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TMI Blog1983 (1) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... his private ownership and he cannot be accused of any illicit felling of spruce trees from the forest area. This contention necessitated a measurement of the land claimed by Kali Dass to be of his private ownership and it is only after physical measurement and specific demarcation of boundary. It could be ascertained that of the 21 trees cut and felled, 17 were in Forest land and 4 were in the land of private ownership of Kali Dass. Kali Dass after measurement and demarcation conceded, as per his statement Annexure 1, that he bona fide believed that all the 21 trees were standing in his private land and now that on physical measurement and demarcation of boundary, it transpired that of the 21 trees, 17 were standing in the forest land, he could not have cut the same without the necessary permission. He further contended that there was an honest error about the boundary line dividing his private land with the forest land and therefore, he felled the trees. He proceeded to state that he confessed that 17 trees felled by him stood in the Government Forest land and he was bound to pay the compensation for the same and it is an admitted position that he in fact paid ₹ 3,136.66 p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limine. Hence this appeal by special leave. 4. We heard Mr. R.L. Kohli, learned Counsel for the appellant and Mr. Talukdar, learned Counsel for the respondents. 5. The first contention canvassed on behalf of the appellant was that he was denied a reasonable opportunity to defend himself in the inquiry in asmuch as while the Department was represented by a Presenting Officer, till the first 3 witnesses are examined, he was not given an opportunity to seek assistance of an Officer in his defence, in para 3 (vii) of the Special Leave Petition, the appellant has averred that he was not informed and was not told that there will be a Presenting Officer on behalf of the department till three witnesses were examined on January 8, 1975. He proceeded to state that the petitioner being a Government employee in Class IV service of the level of a Forest Guard, he could not and was not expected to cross-examine witnesses pitted against him and he was labouring under a serious handicap that his own superior who was a co-delinquent, was being defended by another officer Shri Yudaister Lal. In this connection, in para 14 of the affidavit in opposition filed by Shri K.C. Puri, Under Secretary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as afore-said is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits. The procedure prescribed for the Inquiry was devised with a view to affording a delinquent Government servant facing a disciplinary proceeding a reasonable opportunity to defend himself. And by a catena of decisions it is well established that the delinquent has a right to cross-examine witnesses examined on behalf of the disciplinary authority and an opportunity to lead his own evidence and to present his side of the case. This is the minimum principle of natural justice which must inform a disciplinary proceeding. To be precise, the provisions contained in '1965 Rules' do make adequate provisions for the same. The question is whether it has been substantially complied with, and when we say substantial compliance, we mean that it is too much to presume that a Government servant of the level of a Forest Guard would be fully aware of all the intricate rules governing a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is forest guard had to fend for himself. In such a situation, the view taken by this Court in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendra-nath Nadkarni and Ors. Decided on November 17, 1982 (C.A. No. 3734 /82), would govern the situation. This Court said as under : In our view we have reached a stage in our onward march to fireplay in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained, mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request to defend himself and the essential principles of natural justice would be violated. The principle deducible from the provision contained in Sub-rule (5) of Rule 15 upon its true construction that where department is represented by a Presenting Officer, it would be the duty of the delinquent Officer, more particularly where he is a class IV Government servant whose educational equipment is such as would lead to an inference that he may not be aware of technical rules prescribed for holding inquiry, that he is entitled to be defended by another government servant of his choice. If the Government servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trees on account of negligence of the appellant thereby causing loss to Govt. property. Charge No. 2 is merely a corollary to the first charge viz. negligence in performance of Govt. duty, both charges refer to the one fact only and are overlapping. It is admitted that one Kali Dass cut and felled 21 spruce trees. There was a dispute between Kali Dass and the Government as to whether the spruce trees which were cut and felled were standing in the Govt. forest land or private land of Kali Dass, and the dispute could not be resolved till a demarcation Daroga took measurement which revealed that out of 21 trees cut and felled, 4 were in the private lend of Kali Dass. Kali Dass could not have cut and felled 17 trees which were found standing in the Govt. forest land. That value of the trees thus illegally cut and felled was ascertained and it is admitted that Kali Dass has paid the amount. It is therefore, conclusively established that no loss has been caused to the Government property. 9. The next question is whether there was negligence in performance, of duty. In this connection, the Inquiry Officer has observed that the duty of a Forest Guard is to see that the trees are felled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed as under : It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by the public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court Under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be clamed by a public servan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequence. 14. We invited Mr. Talukdar, learned Counsel for the respondent. State to address us on the question whether the game of holding the fresh Inquiry is worth the battle. More so looking to the fact that there is a very minor infraction of duty leading to a trivial charge of negligence in performance of duty which has caused no loss to the Government, we are of the opinion that it would not be fair to this low paid class IV government servant to face the hazards of a fresh inquiry. 15. The question is once we quash the order, is it open to us to give any direction which would not permit a fresh inquiry to be held ? After all what is the purpose of holding a fresh inquiry. Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh inquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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