SHYAM SUNDER HANDU Vs. UNION OF INDIA

JUDGEMENT

(1.) THE appellant, Shyam Sunder Handu, was working as Civilian Asstt. Storekeeper in No. 2 Field Ordinance Depot during 1971. By an order dated 17 -9 -71 passed by the Director of Ordinance Services, respondent No. 2, the appellant was placed under suspension and on 23 -9 -71 the appellant was served with a copy of the charge -sheet containing three articles of charge. The appellant submitted a reply to the charge sheet and after the receipt of the same, a Board of Inquiry was appointed to inquire into the charges against the appellant. After making the inquiry the Board submitted a report to respondent No. 2 to the effect that the charges had been proved against the appellant. Respondent No. 2. on a consideration of the report of the Board served a notice on the appellant to show cause why he should not be dismissed from service. The appellant replied to the show cause notice and thereafter respondent No 2 passed an order dated 22 -5 -72 dismissing the appellant from service. The appellant then filed a writ petition in this court challenging the said order of dismissal on various grounds which will be referred to at a later stage. By his judgment dated 31 -7 -1973 a learned single judge of thi~ court dismissed the writ petition. The appellant has filed the present letters patent appeal against the said judgment of tho learned single Judge.

(2.) IN the Writ petition filed by him the order of dismissal was challenged by the petitioner on the following grounds: (1) that the charger, served upon him were incomplete and did not disclose the facts upon which they were based, (2) that the list of documents and the list of witnesses together with the copies of the statements of the witnesses were not sent to him along with the charge -sheet; (3) that the inquiry was conducted exparte against the petitioner and the witnesses were examined in his absence; (4) that even after he appeared before the Board and asked for copies of the statements of witnesses mey were not furnished to him; (5) that he was not permitted to engage a lawyjer to defend himself in the inquiry; (6) that he was not afforded a reasonable apportunity to cross -examine the witnesses who had already been examined in his absence and (7) that no presenting officer was appointed for the inquiry and that the Board itself acted both as the prosecutor as well as the judge.

(3.) THE writ petition was resisted by the respondents. A preliminary objection was taken against the maintainability of the writ petition on the ground that the petitioner was governed by the provisions of the Army Act and was therefore precluded from invoking Art. 311 of the Constitution of India and that for that reason the petitioner was also precluded from challenging the order of dismissal on the ground that the inquiry was not conducted in accordance with the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as the Rule). The allegation that the list of witnesses and the list of documents were not sent to the petitioner alongwith the charge sheet was denied and it was stated that such lists were in fact sent to the petitioner by regisered post. Regarding the allegation that the copies of statements of the witnesses were not supplied to the petitioner it, was stated that under the Rules he was not entitled to the supply of such copies along w;th the charge -sheet. With regard to the allegation that the inquiry was conducted by the Board exparte, it was stated that several notices were sent to the petitioner to appear before the Board to defend himself and that in spite of such notices having been received by him., the petitioner deliberately absented himself and that, therefore, the Board was competent to proceed exparte against him. As regards the allegation that after the petitioner had appeared before the Board he was not supplied with copies of the statements of witnesses, it was stated that under the Rules the petitioner was not entitled to be given the copies of the statements of witnesses who had been examined by the Board, but that tbe petitioner was given ample opportunity to peruse the statements of these ¢witnesses for the purpose of cross -examining them. Regarding the grievance of the petitioner that he was denied the assistance of a lawyer it was stated that under the Rules the petitioner was not entitled to be defended by a lawyer and that even though the Board offered to him the services of any Government servant of his choice, the petitioner declined the offer. It was further stated that the petitioner throughout the inquiry had deliberately adopted a non -cooperative attitude, and that he had declined tr cross -examine any of the witnesses or to examine any witness in defence. It was, therefore stated that there was a substantial compliance with the Rules and the order of dismissal was not vitiated on any of the grounds alleged by the petitioner. The inquiry against the petitioner was in fact conducted under the Rules and we shall proceed to first consider whether the inquiry was conducted in accordance with the Rults. It is only if we find that the inquiry was not conducted in accordance with the Rules that the question arises whether the appellant is governed by the Army Act and for that reason whether he cannot challenge the order of dismissal on the ground that the inquiry was not conducted in accordance with the Rules. Therelevant Rules are Rr. 14 and 15 of the Rules. The relevant provisions of R. 14 are as follows: -