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: Civil Appeal No. 118 of 1957

Decision Date: 18 September 1957

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

In the matter styled Union of India versus T R Varma, the Supreme Court of India delivered its judgment on 18 September 1957. The petition was instituted by the Union of India against the respondent, T R Varma. The case was heard by a bench comprising Justice Bhuvneshwar P Sinha, Justice J L Kapur and Justice A K Sarkar, with the reporting of the bench attributed to Justice Ai­yyar and Justice T L Venkatarama. The citation for the decision appears in the 1957 volume of the All India Reporter at page 882 and in the 1958 Supreme Court Reporter at page 499. The dispute concerned the dismissal of a government servant and the procedure followed in the enquiry that led to the dismissal. The questions raised involved the applicability of the Indian Evidence Act to the taking of evidence, the observance of rules of natural justice, and the requirement under Article 311(2) of the Constitution of India that a person be given a reasonable opportunity to be heard. The respondent had sought relief by filing a writ petition under Article 226 of the Constitution in the High Court, challenging the dismissal on the ground that the enquiry had not adhered to the mode of taking evidence prescribed by the Indian Evidence Act and consequently had denied him a reasonable opportunity to present his case.

The Court observed that writ petitions under Article 226 should not ordinarily be entertained where an alternative and equally effective remedy is available, emphasizing that it is not the practice of the courts to decide disputed questions in a writ petition that cannot be properly resolved without the taking of evidence, citing Rashid Ahmed v Municipal Board, Kairana (1950) S C R 566 and K S Rashid and Son v Income‑Tax Investigation Commission (1954) S C R 738. The Court further held that the Indian Evidence Act does not apply to enquiries conducted by tribunals; instead, the law requires tribunals to observe the rules of natural justice. These rules demand that a party be permitted 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 allowed to cross‑examine witnesses examined by the opponent, and that no material be relied upon against the party without giving it an opportunity to explain it. The Court concluded that if these principles are satisfied, an enquiry cannot be attacked on the ground that the procedural requirements of the Indian Evidence Act for taking evidence were not strictly followed. Accordingly, the Court followed the reasoning in New Prakash Transport Co. v New Suwarna Transport Co. (1957) S C R 98 and held that the respondent had been afforded a full opportunity to place his evidence before the enquiring officer, despite minor departures from the procedural form prescribed by the Evidence Act. The judgment was rendered as a civil appellate decision in Civil Appeal No 118 of 1957, granted by special leave from the order dated 31 January 1956 of the Punjab High Court’s circuit bench in Civil Writ No 243‑D of 1954.

Counsel for the appellant were listed as the Solicitor‑General of India together with two additional counsel, while counsel for the respondent were identified as three advocates representing the respondent’s interests. The judgment was delivered on 18 September 1957 by Justice Venkataram Aiyar. The matter before the Court was a special leave appeal against an order made by the High Court of Punjab under Article 226 of the Constitution. The High Court order had set aside a dismissal dated 16 September 1954, which had removed the respondent from Government service on the ground that the dismissal was contrary to Article 311(2) of the Constitution. At the relevant times, the respondent occupied the post of Assistant Controller in the Commerce Department of the Union Government.

According to the factual material recorded, in the middle of March 1953 a person named Shri Bhan, who was a representative of a Calcutta firm identified as Messrs Gattulal Chhaganlal Joshi, travelled to Delhi with the purpose of obtaining removal of his firm’s name from a blacklist. In pursuit of that purpose, Shri Bhan approached officials in the Department. Information concerning Shri Bhan’s conduct was conveyed to Sri Tawakley, who served as an assistant in the Ministry of Commerce and Industry within the Complaints Branch. The information indicated that Shri Bhan was offering to pay a bribe in order to secure an order in his favour. Sri Tawakley immediately reported this matter to the Special Police Establishment, and the police resolved to lay a trap for the alleged bribery.

It was further reported that Shri Bhan was prepared to pay any bribe only after an order favourable to him had been issued and communicated, but he suggested that the respondent could act as surety for the payment. Consequently, the police decided to set a trap for the respondent as well. They arranged, through Sri Tawakley, a meeting by appointment between Sri Tawakley, Shri Bhan and the respondent at the Kwality Restaurant on the evening of 24 March 1953. The meeting proceeded as scheduled and three members of the Special Police Establishment were present at the restaurant in disguise. During the meeting, a discussion took place among Sri Tawakley, Shri Bhan and the respondent. The appellant asserted that, during that discussion, the respondent gave an assurance to Sri Tawakley that the amount would be paid by Shri Bhan.

When the conversation concluded and the respondent was about to leave, the Superintendent of Police revealed his identity, obtained the respondent’s identity card and initialed it, and Shri Bhan also placed his initials on the card. Four days later, on 28 March 1953, the respondent received a notice issued by the Secretary to the Ministry of Commerce and Industry. The notice charged the respondent 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 notice was supported by detailed allegations that referred to meetings between the respondent and Sri Tawakley on 17 March 1953 and on 21 March 1953, a telephonic conversation later on the same day concerning the same matter, and the meeting that had taken place at the Kwality Restaurant on 24 March 1953.

In this case, the respondent was summoned to explain the charges that had been brought against him and was asked to indicate whether he intended to rely on oral testimony or documentary evidence in his defence. The enquiry was assigned to Mr J Byrne, who held the position of Joint Chief Controller of Imports and Exports. On 10 April 1953 the respondent filed a detailed written explanation in which he denied ever meeting Sri Tawakley on either 17 March or 21 March, and he also denied any telephone conversation with Sri Tawakley on those dates. He asserted that the discussion he had at the Kwality Restaurant on 24 March concerned only an insurance policy of his own and had nothing to do with any alleged bribe that Sri Bhan might have proposed to offer. In the same submission he requested that the enquiry be conducted orally and he expressed a wish to examine Sri Bhan, Sri Fateh Singh and Sri Jai Narayan as witnesses who could support his version of events. Subsequently, on 17 April 1953 Mr Byrne issued a notice informing the respondent that an oral enquiry would be held. Accordingly, witnesses were examined beginning on 20 April 1953 and on the days that followed, and the hearing was finally concluded on 27 April 1953. On 28 July 1953 Mr Byrne submitted his report, in which he concluded that the charges against the respondent had been clearly established. Following that finding, a communication dated 29 August 1953 was sent to the respondent stating that a provisional decision had been taken to dismiss him and that he was required to show cause against the proposed dismissal. The notice was accompanied by a full copy of Mr Byrne’s report, although his recommendations were omitted. On 11 September 1953 the respondent replied with a further explanation in which he again addressed at length the evidence that had been produced, argued that the finding of guilt was improper and maintained that no punitive action should be taken against him. He also complained that the enquiry had been vitiated because he had not been allowed to cross‑examine the witnesses who had testified against him. The documents were then forwarded to the Union Public Service Commission in accordance with Article 320, and the Commission issued its report on 6 September 1954. The Commission held that the charges were proved, rejected the respondent’s allegation that he had been denied the opportunity to cross‑examine the witnesses, and recommended his dismissal. Accepting the findings of the enquiring officer and the Commission’s recommendation, the President issued an order on 16 September 1954 dismissing the respondent from Government service. The respondent subsequently filed an application in the High Court of Punjab seeking a writ to quash the dismissal order dated 16 September 1954 on the ground that the enquiry had not been properly conducted. Seven grounds were raised in the petition; the learned judges found that three of those grounds were established and therefore held that the respondent had been...

In this case, the Court observed that the respondent was not permitted to cross‑examine any of the witnesses who had testified in support of the charge against him, nor was he allowed to make his own statement; instead, the Enquiring Officer alone conducted the cross‑examination of the witnesses. Similarly, the witnesses presented by the respondent were only cross‑examined by the Officer, and the respondent himself was not given the chance to examine them. The Court held that these procedural shortcomings amounted to a denial of a reasonable opportunity for the respondent to show cause against his dismissal, and therefore the dismissal order dated 16 September 1954 was invalid because it contravened Article 311(2). Consequently, the High Court set aside the dismissal order and directed that the respondent be reinstated. The Solicitor‑General challenged this judgment on two grounds. First, he contended that the finding that the respondent had been denied a reasonable opportunity was not supported by the evidence on record. Second, he argued that even if a defect existed in the enquiry, such a defect could be remedied after the show‑cause notice, and since the respondent had never requested an opportunity to cross‑examine the witnesses, he could not rely on Article 311(2) to declare the dismissal order invalid. The Court began by noting that a petition under Article 226 is not the proper forum for adjudicating disputes of this nature. When a person’s services are wrongfully terminated, the appropriate remedy is an action at law, in which the court may grant all reliefs to which the plaintiff is entitled, including those not available in a writ petition. Established jurisprudence dictates that where an alternative and equally effective remedy is available, the litigant must pursue that remedy rather than invoke the High Court’s special jurisdiction to issue a prerogative writ. Although the existence of another remedy does not strip the court of jurisdiction, it is a relevant consideration in deciding whether to grant a writ, as noted in Raghid Ahmed v. Municipal Board, Kairana, and in K. S. Rashid’s decision. Where such a remedy exists, the court should exercise discretion to refuse interference in a writ petition unless there are compelling reasons, which the Court found lacking in the present matter. The central issue for determination was whether the respondent had been denied a reasonable opportunity to present his case, primarily whether he was barred from cross‑examining the witnesses. Because this question involved a serious dispute of fact that could not be resolved without taking evidence, the Court remarked that it is not the practice of courts to decide such matters in a writ petition. It would have been appropriate to refer the respondent to an action at law, and the Court would have exercised that discretion had the dismissal order not become time‑barred. Since the High Court had already examined the merits, the Court decided to dispose of the appeal on the merits rather than refer the matter to a separate suit.

It was observed that the issue of whether the respondent had been denied a reasonable opportunity to present his case could not be decided satisfactorily without taking evidence. Courts do not ordinarily resolve questions of that nature in a writ petition, and it would have been a proper exercise of discretion in the present case for the learned Judges to have referred the respondent to a suit. The Court acknowledges that, had it been proceeding as an appeal, it could have adopted that approach and issued the order that the learned Judges ought to have issued. However, the Court felt constrained by the fact that the order dismissing the respondent had been made on 16 September 1954, and that an 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 dispose of the appeal by considering the merits directly.

The respondent primarily contested the order of 16 September 1954 on the ground that, during the enquiry conducted by Mr. Byrne, he had not been permitted to cross‑examine the witnesses who had testified against him, and that the findings of that enquiry could therefore not be accepted. The Court therefore examined whether that allegation was proved. In paragraph 7 of the respondent’s petition, it was stated: “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 Mr. Byrne, who filed a counter‑affidavit in which he asserted: “(4) That it is incorrect that no opportunity was given to the petitioner at the time of the oral enquiry (1) [1954] S.C.R. 738, 747 to cross‑examine the witnesses who had deposed against the petitioner. (5) That all witnesses were examined in petitioner’s presence and he was asked by me at the end of each examination whether he had any questions to put. (6) That the petitioner only put questions to one witness Shri P. Govindan Nair, and to others he did not.” When this affidavit was produced, Mr. Byrne was examined in Court and he reiterated the statements in the affidavit, adding that he “has distinct recollection that I asked Shri T. R. Varma to put questions in cross‑examination to witnesses.” During further examination, it emerged that Mr. Byrne had made no note of having asked Shri T. R. Varma to put questions in cross‑examination, which he explained might have been a slip on his part. Consequently, the Court was faced with two mutually exclusive statements – one from the respondent and one from Mr. Byrne. In situations where there is a dispute as to what transpired before a court or tribunal, the statement of the presiding officer is normally regarded as correct. There was therefore no reason to reject Mr. Byrne’s statement as true. He was, after all, an officer holding a high position, and no suggestion of motive to give false evidence was made against him.

The Court observed that there was no suggestion of any motive for Mr. Byrne to give false evidence and that several aspects of the record clearly indicated that Mr. Byrne’s statement was correct. The examination of witnesses had commenced on 20 April 1953, when four witnesses, including Sri C. B. Tawakley, were examined. The respondent claimed that he had asked for permission to cross‑examine the witnesses and that such permission had been refused. The Court found it surprising that, if his request had indeed been denied, the respondent did not place his complaint in writing on the later dates when the inquiry continued. Moreover, the respondent actually put a question to one of the witnesses, Sri P. Govindan Nair, during cross‑examination, which makes it difficult to reconcile his assertion that permission had been refused for the earlier witnesses. A reading of the witnesses’ depositions showed that the Enquiring Officer himself had asked probing questions and had drawn out all relevant facts. No specific matter was identified that could have been the subject of cross‑examination but was omitted. The Court therefore considered it likely that the respondent did not cross‑examine the witnesses because there was nothing left for him to address. The learned Judges had offered two reasons for preferring the respondent’s statement over that of Mr. Byrne. First, they noted that the depositions did not contain a record stating that no cross‑examination had taken place; the Court explained that this merely indicated that cross‑examination had not occurred, not that the respondent’s request had been denied. Second, the Judges observed that the respondent had been present at the hearing of the writ petition, that questions had been put to him, and that they formed the opinion that he was sufficiently intelligent, making it hard to believe he would have refused to cross‑examine the witnesses. The Court held that such a consideration should not have been taken into account in a judicial determination and ought to have been entirely excluded. After reviewing the record and the probabilities, the Court accepted Mr. Byrne’s statement as true, concluding that the respondent was not refused permission to cross‑examine the witnesses and that the allegation of a defective enquiry on that ground could not be sustained. The respondent also challenged the enquiry on two additional grounds set out in his petition: (C) that the petitioner had been cross‑examined and was not permitted to make an oral statement on his own behalf; and (D) that the defence witnesses were not given an opportunity to present their own version or to be examined by the petitioner because their depositions were confined to answers to questions posed by the Inquiry Officer. In essence, the respondent argued that he and his witnesses should have been allowed to give their evidence by way of examination‑in‑chief before the officer conducted any cross‑examination.

The respondent asserted that the correct procedure demanded that each witness first be examined‑in‑chief and that only thereafter should the officer have undertaken cross‑examination, yet the officer had, according to the respondent, begun cross‑examining the witnesses from the outset, thereby breaching well‑recognised rules of procedure. He further complained that he was not permitted to put any questions to the witnesses. It is undisputed that the evidence of the respondent and his witnesses was not taken in the manner prescribed by the Evidence Act; however, that Act does not apply to inquiries conducted by tribunals, even when those tribunals possess a judicial character. The law requires such tribunals to observe the rules of natural justice in conducting the inquiry, and where they do so, their decisions cannot be challenged on the ground that the procedure deviated from that which governs a court of law. In broad terms, without intending to be exhaustive, the rules of natural justice mandate that a party must be allowed to adduce all relevant evidence on which he relies, that the opponent’s evidence must be taken in his presence, that he must be given the opportunity to cross‑examine the opponent’s witnesses, and that no material may be relied upon against him without giving him a chance to explain it. When these requirements are satisfied, an inquiry is not open to attack for failing to follow the Evidence Act’s evidentiary procedures. In this regard, the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co. (1) discusses the issue. After examining the record in light of the foregoing principles, the Court found no breach of natural‑justice rules. The witnesses were examined at great length and addressed all relevant facts pertinent to the matter, and no additional matters remained unspoken. The Court rejected the respondent’s version that he was denied the opportunity to question the witnesses. Indeed, the record shows that the only question the respondent wished the witness Sri Jai Narayan to answer, as noted on page 188 of the Paper Book, was put to the witness by Mr Byrne. Moreover, the testimony of Sri Bhan and Sri Fateh Singh was wholly supportive of the respondent. The findings of Mr Byrne are based entirely on an appreciation of oral evidence taken in the presence of the respondent. It is also noteworthy that the respondent did not raise these complaints in his explanation dated 11 September 1953; consequently, the Court is satisfied that the allegations are wholly without merit and appear to be an afterthought. Accordingly, the Court holds, differing from the learned judges of the lower court, that the inquiry before Mr Byrne was not defective, that the respondent had the full opportunity to present his evidence, and that he duly availed himself of that opportunity. (1) [1957] S.C.R. 98.

The Court observed that the inquiry conducted before Mr. Byrne was not defective in any manner. It held that the respondent had been afforded a complete opportunity to place all of his evidence before Mr. Byrne, and that the respondent indeed took advantage of that opportunity by presenting his evidence as permitted. Because the Court found the inquiry to be proper and the respondent to have fully participated, it considered it unnecessary to express any opinion on the second question which had been raised by the learned Solicitor‑General. In view of these conclusions, the Court decided to allow the appeal. Accordingly, it set aside the order made by the Court below and dismissed the writ application that had been filed. The Court further declared that there would be no order as to costs in this matter, and it formally recorded that the appeal was allowed.