Title not extracted — [1984] 3 S.C.R. 244

• 244 " A. MUMTAZ HUSSAIN ANSARI v. STATE OF U.P. &-t\NR.

B March 21, 1984 . (S. MUllTAZA,FAZAL ALI, A. VARADARAJAN' AND ' RANGANATH MISRA, JJ) ' ' T•avelling Allowances 'Rules (Financial f!andbook Volume Ill-Rule: 20A(J~-Int:rpreiation of. I . . . •• G.O. No.. 419.7 R/V/fIA-SOO( / 46)68'-lnterpreWion of-Government· 11JUJf pay expen3es of 1naterial defence witnesses.

'\Natural iustice_;_Asking delinquent ojfi:er lo. deposit expenses of 1nateria! dtfence wi1nesses-Vio[ates_p'rinc;pfes of natural jujtice.

D In.a dePartmental inquiry coildU~ted by the Second respondent. U.P. Administriltive Tribunal into certain charges lev~lled against the ai)pellant a- Deputy Superintend.ent of PQ!icc, the 'tribunal disnlissed'the application of tbe .appellant praYing for summQoiog 8 witnesses for being examined in his defence. The Tribunal relied .UP Jn rule 20A( l ). of 'the Travelling Allowanee•

• Rules (Financial Handbook Vol9mo II[) and observed !hat the appellant - had to deposit the expen~es of the wita!sses, 'Yho were private p.erSons,. if E be wanted to have "them ex1mined i11 ·his d~fence within· a sp~cified time. T.he appeUant. did no.t deposit the ar.nou:it and the witn~sse~ were not sum- moned. Pursuant to the finding or- the Tribunal the appellRnt' was remOved from service: The appellant filed a writ.Pe.ti.lion in the·Higb CcUrt conten- ding that in view of G.o. No.. 4197 R/VlllA-500(146)/6 l travel\lng aIJOwance and diet money or witnesses to be exam·in~d before the T-ribu niil must haVe been paid by the State GOvernment but he was asked to· deposit · a sum of·Rs ... 900 fo·r. the· witnesses- being sum·moaed and this was in viola-· tion of tho releva'.l~ provision relating to conduct of pro:eediag .before" the Tribunal. The High Court dismissed the Writ petition in lilnine. In this \' ; appeal.the question was wh~ther on.- this account there was non·compliance · • with the principles.of naturaljus~ice. - , Allowing the appeal, ;

\ ' of the Travolling A\io Yances Rules (Financial Handbook Rule 20A(l) H Volume IID is __ not qllite clear, for it d·oes not say who should bea~·t_hc i!.Xpenses initially or w_be:ther the ·reference to be -·made' by 'the inquiring;_ authority· uader claa~e {c) should b3 .mid~ b~f ore or after the examination of the witnesses. Claa;o (b) of this slib. -rule seems lo have been oonsidel'elf •.. '

M.H. ANSARI 1·; U.P. STATB (Varadarajan, J.) 243

utisfied in tho presont case as tho Tribunal had decided to summon tho A "Witnesses provided the amount was deposited by tho appellant a• directed. [2498-C]

G.O. No. 4197 ~/VIIIA-SOO(l.46) which )las evidently intended to .clarify Rule 20A of the Travelling Rules makes it clear that responsibility 'for payment of travelling allowance to defence witnoase• produced in depart- B irneotal inquiry conduc'ted under s. 7 of the Police Act is Of-the Go_vefnmenf .and- tbat,-if a witness -has been permittcd'to be prOduced in defence it is :!lOt · open to the inquiry officer to lay down a condition that his travelling ..xpenses should be first deposited by the delinquent officer before the witness :is examined. [2SOG·H)

Io the present easel the Tribunal h'\s considered the witnesses to be 0 fnaterial but has insisted on the appellant depositing initially .a sum of Rs. '900 for the travelling expense and daily allowan'ce of the witnesses -with an <>bligation to make good any shortfall ;a· those allowlbces and loss of .professional. iDcome -Of tho witnesses. Tbei respondent-Stat<:: did not COD·· tend that this G.O. does not apply to the· case of tho appellant. Moreover,

' 1he appellant was under suspension from .11-12·1967 and there b nothing on record to show tlrat he was financially sou'nd and in a poSition. tCr deposit ·the sum of Rs. 900 and pay any fu<ther amount which may be .required to D

meet any shortfall in the travelling and daily allo:anccs and the Josi of' - .professional income of the 8 more witnesses whom ho wanted to be examined -00 his side. Tbe failure to cause the pro.ductian of those 'witnesses at the -expense Or the Governmedl ·might have caused prejudice to th~ appellant for ·.it canno~ be predicated what conclusion the TribU'nal would haVe reached in Tegard to charges I to 3 if the evidence of those witnesses was available for B' its consideration. [250H; 2SIA·C] •

CIVIL APPELLATE JURISDICTION : Civil Appeal No. '1234 of ' :1977. •

From the Judgment and Order dated 19.8.74 of Allahabad F High Court in civil Writ Petition No. 4827 of 1974

R.K: Garg and Shakee/ Ahmed Syed for the appellant.

Prithvirqj, Mrs. S. Dikshit, SJ(. Kulshreshta and P. Mishra for G the respondent5.

The Judgment of the Cburt was delivered by

VAl!ADARAJAN,"J. This appeal by special leave is directed against an order of a Division Bench of the Allahabad High Court H qated· 19.8.1974 dismissing iii limine Miscellaneous Writ Petitio.n N•. 4~27ef197~ which had been tiled by the appellant for quashina lkll

24~ . , [1984]3 S.C.R,"

~~st r.e,spond,ent:s, order da\~d 3'.5.197~ r~nioving him, from servic~ . · ·.·pllTsiiantio, thdinding of Uie..second \respondent, .U.P~.:Administra-. · • · tiv~ Tribunal, Lucknow dated 10.7.1972 that the appellant w.as'.guilty ~fthree of the four charges framed against him; The appellant was. · employed as a Deputy Superintendent of · P'olice 'at l'ilibhit. at. the relevant time.: The fourth ch~rge of which the appellant has been-.· ·B exonerated was that 'he had transferred his' Vespa Scooter bearini· · ·. Registration.. No. UPi-9!l7 and ·valued at more than Rs.500/- to one . . ial .Mohd. without obtaining the · previous sancti~n of the · appro- . priate authority and he thereby contravened Rule 24(2) of the. U .P.. • . Government Servants' Conduct ·Rules, 1956.' ·The appellant's. .·~ defence was that the transfer was effected through a reputed dealer . ·~ arid'therefore previous sanCtion of tlie appropriate authority was not . necessary,. The Tribunal found that the transaction of sale. of th~ . sco~ter by . the appellant ~o Lal· Mohd. was effected through M/s. Anand Agencies, automobile 1engineers and. reputed.: dealers in; scooters and therefore there was sufficient compliance. with Ruie- D • 2~(2), · . . . . . l .' - ".

. cha;ges I to '.J.were mor~ serious ones. · The substance of thi:- . first charge was that the appellant while posted as .. Deputy Superin-. tendent of Police at Pilibhit was granted 30 days leave with effect'. E from 11.11.1967 and had to resume his duties on 10.12.1967 but failed to ·resume his 'duties and absented himself withou.t previoll!> -' ·. ' permission or intimation to the Superintendent of Police and without good or sufficient cause. He failed to report about his whereabouts until an application was made by'him oIY 24.41968 for extension of' the leave. The appellant's defence. was that· he suffered from an F attack of a mental disease, melancholia and was under the treatment ·6fDr~-Mukerji at Calcutta from.l.i2.1CJ67 to 20.4.1968 and he· had· informed about his sudden illnes; and had.appliecf'for· extensi~n of · .ihe'leave directly and also through his wife and· he had furniShed his leave . address ~ben he proceeded . on ~j(J. days leave~ . The . G ._. substanc'i. of.the second charge 'Yastb~t whileapplyi~g for.extension ofleave !JD. 20.4.1968 he att~mpted to wilfully deceiye the Inspector. . · ·General of Police by att,mpting to make him believe that Ire hail ..... been ill from 1.12:1967 to 20A.1968- arid was under. treatment of ·a . . - · doctor at Calcutta altho~glr in fact he had been to Pakistan during · the period and had obtained ~ medical .certificate through deceitful · H .ind. fraud;.len.t mean.s. '.:The. defence~of the appella~t was one of deni~I. He_reite.rated that he wa~ u,nderireatment of Dri Mukerji at 'Calcutta from 1.12.1967,to 20A.1968 ·and·.contended that in ·-that . . - . .,___ ,._. ~ ·-- ···-·

.. M.H. ANSARI v. U.P. SfAtE (Va.,adarajan,:J.) 247 I . ., - -. , 11eriod lie ~~s treated by Dr. Das at Howrah from IO. l.1968 fo A 30.1.1968 for injurij!s to his nose. The substance of the third 'charge was that after havi.ng proce-eded on leave with effect from 11.11.1967 he unauthorisedly and unlawfully visited Karachi in Pakistan some- . time between 22. l l .1967 and 20.4.1968 without any valid ·passport or trav~l document .and he thereby contravened s. 3 of thePas.sport B Act, 1967. · The appellant denird 1he charge and contended that lle "" J; had never ·visited K1rac'1i and had been· suffering from melancholia .11nd treated by Dr.·MJke'ji at C1!cutta.'

A number of witnesses for the. department and some ·wit- • nesses for the ·defence were enmined before the Tribnnal which .· C .11fter considering the oral anif ctocum,ntary evidence found charges 1 to .3 against. the. appella,nt. Orie Harish Kumar,. Superintendent ·of Police who y,as appointed as an assessor in the inquiry conducted before the Tribunal agreed with the findings of ·the Tribunal. Subsequ~ntly, the Tribunal submitted copies of its findings. to· the ·-Oovernm~nt with its recommendation that the appellant may be D ·disli'li$se'd from service. The Governor accepted the TrihUnal's ilndings, took a tentative decision to dismiss the appellant from :service;'and issued a ·second show cause ·notice date\! 29.9.1972 ro · hlm. The app~llant submitted his interim reply and final reply on 19.11.1972 and '3l.'.U973 respectively. After .considering 'the. :appellant's replies the Governor agreed with the Tribunal that the -charges I to 3 are fully established against the appellant and ·ordered · Jhis removal from' service '- ' by the' Order dated. 1.8.1974.. ,' .

The appellant challenged' his removal from sevice in W.P. No. 4827 .of 1974 which was dismissed i11 /imin·~ by a t>ivisfon Bench it • .of the Allahabad High Court. Hence this appeal by speciaMeave . ,Jc,· ) This appeal deserves to be ·allowed on a short poin.t which '11nfO'rtunately has ·not been noticed by the learned Judges of the High ·Court before· dismissing the writ petition i11. 1imine. · The appellant had prayed for ~ummoning'S wiinesses'for·beingexamined in his defence by filing ~n ·application· dated. 17.1.1972 for that -purpose. The Tribun.al dismissed that application on. 19.1.1972 on ihe ground that iH1ad already taken into consideration 1he televant ,JI .~ules in the Financial CodeVolume HI and that it·does not consider ;it ne.cessary to revise its views. The Trib.unal observed in that order H- 1that the'ltppellant bas to bea'r the .eK)Jenses of th,e wl'!nesses who ,.are ·private. perso:ns ·jf he wanted to have..them eKamined in; bis

248 SUPREME CQURT REPORTS (1984) 3 S.C.R. t: A clefence, "He was, however, given one week's time to depo'sif a suJB> of .Rs.900 initially by way of trnvclling and daily allowances for°the- · witnesses as weil as compensation for the loss of their prbfessiona~ income and· he was ordered to make good any shortfall. 'fhe- appe.Jlant had not .deposited that ainountand the witnesses had not: been summoned for being.examined in his defence. .The questio11> for consideration is whether•on t4is account there is non-compliance: with the principles of natural justice.

. The Tribunal has relied upon Rule 20A of the Travelling: • Allowances Rules (Financial Handbook Volume III) in making' the: c . above order. Sub-rule 1 of that Rule reads thus: .

"20A. (1) "Persons, who, not being servants of the , ·Government, ·are called as witnesses ilf' a departmental:· inquiry either by the authority conducting the inquiry or c!n behalf of the government servant whose conduct is under I> inquiry, snail receive -the same travelling allowance and diet money as are admissible to non-official witnesses summoned;) in criminal cases, provided that in the case · of such persom;. · who are called.on behalf of the ·government servant whose· conduct is under inquiry, the payment of travelling allowance and diet money shall be subject to ihe following principles:

(a) travelling allowances may be paid to witnesse&. summoned in the event of .the .government servant concerned clearing himself;

I' (b} such allowanc_es will.be paid only in. respect of wit- .nesses whose evidence .is considered of material· value by the authority conducting the inquiry; and . ( c) in exceptionai cases the authority conducting the . inquiry may, on grounds to be recorded, recommend t0> the Government that the principles laid down above be- departed. from owing to special reasons. I~ such ·cases. it will be for the Government to decide, after taking into-: '. con'sideration all the circumstances of the case; whether th~ recotnrnendat.ion should be accepted or not.·

, · Th~ .authority ~onducting the _inquiry .shall determine the class- of each witness for the-purpose of calculating travel- •.

• M.11. ANSARI v. U.P. STATE (Varadarajan, J.) 249 A,· ling allowance and diet-money under the .scale prescribed for witnesses in criminal cases."

Tl\is sub-rule is riot quite clear, for it does not say who should bear the expenses initially or whether the reference .to pe made by the.inquiring authority under class (c) should be made before or after the examination of the witnesses. Clause (b) of this sub-rule 0

seems to haye been considered satisfied in the present case as the Tribunal had decided. to summ'on the_ witnesses provided the amount was deposited by the appellant as directed. The appellant has contended in para 31 of his writ petition that in view of Q.O. No. 4197 R/VIIIA-500'(146)/68 travi;lling allowance and diet money of c . witnesses to .be examined before the Tribunal must have been paid by the State G.overnment but h_e was asked to deposit a sum cif Rs.900 for the witness;s being summoned and this is in violation of the relevant provisipn relating to conduct of proceedings before the Triqunal. The said G .0. marked as Annexure·ll to the writ petitien I> relates to one Kunhi Rarri and was- evidently intended-to clarify· Rule 20A of the Travelling Rties and it reads thus:

"In continuation of G.O. No. 1371-1/VIII B 2000 (10/61; dt. July 3, 1961) I am directed to say that in the.·· special appeal the appellant had contended that the additional ,:"\ S.P. Agra had asked him 10 deposit the expenses for T.A. · etc. of defence witnesses before he summoned them. The position in this connection ha~ been examined by the Govt. and is being clarified here. Under para 490(5) of the police regulations the.S.P. has to decide wheatl;er he should r~fuse· to· summon a witness whose evidence he does not consider F • material to the issue. The witnesses who ·are accepted by the S.P. for being produced in defence can be either summoned by him or allowed to be produced by'the party charged, So • far its the question of payment of expenses for the journey by • a defence witness is co_ncern ed it is not material when once a G witness is perlnilted to be produced whether he is summoned officially or is called by the party charged himself. The responsibility for. payment of travelling expenses to the ' defence witnesses produced during departmental tria'! conduc-. ted under section 7 of the Poiice Act, is of the Government. Thus if a witn'ess has been 'permitted to be' produced id H <lefence, it is not open,to the inquiring officer to lay down a· ~ondition that his travelling expenses should be first deposited

250. SUPREM!l COURT REPORTS s.•. ll. ··'J;:: ... ~ [1984].3 ' before he is summoned~ .H.owever, no expep.ses ate to be paid for_per~ons who are.not permitte4 to be produced in defence.

· The position with regard to the. pa~ment of travelling · . ..expenses to the d'efence wit~esses is a.;; follqws: ' •.1B (i). Govt. servaJits \vho appear as defence witnesses to give 0 evidence of the facts )Vhich.c.lJme to the ir knowledge.· in their official capacit~ are governed by Rule 59(1) of the Financial Handbook Volu_m~ 1Ir for the purpose of travelling atrowance;

(ii) .As rJgards govt. .~ervants _who apvear . as witnesses to facts which have come to their knowledge ·in. the private · capacity and appear as private individuals the ·position under rufo 59(2) of Financial Handbook Volume. Ill. is · that they are entitled to receive their adual travelling ·. "expenses from the Cq_urt and as such they will get T.A, • on an ad hoc basis and as on·rouc Thus if he'.is a Govi. servant travelling in a train ...... as an ordinary ,passenger arid has to bear witness. to that in his private .capacity he , should be paid T.A. as on tour. The Meharrirs. 'df, 4he · Police.Stations bringing records which (hey ma'intain ·at P.S.s. in their officiai capacity will be governed by .elass (1) above. " : {iii) Nqn-official witnesses called or allowed to be produced ' by the S:P. will get T.A. under rule 2PA of Finaneial • · Handbook'Volume UL"

. Tl,Jis G,O. mak\\S it clear that respon~ibility for payclent of ~ tni\i;~lling ailowance t9 defence witnesses produced ·in deptrti:nenfal inqdiry conducted und.er s. 7 of the Po lie~ Act is of the ·a6vernment , an.a that if a witness has been permitted tci be prnduced · in defence it is riot open to ·the inquiry officer to lay d6wn a condition. that . liis tfavel!ing expenses. should 1:\e first deposited by . the delinquent officer before the witness is 'examined. In the. present case, the. Tri· butilit has considered the witnesses to Ile material btit llas ,in~!sttd on th~,~ppellaht depositing liiitiilly a sum of Rs. 900fot the trii,velling z.; :JI· exf1~iis.ea~d daily allowances. of the\vitnesses with. an obligation t.o ma~~ good :\DY shortfall in th<?s'< 11llow\\bces and Joss of pTl>feS5ional incciirie <if the wiines~es. Mt. Prithvi'Raj, S-enit>r Counsel tl'p'Pearing . . ' . •.

M.H. ANSARI v. u.p, STATE (Varadarajan, J.) 251

'.for the respondent-St~te· did .not contend tbat· this G.O. does not A .apply. to the fase of. the appellant. Moreover, the appellant was · under suspension from 11.12.1967 and there is nothing on record to show that he was financially sound and.in a position t'5 deposit the' ·sum of Rs.900 and pay any further amount which may be required . to meet any shortfall in -the travt!lling and daliy allowances and the lJ 1oss of professional income of the 8 more witnesses woom he wanted ' ·to be examined on his side. · The failure to caµse the production of ·those witnesses at the expense bf the Government might have caused prejudice to the appellant.for it cannot be predicated what conclusion tne Tribunal would have reached in regard \o charges I to 3 if the evidence of those witnesses was available for its ~onsideration. We .are, therefore, of the opinion that there is no compliance with the • ·principles of n'atural justice in this case. The appeal has to be allowcd on tl1is short ground and it is accordingly allowed. The jlnding of the Tribunal that the appellant is guilty' of charges ·I t6 3 .and the consequent order of the Government}Govi:rnor removing • ·the appellant from service are quashed. The. matter is rediilted to D the Trjbunal for fresh disp~sal after summoning ~t g~vernment ' . "expense suer of the .material witnesses as the appellant J)lay wish to be examined in his defence. The appellant shall be entitled to costs ·quantified at Rs.2,000. It is needless'to say thatthe appellant would be entitled to subsistance allowances from the date of his removal from service until ~he proceedings taken aga.inst him terminate and cfinal order is passed. This shall be paid in six weeks.

llI.S.K 1 Appea/a//owed • . '