Dr. Sambuddha Chakrabarti, J.@mdashThis appeal arises out of a judgment and Order dated, September 2, 2009 passed by the learned Trial
Judge in W.P. No. 28446 (W) of 2008 dismissing the writ petition filed by the Appellant.
2. It was alleged by the Appellant in the writ petition that in the year 2004 the Respondent No. 2 to the writ petition i.e. the Director, Kolkata
General Post Office, after duly accepting the tender of the Appellant had permitted him to work as a Professional Letter Writer (P.L.W., for short)
at the Kolkata G.P.O. for a period of 3 years. In February, 2005 one Anil Sharma entrusted the Appellant to send money through an insured
envelope containing currency notes of Rs. 1,300. According to the Appellant, in spite of handing over the insured envelope containing the said
currency notes to Shri Anil Sharma, after the said envelope was received by the addressee it was discovered that the said currency notes were
missing and the same was reported by Anil Sharma. The Appellant as a result of the pressure created upon him, had made the payment to Shri
Anil Sharma. Thereafter, Shri Anil Sharma lodged a complaint to Respondent No. 2. The Respondent No. 3 issued a show cause notice dated
23rd February, 2005, asking the Appellant to show cause why the permission granted to him to work as a Professional Letter Writer (P.L.W.)
shall not be cancelled and why action against him shall not be taken. The Appellant on apprehension that the said Shri Anil Sharma was hatching a
conspiracy against him in collusion with some employees of the G.P.O. had lodged a complaint with the Officer-in-Charge of the Here Street
Police Station and requested him to take necessary steps in the matter. The Appellant also requested the Respondent No. 3 to send him a copy of
the alleged complaint against him to enable him to give a comprehensive reply to the show cause notice. It was further alleged in the writ petition
that without affording any opportunity the Respondent No. 2 by an Office Memo dated March 4,2005 had terminated the Appellant''s tenure as a
P.L.W. at the Calcutta G.P.O.
3. The Appellant challenged the same by a writ petition which was disposed of in the year 2007 by which the learned Trial Judge set aside the
impugned Order of termination and passed a direction upon the Respondent No. 2 to consider the matter afresh upon giving the Appellant an
opportunity of being heard and upon making available to him the copies of the said complaint within a period of eight weeks. It was further
directed that the Appellant would be entitled to participate in fresh tender but in the event he was found guilty of any misconduct his offer would
not be accepted and till the Respondent No. 2 decided the matter he would not be entitled to work as a P.L.W.
4. Pursuant to the said Order the Appellant was directed to appear at the chamber of the Respondent No. 3 on August 13, 2007 which he did.
The copy of the complaint was made available to him. By an Office memo dated September 11, 2007 the Respondent No. 2 issued an Order
whereby he held that the malpractice of the offence committed by the Petitioner was proved beyond any shadow of doubt and to protect the image
of the department and to provide better service to the public, he directed that the tender which the Appellant had submitted for the period from
01.09.2007 to 31.08.2010, was to be rejected and that he would be given no more opportunity in future to participate as a tenderer for the
P.L.W. and he will not be allowed to work as a P.L.W. at the Kolkata G.P.O. for ever.
5. The Appellant again filed a writ petition and the said was disposed of by this Court by setting aside the Order. The learned Trial Judge while
disposing of the writ petition had granted leave to the Appellant to file written objection within three weeks and also directed the Respondent No.
2 to consider the matter afresh after giving him a reasonable opportunity of hearing and by offering him to make oral submissions and to dispose of
the same within eight weeks from the date by passing a speaking Order.
6. The Appellant, thereafter, filed his written objection on September 18, 2008 and the Petitioner was called to attend the hearing on October 13,
2008 before the Respondent No. 2. At the hearing the Appellant, it is alleged, had submitted an application to call Shri Anil Sharma to cross-
examine him in the proceedings for the proper and effective adjudication which was turned down by the Respondent No. 2. The further grievance
of the Appellant is that after only giving a very short hearing the Respondent No. 2 closed the same and by Order dated October 24, 2008, he
held that the offence committed by him was of a serious nature and directed that the tender submitted by the Appellant for the period from
September 1, 2007 to August 31, 2010 was to be rejected and that he would not be allowed to work as a P.L.W. at the Calcutta G.P.O. in
future. This Order has been challenged in this writ petition.
7. The Respondents filed an opposition to the said writ petition wherein the facts leading to the issuing of the Order impugned in the writ petition
have been narrated. It was mentioned that the complaint received by the Respondent No. 2 from Shri Anil Sharma specifically mentioned that the
Petitioner had in the past also committed such an act with his brother when an amount of Rs. 1,150/- was entrusted to the Petitioner by an insured
letter which again after reaching the addressee was found to contain only some pieces of paper and after pressing the Appellant he refunded the
said amount within 15 days. It was specifically contended that the Appellant was provided all reasonable opportunities to present his case at the
hearing. It was also alleged that another complaint of similar type was lodged by one Shri Ramji Chowdhury regarding the sending of money by
him amounting to Rs. 1,500/- by an insured letter. The Petitioner had granted a kutcha receipt to Shri Chowdhury. During the transaction he had
used certain documents which were examined by the Director of Forensic Sciences and a report was filed by him. After the conclusion of the
hearing the Respondent No. 2 had issued an Order impugned in the writ petition. It further appears that the sub-postmaster of the Post Office
under whose jurisdiction the addressee in the instant case used to reside, had furnished a report to the effect that the envelope had reached there in
good condition and after opening the same it was found to contain only some pieces of paper instead of money. According to the Respondents this
singularly proved that he had cheated Shri Anil Sharma. The Respondents mentioned that some items in connection with a transaction in the year
2004 were shown to him. The Appellant had put his handwriting on those documents. When that was sent to the Government Examiner of
Questioned documents, Director of Forensic Sciences, the same was confirmed to be his handwriting.
8. The Appellant filed an affidavit-in-reply where he reiterated that he was not afforded reasonable opportunity to defend his case and that the
complaint lodged by Shri Ranji Chowdhury had not been proved and, therefore, any document relied upon by the authorities in connection with
that case cannot have any bearing.
9. From the allegations and counter-allegations it transpires that there were major lapses in arriving at the conclusion that the Appellant was guilty
of the offences alleged against him. In the Order impugned in the writ petition the Respondent No. 2 had narrated the complaint of Shri Anil
Sharma in details and had thereafter mentioned the main points of the written objection submitted by the Appellant with his observations at the end
of each paragraph. From the way of disposing of the points of objection it appears that the Respondent No. 2 had merely passed his opinion
without any discussion indicating the basis of his conclusion. For example, to the Appellant''s defence that there was no evidence that the
addressee of the insured article had received only some papers and not the currency notes the Respondent No. 2 had merely to observe that ""this
is denied and disputed as the matter is on record.
10. Then about the specific case of the Appellant that he had no knowledge about the complaint lodged by Shri Anil Sharma before making the
payment of Rs. 1,300/- and that the staff of the G.P.O. had assured him that if he had made the payment the complaint would be withdrawn, the
Respondent No. 2 had merely observed that the statements were self-contradictory and that it was clear that the Appellant had made a false and
baseless written objection.
11. Then again in connection with the written complaint lodged by Shri Ramji Chowdhury that the same was not related to the present case the
Respondent No. 2 had observed that it is not irrelevant to draw the attention to the said complaint which clearly indicated that he was habituated in
malpractice and the same was also established by the fact that while working as a P.L.W. in Shribhumi Post Office he had committed a similar type
of offence and committed fraud in respect of Rs. 6,435/- from different persons. A police case was also started against him.
12. While passing the Order impugned the writ petition the Respondent No. 2 had overlooked a very major lacuna in the complaint case. If it is
correct, as alleged by the complainant, that in the past also the Appellant had committed this offence with his brother then regard being had to the
common course of human conduct it was only natural that the complainant would not entrust him with Rs. 1,300/- or at least would ensure that the
money handed over to him was in fact put inside the envelope before it was sealed. There is no explanation about why the complainant in spite of
the previous knowledge of an alleged fraudulent mal practice being committed by the Appellant had not ensured that the money was actually put
into the envelope. and the Respondents authorities while adjudicating the Appellant''s case had failed to address themselves to this crucially
important aspect of the matter. The Respondents authorities ought to have appreciated that the case as framed had not been proved.
13. That apart, there is nothing on record except the assertion of the complainant that the money had not reached the addressee. It does not
appear that the addressee was called to depose or that he in fact deposed that he had not received the money sent from Kolkata. Without this, the
compliant is a mere hearsay evidence. and the Respondents had clearly erred in accepting this as an inviolable truth. The learned Trial Judge also
had committed a mistake in not appreciating this major lacuna of the case and in not holding that the charges against the Appellant could not be
said to have been proved.
14. The Appellant''s prayer for calling Shri Anil Sharma for cross-examining him was also improperly turned down by the Respondents. This is a
case where the Appellant did not get any opportunity to cross-examine the complainant. If the Respondents wanted to rely on the report of the
Government Examiner of Questioned Documents they most certainly ought to have given him a reasonable opportunity to cross-examine the
complainant. Refusal to afford this opportunity meant a denial of reasonable opportunity of hearing itself to him. and thereby the principles of
Natural Justice have also been violated.
15. This is now a settled principle of law that whenever an adjudication of a man''s right is to be made he is to be given an opportunity of being
heard. This is a cardinal principle of Natural Justice which in every case has to be followed, unless, of course, this is statutorily or otherwise
specifically excluded, either expressly or by necessary implication. Needless to mention that such opportunity, to be effective, must be a real and
not a nominal one. In Swadeshi Cotton Mills Vs. Union of India (UOI), the Hon''ble Supreme Court cautioned that such hearing must be a very
genuine hearing and not a public relations exercise. An empty audience satisfying the mere form of it ultimately may amount to a big nothing. More
than six decades ago Lewis J. in R. v. Architects'' Registration Tribunal, ex prate Jaggar, 1945 (2) All ER 131, clearly held that merely bringing to
the notice of a party that an evidence exists is not sufficient.
16. The Appellant in this case was not given opportunity to cross-examine the complainant, Shri Anil Sharma. This, we consider, is a clear
departure from the rules of Natural Justice. An effective opportunity of being heard includes a right to cross-examine a witness or a complainant
the moment his version of the statement is disputed by the charged person. In K.L. Tripathi Vs. State Bank of India and Others, , the Hon''ble
Supreme Court considered this right to form a part of fair play in action. One major purpose of cross-examination is to discredit the testimony of, a
statement made earlier, written or verbal, and to elicit the truth. The Appellant not having been given this opportunity was clearly denied an
effective and meaningful right of being heard.
17. If we look at the course of events in connection with this case it appears that this was the third writ petition filed by the Appellant. On the past
two occasions reasonable opportunity of hearing was held not to have been afforded to the Appellant. and on both these two occasions in the past
the High Court had set aside the impugned Orders and sent the matter back the Respondents.
18. The manner of disposing of the specific points of defence of the Appellant clearly brings out the high handedness on the part of the authorities.
The specific case of the Appellant was dismissed with rather cursory observations, like: ""this is denied and disputed"" or ""it is clear that he made
false and baseless written objection"" etc. The Respondent No. 2 again had sweepingly concluded that the reasons cited by the Appellant to
consider his innocence could not be justified. The authorities thereby had clearly adopted a wrong stand. The Respondent No. 2 being a senior
and responsible officer of Government of India was expected to be aware of it that in a case of such a nature it was for the authorities to prove the
charge against him. The Respondents authorities had misdirected themselves in approaching the case from the reverse angle and misplaced the
onus upon the Appellant in arriving at a conclusion that he could not justify his innocence.
19. It was submitted on behalf of the Respondents at the hearing of the appeal that since the tender was for a fixed period, in the departmental
enquiry the principles of natural justice were not required to be adhered to. We find no merit in such submission. Unless specifically barred or
excluded by necessary implication, the principles of natural justice apply to all inquiries and all proceedings irrespective of whether a person
proceeded against is a permanent employee or holding a temporary employment. This stand is clearly against the settled principles of law.
20. We are keenly aware of the basic position that a Writ Court does not normally sit in appeal against an Order passed in a; departmental
proceeding. But that does not mean that in all cases this limitation on the power of the Writ Court must apply as an absolute bar to the exercise of
its jurisdiction. As early as in the early 1960-s in the case of State of Andhra Pradesh Vs. Sree Rama Rao, the Hon''ble Supreme Court sanctioned
the High Court''s interference ""where the departmental authorities have held the proceedings against a delinquent in a manner inconsistent with the
rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry....
21. We have already found that the authorities concerned have grossly violated the principles of natural justice and even after giving three
opportunities could not rectify themselves. This not only justifies but warrants the Writ Court to exercise jurisdiction to set aside and quash the
Order impugned. We find no factual substance in the arbitrarily arrived conclusion of the authorities. and we have no other alternative but to
conclude that the observations made by the Respondents that the offence committed by the Appellant is a serious one and that this kind of
malpractice damaged the image of the department and belied the trust and faith reposed by the public in general in the department, were misplaced
and not applicable to the facts of this case.
22. The learned Trial Judge while dismissing the writ petition had concluded that the Respondent No. 2 had afforded the Appellant a fair
opportunity of hearing. Such observation does not find any support from the facts of this case. The Appellant''s prayer to cross-examine the
complainant has been considered by the learned Trial Judge as an effort to drag the matter. This, however, is not the law. A charged employee has
every right to cross-examine the complainant and this is not to be viewed as dragging the matter or a mere wish to be fulfilled by the Respondents.
23. This is neither his wish nor his fancy. By praying for an opportunity to cross-examine the complainant the Appellant was not asking for an
absurd thing. This was his right and it was very much within his competence to ask for the same.
24. The learned Trial Judge failed to consider that there are many major lacuna in the proceeding itself and the conclusion arrived at was more like
an imposition by an higher authority than a conclusion based on material facts and reasons. Such an Order cannot be sustained. We hold that the
Order impugned in the writ petition is bad. The entire proceeding suffers from the vice of violations of the principles of natural justice.
25. We set aside the judgment and Order of the learned Trial Judge and allow the appeal. The Office Order impugned in the writ petition is also
hereby set aside and quashed.
26. There shall, however, be no Order as to costs.
27. Urgent xerox certified copy, if applied for, will be supplied within seven days from the date of the application.
Bhaskar Bhattacharya, J.
I agree.