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Dr. Ishwar NaraIn Sinha Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 377 of 1953
Judge
Reported inAIR1957All439
ActsConstitution of India - Article 311, 311(1) and 311(2); Regulating Discipline and Right of Appeal of Non-Gazetted Railway Servants Rules, 1946 - Rules 1702 and 1708
AppellantDr. Ishwar NaraIn Sinha
RespondentUnion of India (Uoi)
Appellant AdvocateK.L. Misra and ;C.B. Misra, Advs.
Respondent AdvocateD.S. Choudhry, ;Laxman Saroop and ;G.S. Pathak, Advs.
DispositionAppeal allowed
Excerpt:
(i) service - confirmation authority - article 311 (1) of constitution of india - effect of confirmation order passed under the direction of higher authority - confirmation authority should be deemed to be the person who has actually issued the letter of confirmation. (ii) termination of service - article 311 (1) of constitution of india - public servant not removed from service by way of punishment - terminated according to terms and condition of contract of service - held, article 311 is not applicable. (iii) reasonable opportunity - article 311 (2) of constitution of india - reasonable opportunity when to be given - it should be given after and not prior to the stage when definite conclusion have been reached. - - 8. the appellant submitted his explanation on the 24th august, 1950,.....agarwala, j. 1. this is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff's removal from service was unjustified, illegal and wrongful and that he should be deemed to be continuing in service and further that a decree for rs. 4,725/-as compensation for the period the plaintiff was illegally deprived to serve the government be passed in favour of the plaintiff-appellant. the facts giving rise to the suit are as follows:2. the appellant dr. ishwar narain sinha was appointed as a temporary assistant medical officer of what was formerly known as o. t. railway in the year 1945. he was admittedly appointed by the principal medical officer of that railway and was at first posted to gorakhpur and then transferred to samastipur railway hospital. he was confirmed on.....
Judgment:

Agarwala, J.

1. This is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff's removal from service was unjustified, illegal and wrongful and that he should be deemed to be continuing in service and further that a decree for Rs. 4,725/-as compensation for the period the plaintiff was illegally deprived to serve the Government be passed in favour of the plaintiff-appellant. The facts giving rise to the suit are as follows:

2. The appellant Dr. Ishwar Narain Sinha was appointed as a temporary Assistant Medical officer of what was formerly known as O. T. Railway in the year 1945. He was admittedly appointed by the Principal Medical Officer of that Railway and was at first posted to Gorakhpur and then transferred to Samastipur Railway Hospital. He was confirmed on the 21st February 1946.

The letter of confirmation addressed to him. was on behalf of the Chief Medical Officer. There is a little dispute as to who in law would be deemed to have confirmed the appellant as the direction to the Chief Medical Officer to issue the letter of confirmation was given by the General Manager and it is the appellant's case that he should be deemed to have been in fact confirmed by the General Manager and therefore appointed by the General Manager and not by the Chief Medical Officer.

3. On the 9th August, 1949, Dr. Sinha examined the eye sight of one Ram Lakhan. He found him fit for Class A-1 service. This Ram Lakhan was a driver and on the appellant's aforesaid report he was allowed to continue in service as a driver.

4. About a year later the Chief Medical Officer happened to examine Ram Lakhan and he found that he had no vision in the left eye and even in the right eye his vision was so defective that he could not have been found fit for A-1 service. Thereupon under orders of the Chief Medical Officer the appellant was asked to explain the discrepancy between the findings of the appellant and the findings of the Chief Medical Officer.

It was added that the cause of Bam Lakhan's visual defect was not likely to have developed since his examination by the appellant.

5. The appellant submitted his explanation and stated that the discrepancy might be due to any of the three under-noted factors:

1. Impersonation,

2. Helping hand of the peon present to cover at the time of testing sight, and

3. Accidental effects natural or unnatural after examination of sight by him. He also wanted to be furnished with some particulars including the date of birth of Ram Lakhan driver, the date of the cataract operation in Ram Lakhan's eye, date of subsequent examinations after operation, whether the operated eyes of Ram Lakhan were detectible at a glance or on close examination, and whether the signature of Ram Lakhan agreed with that present on the counterfoils of the certificate issued to him on each occasion he appeared for medical tests after the cataract operation.

6. Thereafter the Chief Medical Officer served the appellant with a charge-sheet, the charge being:

'gross neglect of duty likely to result in loss to the Railway Administration and danger to the lives of persons using the Railway.'

The facts and circumstances upon which this charge was framed were mentioned as below:

'You examined Driver Ram Lakhan I of Sonepur Shed on 20th August 1949 and according to the findings recorded by you on the obverse of form G. 103 No. 23 M/49/47, dated 19-8-49 you declared him fit for A-1 with glasses whereas he was actually fit then for class C-2 only, it having been established that in 1947 he had undergone an operation in the right eye for cataract which rendered him unfit for any class above C-2 according to rules in force.'

In this charge sheet which was in compliance with rule No. 1708 of General Manager's circular No. 1 of 1946 (Rules regulating Discipline and Right of Appeal of Non-gazetted Railway Servants), a written explanation was asked for to be submitted within three days of the receipt of the charge. It was further provided:

'This charge if proved will render you liable to removal from service (or such lesser punishment as may be decided upon after considering your written explanation.'

The appellant was also asked whether he desired to be heard in person.

7. The charge sheet was communicated to the appellant under a covering letter dated 23rd August, 1950. In this covering letter the appellant was informed that he was permitted to see the available records in the District Medical Officer's office within the time allowed to him to answer the charge.

8. The appellant submitted his explanation on the 24th August, 1950, in which he complained that the three days time allowed to him for replying the charge-sheet was insufficient for the purpose of finding out the information required by him in his previous explanation and that all the information which he required could not be had from the District Medical Officer's office, e.g. he could not find out whether the driver actually bore the identification marks as given by the locoforeman, Sonepur and as recorded by him to locate impel son ation in any way.

He further stated that the responsibility for declaring Ram Lakhan as fit was not his but of the District Medical Officer and that therefore he was not liable, he being merely an Assistant to the District Medical Officer in the matter of testing the eye sight; and that there could have been impersonation, i.e., somebody else might have been examined by him or by the Chief Medical Officer.

In the end he wanted sufficient facility for the purpose of clearing the wrong impression that his findings were not true according to the state of the eye sight of the person who actually appeared for the test.

9. Upon this explanation being received, the District Medical Officer again asked the appellant to see the records in his office if he wanted any further clarification. To this the appellant replied that some of the information that he wanted could not possibly be had from the District Medical Officer's office records.

10. After this it appears that no further examination of evidence was done in the presence of the appellant and it also appears that the appellant did not care to go to the District Medical Officer's office to look into the records. The Chief Medical Officer, therefore, upon a consideration of the first examination made by the appellant, the subsequent examination made by him a year later and the explanations submitted by the appellant came to the conclusions which he recorded in his order dated 7th October, 1950, to the following effect:

'The defence submitted by Asst. Surgeon I Dr. I.N. Sinha cannot be accepted. It has been proved beyond doubt that his findings as recorded by him after examining Ram Lakhan, Driver, Sonepur, were incorrect and resulted in the driver's continuing as such when he was actually not fit for class A-1 thus endangering public safety.'

Then followed the order dated 7-10-1950.

'Dr. Sinha is hereby removed from service.'

This order is incorporated in a Memorandum which was prepared by the Dealing & Personal Section when dealing with the imposition of penalty laid down in Rule No. 1702, items 1 to 6 and 8 and 9. This memo mentions all the details about the appellant, his date of birth, date of appointment, scale of pay, date of next increment, his substantive and officiating posts, authority competent to impose, the penalty, Serial number of the charge-sheet, acknowledgment of charge-sheet and the defence.

The order, therefore, was incorporated in a formal manner in a document which was prepared for the imposition of penalties laid down in the Railway Rules.

11. This order of removal from service was communicated to appellant on the 10th October, 1950, with a covering letter signed by one Mr. G.A. Kerr, on behalf of the Chief Medical Officer, The formal communication of removal from service is in the following form:

'PAPER NO. 49-A-LETTER

Letter from Chief Medical Officer.

Paper No. 49A.

Letter Ex. A7.

Notice of imposition of the penalty of removal from the service.

From: The Chief Medical Officer To Dr. I. N.O. T. Railway, SINHA, A. Section I.Gorakhpur. Through D. M. O.Izatnagar.No. 9-E/I (Med).

'As your services are no longer required by the Administration, you are hereby removed from service by the orders of Chief Medical Officer, in terms of your agreement and conditions of service and you are hereby given one month's pay in lieu of notice ...................... as provided for therein. Your services will accordingly terminate on the afternoon of 14-10-1950,

Sd/ G.A. Kerr.

Date: 10th Oct.. 1950.

Signature for Chief

Medical Officer (P).

Designation:--

Please see reverse.

In the covering; letter it was mentioned that the defence submitted by the appellant in his letters dated 24th August 1950 and 5th September 1950 to the charge-sheet served on him on 27th August, 1950 had not been accepted by the Chief Medical Officer.

12. The appellant filed an appeal against the order of removal from service to the General Manager on the 15th October, 1950, in which he complained that he had not been given reasonable facility for the preparation of his defence and reasonable opportunity of showing cause against the action which was proposed to be taken against him. The General Manager however dismissed the appeal by his order dated 7th December 1950.

13. It appears that after filing the appeal before the General Manager but before the appeal was decided the appellant sought an interview with the Chief Medical Officer and expressed regret for the error and prayed for mercy and also made an application to that effect stating that he felt sorry that the error was made evidently through rush of work on the day on which he had to examine about thirty candidates who appeared for eye-sight examination and that he did that in addition to his normal duties.

The Chief Medical Officer wrote a note on this application that the appellant admitted his error and that he had examined twenty six candidates and employees on the 20th August, 1949 but that this number was not unusual.

14. After the appeal was dismissed by the General Manager, the appellant made a further attempt to get the order of dismissal reviewed by the General Manager, but the review application was also dismissed on the 21st February 1951. Then on the 19th November 1951 the appellant filed the suit which has given rise to this appeal, alleging that his removal from service was not justified and was illegal because he was not afforded a reasonable opportunity as required by Article 311 of the Constitution of India to show cause against the action that was proposed to be taken against him.

He also pleaded, inter alia, that he was appointed by the General Manager and not by the Chief Medical Officer and that therefore the Chief Medical Officer had no power to remove him from service and further that the Chief Medical Officer acted mala fide in removing him from service. It is not necessary to mention the other pleas taken in the plaint as the appeal has been confined to these pleas only.

15. The defence of the Union of India wasthat the appellant was rightly dismissed as required by law that he had been afforded ample opportunity against the action proposed to be takenagainst him, that in fact the appellant had notbeen removed from service but that his serviceswere terminated in accordance with the termsand conditions of his contract of service by giving him one month's salary in lieu of one month'snotice, that the appellant was appointed by theChief Medical Officer and could be legally removed by him and that the Chief Medical Officer was not guilty of any mala fides in terminating his service.

16. The learned Civil Judge held that the appellant's contention that he was removed from service by way of penalty as contemplated by Rule 1702 of the Indian Railway Establishment Code and not under the terms and conditions of his service had been satisfactorily established but that the appellant's complaint that he was not afforded reasonable facility or reasonable opportunity to show cause against the action proposed to be taken against him had not been made out.

The learned Civil Judge further held that the appellant was confirmed by the Chief Medical Officer and therefore he could have been removed from service by him and that no mala fides had been proved against the Chief Medical, Officer. In the result the suit was dismissed but the parties were ordered to bear their own costs.

17. In the present appeal the relief about the claim for Rs. 4000/- odd by way of compensation was given up and the appeal was confined to the declaratory reliefs claimed by the appellant.

18. Three main contentions were urged before us on behalf of the appellant. Firstly that ho had not been afforded an opportunity to show cause against the action proposed to be taken against him as required by Article 311(2) of the Constitution and that therefore the order of removal from service was ultra vires and illegal, secondly, that the appellant was confirmed in his service by order of the General Manager and must be deemed to have been appointed by him and that the Chief Medical Officer was therefore not authorised to remove him from service, and lastly that in removing him the Chief Medical Officer had acted mala fide and that the removal based upon mala fides was not legal and was not binding on him.

19. So far as the last two points are concerned we may dispose of them very briefly. The appellant was admittedly appointed on probation by the Chief Medical Officer. There was a committee appointed to report as to the persons who were to be confirmed. On a consideration of the report of the Committee the General Manager issued certain directions to the Heads of the Departments including the Chief Medical Officer.

The General Manager's letter stated the following instructions which were issued for information and guidance of the officers concerned:

'1. Statements of confirmation of category 'B' men in 30 per cent, of reserved vacancies:

(a) ..................

(b) ..................

(c) The category 'B' men will be confirmed in the various grades as shown in the statements from the dates on which they attained the category 'B' status i.e., from the dates from which they have been working against permanent vacancies after completion of the probationary period of one year in case of subordinate staff,

(d) The men confirmed should be informed of the fact and in doing so the date from which they have been confirmed should also be intimated to them.'

20. In compliance with these directions the Chief Medical Officer directed that the appellant be confirmed with effect from the 21st February 1946. This decision of the Chief Medical Officer was conveyed to the appellant by means of a letter dated 30th May, 1946. This letter was issued from the office of the Principal Medical Officer (Principal Medical Officer being the same as the Chief Medical Officer) and was addressed to the District Medical Officer, O.T. Railway, Gorakhpur. Category 'B' was noted against the name of each employee and the date of confirmation of I.T. Sinha was mentioned as 21-2-1946.

21. The question now is whether the plain. tiff was confirmed by the Chief Medical Officer or by the General Manager. The General Manager's letter which was addressee? to the various Heads of Departments was a circular letter. It did not mention the appellant's name at all. The General Manager issued certain general directions which were to be carried out by the Heads of Departments, and, in accordance with those directions, individual cases were to be picked out, and they were to be informed as to from what date they were confirmed in their substantive posts.

It is not disputed that the Chief Medical Officer had the power to appoint the appellant and therefore to confirm him. In our opinion where an officer has the power of confirmation of a servant and issues the letter of confirmation, even though the letter was issued under the orders of a higher authority, the confirming. authority should be deemed to be the person who has actually issued the letter of confirmation.

The general directions relating to the manner in which confirmation is to be ordered is one thing but the confirmation of an individual servant from a particular date in compliance with those general directions is another matter and the officer who does the latter part of the work, if authorised, should be taken to be the confirming officer.

We are, therefore, of opinion that the appellant was confirmed in this post by the ChiefMedical Officer and not by the General Manager.He could therefore be removed from service bythe Chief Medical Officer.

22. The Advocate General who appeared for the appellant also addressed us on the question whether the action of the Chief Medical officer was mala fide but we are not satisfied that this part of the appellant's case has been substantiated at all.

23. This leads us to a consideration of the main controversy in the case, namely whether the appellant was afforded a sufficient opportunity of showing cause against the action which was proposed to be taken against him as required by Article 311(2) of the Constitution. In this connection learned counsel appearing for the Union of India has urged that the finding of the court below that the appellant was removed from service by way of the penalty was not correct and that the appellant's service was in fact terminated not by way of punishment, but in accordance With the terms and conditions of his service as laid down in the contract of service which Was in the form printed in the Rules, and that in accordance with those directions he was paid one months' pay in lieu of one months notice, and therefore no question of application of Article 311 of the Constitution arose in the case;

It was further urged that, even if it were held that Article 311 applied to the case because the appellant was removed from service by way of penalty, he was given adequate and sufficient opportunity against the action that was proposed to be taken against him.

24. Before we consider the question whether reasonable opportunity was afforded to the appellant as required by Article 311 it is necessary to decide whether he was removed from service by way of punishment, because it is clear that if he was not removed from service by way of punishment and if his services were merely terminated according to the terms and conditions of agreements of his service Article 311 would not apply.

25. We have already quoted the formal notice under which the appellant was removed from service. The notice is headed as 'Notice of imposition of penalty for removal from service' but in the body of notice it is mentioned that the appellant was being removed from service.

'in terms of your agreement and conditions of service and you are hereby given-one month's pay in lieu of notice as provided for therein'.

The argument of Mr. Pathak appearing for the Union of India is that what we have to see is the substance of the notice arid not its mere heading and if you look at the substance you will find that the removal was not by way of penalty but in terms of the agreement and conditions of service by giving one month's pay in lieu of notice and this is exactly what is provided in the contract of service, the form of which is given in the Indian Railway Establishment Code, Volume I, Form No. l, at page 344 under Rule 142:

26. Paragraph 3 of this form mentions that 'the railway servant shall be subject to the following conditions of service, namely-

(q) that such service is terminable at any time by either party on one month's notice in writing or by the Administration on one month's pay in lieu of notice.'

It is argued that the appellant's service was terminated under Clause (q) of paragraph 3 of this Form. Our attention was also drawn to rule 148 at page 20 of the Code which provides the following rules for other non-pensionable railway servants: Sub-rule (3) of this rule runs as follows: 'The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of summary dismissal or discharge under the provisions of service agreements, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity-

(a) ..................

(b) ................

(c) ..................

(d) Permanent Non-gazetted employees:-- one month's notice.'

It is conceded that the appellant was a non-gazetted employee entitled to one month's notice.

27. Sub-rule (4) of the rule lays down that 'in lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice.'

The contract of service actually entered into between the appellant and the Railway Administration has not been produced in the case, but from the evidence on the record it appears to us that) it must have been in the usual form, and therefore we take it that it was in the form prescribed in Form No. 1 at page 344.

It, therefore, follows that the appellant was undoubtedly, whether the charge was found to be proved against him or not, liable to have his services terminated by giving him one month's notice or one month's pay in lieu of notice. The question, however, is whether his services were terminated under the terms of the agreement of service or whether he was removed from service by way of penalty.

The employer may have the power to remove his servant in accordance with the terms of the agreement of service by one month's notice or one month's pay in lieu of notice. He may also have the power to terminate the services of the servant because of misconduct by way of punishment. Article 311 applies in all cases where a civil servant's service is terminated by an order of dismissal or removal by way of punishment, whether or not the employer could have terminated his services in accordance with the terms and conditions of his agreement.

If the removal or dismissal from service was by way of punishment, the employer is bound under the provisions of Article 311 to afford him a reasonable opportunity to show cause against the action proposed to be taken against him. If, however, the employer exercises his right under the conditions and terms of the agreement between him and the servant, and does not terminate his service by an order of dismissal or removal by way of punishment that would be a different matter.

28. Now in order to determine in the present case whether the appellant's removal from service was by way of penalty or was merely a termination in accordance with the terms of the agreement and conditions of his service, we have to look not only to the form in which the order was communicated to the appellant but the actual order passed by the removing authority and the circumstances leading up to that order.

The formal order which was communicated to the appellant was in accordance with the form given in Appendix 2 of the Rules Regulating Discipline and Right of Appeal of Non-Gazetted Railway Servants (General Manager's Circular No. 1). These Rules were promulgated by the General Manager Mr. J. D. Michael in the month of September 1946. Appendix 2 of this Rule is in the form:

NOTICE OP IMPOSITION OP THE PENALTY OF REMOVAL FROM THE SERVICE.

Prom............. To.............. As your services are no longer required by the Administration you are hereby removed from service by my order in terms of your agreement and conditions of service and you are hereby given one month's notice with effect from.................one month's pay in lieu of notice...................as provided for therein. Your services will accordingly terminate on the forenoon of ..............

Date..............

Signature ........

Designation ........'

29. That this is the form to be used when a railway servant is removed from service by way of penalty is made clear when we read Rules 1702, 1708, 1709, 1712 and 1715. Rule 1702 provides for eleven kinds of penalties which can be imposed for good and sufficient reasons upon railway servants:

1. Censure,

2. withdrawal or forfeiture of privileges,

3. fines,

4. withholding of increments or promotion, Including stoppage at an efficiency bar,

5. reduction to a lower post or time-scale or to a lower stage in a time-scale.

6. Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders,

7. Suspension.

8. Removal from the service.

9. Dismissal from the service.

10. Withholding of the whole or part of Provident Fund contribution or gratuity in accordance with the provisions of the State Railway Provident Fund and Gratuity Rules, and

11. Reducing or withholding the maximum pension admissible in accordance with the provisions of the rules.

30. It will be noted that 'removal from service' is penalty No. 8. Rule 1708 deals with the procedure for imposing penalty of removal from service. It provides:--

'A railway servant shall be liable to be removed from the service in the following circumstances, viz.

(i) inefficiency,'

(ii) committing any offence for which, he may be dismissed under Rule 1708, (iii) repeated minor offences,

(iv) absenting himself or overstaying sanctioned leave, without sufficient cause.

(v) incivility to the public.'

This is followed by the proviso:

'Provided that nothing in these rules shall abrogate the right of a General Manager, in exceptional circumstances to remove a non-pensionable non-gazetted railway servant from service in terms of his agreement without application of the procedure described in the rules in this section and without assigning any reasons if he considers it desirable to do so. This power shall not be delegated to an authority lower than a Head of a Department.'

An argument is based upon the proviso that the termination of the appellant's service was under this proviso. We shall deal with this question later. Rule 1709 lays down the procedure for removal. Clause (b) of this rule states that-

'Where the railway servant whom it is proposed to remove from service has not completed seven years service, the procedure prescribed in Rule 1712 shall be applied,'

The appellant had not completed seven years' service and so the procedure prescribed in Rule 1712 could not be applied in his case: Rule 1712 lays down:

'Before an order imposing a penalty specified in items (2) to (C) of Rule 1702 or in Rule 1709 (c) is passed against a railway servant, he shall be informed of the definite offence or failures on account of which it is proposed to impose the penalty and called upon to show cause why that or any lesser penalty should not be imposed. He should also be given three days time in which to submit his explanation and be allowed reasonable facilities for the preparation of his defence.'

Then rule 1715 provides:

'Every order imposing a penalty on a railway servant shall be communicated to him in writing.'

There are sub-rules to this rule. Sub-rule (1) lays down:

'A letter terminating a railway servant's services shall be issued in the form at Appendix 4 in a case of dismissal and the form of Appendix 2 in a case of removal from service. These letters must be signed by the Officer passing the order imposing the penalty.'

Thus the form used for removing the appellant from service was the form which is prescribed under the rules for removal by way of penalty.

31. We may also examine what the 'actual order of removal was and what the steps were which led to the order by which the appellant was directed to be removed from service.

32. The actual order of the Chief Medical Officer is dated 7th October, 1950 which we have already quoted above. This order itself indicates that it was by way of imposition of penalty as laid down in Rule 1702, items 2 to 6 and 3 and 9. The order mentioned the findings and the final penalty. The findings were that the defence submitted by the appellant could not be accepted and that it had been proved beyond doubt that his findings as recorded by him after examining Ram Lakhan, Driver, were incorrect and resulted in the driver's continuing as such when he was actually not fit for class A-1 thus endangering public safety, and the final order then follows:

'Dr. Sinha is hereby removed from service.'

There could not be slightest doubt that theorder removing the appellant from service was interms of penalty no. 8 as laid down in Rule 1702.

Anyone who sees this order of the Chief Medical Officer dated 7th October, 1950 can have no doubt in his mind that the order of removal from service was passed on account of the misconduct of the appellant, the misconduct being itself mentioned in the order in so many words. The preceding proceedings leave no room for doubt that the enquiry against him was into a misconduct alleged against him.

33. It is true that an employer may holdan enquiry into the misconduct of the servant andmay find him guilty, and yet may have recourseto his power of terminating the services of theservant in terms of the conditions of his serviceby paying him one month's salary in lieu of notice.But the question is whether he has done so orhe has exercised his other power of imposing apenalty upon the servant.

34. It was urged by Mr. Pathak that the appellant could not be said to have been penalised in this case because he was given one month's salary in lieu of notice.

35. We have also seen the statement of Mr. Kerr on behalf of the Union of India to the effect that the form given in Appendix is used both when a servant is removed from service by way of penalty, as also when his services are terminated in accordance with the terms and conditions of service.

36. It is true that in the case of removal from service by way of penalty the employer is not bound to give any notice or to pay any salary in lieu of notice, but it is quite possible that in drawing up the form given in appendix 2 somebody bungled and drafted the notice of removal from service by way of penalty in the form which was suitable for termination of service in terms of the agreement of service.

But if an employer chooses to be more generous to the employee and pays him something to which he is not entitled, the action of the employer cannot be construed as not enforcing the penalty which he actually enforced or intended to enforce.

37. The cage of--'Sham Lal v. State of Uttar Pradesh' : (1954)IILLJ139SC , is distinguishable from the present case. In that case the enquiry that was made was for the purpose of finding out whether the servant should be compulsorily retired and the covering letter made it clear that the enquiry which was being ordered was not a formal enquiry according to the Classification and Appeal Rules, but merely to enable them to determine whether they should compulsorily retire the Government servant. Compulsory retirement of a Government servant is not a punishment.

In the present case the charge sheet showed that the charge if proved would result in the punishment of removal from service or a lesser penalty.

38. It was also contended by Mr. Pathak that the appellant was removed from service under the proviso to Rule 1708 which we have already quoted. The proviso refers to removal from service in accordance with the terms and conditions of a railway employee and not by way of penalty, vide--'M.M. Siddique v. Union of India (Rly. Dept.)' : AIR1955All568 .

We do not however consider that action in the present case was taken under that proviso. In the first place it will be seen that the authority to remove a railway servant under the proviso aforesaid is vested in the General Manager of in the Heads of the Departments to whom he has delegated his power. The General Manager did not remove the appellant from service. He was removed from the service by an order of the Chief Medical Officer, and it has not been shown that the General Manager had delegated his power to the Chief Medical Officer.

There is a document on the record which shows the persons to whom the General Manager had delegated his various powers under the rule. The document is silent upon the question whether the power of the General Manager under the proviso to Rule 1708 was delegated to the Chief Medical Officer. In the absence of any proof of delegation it must be held that there was no delegation.

Moreover as we have already stated above, the question whether the appellant was removed from service in accordance with the terms and conditions of his service or by way of penalty has to be determined by the order of termination of his services which had been passed, and we have already pointed out that the order clearly shows that it was one for removal from service by way of penalty under Clause (8) of Rule 1702. The appellant, therefore, could not be said to have been removed from service under the proviso to Rule 1708.

39. The next question is whether the appellant was afforded reasonable opportunity, as provided in Article 311(2) of the Constitution, to show cause against the action that was proposed to be taken against him.

40. The language of Clause (2) of Article 311 is practically the same as of Section 240, Sub-section (3) of the Government of India Act, 1935. This subsection was considered by the Federal Court in--'Secretary of State v. I.M. Lall' . Mr. Lal was a member of the Indian Civil Service. Eight charges were levelled against Mr. Lall and he was asked to show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce for breach of Government rules and conduct unbecoming to a member of the Indian Civil Service.

The enquiry into the charges was held and in the opinion of the enquiring Officer he was guilty. But on being found guilty he was not given an opportunity to show cause against the action that was proposed to be taken against him, but was straightway removed from service. He filed a suit for a declaration that his removal from service was illegal, and that he still continued in service. The suit was decreed by the Lahore High Court. The Secretary of State appealed to the Federal Court. The appeal was allowed by that Court. The majority of the learned Judges of the Federal Court made these observations:

'In our judgment, the words 'against the action proposed to be taken in regard to him' require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon. It should be noted that the sub-section does not require any inquiry, any formulation of charges, or any opportunity of defence against those charges.

All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him. It is also significant that there is no indication as to the authority by whom the action is to be proposed.

It does however seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken.'

Then the learned Judges considered a suggestion put forward on behalf of the counsel for the Secretary of State and observed as follows:

'It is suggested that in some cases it will besufficient to indicate the charges, the evidence onwhich those charges are put forward and to makeit clear that unless the person can on that information show good cause against, being dismissed or reduced if all or any of the charges areproved, dismissal or reduction in rank will follow.This may indeed be sufficient in some cases.

In our judgment each case will have to turn on its own facts, but the real point of the subsection is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed.

That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank.'

The view was upheld by the Judicial Committee on a further appeal to that tribunal in--'High Commissioner for India v. I.M. Lall' . After quoting the above passage from the Federal Court's judgment, their Lordships of the Privy Council observed:

'Their Lordships agree with the view taken by the majority of the Federal Court. In their opinion, Sub-section (3) of Section 240 was not intended to be, and was not, a reproduction of Rule 55 which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed of the grounds on which it is proposed to take action', and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of 'a reasonable opportunity of showing cause against the action proposed to be taken in regard to him'.

In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-section (3) makes, provision.

Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried put, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry.'

41. Thus the Federal Court and the Judicial Committee laid down in clear terms that the opportunity mentioned in Sub-section (3) of Section 240 which has to be afforded to the employee should be given after and not prior to the stage when definite conclusions have been reached upon the charges framed against the servant.

Unless definite conclusions have been come to on the charges and actual punishment to follow is provisionally determined, and the same are communicated to the servant concerned, the opportunity to show cause against the action proposed to be taken cannot be said to be reasonable.

42. But it was urged that the Federal Courthad contemplated that in some cases it might besufficient to indicate in the charge sheet itself thepunishment proposed to be imposed on the servant in the event of the charges being proved.Reference has been made to two cases JatindraNath Biswas v. R. Gupta : AIR1954Cal383 and Jyoti Nath Ganguly v. State of Assam, (S) AIR1955 Assam 171 (F). In Jatindra Nath's case (E)Sinha J., observed : -

'There may be such a case where the facts are such and the punishment proposed is such that it would be unnecessary to give the civil servant two chances instead of one. For example if there was single charge and the proposed punishment was a single punishment and the civil servant had the amplest opportunity at the enquiry stage to meet the whole case, a second opportunity may not be necessary. That this is so has been expressly recognised by both the Federal Court and the Judicial Committee in Lall's case (C & D).'

In Joyti Nath Ganguly's case (F) it was observed:

'Here, the facts are exceedingly simple. The petitioner was found to be negligent in the discharge of his duties, and, as a result, an unfortunate accident happened, and the petitioner, though trying to shift the responsibility to the Petrol Khalashi, did not succeed in so doing because he was a direct participant in the breach of rules which resulted in the accident.

The authorities at the very inception intended to remove this civil servant from the job and gave a notice accordingly. Mr. Ahmad contended that this notice of discharge could be given only after the enquiry was completed. We do not find anything categorical in the statute to support this contention but whether a second chance should be given would depend on the circumstances.

The accident evidently took place during the day and in the presence of several persons when the Station yard was full of passengers, officers and others and, therefore, the authorities could have easily formed an opinion about the gravity of the offence of the petitioner and they could have at that stage thought of removing him from service, and a notice was accordingly given for showing, cause. This action, therefore, of removing the officer without a second notice, cannot be said to be illegal or ultra vires.'

43. In our opinion the normal procedure is that the servant concerned should be given an opportunity to meet the charges of which he is supposed to be guilty, and when the enquiry into the charges has been completed, the conclusions arrived at are communicated to the servant concerned and the action proposed to be taken against him is also communicated to him and he is asked to show cause why the action proposed should not be taken.

But the charge sheet and the action proposed to be taken may be combined and the two intimated to the Servant concerned together only when there is no necessity of any further enquiry into the facts upon which the charges are based. This is possible in two cases: first, when there has been a full and complete enquiry into all the facts after notice to the servant concerned and after hearing him and conclusions have been arrived at upon the facts including the pleas raised in defence by the servant and later on the servant is charged formally for the misconduct which is supposed to be proved from the conclusions drawn at the enquiry into the facts; and secondly when the servant is caught red-handed in the commission of an offence or misconduct by the enquiring officer himself.

In the former case, when a preliminary enquiry into all the necessary facts has been held in the presence of the servant concerned, though the charges were formally not levelled against him, the servant has had full opportunity of putting forward his defence and explaining his conduct and the enquiring officer has taken into consideration the pleas raised in the defence and conclusions have been arrived at and in the formal charge sheet those conclusions are mentioned and it is not expected that any further enquiry into facts will be necessary, it will merely be a formality if the proposed action to be taken against him is not intimated to Him in the charge sheet Itself.

In the latter case, where a servant is caught red-handed in the commission of an offence the facts are in the knowledge of the officer himself and he can provisionally determine the punishment to be awarded. Here again it will be a mere formality if he were to first submit to the servant the charge sheet and then after hearing him give him a second opportunity to show cause against the action proposed to be taken against him.

The two stages can reasonably be combined in one proceeding. The number of the charges is not decisive of the question whether the charge sheet and the action proposed to be taken can be combined in one proceeding or should be divided into two stages. The real question in such cases is whether any further enquiry into facts is necessary, whether conclusions as to facts and as to the proposed action can be reasonably arrived at on the material already before the officer concerned.

If the answer to these questions is in the affirmative then if the charge sheet and the action proposed to be taken are communicated to the servant concerned at once the opportunity to show cause against the action proposed to be taken will not necessarily be deemed to be unreasonable. If it appears that after hearing the servant concerned upon the charges the conclusions as to guilt which were formed at the preliminary enquiry are to be altered or modified then it will be the duty of the enquiring officer to communicate those modified conclusions to the servant and upon those modified conclusions to ask dim to show cause why the action proposed to be taken against him should not be taken.

44. In the present case about one year after the appellant had examined the eye sight of Ram. Lakhan, Ram Lakhan was again examined by the Chief Medical Officer who found that his left eye had no vision and the right eye had defective vision. The Chief Medical Officer suspected that the appellant was guilty of giving a false report about the state of Ram Lakhan's eye sight and so he wanted an explanation for the discrepancy.

In his explanation the appellant wanted to know whether the person examined by the Chief Medical Officer was the same as had been examined by the appellant at the first instance, whether there was any case of impersonation when the appellant has examined the man, whether somebody at the time of the appellant's examination and played mischief, whether the eye sight had deteriorated after the appellant had examined him and he raised several other questions.

All these questions required going into the facts. No witnesses were examined in his presence at the earlier enquiry stages. The enquiring officer did not regard his findings on some of the important pleas raised in defence by the appellant. In the charge sheet sent to the appellant the grounds upon which the charges levelled did not cover the conclusions as to the questions raised in his defence by the appellant.

It was therefore obvious that an enquiry into several facts was needed before the appellantcould be held guilty of the charges framed againsthim. Apparently the Chief Medical Officer considered that the case was a very simple one andthat the discrepancy haying been established theappellant must necessarily have given a false report about Ram Lakhan's eye sight. He,therefore, framed the charge and in thatvery charge combined the action proposed to betaken against the appellant. The crucial questiontherefore is whether at that stage the opportunity of showing cause against the action proposed to be taken was reasonably given; and thereasonableness of the opportunity will have to bedetermined on the facts and circumstances of eachcase by the Court.

The opinion formed by the authority giving the notice cannot be final in this matter. Upon the facts and circumstances of the present case we are of the opinion that the matter needed a detailed enquiry into the pleas raised by the appellant. Whether the officer concerned entered upon the enquiry and gave decision which was correct is not the question before us. We are hot judges of the correctness of the decision or of the sufficiency of the enquiry.

But what we have to see is that the charge and the punishment proposed having been combined in one notice, whether the opportunity to show cause given to the appellant could be said to be reasonable, and, for that purpose we are entitled to go into the question whether it is a fit case in which the two should have been combined. We are clearly of opinion that in the present case the opportunity to show cause against the action proposed to be taken against the appellant was not reasonable.

45. We are therefore of opinion that the provisions of Article 311(2) were not complied with in the present case. The result, therefore, is that it must be held that the appellant's removal from service was not in accordance with law.

46. The appeal is therefore allowed and the decree passed by the court below is modified. It is declared that the order of the appellant's removal dated 7th October, 1950, read with the order dated 10th October, 1950, was illegal, and void and of no effect, and that the appellant continues to be in service of the Railway Administration.

The relief with regard to the decree for money was given up in this appeal, and the decreeof the trial court dismissing the suit so far asthe relief for a decree for money is concerned willstand. Costs in the court below will be easy, butthe appellant will have his costs of this appeal.


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