# UNION OF INDIA v. September lS T. R. VARMA

- **Citation:** [1958] 1 S.C.R. 499
- **Court:** Supreme Court of India
- **Decided:** 1956-01-31
- **Case number:** Civil Appe<tl No. 118 of 1957
- **Bench:** S. R. Das C.J, Venkatarama Ayyar, B. P. Sinha, L. Kapur, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-september-ls-t-r-varma-1475
- **Pages:** 10

## Headnote

Government Servant-Dismissal-Enquiry-Procedure for taking
evidence-Applicability of the Indian Evidence Act-Rules of natural
justice-Reasonable
opportunity-Constitution of India, Art, 3 I I
(2).
-
Writ-Special jurisdiction of High Court-Alternative remedy
-Disputed questions involving taking of evidence-Practice of the
High Court-Constitution of India, Art. 226.
The respondent was dismissed
from service under the
Government of India in pursuance of an enquiry held under
Art. 311 of the Constitution of India. He filed an application in
the High Court under Art, 226 to quash the order of dismissal on
~he
grounds inter alia that in t!ie enquiry the
evide11-ce
of the respondent and his witnesses was not taken in the mode
prescril)ed by the Indian Evidence Act and that as a result he
was not given a
reaso~ble opportunity as required under
Art. 311 (2). It was found that though the procedure laid down
in that Act was not strictly followed the respondent was given
a full opportunity of placing his evidence before the Enquiring
Officer.
Held: (I) Petitions under Art. 226 of the Constiiutiou should
not generally be entertained by the High Courts where an alternative and equally efficacious remedy is available.
It is not the
practice of Courts to decide in a writ-petition disputed questions
which cannot be satisfactorily decided without taking evidence.
Rashid Ahmed v. Municipal Board, Kairana, (1950) s:c.R. 566
and K.S. Rashid and Son v. The Income-tax Investigation Commission (1954) S.C.R. 738, relied on.
(2) The Indian Evidence Act has 110 application to enquiries
conducted by tribunals. The law only· requires that tribunals
should observe rules of natural justice such as that a party should
have the opportunity of adducing au . .retevant evidence on which
he relics, that the evidence of the opponent should be taken in
his presence and that he should
~ given the opportunity of
cro:>s-cxam.ining the witnesses ex1mined by that party, and that no
materials should be relied on against him without his being given
an opportunity of explaining them. If these ru'Ies are satisfied
then the enquiry is not open to attack on the ground that the
procedure laid down in th~ Indian Evidence Act for taking evidence
was not strictly followed.
New Prakash Transport Co. v. New Suwama Transport Co .•
(1957) S.C.R. 98,
follcwed.
1957
Union of India
v.
T. R. Varnia
Venkatarama
Aiyar J.
500
SUPREME COURT REPORTS
[1958]

## Text

SUPREME COURT REPORTS
499
UNION OF INDIA
1957
V.
September
lS
T. R. VARMA
(S. R. DAS C.J., VENKATARAMA AYYAR, B. P. SINHA,
J, L. KAPUR and A. K. SARKAR, JJ.)
Government Servant-Dismissal-Enquiry-Procedure for taking
evidence-Applicability of the Indian Evidence Act-Rules of natural
justice-Reasonable
opportunity-Constitution of India, Art, 3 I I
(2).
-
Writ-Special jurisdiction of High Court-Alternative remedy
-Disputed questions involving taking of evidence-Practice of the
High Court-Constitution of India, Art. 226.
The respondent was dismissed
from service under the
Government of India in pursuance of an enquiry held under
Art. 311 of the Constitution of India. He filed an application in
the High Court under Art, 226 to quash the order of dismissal on
~he
grounds inter alia that in t!ie enquiry the
evide11-ce
of the respondent and his witnesses was not taken in the mode
prescril)ed by the Indian Evidence Act and that as a result he
was not given a
reaso~ble opportunity as required under
Art. 311 (2). It was found that though the procedure laid down
in that Act was not strictly followed the respondent was given
a full opportunity of placing his evidence before the Enquiring
Officer.
Held: (I) Petitions under Art. 226 of the Constiiutiou should
not generally be entertained by the High Courts where an alternative and equally efficacious remedy is available.
It is not the
practice of Courts to decide in a writ-petition disputed questions
which cannot be satisfactorily decided without taking evidence.
Rashid Ahmed v. Municipal Board, Kairana, (1950) s:c.R. 566
and K.S. Rashid and Son v. The Income-tax Investigation Commission (1954) S.C.R. 738, relied on.
(2) The Indian Evidence Act has 110 application to enquiries
conducted by tribunals. The law only· requires that tribunals
should observe rules of natural justice such as that a party should
have the opportunity of adducing au . .retevant evidence on which
he relics, that the evidence of the opponent should be taken in
his presence and that he should
~ given the opportunity of
cro:>s-cxam.ining the witnesses ex1mined by that party, and that no
materials should be relied on against him without his being given
an opportunity of explaining them. If these ru'Ies are satisfied
then the enquiry is not open to attack on the ground that the
procedure laid down in th~ Indian Evidence Act for taking evidence
was not strictly followed.
New Prakash Transport Co. v. New Suwama Transport Co .•
(1957) S.C.R. 98,
follcwed.
1957
Union of India
v.
T. R. Varnia
Venkatarama
Aiyar J.
500
SUPREME COURT REPORTS
[1958]
CIVIL APPELLATE JURISDICTION : Civil
Appe<tl
No. 118 of 1957.
Appeal by special leave from the judgment and order
dated January 31, 1956, of the Circuit Bench of the
Punjab High Court at Delhi in Civil Writ No. 243-D
of 1954.
C.K. Daphtary Solicitor-General of India, R. Ganapathy Iyer and R.H. Dhebar, for the appellant.
Purshottam Tricumdas, T. S. Venkatraman
and
K. R. Chaudhury, for the respondent.
1957. September 18.
The following Judgment of the Court·was delivered
by
VENK'ATARAMA AIYAR, J.-This is an appeal by
special leave against the judgment and order of the
High Court of Punjab in an application under Art.
226 of the Constitution setting aside an order dated
September 16, 1954, dismissing die respondent herein,
from Government service on the ground that it was in
contravention of Art. 311 (2) of the Constitution.
The respondent was, at the material dates, an Assistant Controller in the Commerce Department of the
Union Government. Sometime in the middle of March,
1953, one Shri Bhan, a representative of a Calcutta
firm styled Messrs. Gattulal Chhaganlal Joshi, came
to Delhi with a view to get the name of the firm removed from black list in which it had been placed, and
for that purpose, he was contacting the officers in the
Department. Information was given to Sri Tawakley
an assistant in the Ministry of Commerce and Industry
(Complaints Branch), that Sri -Bhan was offering to
give bribe for getting an order in his favour.
He
immediately reported the matter to the Special Police
Establishment, and they decided to lay a trap for him.
Sri Bhan, however, was willing to pay the bribe only
after an order in his favour.had been made and communicated, but he offered that he would get the respondent to stand as surety for· payment by him. The
police thereafter decided to set a trap for the respondent, and it was accordingly
arranged that Sri
S.C.R.
SUPREME COURT REPORTS
501
Tawakley should meet, by appointment, Sri Bhan
and the respondent in the Kwality Restaurant in the
evening on March 24, 1953. The meeting took place
as arranged, and three members of the Special Police
Establishment were present there incognito. Then, there
was a talk between Sri Tawakley, Sri Bhan and the
respondent, and it is the case of the appellatit that
during that talk, an assurance was given by the re'spondent to Sri Tawakley that the amount would be
paid by Sri Bhan. After the conversation was over,
when the respondent was about to depart, one of the
·officers, the Superintendent of Police, disclosed his
identity, got from the respondent his identity card
and initialled it, and Sri Bhan also initialled it.
On March 28, 1953 the respondent received a notice
from the Secretary to the Ministry of Commerce and
Industry charging him with aiding and abetting_ Sri
Bhan in offering illegal gratification to Sri Tawakley
and attempting to induce Sri Tawakley to accept the
gratification offered by Sri Bhan, and in support of
the charges, there were detailed allegations relating to
meetings between the respondent and Sri Tawakley on
March 17, 1953, on March 21, 1953, a telephonic
conversation with reference to the same matter later
on that day, and the meetirig in the Kwality Restau·
rant already mentioned. The respondent was called
upon to give his . explanation to the charges, and he
was directed to state whether he wished to lead oral or
documentary evidence in defence. The enquiry was
delegated to "Mr. Byrne, Joint Chief Controller of
Imports and Exports. On April 10, 1953 the respondent submitted a detailed explanation denying that
he met Sri Tawakley either . on the 17th or on the
21st March, or that there was any telephonic conversation that day with him, and stating that the conversation which he had in the Kwality Restaurant on the
24th related to an insurance policy of his, and had
nothing to do with any bribe proposed to be offered by
Sri Bhan. The respondent also asked for an oral
enquiry and desired to examine Sri Bhan, Sri Fateh
Singh ant1 Sri Jai Narayan in support of his version.
On April 17, 1953 Mr. :(Jyrne gave notice to the
1957
Union of India
v.
T.R. Vlfl'ma
Venkat11rama
Aiyar J.
1957
Union of India
Y.
T.R. Yarma
Venkatarama
Alyar J.
502
SUPREME COURT REPORTS
(1958]
respondent that there would be an oral enquiry, and
pursuant thereto, witnesses were examined on April 26,
1953, and the following days, and the hearing was
concluded on April 27, 1953.
On July 28, 1953, Mr. Byrne submitted his report, and
therein, he found that the charges against the respondent had been clearly established. On this a communication was issued to the respondent on August 29,
1953, wherein he was informed that it was provisionally
decided that he should be dismissed, and asked to
show cause against the proposed action. Along with
the notice, the whole of the report of Mr. Byrne,
omitting his recommendations, was sent. On September 11, 1953, the respondent sent his explanation,
Therein, he again discussed at great length
the
evidence that had been adduced, and submitted that
the finding of guilt was not proper, and that no action
should be taken against him. He also complained in
this explanation that the enquiry was vitiated by the
fact that he had not been permitted .to cross-examine
the witnesses, who gave evidence against him. The
papers were then submitted to the Union Public
Service Commission in accordance with Art. 320, and
it sent its report . on September 6, I 954, that the
charges were made out, that there was no substance in
· the complaint of the respondent that he was
not
allowed to cross-examine the witnesses, and that he
should be dismissed. The President accepting -the
finding of the Enquiring Officer and the recommendation of the Union Public Service Commission, made
an order on September 16, 1954, that the respondent
should be dismissed from Government service.
The respondent then filed the application out of
which the present appeal arises, in the High Court of
Punjab for an appropriate writ to quash the order of
dismissal dated September 16, 1954, for the reason
that there was no proper enquiry. As many as seven
grounds were set forth in support of the petition, and
of these, the learned Judges held that three had been
established. They held that the respondent had been
denied an opportunity to cross-examine witnesses, who
gave evidence in support of the charge, that further
S.C.R.
SUPREME COURT REPORTS
503
he was not allowed to make his own statement, but
was merely cross-examined by the Enquiring Officer,
and that likewise, his witnesses were merely crossexamined by the Officer without the respondent himself
being allowed to examine them. These defects, they
observed, amounted to a denial of reasonable opportunity to the respondent to show cause against his
dismissal, and that the order dated September 16, 1954,
which followed on such enquiry, was bad as being in
contravention of Art. 311(2). In the result, they set
aside the order, and directed him to be reinstated.· The
correctness of this order is challenged by the SolicitorGeneral on two grounds : (1) that the finding that
the respondent had no reasonable opportunity afforded
to him at the enquiry is not supported by the evidence;
arid (2) that even if there was a defect in the ~nquiry,
that was a matter that could be set right in the
stage following
the show-cause-notice, and as the
respondent did not ask for an opportunity to crossexamine the witnesses, he could not be heard to urge
that the order dated September 16, 1954, was bad as
contravening Art 311 (2).
At the very outset, we have to observe that a writ
petition under Art. 226 is not the appropriate proceeding for adjudication of disputes like the present. Under
the law, a person whose services have been wrongfully
terminated, is entitled to institute an .action to vindicate his rights and in such an action, the Court will
be competent to award all the relief to which he may
be entitled, including some which would
not be
admissible in a writ petition. It is well-settled· that
when an alternative and equally efficacious remedy
is open to a litigant, he should be required to pursue·
that remedy and not invoke the special jurisdiction of
the Hight Court to issue a prerogative writ. It is true
that the existence of another remedy does not affect
the jurisdiction of the Court to issue a writ; but, as
observed by this Court in Rashid Ahmed v. Municipal
Board, Kairana ('), "the existence of an adequate legal
remedy is a thing to be taken into consideration in the
matter of granting writs". Vide also K.S. Rashid and
(1)[195o)S.C.R. 566.
1957
Union of India
v.
T.R. Yarma
y,nkatt11'ama
Alyl11' I.
Union of India
v.
T.R.
Varma
Venkatarama
Alyar J.
504
SUPREME COURT REPORTS
[19581
Son v. The I11come-tax I11vestigatio11 Commission(').
And where such remedy exists, it will be a sound
exercise of discretion to refuse to interfere in a petition
under Art. 226, unless there are good grounds therefor.
None such appears in the present case. On the other
hand, the point for determination in this petition
whether the respondent was denied a reasonable
opportunity to present his case, turns mainly on the
question whether he was prevented from cross-examining the witnesses, who gave evidence in support of the
charge. That is a question on which there is a serious
dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts
to decide questions of that character in a writ petition,
and it would have been a proper exercise of discretion
in the present case if the learned Judges had referred
the respondent to a suit. In this appeal, we should
have ourselves adopted that course, and passed the
order which the learned Judges should have passed.
But we feel pressed by the fact that the order dismissing the respondent having been made on September 16,
1954, an action to set it aside would now be timebarred. As the High Court has gone into the matter
on the merits, we propose to dispose of this appeal on
a consideration of the merits.
The main ground on which the respondent attacked
the order dated September 16, 1954, was that at the .
enquiry held by Mr. Byrne, he was not given an
opportunity to cross-examine the
witnesses, who
deposed against him, and that the findings reached at
such enquiry could not be accepted. But the question
is whether that allegation has been made out. In
· para. 7 of his petition, the respondent stated :
"Despite repeated verbal requests of the petitioner,
the Inquiry Officer did not permit him to crossexamine any witness, who deposed against him."
But this was contradicted by Mr. Byrne, who filed a
counter-affidavit, in which he stated :
"(4) That it is incorrect that no opportunity was
given to the petitioner at the time of the oral enquiry
(1)[ 1954] S.C.R. 739, 747·
S.C.R.
SUPREME COURT REPORTS
505
to cross-examine the witnesses who had deposed
against the petitioner.
(5) That all witnesses were examined in petitioner's
presence and he was asked by me at the end of each
examination whether he had any questions to put.
(6) That the petitioner only put questions to one
witness Shri P. Govindan Nair, and to others he did
not".
On this affidavit, Mr. Byrne was examined in Court,
and he repeated these allegations and added:
"I have distinct recollection that I asked Shri T.R.
Varma to put questions in cross-examination to
witnesses."
It was elicited in· the course of his further examination
that he did not make any note that he asked Shri
T. R. Varma to put questions in cross-examination to
witnesses, and that that might have been due to a
slip on his. part.
We have thus before us two statements, one by Mr.
Byrne and the other by the respondent, and they are
in flat contradiction of each other. The question is
which of them is to be accepted. When there is a
dispute as to what happened before a court or tribunal
the statement of the Presiding Officer in regard to it
is generally taken to be correct, and there is no reason
why the statement of Mr. Byrne should not be
accepted as true. He was 'admittedly an officer holding a high position, and it is not suggested that there
was any motive for him to give false evidence. There
are moreover, features in the record, which clearly
show that the statement of Mr. Byrne must be correct.
The examination of witnesses began on April 20, 1953,
and four witnesses were examined on that date,
among them being Sri C. B. Tawakely. If, as stated
by the respondent, he asked for permission to crossexamine witnesses, and that was refused, it is surprising that he should not have put the complaint in
writing on the subsequent dates 'on which the enquiry
was continued. To one of the witnesses, Sri
P.
Govindan Nair, he did actually' put a question in
cross-examination, and it is difficult to reconcile this
M2SC/61 IV-4
1957
Union of India
v.
T.R. Varma
Venkatarama
Alyar J.
1957
Union of l11dia
v.
T.R. Varma
Venkataroma
Alyar J.
506
SUPREME COURT REPORTS
[1958]
with his statement that permission had been refused
to cross-examine the previous witnesses. A reading of
the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and
elicited all relevant facts. It is not suggested that
there was any specific matter in respect of which
cross-examination could have been but
was not
directed. We think it likely that the respondent did
not cross-examine the witnesses because there was
nothing left for him to cross-examine. The learned
Judges gave two reasons for accepting the statement
of the respondent in preference to that of Mr. Byrne.
One is that there was no record made in the depositions of the witnesses that there was no cross-examination. But what follows from this? That, in fact,
there wa~ no cross-examination, which is a fact; not
that the request of the respondent to cross-examine
was disallowed. Then again, the learned Judges say
that the respondent was present at the hearing of the
writ petition before them, that they put questions to
him, and formed the opinion that he was sufficiently
intelligent, and that it was difficult to believe that he
would not have cross-examined the witnesses. We
are of opinion that this was a consideration which
ought not to have been taken into account in a
judicial determination of the question, and that it
should have been wholly excluded. On a consideration of the record and of the probabilities, we accept
the statement of Mr. Byrne as true, and hold that the
respondent was not refused permission to cross-examine
the witnesses, and that the charge that the enquiry
was defective for this reason cannot be sustained.
The respondent attacked the enquiry on two other
grounds, which were stated by him in his petition in
the following terms :
"(C) That the petitioner was cross-examined and
was not enabled to make an oral statement on his
own behalf.
(D) That the defence witnesses were not given an
opportunity to tell their own version or to be examined
by the petitioner as their depositions were confined
S.C.R.
SUPREME COURT REPORTS ·
507
to answers in reply to questions put by the Inquiry
Officer."
In substance, the charge is that the respondent and his
witnesses should have been allowed to give
their
evidence by way of examination-in-chief, and
that
only therefater the officer should have cross-examined
them, but that he took upon himself to cross-examine
them from the very start and had thereby violated
well-recognised rules of procedure. There is also a
complaint that the respondent was not allowed to put
questions to them.
Now, it is no doubt true that the evidence of the
respondent and his witnesses was not taken in the
mode prescribed in the Evidence Act; but that Act
has no application to enquires conducted by tribunals,
even though they may be judicial in character. The
law requires that such tribunals should observe rules
of natural justice in the conduct of the enquiry, and
if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not
in accordance with that, which obtains in a Court of
Law. Stating it boardly and without intending it to
be exhaustive, it may be observed that rules of natural
justice require that a party should have the opportunity of adducing all relevant evidence on which he
relies, that the evidence of the opponent should be
taken in his presence, and that he should be given the
opportunity of cross-examining the witnesses examined by that party, and that no materials should be
relied on against him without his being· given an
opportunity of explaining them.
If these rules are
satisfied, the enquiry is not open to attack on the
ground that the procedure laid down in the Evidence
Act for taking evidence was not strictly followed.
Vide the recent decision of this Court in New Prakash
Transport Co. v. New Suwarna Transport Co. (I), where
this question is discussed.
We have examined the record in the light of the
above principles, and find that there has been no
violation of the principles of natural justice. The
(1)[1957]S.C.R. 98.
56
1951
Union of India
v.
T.R. Varma
Yenkatarama
Alyar J.
1957
Union of lndJo
...
T.R.
Varma
V~nkotorama
Aiyar J,
508
SUPREME COURT REPORTS
[1958]
witnesses have been examined at great length, and
have spoken to all relevant facts bearing
on the
question, and it is not suggested that there is any other
matter, on which they could have spoken. We do not
accept the version of the respondent that he was not
allowed to put any-questions to the witnesses. Indeed,
the evidence of Sri Jai Narayan at p. 188 of the Paper
Book shows that the only question on which the
respondent wished this witness to testify was put to
him by Mr. Byrne. The evidence of Sri Bhan and
Sri Fateh Singh was,. it should be noted, wholly in
support of the respondent. The findings of Mr. Byrne
are based entirely on an appreciation of the oral
evidence taken in the presence of the respondent. It
should also be mentioned that the respondent did not
put forward these grounds of complaint in his explanation dated September 11, 1953, and we are satisfied
that they are wholly without substance, and are an
afterthought. We accordingly hold, differing from the
learned Judges of the Court below, that the enquiry
before
Mr. Byrne was not defective, that the
respondent had full opportunity of placing his evidence
before him, and that he did avail himself of the same.
In this view, it becomes unnecessary to express any
opinion on the second question, which was raised by
the learned Solicitor-General.
In the result, we allow the appeal, set aside the
order of the Court below, and dismiss the writ application. There will be no order as to costs.
Appeal allowed.