1997(1) ALL MR 665
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.P. TIPNIS, J.
Shrirang Namdeo Mahmunkar Vs. The Director Of Transport & Ors.
First Appeal No.541 of 1980
21st December, 1995
Petitioner Counsel: Mr. A. R. SHINDE
Respondent Counsel: Mr. P. M. PALSHIKAR
(A) Limitation Act (1963) S.14 - Application - Order of removal from Government service - Appeal against said order rejected by Government - Subsequent suit for wrongful removal from service - Starting point - Applicability of S.14.
Limitation - Suit for removal from Government service - Whether right of appeal to Government keeps order of removal in abeyance until decision of appeal - Applicability of S.14 of Limitation Act, (1963)
Limitation Act (1963), Ss.14, 9.
In the present case, the order of removal from Government service was passed on 8-10-1965 the appeal against the order of removal was rejected by the Government on 4-11-1967. Thereafter, the writ petition filed by the plaintiff was withdrawn by him on 27-11-1968. Then the present suit for wrongful removal from service was filed by the plaintiff on 1-9-1969.
Held that the suit was barred by limitation . The right of appeal did not involve the consequence that the order of removal could not be operative by its own force but would continue in abeyance until the decision of the appeal. With regard to S.14 of the Limitation Act,1963, it could not come to the reserve of the plaintiff. By invoking S.14 it cannot be said that the period from 8.10.1965 till the withdrawal of the writ petition on 27.11.1968 was to be excluded, what the plaintiff was prosecuting was merely the departmental appeal, the expression, "a Court of first instance or of appeal" appearing in S.14 refers to judicial Court i.e. Courts established by the law of the land and not courts in the wider sense of domestic forums or tribunals. AIR 1958 SC 1036 Applied. 56 Bom.L.R.214 foll. [Para 7,9]
(B) Manual of Departmental Enquiries, Rule 53 - Right to be defended by lawyer - Charge of abetment in accepting illegal gratification - whole enquiry related to facts - Reasonable opportunity given to delinquent to defend himself - Held, case was not complicated or difficult entitling him to be defended by lawyer - Recording of reasons for refusing such defence was not necessary nor such refusal violated principles of natural justice.
Principles of Natural justice - Departmental enquiry - Reasonable opportunity given to delinquent employee to defend himself - Whether mere refusal to give permission to engage lawyer violated the principles.
Departmental enquiry - Right to be defended by lawyer - Case not complicated nor difficult nor causing embarrassment to delinquent employee - whole enquiry related to facts not involving any complicated questions of law - Delinquent whether entitled to be defended by lawyer.
JUDGMENT :- This is an appeal filed by the original plaintiff whose suit has been dismissed by the learned Judge of the City Civil Court, Bombay. The plaintiff-appellant was working as a Scale Operator in the office of the Regional Transport Office, Thane Region, Thane, from 1944 till 8th October 1965. On 30th March 1964 one Ashtickar Police Inspector attached to Anti-Corruption Branch, Nashik, upon receiving information from two lorry drivers that Motor Vehicles Inspectors and Assistant Inspectors stationed at Kasheli Weigh Bridge in Thane District receive bribe ranging from Rs.25/- to Rs.50/- to allow over-loaded lorries to pass the said Kasheli Weigh Bridge, arranged a trap. On 7.4.1964 one Shanbhag, Assistant Inspector of Motor Vehicles was on duty at Kasheli Weigh Bridge. The plaintiff was also on duty as a Scale Operator alongwith the said Shanbhag. On that day, the raiding party led by Ashtikar reached the said Kasheli Weigh Bridge. A sum of Rs.50/- was recovered from below the rexin cloth of the table alongwith other currency notes of Rs.165/-. Another amount of Rs.95/. kept under the rexin cloth was also recovered. The hands of Shanbhag and the plaintiff were seen under ultra-violet rays and were found to shine like anthracene powder. The register and the ballpen were also alleged to have been stained with anthracene powder. A panchanama was made, statements were recorded and a report was submitted to the Director of Anti-Corruption Bureau who ordered that a departmental enquiry be held against the said Shanbhag as also the plaintiff.
2. Accordingly, Mr. Dubhashi, Deputy Director of Transport, held the enquiry against the said Shanbhag as also against the plaintiff. The charge against Shanbhag was that he accepted Rs.50/- by way of illegal gratification from one Sohan Singh who was the driver of the truck bearing no.MPF 6258. The charge against the plaintiff was that he aided and abetted Shanbhag in accepting the illegal gratification. After examining the truck drivers and the raiding party and the panchas, the report was submitted holding both Shanbhag and the plaintiff guilty of the charges levelled against them. The Inquiry Officer recommended that looking to the fact that the plaintiff was a subordinate and ordinary Scale Operator to the Assistant Inspector, he should be treated leniently so far as the punishment is concerned. However, the competent authority by is order dated 8.10.1965 removed the plaintiff from Government service. Being aggrieved by the said decision, the plaintiff filed an appeal to the Secretary, Home Department, Government of Maharashtra, and the same was also dismissed by the Government by order dated 4th November 1967. Thereafter, the plaintiff filed Special Civil Application No.2451 of 1968 in the High Court. However, the said writ petition was withdrawn by the plaintiff on 27.11.1968 and, thereafter, the plaintiff has filed the present suit on 1.9.1969 in the City Civil Court at Bombay. The plaintiff prayed that the order passed by the competent authority dated 8.10.1965 removing the plaintiff from Government service as also the order passed by the State Government in the plaintiff's appeal on 4.11.1967 confirming the said removal be declared null and void. By amendment, the plaintiff also claimed certain monetary reliefs by way of salary and other accumulated benefits.
3. In the suit, the orders were challenged as being illegal on the ground that the plaintiff was not afforded a fair and reasonable opportunity to defend himself. The grounds were that though the plaintiff applied for engaging a lawyer, the Inquiry Officer rejected the said request and this has resulted into the plaintiff being deprived of his right to get a fair and reasonable opportunity to defend himself. It was next contended that two of the witnesses had deposed in Hindi and the plaintiff did not have adequate knowledge of Hindi language and, as such, has suffered prejudice. It was also contended that the findings are arbitrary and that the punishment of removal from service, in any case, is excessive.
4. The defendants contested the suit. It was contended that the evidence of the truck driver only was recorded in Hindi and all other evidence was recorded in Marathi. That the application for engaging a lawyer was rightly rejected by the Inquiry Officer. That the plaintiff was given all the opportunity to defend himself and cross-examine the witness and, as such, there is no defect in the inquiry.
5. The learned Judge held that the suit is barred by limitation. He further held that there is no breach of the principles of natural justice in the inquiry. He did not find that the findings of the competent authority was perverse. Accordingly, the learned Judge by his judgment and decree dated 18.10.1978 dismissed the suit.
Being aggrieved by the said judgment and decree, the plaintiff has preferred the present appeal.
6. I have heard Mr. Shinde, learned counsel appearing for the appellant-plaintiff in support of the appeal, and Mr. Palshikar, learned Asstt. Government Pleader, appearing for the respondents. With the assistance of the learned counsel on both the sides, I have gone through the pleadings and the evidence recorded in the matter as also the judgment of the learned Judge of the trial Court.
7. Mr. Shinde, learned counsel appearing for the appellant, submitted that the finding of the learned Judge that the suit is barred by limitation is improper and incorrect. He contended that the original order of removal was passed on 8.10.1965. However, the appeal was rejected by the State Government on 4.11.1967. As such, the suit filed on 1.9.1969 was within limitation. Mr. Palshikar, learned Asstt. Govt. Pleader, on the other hand, contended that in view of the apex Court judgment referred to in the judgment of the learned Judge of the trial Court, the suit has to be held as barred by limitation. The learned Judge in his judgment has referred to the decision of the apex Court reported in AIR 1958 S.C.1036 and especially to the following paras of the said judgment:-
"That the suit was barred by limitation. Prima facie the period of six months provided by sub-section 326 would commence to run after the accrual of the cause of action and the cause for action for the suit of the Plaintiff was his wrongful dismissal. The resolution dismissing him from service was passed on 6th March 1951 and Communicated to him on 19th March 1951 and even extending the period of limitation by the period notices required under sub-section (1) of section 326; his suit filed on 3rd December 1952 was hopelessly beyond time. His suit would, therefore, be barred unless it can be said that the cause of action accrued on 3rd April 1952 when the order dismissing his appeal was communicated to him by the Government."
The apex Court further observed as under:-
"The right of appeal given to him did not however involve the consequence that the order of dismissal could not be operative by its own force but would continue in abeyance until the decision of the appeal once an appeal was filed by the employees so that it would be said that the cause of action arose on the communication of the dismissal in the appeal. There was nothing in section 58(1) which could lead to such a conclusion. That section only gave him a right to appeal to the Government but did not prevent him from filing a suit straightaway challenging the validity of the resolution on any of the grounds available to him in law such as the non-observance of the principles of natural justice and the like. In such a suit no question of the court not giving relief on the ground of his failure to pursue another remedy would arise as in the case of writ proceedings. Nor did the provisions of sub-section (2) of section 58 which gave the Government power to keep the servant under suspension pending appeal lead to the consequence of holding that the filing of appeal operated to suspend the order of dismissal till the decision in the appeal."
It was further observed by the apex Court as under :-
"The special resolution passed by the Board dismissing the plaintiff could not be equated with a decree inasmuch as departmental enquiries even though they culminated in decisions on appeals or revision could not be equated with proceedings before the regular courts of law. Hence it was not possible to apply the principle relating to decrees and hold that though the cause of action for the suit arose on the date on which the order of the Board was communicated to the Plaintiff, the filing of the appeal within the prescribed period of limitation suspended that cause of action and merged that cause of action in the cause of action which would accrue to him on the decision of his appeal by the State Government........................... Even if the analogy of a decree applied it did not help the Plaintiff to save his suit from the bar of limitation because in the appeal the order of dismissal was confirmed and in such cases the principle applicable to decrees was that the decree of the trial Court remained operative. This being the position the cause of action for the suit arose the moment the resolution of the Board was communicated to the Plaintiff and the period of limitation commenced from the date of such communication. Hence his suit which clearly was filed beyond the period of limitation prescribed by section 326 of the Act was barred by limitation."
In view of the aforesaid position, the finding of the learned Judge that the suit is barred by limitation appears to be correct.
8. Mr. Shinde next contended that, in any case, section 14 of the Limitation Act should come to the rescue of the plaintiff inasmuch as, in any case, he was prosecuting his other remedy bona fide and diligently. As stated earlier, the order of removal was passed on 8.10.1965. The appeal was dismissed by the State Government on 4.11.1967 and the plaintiff withdrew his Special Civil Application from the High Court on 27.11.1968 and filed the suit on 1.9.1969. Mr. Shinde submitted that therefore the period from 8.10.1965 till the withdrawal of the writ petition on 27.11.1968 is clearly to be excluded under the provisions of section 14 of the Limitation Act. Section 14(1) of the Limitation Act reads as under:-
"14. Exclusion of time of proceeding bona fide in court without jurisdiction-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it."
9. However, it is difficult to accept the submission of Mr. Shinde because what the plaintiff was prosecuting was merely the departmental appeal. In view of the Division Bench judgment reported in 56 Bombay Law Reporter 214 holding that "the expression a court of first instance and a court of appeal" in section 14 of the Indian Limitation Act refer to judicial Court i.e. courts established by the law of the land and not courts in the wider sense of domestic forums or tribunals. It is not possible to accept the second submission of Mr. Shinde as well.
10. However, assuming that the suit of the plaintiff is not barred by limitation, even on merits, it is difficult to hold in favour of the plaintiff. The first contention of Mr. Shinde is that the denial of availing the services of a lawyer to the plaintiff has resulted into denial of fair opportunity to defend. The relevant rule 53 of the Manual of Departmental Enquiries is as under :-
"Ordinarily, legal Practitioners should not be allowed to appear in the enquiry. The person charged is also not entitled as of right to ask for being defended by a legal Practitioner in such enquiry. But there is no prohibition against allowing a legal Practitioner on either side and it must always be borne in mind that the person charged should have an adequate opportunity of defending himself. If, therefore, the case is very complicated or difficult, or where the person charged is likely to be embarrassed, he might be allowed to have legal aid. Participation of non-official in a Departmental Enquiry except as a witness is not desirable and should not be encouraged."
Thus, ordinarily, legal practitioners should not be allowed to appear and that the person charged is not entitled as of right to ask for being defended by a legal practitioner in such enquiry. The rule also provides that however there is no prohibition and if the case is very complicated or difficult or where the person charged is likely to be embarrassed, he might be allowed to have legal aid. Thus, whether the services of a lawyer were required would depend on the facts and circumstances of each individual case. After having gone through the evidence of the plaintiff in this matter and after having taken into consideration the facts and circumstances of the case, viz., the raid was carried on by the police department and certain amount smeared with anthracene powder was recovered and that the plaintiff was also found to have his palm smeared with anthracene power, the view of the Inquiry Officer that it was not a complicated or difficult case cannot be held to be unreasonable. The Inquiry Officer on oath has stated that he was of the opinion that the case was not complicated and that is how he rejected the application of the plaintiff for services of a lawyer. Mr. Shinde next submitted that it was incumbent on the Inquiry Officer to record reasons as to why he has rejected the application of the plaintiff for engaging the services of a lawyer. Mr. Shinde specifically referred to the deposition of the Inquiry Officer wherein he has stated that according to him, rule 53 of the Manual of Departmental Enquiries requires him to give reasons in case he decides to reject an application for permission to the delinquent to be represented by a lawyer and it was necessary for him to assign the reasons because departmental enquiry which he was conducting was quasi-judicial in nature. However, I am of the clear opinion that this is the opinion of a witness regarding the requirements under the Rules. The rule, as is clear from the wording of the same, nowhere requires that the Officer should give reasons and the opinion of the Inquiry Officer cannot be relied upon for the purpose of true interpretation of a rule. Mr. Shinde also relied upon the statement of the Inquiry Officer that after receiving the application for engaging a lawyer from the plaintiff, he had not applied his mind in details to the allegations against the plaintiff. However, it is pertinent to note that in the next sentence the witness has stated that when he rejected the plaintiff's application for permission to engage a lawyer, he had come to the conclusion that the allegations against the plaintiff in respect of which he has to hold the departmental enquiry were neither very complicated nor difficult nor such that the plaintiff was likely to be embarrassed. The witness has specifically stated that since the allegation against the plaintiff did not cover any of these three categories as mentioned under rule 53, he rejected the plaintiff's application for permission to engage a lawyer. As such, not giving specific reasons in the order does not vitiate the enquiry proceedings. Mr. Shinde has also stated that the plaintiff does not understand Hindi. It is difficult to accept this submission. Though the plaintiff was merely a Scale Operator and not very much educated, it requires to be stated that he was working at the naka in R.T.O. department for a period of about 20 years and, as such, was dealing with drivers of the vehicles coming from all over India. It is difficult to appreciate that he could not understand Hindi. As a matter of fact, the plaintiff has clearly stated that the statement of Sohan Singh was recorded in Hindi in his presence and he has not cross-examined Sohan Singh for the reasons already quoted. The reasons already quoted by this witness are that he was denied the facility of engaging a lawyer and that having regard to his educational qualification, it was not possible for him to cross-examine the witness who had deposed against him on a very serious charge and which involved complicated questions of law. The witness added that there is one more reason why he did not cross-examine Sohan Singh, viz., lack of adequate knowledge of Hindi language. However, the witness admitted that after the evidence of Sohan Singh was recorded in Hindi, he did not request the Inquiry Officer Dubhashi to interpret the same in Marathi. He stated in identical terms about the statement of another person examined in Hindi i.e. Balbirsing Santoksing. There is no material to show that the plaintiff ever complained during the enquiry that he has not understood the deposition of persons who had deposed in Hindi nor did he ever insist upon the translation. In the facts and circumstances of the case, this is clearly an after-thought.
11. Mr. Shinde also submitted that the alleged statement of the plaintiff recorded immediately which is sort of a confession was recorded by coercion and, in any case, the plaintiff has so contended to which the Inquiry Officer has not made a reference in his report. The Inquiry Officer has stated in his deposition that in his report dated 15.4.1965 on page 17 he has summarised the reply of the plaintiff as under :-
"The statement of confession taken by the police on 7.4.65, was forced from me."
The witness admits that it is true that in his report dated 15th April 1965, he has not specifically dealt with this allegation of the plaintiff. However, in the light of the material on record, this fact by itself will not vitiate the enquiry. The plaintiff himself has stated that the statement had been written by him under threats and coercion from the raiding party. The witness has further stated that it is true that after his statement and before he received the charge-sheet and the statement of allegations against him, he had not informed the Director of Regional Transport that on 7.4.1964, I was compelled to give his statement under threat and coercion from the Anti-Corruption raiding party. The witness has further admitted that it is true that in his reply dated 31.8.1964 which was sent to the Inquiry Officer, he had not alleged that his statement dated 7.4.1964 was obtained from him by the Anti-Corruption raiding party under threat or coercion. The witness has further admitted that it did not occur to him that in his reply dated 31.8.1964 he should mention that his writing dated 7.4.1964 was obtained from him under threat and coercion by the raiding party of Anti-Corruption Bureadu. The witness has further admitted that although an opportunity was given to him to cross-examine the witnesses whose evidence was recorded during enquiry, he did not avail of the opportunity because he was denied the facility of engaging a lawyer and having regard to his educational qualification, it was not possible for him to cross-examine the witnesses who had deposed against him on a very serious charge which involved complicated questions of law. In fact, there was hardly anything complicated. He was specifically charged that Asstt. Inspector Shanbhag had accepted bribe from one truck driver and the plaintiff aided and abetted the said Shanbhag. The money was found under the rexin of the table. The money was found smeared with anthracene power and the hands of the plaintiff and Shanbhag were also found to contain anthracene power. There is hardly any complicated questions of law as stated by the plaintiff. The whole enquiry was relating to facts. The material on record clearly shows that the plaintiff was afforded reasonable opportunity to defend himself.
"Rightly or wrongly when the public servant is under a reasonable apprehension that the enquiry is the result of a preconceived plan and a concerted action on the part of his Department, his request for professional help is certainly justified and the enquiry officer should give him that opportunity. His refusal to accede to that simple request certainly deprives the public servant of an opportunity to defend himself."
Mr. Shinde also relied upon the decision of the Calcutta High Court in Nripendra Nath v. Chief Secy. Govt. W.B.(A.I.R.1961 Calcutta 1) and headnote (h) of the said decision which is as under :-
"If on the particular facts and complexity of a case, assistance of a lawyer is regarded as a part of reasonable opportunity, then denial of such an opportunity is violation alike of the constitutional protection under Article 311(2) and the principles of natural justice."
As already discussed hereinabove, in the facts and circumstances of the present case, it cannot be stated that the plaintiff was deprived of his right to reasonably defend himself on the ground that a lawyer's services were not made available to him and, as such, the aforesaid two cases are not of much help to the plaintiff.
13. Under the aforesaid circumstances, I do not find any merit in the contention that the rejection of the application of the plaintiff for engaging a lawyer has resulted into breach of the principles of natural justice or that the inquiry is shown to be suffering from any other defect so as to vitiate the same. On the basis of material on record, the plaintiff's suit is rightly dismissed.