Aravamuda Ayyangar (R.) vs Commissioner of Police and Others

Veeraswami, J.—By an order dated 18 June 1960, respondent 1 who is the Commissioner of Police, Madras, terminated the probation of

the petitioner as an officiating sub-inspector and reduced his pay in his substantive rank as head constable, by two stages in the time-scale of pay

for a period of two years to be spent on duty. This order was the result of a number of charges of the finding corruption framed against the

petitioner and that charges (1)(c), (ii)(6), (iii)(&), (iii)(c), (iii)(e), (iii)(i) to (iii)(i), (iv)(b) and (iv)(c) had been proved. The petitioner''s appeal and

memorial failed. He has now come to this Court asking to quash the order of punishment.

The validity of the order is questioned on a number of grounds:

(i) bias of the enquiry officer,

(ii) vagueness of the charges.

(iii) in respect of five out of ten charges, two previous statements, which were resiled by two witnesses, formed the sole material on which the

finding, that they were proved, rested,

(iv) failure of the enquiry officer to apply his mind to the evidence of seven out of eighteen defence witnesses, and

(v) rejection of six defence witnesses on grounds disclosing an error of law and perversity.

The last two grounds were not pursued by the petitioner on the view this Court was inclined to take on grounds (ii) and (iii). I shall, therefore, deal

with the petitioner''s first three grounds in that order.

The charge of bias against the enquiry officer is levelled with reference to four instances. The enquiry was conducted by one A. V. Thangavelu,

Deputy Superintendent of Police, Special Duty, Traffic and Licensing, During the enquiry before him, the petitioner, on 28 September 1959

objected to the presence of one G. K. Ranganathan, Inspector of Police, X Branch, C.I.D., on the ground that he was the officer who had

recorded the statements of witnesses during investigation. This objection was overruled by the enquiry officer. His reason was the Government in

their confidential memorandum insisted upon the presence, in the enquiry of the X Branch officer who had conducted the investigation, for the

purpose of assisting the enquiry officer. The Inspector of Police, X Branch, was present at the enquiry throughout. The petitioner contends that this

fact had a subtle influence not only over the enquiry officer but also on the witnesses whom in their chief-examination itself, were found to be

resiling from their earlier statements. I think there is no basis for the apprehension of the petitioner. From those facts alone, it cannot be said that

the enquiry officer was, in any way, biased or influenced. Nor it is reasonably possible to say from these materials only that the very presence of

the investigating officer, while the witnesses were giving evidence, prejudiced the petitioner. The second incident was on 11 January 1960, which

occurred when the petitioner was cross-examining a witness by name Doraikannammal. The petitioner asked her whether she could produce

account books and suggested to her that she could not do so because she had no accounts prior to 1957 or after 1957. According to the

petitioner, the Inspector of Police, Ranganataan, interrupted and objected to the question on the ground that it was a reiteration. The petitioner

protested against such interruption. The enquiry officer gave his ruling against the petitioner on this objection. He stated that the question had

already been put once or twice before and answered and that there was nothing objectionable about the Inspector of Police pointing It out. The

third incident was when defence witness, Ramachandran, was being examined. Daring the cross-examination of this witness by the enquiry officer,

as averred by the petitioner, this is what happened in his words:

When the enquiry officer (was) cross-examining him he stated that the registration fees will be collected in the evening in all the years except this

year and that the owners'' application form is collected in the morning in 1957 and the registration fees is collected in the evening when the licence,

plates and challans were issued. For that the Deputy Superintendent of Police (enquiry officer.) has remarked that no one is going to believe that

and why you people are coming and telling lies. For that the witness, Ramachandran, had stated (that he had stated what had happened. For that

the C.I.D. Inspector who was also present threatened my witness saying : '' shut up- don''t talk (in Tamil)'' and threatening the witness not to tell

the fact.

In view of this, the petitioner apprehended that no witness would come and tell the truth and no justice would be rendered to him and he,

therefore, requested that another officer might be deputed for the enquiry. A petition to that effect, he says, he submitted to the higher authorities

but nothing about it has been heard down to date. The last of the incidents was on 2G February 1960. It is said that the petitioner, on that day,

wanted the statement of one of the witnesses to be recorded by the enquiry officer. The reply of the enquiry officer, as stated by the petitioner,

was:

What is that you are making allegations. If you go on making allegations against me, you will be getting into trouble somehow or other.

The petitioner would have it that he strongly objected to this remark from the enquiry officer. On the basis of these three instances, the argument

for the petitioner is that the enquiry officer was clearly biased in his mind, so that the whole enquiry was vitiated. So far as the incident on 11

January 1960 was concerned, it amounted to nothing more than the Inspector of Police interfering with a question put by the petitioner to one of

the witnesses. It must be remembered that the Inspector of Police was present at the enquiry in order to assist the enquiry officer. It appears that

the prosecution was not represented by any counsel or by any departmental officer to lead the prosecution. In such circumstances, I am unable to

accept the contention that even assuming that the Interruption by the Inspector of Police was true, that, by itself, would be sufficient to charge the

enquiry officer with bias. The second incident, if true, would only show that the enquiry officer was somewhat indiscreet in making these remarks,

which he could well have avoided. And so too, his remarks with reference to the fourth and last incident. I am not satisfied that from these

instances it can be said that the enquiry officer was in any way biased against the petitioner in the enquiry. There is, therefore, no substance in the

first ground of the petitioner.

It seems to me that the second ground of the petitioner is substantial and should be accepted. This ground, as I said, is that the charges which

have been found to be true, were vague and amounted to a denial to the petitioner of a fair and reasonable opportunity to effectively defend

himself, which he is entitled to. In order to appreciate this contention, it is necessary to set out the actual charges:

The delinquent was a sub-inspector in the hackney carriage section of the Traffic and Licensing Department, Madras, from November 1956 to

September 1957. During the registration period in 1957, he received Illegal gratification from the rickshaw owners or their representatives or

placed himself under their obligation as noted below:

* * *

(i)(c) About Rs. 200 for about 100 rickshaws on different dates in April 1957 at the time of registration, from K. Ramachandran of No. 6, St.

Xavier street, Madras, through police constable, Rajagopal Chettiar.

* * *

(ii)(b) Rs. 12 for three hand-drawn rickshaws for transfer in the name of Chinnayya in March 1957 from S. Elumalai, son of Alamelu Ammal, the

owner, through police constable, Rajagopal Chettiar.

* * *

(iii)(b) Annas four for every owner''s licence forms supplied to Kistan. (c) Annas four per owner''s licence forms from K. Ramachandran.

* * *

(e) Annas twelve for three owners'' licence forms from S. Elumalal.

* * *

(i) Annas four per owner''s licence form from R. Raman of Mylapore who registered twenty-three hand-drawn rickshaws in April 1957.

(j) Annas twelve for three owners'' licence forms from K. Subramaniam of Barbers Bridge, Mylapore, in April 1957.

(K) Re. 1-4-0 for five owners'' licence forms for five hand-drawn rickshaws from A. K. Subramaniam of Choolai in April 1957.

* * *

(iv)(b) Two towels worth Re. 1 and lemon barley many a time from Kistan.

(c) Lemon barley, cool drinks, and food from K. Eamaohandran.

As already stated, these are the charges which were found to have been proved. It may be seen that charge (i) (c) does not specify the precise

date and time in April 1957, when the bribe was supposed to have been offered and accepted. Nor does it specify whether the sum of Rs. 200

was given in a lump or in driblets. Nor is it clear from the charge who the rickshawalahs, from whom the money, if at all, should have come, were.

At what place was the amount given la also not mentioned. Charge (ii)(b) suffers from similar lack of particulars which are essential in a charge.

Charges (iii)(b), (iii)(c), (iii)(e) and (iii)(i) to (iii)(k) are even more bald. None of the sub-charges specifies any time or place whatever at which the

small amounts were alleged to have been received by the petitioner as Illegal gratification. It is true charges (iii)(k) to (iii)(k) mentioned April 1957,

but the precise time and date relevant to the charge did not find a place. Sub-charges (b) and (c) of charge (iv) are also open to the same criticism.

The first of the sub-charges says that many a time two towels worth one rupee and lemon barley were received by the petitioner from Kistan;

when, where and in what circumstances, the sub-charge is silent. And so too sub-charge (c) of charge (iv) does not mention the occasion, the time

and place to which it related.

Article 311(2) of the Constitution affords a Government servant protection from arbitrary dismissal, removal or reduction in rank. Article enjoins

that no person holding a civil post shall be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing

cause against the action proposed to be taken against him. The Sub-article (2) of Article 311 has since been substituted by the fifteenth amendment

of the Constitution in 1963. But even as the sub-article as it existed before the amendment, the nature of protection and the requirements of the law

with reference to it has been the subject-matter of several judicial decisions. It has been held that the ""reasonable opportunity"" contemplated by the

article and the corresponding provision in the Government of India Act, 1935, consisted of two stages ;

First, framing of charges and Informing the person concerned of them and asking him to submit his explanation an enquiry in his presence and a

finding in regard to those charges.

Secondly, if the findings are against the petitioner the punishing authority has to form its provisional conclusion as to the nature of punishment

and communicate the same to him with a copy of the findings and the reasoning in support thereof and ask him to show cause against the proposed

punishment.

It is only upon a consideration of the entire materials, Including his explanation, that the one or other of the punishments contemplated by the

article could be inflicted. A "" reasonable opportunity"" also presupposes that the charges should be framed in the clearest possible language with

precise particulars as to time, place and the name of the persons who offered illegal gratification, the name of the person to whom it was offered

and as to when and where it was accepted. If this requisite is not complied with, it is obvious that the person concerned cannot be said to have had

a "" reasonable opportunity "" of defending himself. The absence of these particulars, as precisely as possible, will make it Impossible for him to form

and chalk out his defence effectively and he will be greatly handicapped and prejudiced in his defence. It is but fair and reasonable that in defending

himself the officer concerned should be given all the particulars in the charges which it is essential for him to know and lead evidence in defence.

Summarizing what the "" reasonable opportunity "" envisaged by the provisions of the Constitution included, the Supreme Court in Khem Chand v.

Union of India 1959 I.L.J. 167 observed :

(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; and 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 three punishments and communicates the same to the Government servant.

In short the substance of the protection provided by rules, like Rule 55 referred to above, was bodily lifted out of the rules and together with an

additional opportunity embodied in Section 240(3) of the Government of India Act, 1935, so as to give a statutory protection to the Government

servants and has now been incorporated in Article 311(2) so as to convert the protection into a constitutional safeguard.

Dealing with what ""reasonable opportunity "" means, in a similar context, this Court in Ramanujulu v. Tribunal for Disciplinary Proceedings,

Madras, and Anr. Writ Petition No. 665 of 1959 stated:

There can be no doubt that under Article 311 of the Constitution, the petitioner is entitled to a reasonable opportunity to answer the charges

framed against him, deny his guilt and establish his innocence. This opportunity implies that the charges must be clear and sufficiently detailed so

that the person against whom the charges are framed can appreciate them and properly defend himself by directing the necessary evidence and

cross-examining the witnesses produced in support of the charges.

This was a case of alleged corruption of a Government servant and on the ground that the charge against him was vague, he applied before the

tribunal for disciplinary proceedings for a direction to supply him sufficient particulars in the charges, pointing out that in the absence of definite

time, date, place and other particulars with a gist of evidence, which would be relied on against him in proof of the charge, it was vague and it

could not be said that he had such a notice of the charge as would fairly and reasonably enable him to effectively defend himself in the enquiry into

the charge. The particulars asked for were not given to him and he, therefore, applied to this Court for a writ of mandamus compelling his

application to he heard and decided. The writ was granted by this Court. In Mohamed Jan v. State of Madras Writ Petition No. 79 of 1960 which

was a case of dismissal of a police officer on grounds of proved corruption, this Court quashed the order of punishment on the ground that the

charges framed against him were so vague that it could not be said that he was given a reasonable opportunity to defend himself. It is true in this

case no date at all was given and the only particulars contained in the charge related to the names of persons and the amount of illegal gratification

each of them was alleged to have offered. But the position is not very different in this case though in some of the sub-charges the month and year

are given. But the point remains that no time and date and the names of persons from whom illegal gratifications came are given in the sub-charges.

As I said, in some of the sub-charges not even the month or the year, is mentioned. I am, therefore, of the opinion that the charges against the

petitioner, which have been found to have been proved, were so vague as to amount to denial of a reasonable opportunity which Article 311(2)

enjoined. On this ground alone, the order of punishment has to be quashed.

I think the third ground of the petitioner is also partly well-founded. This relates to charges (i)(c),(ii)(b), (iii)(c), (iii)(e) and (iv)(c). The only

material on which the charges (i)(c), (iii)(c) and (iv)(c) were held to have been proved consisted of Ex. P. 7, a statement given by P. W. 4 to a

police officer during investigation. Similarly the only material on which the charges (ii)(b) and (iii)(c) were found to have been proved is Ex. P. 9,

again a statement said to have been given by P.W. 6 to a police officer during investigation. These two witnesses gave evidence for the prosecution

at the enquiry. But their evidence totally exculpated the petitioner and when the statements given by them during investigation, namely, Exs. P. 7

and P. 9, were put to them they would say that they were taken from them under duress. The enquiry officer in his minutes merely relied on the

statements without considering whether the depositions of the witnesses that the statements were taken from them under duress were true or not.

But respondent 1 partly dealt with this question relating to Ex. P. 7 and was of the opinion that, having regard to the answers given by P.W. 4 to

the enquiry officer, he was satisfied that Ex. P. 7 was true and the version of P.W. 4 during his deposition could not be relied on. Bat respondent 1

said nothing as to how Ex. F. 9 could be relied on and whether the statement of P.W. 6 that it had been taken under duress was true.

In the circumstances, the contention for the petitioner is that when the oral evidence taken at the enquiry did not incriminate him, It would be a

violation of the principles of natural justice to find that a charge had been proved solely on the basis of a statement taken during investigation by a

police officer in the absence of the petitioner. It is further contended that even if there was no violation of the principles of natural justice, in the

circumstances, the finding of the enquiry officer as well as respondent 1 that the charges relevant to the ground under consideration had been

proved on the basis of the statements given during investigation, is perverse.

It is beyond question that departmental or disciplinary proceedings into the conduct of Government servants are not governed by rules of

evidence. The Evidence Act is not applicable to them. They are not required to follow the pattern of proceedings in Court. But they should

conform to the basic principles of natural justice. One of those principles is that a statement taken behind the back of an alleged delinquent cannot

be used against him. Learned Counsel for the petitioner relies on this principle and invites attention to Union of India v. T.R. Varma 1958 I L.J.

The Supreme Court stated there:

Stating it broadly and without intending it to 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 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.

On behalf of the respondents the argument is that this principle of natural justice would have been complied with if the statement taken in the

absence of the opponent during investigation had been put to the particular person while he given evidence and the opponent is given an

opportunity to cross-examine him. In support of this proposition reliance is placed on State of Mysore and Ors. v. Sivabasappa Shivappa 1964

I.L.J. 24. In that case what had happened was that a statement which had been given by a witness during investigation and in the absence of the

accused officer, was put to the witness in his chief-examination and marked as evidence and certain further questions were put to the witness, and

thereafter an opportunity for cross-examination was given. As a matter of fact, all the witnesses were cross-examined. On the basis of such

evidence the officer concerned was found guilty of the charges and after a ""show-cause"" notice against the proposed punishment and considering

the explanation in respect thereto, the pay of the officer was reduced. The sole point argued before the Supreme Court and considered by it was,

whether the procedure in the enquiry in submitting the previous statements of the witnesses examined, was opposed to the rules of natural justice.

After referring to some of the cases dealing with the contents of the rules of natural justice the Supreme Court adverted to Union of India v. T.R.

Varma 1958 I.L.J. 259 (vide supra) and after pointing out that in that case there was no question of contrast between the evidence recorded

behind the party and admitted and the evidence recorded in his presence, held:

When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full

opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the

party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require

in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on

bare technicalities, and rules of natural justice are matters not of form but of substance. In our opinion, they are sufficiently complied with when

previous statements given by witnesses are read over to them, marked on their submission, copies thereof given to the person charged, and he is

given an opportunity, to cross-examine them.... But in our opinion, the purpose of an examination in the presence of a party against whom an

enquiry is made, is sufficiently achieved, when a witness who has given a prior statement is recalled, that statement is put to him, and made known

to the opposite party, and the witness is tendered for cross-examination by that party.

On that view the Supreme Court upheld the reduction in pay. It is clear from this decision that while it will be opposed to the principles of

natural justice to rely, in proof of a charge, on the statement of a person taken behind the back of the accused officer, the requirements of natural

Justice would be satisfied, having regard to the substance of it, if the previous statement is put to the person, who had given it, in the course of his

evidence at the enquiry in the presence of the accused officer, and the witness is tendered for cross-examination by the accused officer. The

argument, however, for the petitioner is that the position would be different if the witness to whom the earlier statement of his was put in his chief-

examination went back upon it in his evidence and stated that it had been obtained from him under duress and thus he resiled from his earlier

statement, thereby making it unnecessary for the accused officer to cross-examine the witness on the statement. I think that this contention

overlooks the substance of the requirement of natural justice, which is that no statement taken behind the back of an accused officer can be relied

on against him. The substance of the requirement is that the person against whom the statement is relied on should have an opportunity to test the

statement by having an opportunity to cross-examine the person who had made that statement. Once such an opportunity is accorded in substance

the rule of natural justice is complied with. I do not see how the position is different merely because the witness stated that his earlier statement had

been taken from him under duress. The position will be obvious if the matter is considered in the light of an illustration. Supposing, such a statement

was put to a witness and he admitted having given it on the earlier occasion, and in the cross-examination the accused officer succeeded in eliciting

from the witness that the statement had been obtained under duress. In that case it could not be contended that if any reliance is placed on the

statement, it will be offending any principle of natural justice. As I said, all that the rules of natural justice requires is that the accused officer should

have an opportunity to cross-examine the witness who had given the earlier statement, so as to test the truth or otherwise of the version contained

in such statement. Where such an opportunity is given to the accused officer, the matter no -longer touches the rule of natural justice, but passes

into the realm of appreciation of evidence. It seems to me that this line of approach receives support from the following observations in State of

Orissa v. Murlidhar AIR 1963 S.C. 404:

In the course of the proceedings before the tribunal occasions did arise for tendering a previous statement of the witness Sahni. We have already

seen that Sahni went back upon his earlier statement in which he had submitted that he had written Ex. A.7, and so that statement was put to him

and exhibited in the case. If the respondent thought it necessary to obtain its copy he could have easily obtained it and could have even asked for

an adjournment to enable him to cross-examine the witness on that statement. He did not do so for the obvious reason that the witness was

supporting the respondent and it was with the object of helping him that he had gone back upon his earlier statement. Therefore, in our opinion, the

High Court was in error in assuming that the tribunal had given unqualified assurance to the respondent and had gone back upon it.

I am, therefore, unable to accept the contention for the petitioner that the Impugned order, in so far as it related to charges relevant to the

contention, was vitiated by a violation of the principles of natural justice.

The next contention for the petitioner is that the order, in so far it rested on the resiled statements of P.Ws. 4 and 8, should be held to be

perverse. As already stated, the finding that charges (1)(c), (iii)(c) and (iv)(c) were proved was solely rested upon the resiled statement, Ex. P. 7.

What is stated for the petitioner is that P.W. 4 who had given the statement during investigation not only had resiled from his statement, but,

according to him, the statement had been taken under duress, and if that is so, in the absence of any further evidence, to show that the statement

was not so taken, the statement cannot be regarded as evidence. Counsel for the petitioner would say that in such circumstances, the statement

was no statement at all and on that view, the order should be regarded as base on evidence, therefore, perverse. This contention, in my opinion,

has force not in regard to Ex. P. 7 but in any case, in respect of Ex. P. 9. Respondent 1 found in his order that so far as Ex. P. 7 was concerned, in

his opinion, it contained a true version. This is what respondent 1 stated:

As regards item (i)(c), I am satisfied from the answers given by P.W. 4 to the questions put by the enquiring officer that his prior statement, Ex. P.

7, alone should be true and not his version during the oral enquiry. In fact he admits that he had stated in Ex. P. 7 what actually happened. It is

obvious he has been tampered with.

Respondent 1 was entitled to take that view. Whether he was correct or not in appreciating the evidence in that way it is not open to question

in these proceedings. But so far as Ex. P. 9 is concerned, neither the enquiry officer nor respondent 1 has stated how they were satisfied that it

could be relied on as a true statement. All that remained, therefore, on record was the evidence of P.W. 6 that his earlier statement was taken

under duress. The statement of P.W. 6 in his evidence was not disproved by any evidence for the prosecution, so to speak. Nor, as I stated, was

it considered by the enquiry officer of respondent 1 whether in the circumstances, Ex. P. 9 could be relied on as containing a true version. I am,

therefore, of the opinion that so far as the finding that charges (ii)(6) and (iii)(c) were proved is concerned, it was based on no evidence. It is not

necessary to go further and describe the finding as perverse.

The petition is allowed with costs. Counsels fee Rs. 100.