Union Of India vs T.R. Varma

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 18 September, 1957

Coram: B.P. Sinha, J.L. Kapur, A.K. Sarkar, Venkatarama Aiyar

Union of India versus T.R. Varma was decided on 18 September 1957 by the Supreme Court of India. The judgment was authored by Justice Venkatarama Aiyar and the bench comprised Justices B.P. Sinha, J.L. Kapur and A.K. Sarkar. The case arose as an appeal by special leave against an order of the High Court of Punjab. The High Court had disposed of an application filed under Article 226 of the Constitution, setting aside a dismissal order dated 16 September 1954 that removed the respondent from the service of the Union Government on the ground that the dismissal violated Article 311(2) of the Constitution. At the material time the respondent held the post of Assistant Controller in the Commerce Department of the Union Government. In mid‑March 1953 a man identified as Shri Bhan, representing a Calcutta firm called Messrs. Gattulal Chhaganlal Joshi, travelled to Delhi seeking to have his firm’s name removed from a government blacklist. To obtain this relief he began contacting officers of the Commerce Department. Information reached Sri Tawakley, an assistant in the Ministry of Commerce and Industry’s Complaints Branch, that Shri Bhan was prepared to offer a bribe in exchange for a favorable order. Sri Tawakley promptly reported the matter to the Special Police Establishment, which decided to lay a trap for the alleged bribery. Shri Bhan expressed willingness to pay the bribe only after a favorable order had been issued and communicated, and he suggested that the respondent stand as surety for his payment. Accordingly, the police arranged for a meeting on the evening of 24 March 1953 at the Kwality Restaurant, where Sri Tawakley was to meet both Shri Bhan and the respondent. The meeting was conducted as planned and three officers of the Special Police Establishment attended the restaurant in disguise. During the discussion that followed, the appellant alleged that the respondent assured Sri Tawakley that the amount would be paid by Shri Bhan. When the conversation concluded and the respondent prepared to leave, the Superintendent of Police present at the scene revealed his identity, obtained the respondent’s identity card, initialed it, and also obtained Shri Bhan’s initials on the card. On 28 March 1953 the respondent received a notice issued by the Secretary of the Ministry of Commerce and Industry. The notice charged him with aiding and abetting Shri Bhan in offering illegal gratification to Sri Tawakley and with attempting to induce Sri Tawakley to accept such gratification. The charge sheet detailed alleged meetings between the respondent and Sri Tawakley on 17 March 1953 and on 21 March 1953, a telephonic conversation on the same day, and the meeting that took place at the Kwality Restaurant.

The respondent was summoned to give his explanation to the charges and was asked to indicate whether he wished to lead oral or documentary evidence in his defence. The enquiry was delegated to Mr J Byrne, Joint Chief Controller of Imports and Exports. On 10 April 1953 the respondent submitted a detailed explanation in which he denied having met Sri Tawakley on either 17 March or 21 March, and denied any telephonic conversation with him on that day. He asserted that the conversation he had in the Kwality Restaurant on 24 March concerned an insurance policy of his own and bore no relation to any bribe purportedly offered by Sri Bhan. The respondent also requested that the enquiry be conducted orally and asked that Sri Bhan, Sri Fateh Singh and Sri Jai Narayan be examined as witnesses to support his version. On 17 April 1953 Mr Byrne issued a notice that an oral enquiry would be held, and accordingly witnesses were examined on 20 April 1953 and on the following days, with the hearing concluding on 27 April 1953. On 28 July 1953 Mr Byrne submitted his report, finding that the charges against the respondent had been clearly established. A provisional decision to dismiss the respondent was communicated to him on 29 August 1953 together with a show‑cause notice; the notice was accompanied by the whole of Mr Byrne’s report, omitting his recommendations. The respondent answered on 11 September 1953, reiterating at length the evidence that had been adduced, contending that the finding of guilt was improper and that no action should be taken against him. He also complained that the enquiry was vitiated because he had not been permitted to cross‑examine the witnesses who gave evidence against him. The papers were then submitted to the Union Public Service Commission under Article 320, and the Commission issued its report on 6 September 1954, concluding that the charges were made out, that the respondent’s complaint about being denied cross‑examination had no substance, and that dismissal was appropriate. Accepting the findings of the Enquiring Officer and the Commission’s recommendation, the President ordered on 16 September 1954 that the respondent be dismissed from Government service. The respondent then filed an application in the High Court of Punjab seeking a writ to quash the dismissal order of 16 September 1954 on the ground that the enquiry had not been proper. He raised seven grounds in support of the petition; the learned judges found that three of those grounds were established and held that the respondent had

The Court noted that the respondent had been denied any opportunity to cross‑examine the witnesses who gave evidence supporting the charge against him. Further, the Court observed that the respondent was not permitted to make his own statement; instead, he was only cross‑examined by the Enquiring Officer. In the same manner, the witnesses presented by the respondent were themselves cross‑examined by the Officer, and the respondent was not allowed to examine those witnesses himself. The Court held that these procedural defects amounted to a denial of a reasonable opportunity for the respondent to show cause against his dismissal, and consequently the order dated September 16, 1954, which resulted from that enquiry, was invalid because it contravened Article 311(2). On that basis, the Court set aside the dismissal order and directed that the respondent be reinstated in his former position. The Solicitor‑General challenged the correctness of that order on two separate grounds. First, he contended that the finding that the respondent had not been afforded a reasonable opportunity during the enquiry was not supported by the evidence on record. Second, he argued that even if a defect existed in the enquiry, such a defect could have been remedied after the show‑cause notice, and since the respondent had never asked for an opportunity to cross‑examine the witnesses, he could not be permitted to claim that the September 16, 1954, order violated Article 311(2). The Court then observed that a writ petition under Article 226 is not the appropriate procedure for resolving disputes of this nature. Under the law, a person whose services have been wrongfully terminated is entitled to bring an action to vindicate his rights, and in such an action the Court may grant all reliefs to which he may be entitled, including reliefs that would not be available in a writ petition. It is well‑settled that when an alternative and equally effective remedy is available to a litigant, he should be required to pursue that remedy rather than invoke the special jurisdiction of the High Court to issue a prerogative writ. While the existence of another remedy does not per se deprive the Court of jurisdiction to grant a writ, the Court has observed, as in Rashid Ahmed v. Municipal Board, Kairana [[1950] S.C.R. 566], that “the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs”. This principle was reaffirmed in K.S. Rashid and Son v. The Income‑tax Investigation Commission [[1954] S.C.R. 739, 747]. Where such an alternative remedy exists, it is a sound exercise of discretion to refuse interference in a petition under Article 226 unless there are compelling reasons to do otherwise, and none were found in the present case. The pivotal issue for determination in the petition was whether the respondent had been denied a reasonable opportunity to present his case, which primarily depended on whether he had been prevented from cross‑examining the witnesses who supported the charge. The Court recognized that this issue was seriously disputed and could not be properly resolved without examining the evidence.

In this case the Court observed that it is not customary for a court to resolve factual disputes of the kind raised in a writ petition, and that a proper exercise of discretion would have been to direct the respondent to pursue his claims through a suit. The Court noted that, had it been acting as the learned Judges of the High Court, it would have adopted that approach and would have issued an order consistent with such discretion. However, the Court felt constrained by the fact that the order dismissing the respondent had been rendered on 16 September 1954, and that any action to set aside that order would now be barred by limitation. Since the High Court had already examined the matter on its merits, the Court decided to resolve the appeal on the basis of those merits. The principal ground on which the respondent challenged the 16 September 1954 order was his allegation that, during the inquiry conducted by Mr Byrne, he had not been afforded an opportunity to cross‑examine the witnesses who testified against him, and consequently that the findings of that inquiry could not be accepted. The respondent articulated this claim in paragraph 7 of his petition, stating that, “Despite repeated verbal requests of the petitioner, the Inquiry Officer did not permit him to cross‑examine any witness, who deposed against him.” This allegation was directly contradicted by a counter‑affidavit filed by Mr Byrne, in which he asserted that it was incorrect to say that no opportunity for cross‑examination had been given. In that affidavit Mr Byrne specified that all witnesses had been examined in the petitioner’s presence, that he had asked the petitioner after each examination whether he had any questions, and that the petitioner had only put questions to one witness, Shri P Govindan Nair, while he had not done so for the others. When Mr Byrne was subsequently examined in Court, he reiterated the statements made in his affidavit and added that he distinctly recalled asking Shri T R Varma to put questions in cross‑examination of the witnesses. During further examination it emerged that Mr Byrne had not recorded any note that he had asked Shri Varma to do so, and that this omission might have been a slip on his part. Consequently the Court was faced with two conflicting statements—one from the respondent and one from the Presiding Officer, Mr Byrne. The Court recognized that, where there is a dispute as to what occurred before a tribunal, the testimony of the presiding officer is generally taken as the reliable version, and there was no indication that Mr Byrne, an officer of high rank, had any motive to give false evidence. Therefore, the Court concluded that Mr Byrne’s statement should be accepted as the correct account of the proceedings.

In the record there are clear indications that the statement made by Mr. Byrne is the accurate one. The examination of witnesses commenced on 20 April 1953, and on that day four persons were examined, one of them being Sri G.B. Tawakley. The respondent contends that he sought permission to cross‑examine the witnesses and that such permission was denied. If that were true, it would be unexpected that he did not lodge a written complaint on any of the later dates when the enquiry proceeded. Moreover, the record shows that he actually put a question in cross‑examination to one witness, Sri P. Govindan Nair, which makes it difficult to reconcile his claim that permission to cross‑examine previous witnesses had been refused. A review of the witnesses’ depositions reveals that the Enquiring Officer himself asked probing questions and obtained all material facts. No suggestion is made that there existed any particular issue that ought to have been cross‑examined but was omitted. It appears more plausible that the respondent did not cross‑examine because there was nothing further for him to challenge. The learned Judges earlier had offered two reasons for preferring the respondent’s version over that of Mr. Byrne. First, they noted that the depositions did not contain a record stating that cross‑examination had taken place, and they inferred from this that, in fact, no cross‑examination occurred—a factual finding that does not imply that the respondent’s request for cross‑examination had been rejected. Second, the learned Judges observed that the respondent was present at the hearing of the writ petition, that questions were addressed to him, and that they formed the impression that he was sufficiently competent, making it hard to believe that he would refrain from cross‑examining the witnesses. The Court is of the view that such consideration of the respondent’s perceived ability should not have been weighed in the judicial determination of the matter and ought to have been entirely excluded. After weighing the record and the probabilities, the Court accepts Mr. Byrne’s statement as true, concludes that the respondent was not denied permission to cross‑examine, and holds that the allegation of a defect in the enquiry on that ground cannot be sustained.

12. The respondent raised two further objections to the enquiry in his petition, stating: “(C) That the petitioner was cross‑examined and was not enabled to make an oral statement on his own behalf; (D) That the defence witnesses were not given an opportunity to tell their own version or to be examined by the petitioner as their depositions were confined to answers in reply to questions put by the Inquiry Officer.” 13. In essence, the grievance is that the respondent and his witnesses should have been permitted to present their evidence through an examination‑in‑chief, after which the officer could have cross‑examined them. Instead, the officer is alleged to have undertaken cross‑examination from the outset, thereby allegedly breaching established procedural norms.

The Court observed that the inquiry officer had begun cross‑examination of the witnesses from the outset, which the respondent alleged violated well‑recognised rules of procedure, and the respondent further complained that he was not allowed to put questions to the witnesses. The Court noted that, although it was undisputed that the evidence of the respondent and his witnesses was not taken in the manner prescribed by the Evidence Act, that statute did not apply to inquiries conducted by tribunals, even when those tribunals possessed a judicial character. The applicable law required such tribunals to observe the rules of natural justice in conducting the inquiry, and, provided they complied with those rules, their decisions could not be set aside merely because the procedure did not follow the evidential formalities required in a court of law. In broad terms, without intending to be exhaustive, the Court explained that the rules of natural justice demand that a party be given an opportunity to adduce all relevant evidence on which it relies, that the opponent’s evidence be taken in the party’s presence, that the party be permitted to cross‑examine the opponent’s witnesses, and that no material be relied upon against the party without allowing him a chance to explain it. If these requirements are satisfied, the inquiry is not open to attack on the ground that the Evidence Act’s procedural regime for taking evidence was not strictly observed, as discussed in the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co. [1957] S.C.R. 98. Applying these principles, the Court examined the record and found no breach of natural‑justice principles. The witnesses had been examined at great length and had testified on all material facts relevant to the matter, and there was no indication of any additional matters on which they could have spoken. The Court rejected the respondent’s claim that he was denied any opportunity to question the witnesses. On the contrary, the evidence of Sri Jai Narayan, recorded on page 188 of the Paper Book, showed that the sole question the respondent wanted the witness to answer was put to him by Mr. Byrne. Moreover, the testimony of Sri Bhan and Sri Fateh Singh was wholly supportive of the respondent’s case. Mr. Byrne’s findings were based entirely on his appreciation of the oral evidence taken in the respondent’s presence. The Court also noted that the respondent had not raised these complaints in his explanation dated 11 September 1953, and therefore considered the allegations to be without merit and an afterthought. Consequently, the Court held, differing from the learned judges of the lower court, that the inquiry before Mr. Byrne was not defective, that the respondent had been afforded a full opportunity to present his evidence, and that he had been allowed to exercise the rights accorded by natural justice.

The Court observed that the respondent had indeed taken full advantage of the opportunity that had been afforded to him to present his evidence before the commissioner. Because the respondent had availed himself of this procedural liberty, the Court found it unnecessary to venture an opinion on the additional matter that had been raised by the learned Solicitor‑General. That additional matter, identified in the record as the second question, therefore required no further judicial consideration, since the primary issue concerning the respondent’s right to put forward his case had already been resolved in his favour.

Accordingly, the Court concluded that the appeal must be allowed. In doing so, it set aside the order that had been issued by the lower Court and it dismissed the writ application that had been filed. The judgment further stipulated that no order as to costs would be made against either party. The final determination was that the appeal was allowed, thereby overturning the earlier decision and restoring the position sought by the appellant.