SUDESH KUMAR PURI Vs. STATE OF J&K

JUDGEMENT

(1.) "Where a witness is confronted by his previous statement and is given opportunity to explain, that part of statement which is put to him does not constitute substantive evidence." It will also be advantageous at this stage to refer to another decision of the Supreme Court in M/s Bareilly Electricity Supply Co, Ltd. Vs The Workmen and ors, A.I.R. 1972 S.C. 330, where it was held that though the evidence Act is not applicable to the Domestic Tribunals that does not mean that where issues are seriously contested and have to be established and proved the requirements relating to proof can be dispensed with. 20. Bearing in mind the above noted principles, let me now see whether there was any legal evidence to justify the crucial conclusion arrived at by the Anti -Corruption Commission that the labourers engaged by the Public Works Department for the construction of Kaluchak Purmandal Road ˜had been made to work at the house of the appellant. A perusal of the evidence adduced by the prosecution before the Commission would make it clear that it has not been legally proved that the house on which the P.W.D. labourers were found working belonged to the appellant. No witness of the prosecution came forward and stated before the Commission that the house was actually of the appellant. The evidence of Amrik Chand Gupta, Dy. S. P. on which reliance seems to have been placed is not at all helpful to the respondents as the Dy. S. P. had no personal knowledge of the matter and Rawal Singh P. W. 3 too, who accompanied him had not personal knowledge as to whom the house belonged. The knowledge of Rawal Singh was based on the statement of Bhajan Singh P. W. who himself was not clear about the ownership of the house. The latter -has stated that he told Rawal Singh and Shri Bal Mukund P. Ws that the house probably belonged to the appellant. He has also admitted that neither he nor Rawal Singh nor Bal Mukind nor any one also enquired on the spot from any one as to who was the owner of the house and that he did not see whether the appellant or any of his relations at the house Rawal Singh had also to admit that the Dy. S. P. did not enquire from any person of the locality whether the house where the labour was working was of the appellant or not. Mani Ram P.W. a Mate of P.W.D., who was declared hostile has categorically stated that he never went to the house of the appellant on October 23, 1967 i.e. the date in question with his labour nor made them work there. Bal Mukund P. W. 4 also admitted that he did not personally knew if the house belonged to the appellant. Shri Hans Raj P.W. also categorically stated that at the time of the raid by the police he was working at the house of Shri Tej Ram Mahajan in Gandhi Nagar and the police got his statement under pressure. Purkh Singh P. W. who was declared hostile has stated that he did not know the house of appellant and had gone to work at the house of Tej Ram Mahajan. Although his attention was, with a view to contradicting him drawn to the previous statement alleged to have been made by him during the course of investigation before Amrik Chand Gupta, Dy. S.P. wherein he is said to have stated that the house was of the appellant, he interalia stated before the Commission that he told the police that the house was of Tej Ram Mahajan. Now as held in 1969 S.C. 983 and 1971 S.C. 2256 (Supra) where a witness is confronted with his previous statement and is given opportunity to explain, that part of statement which is put to him does not constitute substantive evidence. Thus the previous statement said to have been made by Purkh Singh before the Dy. S. P. could not be used by the Commission as a basis for holding that the house belonged to the appellant. Even assuming that the previous statement of Purkh Singh before the Dy. S. P. was made in presence of the appellant, that could not be enough to stamp the statement with a ring of truth and enable the Commission to rely on the same as the appellant had no occasion to cross examine Purkh Singh at that stage. Purkh Singh also stated before the Commission that he did not know the house of the appellant nor did he ever work there. 21. It is, therefore, crystal clear that there was no legal evidence before the Commission to warrant the conclusion that the house in question belonged to the appellant. As the very fabric of the impugned order passed by the respondent fails, and it is thus a case of total want of legally admissible evidence regarding the most material particular rather than of an inference from legally proved facts, I cannot but allow the appeal and set aside the judgment and order dated July 10, 1972, passed by the Honble Chief Justice in Writ petition No. 19 of 1971 filed by the appellant, and quash Government Order No. 23 -GR dated February 23 1971. I would however, leave the parties to bear their own costs of this appeal. (In view of the difference of opinion the case was referred to Honble Mr. Justice Mian Jalal -ud -Din for decision. The decision of Honble Mr. Justice Mian Jalal -ud -Din is as follows: -) Per Mian Jalal -ud -Din J. 22. This letters Patent appeal directed against the judgment of Honble Chief Justice sitting singly was originally heard by a Division Bench constituted of Honble Mr. Justice Raja Jaswant Singh and Honble Mr. Justice Syed Wasi -ud -Din. On a difference of opinion having arisen between the two learned Judges regarding the decision to be taken on the facts and circumstances of the case it has been referred to me for decision. 23. The relevant facts which have given rise to this appeal have been elaborately stated by Syed Wasi -ud -Din J. in his judgment. Briefly speaking the appellant who was an Assistant Engineer at the relevant time and was incharge of the Construction of a road called Kalu Chak Purmandal Road in the year 1967 was proceeded against before the Anti -Corruption Commission on a charge of corruption under section 3 clause (d) of the Jammu and Kashmir Government Servants Prevention of Corruption Act of 1962. The charge against him was that he in collusion with Shri Ram Chand Work Mistry or individually on his part dishonestly engaged permanent daily labourers for private ends in connection with the construction work at Gandhi Nagar Jammu whereas their presence was shown in the muster sheets as working on Kalu Chak Purmandal road which was under the supervision and in -Charge of the appellant. Thus the appellant abused his official position as Government servant for the purpose of obtaining for himself or for any other person pecuniary advantage. On an enquiry before the Commission the appellant was found guilty of the above mentioned charge. The Commission concluded by observing that the appellant had committed an act of corruption in as much as the labourers whose attendance had been shown in the Muster -sheets were actually not working on the road but were working in the house at Gandhinagar belonging to the appellant. The Commission made recommendation to the Governor that two yearly increments of the appellant be stopped. The Governor on consideration of the explanation submitted by the appellant passed an order to the effect that three yearly increments be withheld and the withholding of these increments will have the effect of postponement of future increments. The appellant, thereafter, filed a writ petition for quashing the aforesaid order. The writ petition was heard by the Honble Chief Justice who dismissed it on the ground that there was no error of law apparent on the face of record to vitiate the order of the Commission and to warrant any interference by this Court. Aggrieved by this order the appellant came up in Letters patent appeal which, as stated above, was heard by a Division Bench of this Court. 24. Syed Wasi -ud -Din J. in his judgment observed that the scope of writ petition being limited in an application for setting aside an order passed on the finding of domestic Tribunal the High Court could not revaluate or re -appreciate the evidence recorded by the Commission, nor could it go into the quantum or insufficiency of evidence adduced before the Commission. The Commission was not bound by the strict and technical rules of the Evidence Act. The facts in the case before the Commission clearly showed that the case, as set up by the Department, was divisible into two parts. The first part was in respect of a point whether a number of labourers of P.W.D. engaged for the Construction of the road were actually working in the construction of the house at Gandhinagar and whether their attendance had been marked in the Muster sheets elsewhere. The second part was whether the house in question where labour was deployed really belonged to the appellant. In the view of the Commission there was sufficient evidence extent on the record to warrant a finding that these labourers were found working in the house at Gandhinagar whereas their attendance was actually noted in the muster -sheets at Purmandal road. This was done with a view to derive pecuniary advantage by the appellant for himself. As regards the second part of the question the learned Judge observed that the witnesses had turned hostile and they did not support the version of the department that the house belonged to the appellant and the witness who did state about this matter did not have any personal knowledge of the matter. But as the Commission had arrived at a finding on this question on the basis of inference drawn from the materials before it and these inferences the Commission was entitled to draw from the material before it, therefore, on the basis of these inferences the Commission came to the conclusion that the house belonged to the appellant. The High Court could not in exercise of its extraordinary writ jurisdiction interfere with this finding of fact as it was not sitting as a court of appeal. The learned Judge was, therefore of the view that this was not a fit case in which he could interfere with the finding of the Commission. He, therefore, affirmed the judgment of the Honble Chief Justice. 25. Honble Jaswant Singh J. in his dissenting judgment has, on consideration of the facts and law before him, come to the conclusion that there was no legal evidence or reasonably sufficient evidence to support the finding of the Commission that the house in question really belonged to the appellant. The common approach, however, in both the judgments of the learned Judges is that adequacy or reliability of the evidence relied upon by domestic Tribunal in a departmental enquiry cannot be canvassed before the High Court in writ proceedings and that the enquiry held by such a Tribunal is not governed by the strict and technical rules of the Evidence Act. According to Jaswant Singh J. a fact sought to be proved must be supported by the statements made in the presence of the person against whom an enquiry is made and that statements made behind the back of the person charged are not to be treated as substantive evidence. This basic principle could not be ignored on the mere ground that domestic tribunals are not bound by the technical rules of the Evidence Act According to the learned Judge to quote his own words "the very fabric of the impugned order of the commission failed as it was a case of total want of legally admissible evidence regarding the most material particular rather than of an inference from legally proved facts." He, therefore, allowed the appeal, set aside the judgment under appeal and quashed the impugned order. 26 Appearing for the appellant Mr. Daphtary has convassed the following propositions of fact and law : - 1 There was no legal evidence before the Commission to support the finding that the house in question which was under construction at Gandhinagar Jammu belonged to the appellant. The Commission had based its judgment on mere hearsay evidence which could not be treated as substantive evidence.

(2.) THE commission had relied upon the evidence of Shri Amrik Chand Dy. S. P. (A.C.O.). But this witness had no personal knowledge of the matter that the house belonged to the appellant.

(3.) IT is true that the Commission was not bound by rules as enunciated in the Evidence Act but at the same time the Commission had to act in a way that was consistent with the principles of natural justice. No evidence could be imported on the files and acted upon by the Commission that was taken behind the back of the appellant, and in respect of which the appellant had no occasion to test it by cross -examination. The learned Chief Justice acting singly in the case had omitted to consider this important aspect of the matter.