Tarlochan Singh v. State Of Punjab

R.N. MittaL, J. - This Regular Second Appeal has been filed by the plaintiff against the judgment and decree of the District Judge, Chandigarh, dated November 18, 1972. 2. Briefly, the facts of the case are that the plaintiff was working as a conductor with the Punjab Roadways, Chandigarh. The General Manager, Punjab Roadways, Chandigarh, terminated his services by order dated November 15, 1967. He challenged the order of termination of his services and sought a declaration that the order of termination was illegal and consequently, he continued in the service of the State of Punjab. The suit was dismissed by the trial Court. He went up in appeal before the District Judge, Chandigarh, who affirmed the judgment and decree of the trial Court and dismissed the appeal. The plaintiff came up in second appeal to this Court. The learned Judge before whom it was listed for motion hearing, ordered that the appeal be heard by a Division Bench. That is how this appeal has come up before us. 3. The first contention of the learned counsel for the appellant is that the punishing authority passed a cryptic order of dismissal against the appellant. He further states that the order of dismissal conveyed to him was not the same as was passed by him. According to the learned counsel, a reasoned order should have been passed by the punishing authority and the same should have been conveyed to the appellant. 4. We have given a thoughtful consideration to the argument of the learned counsel for the appellant. It may be mentioned that a charge-sheet was served upon the appellant with summary of allegations relating to misappropriation and misconduct on his part. He in his reply denied the allegations. After considering the matter, the General Manager ordered that an enquiry be held against the appellant. Mr. Dalip Singh, Traffic Manager of the Punjab Roadways, was appointed as the Enquiry Officer, who after holding an enquiry in the charges made a report that they had been proved against him. A show-cause notice was issued by the General Manager on the basis of the report of the Enquiry Officer. The appellant filed a reply against the show-cause notice. The General Manager after receipt of the reply held that the charge of misappropriation of the Government revenue in six different cases, had been fully proved. In view of that he ordered that the services of the appellant be terminated with immediate effect. The aforesaid order (D-9) is as follows :- "I have very carefully examined the enquiry proceedings against Shri Tarlochan Singh C. 78 (U.S.). I have examined his reply to the show-cause notice and given him a personal hearing. The charge of misappropriation in Government revenue in six different cases has been fully proved. The cases are of a serious nature and show the extent to which the conductor was habituated to committing fraud. The prosecution had given evidence about the charge relating to gross misconduct. There is nothing in the cross-examination to rebut this allegation, nor any defence was produced. Although the Enquiry Officer has not discussed this incident, he has held that all charges have been proved. However, the charges relating to fraud are serious enough to merit different punishment. His services may be terminated with immediate effect." Thereafter the following order (D.11) was communicated to the appellant :- "The services of Shri Tarlochan Singh son of Shri Bhagwan Singh C. No. 78 are hereby terminated w.e.f. 16th November, 1967 (F.N.). He should deposit all the Government articles issued to him from time to time immediately." The appellant had filed objections against the show-cause notice. The General Manager did not deal with the objections in the order passed by him. He says that he had examined his reply to the show-cause notice and given him a personal hearing. He does not give the objections and reasons for rejecting them. The order shows that the General Manager did not properly apply his mind while passing the impugned order. The punishing authority is a quasi-judicial authority and his order is subject to appeal etc. As a quasi-judicial authority, it was incumbent upon him to write a reasoned order so that the appellate authority while rejecting the representation of a Government servant and punishing him. No hard and fast principles can be laid down as to what should be written in the order. It is not necessary that he should write a detailed order, but it is required that he should record reasons in the order so that the delinquent can effectively challenge them in appeal etc. It has been held in Prag Das Umar Vaishal v. Union of India and others, Civil Appeal No. 657 of 1967, decided on August 17, 1967, that recording of reasons and disclosure thereof is not a mere formality. It was further observed that the party affected by the order has a right to approach that Court in an appeal and an effective challenge against that order could be raised only if the party aggrieved was appraised of the reasons in support of the order. This judgment was followed by a learned Single Judge of this Court in Shri H.K. Khanna, Ex. S.A.S. Accountant v. The Union of India, Ministry of Finance, New Delhi, 1971(1) S.L.R. 618. It was observed in the above case that the disciplinary proceedings against a Government servant, whether original or appellate, are quasi-judicial in nature and that the final order has to contain the reasons which have to be communicated to the delinquent officer in order to enable him to effectively challenge those reasons in appeal or in other statutory proceedings available to him. Similar view was taken by another learned Single Judge in Vijey Singh Yadava v. The State of Haryana and others, 1971(1) S.L.R. 720. Applying the above ratio to the present case, it will be seen that it is not a proper order as the punishing authority has not dealt with the objections of the appellant in the order. It is sketchy and cryptic and does not contain the reasons. 5. The second part of the contention of the learned counsel is equally forceful. The order conveyed to the appellant was different than the one passed by the punishing authority. It only said that his services had been terminated and he should deposit all the Government articles issued to him from time to time immediately. It had not even been mentioned in the order that some detailed order had been passed on the file. It was the duty of the quasi-judicial authority to have communicated a reasoned order to the appellant so that he could contest that order effectively before the appellate authority. Same view was taken in H.K. Khanna and Vijey Singh Yadav cases (supra). The order of the punishing authority is also liable to be quashed on this ground. 6. The second contention of the learned counsel for the appellant is that the order has been passed by the punishing authority without any legal evidence. One of the charges against the appellant was that at the time of checking, it was detected that he had charged fares from some of the passengers but had not issued tickets to them. Thus he had embezzled various amounts taken by him from the passengers. It is an admitted case that the passengers who had paid the fare to the appellant & to whom the tickets were not issued, were produced as witnesses before the Enquiry Officer. The Checking Inspector who checked the buses, gave statement to that effect. On the basis of his statement, the Enquiry Officer made an adverse report against the appellant and the punishing authority terminated his services. The contention of the learned counsel for the appellant is that the passengers should have been produced as witnesses so that the appellant could get an opportunity to cross-examine them. The statement of the Inspector that the passengers made statements before him that they had paid the requisite amount for the tickets but the same had not been issued, was not sufficient to hold the appellant guilty of the charge. We find force in this contention of the learned counsel for the appellant. The first question that arises is whether this Court can go into the matter that the services of the appellant were terminated on evidence which was not legal. This matter has been decided by the Supreme Court in Union Of India v. H.C Goel., AIR 1964 SC 364, wherein Gajendragadkar, J., as he then was, while speaking for the Court, observed as follows :- "In dealing with a writ petition filed by public servants who have been dismissed or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. Although the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order, nevertheless the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of crtiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence." The aforesaid observations show that while determining the validity of the order of punishing authority, the Court can go into the matter as to whether the order of punishing authority is based on legal evidence or not. 7. The second question that arises for determination is whether the production of the passengers was necessary in the present case or not. No doubt it is true that the strict rules of evidence are not applicable to the enquiries before the Enquiry Officer, still general principles of evidence are to be followed so that the interests of the delinquent are safeguarded. It is a well-founded principle of law that hearsay evidence is no evidence. It is based on the general principle that no inference can be drawn against the delinquent from the statement of a person to whom he had no opportunity to cross-examine. There are some exceptions to the aforesaid principle. It has been laid down in para 533 of Halsbury's Laws of England, Third Edition, Volume 15 that as a general rule, a statement made by a person not called as a witness is inadmissible to prove the truth of the fact stated. The term `hearsay' in the above connection imports a purpose and not a quality. It is further stated that a statement is hearsay if tendered to prove the truth of the facts asserted, it is sometimes called original evidence if its relevance depends on the fact that it was made, and not on the fact that it was true. The reasons for rejection of such a statement have been given in para 534, which is as follows :- "The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumour. The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine him." The most important exceptions to the above rule have been given in para 535 which is as follows :- "The general rule against hearsay has been related in relation to various classes of statements, of which the most important are (1) admissions and confessions; (2) statements by deceased person; (3) statements in public documents; and (4) statements in documents admissible under the Evidence Act, 1938. ... ... ... ..." The same exceptions have been mentioned by Phipson on Evidence in para 661 (Tenth Edition). The evidence of the Inspector stating that the appellant had taken the fare from the passengers whereas he had not issued tickets to them, does not fall within any of the aforesaid exceptions. His statement is also not admissible under any section of the Evidence Act, 1872. No doubt the provisions of the Evidence Act, 1872 do not apply to the enquiries. The Enquiry Officer has, however, to follow such procedure in recording evidence which does not deny delinquent a fair opportunity of defending himself. In case hearsay evidence is allowed to be brought on the record, the delinquent is likely to be prejudiced. In the aforesaid view we are fortified by the observations of Supreme Court in Jagannath Parsad Sharma v. The State of Uttar Pradesh and others, AIR 1961 SC 1245, wherein it has been observed that even though the Tribunal is not bound by formal rules relating to procedure and evidence, it cannot rely on evidence which is purely hearsay, because to do so in an enquiry of this nature, would be contrary to rules of equity and natural justice. A similar case came up before a learned Single Judge of this Court in Shri Ram Rattan v. The State of Punjab, R.S.A. No. 1152 of 1971, decided on December 22, 1972, in which a similar view was taken. In view of the aforesaid observations, we are of the opinion that there was no legal evidence before the Enquiry Officer regarding the payment of the amount of fare to the appellant. The statement of the Inspector on that question could not be taken into consideration by the Enquiry Officer and punishing authority for reaching the conclusion that the appellant had embezzled the amount. The services of the appellant had been terminated on account of the charge of embezzlement. The order of termination is, therefore, illegal and liable to be quashed. 8. The third contention of the learned counsel for the appellant is that certain documents had been taken into consideration by the Enquiry Officer which had not been produced in evidence. The plea was not taken by him in the plaint. He also did not raise that point before the trial Court. The first appellate Court did not allow him to raise the same for the aforesaid reasons. The view taken by the first appellate Court in our opinion is correct. In the circumstances he cannot be allowed to take the point in this Court. 9. The last contention of the learned counsel for the appellant is that the Traffic Manager had not been authorised to conduct the enquiry by the punishing authority and therefore, the enquiry conducted by him is illegal. The appellant did not take this point either in the trial Court or before the first appellate Court. He cannot be allowed to raise this question for the first time in this Court. 10. For the reasons recorded above, we accept the appeal with costs and grant a decree to the plaintiff to the effect that the order of dismissal is illegal and ineffective and he continued to be in service of the defendant. The plaintiff-appellant shall also be entitled to costs of the Courts below. Man Mohan Singh Gujral, J. - I agree. Appeal accepted.