# H. C. SARIN v. UNION OF INDIA

- **Citation:** [1976] Supp. 1 S.C.R. 39
- **Court:** Supreme Court of India
- **Decided:** 1976-04-14
- **Case number:** Civil Appeal No. 1097 of 1970
- **Bench:** Y. V. Chandrachud, V. R. Krishna Iyer, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-c-sarin-v-union-of-india-7145
- **Pages:** 14

## Headnote

Adn1ini,~trative Law-DPpartn1ental enquiry-Principles of natural iustice.
l11dian Railways Establishment Code, Vol. I r. 1730.-Right of delinquent
officer to services of CNl advocate .or anothtr Railway official.
The appellant was a railway official of the Indian Railways, in London. In
connection ·with the purchase of stock from a West German fi~·m three charges
were framed against him that he obtained illegal gratification from the proprietor
of that firm and Jhat he had used official influence for personal advancement.
A board ()f e.nqμiry was set up by the Government of India and the enquiry was
held in London and West Germany. The board held that two of the charges
were proved and the appellant was dismissed from service. He filed a writ peti~
tion in the High Court which was dismissed.
Jn qppeal to this Court, it was contended that the enquiry was held in grOS6
violation of the principles of natural justice 8nd requirements of Art. 311 of the
Constitution; that the proprietor of the German firm made the false accusation
against him ih order to escape paymentl of damages:; that the chairman of the
board of enquiry was biased against him, and that the appellant was denied the
services o±.'
~L professional lawyer or a rail\vay official of his choice from India
for conduc:ing his defence and for cross-examining the proprietor of the German
Firm.
Dismis~:ng the appeal,
A
B
c
D
HEW : t 1) The correspondence that wassed between the board and the
E
appellant .:.hows tha~ there. was no violation of any principle of natural justice,
that the appellant waS given inspection of all necessary documents; that he was
given adequate and
~asona.ble opportunity to dei'end himself und that the
allegation that the ch~irman of the board was biased against the appellant was
totally false.
[46 B-C;]
(2) No principle of natural justice was violated in not making available to
the appeUant the services of a prof~sional lawyer or of another railway official
from India.
[51 BJ
(a) The enquiry was conducted in accordance with r. 1730 of ·the Indian
Ratlways .Establishment Code, Vo1. I, which
1prescribes the procedure for hold·
ing a departmental .enquiry.
There is nothing in •he rule about engagement of
a lawyer but the note appended to the
1 rlile provides· that in. a departmental enquiry the accmed may, if he so desires, be accompanied by another railway
officer, provided he is approved by the competent authority, and provided that
the perSon so nominated shall not be a professional lawyer.
[50 F-Gl
(b) The notes are promulgated with the rules. Their function is to provide
procedure, to control discretion, and to fill up gaps when rules are silent. Under
•he rule, the appellant was not entitled to the services of a professional lawyer.
[51 F.G]
TarQ Singh etc. etc. v. State of Raiasthan ·and ors., [1975] 3. SCR 1002, fol~
Jowed.
G
(c) E\·en if the note is treated as an executive instr_uction at)d not part of
H
the rule itself, there i• ru:i. reason why the authority should not follow tho note.
The authority \vould still have a discretion in the matter.
Tn the present case,
the question involved, v.;as a simple' one whether he had -taken money from the
A
40
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
proprietor. of the German firm. No prejudice was caused to the appellant, because
the propnetor was only- a lawyer in name but was actively in business and the
services of a professional lawyer were not necessary to cros'Y-e--xaminc. him.
[51 BJ
(d) The appel1ant v/anted an officer from India to assist him in the conduc.'l
of his defence.
Under the rule, he was not entitled, as a matter of righ~, to
have the services of any railway officer stationed in India.
He was in fact giyen
B
a choice to choose either on~ stationed in London or on the Cohtinent.
[51 G~H]
c
D
E
F
G
H
C. L. Sabro111ania1n v. Collector of Customs, Cochin. [19721 3 SCH. 485,
explained and distinguished.
R. v. Secretary of State for the Honie Deparlfnent ex parte Mughal [1973]
All Engl

## Text

•
-
•
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l
H. C. SARIN
v.
UNION OF INDIA
April 14, 1976
39
[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]
Adn1ini,~trative Law-DPpartn1ental enquiry-Principles of natural iustice.
l11dian Railways Establishment Code, Vol. I r. 1730.-Right of delinquent
officer to services of CNl advocate .or anothtr Railway official.
The appellant was a railway official of the Indian Railways, in London. In
connection ·with the purchase of stock from a West German fi~·m three charges
were framed against him that he obtained illegal gratification from the proprietor
of that firm and Jhat he had used official influence for personal advancement.
A board ()f e.nqμiry was set up by the Government of India and the enquiry was
held in London and West Germany. The board held that two of the charges
were proved and the appellant was dismissed from service. He filed a writ peti~
tion in the High Court which was dismissed.
Jn qppeal to this Court, it was contended that the enquiry was held in grOS6
violation of the principles of natural justice 8nd requirements of Art. 311 of the
Constitution; that the proprietor of the German firm made the false accusation
against him ih order to escape paymentl of damages:; that the chairman of the
board of enquiry was biased against him, and that the appellant was denied the
services o±.'
~L professional lawyer or a rail\vay official of his choice from India
for conduc:ing his defence and for cross-examining the proprietor of the German
Firm.
Dismis~:ng the appeal,
A
B
c
D
HEW : t 1) The correspondence that wassed between the board and the
E
appellant .:.hows tha~ there. was no violation of any principle of natural justice,
that the appellant waS given inspection of all necessary documents; that he was
given adequate and
~asona.ble opportunity to dei'end himself und that the
allegation that the ch~irman of the board was biased against the appellant was
totally false.
[46 B-C;]
(2) No principle of natural justice was violated in not making available to
the appeUant the services of a prof~sional lawyer or of another railway official
from India.
[51 BJ
(a) The enquiry was conducted in accordance with r. 1730 of ·the Indian
Ratlways .Establishment Code, Vo1. I, which
1prescribes the procedure for hold·
ing a departmental .enquiry.
There is nothing in •he rule about engagement of
a lawyer but the note appended to the
1 rlile provides· that in. a departmental enquiry the accmed may, if he so desires, be accompanied by another railway
officer, provided he is approved by the competent authority, and provided that
the perSon so nominated shall not be a professional lawyer.
[50 F-Gl
(b) The notes are promulgated with the rules. Their function is to provide
procedure, to control discretion, and to fill up gaps when rules are silent. Under
•he rule, the appellant was not entitled to the services of a professional lawyer.
[51 F.G]
TarQ Singh etc. etc. v. State of Raiasthan ·and ors., [1975] 3. SCR 1002, fol~
Jowed.
G
(c) E\·en if the note is treated as an executive instr_uction at)d not part of
H
the rule itself, there i• ru:i. reason why the authority should not follow tho note.
The authority \vould still have a discretion in the matter.
Tn the present case,
the question involved, v.;as a simple' one whether he had -taken money from the
A
40
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
proprietor. of the German firm. No prejudice was caused to the appellant, because
the propnetor was only- a lawyer in name but was actively in business and the
services of a professional lawyer were not necessary to cros'Y-e--xaminc. him.
[51 BJ
(d) The appel1ant v/anted an officer from India to assist him in the conduc.'l
of his defence.
Under the rule, he was not entitled, as a matter of righ~, to
have the services of any railway officer stationed in India.
He was in fact giyen
B
a choice to choose either on~ stationed in London or on the Cohtinent.
[51 G~H]
c
D
E
F
G
H
C. L. Sabro111ania1n v. Collector of Customs, Cochin. [19721 3 SCH. 485,
explained and distinguished.
R. v. Secretary of State for the Honie Deparlfnent ex parte Mughal [1973]
All England Law Reports·, 796, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1097 of 1970.
Appeal from the Judgment and order dated the 25th April 1967
of the Delhi High Court in Letters Patent Appeal No. 106-D
of
1964
M. N. Phadke, S. Balakrishnan
and
N. M. Ghatate,
for
the
Appellant.
L. N. Sinha, Sol. General, P. P. Rao and Girish Chandru,
for
Respondents.
The Judgment of the Court was delivered by
UNTWALIA, J.-This appeal is by certificate granted by the High
Court of Delhi under Article 133 (1) (a) & (b) of the Constitution
of India as it stood prior to the 30th Constitution Amendment Act.
No substantial question of law is involved in this appeal. It is to be
decided mostly on facts.
And since we are in agreement with the
judgment of the Division Bench of the High Court given in the Letters Patent appeal, we shall advert only to the necessary facts and
the main points argued before us.
Shri H. C. Sarin-the appellant was employed in foe
Indian
Railways as Senior Railway Inspector attached to the Office of the
India Stores Department at London.
He was in that job fro)ll the
6th August, 1954. The Government of India placed orders with
various firms in the United Kingdom and the continent for supply of
rolling stock and other materials for
the
Indian
Railways.
In
December, 1956 the appellant was deputed to the Essen Area of West
Germany as Senior Railway Inspector in which capacity he had to
inspect and pass the goods In the first instance at the site.
Although
this work of inspection in West Germany was entrusted to the German
Federal Railway In January 1958, the appellant remained
there associated with the work till Apn1 or May, 1958. In July, 1956 orders
were placed with M/s Leo Gottwald and Company for supply of
several breakdown cranes-both for meter gauge and broad gauge
railway tracks in India.
This was a family concern of one Dr. Hans
lllieter Gottwald.
Prior to the appellant's going to the Essen Area
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H. c. SARIN v. UNION ( Untwalia. J.)
41
.of West Germany, there were other Senior Railway Inspectors doing
the work o! inspection including one S. N. Hussain (since deceased)
immediately preceding the appellant. One of _the clauses m _th~ contract with Gottwald . was that he would be hable to pay hqmdated
damages in the specified sums if he made delay in the .delivery of the
cranes.
Eventually there being delay, the amount of such damages
was quantified at a figure in the neighbourhood of £ 45,000/-.
Dr. Gottwald carried on business of his firm at Dusseldotf
in
West Germany.
He came to London on July 30, 1958 to discuss
with Shri L. T. l"vladn<cni, Railway Advisor cerla,n technical aspects
of the cranes contract.
A meeting took place in the morning wherein
were present other officers including one Mr. Bayross.
In the
afternoon, Gottwald saw S. N. Hussain at the India Stores Department when the latter told the former that delay had occurred in the
supplies of cranes and consequently the firm of contractors may have
to pay liquidated damages.
Upon this, Gottwald disclosed that
Sarin was responsible for the delay, he had t;:.kcn money by way of
bribes from the firm and in such a situation the firm was not liable
to pay any damages.
Since the allegation made by Gottwald against
Sarin was a serious one S. N. Hussain advised him to inform Madnani about it.
He did accordingly.
After some preliminary steps
Gottwald's statement was recorded on September 8, 1958 at India
Stores Department where he gave a detailed account of the allegedly
corrupt practices of the appellant.
Shri Shukla was
the
Director
General of the India Stores Department at the relevant time.
He directed Gottwald to furnish some tentative pfoof in support of his accusation against Sarin.
Gottwald's seconi:I'' statement was recorded
on October 21, 1958.
One Shri M, A. Hussain, I. C .. S. was
the
Deputy High Commissioner for India stationed in U. K. at the relevant time.
On examining the papers and the statements of
Dr.
Gottwald given before the various officers of the India Stores Department the Deputy High Commissioner formed an opinion
that
prima facie the accusations against the appellant were such that required to be investigated in a departmental enquiry.
He accordingly made a recommendation to that effect to the Government of
India.
The Government, however, directed a preliminary
enquiry
to be made by Shri N. S. Pandey, Financial Advisor to the Indian
High Commission and then to start a departmental enquiry, if neces-
~ary.
Accordingly, Pandey went to Gottwald's place in West Germany, made preliminary investigations and submitted a report dated
January 19, 1959 finding a prima facic case made out against
the
delinqnent government servant.
At the instance of the Government
of India, ~inistry of Works, Housing and Supply,
charges
were
served upon the appellant on April 7, 1959 along with two Annexures
containing various details of the accusations made by Gottwald against
him.
The appellant was asked to indicate by April 15 the papers
which he wanted to inspect and the papers the copies of which he
required to enable him to enter his defence.
He was ask,ed to submit his written explanation by 30th of April, 1959. fa the meantime
he was placed under suspension.
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SUPREME COURT REPORTS
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Shorn of d1tails which were to be found in the Annexures
the
Charge-Sheet served on the appellant contained the following three
~~:
-
"CHARGE I.
That Shri H. C. Sarin, while functioning as the Senior
B
Railway Inspecting Officer in the India Stores Department,
London, during the period between December, 1956 and
May, 1958, demanded and obtained illegal
gratification
from the firm of Mes_srs.
Leo Gottwald of Dussaldorf.
c
D
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F
G
H
:t •..
CHARGE II.
That durin~ the aforesaid period and while' functioning
as aforesaid, the said Shri H. ·e. Sarin violat\:4,Rute' 10 of
the Railway Services '(Conduct) Rμles, 19515 in that
he
accepted an Opel Car from Messrs: Talbots of Achen as a
gift.
CHARGE Ill.
That during the aforesaid period and while functioning
as aforesaid, the said Shri Sarin ·nsed his official influence
for personal advancement."
..
Time for filing the written defence by the appellant was extended.
It was filed on May 27, 1959. The appellant denied all the charges
against him.
The Board .. of Enquiry set up by the Government of
India consisted of the {ol!Owing :
( 1) Shri M. A. Hussain, ICS, Deputy High Commis-
. sioner, Chairman.
(2) Col. Hendricks, Deputy
Director
General
(Inspection), I. S. D., London, Member.
( 3) Shri ff. M. Duraiswamy, peputy Director General,
I. S. D., London, Memtier~
The correspondence which passed between the appellant and the
Board in connection with the departmental enquiry instituted against
him is too voluminous to be referred ·to in this judgment.
No useful
return will be achieved by referring to the correspondence in any
detail.
Suffice it to say at this stage that the correspondence does
indicate a calculated design and planned attempt on !hi: part of the
appellant to non-cooperate with the enquiry and an anxiety and earnestness on the part of the Board to proceed in the matter as fairly
as possible in the circumstances of the case. The Board was obliged
to go to Du55eldrof. bold an enquiry at the spot by examining as
many as 21 witnesses there, some of whom had been cited by the
appellant as his defence witnesses and to examine the relevantpapers,
documents and account books of the contractor's firm.
All
this
proceeded ex-parte between July 14 to July 17, 1959.
The Board
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•
II. c. SARIN v'. UNION ( Untwalia. '/.)
43
returned to London on July 19 and examined some witnesses there
A.
who had bce11 cited as defence witnesses by the appellant.
Almost
the entire departmental enquiry had to be conducted ex-parte as the
appellant would not participate in it even with a pair of tongs.
The appella11t had named S/Shri Bhalla, Sharma, Johri and Sen,
Railway officers in India as his defence witnesses.
He was asked to
· examine them by questionnaries as it was not possible to call them
to London for the purpose of the enquiry. Nor was their evidence
so material as to necessitate their examination viva-voca before the
Board.
The appellant refused to cooperate and did not sulimit any
questionnaire.
The Board, thereupon, sent to all the. four officers
aforesaid copies of the charges levelled against the appellant
and
asked them to state if they had anything to say in relation to them.
Bayross was .examined by the .Board in London on September 29,
1959 after copies of the .earlier statements of the witnesses and other
papers had been supplied to the appellant on September 21, 1959.
The appellant was present on September 29 but did not actively participate i:t the enquiry, in that he did not take any part in it by crossexamining B~yn:~ss.
The Board submitted its report to the Government of India on
November 2, 1959 holding that charges I and III had been proved
against the appellant and charge II had neither been proved
nor
disproved. .The Government gave a show-cause notice on November 4, 1960 to the appellant asking him to show cause against his
removal.
He filed his reply on January 31, 1961. Later, however,
the Go\·ernment gave another show cause notice dated September
20, 1961 to the appellant to show cause as to why he should not be
dismissed from service. In October/November, 1961 the appellant
filed fr.ree show cause explanations in writing.
He made another representation to the Government on March 4, 1962 for holding a fresh
enquiry which naturally was not acceded to.
Eventq,ally the appellant was dismissed from service by an order of the Government of
India dated September 10, 1962. He filed a writ petition in
the
High Court on December 6, 1962 to challenge the order of dismis-
. sal on several grounds, in nut shell, on · the · ground· ·of · violation
of· principles of natural justice··in the conduct of the enquiry.
A learned single Judge of the High Court by his judgment and order
dated August 3, 1964 allowed the writ petition and quashed the order
of dismissal without any further or consequential order. A Letters
Patent appeal was filed by the Government which was disposed of by a
Bench of the Delhi High Court on April 25, 1967. The judgment of'
the single Judge was set aside and the order of dismissal passed against
the appellant by the Government was maintained holding that, there
was no violation of the principles of natural justice in any . manner.
Since the amount of salary payabfo to.the appellant if the dismissal
order could be found to be .bad would, indisputably. have. been ·man•
than Rs. 20,000/- certificate was granted ·under Article !33(1)(a) &
(b), strictly speaking, nnder sub,.clause (b). Thus comes this appeal
in this Court.
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[1976] SUPPLEMENTARY
.A
Mr. M. N. Phadke, learned counsel for the appellant pressed only
the following points iu support of the appeal.
ff
(1) That the appellant was not allowed to go to Germany
to examine and assess various matters which \Vere
necessary for submission and conduct of his defence.
It was done so in gross violation of the principles of
natural justice and requirement of Article 311 of the
Constitution.
(2) That copies and inspection of certain relevant and
necessary documents were not allowed to the appellant
by the Board. It was not possible for him to cooperate and participate in the enquiry without them.
( 3) That no adequate and reasonable opportunity was
given to the appellant to defend himself at the enquiry.
( 4) That the accusation made by Gottwald against the
appellant was maliciously false as it was made with
the ulterior motive of saving his firm from the liability
of liquidated damages. As a matter of fact the firm
was not made to pay any damages in view of Gottwald's success in his false
accusation
against the
appellant.
( 5) That Shri M. A. Hussain. Chairman of the Board of
Enquiry was highly biased against the appellant and
the enquiry conducted under his stewardship was a
farce.
(6) That Shri S. N. Hussain was inimically disposed towards and adversely interested against the appellant.
(7) That the services of a professional lawyer for crossexamining Gottwald and a Railway officer of his •
choice from India were not made available to the
appellant for conducting his defence.
Learned Solicitor General appearing for the Union of India-the
respondent-refuted all the submissions made on behalf of the appellant. In particular he focussed his submissions on point nos. 1, 5 and
7 as the other four points, counsel submitted, did
not require any
detailed reply.
Point No. L
When the appellant was placed under suspension, in accordance
with the relevant service rules he was asked not to leave London
without permission of the Board.
As soon as tho Charge Sheet was
se!:Yed on_ hi'!' )'Y his l~t!er dated the l?th .April, 1959 the appeUan.~
.
wanted perm1ss1on to v1S1t Germany statmg m para 6 :
,
"'In order for me to prepare my defence I would request
permission to visit Germany to collect essential information
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H. c. SARIN v. UNION ( Urltwalia. !.)
required when submitting my written defence, especially as
the charges refer to periods two to three years ago."
45
The Chairman of the Board of Enquiry in his reply dated the 15
April, 1959 stated in para 3 thus :
"In regard to your
request to be
permitted
to visit
Germany, the Board would like to 'have in writing before
B
April 20, 1959, the purpose for which you wish to visit
Germany and the names and addresses of person/persons
you wish to contact and the paper /papers you may wish to
examine."
The appellant sent his letter dated April 20, 1959 stating in para 4
ilim:
C
"Regarding the visit to Germany and the persons and
documents to be interviewed and seen, I thought it was plain
that this depended on the inspection of documents referred
to in paras 4 and 5 of your letter under reply.
Consequently
until I have done this properly, I shall not be in a position
to know what items or facts I require to investigate or check
in Germany.
I shall therefore be glad if you will postpone
this application of mine so that I may in due course specify
the visits, persons and papers."
D
The Chairman, thereupon, by this letter dated April 21, 1959 asked
the appellant to supply the information in respect of his visit to Germany
by April 30, 1959. In his letter dated April 30, 1959 the appellant
stated in para 3 thus :
E
"I submit in view of the grave charges, false allegations,
it is necessary for me to examine in detail Leo Gottwald's
system of accounting, storekeeping, procedure for telephone
accounting, mailing letters etc.
Likewise the system of
telephone connecting, booking, mailing lettern etc. at other
firms mentioned
by Dr. Gottwald.
This
is
absolutely
imperative and my defence would
be incomplete without
this.
In the absence of full information, examination of
all documents studying
systems of
working
mentioned
above, I am not in a position to submit names of persons.
I would request early arrangements may please be made
for me to study the systems of working mentioned above at
the respective firms in Germany."
The Chairman in para 4 of his letter dated May 1, 1959 informed the
appellant :
"In regard to your
request for
visiting
Germany in
order to examine the Leo Gottwald's system of acconnting,
F
G
store-keeping, mailing letters
etc., it is felt that it is not
H
necessary for you to visit Germany for the purpose because
witnesses pertaining to all these matters wm be called by
the Board for
examination and you "'ill be given
full
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SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
opportunity to elicit all relevant information required by
you."
Further correspondence followed in the matter and the appellant was
not given permission to visit Germany prior to the visit of the Board
of Enquiry.
In the light of the relevant correspondence which passed between
the appellant and the Chairman of the Board of Enquiry we have
come to the conclusion that it was not at all necessary for the appellant
to visit Germany for preparing his defence.
The Board committed
no m.ist~ke and violated no principles of natural justice in refusing the
perm1ss10n. No useful purpose would have been served by such a visit
in
the
interest
of
the
appellant's
defence,
if
any.
On the other hand his insistence to visit Germany at the earliest
opportunity smacks of some ulterior design on his part in r~Qard to
his defence.
-
When the Board decided to visit Germany for holding the enquiry,
it gave ample opportunity to the appellant to proceed to Germany to
take
part in
it.
The
main
part of
the
enquiry,
rather,
the only substratum of the materials was to be done and
collected at Dusseldorf in Germany.
Yet on one excuse or the other
the appellant, it appears, was advised to adopt an attitude of noncooperation which was likely to forge a ground of attack on the depart-
·~n~al enquiry, tjiinkμig that participation in it would, perhaps,
worsen his case.
It is found more often than not that Government
servants who have no real defence to take against the accusations
are advised, and sometimes not without success, to non-cooperate
with the enquiry.
It seems to us this was one such case.
The Chairman by his letter dated June
18, 1959 asked
the
appellant Whether he proposed to be present at the enquiry
at
Dusseldorf and such other places as the Board may determine on the
dates to be intimated to him. . The appellant was specifically asked
this question because he cast some baseless aspertions against the
Board in his letter dated the 4th June, 59.
The appellant in his
letter dated the 14th June had stated in para 14 :
"In the circumstances that I have put into, and hardly
been left any choice, I
feel no useful purpose
can be
served by my attending such an enquiry or having anything
further to do with such as enquiry."
The appellant's reply dated June 20, 1959 clearly demonstrates the
unjustifiably non-cooperative attitude of the
appe~lant He was
running from pillar to post to find out some excuse to 1ustify his noncooperation at the enquiry.
He insisted that Dr. Gottwald's statement recorded in September, 1958 should be got signed by lum wht:h
the Board rightly did not consider it necessary to do.
Another w1'.d
stand which the appellant had taken was that the contents of his
written defence submitted on May 27 were made known to S. N.
Hussain by some member of the Board of Enquiry-an
al!egation
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H. c. SARIN v. UNION (Untwalia, J.)
47
which was strongly refuted by the Board.
Lastly in the 10th paraA
graph of his letter dated June 20 the appellant said : "What can I
do Mr. Chairman in the position you
have placed me, you may
proceed in any way you consider reasonable, just and fair."
In spite of the unreasonable and unsustainable stand of the appellant, the Board of Enquiry, constituted as it was of high officials
of the Government of India headed by the Deputy High Commissioner
B
stationed in London, time and again expressed their anxiety to make
the appellant participate in the enquiry.
But the appellant under
a wrong advice played a game of hide and seek, at times adopted a
tantalizing attitude showing his willingness to cooperate, but backed
out at the eleventh hour.
To justify this comment we just mention
~ome of the letters viz.
letter of the Board dated June 22, appellant's
reply dated June 23, Board's letter dated June 26, appellant's sticking
C
to his previous stand in his letter dated June 29, Board asking the
appellant to proceed to Germany in their letter date.d, July 2 and the
appellant's reiterating his previous stand in his letter dated July 8.
From the report of the Bc1ard it would appear that Sarin did not give
a categorical answer as to whether or not he would go to. Dusseldorf
on July 13.
On fue 10th July, he agreed to go and came to India
Stores Department to collect his advance of T. A.
But on the
D
evening of July 11, he informed the Secretary to the Board that he
would not proceed to Dusseldorf to be present at the oral enquiry.
Mr. Phadke drew our attention to Sarin's show cause reply dated
January 31, 1961 in which he stated that the Board permitted him to
go to Dusseldorf only if he agreed to participate in the oral proceedings there, otherwise not.
He therefore, cancelled his reservations
to proceed to Dusseldorf. He also referred to the photostat copy
E
of the appellant's letter dated July 24,
1959 and the addendum to
this letter.
Nothing new; the same stand was taken by the appellant.
This, to our mind, makes patent the latent factor in the
mental attitude of the appellant.
Did he want to go to Dusseldorf
without agreeing to take part in the enquiry ? Or did
he want
to go there to participate in it? •
·
Having appreciated all that has been said for the appellant
in
support of his first point we have come to the conclusion that ifi.e
appellant was not denied any
reasonable
opportunity of visiting
Germany at the proper time to participate in the enquiry.
He ha•
to thank himself for deciding not to go.
Point No. 2.
It is not necessary to enter into any detailed discussion of this
point.
In agreement with the Bench of the High Court we hold
that aH .relevant documents were made available to the appellant either
for inspection or for copies.
Some file containing the field inspection papers was not traceable.
The suspicion of the Board was
F
G
that the Prosecutor at the departmental enquiry was not to gain
H
anything by making the file untraceable.
On the other hand it was
the appellant wh0 was to gain by it.
The very same letters exchanged
between the appellant and the Board in June and July, 1959 dealt
48
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[1976) SUPPLEMENTARY
A
with this aspect also.
The High Court has extracted passages from
the relevant letters in this connection and has rightly held :
B
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F
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"It appears to us to be clear from this correspondence
that all ·legitimate demands of the respondent for the inspection of papers which were available in the ISD office in
London were fulfilled, but the respondent went on making
unfounded claims in
this behalf
without
specifying
the
documents.
\Ve therefore, 'hold that all documents which
were available in the ISD office in London were made avail-·
able to the respondent."
Point No. 3.
In support of the third
point arguments were
advanced
with
reference to letters dated July 18, August 6 and October 6, 1959.
Notes were handed over to us referring to the other pieces of correspondence.
We have studied them but think it unnecessary to increase
the bulk of our judgment by referring to the correspondence in any
detail.
It merely shows that on one ground or the other the appeHant was adopting delaying tactics, shifting stands and excuses for
not presenting himself at the enquiry either
to cross-examine
the
prosecution witnesses or to examine his defence witnesses. All the time
he was reiterating his stand taken in his letters dated June 14, and
June 20. 1959.
The detailed report of the Board of Enquiry, apart from the correspondence which preceded it. is a clear proof of the anxiety ol' the
Board to conduct the enquiry as fairly and fully as they could 111
the circumstances of the case.
The submission of the appellant is
rejected as- being devoid of substance.
In view of the attitude taken by the appellant of complete noncooperation in his letters dated June 14 and June 20, 19 59 no useful
purpose would have been served by associating him 'With the examination of the witnesses in London.
Madnani and S. N. Hussain
were examined in July and August.
The appellant never expressed
hi:> willingness to cooperate and be present at the examination of
the witnesses in London.
His presence at the time of the examination of Bayross was a make-believe more of cooperation to colour
and cloud his real attitude of non-cooperation. The Board committed
no irregularity or illegality in sending a general questionnaire to SI
Shri Bhalla, Sharma, .lohri and Sen in India as the appellant had
refused to submit a questionnaire.
Copies
of
all
the
relevant
statements and papers given lo the Board at Dusseldorf were given
to the appellant in September, 1959.
Although there was some
delay in supply of these papers, that did not cause any prejudice lo
the appellant.
H
Point No. 4
This point mainly concerns the merits of the findings
of
the
+
Board of Enquiry and their final acceptance by the Government of
'
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t
.,
r
H. c. SARIN v. UNION ( Untwalia, .J.)
49
India.
Whether a charge levelled against the appellant was true or
false had to be and has been judged in the light of the appellant's stand
that Gottwald had a motive to accuse falsely the appellant of having
ta-ken bribe from him in order to establish that he was not at fault in
the delay which was mad.e in the delivery of the contracted cranes.
Without much elaboration we reject this argument.
·Gottwald was
to gain by merely throwing the blame on the shoulders of Sarin.
He
had nothing to gain and only to lose by making an accusation of
having paid bribe to Sarin under his pressure.
No person would
like to involve himself in the deal of payment of bribe to a Government
servant merely for the purpose of explaining the delay caused in effecting the deliveries.
Ordinarily bribe could be paid so that there may
not be any delay in inspection.
But here was a case where
it is
said delay was caused in the inspection because there was delay in
the payment of the bribe.
It is not for us to examine in any detail
the correctness of the findings recorded against the appellant at the
departmental enquiry; but in passing, we may just observe that it could
not have been possible for Gottwald to make a false accusation ag11inst
Sarin, and then support it before the Board by examining his father,
the bank records, vouchers, account books and a large number of
persons working in his firm.
There was nothing in the records of
this case to show that the claim of liquidated damages against the
contractor was given up in view of the finding of guilt of the appellant.
We were informed at the Bar by the Solicitor General that the claim
was settled and not given up.
Be that as it may, we find
the
fourth submission made on behalf of the appellant unsustainable.
Points 5 and 6
These points may be dealt with together as they have got some
inter-connection. It could not be substantiated on behalf of the appellant that S. N. Hussain had any animus against him or was adversely
interested against him in the matter.
Some letters with reference
A
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to the work of S. N. Hussain at Bafmingham with comments of the
appellant thereon were placed before us.
Mr. Phadke could
not
F
substantiate the point with reference to them.
Time and again he
laid stress on the fact that Gottwald made this complaint to Madnani
on July 30, 1958 on being asked to do so by S. N. Hussain because
he had his own axe to grind against Sarin. This
argument has
been stated merely to be rejected.
It was just in the natural course
of events that when S. N. Hussain was finding fault with Gottwald
for the delay in the execution of the contract the latter became forced
G
by circumstances to blurt out the truth.
The accusation
against
Sarin was too serious to be taken note of by S. N. Hussain alone.
Naturally, therefore, he advised him to go and make this complaint to
the higher officer Madnani.
No connection between M. A. Hussainthe Chairman of the Board and S. N. Hussain-a Senior Inspector
who was in Essen Area of We.st Germany immediately before the
appellant, was established.
It is, an argument of desperation to sugB
gest that M. A. Hus~ain was biased against the appellant to protect
or help S. N. Hussain.
The char£e of being communal
levelled
against the Chairman by the appellant in his letter dated October
6-833SCI/76
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5, 1959 written to the Government of India was obviously made with
an ulterior motive after conclusion of the enquiry and sensing that
it had gone against the appellant.
Great stress was led in court to
show M. A. Hussain's bias on the ground that at the earlier stage in
the later half of 1958 he had formed his opinion against the appellant
and recommended and insisted for the starting of a
departmental
enquiry against him without any further preliminary enquiry.
Mr.
Phadke Sl!bmitted that the Government turned down the proposal of
M. A. Hussain and directed a preliminary enquiry to be made
by
Pandey.
We do not appreciate the force of this
argument.
It
would appear from the enquiry report that M. A. Hussain did not
want, as he had no time, to be the Chairman of the Board of Enquiry.
Being a Deputy High Commissioner he was too busy in other affairs
of the State.
But since the matter to be enquired into was against
a high official of the Government, M. A. Hussain was appointed as
the Chairman of the Board. The appellant never objected to his being
on the Board, until after the conclusion of the enquiry.
We are distressed to find that the appellant was ill-advised to invent at a. late
stage a crudse and false story that on the 5th October, 1959 Dorais-.
wamy-a member of the Board of Enquiry had shown th.e
secret
file to the appellant which showed the bias of M. A. Hussain as he
had dealt with the matter in the latter half of 1958.
Although according to the statement in the Writ Petition (vide para 28) he had written
his letter dated October 5, 1959 after the alleged ·showing of the
confidential file by Doraiswamy to him, not a word is to be found in
the said letter to this effect.
Such a story was put forward in the
written explanations which the appellant filed in answer to the. punishment show cause notices.
We reject points 5 and 6 of the appellant.
Point no. 7
The enquiry was being conducted in accordance with Rule 1730
of the Indian Railway Establishment Code, Volume I.
In the main
body of the rule where a procedure for holding a departmental enquiry
has been provided for, there is nothing said in relation to the engagement
of a lawyer.
Certain notes are appended to the rule.
They seem
to have been appended not on the basis of the executive instructions
hut as parts of the rule itself.
One such note was appended as note
4, which subsequently became note 3, on September 25, 1956 by the
President of India who had framed Rule 1730.
This note reads as
follows
G
"In a departmental enquiry, the accused railway officer
may, if he so desires, be accompanied by another railway
officer provided that the officer so nominated as the defence
counsel is approved by the competent authority to act as
such, and provided also that the person so nominated shall
not be a professional lawyer.
The term 'professional lawyer includes those persons ·who are competent to practice
H
m a court of law.'
In face of the above note, treating it as a part of the rule, the appellant was not entitled to the services of a professional lawyer. Gottwald,
!
•
•
-
)
H. c. SARIN v. UNION ( Untwalia, J.)
51
as it appears, was a lawyer in name but actively in business.
The
services of a professional lawyer were not necessary to cross-examine
him.
The fact was a simple one as to whether he had paid money to
the tune of about 24,000 D.1\1. to the appellant from time to time.
Even if we treat the note aforesaid as one based merely on the execu-
. tive instructions and not a part of the rule itself, we see no reason to
say that the authority was obliged not to follow the note but to go
against it.
At the most it had a discretion in the matter.
The
question is whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the ~onc!usion that principles
of
natural justice were violated when the services of a professional lawyer were not made available to the appellant.
We give the answers
against the appellant.
Great reliance was placed for the appellant
on a decision of this Court in C. L. Subramaniam v. Collector of Customs, Cochin( 1).
In this case the argument that, rule or no rule,
the services of a professional lawyer should be made available at a
departmental enquiry when asked for was uot accepted.
What was
held in that case was that the disciplinary authority brushed aside
the request of the appellant before the Surpreme Court on a wrong
ground completely ignoring the circumstances which were relevant.
It . was, therefore, said at page 490 :
"Therefore that authority clearly failed to exercise the
power conferred on it under the rule.
It is not unlikely
that the Disciplinary Authority's refusal to permit the appellant to engage a legal practitioner in
the circumstances
mentioned ~arlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity
to defend himself."
In Tara Singh etc. etc. v. State of Rajasthan and Ors.(')
the importance which is to be attached to the note appended the rule
has been emphasized by Ray, C. J.
delivering the judgment on behalf of the Division Bench of this Court to which one of us (Krishna
Iyer, J) is a party, in these terms :
"The notes are promulgated with the rules in exercise of
legislative power.
The notes are made contemporaneously
with the rules.
The function of the notes is to provide
procedure and to control discretion.
The real purpose of
the notes is that when rules are silent the notes will fill up
gaps."
The appellant was not entitled as a matter of right to have the
services of any railway officer stationed in India to assist him in the
conduct of his defence.
He wanted an officer from India especially
Shri Bhalla.
It was not possible to make available the services of
an officer from India.
The appellant was given a wide field
of
choice either to choose any railway official stationed in London or in
the continent or some other personnel of the Indian High Commission
in London.
The accusations made against the appellant were not
·--------
(!) [1972] 3 S. C.R. 485.
(2) [1975] 3 S. C.R. 1002.
A
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H
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such that required any expert or special skill.
The question was a
simple one whether he had taken money from Gottwald iIJ, dischaige
of his official duties.
Having appreciated all the facts and circumstances of the case we have come to the conclusion that no principle
of natural justice was violated in not making available to the appellant
the services of Shri Bhalla or any other railway officer stationed in
India for the conduct of his defence.
In the entire background of this case we find a passage occuring
at page 803 in the Judgment ol Lord Denning, Master of the Rolls
in the case of R v. Secretary of State for the Home Department ex
parte Mugha/( 1) quite apposite to be quoted.
The passage run&
h
•
~
t us :
'.'°l!
C
"The rules of natural justice must not be stretched too
far.
Only too often the people who have done wrong
seek to invoke 'the rules of natural justice' so as to avoid
the consequences."
·
In the result we find no merit in this appeal and dismiss it with
costs.
V.P.S.
Appeal dismissed.
(!) (1973] 3 All England Law Reports, 796. ·
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