Union of India v. T.R. Verma, AIR 1957 SC 882. - Cross - Examinations.

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1958 SCR 499 : AIR 1957 SC 882 : (1958) 2 LLJ 259
In the Supreme Court of India

(BEFORE S.R. DAS, C.J. AND T.L. VENKATARAMA AYYAR, B.P. SINHA, J.L.
KAPUR AND A.K. SARKAR, JJ.)
UNION OF INDIA … Appellant;

Versus
T.R. VARMA … Respondent.
Civil Appeal No. 118 of 1957* , decided on September 18, 1957
Advocates who appeared in this case:
C.K. Daphtary, Solicitor-General of India. (R. Ganapathy Iyer and
R.H. Dhebar, Advocates, with him), for the Appellant;
Purshottam Tricumdas, Senior Advocate. (T.S. Venkataraman and
K.R. Chaudhury, Advocates, with him), for the Respondent.
The Judgment of the Court was delivered by
T.L. VENKATARAMA AYYAR, J.— This is an appeal by special leave
against the judgment and order of the High Court of Punjab in an
application under Article 226 of the Constitution setting aside an order
dated September 16, 1954, dismissing the respondent herein, from
Government service on the ground that it was in contravention of
Article 311(2) of the Constitution.
2. 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 Shri Tawakley an
assistant in the Ministry of Commerce and Industry (Complaints
Branch), that Shri 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. Shri 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 Shri Tawakley should meet, by appointment,
Shri 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
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incognito. Then, there was a talk between Shri Tawakley, Shri Bhan and
the respondent, and it is the case of the appellant that during that talk,
an assurance was given by the respondent to Shri Tawakley that the
amount would be paid by Shri 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 Shri Bhan also
initialled it.
3. 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 Shri Bhan in offering illegal gratification to Shri
Tawakley and attempting to induce Shri Tawakley to accept the
gratification offered by Shri Bhan, and in support of the charges, there
were detailed allegations relating to meetings between the respondent
and Shri Tawakley on March 17, 1953, on March 21, 1953, a telephonic
conversation with reference to the same matter later on that day, and
the meeting in the Kwality Restaurant 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 J. Byrne, Joint
Chief Controller of Imports and Exports. On April 10, 1953, the
respondent submitted a detailed explanation denying that he met Shri
Tawakley either on 17th or on 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 24th related to
an insurance policy of his, and had nothing to do with any bribe
proposed to be offered by Shri Bhan. The respondent also asked for an
oral enquiry and desired to examine Shri Bhan, Shri Fateh Singh and
Shri Jai Narayan in support of his version. On April 17, 1953 Mr Byrne
gave notice to the respondent that there would be an oral enquiry, and
pursuant thereto, witnesses were examined on April 20, 1953, and the
following days, and the hearing was concluded on April 27, 1953.
4. 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
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cross-examine the witnesses, who gave evidence against him. The

papers were then submitted to the Union Public Service Commission in
accordance with Article 320, and it sent its report on September 6,
1954, 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.
5. 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 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 cross-
examined 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 Article
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 Solicitor-
General 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; and (2) that even if there was a defect in
the enquiry, 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 cross-examine the witnesses, he could not be heard
to urge that the order dated September 16, 1954, was bad as
contravening Article 311(2).
6. At the very outset, we have to observe that a writ petition under
Article 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 reliefs 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
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jurisdiction of the High 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, Kairana1 “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 Son v. Income Tax Investigation
Commission2 . And where such remedy exists, it will be a sound exercise
of discretion to refuse to interfere in a petition under Article 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 time-barred. 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.
7. 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 cross-examine 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 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.”
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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.
8. 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 Shri C.B. Tawakley. If, as
stated by the respondent, he asked for permission to cross-examine
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, Shri P. Govindan
Nair, he did actually put a question in cross-examination, and it is
difficult to reconcile this 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 was 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
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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.
9. 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 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 thereafter, 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.
10. 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 enquiries 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 broadly
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.3 where this
question is discussed.
11. We have examined the record in the light of the above
principles, and find that there has been no violation of the principles of
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natural justice. The 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
Shri 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 Bryne. The evidence of Shri Bhan and Shri Fateh
Singh was, it should be noted, wholly in support of the respondent. The
findings of Mr Bryne 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 Bryne 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.
12. 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 by Special Leave from the Judgment and Order dated 31st January, 1956, of the
Circuit Bench of the Punjab High Court at Delhi in Civil Writ No. 243-D of 1954
1 (1950) SCR 566
2 (1954) SCR 738, 747
3
(1957) SCR 98
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Monday, January 16, 2023

1958 SCR 499 : AIR 1957 SC 882 : (1958) 2 LLJ 259

In the Supreme Court of India

UNION OF INDIA … Appellant;

cross-examine the witnesses, who gave evidence against him. The

jurisdiction of the High Court to issue a prerogative writ. It is true that

On this affidavit, Mr Byrne was examined in court, and he repeated

judicial determination of the question, and that it should have been

1 (1950) SCR 566

2 (1954) SCR 738, 747

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