Jagdish Sahai, J.
1. The petitioner was appointed as a constable in the Police Force of this State. In 1942 he was promoted to, the rank of Naik Constable and in 1945 to that of a Head Constable. In June 1955 he was posted as in-charge Head Constable at Police Outpost Regiment Bazar, Cantonment, Lucknow, S. I. Dharam Sen Singh was the Station Officer of the Police Station Cantonment and Sri D. D. Khosla was the City Deputy Superintendent of Police Lucknow at that time. In the night/ between 29th/30th June 1955 four or five house-trespass by night and theft cases took place within the limits of Cantonment Police Station.
The petitioner entered the reports of those cases in the general diary maintained at the Regiment Bazar Outpost. It is his case that S. I. Dharam Sen Singh got annoyed with him on this account, as he considered the occurrence of four or five theft cases in one night in Ms Police Station as an adverse reflection on his administration. It is said by the petitioner that thereafter S. I. Dharam Sen Singh started harbouring a grudge against the petitioner and also poisoned the ears of Sri Khosla the Deputy Superintendent of Police against the petitioner.
On 22-8-1955 the petitioner submitted an application for leave on the ground that his ancestral house in village Saraiyan Muafi, district Sultanpur had fallen down due to heavy rains, to the Senior Superintendent of Police at Lucknow through the Station Officer, Police Station Cantonment. According to the petitioner that application was not forwarded to the Deputy Superintendent of Police or the Senior Superintendent of Police by S. I. Dharam Sen Singh and was withheld by him. 19th of November 1955 was fixed in a personal case of the petitioner in the Court of Munsif, North, Lucknow.
As the petitioner's presence in that case was required in court, he applied to the Deputy Superintendent of Police, City, Lucknow through the Station Officer, Police Station Cantonment for leave of absence for that day. Leave was not granted to him and he was sent on duty to Baheri in the District of Bareilly on 18-11-1955. After he had returned back from Baheri he made an application to the Senior Superintendent of Police through the Station Officer, Police Station Cantonment on 29-11-1955 complaining that he was arbitrarily refused leave for the 19th of November 1955. On 10th of December 1955 the petitioner was called by Sri Khosla, Deputy Superintendent of Police and was ordered to undergo punishment drill and confinement in barracks for a period of fourteen days on the charge that he had failed to go in general Gasht on the nights between 26th/27th July 1955 and 16th/17th August 1955 as reported by S. I. Dharam Sen Singh. The petitioner submitted an explanation to the Deputy Superintendent of Police explaining that he was busy with other public duties assigned to him as the time when he was expected to do the Gasht.
He also mentioned in the explanation that he had already submitted an explanation to this charge to the Station Officer S. I. Dharam SenSingh long before and as the said Station Officer was satisfied with his explanation the proceedings were closed. Sri Khosla, however, rejected this explanation and insisted on the petitioner carrying out the punishment inflicted on him. On 10th December 1955 the petitioner submitted a series of applications to the Senior Superintendent of Police, Lucknow praying for the setting aside the order of the punishment imposed on him by Sri Khosla.
According to the petitioner the applications were couched in a very respectful language and the petitioner never intended to show any disrespect to the Deputy Superintendent of Police. On 1-2-1956 an order transferring the petitioner to the police lines, Lucknow was served upon him. The petitioner reported himself in the police lines on 3-2-1956. The same day he was called by the Addl. Superintendent of Police Sri K.S. Tripathi, who informed him that his applications dated 10th of December 1955 had been rejected and proceedings under Section 7 of the Indian Police Act had been started against him. A charge-sheet was handed over to him which runs as follows:
'You, Hd. Cons. No. 35 C. P. Mahesh Dutt, are hereby charged under Section 7 of the Police Act for remissness and negligence in the discharge of your duties and thus unfit for the same for the following:
1. You/avoided going on gasht on the night of 26/27-7-1955 and 16/17-8-1955, while you were posted in OP. B. C. Bazar, P. S. Cantt.
2. You showed extreme indiscipline and insubordination by submitting various applications on and after 10-12-1955 requesting for getting yourself photographed while doing punishment drill, asking permission to file law suits against your superior officers and your medical examination before and after the punishment drill, which was awarded to you in the O. R. by Dr. S. P. City On 10-12-1955. You also make very in disciplined allegations against your superior officers in the various applications sent up by you.'
2. The departmental proceedings against the petitioner were conducted by Sri K.S. Tripathi mentioned above. Sri K.S. Tripathi, after the conclusion of the departmental trial, submitted a finding to the Senior Superintendent of Police in which he found all the charges against the petitioner proved and recommended his dismissal from the police force. The concluding portion of his findings is as follows:
'I, therefore, propose that he should be dismissed from service. The party charged should show cause within eight days of the receipt of this finding as to why the proposed punishment of dismissal should not be awarded to him. In case no explanation is received within the stipulated period of eight days, it will be presumed that he has no explanation to offer and orders will be passed accordingly. If the party charged submits a reply due consideration will be given before passing final orders.'
3. It is the admitted case of the parties that beyond this order no other show-cause notice was served on the petitioner. The petitioner submitted an explanation to the show-cause notice issued by Sri Tripathi. The Senior Superintendent of Police Sri Sen after considering that explanation but without himself issuing any show-cause notice dismissed the petitioner from the police force. The petitioner filed an appeal before the Deputy Inspector-General of Police which was rejected.
Thereafter, he filed a revision application before the Inspector-General of Police which wasdismissed on 2-6-1957. Thereafter, the present writpetition was filed in this Court. A counter-affidavit has been filed on behalf of the respondents anda rejoinder affidavit by the petitioner. It is notnecessary to mention the various allegations madein the affidavit, counter affidavit and the rejoinderaffidavit in details. If and when necessary, I willrefer to such of the allegations contained in thosedocuments as are relevant for the decision of thecase.
4. I have heard Sri N. Banerji for the petitioner and Sri S.D. Misra, the learned Additional Standing Counsel as also Sri Kesri Bir Prasad for the respondent. Four submissions have been made by the learned counsel for the petitioner before me. They are as follows;
1. That under Article 311 of the Constitution of India the show-cause notice could be issued only by the Senior Superintendent of Police who was the punishing authority and that too only after he had perused the evidence against the petitioner and the findings recorded by the trial officer.
2. That the petitioner did not have a reasonable opportunity of showing cause within the meaning of Article 311 of the Constitution of India inasmuch as he was not given full opportunity to produce his defence.
3. That the Enquiring Officer was biased against the petitioner, and,
4. That the petitioner had already been punished once and could not be punished again in view of the provisions of Section 36 o the Indian Police Act and in any case the order of dismissal passed against the petitioner was barred by res judicata.
5. I shall take the first submission of the learned counsel first.
6. The necessity of providing a reasonable opportunity of showing cause against the action proposed is created by Article 311 of the Constitution of India. In order to ascertain as to who should provide that opportunity it is necessary to understand the scheme of that Article. The said Article runs as follows:
'311 (1). 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 ah authority subordinate to that by which he was appointed.
2. 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 :
Provided that this clause shall not apply:--
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank issatisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or
(c) where the President or Governor........., as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.
3. If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.'
7. Clause (1) of that Article provides that no person shall be dismissed or removed by an authority subordinate to that by which he is appointed. The effect of this clause is that any authority inferior to the appointing authority cannot dismiss or remove a person to whom Article 311 applies though such an order can be passed by an authority superior to the appointing authority.
8. The effect of Clause (2) is that no person, to whom Article 311 applies, can be dismissed, removed or reduced in rank until he has been given an opportunity of showing cause against the action proposed. Showing cause against the action proposed means showing cause against the proposed, punishment. Clause (2) of Article 311 has got a proviso which has three Sub-clauses. Sub-clause (a) of the proviso provides that in case a person is dismissed or removed Or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, the opportunity of showing cause provided by Clause (2) of Article 311 need not be extended to that person.
Sub-clause (b) of the proviso is to the effect that in case the authority empowered to dismiss or remove a person or reduce him in rank (hereinafter referred to as the authority) records in writing that it is not reasonably practicable to give to that person an opportunity of showing cause, no such opportunity need be given. Sub-clause (c) of the proviso provides that if the President or the Governor, as the case may be, Ms satisfied that in the interests of the security of the State it is not expedient to provide the opportunity of showing cause, no such opportunity need be given. Clause (3) of Article 311 provides that the decision of the authority on the question whether or not it is practicable to give the officer charged an opportunity of showing cause shall be final.
9. An opportunity of showing cause against the proposed punishment can be given only after the action proposed has been tentatively decided upon. The stage for this decision is reached only after the authority has considered the case against the officer charged on merits and has come to the tentative conclusion that the charges have been established and has also provisionally decided to inflict a particular punishment upon him. It is, therefore obvious that the stage of the show-cause notice would only arrive when the authority is seized of the case and long after the trial or enquiry officer has concluded the departmental proceedings and submitted his findings to the authority. The view that I am taking finds full support from the case of High Commissioner for India v. I. M. Lall , where it was observed as follows:
'In the opinion of their Lordships, no action is proposed within the meaning of the Sub-section until a definite conclusion has been come to in the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is On that stage being reached that the statute gives the civil servant the opportunity for which Sub-sec. (3) makes provision ....... If the civil servant has-been through an enquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage, if, duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry.'
10. It is true that these observations were made by the Privy Council while considering see. 240 of the Government of India Act, 1935 (hereinafter referred to as the 1935 Act). 'The language of Article 311 of the Constitution is very similar to that of Section 240 of the 1935 Act. The above case is therefore a good authority even for the purpose of interpreting Article 311 of the Constitution; in fact our Supreme Court has often relied upon it.
11. In the case of Khem Chand v. Union of India : (1959)ILLJ167SC , their Lordships of the 'Supreme Court observed as follows:
'......the reasonable opportunity envisagedby the provision under consideration includes....an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.'
This case is a direct authority on Article 311 of the Constitution. One result that would follow from the decision of the cases mentioned above would be that in case the authority does not consider the charge proved against the delinquent officer and does not decide even tentatively to inflict any punishment on him then, quite apart from the question that a show-cause notice would be unnecessary, no one else, even if he wanted to do so, can issue a show, cause notice or provide the opportunity. Thereafter the providing of the opportunity is entirely dependent upon the judgment of the authority and there is a direct nexus between the two.
It, therefore, appears to me that it is the authority himself who must issue the show cause notice or provide the opportunity. The passage from the Supreme Court judgment which I have quoted above clearly indicates that the competent authority has not only to apply his mind to the gravity or otherwise of the charges proved against the government servant and to tentatively determine the punishment to be inflicted on him but he has also to communicate the same to the person charged (mark the words 'and communicatethe same to the government servant)'. From, this quotation it would clearly follow that the opportunity to show cause must flow from the authority himself and if a show cause notice is issued in writing it must be either issued under his signatures or on his behalf by someone else. The view that I am taking also finds support from the Full Bench decision in the case of Joseph John v. State of Travancore-Cochin, AIR 1953 Trav-Co 130, where it was observed as follows:
'The second clause does not mention the authority that should ask the delinquent officer to show cause why the action proposed should not be taken against him. In the absence of such motion, it must be taken to mean that whoever can take the action proposed is the authority to whom cause has to be shown and therefore the one competent to give the opportunity to show cause...'.
This case went up in appeal to the Supreme Court and the decision of the Travancore Court was affirmed though their Lordships themselves did not; expressly say anything about the authority who, is required to issue the show-cause notice (see P. Joseph John v. State of Travancore-Cochin : (1956)ILLJ235SC .
12. Apart from it, a perusal of Sub-clause (b) of the proviso to clause (2) of Article 311 clearly shows that it is the authority who has to record in writing that it is not reasonably practicable to give to the officer charged an opportunity of showing cause. Under this, Sub-clause this power or function cannot be exercised by any one else. Sub-clause (3) of Article 311 makes the decision of the authority on the question as to whether Or not it is reasonably practicable to give to the officer charged an opportunity, of showing cause final. In other words, there are clear indications in Article 311 itself that the duties relating to the issue of the show cause notice must be performed by the authority himself.
In my judgment, therefore, it is the authority who has to provide the opportunity envisaged by clause (2) of Article 311. It is true that it has not been very expressly stated in that clause that the reasonable opportunity of showing cause should be provided by the authority himself, but considering the fact that that function cannot be discharged by any one else, being dependent upon the judgment of the authority himself, and reading all the clauses of Article 311 together it is manifest that it is the authority who alone can provide the opportunity or issue the show cause notice. It does not necessarily mean that the authority should in every case issue the notice itself. It can also direct one of its subordinates to issue such a notice on its behalf. In the present case the so-called show cause notice was contained in the findings recorded by Sri Tripathi. That was long before the papers reached the Senior Superintendent of Police, the authority.
It has been admitted that beyond what was contained in the findings of Sri Tripathi no other notice or opportunity was provided to the petitioner to show cause against the action proposed. In other words it is clear that after the Senior Superintendent of Police had perused the evidence and the findings and had tentatively made up his mind about the guilt of the petitioner and the punishment which he proposed to inflict no opportunity, much less a reasonable opportunity, was given to the petitioner to show cause though under Article 311(2) he was entitled to it. The opportunity given by Sri Tripathi was not the one guaranteed by the Constitution. That being so, in my opinion, there has been a clear infringement of Article 311 of the Constitution in the present case. It is not necessary therefore to consider the other grounds raised by the learned counsel for the petitioner. In my opinion on this ground alone the petition has got to be allowed,
13. The question, however, is what writ, order or direction should be issued. The order by which the petitioner was dismissed is an administrative order and a writ of certiorari cannot, therefore, be issued (see State of Bihar v. D. N. Gahguly : (1958)IILLJ634SC ). In my opinion the appropriate writ to issue would be that of mandamus. The effect of the Article 311 of the Constitution is that a guarantee is given to a government servant that he shall not be dismissed, removed or reduced in rank without a reasonable opportunity of showing cause being given to him. The respondents have therefore got a legal obligation not to dismiss the petitioner without complying with the provisions of that Article and not to act upon any order of dismissal which has been passed by infringing the provisions of that Article. For these reasons I allow the petition with costs and issue a writ of mandamus to the respondents directing them to treat the petitioner as in service and to ignore the order of dismissal passed against him.