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Judgment
V. Ramasubramanian, J.—These writ appeals raise an interesting question as to whether the evidence tendered by a person as a witness in a
criminal case, can be the subject matter of disciplinary proceedings.
A few facts relevant for the determination of the issue on hand, are as follows:
a) One K.Subramani, employed as a Lab Assistant in the Madras Christian College Higher Secondary School, filed a private complaint in C.C.
No. 61 of 1995 on the file of the Principal Sessions Judge, Chennai, against the Headmaster as well as 3 other employees of the same school. The
offence alleged against the Headmaster was u/s 3(2)(vi) of the S.C & S.T. (Prevention of Atrocities) Act and the offences alleged against the
others were under Sections 3(1)(x) of the S.C & S.T. (Prevention of Atrocities) Act, read with Sections 323, 506(ii) and 504 I.P.C.
b) Mr. P. Loppaz Samuel, the appellant in Writ Appeal No. 1844/2003, who was employed as an Office Assistant in the same school, gave
evidence as PW-2 in the aforesaid criminal case. Mr. D. Mohanasundaram, the appellant in Writ Appeal No. 1845/2003, who was employed as a
Record Clerk in the school, gave evidence as PW-3 in the aforesaid criminal case.
c) The Sessions Court disbelieved the case of the complainant and dismissed the same by a judgment dated 30-4-1997. The complainant
K.Subramani filed a revision against the said order of acquittal, in Crl.R.C. No. 478 of 1997 on the file of this Court, but the same was dismissed
with costs of Rs. 5,000/- by this Court by an order dated 28-10-1998.
d) After more than a year of the date of the judgment rendered in the criminal revision petition, the Board of Directors of the School decided, by a
resolution dated 25-1-2000 to initiate disciplinary action against the appellants and appointed the Law Member of the Board by name Mr. S.W.
Kanagaraj, (the 3rd respondent herein) to be the disciplinary authority. In pursuance of the said appointment, the said Mr. S.W. Kanagaraj, issued
separate Memorandum of Charges dated 17-4-2000 against the appellants and the 5th respondent herein was appointed as the Enquiry officer to
inquire into the charges.
e) Immediately upon receipt of the notice of enquiry, the appellants filed the writ petitions W.P. Nos. 8114 and 11671 of 2000, challenging the
memorandum of charges, primarily on the ground that the evidence tendered by a person as a witness in a criminal or civil case can never be the
subject matter of any proceedings and that a witness enjoys an absolute privilege in so far as his deposition before a court of law is concerned.
f) The learned Judge repelled the said contention and held that even if the evidence tendered by a witness in a court cannot be subject matter of
criminal or civil proceedings, it can always be the subject matter of departmental proceedings. Taking such a view the learned Judge dismissed the
writ petitions. Hence the present appeal.
Mr. V. Selvaraj, learned Counsel appearing for the appellants contended that a witness enjoys absolute privilege in respect of his deposition
before a court of law and that if he were to be exposed to the risk of a departmental proceeding on the basis of whatever he deposed in a court of
law, then no witness would come forward to speak the truth before a court of law. The learned Counsel drew analogy for this proposition of his,
from the immunity granted to a witness under the Proviso to Section 132 of the Indian Evidence Act, 1872. Section 132 of the Indian Evidence
Act, 1872 reads as follows:
Witness not excused from answering on ground that answer will criminate.-- A witness shall not be excused from answering any question as
to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will
criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to
a penalty or forfeiture of any kind.
Proviso.--Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved
against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
But we are unable to countenance such a contention, since the aforesaid provision of law deals with a totally different situation. The said
provision of law gives protection to a witness who is compelled to answer a question much against his wishes. Even this protection is not total and
absolute, but only qualified. The section does not protect him from prosecution, for giving false evidence. Therefore the contention with reference
to Section 132 of the Indian Evidence Act, 1872, is not acceptable.
The question whether the evidence given by a witness in a criminal case can be the subject matter of disciplinary proceedings, came up for
consideration before the Supreme court, of course under totally different circumstances, in N.G. Kotle Vs. Ahmedabad Municipal Corporation
and Another, . In the said case, the Ahmedabad Municipal Corporation launched a prosecution against a person under the Prevention of Food
Adulteration Act. Mr. N.G. Kotle, who was employed as a Chemist in the Public Health Laboratory of the Ahmedabad Municipal Corporation,
deposed as a defence witness (claiming to be an expert witness) in the Magistrate''s court, supporting the case of the accused. Much against the
definition of various items found in the Appendix to the Prevention of Food Adulteration Rules, he deposed that butter milk was milk and that
therefore no offence was made out. The criminal court did not accept his expert opinion, but convicted the accused. The Sessions court, on
appeal, passed strictures against Mr. N.G. Kotle and the High court, even while expunging certain adverse remarks contained in the judgment of
the Sessions court, expressed the hope that the Municipal Officers would take due notice of the conduct of Mr. N.G. Kotle. This led to the
departmental enquiry against him, which eventually culminated in an order of dismissal from service. When he challenged the order of penalty, the
main crux of his challenge was that the evidence given by a witness in a criminal case cannot be the subject matter of disciplinary proceedings.
Repelling the said contention, the Supreme court held in para-7 of the judgment as follows:
As far as the contention that it is no misconduct to give evidence in Court is concerned, it is the duty of every citizen to assist the Court in
administration of justice and to give evidence wherever called upon and it is no misconduct to give evidence in the Court. However, when the
evidence is given by an employee like a Chemist in the Public Health Department against the very department and that evidence is found to be
deliberately false and improper with a view to destroy the prosecution filed by the employer against the accused, certainly it is a misconduct, and
the employer is entitled to take disciplinary proceedings and impose penalty. The penalty is not imposed for giving evidence in Court, but it is
imposed for improperly and deliberately trying to destroy the prosecution launched by the Corporation by an employee whose duty is to enforce
the law of Prevention of Food Adulteration and to see that the culprits of food adulteration are properly dealt with and punished in accordance
with law. Therefore, there is no substance in the argument that the conduct of the appellant in giving evidence of this nature in Court is no
misconduct.
Dealing with another contention namely that only the criminal court can take action for perjury and that there can be no departmental proceeding
for perjury, the Supreme Court held in para-8 of the said judgment as follows:
The next contention of the appellant is that only the Criminal Court could have taken action against the appellant for perjury and the employer
was not entitled to terminate the services of the appellant on such a charge. It is true that the Criminal Court could have and should have taken
action for perjury against the appellant in the facts and circumstances of the present case. However, that does not mean that the employer cannot
take action against such employee and that the Corporation is bound to continue such a person in service merely because the Court had failed to
take action. There is no such bar against an employer taking action against its employee for misconduct after an enquiry properly held and charge is
properly proved.
Therefore, the contention that a witness enjoys absolute privilege against any departmental proceedings, is untenable.
Though we have rejected the theory of ''absolute privilege'' propounded by the learned Counsel for the appellants, it does not automatically
follow that every statement made by every witness in every proceeding, can form the basis for disciplinary action. From the law laid down by the
Apex court in the above mentioned case, it could be deducted that the evidence tendered by a witness, can form the subject matter of
departmental proceedings, only if--
a) it was found to be false and improper, by the court before which such evidence was tendered and
b) it was given in a case in which the employer was involved.
In the light of the aforesaid twin tests, it is to be seen whether the deposition given by the appellants in the criminal case, amounted to
misconduct, making them liable for disciplinary proceedings.
a) In the case before the Supreme Court, the evidence tendered by N.G.Kotle in the criminal case, was against his own employer, namely the
Ahmedabad Municipal Corporation. But in the case on hand, the criminal case filed by K.Subramani was not against the employer namely the
Madras Christian College Higher Secondary School, but it was against his co-employees and hence the appellants herein could not be said to have
committed any misconduct as against their employer, by deposing as witnesses in favour of one of their co-employees in a case against other co-
employees.
b) In the case before the Supreme Court, the evidence tendered by the witness, was found to be with a view to sabotage the very prosecution
launched by his employer against a person under the Prevention of Food Adulteration Act. But in the present case, the employer had nothing to do
with the criminal complaint launched by K.Subramani. The criminal case launched by him was only a private complaint against his co-employees
for offences under the S.C & S.T (Prevention of Atrocities) Act and the employer-institution was not the target of attack in this case.
c) In the case before the Supreme court, there was a categorical finding that the evidence of N.G.Kotle was false and there was an indication in the
judgment of the High court while expunging the remarks against him, that the Municipal officers shall take notice of his conduct. Therefore, the
departmental enquiry was only a sequel to the observations of the High Court, suggesting such a course. But in the case on hand, there was no
categorical finding by the Sessions Court or by this Court that the evidence of the appellants was false. All that this Court found in paras-34 and 35
of its judgment in Crl.R.C. No. 478 of 1997 dated 28-10-1998, was that the appellants had strained relationship with the management and that
their evidence cannot be believed. Therefore there is no categorical finding by the court that the evidence was false.
Thus it is evident that the case on hand does not satisfy the twin tests, to enable the management to take disciplinary action against the appellants
and hence the proceedings are liable to be quashed.
The matter does not end at that. There is one more interesting aspect. The charge memos dated 17-4-2000, impugned in the writ petitions,
were issued by an Advocate by name S.W.Kanagaraj, who is also arrayed as the 3rd respondent in the writ petitions and in the above appeals.
He is described to be the Law Member of the Board of Management of the 1st respondent School. By a resolution passed by the Board of
Management of the school 25-1-2000, the 3rd respondent was appointed as the Disciplinary Authority in the matter. In pursuance of the said
appointment, the 3rd respondent not only framed charges but also appointed the 5th respondent as the Enquiry Officer. In our considered view,
the powers of a disciplinary authority cannot be so delegated. While the charge memo can be issued by anybody other than the disciplinary
authority and the enquiry can also be conducted by somebody else, the very power and functions of the disciplinary authority can not be delegated.
The disciplinary authority cannot shirk its responsibility and abrogate its powers. Even if the 3rd respondent happens to be a member of the Board
of Management, the collective responsibility of the Board, to act as the disciplinary authority, cannot be delegated to a single individual. In as much
as such a delegation has taken place and in pursuance thereof, the 3rd respondent has issued the charge memos impugned in the writ petitions, the
charge memos cannot be sustained.
What is worse is the fact that the 3rd respondent, who is appointed as the Disciplinary Authority, was the same person who appeared as
defence counsel in the very same criminal case that has now become the subject matter of controversy. Therefore, appearing as a defence counsel,
the 3rd respondent had opportunity to cross examine the appellants herein, who deposed as PW-2 and PW-3 in the said criminal case. The
appointment of such a person to be the disciplinary authority, goes against the fundamental principle of law that ""Justice should not only be done
but must also appear to have been done"". Therefore even on this ground, the charge memos are liable to be set aside.
We are conscious of the limitations imposed by law, upon Courts and Tribunals in interfering with departmental proceedings, especially at the
pre-enquiry stage. In Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy, , the Supreme Court held as follows:- ""So far as the
truth and correctness of the charges is concerned, it was not a matter for the Tribunal to go into-- more particularly at a stage prior to the
conclusion of the disciplinary enquiry."" But in this case we have not decided the issue by going into the truth and correctness of the charges. In
Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, the Supreme Court quashed a charge memo against a Collector of Central Excise on the
ground that it was not a case for initiation of any disciplinary proceedings and that the charge of misconduct was not proper. In State of Punjab v.
V.K. Khanna and Ors. (2001) 2 SCC 330, the circumstances under which courts can interfere at the earliest stage, were narrated by the Apex
court in para-33 as follows:
While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court
pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a
charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in
that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is
not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society
and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the
contextual facts, has delved into the issue on that score.
Applying the above dicta laid down by the Supreme court, we find that the delegation of the powers of the disciplinary authority upon the 3rd
respondent who appeared as a defence counsel in the very criminal case in which the appellants deposed as prosecution witnesses, shows that
there is an element of malice in law on the part of the management and hence the departmental proceedings are liable to be quashed.
In the result, the writ appeals are allowed, the proceedings impugned in the writ petitions are quashed and the rule nisi issued in each of the writ
petitions is made absolute. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected
WAMPs are closed.