G. Mehrotra, J.
1. This is a petition under Article 226 of the Constitution praying for a writ of certiorari quashing the orders of the Chief Engineer, Local Self-Government, Engineering Department, dated 2-11-1955 and the order of the State Government dated 16-11-1956 refecting the appeal of the petitioner. Further a writ of mandamus directing the parties to treat the petitioner in service with all the advantages which the petitioner would have been entitled to in the normal course of events with effect from the date of his appointment.
2. This case has a long history and earlier facts will be referred to at its proper place. Briefly the facts, however, are that up to 12-2-1950 the petitioner was working as work-agent in the Local Self-Government Engineering Department, Uttar Pradesh, in the Kanpur Division and thereafter as an Electrical and Mechanical Overseer. The Chief Engineer Sri R. D. Verma by his order dated 17-12-1952 terminated the services of the petitioner. An appeal to the State Government against that order was rejected in April 1953.
A petition under Article 226 of the Constitution was filed in this Court against the two orders referred to above which was numbered as Writ No. 636 of 1953 challenging the validity of those orders and the petition was allowed by a Bench of this Court on 24-11-1953. On 1-12-1953 the petitioner reported for duty but on 23-12-1953 he was suspended from service and was asked to give an explanation to the previous charges made against him in the year 1952. A reply was given by the petitioner.
He was again dismissed from service by the order of the Chief Engineer dated 20-5-1954 with effect from 12-5--1954. Another petition, was filed in this Court under Article 226 of the Constitution which was numbered as Writ No. 883 of 1954. This was also allowed by this Court on 10-1-1955. On 14-1-1955 the petitioner again reported for duty but he was again served with an order dated 7-2-1955 under the signature of the Chief Engineer suspending him from service and he was asked to submit his written explanation to those previous charges framed against him in 1952.
A reply was sent by the petitioner to those charges. According to the petitioner three charges out of the four served on him were the old charges and the fourth was a new one. On 21-3-1955 the petitioner received a letter from the Chief Engineer asking him to furnish within seven days the complete list of witnesses with their correct names and addresses whom the petitioner desired to be summoned for his defence. The petitioner prayed for time but no extension of time was granted to him.
As the petitioner apprehended that he will not have a fair trial he came up to this Court again under Article 226 of the Constitution by means of a writ petition which was numbered as Writ No. 506 of 1955. That was rejected on 6-5-1956 at the preliminary hearing. In that petition there was a prayer for a writ of prohibition directing the opposite parties not to proceed with the enquiry on the ground of prejudice. Thereafter by an order dated 20-7-1955 Sri H. P. Chose, the Personal Assistant to the Chief Engineer was appointed to conduct the enquiry into the charges levelled against the petitioner.
The hearing of the case was fixed for 26-7-1955 onwards and the petitioner was asked to attend the office of the Chief Engineer in that connection regularly. The petitioner gave his written explanation. Two provisional replies were submitted to the charge sheets dated 7-2-1955 under protest as according to the petitioner he was not given sufficient opportunity to inspect the records and had not been provided with copies of documents. After enquiry the petitioner received a show-cause notice to which he replied and by an order dated 2-11-1955 the petitioner was dismissed.
An appeal was filed by the petitioner against that order to the State Government which was rejected by the Government by its order dated 16-11-1956 and the present petition was thereafter filed in this Court on 7-1-1957 and was admitted.
3. From the statement of facts given above it will appear that the petitioner had approached this Court thrice before for relief under Article 226 of the Constitution. Twice against an order of dismissal and the last time during the pendency of the enquiry for a writ of prohibition directing the enquiring officer not to proceed further with the enquiry. The charges substantially were the same as those served on the petitioner in the year 1952. Three of the charges arc common and the fourth charge was added when the present enquiry was started.
4. A number of points have been raised by the counsel for the petitioner and a wide field has been covered in the arguments by the counsel for the parties. The first point raised by the petitioner is that in the absence of any direction issued by this Court in the earlier petitions to the effect that further enquiry be held in the matter the opposite parties have no right to hold fresh enquiry or to continue the enquiry against the petitioner merely because the order of dismissal passed at an earlier stage was quashed by this Court. The next point urged is that the appointing authority was biased and consequently his decision was without jurisdiction.
The third contention raised is that the petitioner could not effectively cross-examine any witness in the absence of any examination-in-chief. No examination-in-chief was recorded in this case. The witnesses who were referred to in the charge-sheet as the witnesses on whom the department relied were produced for the cross-examination on the date of enquiry and the petitioner was asked to cross-examine them. The point raised by the petitioner is that without recording the statements in chief before the petitioner it cannot be said that he was given effective opportunity to cross-examine by merely producing those witnesses for cross-examination by the petitioner.
It was fourthly contended that the petitioner was not given any reasonable opportunity to show cause against the order of his dismissal. Lastly it was contended that there was no evidence on which the dismissal order of the petitioner could be maintained. There were other minor points raised which in substance attack the proper conduct of the enquiry and the reasonable opportunity given to the petitioner.
5. A counter-affidavit has been filed in this case on behalf of the opposite parties and all the points urged by the petitioner have been controverted.
6. The Standing Counsel very strenuously contended three points as preliminary objections to the maintainability of the petition. He canvassed that every civil servant under Article 310 of the Constitution holds his post during the pleasure of the President or the Governor as the case may be. If he holds office under the Union Government he holds it during the pleasure of the President and if he is employed in connection with the State work he holds office during the pleasure of the Governor.
The pleasure of the President or the Governor is only subject to the provisions of Article 311. If there has been any violation of the guarantee given to an employee under Article 311 the employee gets a right of action and the order in breach of such a guarantee will be set aside by this Court, but the pleasure of the President or the Governor cannot be curtailed by any rules framed by the President or the Governor in the exercise of the power under Article 309. Such rules are mere directions issued to the subordinate authorities for their guidance and any breach of such rules as such cannot be enforced by means of an action in a Court or by means of a writ under Article 226 of the Constitution. The only guarantee given to the civil servants is embodied in Article 311.
If it is found from the circumstances of a particular case that the petitioner had been given a reasonable opportunity to explain his conduct and to show cause against the action proposed and if the order has been passed by an authority not subordinate to the appointing authority the order must be upheld and this Court will not set aside that order on the ground that there has been any violation of any provisions of the rules laying down the procedure of enquiry for the guidance of the subordinate officers when conducting such an enquiry. If rules of evidence are not observed during the course of enquiry that by itself will not vitiate the entire enquiry.
7. It was also urged by the Standing Counsel that this Court in the exercise of its powers under Article 226 of the Constitution will not issue a writ of certiorari only on the ground that there is no evidence. Whether there is evidence or not is a matter left to the exclusive jurisdiction of the tribunal which enquires into the matter and it cannot be examined by this Court under Article 226 of the Constitution whether there is any evidence in support of the finding of the enquiring officer or not.
8. The first contention of the petitioner in my opinion has no force. A writ of certiorari has the effect of removing the order from the way of a party. When the order passed by the subordinate tribunal is quashed it is removed from the way of a party in enforcing his rights. It cannot prohibit the tribunal or authority to proceed further in the matter according to law. It was contended by Mr. Khare that in the absence of any direction in the previous order if the party is allowed to proceed afresh with the enquiry then once the order of dismissal has been set aside it may result in the: abuse of the power and this Court in the exercise of its powers under Article 226 of the Constitution can prevent such an abuse of power. It is argued that in cases where the order of a subordinate tribunal has been set aside on the ground that there is no evidence if power is given to the authority or to the tribunal to deal with the matter again it will be open to the party to fill in the lacuna in the evidence and produce fresh evidence.
This abuse can only be avoided if it is held, that in the absence of any direction in the order of this Court no fresh proceedings can be started once the final order in a proceeding has been set aside. The effect of the order passed by this Court under Article 226 of the Constitution is to quash the final order passed in the proceeding; but that does not take away the power of the tribunal to re-hear the matter in the absence of any direction to the contrary in the order passed by this Court. A writ of certiorari is a high prerogative writ, but it enables a superior Court, a Court of record, to correct the orders and decisions of inferior Courts or tribunals discharging judicial functions.
If an order is made without jurisdiction or if an inferior Court or tribunal refuses to exercise jurisdiction vested in it in law or if there is error apparent on the record a writ of certiorari corrects the errors and jurisdiction in law of inferior Courts or tribunals. But the superior Court does not act as a Court of appeal and it cannot substitute its own order on the merits of the case for the order which it quashes of the inferior Court or tribunal. When the order of the inferior tribunal is quashed the tribunal is left at large to pass any proper order in the light of the decision of this Court, but if the order of the tribunal is maintained by the High Court it becomes final. The jurisdiction therefore exercised by the High Court is not that of an appellate Court.
It cannot substitute its own order on merits to that of the inferior tribunal but can only quash the order on the ground that there is mistake of jurisdiction or error of law. If this is the true scope of the power exercised by this Court under Article 226 of the Constitution it cannot be said that the jurisdiction of the inferior tribunal ceases and it cannot pass the necessary orders in a certain proceeding before it merely because there is no direction by the superior Court when setting aside the final order passed by the tribunal. Reference, in this connection may be made to the case of M. D. Thakur v. The Labour Appellate Tribunal (1955) 57 Bom LR 1148: (AIR 1957 Bom 46) (A).
9. I shall now take up the preliminary points raised by the Standing Counsel. In short the contentions raised by him are that Article 310 of the Constitution provides that every civil servant holds his post subject to the pleasure of the President or the Governor as the case may be. The pleasure of the President or the Governor is only subject to the guarantee provided under Article 311 of the Constitution. If there has been any breach of any guarantee given under Article 311 to an employee it gives a right of action to the employee in a Court of law. But no other restriction can be placed on the powers of the President or the Governor as the case may be to terminate the services of an employee and any rules made under Article 309 of the Constitution cannot have the effect of curtailing the pleasure of the President or the. Governor under Article 310 of the Constitution.
The proposition that the only limitation placed on the exercise of the pleasure of the President or the Governor under the Constitution is the guarantee given to an employee under Article 311 of the Constitution cannot be disputed. Article 310 has in express terms provided that the pleasure is subject to the express provisions of the Constitution. There cannot therefore be any other restriction on the pleasure of the President or the Governor. The question, however, to be considered is if the President or the Governor has made certain rules laying down the manner in which his pleasure is to be exercised does any breach of such a procedure entitle an employee to come to this Court for a mandamus directing the authority concerned to carry out the provisions of such a rule? The contention raised by the Standing Counsel is that the breach of any such rules cannot be made a ground of action by an employee. Such rules are essentially in the nature of instructions issued by the President or the Governor for the guidance of the authorities through whom the pleasure is exercised. Reliance was placed on the case of Jagannath Prasad v. State of U. P., AIR 1954 All 629 (B). Particular reference was made to the following passage at page 632 of the report:
'The Governor's power to dismiss at pleasure is subject only to the express provisions of the Constitution. Power is conferred upon the Governor by Article 309 to make rules regulating the conditions of service of civil servants of the State Government, but such power is subject, 'inter alia', to the provisions of Article 310. No rules can be made which fetter or restrict his power to dismiss at pleasure. We find ourselves in agreement, if we may say so with respect, with the views of Dixit, J., on this point in 'Mrs. Lilawati v. State of Madhya Bharat, AIR 1952 Madh-B 105 (C). The Disciplinary Rules were made prior to the commencement of the Constitution, and assuming they were validly made they can, in our opinion, have no greater effect or stand on a higher footing than rules made by the Governor under Article 309. These rules except Rule 10 (11) are in our opinion administrative rules, and the contravention of their provisions will not confer upon the petitioner a cause of action'.
That was a case where a police officer was dismissed under Section 7 of the Police Act. Proceedings under the U. P. Disciplinary Proceedings (Administrative Branch) Rules, 1947 were taken. The Tribunal made certain recommendation to the Governor and the Governor passed an order of dismissal which was challenged by means of a writ petition in this Court and in that connection these observations were made. In that case this Court was not called upon to decide whether the rules framed under Article 309 were only administrative rules so as not to give any right of action when a breach of such a rule was committed. There may be cases where an authority is empowered to exercise the power of dismissal under the express provisions of the Act and certain rules may be framed which lay down, the procedure to be followed by such an authority before exercising its powers of dismissal.
In that class of cases there is no difficulty in holding that if there is any breach on the part of the authority to follow the procedure laid down in the rules the order becomes invalid and can be quashed by a writ of certiorari by this Court. It is equally clear that no fetters can be placed on the President's or the Governor's exercise of pleasure under Article 310 except the guarantee provided under Article 311 and if the President or the Governor himself purports to exercise that power the only ground on which the exercise of such a power can be challenged is the failure to observe the provisions of Article 311 of the Constitution.
The difficulty, however, arises in cases where the power of dismissal has been exercised by some subordinate authority under the provisions of certain rules framed by the Governor himself. In this class of cases the question may be whether the exercise of such a power can be quashed by this Court if the authority has failed to observe the rules of procedure provided under the rules. It has been conceded by the Standing Counsel that if on the facts of a particular case it can be said that the power has not been exercised for or on behalf of the Governor or otherwise it cannot be regarded as the exercise of the pleasure by the Governor, it may be liable to be set aside on the ground that the authority has failed to comply with the provisions of the rules. But if it can be treated to be an exercise of the pleasure, by the Governor no fetters can be placed on that power even under the rules framed by the Governor himself and under those circumstances it can only be said that such rules are only administrative rules for the guidance of the inferior authorities and do not give any right of action to an employee. Reliance was placed in this connection on the case of AIR. 1952 Madh-B 105 (C), The reference was made to the following observations at page 108 of the report:
'Now as regards the tenure of office of persons serving the Union or a State, Article 310 of the Constitution says that except as expressly provided by the Constitution, every person, who is a member ofthe Civil Service of the Union and every person who is a member of the Civil Service of a State holds office during the pleasure of the President or of the Governor or the Raj Prarnukh as the case may be Article 311 prescribes the conditions which must be fulfilled before a person who is a member of the: Civil Service is removed or dismissed or reduced in rank. It provides (1) that a member of the Civil Service shall not be dismissed or removed by an authority subordinate to that by which he was appointed and (2) that he shall not 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 .........It is thus clear that persons employed, ......... in the service of the State, are engaged on the express statutory condition that they hold their employment at the pleasure of the President or the Governor or the Raj Pramukh, as the case may be, and that they can be dismissed, removed or reduced in rank at the pleasure of these authorities, subject to the limitation imposed by Article 311. It must be noted that Article 311 does not, in any way, alter or affect the principle embodied in Article 310 that a Government servant holds office during the pleasure of the President or the Governor or the Raj Pramukh as the case may be. It only imposes certain statutory obligations before dismissal or removal or reduction in rank is effected. It is the breach of these statutory obligations that affords a cause of action :to a person adversely affected, to complain that his employment has been wrongly terminated.
The extent of the rights of a Government servant in the matter of tenure of his office must be gathered from a reading of Articles 310 and 311 of the Constitution. He cannot have any rights apart from these provisions of the Constitution''.
As regards certain rules on which reliance was placed in that case it was observed that :
'These Rules which prescribed the conditions of the service, that is to say, the circumstances and the manner in which the employment of a Civil Servant can be terminated, though framed by the Raj Pramukh under the power conferred by the proviso to Article 309 of the Constitution, do not in any way abridge or control the power of the President or Governor or the Raj Pramukh to dismiss at pleasure a Civil Servant'.
To the same effect is the case of Prem Biharilal v. State of Madhya Bharat, AIR 1954 Madh-B 49 (D).
10. The examination of all the authorities cited by the Standing Counsel on this point reveals that the pleasure of the President or the Governor or the Raj Pramukh under Article 310 is only subject to the express limitation provided for under Article 311 of the Constitution. Any rules framed relating to the tenure of office cannot limit the exercise of the pleasure by the President or the Governor or the Raj Pramukh as the case may be. If the rules are such as deal with the conditions of service and not tenure of employment such rules may have statutory force & any violation of such rules may be enforceable by means of a writ petition, but the rules which deal with the tenure of service and have got the effect of limiting the pleasure of the President or the Governor or the Raj Pramukh as the case may be they can only be regarded as administrative rules containing directions for the subordinate authorities and any contravention of these rules may not confer upon the petitioner a cause of action. The question does not, however, arise in the present case. What the petitioner has contended is that there has been a violation of the guarantee given to the civil servant under Article 311. That the petitioner is a civil servant and holding a post under the Governor is not denied and that he is entitled to the protection under Article 311 cannot be seriously contested. The-Standing Counsel has no doubt urged the point that the petitioner was not entitled to the protection under Article 311, but I shall deal with that objection at a later stage. At present it is sufficient to point out that the case put forward by the petitioner is that the guarantee given to him under Article 311 has been violated in this case inasmuch as he had not been given reasonable opportunity to show cause against the action proposed. In this connection another argument may be considered.
11. Article 311 of the Constitution expressly gives protection to a civil servant in two ways: firstly, that a civil employee cannot be dismissed, removed or reduced in rank unless he has been given, an opportunity to show cause against the action proposed and secondly that he cannot be dismissed by an authority subordinate to the appointing authority. Notice is given to an employee to show cause against the action proposed, after the stage when the enquiring officer or the Governor comes to a finding that the charges against the employee have been prima facie established. Article 311 in express terms does not provide for any notice to show cause against the charges.
But the opportunity to show cause does not, mean only giving an opportunity to offer an explanation. The contents of the words 'show cause'' are wider than giving of a particular opportunity to give a written explanation and in this view of the matter unless the opportunity given at an earlier stags is regarded as sufficient compliance with the provisions of Article 311 merely an opportunity given to offer an explanation against the proposed action cannot be regarded as sufficient compliance with Article 311 and in every ease the civil servant will be entitled to a fresh opportunity to show cause against the proposed action. The reasonable way therefore of interpreting Article 311 is that the disciplinary proceedings against a civil servant should be taken as a whole and it is necessary that an opportunity should be given to a civil servant to show cause at one or the other of the two stages. Thus it is necessary that reasonable opportunity should be given to a civil servant to show cause against the charges made against him, and that is also a protection afforded to a civil servant under Article 311 of the Constitution.
12. The main question therefore to be considered in the present case is whether any reasonable opportunity was given to the petitioner to show cause against the charges. The question whether in a particular case such an opportunity has or has not been given is a question of fact depending upon the circumstances of each case and the circumstances of this case will thus have to be examined in detail' in order to come to the conclusion whether such an opportunity has or has not been given in the present case. It was also in this connection urged by the Standing Counsel that the contents of a reasonable opportunity do not require an enquiry in accordance with the procedure laid down in the Civil Procedure Code and that the enquiring officer is not to act as a Court and the rules of evidence need not be followed.
As a broad proposition, of law 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 cannot be disputed, but all the facts of the case will have to be examined. The breach of the rules of evidence which may be nothing but rules of natural justice may be relevant in connection with the, question as to whether sufficient opportunity was or was not given to a petitioner in a particular case to show cause against the charges.
13. The other preliminary point raised by the Standing Counsel was that this Court cannot issue a writ of certiorari on the ground that there was no evidence before the inferior tribunal on which the order could be passed. Mr. Khare, who appears for the petitioner, challenges the correctness of this proposition and the contention raised by him is that a writ of certiorari can be issued under Article 226 of the Constitution not only on the ground that there was excess of jurisdiction vested in the inferior tribunal, hut also on the ground that there is a manifest error in the decision apparent on the face of the record of the case. If the decision of the inferior tribunal is based on no evidence then there is a manifest error, an error apparent on the lace of the record and makes such an order amenable to a writ of certiorari by this Court. In this connection it was also contended by Mr. Khare that an order passed by the tribunal or an officer without evidence can be regarded as an arbitrary, wanton and mala fide order and can be set aside by this Court under Article 226 of the Constitution. The Standing Counsel strongly relied in support of his contention on the case of R. v. Nat Bell Liquors, Ltd., (1022) 2 AC 128 (E), The head-note of the case lays down that;
'A conviction by a magistrate for a non-indictable offence cannot be quashed on certiorari on the ground that the depositions show that there was no evidence to support the conviction, or that the magistrate has misdirected himself in considering the evidence; absence of evidence does not affect the jurisdiction of the magistrate to try tile charge''.
The case has exhaustively dealt with the procedure on certiorari. All the English and Canadian cases have been reviewed. It is, however, not necessary to give in detail the facts of the, case. It is clear from a reading of the case that this case is an authority for the proposition that the want of evidence cannot be regarded as want of jurisdiction. A writ of certiorari can issue not only on the ground of want of jurisdiction but also on manifest error of law, and this case is no authority for the proposition that the decision based on no evidence cannot be treated to be a manifest error. At page 156 of the report it is observed as follows:
'That the superior Court should be bound by the record is inherent in the nature of the case. Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.'
Another passage at page 152 of the report is as follows :-
'To say that there is no jurisdiction to convict without evidence is the same thing as saying that there is jurisdiction if the decision is right, and none if it is wrong; or that jurisdiction at the outset of a case continues so long as the decision stands, but that, if it is set aside, the real conclusion is that there never was any jurisdiction at all.'
This passage indicates that their Lordships of the Privy Council were only considering the effect of total absence of evidence as a question of jurisdiction and that a decision based on no evidence can be regarded as manifestly erroneous was not considered by their Lordships in this case at all.
14. Reliance was placed by the counsel for the petitioner on the case of R. v. Birmingham Compensation Appeal Tribunal, (1952)2 All E. R. 100(F) in support of the proposition that the writ of certiorari can issue on the ground that there is no evidence on which the decision could be based. Reliance is placed on the following observations at page 101 of the report :-
'For the purpose of the case it was immaterial to determine whether 'customary practice' within para 8 (1) (i) meant something confined to the relationship between the workman and his own employers or whether it involved larger considerations of what was customary in a particular trade since, whether the wider or narrower meaning was contemplated, a single case of a manager receiving payment by way of compensation on discharge was not what the regulations contemplated by 'customary practice', and there was no evidence in this case of an 'expectation under customary practice to the payment of compensation in the event of discharge.' Accordingly, as an error of law appeared on the face of the award the certiorari would issue to remove the order into the High Court to be quashed.'
The next case referred to was Babu Ram Sharma v. State of Uttar Pradesh, AIR 1953 All 641 (G). At page 643 of the report it was observed as follows :-
'The result is, therefore, that the Regional Transport Authority and the State Transport Tribunal have arrived at a finding of fact which is not only unsupported by any evidence but is contrary to such evidence as there is; and to come to a finding of fact in the absence of any evidence amounts, in my view, to an error of law if not to a violation of the principles of natural justice. An error of law apparent on the face of the proceedings is recognised in England as good ground for the issue of an order of certiorari; 'R. v. Northumberland Compensation Appeal Tribunal. Ex. Parte Shaw' (1952)1 All E. R. 122 (H) and although our attention bad not been drawn to any case in India in which the same view has expressly been taken it would appear to be in accordance with the pronouncement of the Supreme Court in Veerappa Pillai v. Raman and Raman Ltd., AIR 1952, SC 192 at P, 195 (I).'
Since this decision there have been cases of the Supreme Court where the decision in R. v. Northumber- land Compensation Appeal Tribunal. Ex. parte Shaw (H) has been accepted as the law applicable in India.
15. The next case relied upon by the counsel for the petitioner is the unreported decision of this Court in Md. Ibrahim v. The State of U. P. Special Appeal No. 342 of 1955 (J). That was a case in which a police officer was dismissed on an enquiry under Section 7 of the Police Act. It was held by the Bench that there was no evidence against the petitioner and the order of dismissal was set aside. It is argued by the Standing Counsel that this case was based on the interpretation put on the provisions of the Police Regulations laying down the procedure for the enquiry. It was held in this case that the evidence produced in the case was not legal as contemplated by the provisions of Regulation 490 of the Police Regulations. To my mind the result of the examination of these; authorities is that this Court in a writ, no doubt, will not sit as a Court of appeal and substitute its own decision to the decision of the inferior tribunal on the ground that in its opinion the evidence was not sufficient to make out a charge; but if on the face of the record it is apparent that the trial Court has come to a decision on no evidence it will be a manifest error of law amenable to a writ of certiorari by this Court. The order of the inferior tribunal in cases where it can be regarded as speaking order will be examined by this Court and if it appears from the perusal of the order itself that reliance has been placed on the evidence which cannot be regarded as evidence at all establishing a charge it is open to this Court to set aside the order on the ground of manifest error of law. Each case will depend upon its own circumstances.
16. The next point to be considered is what is the scope of the contents of the words 'show cause' in Article 311 of the Constitution. In the case of Rama Shanker Srivastava v. The Divisional Superintendent, Northern Railway, Allahabad, 1956 All L. J. 65: (AIR 1956 All 393) (K) it was observed by a Bench of this Court at P. 68 (of All LJ) : (at P. 394 of AIR) as follows :
'The question is whether at this stage (when notice is issued to the employee to show cause against the proposed action) the petitioner was entitled to claim an enquiry by which the petitioner obviously meant that he should be given an opportunity to disprove the charges against him by adducing his evidence in that behalf ................ That the petitioner has a right to claim an enquiry even at the stage when a notice is served on him for the purpose of complying with the provisions of Article 311 of the Constitution can no longer be doubted. Article 311 of the Constitution lays down for cases such as the case of the petitioner that no such person 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 argard to him. The expression 'reasonable opportunity of showing cause'' was interpreted by a Division Bench of this court in the case of Ravi Pratap Narain Singh v. State of Uttar Pradesh, AIR 1952 All. 99 (L) in which the view expressed in an. earlier Bench Case Avadhesh Pratap Singh v. 'State of Uttar, 1952 All. LJ 342; (AIR 1952 A) 63) (M) was followed and approved. The expression 'showing Cause' was held to connote 'an opportunity of leading evidence in support of one's allegation and in controverting such allegations as are made against one.
The opportunity to show cause therefore does not imply only an opportunity to explain. It must be a reasonable opportunity and substantial opportunity to the petitioner to show cause against the charges. As has been pointed out by me earlier it will be a question of fact to be determined in each case whether it can be said that a reasonable opportunity has been given or not. No hard and fast test can be laid down by which it can be determined whether a reasonable opportunity has or has not been given. The ratio which should govern the class of cases to which Article 311(2) of the Constitution in terms may not apply has been well laid down in Arthur John Spackman v. Plumstead District Board of Works, (1885) 10 AC 220 (N). In this case Lord Selbourne at P. 240 observed as follows :-
'No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word, but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give a notice when he will proceed with the matter, and he must act honestly & impartially and not under the dictation of some other person or persons to whom the authority is not given by law.
There must be no malversation of any land. There would be no decision within meaning of the statute if there were anything of that sort done contrary to the essence of justice. But it appears to me to be perfectly consistent with reason, that the statute may have intentionally omitted to provide for form because this is a matter not of a kind requiring form, not of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such considerations as in his judgment ought to be brought before him. When that is done, from the nature of the case, no further proceeding as to summoning the parties, or as to doing anything of that kind which a judgment might have to do, is necessary.'
The Standing Counsel has relied upon the case of Choudhury v. The Union of India, (S) AIR 1956 Cal. 662 (O). In that case it was rightly held that what is reasonable opportunity has not been defined in the Constitution or the General Clauses Act, but the words have acquired a legal meaning and it cannot be left to the vagaries of each individual, since that would introduce a thousand shades of reasonableness, which cannot be permitted. It was observed at page 665 of the report that the word ''reasonable' must therefore mean according to the rules of natural justice, which are rules of law. Joseph John v. State of Travancore-Cochin, 1955 SCA 85 ( (S) AIR 1955 SC 160) (P). What are 'Rules of natural justice' have not been completely or absolutely defined.
But some principles have been laid down, which are widely accepted. Two of these principles are generally applicable to all departmental enquiries, namely, (a) a person must be told clearly and specifically of the offences with which it is intended to charge him, and (b) he must not be condemned unheard. Board of Education v. Rice, 1911 AC 179 (Q); Local Government Board v. Aldridge, 1915 AC 120 (R); Staford v. Minister of Health, (1946) 1 K.B. 621 (S); Dipa Pal v. University of Calcutta AIR 1952 Cal 594 (T); K. Ramayya v. The Madras State, AIR 1951 Mad 1003 (U), K. L. Chatterjee v. Union of India, 58 Cal WN 492: (AIR 1955 Cal 166) (V); Shiv Nandan Sinha v. State of West Bengal, 59 Cal W. N. 794 (W). Bearing these two principles in mind, the procedure to be followed becomes easy of comprehension. A departmental enquiry consists of four main stages, viz., (a) charges, (b) investigation of the charge, (c) finding, punishment and (d) appeal. A departmental enquiry is not conducted with the rigidity of a judicial trial. Hence, the charge which is to be framed need not be framed with the precision of a charge in a criminal proceeding, But it must not be vague or so general as to make it impossible, of being traversed. The test is as to whether the charge conveys to the delinquent, the exact nature of the alleged offence, in a way that would enable him to meet the charge. In order to frame a charge, it is permissible to have a preliminary enquiry. As regards the investigation of the charge, a departmental enquiry is not a judicial proceeding and the law and procedure applicable to judicial proceedings are not applicable.
The strict rules of the law of evidence are not to be applied. But this does not mean that the proceedings can, be held in an arbitrary manner. The rules of natural justice must still be applied. Ordinarily there must be a personal hearing. If a person is entitled to show cause, he is entitled to a hearing, and if he is entitled to a hearing, he must have the opportunity of being personally heard, of calling his own evidence and cross-examining any witness called by the prosecution. There is no bar upon, the authority entitled to punish, to delegate the enquiry to subordinate officials, But the person dealing with enquiry at any stage is in the position of a judge, and the rules of natural justice demands that he should not himself be personally interested in the case.
The provisions of the Indian Evidence Act are not strictly applicable, so it is not relevant to consider if facts have been proved according to law. Where witnesses are called, their entire evidence must be taken in the presence of the delinquent, who must be permitted to cross-examine all such witnesses. It is not permissible to examine witnesses in the absence of the delinquent or take ex parte statements and then ask the delinquent to cross-examine: State of Bombay v. Gajanan Mahadeo Badley, AIR 1954 Bom 351 (X).
17. Having discussed the authorities cited by the parties on this point it is now necessary to examine the circumstances of the present case in order to ascertain whether in, the present case the petitioner was or was not given a reasonable opportunity to show cause against the charges.
18. The facts which resulted in the dismissal of the petitioner briefly are that the petitioner was first dismissed by the Chief Engineer by his order dated 19-12-1952 with effect from 7-1-1953. A petition was filed in this Court challenging the order which was allowed on 24-11-1953. By an order dated 30-1-1954 the Chief Engineer re-started proceedings against the petitioner and ordered his suspension. He was again dismissed with effect from the date of suspension, namely, 7-1-1953, and he challenged the second order of dismissal by another writ petition in this Court which was allowed on 10-1-1955. Fresh proceedings were started, a charge-sheet was served upon the petitioner and the charges which were levelled against him on the 25-3-1952 were brought afresh against him and charge (D) was added. A copy of the charge-sheet was served on the petitioner on 10-2-1955. The petitioner asked for the copies of the documents referred to under each charge and it is stated in the counter-affidavit that they were supplied to him on 23-2-1955. The time for the petitioner to submit his explanation was extended from time to time up to 4-5-1955. Sri Harihar Prasad Ghose was appointed the enquiring officer by the Chief Engineer vide his letter dated 20-7-1955 and fixed 26-7-1955 for the commencement of the enquiry. The proceedings were held before the enquiring officer on the 26th and 27th of July and the 4th, 5th, 18th, 19th, 25th and 26th of August, 1955. On 26-7-1955 the petitioner gave out the names by means of an, application of certain persons who were the complainants according to him. As Sri N. R. Gupta Executive Engineer and Sri S. N. Misra Assistant Engineer, III Division, L. S. G. E. D., Kanpur were present on 26-7-1955 the petitioner was asked to cross-examine them. The cross-examination of Mr. S. N. Misra was continued on 27-7-1955.
19. As regards the witnesses who were examined before the enquiring officer, the petitioner has stated in his affidavit filed in support of the petition in paragraph 20 (iii) that there was no examination-in-chief of these witnesses, nor the witnesses made any statement at all as to what was their story. The petitioner was asked to cross-examine the witnesses in the absence of any examination-in-chief. Similar statement has been made in para. 23(n) of the affidavit. In paragraph 29 of the counter-affidavit it is averred that the enquiring officer considered the evidence under each head of the charges, i.e., which is specified in each charge under the headings 'Evidence which it is proposed to consider in support of the charge''. The persons who had written these letters or made endorsements were called as witnesses. The petitioner put questions to the witnesses. The enquiring officer also put questions to the witnesses and to the petitioner whenever he considered necessary to clarify the issues.
20. The grievance of the petitioner is that the statements of the witnesses were not recorded in his presence by the enquiring officer. The procedure which was in substance adopted by the enquiring officer was that he treated the statements contained in certain letters either written by some of the witnesses or endorsed by than as their statements-in-chief.. A copy of these documents having been supplied to the petitioner earlier the enquiring officer thought that the petitioner had knowledge of the statements contained in those letters and endorsements and the only opportunity which was necessary to give to the petitioner was to permit him to cross-examine these witnesses and it was not necessary to record their statements before the petitioner again. That there were certain letters written by some of the witnesses and some of the witnesses had only made endorsements in those letters is not denied. But the statements of the witnesses which the enquiring officer intended to take into consideration, or did take into consideration when giving his findings were ,not brought on the record. The argument of the Standing Counsel is that the rules of evidence were not necessarily to be followed in such enquiry and even if there were no examination-in-chief recorded by the enquiring officer the petitioner knew what the evidence of these witnesses was and for what purpose they had been called and he fully cross-examined these witnesses. Under these circumstances it cannot be said that he was not given any reasonable opportunity to defend his case.
In the charge-sheet the names of the witnesses and the documents were mentioned on which the department intended to rely in proof of the charges. In what manner these witnesses were going to establish the charge and what in fact was going to be their testimony which would support the charge could not be indicated in the charge-sheet itself. It was not a case where they were only called to prove certain letters which had already been written by them or endorsed by them, but they were witnesses of fact on which the charge depended and unless their statements were brought on the record there could be said to be no evidence in support of the charges. The petitioner was in effect asked to cross-examine in vacuum.
It is true that in the present case the petitioner had already been twice dismissed, the charges had been levelled against him in the year 1952. Three of the charges were repeated and he knew what the grievance of the department against him was, but what each witness was going to state against him could not have been known to him. The formal proof of certain documents written by the witnesses may not have been required but if their statements were to be relied upon by the enquiring officer who was in the position of a judge in support of his findings it was essential that the statements should have been taken in the presence of the petitioner. It was very strenuously urged by the Standing counsel that the fact that the petitioner made a thorough searching cross-examination itself suggests that he was not in any manner prejudiced by the failure to record the statements of the witnesses.
It is true that the long cross-examination has been done in the case; but in the absence of any statements of the witnesses on the record the cross-examination cannot be said to have any relation to the evidence given by the witnesses. The argument in substance is that if the petitioner refused to cross-examine the witnesses he could have legitimately argued that he was prejudiced by not recording the examination-in-chief. But because he had decided to cross-examine the witnesses which can, only be ordered that he agreed to put certain questions to the witnesses he is not entitled to say now that he has been in any manner prejudiced in his defence. It should also be pointed out that the question is not whether the petitioner could make an effective cross-examination but the real question to be determined is whether in the circumstances it can be said that the petitioner was given a reasonable opportunity to defend his case.
21. The following charges were framed against the petitioner on 7-2-1955:
(A) False claim of T. A. for Rs. 12/13/- for the journey said to have been performed from Nagina to Roorkee on 19-7-49 and back from Roorkee to Nagina on 20-7-49.
(B) Demand of illegal gratification from a contractor at Chunar.
(C) Illegal payment made to labourers for loading an engine at Chunar Fort.
(D) Disobedience in complying with the instructions of the Assistant Engineer in connection with taking of measurements of works.
Regarding charge (A) Sri N. R. Gupta, Executive Engineer, III Division, L. S. G. E. D., Kanpur Sri. S. N. Misra, Assistant Engineer, Sri S. L. Verma ex-Work Agent and Sri Ram Bharose Chowkidar were called as witnesses. Regarding charge (B) Sri Lax-man Prasad Pujari contractor, Sri S. K. Cue Super-visor Industrial Training Institute, Allahabad, Ban-dham Ram ex-Chowkidar, Sri N. R. Gupta Executive-Engineer were mentioned as the witnesses in the charge-sheet. Regarding charge (C) Sri S. N. Misra Assistant Engineer, Sri T. K. Mittra Overseer, Sri Bachai Ahir, Sri N. R. Gupta Executive Engineer, Sri T. P. Vishwakarma Overseer, Sri Baij Nath ex-Truck Driver, Sri Lalloo Singh Cleaner, Sri Mansa Ram Steam Engine Driver, Sri R. D. Sahi., Sri Ram Jiyawan and Sri Shyama Charan Dubey were mentioned as witnesses in the charge-sheet. For charge (D) Sri T. K. Mittra Overseer, Shri S. N. Misra Assistant Engineer, Sri C. P. Kaushik, Assistant Engineer and Sri N. R. Gupta Executive Engineer were mentioned as witnesses.
22. On charge No. (A) the finding of the enquiring officer was that the claim of the false T. A. is proved against the petitioner from the following facts :
(1) The statements of Sri Rum Bharose Chowkidar and Sri S. L. Verma, dated 22-7-1949 and 8-8-1949 respectively.
(2) The petitioner never informed Sri S. L. Verma to come down to Nagina to hand ever charge of T. and P. as proved by the statement of Sri S. L. Verma given by him in cross-examination of the proceedings held on 4-8-1955.
(3) The petitioner travelled to Roorkee on his own accord as no permission was accorded by the Executive Engineer.
(4) The unauthorised journey should not have been performed by the petitioner.
(5) The charge of the T. and P. was to be handed over at Nagina by Sri S. L. Verma, hence there was no necessity of the petitioner's proceeding to Roorkee to bring the keys of the Tool Room.
(6) The fact that the night train was chosen by the petitioner to perform the journey which reaches Roorkee at 12 o'clock.
(7) The petitioner should have waited for the return of the Chowkidar who was said to have gone to the market and made known his pre-sence at Roorkee if there be any truth in his statement.
(8) The petitioner should have left instructions of his visit to some responsible person say Chowkidar concerned and not to the mazdoor employed under some other agency found working there.
(9) The petitioner had intimated the Executive Engineer that he should proceed to Roorkee on the 14th but he did not do so till the 19th.
23. Lastly the enquiring officer observed that although the statements of Sri Ram Bharose Chowkidar and Sri S. L. Verma did not give any proof of the petitioner's not visiting Roorkee on the 20th yet from the facts which are mentioned earlier he came to the conclusion that the charge is proved against him as no evidence was on the record or could be produced by Sri R. C. Verma to show that he was at Roorkee on 20-7-1949.
24. Charge (B) is not found established against the petitioner by the enquiring officer.
25. Regarding Charge (C) all the witnesses mentioned in the charge-sheet did not appear. The statements of Sri Mansa Ram has not been fully accepted by the enquiring officer. According to the enquiring officer the statements of other witnesses could not help to prove the charge in full but he relied on the following circumstances in support of his finding that the charge has been established:
(1) That the petitioner should have waited for the approval of the Executive Engineer which he sought telegraphically on 16-4-1951.
(2) The thumb impression of Sri Bachai Ahir indicated on the quotation submitted by the petitioner to the overseer and attached with the voucher No. 3 of the imprest of the overseer and that on the hand receipt differs from the thumb impression taken by Sri T. P. Vishwakarma of Sri Bachai Ahir in the presence of Shyama Charan Dubey a local man.
26. He further held that doing his job in an unauthorised manner also proves that the overseer was very careless in the performance of his duties.
27. Regarding charge (D) tbe enquiring officer accepted the explanation of the petitioner as to the first part of the charge; but he found that the charge of not taking measurements properly of the works actually executed is proved on the cross-examination of Sri C. P. Kaushik Assistant Engineer. The enquiring officer further found that the petitioner did not fully record measurements of extraction of 10'' pipes on the tube well while measurements recorded at page 14, M. B. No. 312 on the 20th March, 1951 by him only recorded 60' against 180' which had to be corrected by the Assistant Engineer Sri Kaushik on the 30th of March 1951. The petitioner objected that this measurement was not mentioned in the charge-sheet. The enquiring officer, however, held that although this particular measurement has not been specifically mentioned in the charge-sheet yet it forms a part of the same measurements referred to in the earlier part of the charge-sheet and could be taken into consideration.
28. From the findings which I have mentioned above it is clear that so far as the charge No. (A) is concerned the enquiring officer has mainly relied upon the statements of the chowkidar and Sri S. L. Verma dated 22nd of July 1949 and the 8th of August, 1949. These statements were not recorded in the presence of the petitioner. When the enquiry was going on in July and August 1955 these witnesses were put up for cross-examination, but no examination-in-chief was recorded. A statement of the witness if that was to be relied upon by the enquiring officer had to be recorded in the presence of the petitioner.
The gravamen of the charge is the false statement made by the petitioner that he visited Roorkee on 20-7-1949 although in fact he went there on the 22nd of July 1949 and charged the T. A. In the absence therefore of any statement to support the fact that the petitioner did not visit Roorkee on 20-7-1949 it cannot be said that there was any evidence to establish this charge against the petitioner. The Standing Counsel strongly relied upon the answers given by Sri S. N. Misra to the questions put by the petitioner in cross-examination. The petitioner asked Sri Misra 'Did you ask anybody else besides myself about the same'. The answer given by Sri Misra was:
'Yes. At Roorkee from the Chowkidar and W/ A on 28-7-49 whether you had been to Roorkee on 20-7-1949. At Nagina, your reply was a sort of confession. Hence, I proceeded to Roorkee for further enquiry on the point and on return journey at Nagina on 29-7-49 I gave you a questionnaire on a slip of paper to be replied to by you in writing in this connection'.
On being further asked by the petitioner whether he informed him on the 29th of July 1949 while handing over the slip that he had made enquiries at Roorkee about the petitioner's absence on the 20th of July 1949 Mr. Misra replies as under ;
'I think, I did; and since I had learnt at Roorkee you had not visited Roorkee on 20-7-49 at all which differs from your confession as made to me on 28-7-49 hence I gave you the questionnaire to explain your absence from Nagina on 20-7-49 and not going to Roorkee on that date'.
These two answers by themselves prove that the confession made by petitioner to him at Nagina was not to the effect that he did not go to Roorkee on 20-7-1949. It cannot therefore be said that this answer by itself establishes the fact that the petitioner did not go to Roorkee on 20-7-1949. Moreover, the enquiring officer, as I have already pointed out, relied upon the statements of the Chowkidar and Sri S. L. Verma made in the absence of the petitioner,
29. As regards charge (CD that while at Chunar he actually paid Rs. 16/- and got the signature of Sri Mansa Ram in the hand receipt disclosing the amount of payment of Rs. 24/- on the same, the petitioner had claimed Rs. 24/- but his claim for Rs. 16/- only was accepted and Rs. 8/- were recovered from him and thereby he acted in a very corrupt and dishonest manner. The petitioner had denied that he had deliberately charged Rs. 24/- although in fact he had paid Rs. 16/- to Bachai Ahir for the work taken. The petitioner in support of his contention has filed the quotation given by Bachai Ahir in which he had said that he wanted Rs. 24/-for the work and a receipt which was signed by him of the payment of Rs. 24/- to Bachai Ahir. This receipt was also signed by Mansa Ram. The statement of Mansa Ram has not been accepted by the enquiring officer.
The department, however, relied upon the statement of Bachai Ahir taken subsequent to the receipt given by him in which he had denied that he had been paid Rs. 24/- by the petitioner. The thumb impression of Bachai Ahir on his statement appeared to be different from the thumb impressions on the documents filed by the petitioner. Sri T. P. Vishwakarma Overseer was examined to prove the fact that he had recorded the statement of Bachai Ahir and had taken his thumb impression. The person who gave his thumb impression and made his statement was identified to be Bachai Ahir by one Shyama Charan Dube. Subsequently it appears that the copy of the statement was sent to an expert and the thumb impression on comparison with the thumb impression of Bachai Ahir on some admitted document it was said by the expert that that was his genuine thumb impression. The petitioner's case was that on the date when this statement is said to have been made by Bachai Ahir, he was dead. It is, however, not necessary for me to go into those facts at all. The petitioner had filed in support of his case two documents which bore the thumb impressions of Bachai Ahir. The statement made by Sri T. P. Vishwakarma of Bachai Ahir was filed on behalf of the department. By proving genuineness of the thumb impression on the statement recorded by Sri Vishwakarma the department is trying to establish that the two documents filed by the petitioner do not bear the thumb of Bachai Ahir. During the course of the enquiry it was desired by the petitioner that the two documents should be sent to an expert but at that time it was pointed out that Bachai Ahir would be examined and consequently his prayer for sending it to an expert was rejected.
If subsequently it was found that Bachai Ahir was dead and his statement was sent to the expert it was necessary that the two documents filed by the petitioner should also have been sent to the expert. It was also pointed out by the counsel for the petitioner that one of the documents appears from the report filed by the other side to have been sent to the expert and the expert has said that that tallies with the genuine thumb impression of Bachai Ahir. It will also appear from the examination of the proceedings of the enquiry that the petitioner was asked to cross-examine Sri S. N. Misra on a later date after some other witnesses had been examined. When Sri Misra was again produced in cross-examination some hitch arose and the enquiring officer took objections to certain insinuations made by the petitioner. The result was that proceedings had to be terminated and the petitioner could not fully cross-examine Sri Misra.
It cannot be said from the perusal of the entire proceedings that the enquiring officer was prejudiced against the petitioner or was not impartial, but at the same time the procedure adopted by him was such that it cannot be said that the petitioner was given reasonable opportunity to show cause against the charges. As I have already indicated the enquiring officer recorded no statement of the witnesses who were the witnesses of fact and had relied upon their testimony recorded earlier. He also did not give an opportunity to the petitioner to get two of his documents examined by the expert and that the cross-examination of some of the witnesses could not be done fully on some of the charges as the proceedings were interrupted due to exchange of hot words between the enquiring officer and the petitioner.
30. On 5-8-1955 as the witnesses in connection with charges (B) and (C) did not turn up Sri S. N. Misra was put up for cross-examination on charge (D). The enquiring officer, when the proceedings started recorded some facts about the proceedings and asked the petitioner to cross-examine. Certain questions were put by him and objections were raised to the questions put by the petitioner. The cross-examination had not proceeded long when the enquiring officer made the following remarks:
'I am afraid your explanation is not satisfactory. The mere fact that the A. E. found your M. B. incomplete had to record the same in the form of a N. B. Because subsequent measurement taken by you clearly proves that you failed to do your duty as an overseer and have tried to shift the responsibility on the A. E. and therefore this charge stands proved against you.'
At another place the enquiring officer made the following remarks:
'Since you refuse to answer my question, I take the charge as proved'.
Before the cross-examination was complete and other witnesses were examined on this charge it appears from the remarks quoted above that the enquiring officer had expressed his opinion about the charge (D) and the petitioner is thus justified in saying that he was not given a reasonable opportunity to defend himself.
31. Another point stretched by the petitioner was that the petitioner was not given sufficient facility to take legal advice. It is true that in the departmental trials the petitioner is not entitled to claim as a matter of right facility for legal advice, but the refusal to afford a reasonable opportunity to take the legal advice when viewed in the fight of other circumstances may legitimately lead to the inference that the petitioner was not given a reasonable opportunity.
32. From the detailed examination of the facts which I have enumerated above it is clear that the examination-in-chief of all the witnesses was not recorded in the presence of the petitioner. Some of the earlier statements made by the witnesses in the absence of the petitioner have been relied upon by the enquiring officer; secondly, that during the course of the cross-examination regarding some of the charges the enquiring officer expressed his opinion that the charge stood proved against the petitioner; thirdly, that the cross-examination of Sri S. N. Misra was abruptly closed although the cross-examination of some or the charges was definitely postponed for after the evidence of other witnesses had been recorded; fourthly, the finding of the enquiring officer on the question as to whether the thumb impression on the quotation and the receipt of Bachai Ahir was genuine or not cannot be regarded as a proper finding inasmuch as the request of the petitioner for sending them to an expert at an earlier stage was refused, and the petitioner in the circumstances of the case should not have been denied the opportunity to take legal advice in the matter; and lastly it will appear that the petitioner has been dismissed twice by the department, three of the charges were common, only one additional charge is framed against the petitioner and the previous order of dismissal were set aside by this Court. The charges related to events which had happened sometimes past and the petitioner from the very beginning expressed his apprehension that the attitude of the department appeared to be such as not to inspire any confidence in him so far as the enquiry was concerned. In these circumstances the petitioner demanded an enquiry by an officer who had no connection with the department.
It may be that the officer who conducted the enquiry was not necessarily unfavourably inclined towards the petitioner, but in the circumstances of the present case the petitioner could have had a reasonable apprehension that he would not have a fair deal at the hands of the officers of the department and on the examination of all the circumstances a reasonable inference can be drawn that the petitioner was not given a reasonable opportunity to show cause against the charges. In this connection reference may be made to the case of Dr. K. Subba Rao v. State (S) AIR 1957 Andh. Pra. 414 (Y). It will be useful to refer to some of the observations in that case, with which broadly I am in complete agreement. At page 416 of the report it was observed :-
'Every member of the civil service holds his employment at the pleasure of the State. But the undoubted power of the State to dismiss him is controlled by the provisions of Article 311 of the Constitution. Except in the case, governed by the proviso to Sub-clause (2) of Article 311, such a servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed and that he could be removed only after he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
The action proposed to be taken in regard to a civil servant will be known only after an enquiry is held and after the authority concerned comes to a tentative conclusion on the merits, for, the punishment would necessarily depend upon the gravity of the offence committed by the civil servant. Therefore whatever machinery is provided by the State for the enquiry, whether it be through one of the executive officers or through a Tribunal for Disciplinary Proceedings the entire enquiry from the beginning till the punishment is imposed on the officer is one process. It is an enquiry held by the authority empowered to remove the servant.
Though the enquiry may have to be held in two stages, one up to the time the authority comes to a conclusion on the question of the offence committed by the civil servant and the other from the stage notice is given to show cause against the action proposed to be taken in regard to him, the entire process of the enquiry will have to be scrutinised by ascertaining whether reasonable opportunity is given to the servant to show cause against the action proposed to be taken in regard to him. The opportunity to show cause is qualified by the word 'reasonable'. It is for the court on the facts of each case to scrutinise the entire record to come to a conclusion whether such a reasonable opportunity was given to the civil servant.
If as a matter of fact, every opportunity was given to the civil servant to defend himself by examining witnesses and by cross-examining the prosecution witnesses it would be unreasonable to compel the authority to repeat the entire enquiry after the second stage is reached. It is true that reasonable opportunity to show cause against the action proposed to be taken includes an opportunity to canvass the correctness of the reasons for coming to that conclusion.
A civil servant can show cause by pleading that the Tribunal's report is vitiated by gross irregularities committed by it or by violating the principles of natural justice such as preventing him from examining his witnesses or cross-examining his witnesses or cross-examining the witnesses who spoke against him or similar others. If the finding of the Tribunal is the basis for the proposed punishment, he can also attack the correctness of the finding by showing that the finding was not based on the evidence pr is not supported by evidence' At another place it is observed :-
'The person dealing with the enquiry at any stage is in the position of a Judge, and the rules of natural justice demand that he should not himself be personally interested in the case.... He should not have prejudged the issue. .. He cannot act both as a Judge and a witness... There is no bar to a person issuing the show cause notice to try it himself. The principle that a prosecutor cannot be a Judge is not strictly applicable to departmental enquiries... But he must not lower himself to the status of a common prosecutor, that is to say of a person who feels it a part of his function to bring the guilt home to the accused at any cost. He must act with the detachment of a Judge, since he is professing to exercise that dignified function.......
If those fundamental principles are not followed by the Government in selecting a person to make an enquiry, the enquiry would be a farce and would not in any sense of the term be said to give a reasonable opportunity to the officer concerned to defend himself.'
At page 418 of the report it is further remarked that:-
'Rightly or wrongly when the petitioner was under a reasonable apprehension, that the enquiry was the result of a preconceived plan and a concerted action on the part of the Medical Department his request for professional help was certainly justified and the enquiry officer should have given him that opportunity. His refusal to accede to that simple request has certainly deprived the petitioner in the circumstances of the case of an opportunity to defend himself.'
33. In the result therefore I allow this petitionwith cost and quash the order of the Chief Engineer,Local Self Government, Engineering Department,dated the 2nd of November 1955 and the order of theState Government dated the 16th of November 1956rejecting the appeal of the petitioner, and furtherdirect the opposite parties to treat thepetitioner as continuing in service.