# [1976] 3 S.C.R. 913

- **Citation:** [1976] 3 S.C.R. 913
- **Court:** Supreme Court of India
- **Decided:** 1976-03-26
- **Case number:** Civil Appeal No. 847 of 1974
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singii
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1976-3-s-c-r-913-6849
- **Pages:** 6

## Headnote

913
Constitution-Article 311-Domestic inquiry-Reasonable cpportunit'i:._ of
,effectively defending-Dismissal pursuant to departmental proceedings-Whether
Court can sit in appeal-Whether Evidence Act applies to departmental proceedings.
The appellant was a Police Constable. SOme persons were convicted for
transporting smuggled illicit liquor under section 66(b) of the Bombay Prohibi~
A
B
tion Act. The Police Sub Inspector submitted a Confidential report on that
incident to the Superintendent of Police and pointed out that some Police
C
'".
Constables including the appellant wen; indulging in smugglihg illicit liquor.
I
The Superintendeht of Police directed the P.S.I. to record the statements of
three constables, Akki, Warn.an and.Nishikant. The Police Sub Inspector, therefore, recorded the statements of those constables in the presence of the Superintendent of Police. The statements of Akki and Nishikan,t disclosed their
complicity as well as complicity of six other Police constables including the
appellant. D.S.P. ordered the S.D.P.0. t" hold a departmental enquiry against
them. They were all transferred from Belgaum and directed not to leave
D
their new station without the permission of the D.S.P. except for purpoSes of'
or in connectioh with1 departmental enquiry. The appellant did not plead guilty.
The Enquiry Officer held enquiry. A number of witnesses were examined both
by the prosecution and the defence. The Enquiry Officer made a report to
the Superintendent of Police that the charge: against the appeUaht \Vas
not
established. He, however, recommended that the appellant should be administered a severe warning since he was guilty of misconduct and dereliction of
duty. The Superintendent of Police did hot agree with the finding; of the
'
Enquiry Officer and directed him to examine. Police Constable Akki ¥.'h05e stateE
rnent had been recorded before the enquiry was ordered against the ap-pellant.
Akki was accordingly examihed but be resiled fron11 his earlier statement. The
Enquiry Officer agaih submitted a further report and stn1ck to his former recommendation regarding administiratfun of severe warning to the appellant.
The Superintendent of Police disagreed with the. report of the Enquiry Officer
and found that there was: sufficient evidehce against the appellant to prove
his guilt.
A.ccordingly, he issued a notice to the appellant callirtg upon him
to show cause why he should not be dismissed from Service.
Not feeling
satisfied with the explanation tendered by t}Je appellant the Superintendent of
F
Police passed an order dismissing the appellant from service. An appeal filed
to the D.I.G. was unsuccessful and so was a revision to the 'Government.
't
Thereafter, the appellant filed a suit challenging the order of dismissal and
-claiming arrears of nay. The Trial Court dismissed the suit. The Lower
Appellate Court reversed the judgment of the Trial Court. The High Court
nllowed the second appeal filed by the State.
In an appeal by Special Leave, the appellant contended :
( 1) The appellant was deprived of a reasonable opportunity of defending
himself during the course of the departmental enquiry. He was not permitted
to remain at Belgaum during the period of his, suspension. Evidence of some
-of the prosecution witnesses was recorded in his absence.
(2) The impugned judgment and decree cannot be sustained as there is no
cogent legal evidence to establish the charge against the appellant.
DismissinQ! the appeal,
HELD : (I ) Whether a delinquent had a reasonable opportunity of effective·
1y defending himself is a question of fact depending on cfrcumstances of each
G
.H
A
B
c
D
E
F
G
H
914
SUPREME COURT REPORTS
(1976] 3 S.C.R.
case and no hard and fast rule can be laid in that behalf. In the instant case,.
the order restricting his movement was not such as can b~. said to have deprived him of reasonable opportunity of making his defence.
The order did not
"-
· ._
place any embargo on the appellant going to Belgaum for the

## Text

K. L. SHINDE
11.
STATE OF MYSORE
March 26, 1976
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGII, JJ.J
913
Constitution-Article 311-Domestic inquiry-Reasonable cpportunit'i:._ of
,effectively defending-Dismissal pursuant to departmental proceedings-Whether
Court can sit in appeal-Whether Evidence Act applies to departmental proceedings.
The appellant was a Police Constable. SOme persons were convicted for
transporting smuggled illicit liquor under section 66(b) of the Bombay Prohibi~
A
B
tion Act. The Police Sub Inspector submitted a Confidential report on that
incident to the Superintendent of Police and pointed out that some Police
C
'".
Constables including the appellant wen; indulging in smugglihg illicit liquor.
I
The Superintendeht of Police directed the P.S.I. to record the statements of
three constables, Akki, Warn.an and.Nishikant. The Police Sub Inspector, therefore, recorded the statements of those constables in the presence of the Superintendent of Police. The statements of Akki and Nishikan,t disclosed their
complicity as well as complicity of six other Police constables including the
appellant. D.S.P. ordered the S.D.P.0. t" hold a departmental enquiry against
them. They were all transferred from Belgaum and directed not to leave
D
their new station without the permission of the D.S.P. except for purpoSes of'
or in connectioh with1 departmental enquiry. The appellant did not plead guilty.
The Enquiry Officer held enquiry. A number of witnesses were examined both
by the prosecution and the defence. The Enquiry Officer made a report to
the Superintendent of Police that the charge: against the appeUaht \Vas
not
established. He, however, recommended that the appellant should be administered a severe warning since he was guilty of misconduct and dereliction of
duty. The Superintendent of Police did hot agree with the finding; of the
'
Enquiry Officer and directed him to examine. Police Constable Akki ¥.'h05e stateE
rnent had been recorded before the enquiry was ordered against the ap-pellant.
Akki was accordingly examihed but be resiled fron11 his earlier statement. The
Enquiry Officer agaih submitted a further report and stn1ck to his former recommendation regarding administiratfun of severe warning to the appellant.
The Superintendent of Police disagreed with the. report of the Enquiry Officer
and found that there was: sufficient evidehce against the appellant to prove
his guilt.
A.ccordingly, he issued a notice to the appellant callirtg upon him
to show cause why he should not be dismissed from Service.
Not feeling
satisfied with the explanation tendered by t}Je appellant the Superintendent of
F
Police passed an order dismissing the appellant from service. An appeal filed
to the D.I.G. was unsuccessful and so was a revision to the 'Government.
't
Thereafter, the appellant filed a suit challenging the order of dismissal and
-claiming arrears of nay. The Trial Court dismissed the suit. The Lower
Appellate Court reversed the judgment of the Trial Court. The High Court
nllowed the second appeal filed by the State.
In an appeal by Special Leave, the appellant contended :
( 1) The appellant was deprived of a reasonable opportunity of defending
himself during the course of the departmental enquiry. He was not permitted
to remain at Belgaum during the period of his, suspension. Evidence of some
-of the prosecution witnesses was recorded in his absence.
(2) The impugned judgment and decree cannot be sustained as there is no
cogent legal evidence to establish the charge against the appellant.
DismissinQ! the appeal,
HELD : (I ) Whether a delinquent had a reasonable opportunity of effective·
1y defending himself is a question of fact depending on cfrcumstances of each
G
.H
A
B
c
D
E
F
G
H
914
SUPREME COURT REPORTS
(1976] 3 S.C.R.
case and no hard and fast rule can be laid in that behalf. In the instant case,.
the order restricting his movement was not such as can b~. said to have deprived him of reasonable opportunity of making his defence.
The order did not
"-
· ._
place any embargo on the appellant going to Belgaum for the purpose of an~
in connection with the departmental enquiry. In fact, the appellant fully participated in the enquiry held at that place.
He also made full use of the assistance of a policeman called Police friend. provided to him to conduct the
defence on his behalf. He was furnished with the statements recorded of the
3 constables before the enquiry was ordered. The witnesses examined by the
prosecution were tendered for cross-examination. It, therefore, cannot be held
that a reasonable opportunity as contemplated by Article 311 of the Co~stitution was denied lo the appellant. [91W-Gl
(2) Neither the High Court nor this Court can re.examine and reassess the
evidence in domestic enquiries of the instant natllre.
Whether or not there is
sufficient evidence agaiinst .a delinquent to justify his dismissal from service is
a matter on which this Court cannot embark. The departmental proceedings
do not stand on the same footing as criminal proceedings in "''hich high. degree
of proof is required. The departmental proceeding9 are not covered by strict
rules of evidence· as oontaihed in the Evklence Act. l\ copy of the statement
made by Akki earlier was furnished to the appellant and he examined all the i
3 constables including Akki who made statements before the enquiry
was
ordered. [916 H, 917 A.q
Stole of My:Jore v. Shivabsappa, [19631 2 S.C.R. 941; A.LR. 1963 S.C.
375; State of U.P. v. Om Prakash, A.LR. 1970 S.C. 669 followed; Ghanshyam
Das
Shrivastava
v. State of Madhya Pradesh, A.I.R.
1973
S.C.
1183
distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 847 of 1974.
Appeal by Special Leave from the Judgment and Decree dated the
3-10-72 of the Mysore High Court in Regular Second Appeal No. 729·
of 1967.
S. S. Javali and H. K. Puri, for the Appellant.
Narain Nettar, for the Respondent.
The Judgment of the Court was de.livered by
JASWANT SINGH, J.
This appeal by special leave
is
directed
against the judgment and decree dated October 3, 1972, passed by a
Single Judge of the Mysore High Court whereby allowing the respondent's second appeal No. 72.9 of 1967, he set aside the appellate judgment and decree dated Apdl 18, 1967 passed by Civil Judge, Belgaum,
declaring the order dismissing the appellant from service as illegal and
ultra vires.
Facts material for the purpose of this appeal are : The appellant
herein was a Police Constable attached to Khade-bazar Police Station
at Belgaum in 1960. In the small hours of the morning of November 17, 1960, the Cantonment Police intercepted a tonga transporting
smuggled illicit liquor in four tubes from Devi Temple to the cantonment area with the intention of disposing of the same to bootleggers.
After registering a case nnder section 66 (b) of the Bombay Prohibition Act, the Cantonment P .S.I. proceeded against the tonga driver and
another person who was found following the tonga, in a criminal court
of competent jurisdiction and succeeded in securing their conviction
for the aforesaid offence.
On November 18, 1960, the Cantonment
P.S.I. submitted a confidential report about the incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter
I
)
K. L. SHINDE v. MYSORE (laswant Singh, l.)
915
that some police constables including the appellant who were newly
A
. ,
recruited and attached to different police stations in Belgaum were
indulging in smuggling illicit liquor.
On receipt of this report, the
Superintendent of Police directed the P.S.I. Khade-bazar police station,
to record. the statements of three constables namely M. Y.
Akki,
Waman Mangesh, and Nishikant Shimaji Satyannawar.
Pursuant to
these directions, the P.S.I. recorded the statements of the aforesaid
police constables in the presence of the Superintendent of Police.
The
B
statement of Nishikant and Akki, constables disclosed their own and
six other police constables, complicity in the aforesaid smuggling
activity.
The Superintendent of Police thereupon suspended the appellant and the other six constables and ordered the S.D.P.O. to hold a
departmental enquiry against them.
The Superintendent of Police also
transferred all the seven deliquents from Belgaum and directed that
they would not leave their new stations without his permission except
C
for purposes of or in connection with the department enquiry. Though
the appellant sought permission to stay at Belgaum during the period
of his suspension, his request was refused.
As the appellant did not plead guilty to the charge framed against
him, the Enquiry Officer proceeded to hold the enquiry against him
in accordance with the rules contained in the Bombay Police Manual,
1950.
On the conclusion of the enquiry during the course of which
a number of witnesses were examined both by the prosecution and
the defence, the Enquiry Officer reported to the Superintendent of
Police on November 10, 1961, that the charge against the appellant
was not established.
He, however, recommended that the appellant
should be administered a severe warning as he was convinced that he
had been guilty of misconduct and dereliction of duty.
The Superintendent of Police did not agree with the findings of the Enquiry Officer
and directed him to examine police constable Akki whose statement
had been recorded before the charge was framed against the appellant.
Akki was accordingly examined but he resiled from his earlier statement.
The Enquiry Officer in the course of his second report dated
November 30, 1961, submitted to the Superintendent of Police that
no fresh evidence was forthcoming against the appellant.
He, however, stuck to his former recommendation regarding administration
of severe warning to the appellant.
D
The Superintendent of Police again disagreed with the report of
the Enquiry Officer and found that there was sufficient evidence against
E
F
the appellant to prove his guilt.
Accordingly he issued a notice to
G
•
the appellant on December 20, 1961, calling upon the latter to show
'
cause why he should not be dismissed from service.
Not feeling satistied with the explanation tendered by the appellant, the Superintendent of Police passed an order on February 9, 1962, dismissing the
appellant from service. Aggrieved by this order, the appellant went
up in appeal to the D.l.G. of Police but was unsuccessful.
He also
took the matter in revision to the Government but there also he failed.
H
Eventually he brought a suit in the Court of the IInd Additional
Munsiff, Relgaum, challenging the aforesaid orders of his dismissal
and claiming the arrears of his pay.
916
SUPREME COURT REPORTS
[1976] 3 S.C.R.
A
The principal contentions raised by the appellant were two.fold :
(1) That no reasonable opportunity was given to l]im to defend him·
self and (2) that the Superintendent of Police was wrong in relying
on tbe statement~ of the witnesses recorded before the charge was
framed against him and in re-assessing the evidence contrary to the
conclusion arrived at by tbe Enquiry Officer who held that there was
B
c
D
E
F
G
H
no evidence to substantiate the charge against him.
After a regular trial, tbe suit was dismissed by
tbe
Munsiff,
Belgaum. On appeal, tbe Civil Judge, Belgaum reversed the judgment
of the Munsiff and decreed the suit.
Aggrieved by the decision of
tbe Civil Judge, Belgaum, the State Government preferred an appeal
to the High Court of Mysore which, as stated above, was allowed.
Counsel for the appellant has, while supporting the appeal, vehemently contended that tbe aforesaid judgment and decree of the High
Court cannot be sustained as the appellant was deprived of a reasoni
able opportunity of defending himself during tbe course of the departmental enquiry.
Elaborating his submission, counsel has urged tbat
as restrictions were placed on the movement of tbe appellant and he
was not permitted to remain at Belgaum during the period of his
suspension and evidence of some of the prosecution witnesses was recorded in his absence, there has been a gross violation of tbe provisions of Article 311 of the Constitution and tbe principles of natural
justice. Counsel .has further contended that the impugned judgment
and decree cannot also be sustained as tbere is no cogent and legal
evidence to establish the charge against the appellant.
It is well settled tbat whether a delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending
upon the circumstances of each case and no hard and fast rule can
be laid in that behalf.
In tbe instant case, the order restricting tbe
movement of tbe appellant on which strong reliance has been placed
on his behalf for assailing tbe impugned order of his dismissal was
not such as can be said to have deprived him of a reasonable opportunity of making his defence.
The order, it would be noted, did not
place any embargo on tbe appellant's going to Belgaum for the purpose
of and in connection with the departmental enquiry.
In fact
the
appellant fully participated in the enquiry held at that place.
He also
made full use of tbe assistance of a police man (called police friend)
provided to him to conduct tbe defence on his behalf.
The police
friend appeared on his behalf before tbe Enquiry Officer and crossexamined all the witnesses whom the prosecution examined or tendered
for cross-examination.
He was also furnished with copies of
the
statements of tbe three police constables recorded by the Cantonm'ent
P.S.I. and allowed an adequate opportunity of cross-examining them.
There is also nothing to indicate that the appellant's request for an
opportunity to examine any witness in his defence was refused. In
fact, he did examine some witnesses in his defence. In view of all
t~is, it cannot be held tbat a reasonable opportunity of defending
himself as contemplated by Article 311 of the Constitution was denied
to tbe appellant.
·
'
. ,
• '
K. L. SHINDE v. MYSORE (Jaswant Singh, J.)
917
Regarding the appellant's contention that there was no cogent
evidence to substantiate the charge against him, it may be observed
that neither the High Court nor this Court can re-examine and reassess the evidence adduced in domestic enquiries of the rature with
which we are at present concerned. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service
is a matter on which this Court cannot embark. It may also be
observed that departmental proceedings do not siand on the same
footing as criminal prosecutions in which high degree of proof is
required. It is true that in the instant case, reliance was pbced by
the Superintendent of Police on the earlier statements made by the
three police constables including Akki from which they resiled but
that did not vitiate the enquiry or the impugned order of dismissal,
as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act.
That apart, as already stated,
copies of the statements made by these constables were furnished to
the appellant and he cross-examined all of them with the help of
the police friend provided to him. It is also significant that Akki
admitted in the course of his statement that he did make the former
statement before the P .S.I. Khade-bazar police station, Belgaum, on
November 21, 1961 (which revealed appellant's complicity in the
smuggling activity) but when asked to expla.in as to why he made
that statement, he expressed his inability to do so.
The present case
is, in our opinion, covered by a decision of this Court in State of
Mysore v. Shivabsappa( 1) where it was held as follows :-
"Domestic tribunals exercising quasi-judicial functions
are not courts and therefore, they are not bound to follow
A
B
c
D
the procedure prescribed for trial of actions in courts nor
E
are they bound by strict rules of evidence.
They can, unlike
courts, obtain all information material for the points under
enquiry from all sources, and through all channels, without
being fettered by rules and procedures which govern proceedings in court.
The only obligation which the "law casts on
them is that they should not act on any information which
they may receive unless they put it to the party against whom
F
it is to be used and give him a fair opportunity to explain
it. What is a fair opportunity must depend on the facts and
circumstances of each case, but where such an opportunity
kas been given, the proceedings are not open to attack on
the ground that the enquiry was not conducted in accordance
with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before
such tribunal, the person against whom a charge is made
should know the evidence which is given against him, so
that he might be in a position to give his explanation.
When
the evidence is oral, normally the explanation of the witness
will in its entirety, take place before the party charged who
will have full opportunity of cross-examining him.
The position is the same when a witness is called, the statement
given previously by him behind the back of the party is put
(I) [1963] 2 S.C.R. 943 : A.I.R. 1963 S.C. 375.
G
A
B
c
D
E
F
918
SUPREME COURT REPORTS
[1976] 3 S.C.R.
to him, and admitted in evidence, a copy thereof is gi vcn
to the party and he is given an opportunity to cross-examine
him.
To require in that case that the contents of the previous statement should be repeated by the witness word
by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form
but of substance.
They are sufficiently complied with when
previous statements given by witnesses are read over to them,
marked on their admission, copies thereof given to
the
person charged and he is given an opportunity to crossexamine them."
Following the above decision, this Court held in State of U.P. v.
Om Prakash ( 1)
that the enquiry is not vitiated if the statements
taken at the preliminary stage of enquiry are made available to the
delinquent officer and he is given an opportunity to cross-examine
the witnesses in respect of those statements.
The decision of this Court in Ghanshyam Das Shrivastava v.
State of Madhya Pradesh( 2 ) on which strong reliance is placed is
clearly distinguishable and is not at all helpful to the appellant.
In
that case the appellant was deprived of the opportunity to defend
himself by participating in the enquiry which was held at Jagdalpur,
500 kilometres away from Rewa where the appellant was residing on
account of paucity of funds resulting from non payment of subsistence
allowance during his suspension.
For the foregoing reasons, we· do not find any force in the contention of counsel for the appellant that there was no evidence on
the record which could justify the appellant's dismissal from service.
Both the contentions raised on behalf of the appellant being without any substance, we find ourselves unable to interfere with
the
judgment and decree passed by the High Court.
The appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.
P.H.P.
(!) A.LR. 1970 S.C· 669.
(2) A.I.R. 1973 S.C. 1183.
Appeal dismissed.
" .
'