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Ram Naresh Lall Ram Yash Lall Vs. the State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 218 of 1963
Judge
Reported inAIR1967All384; (1968)IILLJ586All
ActsUttar Pradesh Punishment and Appeal Rules for Subordinate Services Rules - Rules 1A and 4; Constitution of India - Articles 226 and 311; Civil Services (Classification, Control and Appeal) Rules - Rule 55
AppellantRam Naresh Lall Ram Yash Lall
RespondentThe State of Uttar Pradesh and ors.
Appellant AdvocateS.M. Fakhruz Zaman, Adv.
Respondent AdvocateJunior Standing Counsel for Respondent Nos. 1 to 3
DispositionPetition allowed
Excerpt:
service - power of development commissioner - rule 1-a of punishment and appeal rules for sub ordinate services u.p. - petitioner appointed as temporary account supervisor in agriculture department by director of agriculture - transfer on deputation to office of development commissioner - petitioner found guilty of taking bribe - development commissioner suspended him - petitioner could be suspended only by his appointing authority as he had lien on the permanent post in his parent department. - - later on an enquiry was made by the assistant development commissioner as a result of which his dismissal was recommended and he was ultimately dismissed. (1963)illj239sc wherein it has been laid down that if the high court is satisfied that if some but not all of the findings of the tribunal.....orderg.d. sahgal, j.1. the petitioner was appointed as a temporary accounts supervisor in the agriculture department in the scale of rs. 60-4-80-4-100 by the director of agriculture on the 26th of march, 1947, and was posted under the deputy director of agriculture, eastern circle. pratapgarh, where he joined his duties on the 1st of april, 1947, thereafter by an order dated the 15th of february, 1949, he was transferred to the agricultural engineering department as a temporary assistant accountant by the director of agriculture and was posted under the agricultural engineer (tractors), lucknow, of which post he took charge on the 19th of february, 1949. by an order of the chief agricultural engineer, kanpur dated the 9th of january, 1952 the petitioner was provisionally confirmed on a.....
Judgment:
ORDER

G.D. Sahgal, J.

1. The petitioner was appointed as a temporary Accounts Supervisor in the Agriculture Department in the scale of Rs. 60-4-80-4-100 by the Director of Agriculture on the 26th of March, 1947, and was posted under the Deputy Director of Agriculture, Eastern Circle. Pratapgarh, where he joined his duties on the 1st of April, 1947, thereafter by an order dated the 15th of February, 1949, he was transferred to the Agricultural Engineering Department as a temporary Assistant Accountant by the Director of Agriculture and was posted under the Agricultural Engineer (Tractors), Lucknow, of which post he took charge on the 19th of February, 1949. By an order of the Chief Agricultural Engineer, Kanpur dated the 9th of January, 1952 the petitioner was provisionally confirmed on a permanent pensionable post of Accounts Supervisor with effect from the 11th of July, 1949, by the order dated the 9th of January, 1952. The Agricultural Engineering Department was abolished on the 24th of August, 1952, and was merged in the Irrigation Department known as the Agricultural Engineering Circle of the Irrigation Department being in charge of a Superintending Engineer.

On the 29th of June, 1954, under orders of the Agricultural Engineer (Tractors), Lucknow, under whom the petitioner was serving, he was transferred on deputation as an Assistant Accountant to the office of the Development Commissioner, Uttar Pradesh, respondent No. 2, in the Planning Department He actually took charge of this post on the 30th of July, 1954 (not on the 23rd of July, 1954, as stated in paragraph 5 of the petition). On the 9th of September, 1955, while he was on deputation, he was confirmed by an order of the Superintending Engineer, Agricultural Engineering Circle which later on came to be designated as Irrigation Workshop Circle. Kanpur, on a permanent pensionable post of Junior Clerk sanctioned in the Irrigation Department by a certain G. O. dated the 20th of April, 1955, in the scale of Rs. 60-4-100-5-120 with effect from the 1st of April, 1955. Respondent No. 2 under whom he was working on deputation, by an order dated the 31st of May, 1957, assigned to him the temporary post of the Senior Clerk in the scale of Rs. 80-6-110-6-140-10-200-20-240 in the Minor Irrigation Section of his office with effect from the 1st of April, 1957

Respondent No. 1 the State of Uttar Pradesh, issued a G. O. on the 21st of May, 1958, directing respondent No 2, the Development Commissioner, to give the staff on deputation from the Irrigation Department and working under him for the execution of minor Irrigation schemes the option to elect their permanent transfer in the Planning Department or to go back to their parent department, namely, the Irrigation Department. He was further directed to issue a fresh order of appointment in respect of the staff who might elect to remain in the Planning Department In compliance with that order the Deputy Development Commissioner (Technical) by a circular dated the 7th of July, 1958, addressed to all Additional District Magistrates (Planning) and District Planning Officers and the officers and the staff posted at Headquarters including the petitioner, invited their option and requested them to fill up and sign the Form of Election attached to the said circular letter A copy of the circular letter is to be found in annexure III and a form is attached to it. The form shows that the option that was to be exercised by the officials on deputation was whether they elected to be transferred in the Planning Set-Up and re-appointed by the Development Commissioner or to go back to their parent department. The petitioner then exercised his optionand elected to be transferred to the Planning department and to he reappointed by respondent No. 2, but respondent No. 2 did not issue any order re-appointing him in the Planning Department. He accordingly claims that he continued to hold lien on his permanent post in the Irrigation Workshop Circle of the Irrigation Department.

Later on, however, the petitioner was transferred by respondent No. 2 by fin order dated the 7th of April, i960, issued under the signature of the Assistant Development Commissioner (Headquarters) from Minor Irrigation Section to Establishment-II Section in the office of respondent No. 2. Certain complaints then seem to have been made against the petitioner with the result that by an order purporting to have been made by the Development Commissioner, respondent No. 2, dated the 18th of August, 1960, he was suspended. The office order itself has been signed by one Sri S. Dikshit, Additional Development Commissioner. Uttar Pradesh, though it mentions that the Development Commissioner has ordered the suspension of the petitioner and one R.R. Gupta. A copy of that order was forwarded to him under the signature of the Deputy Development Commissioner who signed for the Additional Development Commissioner and in the endorsement it was mentioned that he was placed under suspension with immediate effect. The order and the endorsement are to he found in annexure V. Thereafter a charge-sheet was served on the petitioner which is dated the 3rd of September, 1960, contained in annexure VI The petitioner filed a written statement to the charge-sheet.

The enquiry then started in connection with that charge, the Enquiry Officer being the Assistant Development Commissioner, on the 28th of November, 1960. But on the 25th of November, 1960, the petitioner made an application to the Enquiry Officer to the effect that as one of the witnesses was the Deputy Development Commissioner (Administration), he may be given permission to cross-examine him through a lawyer on account of the petitioner's diffidence as a subordinate to cross examine his superior officer. This application of his was rejected, the order as to which was communicated to him on the 28th of November, 1960, though the contention of the petitioner which is denied is that the orders themselves were passed on that date. The case of the respondents, however, is that the orders were passed on the 25th of November, 1960, but their communication on the 28th of November, 1960 is not denied. On the 28th of November, 1960, on the dismissal of his application, he was asked to cross-examine the Deputy Development Commissioner (Administration), but he could not undertake the cross examination. He made another application on the 29th of November, 1960, for permission to cross-examine the Deputy Development Commissioner (Administration) through a lawyer, but that too was rejected.

Then a third application was moved on the 2nd of December, 1960, but that also received the same fate. He was then served a notice on the 23rd of February, 1961, to show cause and a copy of the enquiry report dated the 20th of January, 1961 also was served on him. The show-cause notice was to the effect as to why he should not he dismissed from service. He gave a reply to that notice, but on the 29th of July, 1961, an order was passed by respondent no. 2 which was served on the petitioner on the 31st of July, 1961, that he was dismissed from service. This order was passed by the Development Commissioner. The petitioner then made an appeal to the Government, respondent No. 1, and through the office memo dated the 19th of January, 1963, which he received on the 22nd of January, 1963, he was informed that his appeal had been rejected by the Government. No copy of the original order of the Government was served on him prior to his filing of the writ petition which he did on the 30th of April, 1963, but he did receive a copy later on the order of the Government dismissing his appeal.

It is in these circumstances that this writ petition has been filed praying for the issue of a writ of mandamus or certiorari commanding the respondents to produce the order of suspension dated the 18th of August, 1960 (annexure V), the order of dismissal dated the 29th of July, 1961 (annexure XIII) and the order of rejection of the appeal communicated through annexure XV and the same being quashed. He has also prayed for his re-in-statement to the post of Senior Clerk. He has further prayed that the respondents may he directed to pay him his entire salary with allowances which he would have drawn from the date of his suspension to the dale of his reinstatement. There is a general prayer also in the writ petition that such other directions, orders or writs may he issued as the Court may deem just and proper.

2. A number of points has been raised by the petitioner on the basis of which he has challenged the various orders that have born passed against him.

3. The first point that he has raised is that even though he was working under respondent No. 2, the Development Commissioner under the Planning Department, he continued to be an employee of the Irrigation Department in the Irrigation Workshop Circle and as such he could not be dismissed by the Development Commissioner, his appointing authority being the Superintending Engineer of the Irrigation Workshop Circle. He also says that he could not even be suspended by the Development Commissioner.

4. The second point that has been raised is that he has been denied a 'reasonable opportunity' by his application for cross-examination of the Deputy Development Commissioner (Administration) through a lawyer being rejected.

5. The third point raised by him is that the only witness examined against him was one R.R. Gupta who was examined at the preliminary enquiry. He was, no doubt, examinedat the departmental enquiry, but at the departmental enquiry he said nothing against the petitioner with the result that his earlier statement was relied upon, although it was not put to him during the course of the departmental enquiry. His statement, therefore, which was made during the course of the preliminary enquiry and which was used during the course of the departmental enquiry was inadmissible.

6. The fourth point urged by him is that the preliminary enquiry before the framing of the charge against him having been held by the Deputy Development Commissioner, the departmental enquiry could not be entrusted to the Assistant Development Commissioner who was subordinate to him and who was bound to uphold the findings arrived at by his superior officer at the preliminary enquiry.

7. The fifth point that has been raised on behalf of the petitioner is that there were two charges against the petitioner. Of these, the first charge related to bribery. This charge, according to the petitioner, was vague. There was no indictment therein that the bribe was received by the petitioner in order to use his influence with others in the office to get R.B. Gupta transferred from Jhansi to some other district in Western U. P. The charge was to the effect that he had taken this money in order to put an office report proposing the transfer of Sri R.K. Gupta from Jhansi to Aligarh which report he actually put up. The finding of the enquiring officer, however, was that this money had been received by him in order to use his influence in the office to get such orders passed. It is thus said that no opportunity was given to the petitioner to meet the new charge which was framed against him nor was if brought to his notice.

8. The sixth point urged on behalf of the petitioner is that respondent No. 1, the State of Uttar Pradesh, did not consider the various points of law and facts raised by the petitioner in his appeal and rejected the appeal without giving any reasons which vitiates that order.

9. I now proceed to consider these points one by one.

10. As to the first point, the petitioner was provisionally confirmed on the 9th of January, 1952, on a permanent pensionable post of Accounts Supervisor in the Irrigation Department with effect from the 11th of July, 1949, by the Chief Agricultural Engineer, Kanpur. This Agricultural Engineering Department was abolished and was merged in the Irrigation Department under the name of the Agricultural Engineering Circle under the charge of a Superintending Engineer He was working under the Agricultural Engineer (Tractors), Lucknow, and he was transferred on deputation under the Development Commissioner as Assistant Accountant in the Planning Department. The Government directed the Development Commissioner to give to the staff working under him on deputation from the Irrigalion Department the option to elect their permanent transfer in the Planning Department or to go back to their parent department and in case an election was made by any member of the staff, to issue fresh order of appointment in respect of such a person. The petitioner gave his option for his transfer to the Planning Department and to be re-appointed by respondent No. 2, but no order of reappointment was passed by respondent no. 2, as appears from paragraph 10 of the affidavit which has not been denied.

If is in these circumstances, it is urged, that the petitioner continued to hold lien on his post in the Irrigation Department. It may here be mentioned that in the meantime the petitioner had been confirmed on a permanent pensionable post of a Junior Clerk in the Workshop Circle of the Irrigation-Department by the order of the Superintending Engineer, Agricultural Engineering Circle by an order dated the 9th of September, 1955, communicated by endorsement dated the 10th of September 1955 (vide annexure 1). The petitioner was thus a permanent employee of the Workshop Circle of the Irrigation Department and continued to remain as such all along even though he was working on deputation with the Development Commissioner in the Planning Department. In the Planning Department he was assigned the temporary post of the Senior Clerk in a higher scale, as has already been pointed out above, in the Minor Irrigation Section with effect from the 1st of April, 1957. When though he may have worked on a higher scale under orders of the Development Commissioner in the Planning Department, he still continued to be a permanent employee of the Irrigation Department being a permanent Junior Clerk in the Workshop Circle. It was on the 18th of August, 1960, that he was suspended by an order of the Development Commissioner, respondent No. 2, the office order, however, itself being signed by the Assistant Development Commissioner. Later on an enquiry was made by the Assistant Development Commissioner as a result of which his dismissal was recommended and he was ultimately dismissed. The question is as to whether the Development Commissioner could suspend him and also dismiss him.

11. Under Rule 9 (13). Chapter II. Part II, Volume II of the Financial Hand Boob, 'lien' means the title of a government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively The petitioner thus had a lien on the post to which he was permanently appointed in the Agriculture Department. Under the Punishment and Appeal Rules for Subordinate Services which rules apply to the petitioner the Government of Uttar Pradesh, among other things, have delegated the power to inflict the punishment of dismissal from the civil service of the State which ordinarily disqualifies from future employment on members of the subordinate services, to every officer who is competent under existing orders to appoint them. Under Rule 1-A of those rules a Government Servant against whose conduct an enquiry is contemplated or is proceeding, may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority. Under the rules, therefore, the authority who could suspend the petitioner pending enquiry against him was the appointing authority and it was the appointing authority who was competent to pass the order of dismissal also. The question is whether the Development Commissioner under whose orders the petitioner has been dismissed by annexure 13 was his appointing authority.

12. As has already been pointed out above, the petitioner was only on deputation with the Development Commissioner in the Planning Department, his lien being in the Irrigation Department as he held a permanent post there as Junior Clerk to which he was con firmed on the 9th of September, 1955 The lien of the petitioner, therefore, to the post in the Irrigation Department continued. The appointing authority to that post was the Superintending Engineer Agricultural Engineering Circle. Kanpur and not the Development Commissioner. The Development Commissioner appointed the petitioner only to a temporary post, though the petitioner continued to have his lien on the permanent post of a Junior Clerk in the Workshop Circle of the Irrigation Department. It is, therefore, the appointing authority of the post over which he held lien which had not been suspended who could either suspend him or dismiss him. The Development Commissioner could at the most ask him to go back to his post and leave the post under him but he could neither suspend nor dismiss him in view of the rules above referred to as he was not his appointing authority There bas thus been a violation of the rules known as the Punishment and Appeal Rules for Subordinate Services framed by the Government, vide Notification No. 2627/11-264 dated August 3, 1932, inasmuch as the orders of suspension and the dismissal of the petitioner were passed by an authority who was not the appointing authority of the petitioner. The first point raised on behalf of the petitioner therefore has to be accepted.

13. I now come to the second point The petitioner prayed for an opportunity to cross-examine the Deputy Development Commissioner through a lawyer which prayer of his was rejected by the enquiring officer, the Assistant Development Commissioner. The application was first made on the 25th of November, 1960, and when it was rejected on the 28th of November, it was again made on the 29th of November and when it was dismissed on the 1st of December 1960, a fresh application was again made on the 2nd of December, 1960, but that too was dismissed on the 5th of December, 1960 The case of the petitioner is that this opportunity ought to have been given to him and the rejection of his request has resulted in his being denied a reasonable opportunity within the meaning of thatterm under Article 311 of the Constitution and also adequate opportunity under Rule 56 of the Civil Services (Classification, Control and Appeal) Rules which rules apply in the case of the petitioner under Rule 5 of the Punishment and Appeal Rules for Subordinate Services, Reliance is placed for this proposition on Dr. K. Subba Rao v. State of Hyderabad, AIR 1957 Andh Pra 414: Nripendra Nath Bagchi v. Chief Secy. Govt. of West Bengal. : (1961)IILLJ312Cal and Ramesh Chandra Verma v. R. D. Verma. : AIR1958All532 .

14. In AIR 1957 Andhra Pra 414 it has been laid down that rightly or wrongly when the public servant is under a reasonable apprehension that the enquiry is the result of a preconceived plan and a concerted action on the part of his department, his request for professional help is certainly justified and the enquiry officer should give him that opportunity His refusal to accede to that simple request certainly deprives the public servant of an opportunity to defend himself. In that case the petitioner wanted to challenge the correctness of the opinion of the Medical Board.

15. In : (1961)IILLJ312Cal (supra) it was laid down that if on the particular facts and complexity of a case, assistance of lawyer is regarded as part of reasonable opportunity, then denial of such an opportunity is violation alike of the constitutional protection under Article 311(2) and the principles of natural justice. In that case as many as 30 prosecution witnesses, 13 defence witnesses and 2 court witnesses were examined by the Tribunal. It was observed therein.

'Can it be said on such facts that the assistance of a lawyer even to take notes which is all that the petitioner claims where so much of deposition had to be noted marshalled and sifted, was not a part of reasonable opportunity? Having regard to the volume of depositions, number of witnesses and documents. I have come to the conclusion on the facts of this case, the refusal to allow the petitioner the assistance of a lawyer even for the purpose of making notes was denial of 'adequate opportunity' under Rule 55 and 'reasonable opportunity' under Article 311(2) of the Constitution.'

It was thus to be seen that in that case on account of the voluminous evidence that was produced an opportunity for a lawyer being engaged for the purpose of taking notes was held to be a reasonable opportunity.

16. In : AIR1958All532 (supra) it was remarked that the question whether in a particular case the civil servant was given an opportunity to show cause against the charges or has not been given is a question of fact depending upon the circumstances of that case. Although as a broad proposition of law it cannot be disputed that in a disciplinary enquiry the rules of procedure for a court need not be observed and the rules of evidence need not be strictly followed, yet in deciding the question of sufficient opportunity all the facts of die case have to be examined.

17. There is an authority to the contrary also of the Madras High Court in T. Rajagopala Ayyangar v. Collector of Salt Revenue : AIR1937Mad785 wherein it has been laid down that the Government servant in an enquiry under Rule 55 has no right to appear by counsel and having no such right, no case for mandamus to the respondent to admit the appellant to have the assistance of counsel at the enquiry had been made out. The words, 'to be heard in person' in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules were incorporated as indicating that a Government Servant in an enquiry under Rule 55 had no right to appear by counsel. This case, however, has been referred to in : (1961)IILLJ312Cal (supra) wherein it was pointed out that in that case the Court did not have occasion to consider the matter in the light of the Constitution.

18. Even these authorities do not lay down that a Government servant has an absolute and unqualified right to be represented by a lawyer during the course of enquiry They only lay down that there may be circumstances in which the refusal of the enquiry officer to allow the assistance of a lawyer to a charged official may amount to depriving him of 'reasonable opportunity.' In the instant case the only circumstance shown to me as to why it was necessary for assistance of a lawyer being given to the petitioner was that the petitioner was only a petty clerk and the person to be cross-examined was the Deputy Development Commissioner. This circumstance, to my mind, is not such that if the counsel was not allowed to represent the petitioner for cross-examining the Deputy Development Commissioner, he has been denied reasonable opportunity of being heard. This point, therefore, has not been made out and is decided against the petitioner.

19. As to the next point, the facts on which this point is based have not been made out in the affidavit filed on behalf of the petitioner, though the grounds on which reliance has been placed have been taken as grounds Nos. 3 and 4. In order that the petitioner could rely on those grounds he ought to have stated them in the affidavit as a fact thus' giving an opportunity to the opposite parties of the fact being rebutted that though R.R. Gupta was examined at the departmental enquiry he gave no statement against the petitioner at that enquiry and that his statement given at the preliminary enquiry was read in evidence against the petitioner without he being examined on that statement at the departmental enquiry. As no such allegation has been made in the affidavit, this point cannot be allowed to be raised

20. The next point taken by the petitioner also is of no force. The Enquiring Officer may be subordinate to the officer who held the preliminary enquiry and framed the charge-sheet against the petitioner, but the preliminary enquiry is held on the purpose as to whether a prima facie case has been made out against the delinquent Government servant or not and it is only after a prima facie case has been made out that a charge is framed. The case is actually investigated into during the departmental enquiry when the delinquent Government servant is given an opportunity to be heard and to contest the charge. Simply because the Enquiring Officer was in a position subordinate to the officer who framed the charge, it cannot be said that he would be influenced by the officer who framed the charged and will sit with a bias. The Assistant Development Commissioner is after all not a petty officer. He is a senior and responsible officer. There is no reason why in this case it should be held that because the charge was framed by an officer superior to him in rank, the result of the enquiry should be held to, be foregone. This point also therefore, is decided against the petitioner

21. We now come to the next point. One of the charges against the petitioner was that between October to December, 1959, he accepted a sum of Rs. 100A as bribe to help Sri R.R. Gupta, Mechanical Inspector. Jhansi in getting himself transferred from Jhansi to some other district in Western U. P. and in pursuance of this objective put up an office note dated the 20th of June, 1960, proposing the transfer of Sri R.R. Gupta from Jhansi to Aligarh. It is thus said that be was guilty of acting dishonestly and indulging in corruption. The finding as to this, however, is that although the petitioner was not dealing with the establishment of M. I. Section till April 1960, he could have helped Sri Gupta to get him transferred by speaking to his other friends or colleagues in the M. I. Section. It appears that in fact be was not working in that section in October to December, 1959, during which period he is said to have accepted a sum of Rs. 100/- He was transferred, according to the finding, to do the establishment work in April, 1960 and it was found that he put up an office note suggesting the transfer of Shri R.R. Gupta from Jhansi to Aligarh. If the petitioner was to be held guilty of taking a sum of Rs. 100/ as bribe for using his influence with his colleagues and friends to procure the transfer of Sri Gupta then there ought to have been a specific charge as to it against him

In the state of the charge which was actually framed, the petitioner could not anticipate during the course of the enquiry that he would be held guilty of having accepted the amount to use his influence when the specific charge against him was that be accepted the amount to put up an office note proposing the transfer of Sri Gupta If he had been told before-hand that the charge against him for receiving a sum of Rs. 100/- as bribe was for using his influence with his friends and colleagues, he could have taken the plea that he did not use any such influence in that he did not have any friends with whom he coulduse such influence. But when the charge was not framed to that effect, there has been a violation of the principles of natural justice for the charge being held against him to be proved while there was no opportunity given to him to meet that charge. It has thus been established that so far as the charge of bribery was concerned, there has been a violation of the principles of natural justice inasmuch as the charge which was actually framed against him was not the same for which he has been held to be guilty.

22. There was, however, another charge against the petitioner and as to the finding on it there is no assertion on the part of the petitioner that it suffers from any such infirmity. The question arises as to whether simply because in connection with one of the charges there has been a violation of the principles of natural justice, the entire order is vitiated. In that connection my attention was drawn to a case of the Supreme Court in State of Orissa v. Vidyabhushan Mohapatra. : (1963)ILLJ239SC wherein it has been laid down that if the High Court is satisfied that if some but not all of the findings of the Tribunal were 'unassailable', the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty. The ground was that the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore, if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the Enquiry Officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.

23. As to this authority it was pointed out on behalf of the petitioner that the present case is distinguishable. In that case there was only one charge against the petitioner, i.e. of habitually receiving illegal gratification while in this case there are two distinct and separate charges against the petitioner. There was a charge of bribery and there was a charge of suppressing certain papers. In that case even if some of the instances were held to be unassailable, there was no occasion for the case bring sent back to the Governor to review the penalty But in the instant case the nature of the two distinct charges is such that if the first charge had not been proved, the punishing authority might not have given the punishment of dismissal as has been done in this case. For the purposes of this case, however, it is not necessary to give a finding as to how far the instant case is distinguishable from the case on which reliance has been placed on behalf of the State, for even. If this point is decided against the petitioner, the petition has to be allowed on other ground, namely, ground No. 1 regarding which I have already stated above.

24. The next point urged on behalf of the petitioner is that the order passed in appeal by opposite party No. 1 does not give any reasons as to the decision taken in appeal and it is said that on that ground the order is vitiated. My attention is drawn to Rule 4 at page 5 of the Punishment and Appeal Rules for Subordinate Services wherein it has been provided that the appellate authority shall consider whether the facts on which the order was based have been established; whether the facts established afford ground for taking action: and whether the penalty is excessive, adequate or inadequate; and after such consideration the appellate authority shall pass such order as it thinks proper. It was pointed out that if there are no reasons given in the order of the appellate authority, how can it be said whether these directions have been followed by the appellate authority in coming to its decision. This rule as would appear, lays down as to what the appellate authority has to consider before passing an order in appeal. It does not lay down that the appellate authority shall reduce the considerations which have prevailed with it in writing giving reasons therefor.

Even though the order of the appellate authority may not contain any reasons for the conclusion to which it has arrived, there would be a presumption that these directions were followed by the appellate authority. The rules do not prescribe that the order should be a speaking order. The absence of any reasons given in the decision taken by the appellate authority does not vitiate the findings of the appellate authority and there has been no violation of the rule on which reliance has been placed by the petitioner.

25. The result of the above discussion is that the order of dismissal of the petitioner has been passed by an authority who was not his appointing authority and as such is not a valid order. The order of suspension also was not a valid order.

26. The petition is accordingly allowed and the order of suspension dated the 18th of August, 1960 (contained in annexure V), the order of dismissal dated the 29th of July, 1961 (contained in annexure XIII) and the order of the Government dated the 22nd of September, 1962 (contained in annexure I to the rejoinder-affidavit) are quashed. The respondent shall bear the costs of the petitioner


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