Judgement

These are two applications filed under Art. 226 of the Constitution for the issue of writs of certiorari to call for records in G. O. Ms. No. 2005 dated 9-7-1952 and in departmental enquiry No. 31 of 1950 dated 29-12-50 and to quash the orders passed by the Government and the Tribunal respectively.

The petitioner was working as grain purchase tahsildar in Tadepalligudem in 1947-48. Four charges were framed against him by the Tribunal for disciplinary proceedings in departmental enquiry No. 31/1950. The Tribunal held that charges 3 and 4 were not proved. In respect of charge No. 1, the Tribunal found as follows :

"Under charge 1, I have held that, with full knowledge that the excess stock in the possession of the miller Uma Kasi Viswanatham had been seized by the Police, the accused officer connived with him in regularising it by allowing him to issue E forms in the names of his brothers and thereby he caused loss to the Government to the extent of the value of 506 bags as found by the learned Sessions Judge."

2. The Tribunal also held that charge 2, namely, that the petitioner had taken a bribe, was established. Recommendation was made to the Government that the petitioner should be dismissed from service.

3. The Government communicated the order of the Tribunal to the petitioner and asked him to show cause, within one month from the date of the receipt of the memorandum, why he should not be dismissed from service. The petitioner thereupon made a written representation dated 8-12-1951 before the Government.

On 9-7-1952, the Government passed an order dismissing him from service on the ground that the first charge was duly proved. In respect of the second charge, the Government took the view that benefit of doubt should be given to him. The petitioner filed the two writs challenging the validity of the orders passed by the Tribunal and Government removing him from service.

4. The first contention raised by Sri M.S. Ramachandra Rao, the learned counsel for the petitioner, was that as no loss was caused to the Government by the issue of E forms, the petitioner was not guilty of corruption as defined in Rule 2 (a) of Disciplinary Proceedings Tribunal Rules. In order to appreciate his argument, it is necessary to set out a few relevant facts.

On 4-9-48, Sri Satyanarayana Chowdhary, Deputy Superintendent of Police, X Branch C.I.D. paid a surprise visit to Seetharamanajaneya Rice Mill, Gundugolunu and seized 2,290 bags of paddy as being the excess over the book balance as per the register in the mill and entrusted them to the village munsif. The District Supply Officer, examined as P.W. 5, directed the petitioner on 7-9-48 to check the stock in the mill and ascertain the-excess in order that appropriate action might be taken against the miller Kasi Viswanatham. Though, the petitioner visited the village on 8-9-48, he did not carry out the directions of the District Supply Officer and proceed to the mill.

On 5-10-1948, he inspected the mill and recorded the statements of Kasi Viswanatham and his three brothers. The report sent by him was marked as Ex. D-15 and the statements recorded by him were annexed as the enclosures thereto. He reported that the total quantity of paddy stored consisted of 6597 bags. In Para 3 of the report, he stated as follows :

"I suspect that the miller bas given a false explanation by saying that the paddy belonged to his brothers as I find from X register of this mill that about 1550 bags of paddy were already sold by these three brothers in the course of this year on 4-2-48, 8-2-48, 9-2-48, 17-3-48, 29-6-48 and 15-7-48 while they got only 1300 hags towards their share from their lands in Agadallanka and Pothunuru village according to their statements.

It is also seen by me during the course of my verification that some paddy found in the mill may be of the second sort while the entire stock is shown, in accounts as first sort paddy. This needs some technical scrutiny as the distinction between those two sorts is not well known to me and as all the paddy is got mixed up.........

The explanation of the miller for the excess of 1396 bags of paddy detected by me is unsatisfactory as he appears to have purchased all this excess in black market early in September 1948... The surplus of 1396 bags now detected is brought to account. In view of the facts reported above, the District Supply Officer may be pleased to take the necessary action against this miller for possessing large stocks of paddy in excess of the quantities shown in the accounts....."

5. In the statements recorded from the miller, it is mentioned that the E forms were issued by the miller himself in favour of his brothers. A charge-sheet was filed before the Additional First Class Magistrate against the miller for violating the provisions of the Essential Supplies Act, 1946 and he was convicted by the Magistrate. The Magistrate found that the unaccounted excess stock was 1247 bags of paddy and that it should be confiscated to the Government.

On appeal to the Court of Session, West Godaveri, it was found that only 506 bags were unaccounted for and that the sale proceeds of those bags alone should be confiscated and credited to the Government. After the disposal of the Criminal Appeal, proceedings were started against the petitioner. Charge No. 1 framed against him runs as follows :

"That, you, with full knowledge of the seizure,, on or about 4-9-48, of about 2290 bags of paddy found in excess of the stocks shown in the registers of the Seetharamanajaneya Rice Mill, Gundugolanu, by the Officer of the C.I.D., actuated by corrupt motive, visited the aforesaid mill a month later i.e.., on or about 5-10-1943, instituted another verification; issued E form receipts in favour of (1) Sri Rama Rao (2) Sri Satyanarayana, and (3) Sri Purushotham, brothers of Sri Kasi Viswanatham, proprietor of the above mill, to suit and to be in conformity with the contention of the accused miller and thus, deliberately regularised the excess stock worth about Rs. 40,000/- which would otherwise have been confiscated, and helped the miller."

6. The three ingredients of the charge are : (i) that he did not visit Seetharamanjaneya Rice Mill, Gundugolanu, till one month after the seizure of 2290 bags of paddy by an officer of the C.I.D., "though he had full knowledge of the seizure; (ii) that actuated by corrupt motive he issued E form receipts in favour of the three brothers of Kasi Vishwanatham to suit and to be in conformity with the contention of the accused miller; and (iii) that by deliberately regularising the excess stock worth about Rs. 40,000/- he prevented the confiscation of the stock and thereby helped the miller.

It was found by the Tribunal that he had full knowledge o the seizure when he had visited the mill on 5-10-1948. As regards the issue of E forms, it was found in para 14 that they were allowed to be issued on 5-10-1948 in the names of the three brothers of the miller. The finding on the second part of the charge was that, though he did not issue the E forms, he allowed the miller to issue them and regularise the excess.

Regarding the third limb of the charge which is the main and crucial one, the Tribunal, adopting the finding of the Sessions Judge, West Godavary, in Cr. A. No. 32/50, held that he caused loss to the Government to the extent of the value of 506 bags. Sri M.S. Ramachandra Rao vehemently contended that the finding on this part of the charge was absolutely erroneous and opposed to the judgment of the Sessions Judge. As already stated, the Sessions Judge held in Para 13 of the judgment that the paddy unaccounted for was only 506 bags and that the sale proceeds of those bags should be confiscated and credited to the Government.

The learned advocate, therefore, contended that no loss whatsoever was caused to the Government and that no benefit accrued to the miller. The learned Government Pleader was not able to satisfy me as to how any loss was caused to the Government by the issue of E form receipts in favour of the brothers of Kasi Viswanatham and the regularisation of the excess. The Sessions Judge who accepted the evidence of the karnam found in para 11 that the paddy stored in the godowns of "Durgampudi Rarnanna and Pabolu Satyam belonged to the brothers and were sold by them to the miller.

The issue of the E forms to those brothers was therefore perfectly justified. As regards the excess quantity of 506 bags it was held, that it should be confiscated and the sale proceeds duly credited to the Government. As the Tribunal held, accepting the finding of the Sessions Judge, that only 506 bags were unaccounted for and as the sale proceeds of " those bags were directed to be confiscated, I fail to see how any loss was caused to the Government and how the third limb of the charge is established. It is clear that the miller was not benefited by issuing the E forms in favour of his brothers.

7. The learned Government Pleader contended that the finding on the first charge was only contained in para 17 and that no importance should be attached to what was stated in para 29. I do not agree with his contention. Both paras 17 and 29 have to be read together to ascertain the actual finding of the Tribunal. What was stated in para 17 was that the petitioner in order to help the miller "deliberately regularised the excess stock or a portion thereof which could otherwise have been confiscated to the Government and thereby caused loss to the Government.

The finding of the Sessions Judge, as already set out, was that the excess stock was only 506 bags and the value of those bags should be confiscated and credited to the Government. The conduct of the petitioner had therefore not resulted in any loss to the Government or benefit to the miller. The expression "corruption" in R. 2(a) of the Disciplinary Proceedings Tribunal Rules bears the same meaning as criminal misconduct in the discharge of official duties under S. 5(1), Prevention of Bribery and Corruption Act (Act 2 of 1947) and it is common ground that cls. (a) to (c) of S. 5(1) do not apply to this case; and the only question is, whether the terms of S. 5(1)(d) are applicable to the facts of this case. Section 5(1)(d) reads as follows :

"5 (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty.

(a) to (c) XX XX XX

(d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage."

8. There is no doubt that the petitioner did not obtain for himself any valuable thing or pecuniary advantage. Did he by passing the E forms to be issued obtain for any other person (the miller in this case) any valuable tiling or pecuniary advantage ? The answer is that he did not also obtain for the miller any valuable tiling or pecuniary advantage as the excess stock of 506 bags found by the Sessions Judge was directed to be confiscated to the Government.

9. It was sought to be contended by the Government Pleader that the Government was prevented from confiscating the entire stock of 2290 bags seized by police on 4-9-48. There is no force in this contention as the Sessions Judge had carefully considered the evidence and arrived at the finding that the entire quantity was not liable to be seized but only 506 bags.

It was held in - Jerome Dsilva v. Regional Transport Authority South Kanara, 1952 Mad 853 (AIR V 39) (A), that a quasi-judicial Tribunal like] the Regional Transport Authority or the Appellate Tribunal therefrom cannot ignore the findings and orders of competent Criminal Courts in respect of an offence when the Tribunal proceeds to take any action on the basis of the commission of that offence. At page 854, Rajamannar, C.J. observed as follows :

"As primarily the Criminal Courts of the land are entrusted with the enquiry into offences, it is desirable that the findings and orders of the Criminal Courts should be treated as conclusive in proceedings before quasi-judicial Tribunals like the Transport Authorities under tie Motor Vehicles Act."

10. It was apparently on the strength of this decision that the Tribunal held that the excess stocks with Kasi Viswanatham should be regarded as 500 bags and not 2290 bags as set out in the charge. It is therefore not open to the Government Pleader to go behind the finding of the Tribunal and contend that the excess stock was 2290 bags and that loss was caused to the Government in respect of the difference between 2290 and 506 bags, viz. 1784 bags, as a result of the conduct of the petitioner.

In this connection it might be noticed that the charge framed against the petitioner was that he caused loss by issuing E forms to the three brothers. The quantity claimed by the brothers as belonging to them was only 1265 bags. The charge was therefore not that he caused loss in respect of the entire 2290 bags but only 1265 bags. As a fact it was found by the Sessions Judge that out of 1265 bags stored in the godowns of Ramamma and Satyam and belonging to the brothers were sold to Kasi Viswanatham and that only the bags stored in Sanyasis godowns were not properly accounted for. As the sale proceeds of those bags were directed to be confiscated, the charge framed against the petitioner has clearly not been established.

11. It was feebly contended that as the two limbs of the charge, namely, that with full knowledge of the seizure, he went to the mill premises a month later and that he caused the E forms to be issued by Kasi Viswanatham to his brothers, were proved, he was liable to be removed from service, This contention is untenable as the findings on the first two parts of the charge would not amount to corruption within the meaning of the rules already set out.

12. It was next contended that the evidence placed before the Tribunal established beyond doubt that even the stocks stored in the godowns of Ramamma and Satyam did not really belong to the brothers. As already held above, it is not open to the Government to go behind the finding of the Sessions Judge or the finding recorded by the Tribunal.

13. The second contention of Sri M.S. Ramachandra Rao was that the finding of the Tribunal on the first charge was vitiated by the omission to refer to the material portion of Ex. D-15 wherein the petitioner brought to the notice of his superiors that the claim put forward by the brothers was unfounded. According to him, the petitioner informed the District Supply Officer that the entire quantity claimed by the brothers was liable to be seized and confiscated by the Government and that appropriate proceedings would be taken against the miller.

In the statement given by the miller, it was also mentioned that the E forms were issued by him and the quantities purchased from the brothers were duly brought into account. As the petitioner had brought all the facts to the knowledge of the District Supply Officer, he cannot in any way be held responsible for such loss. I accept this contention as the petitioner had not withheld any information from his superior officers. He expressed his opinion that the miller had not purchased the stocks from his brothers but must have obtained them only from the black-market. He also referred to the village accounts which show that the stocks could not have been sold by the brothers as alleged, by the miller. He also suggested that action should be taken against the miller.

It is surprising that this important document, Ex. D-15, was not filed in the criminal proceedings and the petitioner was not even examined. The omission to refer to this material portion of the document Ex. D-15 in the judgment of the Tribunal is also, in my opinion, an error apparent on the face of the record which vitiated the judgment of the Tribunal.

If the Tribunal had referred to that portion, they would certainly have come to the conclusion that the petitioner did what all he could and that he was in no way responsible for the loss. The issue of the E forms had in no way prevented the criminal Court from determining the real nature of the transactions. The stocks stored in the godowns of Ramamma and Satyam were not held to belong to brothers by the issue of the E forms but only by reason of accepting the evidence of the karnam. Though the E form was issued in respect of the stocks stored in the godowns of Sanyasi, it was still held by the Magistrate and the Sessions Judge that it did not belong to the brothers.

It is therefore clear that the issue of the E forms had in no way affected the determination of the real ownership of the stocks. The District Supply Officer examined as P.W. 5 had stated clearly that the issue of the E forms would not in any way affect the real character of the transaction and that it was always open to the supply officers to cancel the issue of those forms in appropriate cases, namely, in which the transactions were found to be not true or genuine.

14. The third contention on behalf of the petitioner was that the enquiry was not properly held by the Tribunal and that he was greatly prejudiced thereby. In support of this contention, he invited my attention to a petition filed by him on 20-11-1950 setting out the names of the witnesses whom he wanted to examine and the documents which he required the Government to produce. The first witness mentioned in that list was Sri R.S. Prakasa Rao, District Supply Officer, Visakhapathnam.

The Tribunal held that as the petitioners advocate dispensed with his examination on 7-10-1950, he was not entitled to summon him for examination. In regard to witnesses 2 to 7, the Tribunal gave a ruling that it was not necessary to examine those witnesses but that it was sufficient if the Collector was directed "to collect the documents from them".

It appears from the counter-affidavit filed on behalf of the Government that charges were directed to be paid by the petitioner for getting copies of the records and accounts from the Imperial Bank of India, Eluru and that the petitioner failed to pay the amount. The documents directed to be collected by the collector were received by the Tribunal on 28-11-50 when the enquiry was closed. It is stated in the supplemental order of the Tribunal that as the petitioner did not require those records, they were subsequently returned to the Collector on 29-12-50.

I am not convinced that the reasons given by the Tribunal for refusing to examine the witnesses are justified. The petitioner also requested the Tribunal to send for the production of the file and the orders of P.W. 5 relating to the record made against the proprietor of the same Mill in June 1948. He also filed a requisition before the Tribunal for sending the connected file relating to L. Dis. No. 69/48 dated 23-7-1948. The diaries of the grain movement officer P.W. 3 as also the office copies and the fair copies submitted by him to P.W. 5 in September and October 1948 were requested to be produced.

In regard to these documents it was stated that they were not traceable. The learned advocate for the petitioner further complained that no proper opportunity was given to cross-examine P.W. 5 in regard to Exs. P-17 and P. 17-a. The explanation offered on behalf of the Government was that the petitioners advocate had ample opportunity to cross-examine P.W. 5 with regard to those documents but that as he did not avail himself of that opportunity, it was not necessary for the Tribunal to give him any further opportunity.

15. There is some force in the contention of the petitioner that, as Exs. P-17 and P-17-A were produced, for the first time, before the Tribunal when P.W. 5 was in the witness box, viz., 6-10-1950, and the Advocate was permitted to look into those documents only on 7-11-1950, he ought to have been given an opportunity to cross-examine him with reference to those documents.

The question that falls to be considered is, whether, in the exercise of the jurisdiction under Art. 226, this Court is entitled to call into question the orders passed by the Tribunal refusing to summon the witnesses or to produce the documents required by the petitioner. Rule 8 (a) enacts as to how the enquiry should be held and the relevant portion of the rule runs as follows :

"...At the enquiry, oral evidence shall be heard and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the Tribunal may, for special and sufficient reasons to be recorded in writing, refuse to call a witness."

16. As already stated, I am not satisfied that "special and sufficient reasons" were given by the Tribunal for refusing to summon witnesses mentioned in the list dated 20-11-1950 and for refusing permission to cross-examine P.W. 5 in regard to Exs. P-17 and P-17-a.

I may refer, in this connection, to a direct decision of Rajagopalan, J. in - C.K. Ayya Gounder v. State of Madras, W. P. No. 739 of 1953, D/- 15-9-1954 (Mad) (B). In regard to some of the documents required by the petitioner, it was stated by the Government that they were not traceable. There are no sufficient materials placed before me to come to the conclusion that those documents were available but that they were wilfully withheld or suppressed by the Government.

17. The learned Government Pleader strenuously contended that none of the grounds urged by Sri M.S. Ramachandra Rao on behalf of the petitioner, warranted interference under Art. 226 of the Constitution. In - Ramayya Suri v. State of Madras (Now Andhra), W. P. No. 817 of 1952, D/- 21-9-1955 (Andhra) (C), I referred to the recent decisions of the Supreme Court dealing with the question as to what constitutes an error apparent on the face of record.

Venkatarama Ayyar, J. in - Hari Vishnu v. Ahmad Ishaque Syed Isak, 1955 SC 233 (244-245) ((S) AIR V 42) (D), held that it cannot be defined precisely or exhaustively as to what is an error apparent on the face of the record and that having regard to the element of indefiniteness inherent in its very nature, it must be left to be determined judicially on the facts of each case. He observed that the test. laid down by Chagla, C.J. in - Batuk K. Vyas v. Surat Borough Municipality, 1953 Bom 133 (AIR V 40) (E), that an error could not be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it, affords a satisfactory basis for decision in the majority of cases.

It was recognised that there might be cases in which even that test might break down as judicial opinions might differ and an error that might be considered by one Judge as self-evident might not be so considered by another. In - Abindra v. A.K. Mazumdar, 1956 Cal 273 ((S) AIR V 43) (FB) (F), Chakravartti, C.J. remarked at page 275 that the face need not be the surface and that "it may be a place a little below, appearing, as has been said, if the face is scratched." It was further pointed out that "the face of the order need not be limited to the actual paper on which the order is inscribed but may also comprise one or two correlated documents if it refers to them by its own terms".

In W. P. No. 817 of 1952, D/- 21-9-1955 (Andhra) (C), I held that all the records in the departmental enquiry leading up to the passing of the Government order may be examined under Art. 226 of the Constitution, bearing in mind that the Court acts in exercise of supervisory and not appellate jurisdiction.

In dealing with the first contention, I pointed out that the finding of the Tribunal that loss was caused in respect of 506 bags was wholly wrong and was opposed to the judgment of the Sessions Court as the proceeds of the 506 bags were directed to be confiscated and credited to the Government and therefore there can be no doubt that it is an error apparent on the face of the record to attract the terms of Art. 226.

A similar view appears to have been taken by Rajagopalan, J. in - Manaithunainatha Desicar v. Revenue Court, 1955-1 Mad LJ (SN) 36 (G). The omission to refer to the material portion of Ex. D-15 is also, in my opinion, sufficient to vitiate the findings of the Tribunal. I do not agree with the learned Government pleader that the Tribunal applied its mind to Ex. D-15 when it casually referred to it and stated that the petitioner submitted a report on 5-10-1948 and recorded the statements of the miller and his brothers and that I ought not to interfere as the finding arrived at by the Tribunal was one of fact based on the appreciation of evidence. In this connection, I might usefully set out the observations .of Viscount Simonds in - Edwards (Inspector of Taxes) v. Bairstow, 1956 AC 14 (32) (H), which are as follows :

"We are warned by the learned counsel for the respondents that to allow this appeal would open the floodgates to appeals against the decisions of the General Commissioners up and down the country. That would cause me no alarm, if decisions such as that we have spent some time in reviewing were common up and down the country."

18. A similar argument is generally addressed on behalf of the respondent in every writ. The learned Government Pleader also contended to the same effect in this case, namely, that if the writ is allowed it would encourage the filing of innumerable writs against the decisions of the several judicial or quasi-judicial tribunals or administrative .bodies and swell the number of writs in this Court.

The answer to such contention is furnished by Viscount Simonds in the passage referred to supra which I respectfully adopt. To the same effect are the observations of Martin, B. in - Mayor of Rochester v. The Queen, (1858) El Bl and El 1024 (1033). (I), which are as follows :

"Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable."

19. It is therefore necessary to bear in mind that the High Court should, in the discharge of their sacred duty of administering law and justice, exercise the powers specially conferred under Art. 226 in accordance with the principles laid down by the Supreme Court

"instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment"

. Applying the principles aforesaid, I am clear that the writs should be allowed.

20. Sri M.S. Ramachandra Rao addressed elaborate arguments on the interpretation of Art. 311(2) and the meaning to be given to the words "a reasonable opportunity of showing cause against the action proposed to be taken". He invited my attention to the decisions in - Ravi Pratap Narain Singh v. State of U. P., 1952 All 99 (AIR V 39) (J), - Shyam Lal v. State of U.P., 1954 All 235 (AIR V 41) (K); - Atindra Nath v. G.F. Gillot, 1955 Cal 543 (AIR V 42) (L); - Madhi Ram Bansilal v. Divisional Forest Officers Nabha, 1955 Pepsu "172 (AIR V 42) (M) and - Kapur Singh v. Union of India, 1956 Punj 58 (AIR V 43) (N). He distinguished the decision in - State of Bombay v. Gajanan Mahadev, 1954 Bom 351 (AIR V 41) (O).

The learned Government Pleader contended, on the other hand, that the words "a reasonable opportunity of showing cause against the action proposed to be taken" in Art. 311(2) should be understood as meaning a reasonable opportunity of showing cause against the penalty proposed to be imposed and that the officer is not entitled to a second opportunity of adducing evidence that the findings recorded against him by the Tribunal are erroneous. He relied on the observations of Lord Thanakerton in - High Commissioner for India v. I.M. Lall, 1948 PC 121 (AIR V 35) (P) and 1954 Bom 351 (AIR V 41) (O). Having regard to my conclusions in favour of the petitioner on the first three contentions, it is unnecessary to deal with this point.

21. Before concluding the judgment, I have only to deal with two legal contentions raised by the learned Government Pleader. The first contention is the same as to that addressed by Sri Vepa Saradhi on behalf of the Government in W. P. No. 817 of 1952, D/- 21-9-1955 (Andhra) (C). I held in that judgment that the rules framed under the Government of India Act 1935 have statutory effect and continue to be in force and binding on the Government and that the Government or the Tribunal is not entitled to act in violation of these rules.

I distinguished the decisions in - "Dr. M. Krishnamoorthy v. State of Madras, 1951 Mad 882 (AIR V 38) (Q), on which the learned Government Pleader laid great stress. Reference was next made to the observations of Spens, C.J. in - Secretary of State for India v. I.M. Lall, 1945 FC 47 (AIR V 32) (R) and - Venkatarao v. Secretary of State, 1937 PC 31 (AIR V 24) (S). Having given my best consideration to the arguments of the learned Government Pleader, I am not prepared to take a view, differing from that expressed in W. P. No. 817 of 1952, D/- 21-9-1955 (Andhra) (C).

22. The next contention to be noted is whether the petitioner is precluded from invoking the jurisdiction of this Court under Art. 226 by reason of his not having preferred an appeal to the Government as provided under R. 22 of the Madras Civil Services (Classification, Control and Appeal) Rules. It has been laid down by the Supreme Court in - Himmatlal Harilal Mehta v. State of Madhya Pradesh, 1954 SC 403 (AIR V 41) (T), that even when an alternative remedy is available, the jurisdiction under Art. 226 may be exercised in appropriate cases.

23. In the result, the two writs are allowed and G. O. Ms. No. 2005 D/- 9-7-52 of the Government and the order of the Tribunal in Departmental enquiry No. 31/50 are quashed. The petitioner will have his costs in W. P. No. 904/52 and the advocates fee is fixed at Rs. 100/-.

Writs allowed.