1986 Supreme(MP) 751

IN THE HIGH COURT OF MADHYA PRADESH
V. D. GYANI, J.
Virendrasingh - Appellant
Versus
State of M. P. - Respondent
S. A. No. 219 of 1981 (I)
Decided on : 23-10-1986

Headnote:(1) Natural Justice – principles not followed in departmental enquiry – report is vitiated.

       (2) Civil Servant – no opportunity given to cross – examine witness produced in departmental enquiry – enquiry report is vitiated.

       (3) Civil Procedure Code, 1908 – O. 6, R. 2 – each and every instance – need not be pleaded.

        Short Note

       1. This appeal is directed against the judgment and decree dated 29 – 7 – 1976, passed by the District Judge, Jhabua, in Civil Appeal No. 14 of 1976, thereby reversing the judgment and decree dated 11 – 2 – 1976, passed by the Civil Judge, Class I, Jhabua, in Civil Suit No. 164 of 1974.

       2. Held : The lower appellate Court has observed that want of notice to cross – examine Savantsingh was not pleaded by the appellant. Therefore, he was disbelieved on this count by the lower appellate Court. The lower appellate Court further observed that the case as pleaded by the plaintiff in this behalf was that the witness Savantsingh was examined behind his back and he was afforded no opportunity of cross – examining him. The evidence, according to the lower appellate Court, was at variance with the pleadings. This conclusion has been assailed by the learned counsel as misreading of evidence. What the appellant stated in his evidence before the Court was that Savantsingh's statement was recorded in a room, while he was asked to remain out. This is nothing but recording evidence behind the back of the appellant and really speaking, there is no such variance as pointed out by the lower appellate Court. The trial Court has held that Savantsingh's evidence was recorded behind his back, inasmuch as while this evidence was being recorded, the delinquent was asked to remain out. This is gross violation of the rules of natural justice, which has been pleaded by the appellant in so many words in para 6 of the plaint.

       3. The statement of Savantsingh was recorded on 18 – 3 – 1969. Preceding date 2 – 11 – 1968 (Ex. D – 13) indicates that Savantsingh, who was to be examined as a witness, could not be examined as he had gone to some village along with the D. S Police. This proceeding further reads that the date of examination of this witness would be recorded later, but no date as such was fixed. The proceeding do not indicate that any intimation or information was given to the delinquent about the subsequent date fixed for recording of his statement, vide proceeding dated 28 – 2 – 1969. Proceeding dated 13 – 3 – 1969, which immediately precedes the date 18 – 8 – 1969 (Ex. D – 17) records that the Enquiry Officer was proceeding to Indore, as such the enquiry could not to held and a later date would be given, but no date as such was fixed. The appellant's grievance was that on 18 – 3 – 1969 he was picked up by the Range Inspector Police – line Thandla, who was also the Enquiry Officer and taken to Thandla under the pretext of 'duty', is abundantly corroborated by the proceedings of the Departmental Enquiry and in the circumstances the appellant was quite justified in expressing his inability to cross – examine the witness Savantsingh, whose statement was recorded in a room while asking him to remain out. In such circumstances, the recording of evidence itself in such arranger constitutes violation of the rules of natural justice and not affording an opportunity of cross – examining the witness as prayed for by the appellant amounts to denial of a reasonable opportunity to defend himself (to the appellant). Sub – rule 14 of Rule 14 of the Service Rules clearly lays down that on the date fixed for the Enquiry, oral and documentary evidence, by which articles of charges are proposed to be proved, shall be produced by or on behalf of the Disciplinary Authority. Recording of evidence is, therefore, to be done on the date fixed and not on any date as may suit the Enquiry Officer.

       4. As per Ex. D 14 proceeding dated 6 – 4 – 1969; evidence for the department was closed, but on this date 7 – 4 – 1969 was fixed for recording of the statement of the delinquent. After recording of his statement, the appellant prayed that Head – constable Anandilal be summoned for further cross examination. It may be noted that it was at the defence – stage, but this prayer was disallowed by the Enquiry Officer. The trial Court held it to be a denial of reasonable opportunity, while the lower appellate Court surprisingly enough brushed aside this point as not pleaded by the plaintiff. It has already been noted that the plaintiff – appellant bas in para 6 of the plaint made a specific point by pleading that the rules of natural justice were violated during the course of inquiry and a reasonable opportunity to defend was denied to him. It is not necessary that each and every instance, which constitutes either violation of rules of natural justice or denial of reasonable opportunity, should be pleaded. The pleadings as they are, are sufficient to cover the instances proved as violation of rules of natural justice. AIR 1976 SC 461, AIR 1978 SC 484 and AIR 1977 SC 1158 referred to.

       Appeal allowed.