State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan

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

Court: Supreme Court of India

Case Number: A.I.R. 1961 S.C. 1923

Decision Date: 1 November 1960

Coram: P B Gajendragadkar, A K Sarkar, K N Wanchoo, J R Mudholkar

The appeal, granted by special leave, contested the order of the High Court of Judicature at Nagpur that had annulled the dismissal order dated 14 June 1952 issued by the State of Madhya Pradesh against the respondent. The respondent, Chintaman Sadashiva Waishampayan, had been appointed Sub‑Inspector of Police by the Inspector General of Police, Central Provinces and Berar, on 1 January 1943, and his appointment was confirmed in January 1945. In September 1948 he was sent on deputation to Hyderabad State, where he served as Sub‑Inspector of Police at the stations of Adilabad, Nirmal, Bhainsa and Nanded, remaining at Adilabad from September 1948 until June 1950. On 13 May 1951 he received a suspension order dated 3 May 1951, issued by the Deputy Inspector General of Police, Eastern Range, Hyderabad Division, on the ground that complaints had been lodged against him and that a departmental enquiry was to be held. Consequently, on 21 May 1951 a chargesheet containing eight accusations was framed against him, and the chargesheet was served to the respondent on 13 June 1951. The enquiry that followed involved the examination of six witnesses before Mr. Shamaldas, Sub‑Divisional Officer (Police). On 7 November 1951 the District Superintendent of Police, acting on the orders of the Inspector General of Police, took over the enquiry and framed fresh charges because he considered the earlier charges to be unclear. He framed five new charges, but subsequently dropped charges four and five, limiting the enquiry to three charges. During this second enquiry the witnesses were examined and cross‑examined by the respondent. On 9 November 1951 the respondent filed an application requesting that certain documents be supplied to him so that he could prepare his defence; the application was partially granted, with some documents withheld. After the prosecution evidence was presented, the respondent was directed to produce his own witnesses on 13 November 1951 and was warned that failure to do so would result in the closure of the enquiry. On 11 November 1951 he submitted another application to the Deputy Inspector General of Police, reiterating his request for the documents he wished to inspect before presenting his defence and statement, but this application was rejected. On 28 November 1951 the District Superintendent of Police submitted his report, finding the respondent guilty of the three charges and recommending dismissal from service. The Deputy Inspector General of Police endorsed this report and also recommended dismissal. The Hyderabad Inspector General of Police forwarded the recommendation to the Inspector General of Police, Madhya Pradesh. On 8 January 1952 the Inspector General of Police, Madhya Pradesh, issued a notice to the respondent asking him to show cause why he should not be dismissed. The respondent replied on 10 February 1952, after which the Inspector General of Police passed the dismissal order on 14 June 1952, which the respondent received on 17 June 1952. The respondent appealed against the dismissal order, but the appellate authority dismissed his plea. Consequently, the respondent instituted a petition in the High Court under Article 226 of the Constitution, challenging the validity of the dismissal order on several grounds.

The District Superintendent’s report concluded that the respondent was guilty of all three charges in the chargesheet and recommended his dismissal from service. Upon receiving that report, the Deputy Inspector General of Police endorsed it and likewise supported the recommendation for dismissal. The Inspector General of Police of Hyderabad subsequently forwarded the entire file to the Inspector General of Police of Madhya Pradesh. On 8 January 1952, the Inspector General of Police of Madhya Pradesh issued a notice to the respondent requiring him to show cause why he should not be dismissed. The respondent complied by filing his reply on 10 February 1952. After considering the matter, the Inspector General of Police passed an order on 14 June 1952 dismissing the respondent from service, and the respondent received that dismissal order on 17 June 1952. The respondent then filed an appeal against the dismissal order; however, the appeal was dismissed. In the circumstances, the respondent instituted a petition in the High Court under Article 226 of the Constitution, challenging the validity of the dismissal order on several grounds. The appellant opposed the petition, but the Special Bench of the High Court, by a majority decision, upheld the respondent’s pleas and set aside the impugned dismissal order. The appellant subsequently applied for a certificate, which the High Court rejected. Consequently, the appellant approached this Court, obtained special leave, and thus this appeal has arisen before this Court at the appellant’s instance.

Broadly, the respondent challenged the dismissal order on three distinct grounds. First, he contended that the order was invalid because it was predicated on an enquiry conducted by police officers of Hyderabad State, who were not subordinate to the Inspector General of Police of Madhya Pradesh; he asserted that a proper enquiry under the Police Act and the Police Regulations of Madhya Pradesh should have been held after the show‑cause notice, and the absence of such an enquiry rendered the entire proceeding void and the order ultra vires. Second, he argued that the order contravened Regulation No 273 of the Police Regulations of Madhya Pradesh, and that this breach invalidated the order. Third, he maintained that the enquiry carried out by the Hyderabad authorities violated the principles of natural justice, because he was not given a reasonable opportunity to meet the charges framed against him. The respondent also relied on the earlier decision of the Division Bench of the High Court in Jageram Malik v. State (ILR 1955 Nag 93), which held that a police officer deputed to Hyderabad was governed by the Police Act, the Police Regulations and the General Book Circulars applicable in Nagpur, and that an enquiry must be conducted by an officer exercising jurisdiction under those provisions. That decision further observed that the proper procedure would be to re‑transfer the officer to Madhya Pradesh and then conduct the enquiry in accordance with the Madhya Pradesh Police Act and Regulations, a reasoning the respondent invoked to challenge the validity of the impugned dismissal order.

In this case, the Court observed that an enquiry against a police officer who had been deputed to Hyderabad must be conducted by an officer who exercised jurisdiction under the applicable Police Act and the Police Regulations. The Court explained that, according to the earlier decision, the correct procedure was to first re‑transfer the officer to Madhya Pradesh and then to hold the enquiry in accordance with the Madhya Pradesh Police Act and Regulations. The Court referred to the judgment in Jageram Malik, where it was held that an enquiry conducted by an officer exercising jurisdiction in Hyderabad State could not serve as a basis for any action by the Inspector General of Police of Madhya Pradesh, and consequently the dismissal order that relied on such an enquiry was set aside. Relying on that precedent, the respondent challenged the validity of the impugned order passed against him. The Court noted that the judges of the Special Bench were divided on several points. Justice Sen, who had been a party to the Jageram Malik decision, was inclined to uphold the respondent’s contention, whereas Justice Rao rejected that contention and Justice Bhutt appeared to agree with Justice Rao. A similar split existed on whether a breach of the Police Rules and Regulations was justiciable; Justice Sen and Justice Bhutt were prepared to uphold the respondent’s plea, while Justice Rao dismissed it. The judges were also divided on whether the enquiry held by the appellant in Hyderabad suffered the infirmities alleged by the respondent. Justice Sen and Justice Bhutt held that the enquiry was contrary to the principles of natural justice, whereas Justice Rao took the opposite view. The appellant then argued that the earlier High Court decision should be reconsidered, pointing out that the Union Police Force Regulation 1358F (No. 25 of 1358F), promulgated by the Military Governor, had not been brought to the Court’s attention in the earlier case. The appellant contended that the Firman issued by the Nizam on 7 August 1949 conferred proper powers on the Military Governor, enabling the Governor to issue the Police Force Regulation. The Court reproduced the relevant provisions of that Regulation, which state that from the date a member of the Indian Union Police Force assumes duty in Hyderabad State, he shall be deemed to be enrolled under the Hyderabad District Police Act and shall enjoy the powers and duties attached to his rank under that Act; and that if such a member was already subject to any other Act before assuming duty in Hyderabad State, he shall continue to be subject to that Act as if it had been extended mutatis mutandis to the Hyderabad State.

The Court noted that clause 4 of the Hyderabad State Regulation provided that any question of law arising under the Regulation must be referred to the Military Governor, whose opinion would be final and conclusive. The Court then referred to the earlier judgment in the Jageram Malik case, observing that no statutory provision had been placed before the Court that authorised the loan of a Madhya Pradesh Police Officer to a Part B State, nor any provision that would permit an authority in a Part B State to conduct an enquiry against such an officer. Consequently, the learned judges had held that, despite the officer’s temporary assignment of service to Hyderabad State, he remained a member of the Madhya Pradesh Police establishment. For the appellant, counsel argued that, had the relevant provisions of the Police Regulation been cited to the Court at the appropriate stage, the Court might have reached a different conclusion. Counsel further submitted that the Nizam’s authority to issue the Firman could not be questioned, and that the Firman, by conferring appropriate powers on the Military Governor, rendered the Governor competent to promulgate the Police Force Regulation relied upon by the appellant; therefore, according to the Regulation, there would be no defect in the enquiry conducted against the respondent. The Court stated that it was unnecessary to decide this point in the present appeal because, as will be explained, it was satisfied that Judges Sen and Bhutt were correct in holding that the enquiry against the respondent failed to satisfy the requirements of natural justice. In light of that finding, the Court also deemed it unnecessary to address the other legal question on which the learned judges had differed – namely, whether a breach of the Police Rules and Regulations was justiciable and, if such a breach were proved, whether it would render the order of dismissal invalid. The Court then turned to the appellant’s contention that the High Court erred in holding that the enquiry suffered a serious infirmity because it effectively denied the respondent a reasonable opportunity to meet the charge framed against him under Article 311(2) of the Constitution. To resolve this issue, the Court examined the material facts of the enquiry. It recalled that initially eight charges had been framed against the respondent and that some witnesses had been examined at the first stage of the enquiry; however, that enquiry was later discontinued and the chargesheet was amended. The second chargesheet contained five charges, of which three were found to be substantiated at the second enquiry. The three substantive charges were: (1) that in October 1948 the respondent accepted a bribe of Rs 5000 from Nooruddin for securing the release of Gulam Ali from arrest; (2) at about the same time he accepted Rs 5000 from Noor Mohd for releasing Noor Mohd’s brother, Ali Bhai; and (3) at the same time he

In the second inquiry it was established that the respondent had taken a sum of Rs 5000 from Noor Bhai in order to secure the release of his father, Kasim Bhai. This allegation, together with two similar allegations that the respondent had taken Rs 5000 from Nooruddin to release Gulam Ali and from Noor Mohd. to release his brother Ali Bhai, demonstrated a pattern in which the respondent was accused of demanding a bribe of Rs 5000 in each of three separate instances for the release of persons arrested as Razakars. After the inquiry was re‑opened, the respondent wrote to the enquiry officer on 9 November 1951 requesting that certain documents be produced to him. He specified five categories of documents, the most important of which were the “file of Razakars” containing the District Superintendent of Police’s recommendations to the Civil Administrator of Adilabad for the release of detained Razakars and the corresponding orders of the Civil Administrator, a copy of the application on which a preliminary inquiry had been based, and the statements of Rajab Ali and Noor Bhai that had been recorded by Mr Ghatwal during the preliminary inquiry. Two further documents were also requested, and these had already been supplied, so no further reference to them was necessary. Regarding the Razakar file, the enquiry officer noted that the file had previously been searched in his office and could not be located. He ordered that another search be conducted and that the resulting report be shown to the respondent; if the report did not materialise, the officer promised to write to the Collector asking that the Collector produce any such papers that might be in his possession. Concerning the copy of the application and the statements of Rajab Ali and Noor Bhai, the officer declared the documents to be “secret papers” and therefore unavailable for use in the inquiry. On 11 November 1951 the respondent reiterated his request for the same documents, but this request was again denied.

Following the refusal to provide the documents, the enquiry proceeded with the examination of witnesses. The enquiry officer subsequently submitted a report concluding that all three charges had been proved against the respondent. He characterized the charges as serious and recommended that the respondent be dismissed forthwith. A notice to show cause was then served on the respondent. Although the respondent submitted an explanation in response to the notice, the explanation was rejected and the dismissal order was affirmed. In the subsequent appeal, counsel for the respondent argued before the Court that Justice Sen, in addressing the respondent’s contention that the enquiry was defective, had in effect examined the merits of the findings as if hearing an appeal against the dismissal order, a step which they claimed lay beyond the jurisdiction of the High Court under Article 226 of the Constitution. The argument highlighted that the learned judge had observed that the charge served on the respondent did not contain sufficient particulars, and had also expressed disapproval of the report’s conclusion that the evidence against the respondent was overwhelming, thereby suggesting a review of factual findings that some considered to be beyond the scope of a writ petition.

The Court noted that the judge had expressed disapproval of the conclusion recorded in the enquiry report that the record contained overwhelming evidence against the respondent. While that observation might appear to involve an assessment of the factual findings of the enquiry, the Court held that even if such remarks were set aside on the ground that the judge was not empowered to examine the merits of those findings, the judgment was nevertheless founded on two essential points. The first point, according to the Court, was that the respondent ought to have been provided with a copy of the application on which the preliminary enquiry had been commenced. The second point was that the statements prepared by Mr Ghatwal of the two principal witnesses, Rajab Ali and Noor Bhai, should have been furnished to the respondent. In order to appreciate why these two aspects were crucial, the Court recalled the broad outlines of the evidence that had been produced against the respondent.

On each of the three charges, the prosecution relied on the testimony of a person who had paid money to Rajab Ali and Noor Bhai, or to one of them, with the understanding that the amount would subsequently be handed over to the respondent. The three witnesses were identified as Nooruddin, son of Saoji Veerani; Noor Mohd., son of Hasham; and Kasim Bhai. The first witness testified that he had handed a total of Rs 12,000 to Rajab Ali and Noor Bhai in three instalments of Rs 3,000, Rs 3,000 and Rs 6,000. The second witness stated that he had paid Rs 11,000 to the same two men in two instalments of Rs 6,000 and Rs 5,000. The third witness recounted that, after being arrested following police action, he was told that payment of Rs 5,000 to the respondent would secure his release, and he therefore made that payment. From these statements it was evident that Rajab Ali and Noor Bhai were the principal witnesses against the respondent. Moreover, the enquiry report itself observed that the two men had collected amounts substantially greater than those they were alleged to have paid to the respondent, and that the excess had been quietly retained by them. Consequently, the defence’s ability to cross‑examine these two witnesses was of paramount importance, and the respondent sought copies of the prior statements that Mr Ghatwal had recorded during the preliminary enquiry. The Court found it difficult to accept the argument that those statements were “secret papers,” which was the sole reason given for refusing to provide copies. By withholding the statements, the authorities had effectively prevented the respondent from conducting a meaningful cross‑examination of the two key witnesses, thereby depriving him of a reasonable opportunity to meet the charge.

The Court observed that the opinion expressed by Justices Sen and Bhutt was that the respondent could not meet the charge, and the Court found no reason to disturb that opinion. Turning to the witness named Kasim, the record shows that his statement, taken by the Sub‑Divisional Officer during the first inquiry, categorically denied that he had paid any money to the respondent. It is therefore striking that the same witness was called again in the second inquiry, at which time he altered his testimony and asserted that he had paid the sum of Rs 5000. Because of the earlier denial, the respondent had argued that Kasim ought not to be examined a second time merely because a fresh charge‑sheet had been framed and a new inquiry had commenced. The Court noted that this request was rejected, and Kasim was indeed examined again. The Court pointed out that this episode clearly illustrates the character of the evidence that had been presented against the respondent during the inquiry. Regarding the application on which the preliminary inquiry against the respondent was based, the Court agreed with the High Court that there was no justification for withholding that document. Like the earlier statements of Rajab Ali and Noor Bhai, this document had been improperly labeled as secret and therefore denied to the respondent. Had the respondent received the documents he had sought, he would have been in a position to cross‑examine the witnesses properly; the absence of those documents created a handicap that effectively denied him the reasonable opportunity guaranteed to him under Article 311(2). The Court then examined the matter of the Razakars file, noting with surprise that it was reported lost. The respondent claimed that the Razakars whose release he was alleged to have facilitated were freed on the recommendation of the District Superintendent of Police and the orders of the Civil Administrator of Adilabad, making the file highly relevant. According to the respondent, the assertion that the file was missing was untrue and its non‑production was motivated by the belief that it would assist his defence. The enquiry officer testified that he had searched his office but could not locate the file and was inquiring with the Collector to determine whether it might be found there. The respondent was given a letter addressed to the Collector asking that the file be shown to him if it existed, but he was subsequently told that the file could not be traced. In connection with the alleged loss of this file, the Court recalled the criticism made by Justice Sen concerning the undue haste of the inquiry. The Court concluded that, had more diligent efforts been undertaken to locate the file, the enquiry officer would have been able to ascertain whether the respondent’s plea based on that file was genuine.

It was observed that, had the file been produced, the tribunal could have examined whether the respondent’s claim, based on that file, was truthful. In view of this, the High Court concluded that the departmental enquiry was unsatisfactory and that, in effect, the respondent had been deprived of a reasonable chance to answer the charges brought against him. The judgment noted that Article 311(2) unequivocally grants a public servant a reasonable opportunity to defend himself. Such an opportunity must be given not only after the charges are formally communicated but also at the subsequent stage when a penalty is being considered. Consequently, if the initial enquiry is materially flawed and denies the respondent a chance to prove his case, it is untenable to say that the constitutional guarantee of a reasonable opportunity under Article 311(2) has been satisfied. Counsel for the appellant, Mr Khaskalam, vigorously maintained that the failure of the enquiry officer to provide the copies of documents requested by the respondent was merely an exercise of discretion and therefore not subject to scrutiny by the High Court. To support this contention, he relied upon the Patna High Court’s decision in Dr Tribhuwan Nath v. State of Bihar, AIR 1960 Pat 116. In that precedent, a public officer had sought a copy of a confidential anti‑corruption report prepared against him, and the enquiry officer had refused the request. When the High Court was urged to hold that the refusal amounted to a serious defect in the enquiry and thus denied the officer a reasonable opportunity, the Court rejected the argument. It held that the officer was not entitled to a copy of the report unless the report formed part of the evidence before the Enquiry Commissioner and was actually relied upon. The Court observed that because the report was neither exhibited nor referred to or relied upon by the Commissioner, there was no basis for contesting its contents, and consequently, the absence of an opportunity to meet the report did not violate any constitutional provision. The present Court opined that the Patna decision could not be applied to the present case because, as previously pointed out, the documents sought by the respondent were material and would have been of immense assistance in preparing his defence and in cross‑examining the witnesses who had testified against him. Moreover, the Court emphasized that when a dismissal order affecting a public servant is challenged through a petition under Article 226, it is the responsibility of the High Court to examine whether the constitutional requirements of Article 311(2) have been fulfilled. Thus, the argument that any deficiency stems solely from the discretionary authority of the enquiry officer is untenable; even a bona‑fide exercise of discretion does not render the officer’s orders final and conclusive where the respondent’s right to a reasonable opportunity appears to have been compromised.

In this case the Court observed that when a public servant contests a dismissal order by filing a petition under Article 226, the High Court must determine whether the procedural safeguards prescribed by Article 311(2) have been complied with. The Court held that it would be futile to argue that any shortcomings claimed by the public servant arise merely from the discretionary authority vested in the enquiry officer. Even if the enquiry officer acted in good faith, such a fact does not render his discretionary orders final or conclusive. Consequently, whenever it is alleged before the High Court that the enquiry officer’s orders have deprived the public servant of a reasonable opportunity to defend himself, the High Court is authorised to scrutinise the matter and to decide whether the requirements of Article 311(2) have been fulfilled. The Court explained that it is neither practicable nor appropriate to lay down a universal rule for all such situations; the existence of a reasonable opportunity must be assessed on the facts of each individual case. The only safe general statement, the Court said, is that departmental enquiries must observe the principles of natural justice, and that when enquiries are conducted fairly and properly, the findings of the enquiry officer on the merits cannot be challenged on the ground that the procedural steps differ from those followed in courts of law. Referring to the observation of Venkatarama Aiyar, J. in Union of India v. T.R. Varma (1958 SCR 499) at page 507, the Court reiterated that natural justice broadly requires that a party be allowed to present all relevant evidence on which he relies, to hear the opponent’s evidence in his presence, to cross‑examine the witnesses examined by the opponent, and not to have material relied upon against him without an opportunity to explain it. The Court stressed that the right to cross‑examine adverse witnesses is a highly valuable right, and that if the enquiry officer prevents the public servant from exercising this right by withholding documents to which the officer is entitled, such a lapse inevitably shows that the enquiry was not conducted in accordance with natural justice. The High Court had taken this view, and the present appeal, brought before this Court under Article 136, offered no justification for overturning that finding. The Court further cited the decision in Khem Chand v. Union of India (1958 SCR 1080) at page 1096, which underscores the importance of granting the public officer the opportunity to defend himself by cross‑examining the witnesses produced against him. Accordingly, the Court concluded that the appeal failed and dismissed it with costs.