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Nimmagadda Lakshminarayana Vs. the Secretary, Public Works Dept., Government of Andhra Pradesh, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1243 of 1958
Judge
Reported inAIR1961AP289; (1960)IILLJ285AP
ActsMadras Civil Services (Classification, Control and Appeal) Rules; Constitution of India - Articles 34(2), 226, 311 and 311(2); Madras Civil Services (Disciplinary Proceedings Tribunal) Rules - Rule 8
AppellantNimmagadda Lakshminarayana
RespondentThe Secretary, Public Works Dept., Government of Andhra Pradesh, Hyderabad
Appellant AdvocateG. Sitaramayya, Adv. for ;G. Venkatarama Sastri, Adv.
Respondent Advocate3rd Govt. Pleader
DispositionPetition dismissed
Excerpt:
service - compulsory retirement - rule 8 of madras civil services (disciplinary proceedings tribunal) rules - officer found guilty of corruption - tribunal ordered for compulsory retirement - whether accused given reasonable opportunity to be heard - no violation of natural justice - non availability of document asked by accused cannot be said to be prejudice cause to accused - held, no violation of rule 8 (a). - - sundaresan, proprietor, sri gangaram industries, anakapalli, complained to the authorities that the petitioner failed to refund a sum of rs. (b) that, on or about 1-8-1952, when gunuru sanyasi naidu of chodavaram met you at vizaga-patam at your residence in connection with his application filed on or about 4-5-1952 for an electrical connection to his well, you, actuated by.....orderseshachalapati, j.1. this is a petition filed under article 226 of the constitution of india to issue a writ of certiorari to quash the order of the respondent in g. o. no. 1.732 dated 24-6-1958, compulsorily retiring the petitioner from service.2. the facts relevant to the disposal of this petition are briefly these: the petitioner holds a degree of bachelor of electrical engineering. he joined service under the government of the composite state of madras in 1944 as junior engineer. he was promoted as assistant engineer in april 1950. from february 1952 to october 1952 he wag working as assistant engineer lines, sub-division at visakhapatnam. one sri c. r. sundaresan, proprietor, sri gangaram industries, anakapalli, complained to the authorities that the petitioner failed to refund.....
Judgment:
ORDER

Seshachalapati, J.

1. This is a petition filed under Article 226 of the Constitution of India to issue a writ of certiorari to quash the order of the respondent in G. O. No. 1.732 dated 24-6-1958, compulsorily retiring the petitioner from service.

2. The facts relevant to the disposal of this petition are briefly these: The petitioner holds a degree of Bachelor of Electrical Engineering. He joined service under the Government of the composite State of Madras in 1944 as Junior Engineer. He was promoted as Assistant Engineer in April 1950. From February 1952 to October 1952 he wag working as Assistant Engineer Lines, Sub-division at Visakhapatnam. One Sri C. R. Sundaresan, Proprietor, Sri Gangaram Industries, Anakapalli, complained to the authorities that the petitioner failed to refund a sum of Rs. 500/- paid as security deposit.

The Divisional Engineer, Visakhapatuain, enquired into the matter and reported that there were several allegations of corruption against the petitioner. The Superintending Engineer, and the Chief Engineer also taking an adverse view of the conduct of the petitioner, the matter was referred to the C. I. D. branch for a thorough investigation. On a report sent by the Superintendent of Police, X Branch, the Government felt it necessary to refer the matter to the Tribunal for Disciplinary Proceedings, Andhra. On such a reference being made, the Tribunal in its proceedings, dated 15th July, 1954, framed the following charges against the petitioner.

(1) That, you were working as Assistant Engineer (Electrical) Visagapatam from 19-2-1952 to 29-10-1952, that it was part of your official duties to give electrical connection to houses, mills, electrical pumps, motors etc., without charging or accepting any fees for yourself or other payment personally and that still you demanded, negotiated, bargained and obtained for yourself fees for such electrical connections in various instances mentioned below and that you thereby habitually accepted illegal gratification with corrupt and dishonest motives and thereby committed an offence of criminal misconduct.

CHARGE 1:

(a) That, on or about 10-6-1952 when Bobbili Venkatramana of Chodavaram met you at Vizaga- patam at your residence in connection with his application dated 15-5-1952 for a 2 H. P. Agricultural Pump service connection, you, actuated by corrupt motives and in abuse of your official position, demanded an illegal gratification of Rs. 100/-for taking action in the matter (though you were on duty bound to take action in your official capacity) and you received as bribe a sum of Rs. 40/-for the purpose from the above mentioned Bobbiti Venkataramana and gave him the connection nearly about three months after the payment of the bribe to you.

(b) That, on or about 1-8-1952, when Gunuru Sanyasi Naidu of Chodavaram met you at Vizaga-patam at your residence in connection with his application filed on or about 4-5-1952 for an electrical connection to his well, you, actuated by corrupt motives and in abuse of your official position, demanded an illegal gratification of a sum of Rs. 100/-for giving the connection (though you were on duty bound to take action in your official capacity) and you received as bribe a sum of Rs. 50/- for the purpose from the above mentioned Gunuru Sanyasi Naidu and accordingly gave him the connection about 15 days after the payment of bribe to you. '

(c) That, in about the year 1952, when Aripi Achutaramayya of Chodavaram met you at the instance of the Section Officer, Sri K. Suryanarayaua Murthy, Supervisor (Electrical) II Grade, Anakapalli, in connection with his application for an electrical connection for his flour mill, you, acuated by corrupt motives and in abuse of your official position, demanded a sum of Rs. 100/- as illegal gratification for taking action in the matter (though you were on duty bound to take action in your official capacity) and you received as bribe the sum of Rs. 50/. for the purpose of giving the connection quickly, from the above mentioned Aripi Achutara-mayva of Chodavaram, delayed giving it and when once again the said applicant met you, you demanded the balance of Rs. 50/- and after bargaining with him, received a sum of Rs. 30/- as second instalment of bribe and thereafter gave him the connection in about August 1952.

(d) (i): That, in about March, 1952, when Sri Pusarla Srirama Murthy of Chodavaram met you at Vizagapatam at the instance of Sri K. Suryana-rayana Murthy, Supervisor (Electrical) II Grade, Anakapatii in connection with his application filed in about January, 1952, for house electric service connection' you, actuated by corrupt and dishonest motives and in abuse of your official position, demanded an illegal gratification of Rs. 25/- for taking action in the matter (though you were on duty bound to take action in your official capacity) and you received a sum of Rs. 25/- for the purpose from the above mentioned Sriramamurthy and gave him the connection in about April 1952.

(d) (ii): That, on some day between 25-8-1952 and 23-1-1953, you similarly received from Sri P. Sree Ramamurthy at Vizagapatam a sum of Rs. 100/- as illegal gratification in connection with his subsequent application for 50 H. P. motor and 15 H. P. motor and enabled him to get them in January 1953 and November 1953 respectively.

(e) When Sri Sagi Jogi Jagannadharaju of Kaniti village met you regarding his application for electric connection for an electric motor of either a 10 H. P. or 15 H. P. for his rice mill at Vizagapatam, you actuated by corrupt motives and in abuse of your official position, demanded an illegal gratification of Rs. 500/- for taking action in the matter (though you were in duty bound to take such action in your official capacity) and received a sum of Rs. 100/- as bribe on 30th July, 1952, and another sum of Rs. 25/- on 16-9-1952 for the purpose mentioned above. You also extracted a promise from him to pay the balance to make up your demand of Rs. 500/-. However, Sri Jaganna-dha Raju failed to get the electrical connection as the scheme of supply of electricity to Kanithi Village was dropped by the authorities and yon did not get any further amount of bribe.

3. The memo of charges was duly communicated to the petitioner fixing 16-8-1954 as the date for enquiry. On that date the enquiry could not take place as the notice of charges were not returned served. On 20-8-1954 the petitioner wrote to the Tribunal that he received the memo of charges on 16-8-54 at 12-00 noon and, therefore, ho could not be present at the enquiry. On 24-8-1954 he wrote to the Tribunal calling for the production of 8 documents set out in the list appended thereto and for the summoning of 8 witnesses on his behalf.

The Tribunal took the view that barring items, 5, 6 and 8 the other documents should be summoned and addressed letters to the concerned authorities. After the enquiry was taken up and P. Ws. 1 and 2 were examined, the counsel for the petitioner filed a list of documents asking for the summoning of 10 documents and some more witnesses. On 30-11-1954 the accused filed a letter calling for the further documents as per the list appended thereto. Yet, another list was filed on 1-1-1955.

The Tribunal addressed letters to the concerned Departments for the production of these documents and was adjourning' the enquiry from time to time for the arrival of the documents and also to suit the convenience of the accused and his counsel. Many of the documents summoned had been sent by the various departments. On behalf of the prosecution 10 documents were marked and 5 witnesses were examined. From the large mass of documents summoned at the instance of the accused he marked 59 documents on his side and examined 5 witnesses. He filed his explanation on 4-4-1935 and his counsel addressed arguments on 25-5-1955. On that day a statement of the accused was recorded, which is in these terms.

Question: Have you examined all the witnesses that you required?

Answer; Yes.

Question: Have you marked all the documents which you require to be marked?

Answer: Yes. Several documents which I wanted were not made available. But they substantiate my defence noted on reverse.

Question: Have you filed a written statement?

Answer: Yes.

Question: Have arguments on your behalf been heard?

Answer: Yes.

Question; Can the enquiry be closed now?

Answer: Yes.

4. The petitioner gave a list of 8 documents which were summoned and were not produced. I shall refer to this list later. The enquiry having been closed the Tribunal sent up its report on 30-8-1955. It held that the accused officer was guilty of charges 1 (a), (b), (c) and 1 (d) (i) only and acquitted him on charges 1 (d) (ii) and 1 (e). The Tribunal recommended that the accused officer may be compulsorily retired.

After examining the report, the Government came to the provisional conclusion that the findings and recommendations of the Tribunal may be accepted and issued a notice to the petitioner on 29-9-1956 calling upon him to show cause within one month from the receipt of the notice why he should not be compulsorily retired, and directed him to send his explanation through the Chief Engineer.

5. On 5-11-1956, the petitioner wrote to the Government that to establish his bona fides and prove that all charges framed against him were false the copies of 16 documents described in the list appended should be made available to him. On 21-1-1957 the petitioner submitted a very long explanation to the Government denying the charges and explaining how he was made a victim by interested persons including high officials in the Electricity Department and alleging that the Tribunal has not properly appreciated the evidence and its findings are, therefore, wholly incorrect and unwarranted.

He reiterated that the 16 documents called for in the list were necessary for him and that he would submit a further explanation after the copies of the documents asked for were made available to him. The Government considered the request and thought that only items 3, 4, 5 and 16 may have some bearing upon one aspect of the defence of the accused officer and by an order dated 26-2-1957 directed the Chief Engineer to show the accused those documents. The accused filed a letter dated 2-4-1957 making complaints against the Chief Engineer Sri B. R. Somayajulu and also addressed another communication on 3-17-1957 complaining against the non-production of the documents traversing the various findings given by the Tribunal.

In pursuance of the order of the Government dated 26-2-1957 the accused perused documents 3, 5 and 16 and he was gold that document 4 was not procurable. On 6-8-1957 he wrote a letter to the Chief Engineer, Electricity, stating that he had perused the records on 2nd and 3rd of August, 1957, that they substantiated what he had already stated in his explanation and that those records may be forwarded to the Government for perusal and may be made available with the other exhibits of the case.

On 6-8-1957 he wrote to the Government staling that orders may be passed alter perusing the other 12 documents which were not made available to him and drawing the attention of the Government to the fact that of the four records directed to be shown to him only three were shown. The Government having examined the record and the explanation of the accused officer passed G. O. Ms. No. 1732 dated 24th July, 1958, accepting the findings and recommendations of the Tribunal and directed that the petitioner be compulsorily retired from service. It is this order that is sought to be quashed in this petition.

6. On behalf of the petitioner it is contended first, that the order of the Government dated 24-6-1958 on the face of it does not show that the Government had looked into or considered the explanation given by the petitioner; secondly, that the findings of the Tribunal are based upon wholly incorrect and erroneous appreciation of the evidence tendered against the petitioner and the order of the Government accepting those findings is, therefore, vitiated; thirdly, that even on the assumption that the findings of the Tribunal are correct the punishment of compulsory retirement is far too drastic; and lastly, that the failure to produce the records asked for by the petitioner constitutes a violation of Rule, 8 (a) framed for the conduct of the disciplinary proceedings by the Tribunal. These contentions will have to be examined seriatim.

7. As to the first objection, I do not agree that the order of the Government has been passed without due consideration of the explanation. From the records produced by the learned Government Pleader, it is abundantly clear that before the Government came to a provisional conclusion that the findings of the Tribunal may be accepted it had critically examined the case. I find also from the record there is a detailed noting by the Secretary, Mr. V. V. Subramanyam, I. C. S.

The file was submitted to the Minister then in charge, Mr. Latchanna, who in a very lengthy note suggested that the Government may provisionally accept the recommendations of the Tribunal and directed a show cause notice to be issued to the petitioner. After the petitioner sent his explanation in pursuance of the notice dated 29-9-1956 the Government again critically scrutinised the entire record and very elaborate notes were submitted by the Deputy Secretary and the Secretary Mr. V. K. Rao, and eventually the Minister for Power and Irrigation and the Chief Minister after examination of the record came to the conclusion that the recommendations of the Tribunal should be accepted. It is, therefore, not correct to say that the Government did not examine the case and there is no warrant for the assumption that the order was passed without due consideration of the case of the accused.

8. No direct authority was placed before me that the order of compulsorily retiring the accused should be in the nature of a long judgment discussing at length the various pleas raised by the accused. All that is required by the rule is that the Government should consider the explanation tendered by the accused against the action proposed to be taken. That in the instant case the Government have so considered cannot admit of any doubt.

9. The next contention of the learned counsel is that the evidence tendered on the side of the prosecution was interested, unreliable and discrepant and the Tribunal was in error in relying upon such evidence. The learned counsel for the peti-tioner has cited to me several authorities to show that the failure to draw proper inference from the evidence would he an error of law. It is unnecessary to refer to those decisions for the simple reason that they have no bearing on the present question. In a petition under Article 226 of the Constitution for the issue of a Certiorari this court does not function as a Court of Appeal.

10. In R. v. Northumberland Compensation Appeal Tribunal, (1952) 1 KB 338, it was held:

'It is plain that Certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of jurisdiction where shown'.

11. Apart from the limitations inherent to a petition for the issue of Certiorari there is a direct authority of this Court which is binding upon me that in a petition filed by a public servant under Article 226 of the Constitution against the punishment imposed upon him this court cannot go into questions of fact or review the evidence.

12. In B. S. Prakasa Rao v. The Government of Andhra Pradesh, : AIR1960AP15 a bench of this court consisting of the learned Chief Justice, and Mohammed Ahmed Ansari J., held;-

'It is not within the scope of an enquiry under Article 226 to canvass the findings of fact of the Disciplinary Tribunal in a case against a public servant. Whether the evidence is sufficient to warrant the finding is entirely a matter for the tribunal to decide. The High Court cannot take upon itself the [ask of reviewing the evidence and expressing its views on the soundness of the findings of the Tribunal.'

I am in respectful agreement with the above view.

13. Equally untenable is the argument that the punishment in this case is far too drastic and out of all proportion to the charges proved against the accused. The Tribunal has found the petitioner guilty of certain charges of corruption. Those findings were accepted by the Government. The Tribunal suggested compulsory retirement. That recommendation also was accepted by the Government. It is not for this Court to enquire into the question as to the reasonableness, adequacy or propriety of the punishment. There is, therefore no substance in this contention.

14. The main contention pressed upon in by the learned counsel for the petitioner is that all the documents required by the accused were not made available to him for his defence. This Contention is two-fold; firstly, that by the failure to produce all the documents required, the Tribunal had violated the terms of Rule 8 (a) of the Disciplinary Proceedings Rules; secondly, that of the 16 documents asked for only three were shown to him and the failure to produce the 13 documents had caused the petitioner prejudice in his defence.

15. For appreciating the objections as to the violation of Rule 8 (a) it would be necessary to set out the exact terms of the Rule.

Rule 8 (a):-

'Notwithstanding anything contained in Rule 17 of the Andhra Civil Services (Classification, Control and Appeal) Rules, the following procedure shall be adopted by the Tribunal in conducting enquiries in cases of Corruption:-

As soon as the records relating to allegations of corruption against a Government servant are received the Tribunal shall frame appropriate charges, communicate them to the person charged together with a list of witnesses likely to be examined in respect of each of the charges and with information as to the date and place of enquiry. At the enquiry oral and documentary evidence shall be first adduced by the prosecution and the person charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. The person charged shall thereafter, within the time allowed by the Tribunal file a written statement of his defence along with a list of witnesses whom he wishes to examine, stating the points on which he proposes to examine each of them,

'Provided that he need not so specify the points for examination in his own case, when he wishes to examine himself as well. The oral and documentary evidence on his side shall then be adduced. After the enquiry is completed the person charged shall be entitled to advance the necessary arguments, either orally or in writing or both, and the prosecution shall have a right to reply. The Tribunal shall, as far as possible, observe the basic rules of evidence relating to the examination of witnesses and the marking of documents.

The Tribunal shall immediately before each witness is examined by the prosecution, furnish a copy of any statement taken from him by the concerned Department to the person charged. For sufficient reasons to be recorded in writing the Tribunal shall have power to refuse to call a witness on either side, or to summon, and examine any further witnesses, or to call for and exhibit any further documents, the proceedings of the Tribunal shall contain a sufficient record of the evidence.'

16-17. Whether a mere violation of a statutory rule with respect to a disciplinary enquiry, would give a civil servant a cause of action or not may be a debatable point. But so far as this Court is concerned there is a direct authority of a bench in M. V. Joga'Rao v. State, 1956 Andh WR 978 : ((S) AIR 1957 Andh Pra 197). In that case it was held that the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules and the Madras Civil Services (Classification) Control and Appeal) Rules are statutory rules, and they are as much binding upon the Government as upon the citizen, and that if the Government make an enquiry ignoring the said rules the High Court can under Article 226 of the Constitution direct the Government to make an enquiry according to rules, though in cases where the High Court is satisfied that no prejudice is caused to the civil servant, it may in exercise of its discretion refuse to issue any direction.

18. The question, therefore, that falls to be determined is whether the rule has been violated and whether by reason of such violation any prejudice has been caused to the accused.

19. As stated already, on 24-8-1954, the accused officer filed a list of 8 documents. (His Lordship considered the evidence and proceeded.)

All that I need mention is that so far as the Tribunal is concerned it had taken all steps to summon the documents which the accused wanted. Many of such documents were procured and marked on his side. I, therefore, think that there is no substance in the contention that the Tribunal has either failed to summon the documents or refused to summon them for insufficient and improper reasons.

20. (His Lordship further considered the matter and proceeded) On the facts of this case, therefore, it seems to me there is no violation of Rule 8 (a) in the manner suggested. Assuming that all the documents asked For have not been produced the further question is whether any prejudice has been caused to the accused.

21. An accused officer facing a diciplinary enquiry is entitled to summon for all the documents necessary for his defence. Quite apart from considerations of natural justice and the requirements of reasonable opportunity that should be given to the accused or his defence the rules of procedure also give him that right.

22. The learned counsel for the petitioner has tried to argue that the failure to make all the 16 documents available to the accused as per his list dated 5-11-1956 constitutes a denial of reasonable opportunity! In support of that contention he has strongly relied upon the observation of Umamahe-swaram and Manohar Pershad, JJ. in State of Andhra Pradesh v. S. Kameswara Rao, 1957-1 Andh WR 370 : ((S) AIR 1957 Andh Pra 794). In that case the accused officer called for 28 documents and summoned 63 witnesses. The Tribunal summoned only 22 witnesses and did not make available to the accused some documents bearing upon charges 2 and 3.

'It was held by Manohar Pershad, J., on a difference between Umamaheswaram and Bhimasanka-ram, JJ., that the enquiry in that case was vitiated by the non-examination of relevant witnesses called for and the non-production of relevant 'witnesses called for and the non-production of the relevant documents asked for by the accused, and that would amount to a denial of adequate opportunity. The scope of this decision was considered by Subbarao, C. J. and Jaganmohan Reddy, J., in Dr. G. Valayya Pantulu v. Govt. of Andhra, AIR 1958 Andh Pra 240 at p, 245. Referring to the observations of Manohar Pershad J. in 1957-1 Andh WR 370: ( (S) AIR 1957 Andh Pra 794), the leanred Chief Justice observed as follows;-

'But we do not understand this decision as laying down an inflexible rule of law that whenever any document relavant to any link in the chain of facts supporting a charge is not produced, the entire proceedings should be quashed irrespective of the effect of such non-production on the result of the enquiry.'

23. In N. V. Jagga Rao v. State of Andhra Pradesh, W. P. No. 15 of 1954 (unreported decision) Subbarao, C, J. and another learned Judge have taken the same view that though some documents were not produced the petitioner could have no just grievance if the non-production, as a matter ot fact, did not prejudice his case. The failure to summon the documents and make them available to the accused will not per se constitute a defect in the procedure rendering it liable to be quashed. It is the failure to summon the documents material for the defence and the resulting prejudice to the accused that vitiated the proceedings. In this case, therefore, it has to be seen whether the failure to summon the documents has created any prejudice.

24-37. (His Lordship discussed the evidence and proceeded)

38. On a careful consideration of the entire proceedings in the case, I cannot resist the conclusion that all the documents really relevant for the defence including documents regarding the general motive had been produced and the grievance that the other documents called for in the list dated 5-11-1956 had not been made available is wholly imaginary and unfounded.

39. One grievance the accused seems to have had is that the statements recorded by the Divisional Engineer in the preliminary enquiry were not produced before him. The statements recorded by the Superintendent of Police from P.Ws. 1, 2, 3, 4 and 5 were produced and marked as Exs. P-1, P-4, P-5, P-7 and P-8 respectively. As to the statements alleged to have been recorded by the Divisional Engineer, it is seen from the record that the Divisional Engineer actually did not record any statements in which case no question of any prejudice being caused to the accused officer would arise.

40. The learned counsel then argued that the impugned enquiry and the order passed thereon are violative of Article 311(2) of the Constitution of India as reasonable opportunity was not given to the ao cued within the meaning of that Article. I must observe that in the affidavit filed in support of the present petition no specific allegation as to the infringement of Article 311(2) has been made. It is argued by the learned counsel that being a legal question of fundamental importance lie should not ha precluded from raising it even though it was not specifically mentioned in the affidavit.

It is also contended that the reason why no such specific allegation was made was that several decisions of the High Courts including this Court had taken the view that the terms of Article 311(2) are not attracted when the punishment imposed is one of compulsory retirement. Following the decision of the Supreme Court in Sham Lal v. State of Uttar Pradesh, : (1954)IILLJ139SC Umamaheswaram and Bhimasankaram, JJ., in 1957-L Andh WR 370 ; ((S) AIR 1957 Andh Pra 794) held that compulsory retirement did not amount to a dismissal or removal so as to attract the terms of Article 311 of the Constitution of India.

The same view was taken by a bench of the Andhra High Court in an unreported decision in Gnanamani v. State of Andhra, W. A. No. 69 of 1956, by a bench of the Nagpur High Court in Shan-kar Datta v. State of M. P., (S) AIR 1956 Nag 162 (FB), by the Punjab High Court in Dass Mal v. Union of India, and the Madras High Court in Kuppuswaini v. Stale of Madras, 1956-2 Mad LJ 352.

41. The learned counsel for the petitioner contends that the authority of these decisions is considerably shaken by the two recent pronouncements of the Supreme Court in Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC and Bala Kotaiah v. Union of India, : [1958]1SCR1052 . In the first of these cases, after a critical review of a large mass of authorities, their Lordships held that in considering whether a case falls within the protection of Article 311(2) two tests must be satisfied: (i) whether the public servant had a right to the post or the rank, and (ii) whether he has been visited with evil consequences. If the case satisfies either of these two tests then it must be held that the servant had been punished and the termination of service must be taken as dismissal, removal from service pr reduction in the rank attracting the provisions of Article 311(2). The learned Chief Justice observed:-

'In short, if the termination of service is founded on the right flowing from contract or the service rules, then, prima faice the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of ser vice is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment, or the rules provide to the contrary, his services cannot be terminated Otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the services of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career.'

42. In : [1958]1SCR1052 , their Lordships affirmed the principle of the decision in Dhingra's case : (1958)ILLJ544SC and held that though every termination of service does not fall within the operation of Article 311 yet when the order is by way of a punishment, it would amount to dismissal or removal within the meaning of that article.

43. In the context of these two weighty pronouncements of the Supreme Court, I proceed upon the footing that the earlier decisions of this Court in W. A. No. 69 of 1956 and 1957-1 Andh WR 370 : ((S) AIR 1957 Andh Pra 794) require reconsideration. Even so, the only question is whether the accused officer has had a reasonable opportunity of showing cause against the action proposed to be taken against him.

It is not necessary for me to consider whether the reasonable opportunity contemplated under Article 311(2) comprises of opportunities at two stages, as since the decision of the Privy Council in High Commissioner for India v. I. M. Lal, 75 Ind App 225 : (AIR 1948 PC 121) it has been generally understood that two notices ore contemplated, one before the enquiry starts, and the other after the Government has come to a provisional conclusion with respect to the punishment.

44. In Khem Chand v. Union of India, : (1959)ILLJ167SC the Supreme Court of India have defined the scope of the reasonable opportunity contemplated under Article 331(2). Their Lordships observed:-

'The reasonable opportunity envisaged by the provision under consideration includes:-

(a) An opportunity to deny the guilt and estta-blish 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 trie three punishments and communicates the same to the Government servant.'

45. It now remains to be seen whether in the instant case the accused has had reasonable opportunity as enunciated by the Supreme Court.

46. On the report of the Divisional Engineer, Superintending Engineer and the Chief Engineer and finally the investigations by the ex-branch of Police, the Government submitted the matter to the tribunal for disciplinary enquiry. The tribunal was then presided over by Mr. J. A. Ayyar (now Mr. Justice H. A. Ayyar). It framed specific charges against the accused with precision and particularity containing the allegations upon which they were based and also the names of witnesses in connection therewith. Clause (a) of the passage of the Supreme Court judgment cited above has therefore, been complied with. The acused was throughout represented by counsel.

The tribunal adjourned the case from time to time to suit the convenience of the accused and his counsel. Time and facilities were given to the accused for filing his written statement. In spite of the fact that the accused was filing list after list summoning for the documents, the purpose of which was not obvious, the Tribunal was taking steps to get the documents produced. Out of a large mass of documents produced the accused marked on his side 59 documents. His advocate cross-examined the Witnesses tendered on behalf of the prosecution. The accused examined witnesses in his own defence. Clause (b) of the passage extracted above has also been complied with.

47. After the enquiry was closed on 25-5-195-5 the Tribunal sent an elaborate and comprehensive report to the Government on 30-6-1955. The Government, as is seen from the record, critically examined the entire case and came to a provisional conclusion that the findings and recommendations of the Tribunal should be accepted. Therefore, on 29-9-1936 the Government forwarded to the accused a copy of the report of the Tribunal intimating to him that it had come to a provisional conclusion that the findings of the Tribunal and the punishment proposed by it should be accepted and called upon the petitioner to show cause within one month why the punishment of compulsory retirement should not be imposed on him. He was asked to send his explanation through the Chief Engineer.

At that stage the accused by a letter dated 5-41-1955 wanted to examine fresh documents and I have dealt with that request in the earlier part of my judgment. He had submitted a long explanation on 5-11-1957 against the action proposed. As is seen from the record, these explanations together with the connected papers the Government critically examined the case and the decision of compulsory retirement of the petitioner was taken by the Minister of Power and Irrigation and the Chief Minister. Clause (c) of the passage above extracted is satisfied.

48. Whether a particular Government servant has been given a leasonable opportunity or not must be decided on a full conspectus of the entire evidence in the case and the facts disclosed therein. On a careful consideration of the entire case, I have no doubt in my mind that the petitioner has had a reasonable opportunity within the meaning of Article 311(2) and that he is not entitled to impeach the validity and the correctness of the order of the Government passed in G. O. Ms. 1732 dated 24-6-1958 compulsorily retiring him from service.

49. In the result, the petition fails and is dismissed with costs. Advocate's fee Rs. 100/-.


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