enquiry given  to\thim,
\nthough\ta specific request was made in that behalf.  On\t all
\nthese  grounds, he sought to have all the orders quashed  on
\nthe  ground  that there had been a gross  violation  of\t the
\nprinciples of natural justice.\tHe took a further ground  of
\nattack\tthat he had been appointed by the Inspector  General
\nof  Police  and\t the order of  dismissal  by  a\t subordinate
\nauthority,  viz., the Superintendent of Police, was  illegal
\nand void.\n<\/p>\n
The allegations made by the respondent in the writ  petition
\nwere controverted by the appellants.  They averred that\t the
\nrespondent  was not entitled to a copy of the report of\t the
\nAnti  Corruption Branch, which was only in the nature  of  a
\npreliminary  investigation  into  the  complaints   received
\nagainst the respondent to enable the disciplinary  authority
\nto   consider  whether\tdisciplinary  action   against\t the
\nrespondent  should  be\tinitiated or not.   It\twas  further
\nstated\tthat  the  respondent  was given  a  full  and\tfair
\nopportunity to participate in the enquiry and the  witnesses
\nwere  all  examined in his presence and, apart\tfrom  cross-
\nexamining  the\tprosecution witnesses, he had  also  adduced
\ndefence\t evidence on his behalf.  The State further  averred
\nthat   the  mere  circumstance\tthat  the  Enquiry   Officer
\nconsulted the Deputy Superintendent of
\n92<\/span>
\nPolice, Anti Corruption Branch, did not vitiate the  enquiry
\nproceedings  as no information or material gathered  therein
\nhad  been  used\t by the Enquiry\t Officer  when\the  recorded
\nfindings  against the respondent.  According to\t the  State,
\nthe findings had been recorded on the basis of the  evidence
\nadduced during the actual enquiry.  It was also pointed\t out
\nthat the disciplinary authority, viz., the Superintendent of
\nPolice, after receipt of the report of the Enquiry  Officer,
\nhad  himself  gone into the various items of  evidence\tand,
\nafter  a due consideration of the explanation  submitted  by
\nthe respondent, had agreed with the findings recorded by the
\nEnquiry\t Officer  and, after further  consideration  of\t the
\nexplanation  submitted by the respondent to the\t show  cause
\nnotice,\t ultimately  passed  the order\tof  dismissal.\t The
\nappellate  authority,  the.   Deputy  Inspector\t General  of
\nPolice\thad also considered the matter in great\t detail\t and
\nhad upheld the order of the Superintendent of Police.
\nThe  State further averred that the appointing authority  of
\npersons\t like  the  respondent, was  the  Superintendent  of
\nPolice\tand  not the Inspector General of  Police,  and,  as
\nsuch,  the  order  of dismissal passed\tby  the\t former\t was
\nperfectly legal.  On these grounds the State maintained that
\nthe  enquiry  proceedings were valid and legal and  did\t not
\nsuffer from any infirmity.\n<\/p>\n
Though,\t as  pointed out above, several\t grounds  of  attack
\nagainst\t the disciplinary proceedings initiated against\t the
\nrespondent were taken in the writ petition, it is seen\tfrom
\nthe  judgment of the High Court under appeal that the  order
\nof  dismissal was ultimately assailed only on two grounds  :
\n(1) The request of the respondent, made on October 29,\t1958
\nafter receipt of the second show cause notice dated  October
\n18, 1958 issued by the Superintendent of Police, for  supply
\nof copies of the statements of the witnesses recorded at the
\nenquiry,  was arbitrarily rejected on the ground that  there
\nwas no rule under which copies could be given and hence\t the
\nrespondent  did not have any reasonable opportunity to\tshow
\ncause  against\tthe  action proposed against  him.  (2)\t The
\nEnquiry\t Officer,  during  the course  of  the\tenquiry\t was
\nkeeping himself in regular contact with the Anti  Corruption
\nBranch\tand  had utilised the material so gathered  by\thim,
\nbehind the back of the respondent, against the respondent in
\nthe enquiry proceedings.  The respondent’s request for being
\nfurnished  with a copy of the report of the Anti  Corruption
\nBranch had also been refused and therefore there had been  a
\nviolation  of  the  principles of  natural  justice  in\t the
\nconduct of the enquiry.\n<\/p>\n
So  far as the first ground of objection is  concerned,\t the
\nHigh Court did not accept the same as it was satisfied\tthat
\nthe  witnesses\twere  all examined in  the  enquiry  in\t the
\npresence of the respondent
\n93<\/span>
\nand  that  he  had a full and  fair  opportunity  of  cross-
\nexamining  the prosecution witnesses and also  of  examining
\nwitnesses  on  his  behalf.   Though  the  request  of\t the
\nrespondent,  made  on October 29, 1958 for  being  furnished
\nwith copies of the evidence recorded during the enquiry\t was
\nrejected,  the\tHigh  Court  was of the\t view  that  as\t the
\nrespondent  was\t fully aware of the nature of  the  evidence
\nadduced\t in his presence during the enquiry,  his  grievance
\nthat  he had no reasonable opportunity to show cause to\t the
\nnotice issued by the Superintendent of Police was unfounded.
\nSo far as the second ground of objection was concerned,\t the
\nHigh  Court  was  impressed by the  fact  that\tthe  Enquiry
\nproceedings  showed that on July 14, 1958 and July 15,\t1958
\nthe  Enquiry Officer consulted the Deputy Superintendent  of
\nPolice\tof the Anti Corruption Branch about the\t proceedings
\nand  went  through his records relating\t to  those  charges.
\nBased upon those entries found in the record of the  enquiry
\nproceedings,  the High Court came to the conclusion that  it
\nwas abundantly clear that the Enquiry Officer had discussion
\nwith the Anti Corruption Branch, the report of which had not
\nbeen  furnished\t to  the respondent.   The  High  Court\t was
\nfurther of the view that the Enquiry Officer had taken\tinto
\nconsideration the materials gathered from the records of the
\nAnti Corruption Branch.\t It was the further view of the High
\nCourt  that  inasmuch as a copy of the report  of  the\tAnti
\nCorruption  Branch  as\twell  as  the  materials  that\twere
\ngathered by the Enquiry Officer during his consultation with
\nthat  Branch had not been furnished to the  respondent,\t the
\nenquiry held under such circumstances was in clear violation
\nof  the principles of ‘natural justice and hence  the  order
\ndismissing  the respondent from service was void.   In\tthis
\nview  the  High Court set aside the order of  dismissal\t and
\nallowed the writ petition,
\nMr.  Naunit  Lal, learned counsel for the  appellant  State,
\nraised\ttwo  contentions  : (1) The report  of\tthe  Enquiry
\nOfficer,  dated\t September 11, 1958 clearly shows  that\t the
\nfindings   against   the  respondent  have   been   recorded
\nexclusively on the basis of the evidence adduced before\t him
\nand  there is nothing to show that the\tEnquiry\t Proceedings
\nhave  been influenced by the consultations that the  Enquiry
\nOfficer\t had with the Deputy Superintendent of Police,\tAnti
\nCorruption  Branch, on July 14-15, 1958. (2) In\t any  event,
\nthe  disciplinary  authority, viz.,  the  Superintendent  of
\nPolice,\t before\t accepting  the\t findings  recorded  by\t the
\nEnquiry Officer, has himself considered the entire  evidence
\nbearing upon the charges and the explanations offered by the
\nrespondent and it is after such a consideration that he\t has
\nagreed\twith the findings of the Enquiry  Officer  regarding
\nthe  guilt of the respondent.  The appellate authority,\t the
\nDeputy Inspector General of Police, has also made a  similar
\napproach when disposing of the appeal
\n94<\/span>
\nfiled  by  the respondent and therefore there  has  been  no
\nviolation of the principles of natural justice.
\nMr. D. N. Mukherjee, learned counsel for the respondent, has
\nurged  that the High Court’s view that the enquiry  proceed-
\nings  is vitiated inasmuch as the Enquiry Officer has  acted
\nupon  the  information collected from  the  Anti  Corruption
\nBranch\tis  perfectly justified, especially in view  of\t the
\nrecord made by the Enquiry Officer himself.  Counsel pointed
\nout that the examination of witnesses commenced on June\t 23,
\n1958  and concluded only on August 30, 1958.  It was  during
\nthis period when the. enquiry was actually going on that the
\nEnquiry Officer, on July 14 and 15, 1958 consulted the\tAnti
\nCorruption Branch about the matters\tconnected  with\t the
\nenquiry proceedings and had gone through     the     records
\navailable with that Branch relating to the charges  levelled
\nagainst\t the  respondent and which were being tried  by\t the
\nEnquiry Officer.  Counsel further urged that the  respondent
\nwas  not  furnished with a copy of the report  of  the\tAnti
\nCorruption Branch nor was he furnished with the\t information
\nand  materials that must have been gathered by\tthe  Enquiry
\nOfficer in his consultation with the Anti Corruption  Branch
\nand from their records which he inspected on July 14 and 15,
\n1958.  All these circumstances would clearly show that there
\nhad been a violation of the principles of natural justice in
\nthe   conduct  of  the\tenquiry.   When\t once  the   enquiry
\nproceedings were so vitiated,, the order of dismissal  based
\nupon  the  findings recorded at such an\t enquiry,  has\tbeen
\nrightly held by the High Court to be illegal and void.
\nWe  are of opinion that in the particular  circumstances  of
\nthis case, which will be indicated presently, the High Court
\nhas  not  made\ta  proper  approach  when  it  came  to\t the
\nconclusion that there had been a violation of the principles
\nof  natural  justice in the conduct of the enquiry,  on\t the
\nsecond\tground of objection raised by the  respondent.\t The
\nprinciple, in this regard, has been laid down by this  Court
\nin State of Mysore v. S. S. Makapur<\/a>(1)
\n\t      “For  a correct appreciation of the  position,
\n\t      it is necessary to repeat what has often\tbeen
\n\t      said that tribunals exercising  quasi-judicial
\n\t\t\t    functions  are  not courts and  that
\ntherefore
\n\t      they  are\t not bound to follow  the  procedure
\n\t      prescribed for trial of actions in Courts\t nor
\n\t      are  they bound by strict rules  of  evidence.\n<\/p>\n
\t      They   can,   unlike   Courts,   obtain\t all
\n\t      information  material  for  the  points  under
\n\t      enquiry  from  all sources,  and\tthrough\t all
\n\t      channels, without being fettered by rules\t and
\n\t      procedure, which govern proceedings in  Court.
\n\t      The  only\t obligation which the law  casts  on
\n\t      them is that they should not
\n(1) [1963] 2 S.C.R. 943, 947.\n<\/p>\n
95<\/span><\/p>\n
\t      act on any information which they may  receive
\n\t      unless  they put it to the party against\twhom
\n\t      it  is  to  be  used  and\t give  him  a\tfair
\n\t      opportunity  to  explain it.  What is  a\tfair
\n\t      opportunity  must\t depend\t on  the  facts\t and
\n\t      circumstances  of each case but where such  an
\n\t      opportunity  had been given,  the\t proceedings
\n\t      are not open to attack on the ground that\t the
\n\t      enquiry  was not conducted in accordance\twith
\n\t      the procedure followed in courts.”\n<\/p>\n
It has been further laid down by this Court in The Collector
\nof Central Excise and Land Customs v. Sanawarmal Purohit (1)
\nthat:\n<\/p>\n
\t      “A  quasi-judicial authority would  be  acting
\n\t      contrary to the rules of natural justice if it
\n\t      acts  upon information collected by  it  which
\n\t      has not been disclosed to the party  concerned
\n\t      and  in respect of which full  opportunity  of
\n\t      meeting  the inferences which arise out of  it
\n\t      has not been given.”\n<\/p><\/blockquote>\n
The  above  two extracts, it will be noted,  emphasize\tthat
\nrules  of  natural justice can be considered  to  have\tbeen
\nviolated   only\t if  the  authority  concerned\t acts\tupon
\ninformation collected by it and the said information has not
\nbeen  disclosed to the party against whom the  material\t has
\nbeen used.\n<\/p>\n
In  paragraph  10 of his writ petition\tthe  respondent\t had
\nalleged\t that the Enquiry Officer had, during the course  of
\nthe  enquiry, maintained regular correspondence and  contact
\nwith  the Deputy Superintendent of Police,  Anti  Corruption
\nBranch, Gauhati.  In para 12 he had further alleged that the
\nEnquiry Officer started recording statements of witnesses on
\nand from July 23, 1958 and after recording the statements of
\nthirteen witnesses, came to Gauhati on July 14, 1958 and had
\nconsultation with the Deputy Superintendent, Anti Corruption
\nBranch,\t about\tthe proceedings against the  respondent\t and
\nalso  went through the record of the Anti Corruption  Branch
\non  July 15, 1958.  The request of the respondent for  being
\nfurnished  with a copy of the report of the Anti  Corruption
\nBranch\twas not complied with.\tHe further alleged that\t the
\nenquiry proceedings show that the enquiry officer had  taken
\ninto  consideration, against the respondent, the  report  of
\nthe Anti Corruption Branch.\n<\/p>\n
In  the counter-affidavit on behalf of the State,  filed  in
\nthe  writ  petition, it was contended in para  10  that\t the
\nreport\tof the Anti Corruption Branch being  a\tconfidential
\ndocument  and  not  having been used as an  Exhibit  in\t the
\ndisciplinary proceedings, the respondent was not entitled to
\na copy of the same.  It was further averred in para 11\tthat
\nthe findings of the Enquiry Officer,
\n(1)  Civil Appeals Nos. 1362-1363\/1967 decided on 16-2-1968.\n<\/p>\n
96<\/span><\/p>\n
Barpeta,  recorded against the respondent were based on\t the
\nevidence  recorded  during  the\t enquiry  and  not  on\t any
\nconsultation  with the Anti Corruption Branch officers.\t  It
\nwas  further  averred in Para 13 that as the report  of\t the
\nAnti Corruption Branch was not exhibited in the disciplinary
\nproceedings,  there was no question of the  Enquiry  Officer
\ntaking\tthe said report into consideration and, as a  matter
\nof fact also the report was not taken into consideration  by
\nthe Enquiry Officer and the findings against the  respondent
\nhad  been recorded on the basis of the evidence recorded  by
\nthe Enquiry Officer and no part of it is based on the report
\nof the Anti Corruption Branch.\n<\/p>\n
From  the above averments it will be noted that the  respon-
\ndent no doubt made a grievance of the consultation stated to
\nhave taken place during the midst of the enquiry between the
\nEnquiry\t Officer  and the Anti Corruption Branch.   But\t his
\nspecific averment was that the findings against him recorded
\nin  the\t enquiry  were based upon the  report  of  the\tAnti
\nCorruption  Branch  the copy of which was not  furnished  to
\nhim.   The State, on the other hand, did not controvert\t the
\nfact that the Enquiry Officer did have consultation with the
\nAnti Corruption Branch on the dates mentioned in the  record
\nof proceedings.\t But, according to the State, no part of any
\ninformation  contained\tin that report had been\t taken\tinto
\naccount\t in  the enquiry proceedings and that on  the  other
\nhand the report of the Enquiry Officer was exclusively based
\non the evidence adduced during the enquiry.
\nA perusal of the report of the Enquiry Officer, in the\tpro-
\nceedings  before  us,  shows that  there  is  absolutely  no
\nreference to any data or material, if any, collected by\t him
\nwhen he consulted the Deputy Superintendent of Police,\tAnti
\nCorruption Branch on July 14 and 15, 1958.  But, we have  to
\nstate  that  it is highly improper for\tan  Enquiry  Officer
\nduring\tthe conduct of an enquiry to attempt to collect\t any
\nmaterials   from   outside  sources  and   not\t make\tthat
\ninformation,  so  collected,  available\t to  the  delinquent
\nofficer\t and  further make use of. the same in\tthe  enquiry
\nproceedings.   There may also be cases where a\tvery  clever
\nand  astute enquiry officer may collect outside\t information
\nbehind\tthe back of the delinquent officer and, without\t any
\napparent reference to the information so collected, may have
\nbeen  influenced in the conclusion recorded by\thim  against
\nthe delinquent officer concerned., If it is established that
\nthe  material behind the back of the delinquent officer\t has
\nbeen collected during the enquiry and such material has been
\nrelied\ton by the enquiry officer, without its\thaving\tbeen
\ndisclosed  to the delinquent officer, it can be stated\tthat
\nthe  enquiry proceedings are vitiated.\tIt was,\t under\tsuch
\ncircumstances,\tthat this Court, in Executive  Committee  of
\nU.P. State
\n97<\/span>
\nWarehousing  Corporation v. Chandra Kiran Tyagi(1)  accepted
\nthe view of the High Court that the enquiry proceedings were
\nvitiated by the enquiry officer collecting information\tfrom
\noutside\t sources  and  utilising the same  in  his  findings
\nrecorded  against the delinquent officer without  disclosing
\nthat  information  to the accused officer.   It\t was  again,
\nunder  similar circumstances that this Court  in  Sanawarmal
\nPurohit’s  Case\t (2  ) upheld the order of  the\t High  Court
\nholding\t the  enquiry  proceedings to  be  contrary  to\t the
\nprinciples  of natural justice when the enquiry officer\t had
\ncollected information from third parties and acted upon\t the
\ninformation so collected, without disclosing the same to the
\naccused.   If  the disciplinary authority himself  had\tbeen
\nalso  the  enquiry  officer and, during the  course  of\t the
\nenquiry\t he had collected materials behind the back  of\t the
\naccused and used such materials without disclosing the\tsame
\nto  the officer concerned, the position will be still  worse
\nand  the  mere\tfact  that  such  an  order  passed  by\t the
\ndisciplinary authority had even been confirmed by an  appel-
\nlate  authority\t without anything more, will not  alter\t the
\nposition in favour of the department.\n<\/p>\n
But,  in  the case before us, it is no doubt true  that\t the
\nenquiry officer has made a note that he consulted the Deputy
\nSuperintendent of Police, Anti Corruption Branch on July  14
\nand  15,  1958\tand  perused the  records  relating  to\t the
\ncharges.   But\tthe  enquiry  report  does  not\t show\tthat
\nmaterials, if any, collected by the Enquiry Officer on those
\ntwo days, have been utilised against the respondent.  We  do
\nnot find any warrant for the High Court’s view that :\n<\/p>\n
\t      “there is no doubt that the S.D.P.O. took into
\n\t      consideration the materials found by the Anti-
\n\t      Corruption Branch. . . .”\n<\/p><\/blockquote>\n
On  the other hand, a perusal of the report shows that\teach
\nand  every item of charge had been discussed with  reference
\nto the evidence bearing on the same and findings recorded on
\nthe basis of such evidence.  Therefore, it cannot be  stated
\nthat the Enquiry Officer in this case has taken into account
\nmaterials  if any that he may have collected from  the\tAnti
\nCorruption  Branch.  Nor is there anything to show that,  in
\nthe discussion contained in his report, the Enquiry  Officer
\nwas  in any way influenced by the consultation that  he\t had
\nwith  the Anti Corruption Branch.  If so, it cannot be\theld
\nthat the enquiry proceedings are violative of the principles
\nof natural justice.\n<\/p>\n
The fact that a copy of the report of the Superintendent of
\nPolice, Anti Corruption Branch, dated December 21, 1957 was
\n(1)  C. A. No. 559 of 1967, decided on 8-9-1969.
\n(2)  Civil Appeals Nos. 1362-1363\/67 decided on 16-2-1968.\n<\/p>\n
98<\/span><\/p>\n
not  furnished to the respondent is, in our opinion,, of  no
\nconsequence  in\t relation to the  actual  enquiry  conducted
\nagainst\t the  respondent.  That report was  necessitated  in
\nview  of the complaints received against the respondent\t and
\nthe enquiry made by the Anti Corruption Branch was only\t for
\nthe  purpose of enabling the Government to consider  whether
\ndisciplinary  proceedings  should be initiated\tagainst\t the
\nrespondent.   On receipt of the report, the Government\tfelt
\nthat  disciplinary  proceedings will have  to  be  initiated
\nagainst\t  the  respondent  and\tthat  is  how  the   enquiry
\nproceedings  were  commenced.  The validity of\tthe  enquiry
\nwill  have to be decided only by the manner in which it\t has
\nbeen  conducted.  So far as that is concerned, it  is  clear
\nfrom  the record that the respondent had a full\t opportunity
\nof  participating  in the enquiry and adducing\tevidence  on
\nbehalf\tof himself and of cross-examining the witnesses\t for
\nthe prosecution and the entire evidence was recorded in\t his
\npresence.   The non-furnishing of the copy of the report  of
\nthe  Superintendent of Police, Anti Corruption Branch,\tdoes
\nnot vitiate the enquiry proceedings.\n<\/p>\n
Over  and above these circumstances, it is also to  be\tseen
\nthat the enquiry officer was not the disciplinary  authority
\ncompetent  to impose the punishment against the\t respondent.
\nThe  competent\tauthority is the Superintendent\t of  Police.
\nThe show cause notice, issued on October 18, 1958 as well as
\nthe  order  of\tdismissal passed by  the  Superintendent  of
\nPolice,\t dated December 3, 1958 clearly show that  the\tsaid
\nofficer\t has independently gone into the evidence on  record
\nin respect of the charges for which the respondent was tried
\nand   has,  after  taking  into\t account  the\texplanations
\nfurnished by him, independently come to the conclusion\tthat
\nthe  respondent is guilty.  Similarly, the Deputy  Inspector
\nGeneral\t of Police, Range Assam, before whom the  respondent
\nfiled\tan   appeal  has  also\tvery  elaborately   and\t  in
\nconsiderable detail discussed the entire evidence on  record
\nand  has agreed with the conclusions regarding the guilt  of
\nthe  respondent.   We  have already held that  there  is  no
\nviolation  of  the rules of natural justice in\tthe  enquiry
\nproceedings.  Even assuming that there was any defect in the
\nsaid   enquiry\tproceedings,  inasmuch\tas   the   punishing
\nauthority and the appellate authority, the Superintendent of
\nPolice\t and   the  Deputy  Inspector-General\tof   Police,
\nrespectively,  have independently considered the matter\t and
\nfound  the respondent guilty on the evidence on\t record,  it
\nmust  be held that in the circumstances of this\t case  there
\nhas  been no violation of the principles of natural  justice
\nwhen the order of dismissal was passed.\n<\/p>\n
We  may\t state\tthat  the  respondent,\twhen  he  sent\t his
\nexplanation  on November 21, 1958 to the show  cause  notice
\nissued\tby the Superintendent of Police on October 18,\t1958
\ndid not make any
\n99<\/span>
\ngrievance regarding the consultation by the Enquiry  Officer
\nwith  the  Anti Corruption Branch on July 14 and  15,  1958.
\nFor  the  first\t time the respondent  took  this  ground  of
\nobjection to the enquiry proceedings only when he filed\t the
\nappeal before the Deputy Inspector General of Police and the
\nlatter\thas  quite rightly rejected this  objection  holding
\nthat any consultation that the Enquiry Officer had with\t the
\nAnti Corruption Branch has not affected the case in any\t way
\nsince the findings had been recorded against the  respondent
\nentirely  on the evidence adduced during the  enquiry.\t The
\nHigh Court has not considered the various aspects,  referred
\nto  above.  Both the contentions of the learned counsel\t for
\nthe  appellant,\t in  the  circumstances,  will\thave  to  be
\naccepted and, in consequence, it must be held that the\tview
\nof the High Court that the order of dismissal is illegal and
\nvoid is erroneous.\n<\/p>\n
Mr.  Mukherjee, learned counsel for the\t respondent,  raised
\nthe  contention that the materials on record  disclose\tthat
\nthe respondent was appointed permanent Sub-Inspector by\t the
\nInspector-General  of Police whereas the order of  dismissal
\nhas   been   passed   by  a   subordinate   authority,\t the
\nSuperintendent\t of  Police  and  therefore  the  order\t  of
\ndismissal  is illegal and void.\t Normally,  this  contention
\nshould not be entertained, because it is stated by the\tHigh
\nCourt  that apart from the two points considered by  it,  no
\nother  grounds\tof objection were raised by  the  respondent
\nagainst the order of dismissal.\t But, if really the  records
\nsupport this contention of Mr. Mukherjee, that will make the
\norder  of dismissal illegal and so we permitted the  counsel
\nto  raise  this contention.  But, after a reference  to\t the
\nmaterial on record, we are satisfied that this contention is
\ndevoid of merit.\n<\/p>\n
The respondent, no doubt, averred in his writ petition\tthat
\nhe, was appointed to the substanive post of Sub-Inspector of
\nPolice\tby order of the Inspector-General of Police,  Assam,
\nand therefore the order of dismissal passed by a subordinate
\nauthority,  viz., the: Superintendent of Police, is  illegal
\nand ultra vires.  In the counter affidavit filed before\t the
\nHigh Court, the State maintained that the Superintendent  of
\nPolice\twas the appointing authority of a  Sub-Inspector  of
\nPolice and it placed reliance upon rule 66, as corrected  by
\nthe Correction Slip No. 150, dated June 1, 1938 of the Assam
\nPolice\tManual, Part 111.  The State  further  categorically
\nstated\tthat the Superintendent of Police is the  appointing
\nand  punishing authority of the Sub-Inspector of Police\t and
\nthe  respondent has been properly and validly  dismissed  by
\nthe  competent\tauthority.   Rule  66,\treferred  to  above,
\nclearly\t supports  the’.  contention of the  State  in\tthis
\nregard.\n<\/p>\n
Annexure X to the counter-affidavit of the State in the High
\nCourt  is  the\torder of the  Inspector-General\t of  Police,
\nAssam,,
\n100<\/span>
\ndated  December 16, 1952.  That refers to the selection\t for
\nconfirmation  as Sub-Inspectors of.  Police of\tthe  persons
\nmentioned therein.  The respondent is serial number 5 in the
\nsaid  order.  Note no. 2 to this order specifically  directs
\nthe  Superintendents  of Police to send\t to  the  Inspector-
\nGeneral\t of  Police, Assam, copies  of\tconfirmation  orders
\nissued\tby them in respect of the officers.   In  accordance
\nwith  the orders of the, Inspector-General of  Police  dated
\nDecember  16,  1952 the Superintendent of Police  passed  an
\norder D.O. No. 3777 dated December 31, 1952 that among other
\nofficers,  the\trespondent,  who  was  officiating  as\tSub-
\nInspector,  has\t been  selected\t for  confirmation  as\tSub-
\nInspector  of  Police  (Unarmed\t Branch)  with\teffect\tfrom
\nSeptember  1,  1951 and that he has been confirmed  as\tSub-
\nInspector of Police (Unarmed Branch) from the same date\t and
\nabsorbed  against  an existing substantive  vacancy  in\t the
\ndistrict.  These orders clearly show that the respondent was
\nappointed  permanent  Sub-Inspector  of Police\tnot  by\t the
\nInspector-General  of  Police but by the  Superintendent  of
\nPolice.\t   Obviously  because  of  these  records,  such   a
\ncontention, as is now taken on behalf of the respondent, was
\nnot raised before the High Court.\n<\/p>\n
The  appeal is accordingly allowed and the judgment  of\t the
\nHigh  Court  set aside.\t The first respondent will  pay\t the
\ncosts of the appeal to the appellants.\n<\/p>\n
G.C.\t\t       Appeal allowed.\n101<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Assam And Another vs Mahendra Kumar Das And Others on 18 March, 1970 Equivalent citations: 1970 AIR 1255, 1971 SCR (1) 87 Author: C Vaidyialingam Bench: Vaidyialingam, C.A. PETITIONER: THE STATE OF ASSAM AND ANOTHER Vs. RESPONDENT: MAHENDRA KUMAR DAS AND OTHERS DATE OF JUDGMENT: 18\/03\/1970 BENCH: VAIDYIALINGAM, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-60889","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Assam And Another vs Mahendra Kumar Das And Others on 18 March, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-assam-and-another-vs-mahendra-kumar-das-and-others-on-18-march-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Assam And Another vs Mahendra Kumar Das And Others on 18 March, 1970 - 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