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Vasantrao Shankerrao Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberMisc. No. 132 of 1955
Judge
Reported inAIR1956Bom483
ActsConstitution of India - Articles 226, 311, 311(2) and 313; Civil Services (Classification, Control and Appeal) Rules, 1955 - Rule 55; Government of India Act, 1919 - Sections 96B, 96B(1), 96B(2) and 96B(5); Government of India (Amendment) Act, 1935 - Sections 240, 240(1), 240(2) and 240(3); Civil Services Classification Rules, 1920-24
AppellantVasantrao Shankerrao
RespondentState of Bombay
Appellant AdvocateS.V. Gupte and ;Albal, Advs.
Respondent AdvocateKantawala and ;R.J. Joshi, Advs.
Excerpt:
a) the high court exercising jurisdiction under article 226 of the constitution of india does not sit as a court of appeal on the findings of the enquiry officer but only to see whether he had exercised jurisdiction or he had not and whether he had exercised jurisdiction not vested in him, but the absence of legal evidence could not amount to lack of jurisdiction in the tribunal- therefore if there was no error patent on the face of the order the high court was not entitled to go behind it and look into the departmental enquiry and weigh the evidence and say that the judgment arrived at by the officer was wrong- as long as there was no violation of a constitutional safeguard, but merely violation of rules made by government, no cause of action accures to a petitioner and that would be so.....ordercoyajee, j.1. this petition is presented against an order of the government of bombay dated 11-3-1955 directing removal of the petitioner who was a superintendent of excise on suspension, from government service with effect from that date. with that order was appended the approval of the public service commission.the petitioner joined the excise department in 1934 and he had served with a certain amount of efficiency and had risen to the rank of a superintendent by 1948. on 4-2-1948 he was served with an order suspending him from service until further orders. there is no doubt that no preliminary enquiry was held prior to his suspension. but it has been held that no serious challenge can be made to the order suspending him pending further enquiry.it appears however that apart.....
Judgment:
ORDER

Coyajee, J.

1. This petition is presented against an order of the Government of Bombay dated 11-3-1955 directing removal of the petitioner who was a Superintendent of Excise on suspension, from Government service with effect from that date. With that order was appended the approval of the Public Service Commission.

The petitioner joined the Excise Department in 1934 and he had served with a certain amount of efficiency and had risen to the rank of a Superintendent by 1948. On 4-2-1948 he was served with an order suspending him from service until further orders. There is no doubt that no preliminary enquiry was held prior to his suspension. But it has been held that no serious challenge can be made to the order suspending him pending further enquiry.

It appears however that apart altogether from this suspension on 11-3-1948, that is when he wag under suspension, he was arrested by the Police and investigations were ordered against him. After nearly 14 months of investigation the petitioner was discharged by the Chief Presidency Magistrate.

2. On 11-4-1951, before he was discharged by the Magistrate, he was served with a charge-sheet on which the Director of Excise proposed to hold a departmental enquiry. One of the charges was that whilst the case against the petitioner was being investigated by the Police, the petitioner had made a false statement to the Superintendent of police, Anti-corruption Branch on 27-4-1951.

By an order dated 8-5-1953 a fresh enquiry was ordered under Mr. B.S. Trivedi, Custodian of Evacuee Property and after Mr. R.S. Trivedi had entered upon the investigation that was also set aside and an enquiry was ordered to be held by Mr. Jasjitsingh, Director of Prohibition and that was under an order dated 15-9-1953 under a resolution of the same date by the Government of Bombay and the resolution states that a fresh departmental inquiry be held under Rule 55 of Civil Services (Classification, Control, and Appeal) Rules in connection with the canteen licence issued by the petitioner in the name of H. Mohomedalli and company.

Jasjitsingh proceeded with this enquiry and made a report. He presented the petitioner with a charge-sheet containing two charges. The first charge was that

'with having, while serving as Superintendent of Excise, Bombay, unauthorisedly issued or caused to be issued a canteen tenant system licence for the sale of foreign liquor to H. Mohomedalli and Sons and further either took part in foreign liquor business or facilitated during the period between August 1947 and January 1948 the unlawful removal by H. Mohomedalli and Sons or by persons acting on their behalf of liquor from licensed persons whose names are set out, with consequent loss of revenue to Government and illegal gain to himself and his colleagues.'

The second charge was that he was charged with making before a public servant statement which he knew or had reason to believe to be false in that he, while Superintendent of Excise under suspension, stated on 27-4-1948 before the Superintendent of Police, Anti-corruption Branch, when questioned about the case in which consignments of foreign liquor were issued to H. Mohomedalli and sons, first that he did not know Shri Joseph Menezes nor had he ever seen him and secondly that he had never been to Carnac Bunder with Shri Joseph Menezes.

The Director of Prohibition made his Report dated 20-4-1954. By that Report he did not convict the petitioner under the first charge, but he held that his conduct in connection with the first charge was not above suspicion. He convicted the petitioner of the second charge. That Report was sent by the investigating officer to the Under-Secretary to the Government of Bombay, and on 26-7-1954 a show cause notice was issued to the petitioner by the Government in which they stated that the investigating officer has come to the conclusion and the Government have also come to the conclusion that charge No. II, sub-charge (1) mentioned in the charge sheet had been proved against him and the Government asked and called upon the petitioner to show cause why he should not be removed from service enclosing a copy of the Report.

On 12-9-1954 the petitioner wrote a long letter in reply to the Government's show cause notice in which he set out several grounds indicating reasons why he challenged the findings in the Report, although he wound up by saying that since as intimated in the above reference the Government has already accepted the finding of the Inquiry Officer and have made up their mind to remove him from service, he was constrained to think that a detailed reply to this notice would serve no purpose. In other words according to him, he could have made a fuller reply otherwise.

3. The petitioner states in his petition that he was surprised that the respondent had already accepted the Report of the Inquiry Officer without giving any opportunity to the petitioner to show cause why the said Report should! not be accepted by them.

He also contends in his petition that the show cause notice is defective inasmuch as no opportunity prior to that date was given to him to snow cause against the findings that were against him before he could be called upon to show cause why a penalty should not be imposed on him.

He also complains that the Report of the Inquiry Officer was made on an enquiry held in contravention of several provisions of the law namely Rule 55 as well as contrary to the principles of natural justice. He also states that charge No. II was beyond the scope of jurisdiction conferred by the respondent's order dated 15-9-1953 as the Enquiry Officer was asked by the said order to hold an inquiry in connection with the canteen licence issued by him in the name of H. Mohomedalli and Co.

The petitioner also states that the statement made by him on 27-4-1948 to the Superintendent of Police, C. I. D. Bombay was made whilst he was under suspension and not in his capacity as an Excise Officer. He also states that the evidence recorded amounts to no evidence, because all that happened before the Enquiry Officer was that prior statements made by certain parties were put to the said parties called as witnesses and the said parties retracted the statements made by them and said that the former statements to the C. I. D. had been made by them under pressure and by coercion and thereupon the petitioner declined to cross-examine them as there was no evidence against him to cross-examine upon.

In these circumstances, the petitioner comes before me to challenge this order of the Government. There is an affidavit in reply in which these allegations have been controverted and denied. At the outset I may say that I attach no importance to the argument that the second charge was not within the jurisdiction conferred by the order dated 15-9-1953, because the whole inquiry was levelled at an investigation in connection with a wrongful issue of a licence to H. Mohomedali and Co., in conjunction with certain colleagues including Menezes and the statement made by the petitioner before the C. I. D. was (a) that he did not know Menezes at all and (b) that Menezes had not seen him.

I am clearly of the opinion that the second charge directly arose during the investigation and the unfolding of the first charge and therefore it was within the ambit of the order under which the investigating officer was functioning.

4. I will now state the grounds on which the challenge to this order has been elaborated. It is alleged that evidence was recorded in the absence of the petitioner; that the grounds were not furnished to him; that the only copies that were furnished to the petitioner were copies of state-ments made by these witnesses on one occasion, but statements made by the witnesses on a prior and former occasion, although 'called upon by the petitioner were refused to him.

It is contended that all that was done during the trial was that each witness was presented with his former statement and asked whether that was his statement and each witness stated that that was his statement under coercion and therefore there was no need for any cross-examination, as these statements were made to Bashiruddin, C. I. D. Officer and in these circumstances these were retracted statements and that the allegation of coercion was not contradicted by any other evidence led before the investigating officer and therefore the Report is based on evidence which can be described as no legal evidence at all, but based on the retracted statements of certain witnesses and the circumstances in which they were made to make those statements were not examined and Bashiruddin and Menezes were not called.

Therefore it is argued that apart from the statements of these witnesses there was no other evidence on which the charge could have been substantiated. It is argued that the statements were treated as if they were recorded by Jasjitsingh, the investigating officer namely the Director of Prohibition and therefore there was no valid enquiry.

It was very strongly argued by Mr. Gupte that certain documents asked for were not furnished, as set out in the petition, paragraph 11. It may be pointed out that no particulars of the documents are set out in the petition itself. It is argued that even if this statement were made this was not a statement made by him as a Government servant.

It was also argued that the Bombay Civil Service Rules were not complied with and Rule 55 was one of the Rules not complied with; that the whole procedure was against natural justice, the complaint was repeated as set out by me above, that prior statements of certain witnesses, Condillac and Menezes made before Jasjitsingh were not produced which could have been used by the petitioner to contradict the witness Condillac.

5. Mr. Gupte relied very strongly on this point namely that the notice to show cause is defective inasmuch as the only cause to be shown under this notice is as to why the penalty of removal from service should not be Imposed upon the petitioner, but that no opportunity was given or afforded to the petitioner to show cause against the Report.

6. I shall come to all these points in clue course, but before I do so, I shall deal with an objection raised by Mr. Kantawala on behalf of the respondent and that objection in short is as follows: According to him, as long as there is no violation of a constitutional safeguard, but merely violation of Rules made by Government, no cause of action accrues to a petitioner and that would be so on the arguments advanced by Mr. Kantawala especially where a party comes before the Court for a writ of certiorari, because it is obvious that as far as the order of 11-3-1955 is concerned, there is no defect on the face of the record which would entitle the Court either to quash it or set it aside.

Therefore the question arises whether there is a defect in the procedure amounting to lack or jurisdiction or excess of jurisdiction not vested in the tribunal. The next step is as argued by Mr. Kantawala that assuming all the allegations made in the petition to be true only for the purpose of arguments, although on merits all these allegations are denied, even then, the Court isnot entitled to investigate whether there was sufficient evidence or proper evidence before the tribunal.

Mr. Kantawala referred me to the following position in law. The Rules made, especially Rule 55 and other Rules, give certain safeguards to the parties under suspension and departmental enquiries which were in existence under the Government of India Act, 1919, and the Government of India Act, 1935, have been maintained under the Constitution.

Therefore Mr. Kantawala referred me rightly to Section 240, Sub-section (3) of the Government of India Act, 1935, which says that except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, hold a office during His Majesty's pleasure, and Sub-section (3) says that no such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. So that, the only constitutional safeguard under the Government of India Act, 1935, was right to demand a reasonable opportunity of showing cause and nothing more.

The corresponding Article in the Constitution is Article 311 which says, that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed and secondly that no such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

In other words Article 311 is clearly the same as Section 240 of the Government of India Act, 1935, and in this connection, it is necessary to read Article 313 which says that until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution. Therefore, all those Rules namely the Bombay Civil Service Conduct Discipline and Appeal Rules are kept alive under this Article. It is contended that no change has been made as regards the position of a public officer on a departmental enquiry from the one that was maintained under the Government of India Act, 1935, & it is supported by one decision of the Privy Council prior to the passing of the Constitution Act and one decision of the Supreme Court subsequent to the passing of the Constitution Act.

Mr. Kantawala relied upon two decisions of the Privy Council and I shall first refer to the judgment of the Privy Council in the case of --'Venkata Rao v. Secretary of State' (A). In that case the procedure prescribed by the Civil Services Classification Rules, 1920-24, made under Section 96B, Sub-section (2) of the Government of India Act, it was held clearly, was not followed at the official inquiry which preceded the dismissal of the appellant.

It was also held that the appellant's employment however, was not of a limited and special kind during pleasure with an added contractual term that the procedure prescribed by the Rules must be observed. It was further held that itwas by the express terms of Section 96B held 'during His Majesty's pleasure, and no right of action as claimed by the appellant existed and that 'the terms of Section 96B assure that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action, but will be regulated by the rules, which are manifold in number, most minute in particularity and all capable of change, but there was no right in the appellant, enforceable by action, to hold his office in accordance with those rules.

It was pointed out by their Lordships of the Privy Council at p. 32 where they quoted Section 96B especially Sub-section (5) which said that no rules or other provisions made or confirmed under this section shall be construed to limit or abridge the power of the Secretary of State in Council to deal with the case of any person in the civil service of the Crown in India in such manner as may appear to him to be just and equitable.

Mr. Gupte has stressed this point on the ground that it is on this and on the special construction of Section 96 that this judgment is based. The learned Judges reviewed the leading cases of -- 'Shenton v. Smith' 1895 AC 229 (B); and --'Gould v. Stuart' 1896 AC 575 (C), and came to the conclusion as follows: namely that

'Section 96B in express terms states that office is held during pleasure. There is therefore no need for the implication of this terra and no room for its exclusion. The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far-reaching to commend itself for acceptance. The rules are manifold in number and most minute in particularity, and are all capable of change'.

Then they further observed,

'There is another consideration which seems to their Lordships to be of the utmost weight, namely, Section 96B and the rules make careful provision for redress of grievances by administrative process and it is to be observed that Sub-section (5) in conclusion re-affirms the supreme authority of the Secretary of State in Council over the civil service'.

Their Lordships considered and regarded the terms of the section as containing a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action, but will he regulated by rule.

Although it was not denied in that case that Rule 55 was violated, their Lordships held that they were unable as a matter of law to hold that redress was obtainable by a party from the Courts of law by action and that to give redress was the responsibility of the executive Government atone. They therefore observed as follows--which is relevant in this matter in another connection:

'If it had appeared that the plaintiff's service under the Government of India Act was not terminable at pleasure their Lordships are not prepared to say that remedy by suit against the Secretary of State in Council for a breach of the contract of service would not have been available to the plaintiff. Breach of contract by the Crown can in England be raised by petition of right.'

Mr. Kantawala also relied upon the decision in the -- 'High Commissioner for India v. I.M. Lall' (D), where following the decision in -- 'Mulvenna v. The Admiralty' 1926 SC 842 (E), it was held that if in the covenant entered into by the Crown with a civil servant there is no obligation as to pay, such a servant cannot seek to establish a statutory right to recover arrears of pay by action in a civil Court. TheirLordships of the Privy Council at p. 126 quoted from (A) a passage and thereafter stated as follows:

'Contrasting the provisions of Section 96B of 1919 with the provisions of Section 240 of 1935, their Lordships have no difficulty in holding that the provision as to reasonable opportunity of showing cause against the action proposed is not put on the same footing as the provision now in Sub-section (2) of Section 240 which was the subject of decision in -- 'Rangachari v. Secretary of State' (F), and that it is no longer resting on rules alterable from time to time, but is mandatory and necessarily qualities the right of the Crown recognised in Sub-section (1) of Section 240 of 1935.

The provisions of Section 96B(1) now reproducedas Sub-section (2) of Section 240 of 1935, and of Sub-sections(2) and (3) of Section 240 are prohibitory in form,which is inconsistent with their being merely permissive'.

So that, it is argued that unless there was any violation of a constitutional safeguard or dismissal is held to be bad as by an officer inferior in rant to the officer appointing, there could be no challenge to an order of dismissal or removal from service passed by the Government and even in disregard of the Rules prescribed namely the Bombay Civil Services Conduct, Discipline and Appeal Rules.

7. In connection with this an answer was made to the contention that there was no legal evidence on which the investigating officer could have come to any proper conclusion against the petitioner. That position is negatived by the fact that where a party comes to apply for a writ of certiorari the fact that the tribunal had jurisdiction is enough and as pointed out by the Privy Council, that if the tribunal has the jurisdiction it has as much jurisdiction to decide right as to decide wrong.

In this connection, Mr. Kantawala relied upon a decision of the Privy Council in -- 'Rex v. Nat Bell Liquors Ltd.' 1922 2 AC 128 (G). It was held as the headnote points out that

'a conviction by a Magistrate for a non-indictable offence cannot be quashed on certiorari on the ground that the depositions show that there was no evidence to support the conviction, or that the Magistrate has misdirected himself in considering the evidence; absence of evidence does not affect the jurisdiction of the Magistrate to try the charge.'

The observations in this case are very pertinent. Lord Sumner delivering a very long and detailed judgment observed at page 145 as follows:

'Passing from considerations of the weight of the evidence, we come to the question whether there was any evidence, and what materials are to be looked at in order to answer that question and further what effect a decision that on some essential point evidence was completely lacking would have on the jurisdiction respectively of the Magistrates and the superior Court.' His Lordship thereafter referred to the conflicting decisions in Canada, Nova Scotia, Alberta etc. and enunciated the proposition as follows:

'It has been said that the matter may be regarded as a question of jurisdiction and that a justice who convicts without evidence is acting without jurisdiction to do so. Accordingly, want of essential evidence, if ascertained somehow, is on the same footing as want of qualification in the Magistrate, and goes to the question of his right to enter on the case at all. Want of evidence on which to convict is the came as want of jurisdiction to take evidence atall. This argument is clearly erroneous, A Justice who convicts without evidence is doing something that he ought not to do, but he is doing it as a Judge, and if his jurisdiction to entertain the charge is not open to impeachment, his subsequent error, however grave, is a wrong exercise of a jurisdiction which he has and not a usurpation of a jurisdiction which he has not.

How a Magistrate who has acted within his jurisdiction upto the point at which the missing evidence should have been, but was not, given, can, thereafter, be said by a kind of relation back to have had no jurisdiction over the charge at all, it is hard to see.

It cannot be said that his conviction is void, and may be disregarded as a nullity, or that the whole proceeding was 'coram non judice'. To say that there is no jurisdiction to convict without evidence is the same thing as saying that there is jurisdiction if the decision is right, and none if it is wrong'.

These weighty observations were referred to and approved of in the case of 'Mohsinali Mahomedali v. State of Bombay', reported in : AIR1951Bom303 the learned Chief Justice ob-served as follows:-

'Now it is unnecessary to repeat that the jurisdiction that the High Court exercises when it issues the high prerogative writ of certiorari is a limited jurisdiction. The Court is not a Court of appeal nor is it a Court of revision. It has no power to correct either findings of fact or even errors of law.

Its sole function is to correct persons or tribunals exercising judicial or quasi-judicial functions when they assume jurisdiction which they do not possess, or when they refuse to exercise jurisdiction which is vested in them by law, or when in the exercise of their jurisdiction they violate principles of natural justice'.

In this case these words remind me that I am not sitting here as a Court of appeal on the findings of the Director of Prohibition, but only to see whether the Director of Prohibition had jurisdiction or he had not and whether he had exercised jurisdiction not vested in him, but the absence of legal evidence as indicated by Lord Sumner cannot amount to lack of jurisdiction in the tribunal.

Therefore, if there is no error patent on the face of the order dated 11-3-1955, this Court is not entitled, to go behind it and look into the departmental enquiry and weigh the evidence and say that the judgment arrived at by the Director of Prohibition was wrong.

In this connection, I may refer to one more English decision namely the decision in the case of 'Maclean v. Workers' Union', 1929-1 Ch 602 (I) where it was held that the Court has no jurisdiction to vary or to set aside the decision of a domestic tribunal if in giving its decision the tribunal has acted honestly in accordance with its own rules and in good faith. It was further observed as follows:

'The jurisdiction of the Courts in regard to domestic tribunals is clearly of a limited nature. Speaking generally, it is useful to bear in mind the very wide differences between the principles applicable to Courts of justice and those applicable to domestic tribunals. In the former the accused is entitled to be tried by the Judge according to the evidence legally adduced and has a, right to be represented by a skilled legal advocate.

All the procedure of a modern trial, including the examination and cross-examination of the witnesses and the summing-up, if any, is based, onthese two circumstances. A domestic tribunal is in general a tribunal composed of laymen.

It has no power to administer an oath, and, a circumstance which is perhaps of greater importance, no party has the power to compel the attendance of witnesses.

It is not bound by the rules of evidence; it is indeed probably ignorant of them. It may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them are themselves both the witnesses and the judges.

It is apparent and it, is well settled by authority that the decision of such a tribunal cannot be attacked on the ground that it is against the weight of evidence, since evidence in the proper sense there is none, and since the decisions of the tribunal are not open to any sort of appeal unless the rules provide for one'.

8. In these circumstances, in my opinion, Mr. Kantawala's contention is right on the first point. But before concluding this I may refer to the reasoning in 'Venkataraman v. Union of India' : 1954CriLJ993 .

The whole of the argument and the reasoning of the Privy Council has been fully adopted and approved as late as 1954 long after the ushering in of the Constitution. Mukherjea J. who delivered the judgment at p. 378 referred to it as a well established principle of English law that

'except where it is otherwise provided by a Statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown'

and he proceeded to observe as follows:

'Their services can be terminated without assigning any reason and even if any public servant considers that he has been unjustly dismissed, his remedy is not by way of a law suit but by an appeal of an official or political character. This principle of law was applied in India ever since the advent of British rule in this country and the servants in the employ of the East India Company'.

and he observed that

'Thus one restriction imposed by this section upon the unfettered right of the Government to dismiss its servants at its pleasure, was that no servant could be dismissed by any authority subordinate to that by which he was appointed.

The section by its opening words also makes the exercise of the power subject to the rules made under the Act and it was in pursuance of the provisions of Section 96B(2) that the Civil Service (Classification, Control and Appeal) Rules were framed which with the later amendments are in force even now.

The penalties as prescribed Include amongst others, withholding of increment, dismissal, reduction in rank and removal and Rule 55, which finds a place in the same chapter, lays down the procedure to be followed before passing an order of dismissal, removal or reduction in rank against any member of the service.

No such order shall be passed unless the person concerned has been informed, in writing, of the grounds on which it is proposed to take action against him and has been afforded an adequate opportunity of defending himself and an inquiry has to be made regarding his conduct and this may be done either in accordance with the provisions of the Public Servants (Inquiries) Act of 1850 or in a less formal and less public manner as is provided for in the rule itself'.

In this instance the rule was invoked and it was argued against this by Mr. Gupte that in fact thisreasoning is based on a strict construction of Section 96B Sub-section (5) of the Act of 1919, that in fact the Constitution has now made provision under Article 313 namely that

'until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force'

and it is argued that the position has changed after the Act of 1935 and after the Constitution, has come in as a special provision of Section 96B and, has not been continued and for this purpose, Mr. Gupte relied upon a Madras decision, namely -- 'Rajagopala Ayyar v. State of Madras', : AIR1955Mad182 .

In that case it was held that the objection involved a complete lack of jurisdiction in the tribunal and was therefore one which vitiated the entire proceeding and that there was no insuperable objection in the party putting forward that plea at a later stage.

One would certainly distinguish this case on the ground that the learned Judge hearing the rule came to the conclusion that there was lack of jurisdiction in the tribunal. If that was so, I need not go further into the reasoning adopted, but the reasoning adopted at p. 187 is as follows:--and that is relied upon very strongly. It is said, that

'Section 240, Sub-section (3) of the Government of India Act, 1935, having been reproduced in Article 311, Sub-article (2) of the Constitution the conditions of service and tenure of Government servants which was affirmed by the Privy Council in 'Lall's case' (D), is applicable to a Government servant after the coming into force of the Constitution of India.

It is only necessary to add that in regard to rules which were framed under Section 241, Government of India Act, 1935, such of them as were in force when the Constitution was enacted were confirmed and continued by Article 313.

In my judgment the non-observance of the rules which have statutory force under Article 313 of the Constitution and the conduct of the enquiry by a Tribunal or authority not competent to do so necessarily leads to the conclusion that the preliminary conditions subject to which alone the notice to show cause under Article 311(2) could be issued have not been satisfied and it follows that the resultant order is in violation of Article 311(2) of the Constitution.'

If by that the learned Judge means to convey that any violation of a rule made under a statute entitles a party to challenge the proceedings, with respect to him I am unable to agree with him, but I may say that apart from my not being able to agree with him, this is entirely contrary to the ratio laid down in the Supreme Court judgment which I have referred to above.

In these circumstances, I must uphold the first contention made on behalf of the respondent that in a writ matter, it is not a matter where this Court is entitled to come to a finding. What the position might be on a regular suit being filed, it is unnecessary for me to opine at this stage, but I am entirely confined to the issue of a writ in the nature of certiorari and I must therefore find material for intervening in the findings and in the light of the arguments advanced above, I am of the opinion that I am not entitled to embark on the question whetherthere was sufficient evidence or there was no legal evidence.

Mr. Gupte has, as is usual with him, quite fairly and frankly told me that he was not approaching the question on the ground that there was insufficient evidence and that it will be the last thing he would advance on a writ matter, but he did emphasize the fact that there was no legal evidence at all before the tribunal and therefore the tribunal's report is invalid.

9. There is one other important question which was raised by Mr. Gupte with some amount of emphasis and that is that the notice itself Ex. H to the petition dated 11-3-1955 is invalid in law, because it did not give any opportunity at the proper time to the petitioner to show cause against the findings of the tribunal, and having done that and having considered his explanation to the findings of the tribunal, the Government should have then proceeded to call upon him to show cause why a penalty should not be imposed on him.

For that purpose Mr. Gupte referred me to a decision of our Appeal Court in -- 'State of Bombay v. Gajanan Mahadev' : AIR1954Bom351 . In that it was held by the learned Chief Justice that under Section 240(3) of the Government of India Act, 1935, it is not sufficient for the Government merely to inform the servant that it proposes to pass a particular punishment and to ask him to show cause against that punishment. It was observed that

'the opportunity which the state has to furnish has to be a reasonable opportunity & 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, but must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against the servant'.

Ordinarily, this point to my mind would be fatal to the respondent's case. But there are reservations made in this connection in this judgment and it will be necessary for me to see whether the facts and circumstances of this petition fall under the reservations made and the reservations made are as follows :

'When an enquiry against a dismissed servant is, as it were, in two parts, where there is first a departmental enquiry and then a notice to show cause is served upon him by the authority which, proposes to dismiss him, the Court must 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.

It may also be said that it may not be necessary in every case to issue a notice in terms calling upon the servant to show cause not only against the quantum of punishment, but also against the grounds on which the proposed action is based.

Even though the 'notice may be defective, it in fact the servant has been given the opportunity find has availed himself of the opportunity ofshowing cause against the grounds, then the mere fact that there is an irregularity about the notice may not lead to the Court holding that the Government servant did not have the opportunity required by Section 240, Sub-section (3) of the Government of India Act, 1935'.

It is also further observed that the Court must carefully see whether the statutory obligation cast on the Government has been complied with and whether the party has been given a reasonable opportunity to put forward his answer to the departmental enquiry.

Therefore, the question is on the face of the order, was an opportunity given or was an opportunity availed of? It must be remembered that the petitioner wrote in this connection to the Government on 12-9-1954. He acknowledges the letter of the Government namely letter No. 7143/45-III B.C. of 26-7-1954 along with a copy of the Report, so that the petitioner took three months to consider the Report and after that he has written a detailed letter of II paragraphs.

He complains of course that the Government have already accepted the findings of the tribunal without having heard him, Thereafter he sets out the whole history of the case. In paragraph 5 ho refers to charge No. II in the inquiry. He contends in paragraph 6 that the statement that was complained of against him was made before the investigating officer as an accused person and not have been taken into consideration.

He complains that statements were taken behind the back of witnesses and no opportunity was given to him to test the veracity of the witnesses in cross-examination. He complains against the investigating officer Mr. Bashiruddin. He complains that Menezes was not produced in the oral inquiry and his statements before the Police were not brought on record.

It is true however that he wound up by saying that the Government had made up their mind to remove him from service and that a detailed reply to the notice would serve no purpose. Whatever that may be, the Report was forwarded to him with a covering letter of 26-7-1954 and the Government asked why the proposed action of removing him from service should not be taken.

It is obvious that the opportunity afforded, although not given deliberately by the Government, was taken and availed of by the petitioner and this representation of his showing cause against the Report was before the Government several months before the Government finally made the order dated 11-3-1955.

In these circumstances, I cannot come to the conclusion that no opportunity had been afforded to the petitioner inasmuch as before the final order was made the petitioner in a very long letter did set out the substance of his grounds against the findings contained in the Report.

In these circumstances, although the notice is defective in the particular circumstances of this case I cannot come to the conclusion that no opportunity was there for the petitioner to show cause, when in fact he has availed himself of such an opportunity.

10. The question has been argued that charge No. II does not fall under the order. Now, the original charge, it is apparent, was in connection with canteen licence and this statement namely of 27-4-1948 was made in connection with canteen licences. Ex. B dated 11-4-1951 shows that the charge was there even at that stage and in my opinion Ex. B was wide enough under which this charge could be made.

Then the next complaint is made that certain statements of witnesses were not furnished to the petitioner. It is obvious on the record that all statements used for proving the charge were furnished to the petitioner and the other statements were not relied upon before the enquiry officer.

So that, as far as the statements were concerned, the statements as regards the prior en-quiry were not relied upon and, therefore, not furnished to the petitioner. In these circumstances, I am not able to give any weight to the grievance ventilated on this ground. It is not correct to say that what was before Jasjitsingh were only the previous statements. The statements were in connection with charge No. II, sub-charge (1) and as far as those statements were concerned, copies were furnished to the petitioner.

11. I have, therefore, come to the conclusion that although it was the petitioner's misfortune to face three protracted enquiries, two of them became abortive and of the last enquiry findings in detail are given and I need not enunciate all the heads of the reasoning on which the tribunal has come to the conclusion that he was guilty of the second charge.

I have not gone into the reasoning of the Re-port, because, it is no function of mine to test the reasoning or the reasons put forward by the tribunal for coming to a certain conclusion, as I am not sitting as a Court of appeal on that judgment.

Suffice it to say that on a scrutiny of the proceedings before him as appearing on the record I cannot come to the conclusion that there was any violation of principles of natural justice, nor can I say that any of the specific pares of the provisions namely Rule 55 have been in any material respect violated.

In any event, even if I had come to the conclusion that there was any irregularity or there was violation of any of the Rules even then, on the first point, having held that the petitioner has no cause of action against the respondent in the circumstances of the case, I would still have to come to the same conclusion that this petition is not maintainable.

12. In these circumstances, the rule is discharged. The petition will stand dismissed withcosts. Costs to be taxed on long cause scale.

13. Rule discharged.


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