Somnath Ayyar, J.
1. The appellant who is the plaintiff in the suit out of which this appeal arises was employed as a civilian driver in the Defence Service under an agreement executed on 18 October, 1950. Under the agreement he had to work under defendant 2 who was the Commanding Officer, Indian Air Force Station, Jalahalli. On 29 July, 1954, he was discharged with effect from 31 July, 1954.
2. On 16 June, 1955, the plaintiff brought a suit in the Court of the Munsif for a declaration that he was wrongly removed from service. The Munsif gave him that declaration, but in the appeal preferred by the defendants who are respectively the Union of India and the Officer Commanding, Air Force Station, Jalahalli, the Civil Judge reversed the decree of the Munsif and dismissed the plaintiff's suit.
3. From this decree the plaintiff appeals, and when Govinda Bhat, J., heard it, he referred it to a Bench of two Judges under the provisions of S. 6 of the Mysore High Court Act since in his opinion the appeal involved an important question of law as to the applicability of the provisions of Art. 311 of the Constitution to civilian employees in the Defence Department.
4. According to the defendants, the plaints was appointed purely on a temporary basis and his services were dispensed with for misconduct. But they contended this although he was a temporary employee, his removal was preceded by the enquiry into his conduct with due observance of the prescribed procedure. They denied that there was any transgression of provisions of Art. 311 of the Constitution. This is what in effect they stated in their written statement although not in so many words.
5. The plaintiff produced a reply in which he denied that he was given any opportunity to prove his innocence. He denied that a charge was framed against him or that it was proved.
6. The Munsif was of the view that it was possible for defendant 2 to remove the plaintiff from his post under the provisions of Para. 4(a) of the agreement which recorded his employment. That paragraph provided among other matters, that the plaintiff's immediate Commanding Officer was the repository of the power to terminate agreement in the event of the employee being guilty of misconduct in the opinion of that officer, and that he could do so without any notice to the employee.
7. On the question whether there was any misconduct on the part of the plaintiff, the Munsif recorded no finding since, in his opinion, the plaintiff was entitled to the protection created by Art. 311 of the Constitution whose provisions, in the opinion of the Munsif, had been transgressed. Although the defendants produced evidence which was given by D.W. 1 who was the staff officer at the Air force Station at the relevant time that there was a full-fledged enquiry into the allegations of misconduct, the Munsif was persuaded to take the view that there was no such enquiry and that the record of the enquiry produced by D. W. 1 had been subsequently fabricated. So it was that he gave the plaintiff the decree which he wanted.
8. In appeal, the Civil Judge dissented from the view taken by the Munsif that the employment of the plaintiff was governed by the provisions of Art. 311 of the Constitution. In his opinion, they had no application to the plaintiff's employment. The Civil Judge was further of the view that there was a proper enquiry into the allegation of misconduct and that the plaintiff had all that reasonable opportunity such as would enable him to refute that charge. He believed the evidence of D.W. 1 and dismissed the suit.
9. In this second appeal the finding recorded by the Civil Judge that there was an enquiry into the allegation of misconduct such as the one about which D.W. 1 gave evidence which is a finding on a question of fact is not open to discussion. So the only question is whether such enquiry was sufficient is the circumstances.
10. Sri Ullal for the plaintiff contended that the Civil Judge was in error in thinking that the plaintiff's employment fell outside the orbit of Art. 311 of the Constitution and that notwithstanding the fact that the agreement recording his employment which is Ex. D. 1 states that the plaintiff was employed as a temporary driver, he nevertheless held a civilian post under the Union of India and that he was, therefore, entitled in the full measure to the protection of Art. 311 of the Constitution. His submission was that since that article enjoins a reasonable opportunity of showing cause against the action proposed to be taken in regard to the plaintiff and since that reasonable opportunity, according to the plaintiff, was not afforded, we should say that his removal was wrong.
11. The other alternative submission made by Sri Ullal was that even otherwise, the enquiry into the misconduct imputed to the plaintiff stood regulated by the rules made by the President under the proviso to Art. 309 of the Constitution intituled the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, and that since rule 15 of those rules prescribes the procedure to which the enquiring authority should conform before imposing a punishment such as the termination of employment and there was no adherence to such procedure, we should denounce the termination as void.
12. It is however, plain that these rules did not govern the enquiry with which we are concerned. Rule 13 provides for the imposition of penalties one of which is removal from civil service of Government. But Expln. 1 to that rule makes it clear that the termination of employment of a person engaged under a contract, in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of rule 13 or 15. Since it is undisputed that the plaintiff's employment came into being under the contract, Ex. D. 1, and since under the terms of the contract which Para. 4(a) of the contract incorporates, the Commanding Officer was empowered to terminate the plaintiff's employment for misconduct, what follows is that the termination which is challenged in the case before us was not removal or dismissal within the meaning of either rule 13 or 15.
13. Sri Ullal however asked attention to rules 20 and 23. Rule 20 provides for an appeal from an order altering or interpreting the contract of service to the disadvantage of the employee and rule 23 authorizes an appeal from an order imposing a penalty. It is manifest that rule 20 has no application since we are not concerned in this case with any alteration or interpretation of the terms of employment to the disadvantage of the plaintiff. Rule 23 is equally inapplicable since that rule attracts only casts where there is an imposition of a punishment under the other parts of the rules which do not apply to a termination of service under a contract.
14. So, what remains to be considered is the question whether as contended the termination of the plaintiff's employment transgressed the provisions of Art. 311 of the Constitution. The Civil Judge who was of the opinion that that article did not govern the plaintiff's case was, however, disposed to believe the evidence of D. W. 1 who stated the particulars of the enquiry which was made by the Commanding Officer. His evidence was that there was a complaint made by Corporal Bhan of the Indian Air Force on 16 July, 1954 about insubordination on the part of the plaintiff and also that the effect that the plaintiff, fastened invectives against the Corporal. He stated that on 17 July, 1954 charges were framed against the plaintiff and communicated to him and that the plaintiff submitted his explanation in respect of those charges and that thereupon an enquiry was conducted. Exhibit D. 2, according to him, is the document which incorporates the charges, the plaintiff's explanation and what is described as a note of action which summarizes what transpired during the enquiry. The material portion of the evidence of D.W. 1, the Staff Officer at the Air Force Station which was believed by the Civil Judge reads :
'The charge in Ex. D. 2 was read out to the plaintiff and explained to him in Tamil language by the Commanding Officer. The plaintiff was asked to plead to the charge. Plaintiff pleaded not guilty. Thereupon Corporal Bhan was called in and he was examined as a witness. He deposed to the facts relating to the charge. Plaintiff was asked to cross-examine Corporal Bhan. Corporal Bhan was asked to retire and Flying Officer G. K. Prasad was called in and examined with reference to the charge. He corroborated the evidence of Corporal Bhan. Plaintiff was asked to cross-examined Prasad which he declined to do. Thereafter the Commanding Officer asked the plaintiff whether he had any statement to make, any witness he wished to examine in his defence. Plaintiff stated that he has no statement to make and no witnesses to be examined. I translated the entire proceeding to the plaintiff in Tamil language.'
15. Sri Ullal asked us to say that the civil Judge should not have believed the evidence of D.W. 1 and that the Munsif was right in coming to the conclusion that Ex. D. 2 which contains a record of the proceedings of the enquiry was subsequently manufactured.
16. It is obvious that in second appeal it would not be permissible for us to discuss the correctness of the finding on a question of fact such as the one recorded by the Civil Judge who believed the evidence of D.W. 1 and the record contained in Ex. D. 2
17. On 26 July, 1954, according to the evidence of D.W. 1, a notice was issued to the plaintiff intimating him that it was propose to remove him without notice and asking him to show cause why that removal should not be made. Exhibit D. 4 was the reply sent by the plaintiff through which he showed with cause. In that reply he stated as follows :
'As I could not bring forth any material evidence in support of my statement and you would naturally feel inclined to conclude that I was to blame, I request you to kindly excuse me and assure you that I will be more careful in future.
I humbly mention that the punishment in the form of my discharge from service will be far severe.'
18. On that communication the officer Commanding made and order on 27 July, 1954 that since the cause shown against the proposed punishment was not satisfactory the plaintiff should be discharged with effect from 31 July, 1954. D.W. 1 communicated that order to the plaintiff on 29 July, 1954 through Ex. D. 8. About all this D.W. 1 gave evidence and the Civil Judge believe him and although Sri Ullal asked us to say that we should not believe him evidence when he stated that no such show cause was issued to him and that no such opportunity was afforded to him to show cause against the proposed punishment, it is perfectly plain that we can not disturb the finding of the Civil Judge that D.W. 1 gave truthful evidence on those matters.
19. If the evidence of D.W. 1 was believed by the Civil Judge and if the enquiry was conducted in the manner spoken to by D.W. 1 what should obviously follow if nothing else could be said about that matter, is that the plaintiff was afforded by the Commanding Officer a reasonable opportunity of showing cause against the action proposed to be taken in regard to him in the manner provided by Art. 311 of the Constitution. What would also follow is that the question as to whether the provisions of that article are applicable to an employee holding a civilian post in the Defence Services of the Union of India could no longer survive and would become academic. From the evidence of D.W. 1 which was believed by the Civil Judge what transpires is that on the receipt of the complaint of Corporal Bhan, the Commanding Officer framed charges against the plaintiff and communicated them to him. He was next allowed the opportunity to traverse the charges, Corporal Bhan and another witness were examined in his presence. He was asked to cross-examine them but he declined to do so. Therefore the plaintiff was asked by the Commanding Officer and whether he had any statement to make and whether he wished to examine any witness in his defence and the plaintiff stated that he had no statement to make and that he would not examine any witness in his defence.
20. After all this was done the plaintiff was intimated through the notice Ex. D. 3 that it was proposed to remove him from service and he was asked to show cause against the imposition of the punishment. Plaintiff showed cause through his reply Ex. D. 4 in which he pleaded that the punishment proposed was far too severe. The evidence of D.W. 1 was that Ex. D. 4 was submitted to the Commanding Officer who interviewed the plaintiff in his presence. The order made by the Commanding Officer on 27 July, 1954 deciding to discharge the plaintiff was preceded by that interview, during which the Commanding Officer must have listened to his representation.
21. The question whether the opportunity for showing cause against the action proposed to be taken against a person holding a civil post is or is not reasonable must depend upon the facts and circumstances of each case. We are perfectly satisfied in our mind that the case before us in one in which the opportunity had all the attributes of a reasonable opportunity within the meaning of Art. 311 of the Constitution.
22. But Sri Ullal contended that there was one reason why we should say that there was a transgression of that article. His contention was that the gravest infirmity in the enquiry conducted is that fact that the evidence of Corporal Bhan and the other witness was not recorded. The submission made to us was that no opportunity of showing cause against any action proposed to be taken against a person holding a civil post can be said to be reasonable unless the evidence adduced during the enquiry is reduced to writing by the person making the enquiry. It was said that unless a record is made of the evidence the opportunity for cross-examination is never full or adequate and that if the employee is not provided with a record of the deposition, the very purpose of cross-examination would stand defeated. We were asked to say that the meaning of the decisions of the Supreme Court, Khem Chand v. Union of India and others [1959 - I L.L.J. 167]; Union of India v. T. R. Varma [1958 - II L.L.J. 259] and State of Assam and another v. Bimal Kumar Pandit [1963 - I L.L.J. 295] is that in cases which are governed by the provisions of Art. 311 of the Constitution the opportunity is not reasonable unless the evidence upon which the charges are sought to be established or it least its substance is reduced to writing.
23. We do not find it possible to read the pronouncements of the Supreme Court in the manner suggested. We do not understand those decisions as formulating any proposition of universal application that no enquiry can be good or sufficient unless the evidence recorded during such enquiry is reduced to writing. The Supreme Court did not say so in any of the three cases upon which Sri Ullal depended. We do not find it possible to accede to the view pressed upon us that the observation in Union of India v. T. R. Varma [1958 - II L.L.J. 259] (vide supra) that evidence should be 'adduced' in support of the charges means that evidence must be not only produced but also recorded. We do not find it possible to understand the word 'adduced' as having that import.
24. Although it is a very proper thing for an enquiring authority to record the evidence produced in support of the charges or at least its substance so that the effect of the evidence or its purport can not be either forgotten or misunderstood and although in a proper case the omission or neglect to record such evidence might vitiate the enquiry and make it ineffective, it can not be asserted that no punishment can be imposed upon a person holding a civil post unless the imposition of that punishment is preceded by an enquiry in which the evidence or its substance is reduced to writing.
25. If the case is so simple or devoid of complexity that it is impossible for anyone to think that there was any likelihood or probability of the purport or the effect of the evidence being misunderstood or forgotten by the enquiring authority, it would be going too far to think that even in such a case the omission to record the evidence constitutes such a serious infirmity as to vitiate the enquiry unless of course the recording of the evidence is made obligatory by some statutory provision.
26. The enquiry which was made in the case before us is not governed or regulated by any such statutory provision or rule. So the plaintiff was entitled to no more than a reasonable opportunity such as the one to which Art. 311 of the Constitution refers. The charge of misconduct against him was that he displayed insubordination towards Corporal Bhan and used vituperative language against him. Corporal Bhan and Prasad were the two witnesses who gave evidence about it. Although the Commanding Officer made no record of their evidence, it was, in the circumstances, impossible for him or for anyone else in his position either to misunderstand the evidence given before him or to forget it. Indeed immediately after the enquiry was concluded that officer reached the conclusion that the charges had been established, and issued the notice Ex. D. 3 on the very same day on which the enquiry was completed. In Ex. D. 4 which was the reply to Ex. D. 3, the plaintiff made no complaint that the omission to record the evidence had produced any difficulty for cross-examination or that the evidence given by the witnesses did not support the charges or that it had been misunderstood or any part of it had been overlooked or forgotten. On the contrary what was stated there was that the conclusion reached by the Commanding Officer was perhaps attributable to the omission on the part of the plaintiff to produce any evidence in defence.
27. We take the view that although in conceivable cases the omission to record the evidence might amount to a transgression of the provisions of Art. 311 of the Constitution and might constitute such a serious defect in the enquiry as to vitiate it, the case before us is not one such. The question whether in a case in which there is no obligation to record evidence such as what might be created by a statutory provision or rule, the omission to record evidence did or did not diminish the reasonableness of the opportunity enjoined by Art. 311 of the Constitution must depend upon its own facts and circumstances. So tested, we do not find it possible to say that there was any infraction of the provisions of that article in the case before us.
28. It was next contended that when the second opportunity was afforded to the plaintiff to show cause against the proposed action the show-cause notice was not accompanied by a copy of the report of the enquiry. That complaint is made before us for the first time and did not find a place either in Ex. D. 4 which was the reply to the show-cause notice or Ex. P. 1 in which the plaintiff asked for a reconsideration of the decision on 31 July, 1954. A copy of the report which should normally be furnished to the Government servant is what is necessary to enable him to adequately show-cause when he exercises the second opportunity which he can do only if he has knowledge of the materials on which the conclusions of the enquiring officers are based. He could then demonstrate that the evidence produced does not establish the charges or that the punishment proposed in excessive. In the case before us the Commanding Officer who issued the show-cause notice was the very person who conducted the enquiry. The enquiry was quite simple and although the evidence produced was not recorded, the plaintiff knew what the evidence was. It was really not necessary for the Commanding Officer to furnish him with any further days or information in order to enable him to fully exercise the second opportunity.
29. It was lastly contended that the order of removal was communicated by D.W. 1 and not by the Commanding Officer who alone could remove the plaintiff from service under Para. 4(a) of the agreement, Ex. D. 1. The complete answer to this submission is that the evidence of D.W. 1 which stands corroborated by what was recorded by the Commanding Officer underneath Ex. D. 3 discloses that the Commanding Officer was the person who discharged the plaintiff and D.W. 1 was merely instructed to communicate the order of discharge which he did.
30. In our opinion, we should dismiss this appeal. In the circumstances, we make no order as to costs.