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Madan Lal Chawla Vs. the Principal, Harcourt Butler Technological Institute and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2005 of 1959
Judge
Reported inAIR1962All166
ActsConstitution of India - Articles 226, 311 and 311(1); Evidence Act, 1872 - Sections 167
AppellantMadan Lal Chawla
RespondentThe Principal, Harcourt Butler Technological Institute and ors.
Appellant AdvocateM.H. Beg, Adv.
Respondent AdvocateShambhu Prasad, Sr.Standing Counsel
DispositionPetition dismissed
Excerpt:
(i) service - writ of prohibition - articles 226 and 311 of constitution of india - controversial question of fact cannot be decided in a writ petition - open to the petitioner to withdraw the petition and file a regular suit - if pressed can only be decided on the admitted facts or open to the petitioner to argue the admitting facts - writ of prohibition does not lie in quasi judicial proceedings - issued only against a court of judicial body created specifically under a statute - final order of dismissal can be challenged in writ petition not the matters at the inquiry stage. (ii) finding based on facts - section 167 of evidence act, 1872 - high court may not upset the findings in every case where something extraneous has been taken into consideration or improper admission - in case.....v.d. bhargava, j.1. this is a petition under article 226 of the constitution filed by one madan lal chawla who, according to him, was a displaced person and originally belonged to west punjab. he settled in kanpur in 1951. he was appointed on 21-5-1951 as clerk at the harcourt butler technological institute, kanpur, which is an institute owned and run by the government, by the director of industries, uttar pradesh, kanpur. he was promoted to the post of stenographer and was declared provisional substantive stenographer'. according to the petitioner his work was very satisfactory and was appreciated and that be was awarded a special prize. the petitioner was working directly under the principal, harcourt butler technological institute, kanpur at the time the present incident arose. he.....
Judgment:

V.D. Bhargava, J.

1. This is a petition under Article 226 of the Constitution filed by one Madan Lal Chawla who, according to him, was a displaced person and originally belonged to West Punjab. He settled in Kanpur in 1951. He was appointed on 21-5-1951 as clerk at the Harcourt Butler Technological Institute, Kanpur, which is an institute owned and run by the Government, by the Director of Industries, Uttar Pradesh, Kanpur. He was promoted to the post of stenographer and was declared provisional substantive stenographer'. According to the petitioner his work was very satisfactory and was appreciated and that be was awarded a special prize. The petitioner was working directly under the Principal, Harcourt Butler Technological Institute, Kanpur at the time the present incident arose. He never gave, according to him, any cause for a single warning to be issued against him and his service roll and record contain nothing but only good entries.

2. A communication was received by the petitioner dated 24-4-1059 from the Principal, Harcourt Butler Technological Institute intimating to him that under the orders of the Director of Industries he had been suspended. The cause of this notice appeared, according to the petitioner, that the Principal of the Institute had come in conflict with Dr. D. R. Dhingra, who was formerly a Director of Industries and ex officio Principal of the Harcourt Butler Technological Institute. The petitioner being the stenographer of Dr. Dhingra was not liked by the present Principal. The petitioner denied that there was any legal order of suspension against him from the Director of Industries, U. P., Kanpur. According to him he was appointed by the Director of Industries, who was superior in rank and office to the Principal and that no disciplinary proceedings could be taken against him and no charge could be framed against him by any authority inferior in rank and office to the! Director of Industries.

3. The charge sheet was given to him on 1-5-1959 by the Principal which included charges from 23-8-1957 to 17-3-1959. The petitioner asked for certain, papers, on the basis of which those charges had been framed and which were to be relied upon against him. According to him, only copies of some of the papers were given. He submitted his reply on 20-5-1959. After some more papers were given to him, he submitted a second reply on 11-6-1959 and the third reply was given on 30-6-1959.

4. On 8-7-1959 the petitioner was informed by a letter from the Administrative Officer of the Harcourt Butler Technological Institute, Kanpur that a committee of three persons had been appointed consisting of Sri K. H. Parikh, (Glass Technologist to U. P. Government), Chitranjan Mittra (Advisor to Government Chemical Engineering) and W. R. Damle, (Alcohol Technologist). There are two letters which were on behalf of the Committee asking the petitioner to come before the enquiring committee. According to the petitioner he was not given copies of the documents and he had not been given full opportunity to cross-examine the witnesses nor to put forth his own version in his own way and lastly it was urged that the Administrative Officer was taking part who was biased against him and therefore) in fact he did not take part in the proceedings. Thereafter the enquiry was held by the Committee and a report was submitted to the Principal, Technological institute who issued an order dated 12-8-1959 asking the petitioner to show cause why he should not Be dismissed. It is at this stage that the petitioner came to this Court.

5. Learned counsel for the petitioner has raised numerous grounds of law and fact in this petition, both which directly arise in the case and also incidentally or even remotely. Inter alia, the pleas that have been taken are that the papers having not been supplied to him and he having not been allowed to put forth his own version the principles of natural justice have not been observed; that the Administrative Officer, who was biased having taken part in the proceedings there was another principle of natural justice which had been violated; that the appointment having been made by the Director of Industries, the Principal. Harcourt Butler Technological Institute, was not enti-tled to take any proceedings or to punish him; that he had not been supplied with full report of the Enquiry Committee, but only was given an extract, that while passing the order dated 12-3-1959 giving opportunity to the petitioner to show cause as against dismissal the Principal had been influenced by extraneous material; that no order of dismissal could be passed by the Principal, who had been already prejudiced having agreed with the report and he issued the notice though he is a subordinate authority to the Director of Industries who had appointed him; that even if the Principal has got any authority now that authority cannot be retrospectively effected and that no dismissing authority having been appointed, as the Principal had been appointed only as an appointing authority, he could not dismiss the petitioner; therefore it was urged that on the principles of natural justice this Court should hold that the final order of the Principal is vitiated in law.

6. On behalf of opposite parties who are the Principal, Harcourt Butler Technological, Institute, the Director of Industries, U. p., Kanpur and the Government of Uttar Pradesh, a counter affidavit-has been filed by Sri P. L. Agnihotri, Personal Assistant-cum-Administrative Officer, Harcourt Butler Technological Institute, Kanpur. So far as the factum of the appointment of the petitioner in 1951 is concerned, that has been admitted. It was contended that with effect from 24th September, 1958 on account of G. O. No. 2537 (ED) XVIII-208 (ED)-58 the powers of head of department have been conferred on the Principal, Harcourt Butler Technological Institute, Kanpur, and the Director of Industries has ceased to have any administrative control over the Institute. It was said that the services of the petitioner were not very satisfactory and when he had gone on deputation to the National Sugar Institute the head of that Institute had also given a report that the petitioner had refused to submit explanation demanded by his immediate officer that he misbehaved with his immediate officers and that he made false statements before the Director and he was also guilty of insubordination. That was in the year 1958. After his reversion he did not show any sign of improvement at all and he continued his habit of maligning officers, who did not act according to his whims.

The contention of the petitioner that he was not supplied with the order of the Director of Industries directing his suspension, has been, categorically denied and it was said that the order of the Director of Industries was supplied to him by the office memo., No. 1676/2-48 dated 24-4-1959, which was duly acknowledged by him on the same, day. It was further denied that the copies of the documents demanded by him. were not supplied to him, or that he could not cross-examine the witnesses or was not allowed to put forth his version in his own way. So far as the part taken by the Administrative Officer was concerned, he was only working as the secretary and was taking down notes. He did not take any part otherwise in the Enquiry Committee.

7. It was further contended that after the issue of the Notification by the Government dated 24th September, 1958, already mentioned above, and another notification dated 4th May, 1959 No. 1635 (ED)/XVm-D-208 (ED)-58 the Principal was declared to be the appointing authority in respect of all non-gazetted and inferior posts in the Institute and the Director of Industries as the head of the department and ex-officio Principal of the Institute ceased to be the appointing authority and thereafter he had no control over the Institute.

8. In the particular case of the petitioner the matter was referred to the State Government for opinion and the Government issued a D O. No. 4022 ED/XVIII-D-217 (ED)/59 dated 24-7-1959, addressed to the Principal of the Institute informing him that he would be the person, who could institute enquiry and that he was the appointing and dismissing authority for the petitioner.

9. It was further contended that the proceedings which have been taken are not at all vitiated.

There are certain controversial questions of fact which cannot be decided in a writ petition and the petitioner, would have been well advised to go in a separate suit rather than come to this Court with the questions of fact which are disputed and were-bound to be disputed. As has been expressly laid down by their Lordships of the Supreme Court in Union of India v. T. R. Varma : (1958)IILLJ259SC , in such cases the proper exercise of the powers would be to refuse to go into questions of fact and leave the petitioner to a separate suit. Usually when writ petitions of this nature are argued, in the beginning it is open to the petitioner to withdraw the petition and file a regular suit in the proper forum. But if the petition is pressed it can only be decided on the basis that so far as the facts are concerned, only admitted facts would be taken into consideration, or it may be open to the petitioner to argue admitting the facts given in the counter affidavit.

Under the circumstances I cannot go into the facts whether he was given copies of the papers or not, whether he was allowed to put the version in his own way or not and whether he wag allowed! to cross-examine the witnesses or not. There is a categorical denial on the part of the Administrative Officer and it is said that all possible opportunity was afforded to the petitioner to defend his case and that the petitioner had taken a defiant attitude and had not taken part in the proceedings. If it be so, the blame is entirely his and it cannot be said that it was against the principles of natural justice. The denials are contained in paragraphs 31, 32 and 33 of the counter affidavit.

10. The petitioner's complaint that only extracts had been given to him and not the full report, is also not justified. He was not entitled to the complete report of the Enquiry Committee, He was only entitled to the proceedings and not to the recommendations or to the forwarding portion of the letter. So far as the findings portion is concerned, a complete copy of it had been given to him. The procedure to be observed in imposing the major penalties of dismissal, removal or reduction in rank has been prescribed by the Government and they are given in the Government Servants Companion at page 127. Sub-rule 6 of Rule 18 provides :-

'The punishing authority should then supply the charged government servant with a copy of the proceedings of the inquiring officer, excluding the recommendations, if any, in regard to the punishment made by that officer, and ask the charged government servant to show cause by a particular date which affords him, reasonable time, why the proposed penalty should not be imposed on him ........'

It is thus clear that the petitioner is not entitled to that portion of the recommendation which is made by the inquiring officer; nor is he entitled to the portion of the forwarding letter. Complete original report has been filed as annexure 17 to the Counter affidavit and extracts of which had been supplied to the petitioner and have been filed also by him. I find that so far as the relevant portion is concerned, it entirely tallies. It is only the forwarding letter and the recommendation portion which has not been supplied to him, to which he was not entitled. Under the rules he was only entitled to the proceedings.

11. The argument of learned counsel that while passing the final order the Principal had been influenced by extraneous circumstances does not appear to be tenable. There were as many as 15 charges levelled against the petitioner. Most of them were charges of insubordination. Out of these 15 charges, 10 were established to the satisfaction of the inquiring committee. One charge was held as not substantiated; one charge was decreed to be referred to the Legal Expert instead of being decided by the inquiring committee; one charge relating to the Civil Surgeon was also recommended to be investigated by the appropriate department and one charge was such that it related to his behaviour in the National Sugar Institute and not directly to the conduct of the petitioner at this Institute. But the committee was of opinion that this charge did reflect on the behaviour of the petitioner.

12. This report was sent to the principal of the Harcourt Butler Technological Institute, who passed an order on 12-8-1959 which is being challenged. In that order the Principal said that he agreed with the findings of the inquiring committee with regard to the charges Nos. 1, 2, 4, 5, 8, 9. 10, 12, 13, 14 and 15. Most of these charges were such, where the findings were against the petitioner. It was contended by .Learned counsel for the petitioner that as regards charge No. 11, relating to the petitioner's behaviour towards the Civil Surgeon. Kanpur, it could not have been decided by the Principal when the inquiring committee had expressed the opinion that it should be investigated by the appropriate authority. The principal was of the opinion that the allegations, which he had made against the Civil Surgeon in the letter, on the basis of which the charge was framed against him had not at all been substantiated by any evidence given by him, and, in the absence of any evidence establishing those allegations being correct, it could not be held that the petitioner was entitled to make them, and that therefore, the petitioner was guilty of that charge also. Personally I do not think that when the Principal came to that conclusion he was not justified either in law Or in fact, in arriving at that conclusion. Besides this, this matter had been decided on the basis of at least ten charges which are enough to take disciplinary action.

13. If there was evidence that there were 12 charges against the person and in eleven the evidence was properly conducted and in one charge it had been improperly conducted and admitted, then the appellate court would not have been justified in reversing the finding if it had come to the conclusion that apart from, that charge there had been other charges which were enough to justify the finding. This has specifically been said in Section 167 of the Evidence Act. It is not every case in which merely because something extraneous has been taken into consideration that this Court could immediately upset that finding. Though it is not the jurisdiction of this Court to go into the quantum of the charges which should be enough for the purpose of taking disciplinary action, yet I have cursorily seen the charges and I find that even if those charges had not been established, the principal could not have taken any other view in the matter. It is only when this Court feels doubt that if one fact were not there whether the opinion or decision of a certain authority would have been the same, that this Court interferes. But where it is patently clear that there could have been no other decision, then in that event, the extraneous circumstances alone would not vitiate the order.

14. Reliance was placed on Rameshwar Dayal v Regional Transport Authority, Meerut, : AIR1958All575 . That was a case entirely different on facts from those of the present case. There had not been such a long catelogue of charges as in the present case. There were two circumstances which had to be taken into account and it was quite possible in the opinion of the Bench that if the other consideration was not there, probably the quantum of punishment may have been different. Such a quantum of punishment has not yet been arrived at in the present case. But so far as his behaving in an to disciplinary manner is concerned, that finding would stand in any event. That case, therefore, differs entirely on facts. I do not think that it was laid down as a proposition of law for every case that if there is in any case even the smallest extraneous circumstance the whole order would be void.

15. The next question, which is really an important question in the case is, whether the Principal of the Harcourt Butler Technological Institute is entitled now to direct taking of disciplinary action against the petitioner and finally dismiss him. The petitioner was appointed by the Deputy Director of Industries and not by the Director of Industries and at that stage the Deputy Director oi industries and the Principal, Harcourt Butler Technological Institute were one and the same. Under the circumstances merely his designation as the Deputy Director of Industries would really not mean that he had made the appointment as a Director of Industries. He was also acting as ex officio Principal of the Institute and, therefore, in effect when he had made the appointment in the Institute by virtue of his official designation he would be deemed to have made the appointment not as Director of Industries, but as the Principal of the Institute. It appears that the post of the Principal had been vacant for some time and, therefore, the Deputy Director of Industries had been-appointed ex-officio Principal and during that period Dr. Dhingra was acting only in that capacity.

That this was so is clear from the Civil List of 1951 which I have perused. The Civil List of 1951-52 shows Dr. Dhingra as Deputy Director ot Industries (Education), U. P., and Acting Principal of the Harcourt Butler Technological Institute. From this it clearly appears that at the time when the appointment of the petitioner was made, the office of the Deputy Director and the Acting Principal wag merged in one person, and when the appointment was made it was not actually made by the Director of Industries, but by the Deputy Director only, as Dr. Dhingra was, and he was then acting Principal. In any event, it is clear that he was not appointed by the Director of Industries' but by the Deputy Director only.

(Vide the letter of appointment which has been filed by the petitioner along with his subsequent affidavit filed on 18-9-59.)

16. Even if he was not acting as the Principal and had been appointed as Deputy Director, in my opinion, at the present moment he has no authority or jurisdiction to take any action against any person in the institution. It is only the Principal of the Harcourt Butler Technological Institute, who can take any action against the petitioner. It may be that at one stage the Harcourt Butter Technological Institute was being managed by the Director of Industries and it used to take orders from the Director of Industries but when on the 24th September 1958 a separate Principal was appointed and Dr. Dhingra went back as Deputy Director of Industries, the department was entirely separated. This is clear from Annexure I which has been filed along with the counter affidavit, which is a copy of the letter sent by the Government to the Director of Industries, Kanpur and a cpy of which had been sent to the Principal. The subject to which this letter related was 'Conferring the Powers of a Head of Department on the Principal, Harcourt Butler, Technological Institute, Kanpur.' The number of this Notification is 2537 (ED) / XVIII-D-208 (ED)-58. That G. O. clearly says that:-

'With effect from the date of issue of these orders, the Principal, Harcourt Butler Technological Institute, Kanpur, is Head of a Department, for purposes of the Rules in the Financial Hand-book Volumes I and II, Parts II-III, Volumes III and V Part I, in respect of all matters connected with the administration of the Harcourt Butler Technological Institute Kanpur, The Principal will henceforth deal direct with Government in all mat-ters concerning the Institute.'

The Director of Industries was, therefore, directed to make over all the records relating to the subjects mentioned above to the Principal, Harcourt: Butler Technological Institute who was thereafter to deal direct with the Government in all matters concerning the Institute.

17. Thus from the above letter it is clear that from that date onwards the Director of Industries had no control in any manner over the Harcourt Butler Technological Institute and that there was no one who could do anything an the matter. It was only the Principal who had been declared as the Head of that Department. As regards the specific provisions for appointment another notification No. 1635 (ED) / XVIII-D-208 (ED)-58 dated 4-5-59 was issued which was in the following terms:-

'In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and in supersession of all existing rules and orders on the subject the Governor of Uttar Pradesh is pleased to order that the Principal Harcourt Butler Technological Institute, Kanpur, shall with effect from the date of issue of this notification, be the appointing authority in respect of all non-gazetted and inferior posts in the Harcourt Butler Technological Institute, Kanpur.' A copy of this order was forwarded to the Principal Harcourt Butler Technological Institute with the remark that those orders were subject to the provisions of Clause (1) of Article 311 of the Constitution of India. Otherwise he would have full disciplinary control over those Government servants in respect of whom he has now been declared the appointing authority. The original order of suspension was passed by the Director directing the Principal to suspend the petitioner, and that order was dated the 9th April 1959. At that stage it appears there appeared to be some ambiguity in the matter in mind of the Principal and, therefore, it was not clear as to who was to take action. Even after the issue of this letter dated May 4, 1959, the Principal wanted clarification about the effect of this notification and there had been some correspondence on this matter which is not on the file. The reply which has been received by the Principal in relation to the present petitioner is Annexure 9 to the counter affidavit and it is dated July 24, 1959. The correspondence actually had started soon after 9-4-59 when the Director of Industries had directed the Principal to suspend the petitioner. Therefore Annexure 9 which is a copy of D. O. No. 4022 ED/XVIII-D-217 (ED)/59 is as follows:- 'I am directed to refer to the correspondence resting with your D. O. letter No. 2946/2-48 dated 20-3-1959 and to say that consequent upon your having been declared appointing authority in respecf of all non-gazetted posts of the Harcourt Butler Technological Institute, you are competent to take disciplinary proceedings against such staff also, as were appointed by the Director of Industries Uttar Pradesh. Accordingly, you can take action against the stenographer, who Was appointed by the Director of Industries.'

18. So far as this letter and the notification go, it is clear that there had been authority vested in the Principal of the Technological Institute to take disciplinary action. But this order of the Government has been challenged by learned counsel for the petitioner On several grounds. First, it was contended that it could not be retrospective and the Government was not entitled to make that order effective also against the employees who had been formerly appointed by the Director of Industries, and for this purpose reliance has been placed by learned counsel for the petitioner on certain decisions including Balakdas Vithoba v. Asst Security Officer, S. E. Rly., Bilaspur : AIR1960MP183 ; Ramchandra Gopalrao v. Deputy Inspector-General of Police : (1958)IILLJ414MP ; Somasundaram v. State of Madras, (S) AIR 1956 Mad 419; Mahadev Prasad Roy v. S. N. Chatterjee, AIR 1954 Pat 285; Sobhagmal v. State. and North West Frontier Province v. Suraj Narain Anand. . The questions that have been discussed in the above authorities are entirely different from, the present one for there was existing authority still in those departments who could take action and if the Government by notification had appointed another subordinate authority as the appointing authority, the matter would have stood on a different footing, i. e., if the Director of Industries was still the controlling authority and the head of the department, and the Institute was under the Director of Industries and then the Government had issued the order that henceforth for those employees who had been appointed by the Director of Industries the Principal of the Institute would be the appointing and dismissing authority then the authorities cited may have had some application.

Hut since the facts in the present case are entirely different I do not propose to deal with all these cases in detail.

19. In cases where either an employee has been transferred from one department to the other, or one department itself has been transferred to the other or a new head of the department is created, this principle will not apply. For example, an employee who was working in the Education Department is transferred to the Judicial Department, formerly he may have been appointed by the Director of Education, but for all purposes when an employee is transferred, to the Judicial Department it would be the Chief Justice or the Judicial Secretary who would take action and not the Education Secretary or the Director of Education. Similarly if a Department was at one time under one officer but at sonic time later it was transferred to another head then at that stage it is the head of the department to which, the employee has been transferred alone who would be entitled to take action and the department from which he has gone away will have nothing to do with him any longer in future. In the present case the Director of Industries has now absolutely no concern with this Institute. How could then he ask the Principal, who is not subordinate to him, to take any disciplinary action or send any report to him? The only authority now to issue any directions is the State Government and no one else when the Principal has been declared to be the head of the department.

20. Learned counsel for the petitioner has urged that it is no concern of his if a new department has been, created and it may be that he may be now not entitled to dismissal at all, because the Principal is not bound by the orders of the Director of Industries and the Director of Industries alone could dismiss him and if that protection has been given by the Constitution the petitioner is entitled to it. I am unable to agree with this contention. Every statute and law has to be interpreted in a reasonable and proper manner and unreasonable interpretations cannot be put on any article of the Constitution.

21. The only reasonable and proper interpretation is that after a sub-department is made as the head department then the head of that department would be the appointing authority. In my opinion therefore at the present moment there is no other person who can deal with the case of the petitioner except the Principal of the Hareourt Butler Technological Institute.

22. The next contention urged by learned counsel for the petitioner is that there has been a similar case in Rajasthan where before the merger . a certain person bad been appointed by the Jaipur Government. After the merger into the Rajasthan Government, the employee was being dismissed by the Commissioner of Customs. The plea taken by the petitioner in that case was that since be had been appointed by the Jaipur Government which has been merged into Rajasthan Government it would be the Rajasthan Government which alone could dismiss him and no authority subordinate to the Rajasthan Government could dismiss him. The case has been dealt with in . referred to above, and Hon. Wanchoo, C. J. (as he then was) held.:

'What Article 311(1) provides is that the authority dismissing should 'not be subordinate in rank to that by which the appointment was made. The intention seems to be that the authority dismissing should be coordinate in rank to the authority appointing, and not that in the absence of direct subordination any authority could dismiss even though the authority appointing might be a higher authority in rank. The dismissing authority should be at least coordinate in rank with the appointing authority, and should not be subordinate in rank. Thus if a person is appointed by a Head of one department and he is transferred to another department, he can only be dismissed or removed by the Head of the other department.'

On this principle it was held that after the merger the head of the department was the Commissioner and therefore he could dismiss him even though, initially he had been appointed by the State Government of Jaipur yet after the transfer the head of the department will get that power.

23. The next contention: urged by learned counsel for the petitioner was that even though it may be that the appointment was made first by the Deputy Director and after the transfer it could be done by the Principal, but the Principal of the Institute would be a subordinate authority and therefore it would violate directly Article 311 of the Constitution. In order to see the position : 50 far as Dr. Dhingra is concerned, when he had made the appointment he was only an officiating Deputy Director and his pay was only Rs. 600/-odd in 1951, as is apparent from the Civil List of that year. Over him in that very department were the Director of Industries, the Additional Director of Industries and the Deputy Director of Indus-tries. He was by no stretch of language either the head or even the second or the third head of the department. He was very much junior in grade in his own department. Even the present permanent Director of Industries is drawing Rs. 1300/- only. The present position of Dr. Dhingra in the cadre of Directors of Industries is 8th in rank. He is at present Joint Director of Industries and above him there are, besides the Director of Industries the Additional Director of Industries and five other Addl, Directors of Industries, and in seniority he ranks 8th in the cadre. On the other hand, Dr. H. Trivedi who is the Principal of the Hareourt Butler Technological Institute and is the head of the department is drawing Rs. 2000/- Both from the point of view of position as well as from the point of view of pay it is apparent that the position of Dr. Dhingra who had appointed the petitioner is far lower in rank than and subordinate to that of Dr. H. Trivedi. Any action taken by Dr. H. Trivedi now could not be said as having been taken by a subordinate of Dr. Dhingra. In Mahesh Prasad v. State of Utter Pradesh : 1955CriLJ249 their Lordships of the Supreme Court had to consider a similar situation. In that, case the appointment of the petitioner was made by the Divisional Personnel Officer of the East Indian Railway. The sanction for the prosecution was obtained instead of from the Personnel Officer, East Indian Railway, from the Superintendent, Power, and it was said that the sanction was not a fair sanction, because it had not been obtained from the appointing authority but from one who, in any event, was a subordinate authority. Their Lordships referring to Article 311 of the Constitution and to Rule 1705 (c) of the Railway Establishment Code, Vol. I, (1951) Edn. came to the conclusion :

'These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It appears to us to be enough that the removing authority is of the same rank or grade. In the present case it does riot appear into which particular branch of the department, the appellant was taken, in the first instance in 1944, under Ex. F but it is in the evidence of P. W. 4 the Head clerk of the office of the Divisional Superintendent, that the office of the Running Shed Foreman in which the appellant was a clerk in 1951 was directly under the Superintendent Power, He was obviously the most appropriate officer to grant the sanction, provided he was of a rank not less than the Divisional Personnel Officer.'

Therefore, as observed by their Lordships of the Supreme Court it is not the very same officer who should take proceedings for dismissal. He can be an officer either equal or higher in rank and he need not be his immediate superior officer.

24. As has been observed by me, Dr. Dhingra who had appointed the petitioner, neither in rank nor as the head of the department nor in pay can be said to have been in any way superior in rank or higher in rank than Dr. Trivedi. In order to see as to who was higher in rank their Lordships had referred to the Classification List of the East Indian Railway where the pays of different officers had been given. They came to the conclusion, that sanction by the Divisional Personnel Officer as well as Superintendent Power were both correct as both could be treated of the same rank, Here, if that decision is applied, definitely Dr. Dhingra is far inferior in rank than Dr. Trivedi. This authority fully supports the proposition as to what has to happen in case a person is transferred from one department to the other, and who becomes the authority for appointment as well as for taking disciplinary proceedings?

25. The cases relied upon by learned counsel for the petitioner are not at all applicable to the facts of the case, because none of them relates to a case where one department has been transferred to the other. They are only where in the same department sometimes one officer and sometimes another officer has been appointed as appointing authority and in that case it can very well be said that if the appointing authority is still in the same department he alone can take disciplinary action.

26. It was next contended that the order which had appointed Dr. Trivedi as the head of the department giving the power as appointing authority does not give the power of dismissal and he, therefore, was not the dismissing authority. Article 311 of the Constitution does not speak ot the dismissing authority but it only says that no servant shall be dismissed or removed by any authority subordinate to that by which he was appointed, which means that by virtue of Article 311(1) the appointing authority gets the power of dismissal. I have yet to see an order where any authority ia vested with dismissing power. It is only the appointing power which is conferred, that by itself implies the power of dismissal, removal or of taking disciplinary proceedings. By virtue of Article 311 as I have said the appointing authority always assumes jurisdication to punish. If the appointing authority takes an action and removes him then no objection can be taken, under Article 311(1).

27. Learned counsel for the petitioner had urged that the Inquiring Committee should not have enquired the matter. It is only the punishing authority directly who should make the enquiry. That would be an impossible position. It may be a different matter where bodies are constituted specially for the purpose to consider those matters. Most of the higher appointments in the State are made by the Governor end in the Union they are made by the President. It is the Presi--dent of India or the Governor of the State who is entitled to punish good many servants. If enquiries were to be made always by the President of India or by the Governor direct and not by an enquiry committee it would almost be impossible to hold an enquiry by those officers. It would also be a great hardship to the person against whom proceedings have been taken. For if that person against whom enquiry is to be made resides in a different district from the headquarters of the President Or the Governor, he will every time have to come on the different dates of the hearing of his case, and, therefore, for the sake of convenience departmental rules have been framed that enquiry committee would be constituted. They will be better suited, because they would be acquainted with the technicalities of the department and can give better judgment. Among the rules provided for such enquiry there is Rule 16 which lays down the procedure to be observed in inflicting the punishment.

There are different stages:

(1) when there is a complaint received against an employee, departmental investigation is made so that formal disciplinary proceedings may be taken;

(2) as soon as it is decided after making departmental investigation that formal proceedings have to be taken, charge will be framed in writing and copy of those charges shall be given to the person against whom action is to be taken;

(3) as soon as preliminary departmental enquiry starts, it is open to his superior to suspend him. After notice the accused is given an Opportunity of meeting those charges. He would then be supplied with copies of the documents or the evidence which is proposed to be used against him. If he desires to lead oral evidence or to cross-examine the witnesses on the basis of whose statement the charges have been framed, he will be given opportunity;

(4) after the enquiry has been completed the officer conducting the enquiry shall prepare a record of the proceedings, including sufficient re-cord of the evidence and a statement of his findings and the grounds thereof; The officer conducting the enquiry may also, separately from those proceedings make his own recommendation regarding punishment to be imposed on the charged Government servant. This clearly shows that the enquiring body in contemplation is different from the punishment authority;

(5) the enquiring officer, as I have already mentioned, then would submit a report and the punishing authority on receipt of it and after the examination of the report arrive at provisional conclusion in regard to the penalty to be imposed;

(6) the punishing authority shall send a copy to the charged officer excluding recommendation, if any. Then the punishing authority will decide as to what punishment is to be given and another opportunity will be given to the person charged to show cause as to why that punishment should not be inflicted. At that stage also it is open to the charged officer to make his submission;

(7) as has been held by their Lordships of the Supreme Court and by other Courts that if once oral hearing has been allowed then at the second stage oral hearing may not be allowed.

(8) after the charged Government servant's explanation has been received the punishing authority shall take final decision in the case and pass orders accordingly. So far as the last stage is concerned, it has riot yet arrived. All the other stages have been completed and there I do not find any irregularity or illegality or want of jurisdiction on account of which it could be said that any of the orders which have been passed was bad.

28. Learned counsel for the petitioner has relied, so far as this case is concerned, on Anne-xure which gives authority to the Principal and which has appointed the Principal as the appointing authority. It was contended that there is a proviso added and by that proviso, he had no authority of dismissal of a servant, who had not been appointed by him. As I read the proviso I do not think that learned counsel's contention can be sustained. What the proviso saya is that:

''These orders are subject to the provisions of Clause (1) of Article 311 of the Constitution of India. Otherwise he will have full disciplinary control over those Government servants is respect of which he has been declared the appointing authority'

Learned counsel proposes to read that portion of the letter meaning that he has been declared ^ the appointing authority in future and it relates only to future appointments. That is not so. So far as application of Article 311 is concerned, whether this had been mentioned, in the letter or not, the appointment will always be subject to it. No order or even an Act of the Parliament or Legislature could take away that right. Therefore, when it is mentioned that the orders are subject to the provisions of Clause (1) of Article 311 it says nothing except that those provisions will be applicable. Those provisions give a right of being dismissed only by an authority which is not subordinate to the appointing authority. All those limitations will continue with the Principal also after he had been declared the appointing authority over all the non-gazetted and inferior posts. When the explanation used the words 'of whom he has now been declared the appointing authority' it meant that 'all the non-gazetted servants and inferior posts', as he has been made the appointing authority of all the non-gazetted and inferior posts. Therefore, this proviso also does not in any way help the petitioner. I need not go into the question, because on merits I do not think there can be any interference whether the proceedings before the enquiring officer are judicial, quasi judicial or of administrative nature.

29. Another argument of learned counsel for the petitioner was that after the order of the Principal, who has formed as appears from his order, an opinion adverse to the petitioner, he had disqualified himself and now cannot inflict punishment. When an authority has to award punishment, it has got to form an opinion then pass the final order of punishment. The first opinion formed is the final opinion about the guilt of the accused. The second opinion which he will form would be about the quantum, of punishment which he wishes to award and at the second stage there is no question of the consideration whether the petitioner was guilty or not and, therefore, the papers could not have been laid before any other person but the person, who is the punishing authority and this also appears to be the intention of Article 311(1) when it has been provided that the punishing authority shall give two opportunities to the charged person. There has been allegation of bias against practically everybody in the petition. It is generally made when an incompetent person has to face an enquiry. He seems to be dissatisfied with everybody. But that does not in any way mean, that there has been bias in the mind of the officers. Why should the Principal, who is far above a petty stenographer, bear grudge against the petitioner? Why should the members of the Inquiring Committee, who are people of status and position in the Government, and who do not actually directly belong to this Institute, have any grudge against the petitioner?

30. Similarly allegations have been made against the Administrative Officer, but I do not find anything on the record which can substantiate the allegations of the petitioner that they bear grudge in any way against the petitioner. Under the circumstances that also could not be a ground for interference.

31. Learned counsel for the petitioner has urged that since proceedings are being taken by the Principal without jurisdiction, a writ of prohibition should issue against the Principal, and all the proceedings taken so far should be quashed. It may be true that the proceedings are of a quasi judicial nature but in cases of quasi judicial proceedings generally a writ of prohibition docs not issue. It is issued only against a Court or a Judicial body which though may not be called a Court but has been created specifically under a statute. The law has been laid down in Halsbury's Laws of England, third edition, volume II at pages 114, 115; it is to the following effect:

'Prohibition lies against a judge of an inferior court where the judge is Interested in the suit or is otherwise biased; it is also granted where a judge of the court (not merely by way of correcting a slip in the drawing up of an order) alters or rescinds his judgment, or, on an application for a new trial in the country enters judgment for, the applicant.'

Inferior court has been defined in paragraph 225 of the same volume thus :

'225. Inferior courts. Prohibition issues to restrain all inferior courts whether those courts are -temporal, ecclesiastical, meritime or military, civil or criminal whenever such courts, take cognizance of matters outside their jurisdiction, and lies so long as such courts act, or purport to act, in the exercise of judicial functions in the course of judicial proceedings; but prohibition does not lie against a body which though called a court, is not and does not claim to be a Court or judicial tribunal in any legal sense, nor does a proceeding become judicial merely by means of the party complained of being invited to attend to give explanation. Where an indictment lies, prohibition is. not a remedy by which a public body can by restrained from the commission o a nuisance.'

32. Even if for the sake of argument it be accepted, though in the present case I do not think, that a writ of prohibition would lie and though it may be, as I have said, as a matter of right, yet firstly on merits, and secondly as the defect cannot be said to be a very patent one a writ will not lie as a matter of course. According to Halsbury's Laws of England p. 115 (3rd Edn. Vol. II) a writ of prohibition lies only :

'Where the defect of jurisdiction is apparent on the face of the proceedings and the application is made by a party, the order goes as of right and is not a matter of discretion.

***

But where the defect is not so. patent, then even though the application is made by a party, the Court has a discretion and may decline to interfere, by reason of the conduct of the party.'

Thus even though, there be some kind of judicial jurisdiction this Court will not issue a writ of prohibition. In the present case I have definitely held that the proceedings are valid and legal proceedings. But even if there be a doubt, it cannot be said that the error is so patent and apparent that a writ could be claimed as a matter of right. Up-till this stage it is only enquiry which has been done and enquiry may have been done by any person. It is only the final order of dismissal which can be challenged which has not yet been passed. So far as the stage of enquiry is concerned, in my opinion, no objection could have been taken, because the inquiring authority need not be the punishing authority.

33. Taking all the facts and circumstances of the case into consideration, I think that this is not a case in which this Court can grant any relief to the petitioner. The petition is accordingly dismissed with costs which I assess at Rs. 100.


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