B.D. Gupta, J.
1. This is an appeal by the Union of India against an appellate decree declaring that the order of dismissal of the plaintiff-respondent was void and inoperative and the plaintiff-respondent continued to remain in the service of the appellant as before. Rs. 943 as arrears of pay were also awarded by the same decree.
2. The plaintiff was skilled fitter working in the Wagon Repairs Shop at Ghaziabad. As a result of some incident the plaintiff was served with charge-sheet dated the 21st of December, 1954. A departmental enquiry took place at which witnesses were examined and the plaintiff was given opportunity to cross-examine the witnesses and adduce defence. The enquiring officer submitted a report to the effect that the charges had been established. Another notice was thereafter served on the plaintiff which runs as follows:
'Further considering the finding of the Enquiry Committee and your explanation to the charge sheet dated 21-12-54 issued to you, you have been held responsible for the following charges, for assaulting Baij Nath Asstt. Charge-man on Friday dated 10-12-54 near the line 61 inside Wagon Repairs Shop, Ghaziabad ......
Accordingly I have formed the opinion that you should be removed from service. You are hereby given 7 days clear time from the receipt of this notice to show cause why the proposed penalty should not be imposed on you. Any representation that you may make in this connection will be taken into consideration before passing final orders.'
No copy of the finding which had been recorded as a result of the enquiry was sent with this notice, or furnished to the plaintiff otherwise, until the order removing the plaintiff from service was passed. After appealing to the higher authorities the plaintiff instituted the suit giving rise to this appeal. The main ground in support of the plaintiff's claim was that he had not been afforded the opportunity provided by Art. 311 of the Constitution of India.
3. A number of defences were raised, but the only one which has been raised for consideration at the hearing of this appeal was as to whether there had been contravention of the guarantee contained in Clause (2) of Article 311 of the Constitution. The learned Munsif held against the plaintiff with the result that he dismissed the suit. On appeal by the plaintiff the appellate Judge took the view that there had been contravention of Article 311 of the Constitution with the result that he decreed the plaintiff's suit in terms stated earlier in this judgment. Thereupon the defendant filed this second appeal. I have heard learned counsel for the appellant and find the appeal devoid of force.
4. There is no controversy, so far as the first stage is concerned, that no illegality or irregularity had taken place. As regards the second stage, the learned Judge relied on the admitted circumstance that copy of the finding recorded as a result of the enquiry held against the plaintiff was not supplied to the plaintiff-respondent, either along with the second notice to show cause against the proposed punishment, or even thereafter before the order removing the plaintiff from service was passed. The learned Judge relied on a number of decisions which need not be set forward.
5. Learned counsel for the appellant cited a decision of a Division Bench of this Court in the case of Ranbir Singh v. Supdt. Small Arms Factory, Kanpur, AIR 1957 All 274 in support of his contention that it was wholly unnecessary to supply the plaintiff-respondent with a copy of the enquiry report inasmuch as all that was open to the plaintiff-respondent at the second stage was to show cause against the action of removal from service which was proposed to be taken against him. Learned counsel urged that the conclusion arrived at the first stage regarding the merit of the charges framed against the plaintiff-respondent as final and, since it was not open to the plaintiff-respondent to re-agitate that matter at the second stage, no prejudice could possibly have been caused to the plaintiff-respondent by failure to supply him with a copy of the enquiry report. Learned counsel for the plaintiff-respondent placed reliance on a subsequent decision of another Division Bench of this Court in the case of State of Uttar Pradesh v. Salig Ram Sharma, AIR 1960 All 543 as also on the decision of the Supreme Court in the case of Union of India v. H.C. Goel, AIR 1964 SC 364. In the former case, AIR 1960 All 543 the omission of supplying the employee concerned with the finding of the enquiring officer, at the second stage, was characterised as fatal to an order of dismissal and it was held that if the punishment proposed was dismissal, the employee concerned could not make effective representation against it in ignorance of the finding of the enquiring officer and the material on which it was based. Dhavan, J., in delivering the judgment of the Bench, observed as follows:
'Unless he knows what case, or how strong a case, has been made out against him he would not be in a position to give any effective reasons for submitting that the Enquiry Officer's recommendations should not be given effect to or at any rate, that they do not justify the infliction of the extreme penalty of dismissal. Such an officer can legitimately complain that he was deprived of a reasonable opportunity to show cause against the punishment proposed against him. .....'
If it was only the decision in the aforesaid case, there may have been reason to justify a reference of this appeal to a larger Bench on the footing that there was a conflict between two Division Bench decisions of this Court. In view, however, of the decision of the Supreme Court in AIR 1964 SC 364 (supra), it has to be taken as settled law that the object of the second notice to show cause against the proposed punishment is not merely to enable the public servant to satisfy the Government that the punishment proposed is unduly severe, but also to satisfy me Government that he is innocent of the charges framed against him. In para 11 of the report Gajendragadkar, J. delivering the judgment of the Supreme Court, after referring to the various situations that may arise, dealt with the implications of the second notice, viz., the notice to show cause against the proposed punishment, and observed as follows:
'It would thus be seen that the object of the second notice is to enable the public servant to satisfy the Government on both the counts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him, the punishment proposed to be inflicted upon him is unduly severe. ... . . '
It would thus appear that, consequent upon the notice to show cause against the proposed punishment, the plaintiff-respondent was also entitled to an opportunity to satisfy the authorities not only that the proposed punishment was unduly severe but that the finding incorporated in the enquiry report that the charges against him had been established was wrong and that, in fact, he was innocent of those charges. It is manifest that it was not possible for the plaintiff-respondent to take advantage of this opportunity in the absence of the enquiry report. The decision of the Division Bench in the case of Ranbir Singh, AIR 1957 All 274 that it is not open to the person concerned to attack the conclusions arrived at as a result of the enquiry constituting the first stage stands, by necessary implication, overruled by the decision of the Supreme Court in AIR 1964 SC 364 (supra). The result, therefore, is that the view taken by the learned appellate Judge is well supported and must be upheld.
6. No other question was raised before me.
7. This appeal consequently fails and is dismissed with costs.
8. The result of the dismissal of this appeal obviously is that the interim stay orderdated the 22nd of September, 1980. which wasconfirmed on the 30th of March, 1982, standsautomatically vacated.