T K SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner was a Forester serving under the Government of Bihar, Preliminary enquiries were made in respect of certain allegations made against him, by the superior forest officials in his presence, and his explanations were also taken. Thereafter, on the 29th June, 1962, seven specific charges were framed against the petitioner, and a brief statement containing the allegations, on which the charges were based, was also included in the said document (Annexure A), He was then called upon to show cause as to why severe disciplinary action may not be taken against him. The petitioner submitted a lengthy written statement (Annexure A -l) on the 28th November, 1962. After denying the allegations made against him, he referred to Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, and requested the authority concerned "to hold an enquiry by examining the prosecution witnesses to substantiate the charges and by exhibiting the relevant documents and also by giving an opportunity of cross -examining the witnesses and to confront the witnesses to rebut the charges". In spite of the petitioner's prayer for oral enquiry based on Rule 55 of the said Rules, no such enquiry was held. On the other hand, the Conservator of Forests obtained the comments of the Divisional Forest Officer, and then, by his order, dated the 31st August, 1963 (Annexure C), held him guilty of five of the charges. Then, he gave him a fresh notice to show cause why the punishment of dismissal may not be passed against him, in view of the gravity of the acts of misconduct said to have been established. Against this second notice also, the petitioner, in his lengthy explanation, while reiterating his innocence, again pressed for a regular enquiry where he would get opportunity to cross -examine the witnesses (Annexure G). This prayer was not allowed, and the Conservator of Forests, Western Circle, by his order dated the 2nd July, 1964 (Annexure I), passed the order of removal of the petitioner from service. His observations as regards the omission to hold a fresh enquiry after the framing of the charges are worth quoting: On the point of need for enquiry in this case raised by the Forester, it is added that the Divisional Forest Officer, Garhwa Division as an enquiring officer, twice conducted the enquiries in this case. Forester T.K. Singh had been afforded every legitimate opportunity for his defence. Copies of all the relied upon documents were also given to him. He was also given a personal hearing by the undersigned in his office at Ranchi on 3 -4 -64. The charges against Forester T.K. Singh have been proved on the evidence available on records and in some case on his own admission. The need for enquiry raised by him again in his petition dated 30 -10 -63 is, therefore, irrelevant. The petitioner filed an appeal before the Chief Conservator of Forests, where one of the points taken by him was that, after the framing of the charges, no proper enquiry was held as required by the Rules. The appeal was, however, dismissed with the observation that, as a preliminary enquiry was held twice before, in which evidence was recorded in his presence and his defence was also taken, no fresh enquiry was required.

(2.) Apparently, the officials of the Forest Department have not fully appreciated the principle underlying Rule 55 of the Civil Services (Classification, Control and Appeal) Rules read with Article 311(2) of the Constitution. Before the initiation of a regular departmental proceeding against a public servant, there may be preliminary investigation by the police or enquiry by the officials of the department. It may also be true that, in such preliminary investigation or enquiry, the evidence is recorded in the presence of the delinquent public servant, he is given an opportunity to cross -examine the witnesses, adduce his own evidence, and make his statement. These preliminary enquiries and investigations are made solely with a view to decide whether there are adequate materials for initiating a departmental proceeding against the public servant. Such proceedings are initiated only when specific charges are framed against the public servant, and he is called upon to show cause why he may not be suitably punished. Whatever might have happened prior to the date of the framing of the charges will be only of a preliminary nature. Here, therefore, the departmental proceeding commenced only on the 29th June, 1962 (Annexure A), when specific charges were framed against the petitioner. Thereupon, the authorities are bound to comply with the provisions of Rule 55 of the said Rules. It is true that if, in the written statement in reply to the charges, the public servant admits all the facts, no oral enquiry may be required, and the officer concerned may dispose of the proceeding after scrutinizing the charges and the written statement of the public servant; but, where some of the facts mentioned in the charges are denied and an oral enquiry is insisted upon by the public servant concerned, the superior officer should have held an oral enquiry. The relevant passage in Rule 55 on the subject may be quoted: If he so desires or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry, oral evidence shall be heard as to such of the allegations as are not admitted, 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. It is admitted that the aforesaid important step in the departmental proceeding has not been complied with. Doubtless, if the final order had been based only on those facts, which were admitted by the petitioner, the omission to hold such an enquiry may not be fatal; but I find that, in the order of dismissal passed by the Conservator of Forests (Annexure I), it is mentioned as follows: The charges against Forester T.K. Singh have been proved on the evidence available on records and in some cases on his own admission. This shows that, though, in respect of some of the charges, there may be admission by the public servant, the charges were held to have been established mainly on the basis of the evidence collected in a preliminary enquiry prior to the framing of the charges.

(3.) The prejudice to the public servant is obvious. It is only after the specific charges framed that the public servant, knowing the gravity of the charges and the punishment that is likely to be imposed, will defend himself properly according to the Rules. In any preliminary enquiry, he may or may not properly cross -examine the witnesses or adduce all evidence. Such a preliminary enquiry cannot, therefore, take the place of a regular departmental enquiry expressly provided for in the said Rule 55.