Venkateswara Rao, J.:— This appeal arises out of a suit filed by the respondent in the Court of the Subordinate Judge, Warangal, for a declaration that the departmental enquiry ??? to which he was dismissed from service as a police constable is “null and void” and that he should be deemed to be continuing in service; and alternatively for recovery of damages in a sura of Rs. 10,000 alleging that his dismissal from service is illegal as the enquiry that led to it is vitiated by several irregularities besides having been conducted in violation of the principles of natural justice. This suit was resisted by the appellant who filed written statement contending that the plaintiff is not entitled to any one of the ??? in the suit as he was dismissed from service having been found guilty of charges of corruption after due and proper enquiry and that it is not correct to say that the said enquiry is vitiated for alleged violation of the principles of natural justice or other reasons. On these pleadings the following issues were set down for trial.

1. Whether the departmental enquiry leading to plaintiff's dismissal was improper?

2. Whether the suit is maintainable?

3. Whether the plaintiff is entitled to damages claimed?

4. To what relief?

2. On a consideration of the evidence placed before him, the learned subordinate Judge held that the plaintiff failed to prove that the departmental enquiry resulting in his dismissal is ‘improper’. He, however, accepted the plea raised on his behalf for the first time during the course of arguments that the enquiry held against him and the order of dismissal passed pursuant to that enquiry are bad inasmuch as the enquiry was not preceded by his prosecution in a Court of law for alleged receipt of illegal gratification notwithstanding that it is a cognizable offence. He held in favour of the plaintiff on the other issues also and accordingly decreed the suit granting him the principal relief of declaration prayed for in paragraph 11(1) of the plaint together with costs. It is to question the correctness of this decision that the present appeal has been preferred by the State which is the defendant in the suit.

3. It is urged for the appellant that having held that the plaintiff failed to prove that the enquiry pursuant to which he was dismissed from service is vitiated for any particular reason, the Court below should have dismissed the suit in toto and that it fell into a serious ??? or in upholding his belated contention that the enquiry and dismissal from service are bad and unsustainable simply because the enquiry was not preceded by criminal prosecution of the plaintiff in a Court of law. Besides contending that the trial Court was right in its finding that the prosecution, in a Court of law, of the plaintiff for the offences alleged against him is a condition precedent for validly initiating a departmental enquiry against him, learned Counsel for the respondent vigorously supported the decision of the trial Court with reference to the evidence which, according to him, establishes beyond a semblance of doubt that the enquiry is vitiated by several irregularities and illegalities.

4. The first point that, therefore, arises for consideration in this appeal, is as to whether the prosecution of the plaintiff in a Court of law for the misconduct alleged against him is a condition precedent for valid initiation of departmental proceedings against him. The provision which according to the learned trial Judge, makes it obligatory to prosecute the delinquent before commencing a departmental enquiry against him, is Order 220(5) of the Andhra Pradesh Police Manual. This provision, which occurs under the heading “Departmental Enquiries in cases of fraud or embezzelment of Government money, or Criminal misconduct”, is to the following effect:

“The question of prosecution should then be considered in the light of such materials as may have become available as a result of the departmental investigation. Before initialing criminal proceedings, the advice on evidence should be obtained from a Government Counsel. Where the conduct of an officer discloses a grave criminal offence, criminal prosecution should be resorted to as a rule, and should not be avoided merely on the ground that the case might lead to an acquittal”.

5. But the rule cited by itself does not seem to warrant any such conclusion as was arrived at by the Court below as all that it seeks to impress upon the authority concerned is that criminal prosecution of the police officer should be resorted to as a rule and should not be avoided merely on the ground that the case might lead to acquittal, where the conduct of the officer discloses a grave criminal offence. Acceptance of illegal gratification is no doubt a grave criminal offence being a cognizable one; but there is nothing in the rule cited which would justify the inference that no departmental enquiry can be validly commenced against a delinquent police officer unless and until he is prosecuted in a Court of law. Learned Counsel for the respondent has not been able to refer me to any other provision in the Andhra Pradesh Police Manual or elsewhere in support of his contention that the Court below was right when it held that the failure to prosecute the plaintiff had the effect of rendering the departmental enquiry and the dismissal ordered pursuant to that enquiry, illegal. The decisions relied upon by the trial Court in this regard do not also seem to help the contention in question. Bhugiram v. Superintendent of Police1, was a case in which a police officer, after being censured in the first instance was later on dismissed from service without holding any enquiry whatsoever and without affording him an opportunity to know the charges against him and meet the same. It was, therefore, held that the dismissal is illegal as it was ordered in contravention of rule 66 of the Assam Police Manual, Part III which provides that in every case in which the question of an officer meriting major punishment arises, the order shall, except when it is based on facts or conclusions established at a judicial trial, or when the officer concerned has absconded with the accusation hanging over him, shall be preceded by a properly recorded departmental enquiry. The learned Judge who decided that case no doubt made a passing observation in paragraph 7 of his judgment that,

“the offences were triable by a Magistrate, and a departmental enquiry in regard to such offences was not called for unless the petitioner had been duly tried and found guilty or otherwise, in a Court of Law”

6. But this is only an expression of opinion by him in the circumstances of that particular case and cannot be regarded as being of universal application. Likewise, the passage which the learned trial Judge extracted from State of Uttar Pradesh v. C.S Sharma2, would itself show that decision was no bearing on the facts of the case under consideration. The other decision. State of Uttar Pradesh v. Babu Rani3, referred to by the learned Subordinate Judge is equally in applicable to our case. The question that fell to be decided in that case was whether a departmental enquiry in regard to a police officer even before the allegations against him were investigated under Chapter XIV of the Code of Criminal Procedure are required by para 486, rule I of the U.P Police Regulations is valid. That rule lays down that:

“Every information received by the police relating to the commission of a cognizable offence by a police officer shill be dealt with in the first place under Chapter XIV, Criminal Procedure Code, according to law, a case under the appropriate section being registered in the police station concerned.”

7. This rule was found to be mandatory and so it was held that a departmental enquiry held in contravention of the same is bad. But there is no such rule in the Andhra Pradesh Police Manual. It must, therefore, be said that the finding reached by the Court below that the enquiry held against the plaintiff and the dismissal ordered pursuant to that enquiry are illegal as the enquiry was not preceded by prosecution of the plaintiff for the misconduct alleged against him in a Court of law, is clearly untenable and cannot be sustained. The next question for consideration is whether the enquiry which resulted in the dismissal of the plaintiff is vitiated for the other reasons urged by him. The plaintiff joined service as a police constable more than 20 years prior to the date of the institution of the suit. When he was working as Head constable at Wardhannapet in February, 1960, he was served with a charge memo, accusing him of having demanded and accepted illegal gratification for himself and his Sub-Inspector of Police, Shah Ahmed Siddiqui, from four different persons. There were seven other independent charges besides these against Mr. Siddiqui. The Superintendent of Police Warangal, who is admittedly the appointing authority in relation to the plaintiff, appointed the Deputy Superintendent of Police, Warangal, to enquire into the charges framed against the plaintiff. This enquiry was held by three successive Deputy Superintendents of Police (D.Ws 1 to 3) D.Ws 1 and 2 happened to be transferred out of the station, one after the other. D.W 3, who completed the enquiry, found the plaintiff guilty of all the charges levelled against him as can be seen from Exhibit A. 44. He, however exonerated the Sub-Inspector of Police of all the charges, including the common charges against him and the plaintiff, notwithstanding that the evidence adduced in respect of the common charaes is the same. The Superintendent of Police. Warangal, accepted the report of D.W 3 and ordered the dismissal of the plaintiff from service on 31st January, 1962. A series of grounds have been urged to question the legality of the aforesaid order and the enquiry on which it was based. It is contended that the Enquiry Officers were biased against the plaintiff and did not act impartially, that the plaintiff was not furnished with copies of material documents and was also not allowed to have legal assistance in spite of his repeated requests for the same, that he was unreasonably refused an opportunity to cross-examine some of the witnesses examined in proof of the charges and that these and other irregularities committed in the course of the enquiry deprived him of the opportunity of defending himself effectively and had occasioned injustice. Besides the evidence of the plaintiff, a number of documents are relied upon to substantiate this contention. After setting out the gist of the oral evidence adduced in the case and referring to the documents exhibited in it, the learned trial Judge held that the plaintiff failed to establish that the enquiry is vitiated, observing as follows:

“Keeping in view the evidence led by both the parties as sifted above. I have no hesitation to uphold the contentions of the learned Government ??? Sri V. Manohar Rao that the P.Ws 1 and 2 fully remain shaken and the defence evidence comprised of the three enquiry officers is quite cogent and worthy of credit They have fully tried to comply with all the rules of natural justice. Common witnesses in both the enquiries of the plaintiff and that of the other Sub-Inspector have been examined by them jointly as per common sense of the three enquiry officers. Exhibits A-42 and A-43 the statements of the plaintiff indicate that he was quite aware of the facts of the case against him. Every possible and reasonable opportunity was given to him to peruse the records, and this fact goes to be proved from his own written statements. In the result, I think the plaintiff fails to prove the factual aspect of issue No. 1, that the departmental enquiry leading to the plaintiff's dismissal was improper as it was conducted by prejudiced officers who did not give him reasonable opportunity to defend himself properly”.

8. This conclusion of the Court below came in for severe criticism at the hands of the learned counsel for the respondent and rightly too. Though the learned trial Judge stated in the passage extracted above that the evidence adduced in the case was sifted nothing of the kind was done by him and he simply set out the gist of the oral evidence adduced in the case besides referring to some of the documents marked for the parties. He did not discuss this evidence and simly jumped to the conclusion that is now assailed, after narrating the evidence. To say the least, the judgment of the trial Court is most unsatisfactory besides being unintelligible. A careful scrutiny of the evidence adduced in the case would removal, as rightly contended by the learned Counsel for the respondent, that there were several irregularities in the eaquiry brides flagrant violation of the principles of natural justice resulting in denial of a reasonable opportunity to the plaintiff to meet the charges levelled against him. I will now deal with a few such instances pointed out by the learned Counsel for the respondent.

9. The plaintiff admittedly made repeated requests for permitting him to engage the services of a lawyer. This is also borne out by Exhibits A-6, A-10 and A-40 but this request was not granted. As already stated, a number of witnesses were examined besides marking numerous documents in the course of the enquiry and it is also an undisputed fact that there was some sort of a joint enquiry into the common charges framed against the plaintiff and Mr. Siddiqui, the Sub-Inspector. It will hereafter be seen that as the witnesses to the common charges against the plaintiff and the Sub-Inspector happened to be the same, their depositions were recorded only on one occasion and carbon copies taken of those depositions were made use of in the enquiry against the plaintiff. The plaintiff is not a highly educated man and it is but natural that he should have been in a very disturbed state of mind during the enquiry. It is, therefore, too much to expect of this lay man, in his tense and disturbed state of mind to be able to make necessary and proper cross examination of the witnesses and defend himself effectively against the grave charges of misconduct without having the help and assistance of a trained lawyer. The refusal to grant his request for permission to engage a lawyer is, in my opinion, unreasonable in the circumstances and had resulted in denying him the valuable opportunity of effectively defending himself against the charges. It is true that the question of granting or refusing to grant permission to engage a lawyer is in the discretion of the Enquiry Officer; but this discretion has got to be exercised judiciously and not in capricious manner. Withholding of permission to engage a lawyer, in the circumstances stated above, cannot for a moment be said to be the result of proper exercise of the discretion vested in the authority concerned. Reference may be made in this context to Dr. K.S Rao v. State4, in which refusal to accede to the request of the delinquent officer, who was a medical officer, was held to be unreasonable and to have deprived him of reasonable opportunity to defend himself as can be seen from the following passage extracted therefrom:

“It might be that, in the opinion of the enquiry officer, the case did not require specialized professional help, but from the point of view of the petitioner, it was a serious matter which affected his official career and which might, as indeed it has happend in this case, result in his dismissal from service. Rightly or wrongly when the petitioner was under a reasonable apprehension that the enquiry was the result of a preconceived plan and a concerted action on the part of the Medical Department his request for professional help was certainly justified and the enquiry officer should have given him that opportunity. His refusal to accede to that simple request has certainly deprived the petitioner in the circumstances of the case of an opportunity to defend himself.”

10. It was similarly held in Nripendra Nath v. Chief Secretary Government of West Bengal5 that having regard to the volume of depositions, and the number of witnesses and documents, the refusal to allow the assistance of a lawyer to the charged officer notwithstanding that he was himself a District Judge amounted to denial of reasonable opportunity under Article 311(2) of the Constitution. The case under consideration is a fortiori and one refusal to grant permission to engage the services of a lawyer must be said to have seriously prejudiced the plaintiff's interests by denying him a reasonable opportunity to defend himself effectively.

11. The plaintiff applied to the Superintendent of Police. Warangal, or the Enquiry Officer, on several occasions as can be seen from Exhibits A-4 to A-9, requesting that he may be furnished with the statements recorded in the course of the preliminary enquiry held by an Inspector of X Branch and also the report submitted by him to the Superintendent of Police, Warangal. He was given perusal of the report of that Inspector but his request for copies of statements recorded from witnesses in the course of the preliminary enquiry was negatived. Learned Counsel for the respondent is perfectly correct when he contends that as a result of the refusal to provide the plaintiff with copies of the statements recorded in the course of the preliminary enquiry, he was deprived of the precious opportunity of contradicting the witnesses with the aid of these statements during the enquiry and that if only those statements were made available to him, he would have successfully established that the evidence given by the witnesses in support of the charges framed against him is false. There can hardly be any doubt that refusal to furnish the charged officer with copies of important documents such as those mentioned above would amount to denial of a reasonable opportunity within the meaning of Article 311. It was pointed out by their Lordships of the Supreme Court in State of M.P v. Chintaman6:

‘Then as to the application on the strength of which the preliminary enquiry was commenced against the respondent, we agree with the High Court in holding that there was no justification for keeping back this document. Likely the prior statements of Rajab Ali and Noor Bhai this document also has been improperly characterized as secret and withheld from the respondent. If he had been given the documents which he had called for, the respondent would have been able to cross examine the witnesses adequately, and in their absence he suffered from a handicap which in the result denied him a reasonable opportunity which is granted to him under Article 511(2)”.

12. It must, therefore, be said that the plaintiff was seriously prejudiced on account of the refusal to provide him with copies of the statements recorded in the course of the preliminary enquiry and that this would amount to denial of a reasonable opportunity to him.

13. It is not denied that the plaintiff wanted four persons including Tirupal Naidu, who made the preliminary enquiry against him to be summoned as defence witnesses but this request was also rejected. The evidence of Tirupal Naidu was very important because it is only through him that the plaintiff could possibly prove the contradictions which he elicited from the other witnesses. He wanted the Sub-Inspector Mr. Siddiqui, to be summoned as a witness on his behalf and it cannot be said that he was not a material witness as the accusation made against the plaintiff reveals that he demanded and received illegal gratification for himself as also for Mr. Siddiqui No satisfactory explanation is forthcoming on behalf of the appellant as to why the request of the plaintiff for summoning witnesses was not granted by this enquiry officer. This again is in my opinion, amounts to denial of a reasonable opportunity to the plaintiff to defend himself against the charges.

14. Three witnesses examined during the enquiry and whose depositions are marked as exhibits A-25 to A-27 could not be cross-examined by the plaintiff as his request for permission to cross-examine them at a later date on the ground that he was running temperature on the particular day was rejected. The plaintiff filed an application, Exhibit A-28, on the next hearing day requesting permission to cross-examine those witnesses but this request was unceremoniously rejected. It may be mentioned that the plaintiff did not apply for time to cross-examine witnesses on any other occasion except on the day when the evidence in chief of the witnesses referred to above was recorded, in spite of the fact that a large number of witnesses were examined during the enquiry. It is unreasonable, in such circumstances, to have denied him the opportunity to cross-examine the three witnesses in question by recalling them, if necessary. Rules of natural justice require that a party should be afforded a reasonable opportunity of not only adducing all relevant evidence on which he seeks to rely but also to cross-examine the witnesses examined in support of the charges framed against him. If such an opportunity is denied to him without sufficient cause he has every right to question the propriety of the enquiry held against him. It may also be stated in passing that the Inspector, Tirupal Naidu, who admittedly made the preliminary enquiry into the allegations against the plaintiff, was allowed to be present during the course of the enquiry notwithstanding the objection raised against the same by the plaintiff and his request in writing to the Superintendent of Police, Warangal. (Vide Exhibit A-32) that he should not be allowed to be present during the enquiry.

15. It is now not denied that till a certain stage, there was joint enquiry into the charges against the plaintiff and the Inspector, Mr. Siddiqui, as some of the charges were common to them and also because the witnesses examined to substantiate those charges were also the same in both the cases. It is not the appellant's case that the joint enquiry was held with the consent of the plaintiff or that he acquiesced in it. The proper course for the, Enquiry Officer, in such circumstances, was to have held the enquiry into the charges against the plaintiff separately and to have recorded the evidence also separately as otherwise there was the danger of the plaintiff getting confused. But this he did not do and he recorded evidence of the common witnesses is only one enquiry and made use of carbon copies of their depositions in the other enquiry against the plaintiff as can be seen from Exhibits A-10 to A-12, A-15 and A-17. The plaintiff is, therefore, justified in contending that this circumstance also has had the effect of vitiating the enquiry held against him. As already stated, the enquiry into the charges framed against the plaintiff was made by three successive police officers. D.Ws 2 and 3 continued this enquiry from the stage at which it was left by their predecessors-in office even though the plaintiff was asking for a de novo enquiry whenever there was a change of incumbent in the office of the Deputy Superintendent of Police. Exhibit B8 shows that the plaintiff did ask for de novo enquiry in vain. The advantage of the observation of the demeanour of the witnesses was lost to the plaintiff as the report of enquiry was compiled by another officer, who had no occasion to see the witnesses concerned and watch them when they were giving evidence. It has to be said that this is yet another irregularity that had prejudiced the interests of the plaintiff. I have therefore, no hesitation in agreeing with the learned Counsel that the respondent was denied a reasonable opportunity to effectively defend himself and that the enquiry pursuant to which he was dismissed from service is vitiated for the several reasons stated above.

16. In the result, therefore, the judgment and decree of the Court below or confirmed, though for altogether different reasons, and appeal which fails, is dismissed with costs.

17. Appeal dismissed.