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Vasant Pandurang Deval Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberAppeal No. 2114 of 1957
Judge
Reported inAIR1963Bom269; (1963)65BOMLR444
ActsConstitution of India - Article 311 and 311(2); Government of India Act - Sections 240(3)
AppellantVasant Pandurang Deval
RespondentThe State of Bombay
Appellant AdvocateV.N. Gadgil, Adv.
Respondent AdvocateV.H. Gumaste, Addl. Govt. Pleader
Excerpt:
.....1954 and end of february 1955, on the ground that the first order of dismissal passed by the district judge having been set aside by the high court, he was entitled to the salary until the second order of dismissal was confirmed by the high court by its letter dated 1st february, 1955. the state government by its written, statement denied the plaintiff's claim and contended that adequate opportunity to defend himself was afforded to the plaintiff both at the inquiry as well as at the lime of imposition of the sentence. ..but we think that there can be no doubt that the court must be satisfied on a review of all the facts of a particular case that the statutory obligation east upon the state has been properly discharged by the state and the statutory obligation is to afford..........saswad, mr. behere, who had taken up a dacoity case for inquiry on 29th july 1954, reported to the district judge, poona, that 54 currency notes of the value of rs. 10 each, which were a part of the muddemal in the case, were missing from the court. on 3rd august 1954, the plaintiff on being informed about the report made by mr. behere to the district judge, went back to saswad, made inquiries for the missing currency notes in the room in which muddemal used to be kept, and found them, according to the plaintiff, mixed up with certain other property lying in that room. those notes were thereafter produced before the court, whereupon mr. behere informed the district judge that the notes were traced and produced before him. on 4th august 1954, the district judge sent one of his clerks to.....
Judgment:

1. This is an appeal by an Ex-Government servant who had at the material time occupied the position of a clerk of the Court-cum-Nazir in the Court of the Judicial Magistrate and Civil Judge (Junior Division) at Saswad in the District of Poona. On 26th July 1954, this Government servant, who will hereafter be referred to as the plaintiff, was transferred to Poona, where he had to work in the Court of the Civil Judge (Senior Division). On the next day he joined his service at Poona. On 2nd August 1954, the Judicial Magistrate at Saswad, Mr. Behere, who had taken up a dacoity case for inquiry on 29th July 1954, reported to the District Judge, Poona, that 54 currency notes of the value of Rs. 10 each, which were a part of the Muddemal in the case, were missing from the Court. On 3rd August 1954, the plaintiff on being informed about the report made by Mr. Behere to the District Judge, went back to Saswad, made inquiries for the missing currency notes in the room in which Muddemal used to be kept, and found them, according to the plaintiff, mixed up with certain other property lying in that room. Those notes were thereafter produced before the Court, whereupon Mr. Behere informed the District Judge that the notes were traced and produced before him. On 4th August 1954, the District Judge sent one of his clerks to Saswad to record the statement of the plaintiff's successor-in-office, Mr. Yedke. This clerk, it seems, did record the statement of Yedke at Saswad and he also recorded the statement of the plaintiff on the same day at Poona. On 5th August 1954, the District Judge suspended the plaintiff from his service and a charge-sheet was furnished to him with a notice calling upon him to answer the charges mentioned in the charge-sheet. On 9th August 1954, the plaintiff filed his reply and also made a separate application stating that he did not wish any oral inquiry nor did he want to lead any evidence. Yet by the same application he had asked for permission to engage a pleader, which permission was, however, refused. On 16th August 1954, the plaintiff submitted another statement to the District Judge. On 18th August 1954, the District Judge held the inquiry into the charges levelled against the plaintiff and at that inquiry the evidence both of the plaintiff's successor-in-office at Saswad and the Judicial Magistrate Mr. Behere was recorded. The plaintiff's own statement was also recorded by the District Judge. No complaint was made by the plaintiff in course of the inquiry at any time nor was any complaint made in the present proceedings that he was not allowed to cross-examine any of those witnesses or that he had not been afforded full opportunity to answer the charges levelled against him. After the inquiry was closed, the District Judge on the same day passed an order of dismissal against the plaintiff. On 24th August 1954, the order of dismissal was formally communicated to the plaintiff. Thereafter, on 17th September 1954, the plaintiff appealed to the High Court on its Administrative side against the order of dismissal passed by the District Judge. On 13th October 1954, the High Court addressed a letter to the District Judge pointing out that the order of dismissal that he had passed was in contravention of Article 311 of the Constitution, and directed the District Judge by that letter to proceed with the inquiry from the stage at which it was left before passing the order of dismissal. In pursuance of that direction, the District Judge passed an order striking out the order of dismissal from his judgment and on 30th November 1954, a notice was issued to the plaintiff to show cause as to why punishment by way of dismissal from service should not be imposed upon him. A copy of his judgment as amended in pursuance of the High Court direction was sent along with this notice to the plaintiff. On 11th December 1954, the plaintiff gave his statement in reply, by which he sought to challenge the finding of the District Judge in respect of the charges levelled against him and also the propriety and quantum of the proposed punishment. On 20th December 1954, the District Judge, after considering that statement passed an order of dismissal against the plaintiff. The plaintiff then filed an appeal to the High Court on its Administrative side against that order. The High Court dismissed that appeal and the plaintiff was informed about it by a letter dated 1st February, 1955. It appears from the plaint that the order of the High Court dismissing the appeal was confirmed by the State Government in due course. After the plaintiff thus failed in the proceedings before the High Court and the State Government, he instituted the present suit on. 28th June 1955 for a declaration that the order of dismissal from service passed against him by the District Judge and ultimately confirmed, by the State Government was void and inoperative in law, since he was not afforded adequate opportunity of representing his case against the charges levelled against him. As a consequential relief, he also asked for a declaration that the order of dismissal being bad, he continued to be in service as if he was never dismissed. In addition, he prayed a decree for his salary for the short period between 1st August 1954 and end of February 1955, on the ground that the first order of dismissal passed by the District Judge having been set aside by the High Court, he was entitled to the salary until the second order of dismissal was confirmed by the High Court by its letter dated 1st February, 1955. The State Government by its written, statement denied the plaintiff's claim and contended that adequate opportunity to defend himself was afforded to the plaintiff both at the inquiry as well as at the lime of imposition of the sentence. It also denied the plaintiff's claim for salary for the short period as claimed by him in the plaint. The learned trial Judge was of the view that no adequate opportunity was given to the plaintiff for showing cause against the penalty proposed to be inflicted upon him, on account of the fact that the District Judge had refused to consider the propriety of his finding on the charge in question as a result of the inquiry held in that behalf. The plaintiff's suit was accordingly decreed by that Court. The State went in appeal to the District Court and the learned District Judge set aside the decree of the trial Court and dismissed the plaintiff's suit holding that the District Judge who had held the inquiry was right in his view that no useful purpose would be served by hearing the plaintiff over again on the facts and evidence in the case in answer to the notice served upon him to show cause as to why the proposed penalty should not be imposed upon him. The plaintiff has now come to this Court in Second Appeal against the order of the learned District Judge.

2. In support of this appeal, it was urged by Mr. Gadgil that the order of dismissal was vitiated on account of the fact that the District Judge had refused to hear the plaintiff on the merits of the case and the charge against him at the hearing of the notice to show cause as to why the proposed penalty should not be imposed upon him. According to him, it was not enough that an opportunity to defend himself should have been given to the plaintiff at the time when the charge framed against him was inquired into. He urged that even after the inquiry was over and the Officer having an authority to impose punishment made up his mind to impose a certain penalty and gave a notice to show cause as to why that penalty should not be imposed, it was incumbent upon the Officer to permit the Government servant to challenge his finding as a result of the inquiry and contend that his finding was wrong and that, therefore, there was no question of imposing any penalty upon him.

2a. In support of this contention Mr. Gadgil relied upon the following observations of Chagla C. J., in State of Bombay v. Gajanan Mahadev Badley, 56 Bom LR 172: AIR 1934 Bom 351:

'Under Section 240(3) of the Government of India Act, 1935, (corresponding to Article 311(2) of the Constitution) it is not sufficient for the Government merely to inform the servant that it proposes to pass a particular punishment and to ash him to show cause against that punishment. The opportunity which the State has to furnish has to be a reasonable opportunity and such an opportunity is only afforded to the servant when he can show cause not only against the punishment but also against the grounds on which the State proposes to punish him. Therefore, it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental inquiry if that decision constitutes the ground on which the Government proposes to take action against the servant.'

These observations undoubtedly seem to lend support to Mr. Gadgil's contention. It has, however, been further observed by the learned Chief Justice in the same case (at p. 178) : (of Bom LR) : (at p. 355 of AIR) as follows :

'When an inquiry against a dismissed servant is, as it were, in two parts, where there is, first, a departmental inquiry and then a notice to show cause is served upon him by the authority which proposes to dismiss him, the Court has got to look at both parts of the inquiry in order to come to the conclusion whether a reasonable opportunity was afforded to the servant to show cause against the action proposed to be taken against him. It may not be necessary to duplicate what has already been done in the departmental inquiry. 'It may be said that if in fact the dismissed servant has been given a full and proper opportunity to show cause against the allegations made against him. then it may not be necessary again to require from him practically the same explanation............''

'.........But we think that there can be no doubt that the Court must be satisfied on a review of all the facts of a particular case that the statutory obligation east upon the State has been properly discharged by the State and the Statutory obligation is to afford reasonable opportunity to the dismissed servant.'.

From these observations, it will be clear that all that the Court has got to do is to satisfy itself that a reasonable opportunity was given to the servant to show cause in regard to the allegations made against him, before an order dismissing him from service is passed. The learned Chief Justice makes it abundantly clear in these observations that it was not the intention of Section 240(3) of the Government of India Act to duplicate an inquiry into the allegations made against the Government servant. Once the servant is afforded an opportunity to show cause against the allegations made against him and an opportunity is also given, to him to cross-examine the witnesses in support of the allegations, to make his own statement in. defence and examine such witnesses as he chooses in support of his defence, it is not necessary again to give him an opportunity to challenge the finding, which the Inquiry Officer might arrive at before deciding the question of punishment. The second notice, which is required to be given to the servant, is only to enable him to show cause against the punishment proposed to be inflicted by the Officer as a result of his finding upon the inquiry into the allegations made against the servant. In answer to this notice, the servant cannot be permitted to challenge either the evidence already recorded in the inquiry or the finding of the Officer-arrived at on such evidence. This position, in my opinion, is a sound and salutary one in law, because the Officer cannot sit in appeal over his own finding in respect of the allegations made against the servant. Even in cases where an inquiry is held by one Officer and the punishment is proposed by another competent Officer, it must necessarily be presumed that the latter Officer would make up his mind as to the nature of punishment if any, to be imposed upon the servant concerned only after considering the evidence and the statement of the servant recorded by the Inquiry Officer, and, therefore, the servant having had an adequate opportunity to show cause against the allegations made against him cannot any further be permitted to challenge the decision of the Officer, who gives notice in regard to the proposed punishment.

3. A reference in this connection may usefully be made to the decision of the Supreme Court in Khemchand v. Union of India, : (1959)ILLJ167SC . In paragraph 19 of the judgment Their Lordships observed as follows:

'The reasonable opportunity envisaged by the provision contained in Article 311(2) includes:(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.'

It will thus be clear that once an opportunity is given to the Government servant to show cause against the charges levelled against him and the allegations upon which such charges are based, to file his written statement in answer to the charges, to cross-examine the witnesses examined in support of the charges, to examine himself and also such other witnesses as he might choose in support of his defence and also to point out at the end of the inquiry as to whether the charges made against him were proved or not, it must be held that an adequate and reasonable opportunity was afforded to him to show cause against the charges made against him. After such opportunity has been given and availed of by the Government servant, the next stage for the competent authority is to apply its mind to the record of the case and come to a tentative decision as to what punishment, if any, it would impose upon him. If such authority decides that one of the three punishments provided in Article 311(2) of the Constitution, corresponding to Section 240(3) of the Government of India Act, should be imposed upon the servant, it is required to give notice to the servant to show cause as to why the punishment proposed by it should not be imposed upon him. In answer to this notice all that the servant can tell the authority is that the proposed punishment was either unjustified in view of the nature of the charges levelled against him or was excessive in view of the circumstances of his life or that despite the finding of the competent authority, it was a case where no punishment should be imposed upon him, but it will not be open to him to challenge the finding of the competent authority on the evidence in the case. It it were otherwise, not only there would be duplication of inquiry but there would in fact, be no end to such inquiry because every time a tentative decision is taken by the competent authority on the evidence recorded in course of the inquiry that one of the three penalties provided in Article 311(2) of the Constitution should be imposed upon the servant and a notice is given to the servant to show cause why, that penalty should not be imposed upon him, it would be open to the servant to contend that the notice served upon him to show cause against the charges was vague, or that he had not led sufficient evidence in his defence, that he had not adequately cross-examined the witnesses examined in support of the charges, and that, therefore, the inquiry should be re-opened. This, surely, cannot be, and in my opinion, is not the true position in law. I, therefore, think that there is no substance in Mr. Gadgil's contention that the order of dismissal of the plaintiff in this case was vitiated on account of the fact that the District Judge had declined to hear the plaintiff on the merits of the case in answer to the notice to show cause as to why the punishment, of dismissal from service should not be imposed upon him.

4. It was next contended by Mr. Gadgil that in paragraphs 3 and 4 of the further statement that the plaintiff had filed before the District Judge in answer to the notice to show cause as to why the proposed punishment should not be imposed upon him, the plaintiff had contended that the quantum of punishment proposed to be inflicted was too severe, and since that contention was not considered by the District Judge, grievance in that behalf was expressed by the plaintiff in one of the grounds set out in the memo of appeal to this Court. A look at that statement, however, shows that neither of those two paragraphs related to the quantum of punishment at all. They dealt with the merits of the case and, as already stated, the District Judge was within his right to disregard the plaintiff's contentions about the merits at that stage. Mr. Gadgil had no further material to urge that the District Judge had failed to consider the plaintiff's submissions with regard to the quantum of punishment. To my mind, his contention in that behalf was wholly misconceived.

5. In the result, I uphold the decision of the learned District Judge reversing the decree of the trial Court and dismissing the plaintiff's suit. The appeal is accordingly dismissed with costs.

6. Decree to be sent to the Collector, Poona, for recovery of Court-fees from the appellant as the appeal was filed in forma pauperis.

7. Appeal dismissed.


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