TMI Blog1976 (4) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... with various firms in the United Kingdom and the continent for supply of rolling stock and other materials for the Indian Railways. In December, 1956 the appellant was deputed to the Essen Area of West Germany as Senior Railway Inspector in which capacity he had to inspect and pass the goods in the first instance at the site. Although this work of inspection in West Germany was entrusted to the German Federal Railway in January 1958, the appellant remained there associated with the work till April or May, 1958. In July, 1956 orders were placed with M/s Leo Gottwald and Company for supply of several breakdown cranes- both for meter gauge and broad gauge railway tracks in India. This was a family concern of one Dr. Hans Dieter Gottwald. Prior to the appellant's going to the Essen Area of West Germany, there were other Senior Railway Inspectors doing the work of inspection including one S. N. Hussain (since deceased) immediately preceding the appellant. One of the clauses in the contract with Gottwald was that he would be liable to pay liquidated damages in the specified sums if he made delay in the delivery of the cranes. Eventually there being delay, the amount of such damages ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were served upon the appellant on April 7, 1959 along with two Annexures containing various details of the accusations made by Gottwald against him. The appellant was asked to indicate by April 15 the papers which he wanted to inspect and the papers the copies of which he required to enable him to enter his defence. He was asked to submit his written explanation by 30th of April, 1959. In the meantime he was placed under suspension. Shorn of details which were to be found in the Annexures the Charge-Sheet served on the appellant contained the following three charges: CHARGE I. That Shri H. C. Sarin, while functioning as the Senior Railway Inspecting Officer in the India Stores Department, London, during the period between December, 1956 and May, 1958, demanded and obtained illegal gratification from the firm of Messrs. Leo Gottwald of Dussaldorf. CHARGE II. That during the aforesaid period and while functioning as aforesaid, the said Shri H. C. Sarin violated Rule 10 of the Railway Services (Conduct) Rules, 1956 in that he accepted an Opel Car from Messrs. Talbots of Achen as a gift. CHARGE III. That during the aforesaid period and while functionin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in London on September 29, 1959 after copies of the earlier statements of the witnesses and other papers had been supplied to the appellant on September 21, 1959. The appellant was present on September 29 but did not actively participate in the enquiry, in that he did not take any part in it by cross-examining Bayross. The Board submitted its report to the Government of India on November 2, 1959 holding that charges I and III had been proved against the appellant and charge II had neither been proved nor disproved. The Government gave a show-cause notice on November 4, 1960 to the appellant asking him to show cause against his removal. He filed his reply on January 31, 1961. Later, however, the Government gave another show cause notice dated September 20, 1961 to the appellant to show cause as to why he should not be dismissed from service. In October/November, 1961 the appellant filed three show cause explanations in writing. He made another representation to the Government on March 4, 1962 for holding a fresh enquiry which naturally was not acceded to. Eventually the appellant was dismissed from service by an order of the Government of India dated September 10, 1962. He file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services of a professional lawyer for cross examining Gottwald and a Railway officer of his choice from India were not made available to the appellant for conducting his defence. Learned Solicitor General appearing for the Union of India-the respondent-refuted all the submissions made on behalf of the appellant. In particular he focussed his submissions on point nos. 1, 5 and 7 as the other four points, counsel submitted, did not require any detailed reply. When the appellant was placed under suspension, in accordance with the relevant service rules he was asked not to leave London without permission of the Board. As soon as the Charge Sheet was served on him by his letter dated the 10th April, 1959 the appellant wanted permission to visit Germany stating in para 6: In order for me to prepare my defence I would request permission to visit Germany to collect essential information required when submitting my written defence, especially as the charges refer to periods two to three years ago. The Chairman of the Board of Enquiry in his reply dated the 15 April, 1959 stated in para 3 thus: In regard to your request to be permitted to visit Germany, the Board would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Enquiry. In the light of the relevant correspondence which passed between the appellant and the Chairman of the Board of Enquiry we have come to the conclusion that it was not at all necessary for the appellant to visit Germany for preparing his defence. The Board committed no mistake and violated no principles of natural justice in refusing the permission. No useful purpose would have been served by such a visit in the interest of the appellant's defence, if any. on the other hand his insistence to visit Germany at the earliest opportunity smacks of some ulterior design on his part in regard to his defence. When the Board decided to visit Germany for holding the enquiry, it gave ample opportunity to the appellant to proceed to Germany to take part in it. The main part of the enquiry. rather, the only substratum of the materials was to be done and collected at Dusseldorf in Germany. Yet on one excuse or the other the appellant, it appears, was advised to adopt an attitude of non cooperation which was likely to forge a ground of attack on the departmental enquiry, thinking that participation in it would. perhaps, worsen his case. It is found more often than not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his previous stand in his letter dated June 29, Board asking the appellant to proceed to Germany in their letter dated July 2 and the appellant's reiterating his previous stand in his letter dated July 8. From the report of the Board it would appear that Sarin did not give a categorical answer as to whether or not he would go to Dusseldorf on July 13. On the 10th July, he agreed to go and came to India Stores Department to collect his advance of T. A. But on the evening of July 11, he informed the Secretary to the Board that he would not proceed to Dusseldorf to be present at the oral enquiry. Mr. Phadke drew our attention to Sarin's show cause reply dated January 31, 1961 in which he stated that the Board permitted him to go to Dusseldorf only if he agreed to participate in the oral proceedings there, otherwise not. He therefore, cancelled his reservations to proceed to Dusseldorf. He also referred to the photostat copy of the appellant's letter dated July 24, 1959 and the addendum to this letter. Nothing new; the same stand was taken by the appellant. This, to our mind, makes patent the latent factor in the mental attitude of the appellant. Did he want to go to Dus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Board to conduct the enquiry as fairly and fully as they could in the circumstances of the case. The submission of the appellant is rejected as being devoid of substance. In view of the attitude taken by the appellant of complete non-cooperation in his letters dated June 14 and June 20, 1959 no useful purpose would have been served by associating him with the examination of the witnesses in London. Madnani and S. N. Hussain were examined in July and August. The appellant never expressed his willingness to cooperate and be present at the examination of the witnesses in London. His presence at the time of the examination of Bayross was a make-believe more of cooperation to colour and cloud his real attitude of non-cooperation. The Board committed no irregularity or illegality in sending a general questionnaire to S/Shri Bhalla, Sharma, Johri and Sen in India as the appellant had refused to submit a questionnaire. Copies of all the relevant statements and papers given to the Board at Dusseldorf were given to the appellant in September, 1959. Although there was some delay in supply of these papers, that did not cause any prejudice to the appellant. Point No.4 This poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made this complaint to Madnani on July 30, 1958 on being asked to do so by S. N. Hussain because he had his own axe to grind against Sarin. This argument has been stated merely to be rejected. It was just in the natural course of events that when S. N. Hussain was finding fault with Gottwald for the delay in the execution of the contract the latter became forced by circumstances to blurt out the truth. The accusation against Sarin was too serious to be taken note of by S. N. Hussain alone. Naturally, therefore, he advised him to go and make this complaint to the higher officer Madnani. No connection between M. A. Hussain-the Chairman of the Board and S. N. Hussain-a Senior Inspector who was in Essen Area of West Germany immediately before the appellant, was established. It is an argument of desperation to suggest that M. A. Hussain was biased against the appellant to protect or help S. N. Hussain. The charge of being communal levelled against the Chairman by the appellant in his letter dated October 5, 1959 written to the Government of India was obviously made with an ulterior motive after conclusion of the enquiry and sensing that it had gone against the appellant. Great stress wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional lawyer. The term 'professional lawyer includes those persons who are competent to practice in a court of law.' In face of the above note, treating it as a part of the rule, the appellant was not entitled to the services of a professional lawyer. Gottwald, as it appears, was a lawyer in name but actively in business. The services of a professional lawyer were not necessary to cross-examine him. The fact was a simple one as to whether he had paid money to the tune of about 24,000 D.M. to the appellant from time to time. Even if we treat the note aforesaid as one based merely on the executive instructions and not a part of the rule itself, we see no reason to say that the authority was obliged not to follow the note but to go against it. At the most it had a discretion in the matter. The question is whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the conclusion that principles of natural justice wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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