S.C. Manchanda, J.
1. This is a plaintiff's second appeal against the order of the Civil Judge, Gorakhpur, dated the 17th August I960, confirming the decree of the trial Court and dismissing the plaintiff's suit for a declaration that the order dated 27-11-1951 passed by the Deputy Transport Commissioner, Roadways dismissing the plaintiff from service was illegal, void and inoperative.
2. The plaintiff was admittedly a bus-conductor in the U. P. Roadways serving in, the Gorakhpur Division. He was on the relevant day conductor In-charge of the Bus No. 964 U. S. B. On the morning of 21st July, 1951, on the Tamkohi to Kasia road at about 8 A. M. the Assistant Regional Manager, Headquarters, Gorakhpur (hereinafter referred to as A. R. M.) accompanied by the Station Officer Incharge overtook the said bus and signalled to it to stop. On checking the bus it was found that there were 10 passengers who were travelling without tickets. Onreaching Deoria the petitioner was relieved of his duties as a conductor and a report was lodged by the A. R. M. on the 28th July, 1951. The appellant was served with a charge sheet signed by the said A. R. M. for Transport Commissioner) U. P. This charge sheet reads as follows :--
'On the basis of the allegation contained in tha report of the A. R. M. (H. Q.) dated 28-7-1951 copy enclosed or on the basis of the allegation contained in the attached note, the following charges are framed against you :--
(1) for carrying 10 passengers without ticket and in over-load on 21-7-1951 in Bus No. 964 (U. S. B.) which was checked by the A. R. M. (H. Q.) at about 8.15 A. M. on 21-7-1951 at 7 miles stone from Kasia on G. K. P. Kasia Tamkhuhi Road.
(2) Aiding and oblitering (sic) the driver in making 4 passengers out of the above 10 ones to run away in the nearby village.
(3) Pocketting Government money for your own gain. You are required to explain in respect of the charges mentioned above and show cause why you should not be punished, removed or dismissed from service eto. You should file your written explanation by 27-8-1951. In case you want to produce any evidence or cross-examine any witness, you should mention this fact in your explanation. You are required to appear before me on..... for being heardin person.'
3. The written explanation by the plaintiff was filed on the 4th of September, 1951, and his version was that the bus had broken down and some passers on seeing that the bus had stopped got into the bus ; the plaintiff had refused to give them tickets but when the A. R. M. and Depot Incharge reached the place where the bus was standing, those persons repeated their request for tickets. Their request was acceded to and the Station Officer Incharge is said to have issued the tickets to them ; but for no rhyme or reason on reaching Deoria the plaintiff and the driver of the bus, to their utter surprise were suspended and the bus was put incharge of another dtiver and conductor.
4. On 21-9-1951 the statement of the plaintiff was recorded by the said A. R. M. who was the Enquiry Officer. The plaintiff merely made a reference to his aforesaid written explanation and it was added that he had nothing further to add. Thereupon, on the 25th of September, 1951, the A. R. M. submitted his report. He disbelieved the version given by the plaintiff and considered it to be unsatisfactory. He relied on his own checking of the bus and report made. The report concluded with the following recommendation :--
'In view of the seriousness of the offence of carrying passengers without tickets and in over-load with an intention to pocket a large sum of Government money, I am of the opinion that the driver and conductor are not fit to be retained in service any longer and recommend their dismissal from service forthwith.'
This report was forwarded to the Deputy Transport Commissioner. The latter by his order dated, 27th November, 1951, passed the following order 'for Transport Commissioner, U. P.' :
'Sri Moti Lal Gupta conductor and Sri Abdul Hakim driver carried ten passengers without ticket on 21-7-1951. As the bus was about to be checked both of them made four passengers without ticket to run away into a nearby village. They had also over-load-ed the bus.
The conductor and the driver have explained that the bus being defective had stopped near Fazil Nagar and some persons came there and wantedtickets. When the bus started the Assistant Regional Manager allowed them to board it. They have denied that the passengers there were passengers without ticket in the bus. Their explanation is quite unacceptable. There is the evidence of the Assistant Regional Manager and some of the passengers who were carried without ticket and some were made to escape. The dtiver and conductor have been guilty of corruption and are dismissed.'
5. Thereupon, appeals were filed and mercy petition to Government but they were all rejected. Ultimately, on the 19th December, 1957, the present suit was Bled, It is for a declaration that the Order dated 27-11-1951 dismissing him from service was illegal and void.
6. The main grievance of the plaintiff is that he was not given a second opportunity by the dismissing authority to explain as to why the punishment proposed should not be inflicted upon him. This opportunity was required to be given to him after he had submitted his explanation to the enquiry officer and the dismissing authority had decided on the punishment that was to be awarded. The trial Court held this grievance of the plaintiff to be without foundation as according to it the charge-sheet, quoted above, had itself asked the appellant to show cause :
'Why you should not be punishedt removed or dismissed from the service.'
and therefore a second opportunity was not at all necessary. The lower appellate Court also came to the conclusion that there was substantial compliance with the provisions of Article 311(2) of the Constitution read with Para. 55 of the Civil Service (Classification. Control and Appeal) Rules.
7. The short question in this second appeal is whether substantial compliance of the mandatory provisions of Article 311(2) of the Constitution can be said to have been made in this case, merely because the charge sheet itself had asked the appellant to show cause why he 'should not be punished, removed or dismissed from the service.' It is not disputed that no opportunity as such, was given by the Deputy Commissioner after the report from the Enquiry Officer was submitted to him. The fact, therefore, is that no second opportunity was given as required by Article 311(2) of the Constitution. In these circumstances, can it be said that the mere mention of the three alternative punishments in the charge sheet itself was sufficient to exonerate the dismissing authority from the obligation of giving a second opportunity
8. In Khem Chand v. Union of India, A I R 1958 S C 300 the charge-sheet had specifically called upon the Government servant -
'to show cause why you should not be dismissed from service.....'
There was no question of three alternative punishments being set out in the charge-sheet, as there is in the present case, and yet the Supreme Court held that the appellant was undoubtedly entitled to a second opportunity. This is what was observed :
'When the Deputy Commissioner accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have a further opportunity given to him to show cause why that particular punishment should not be inflicted on him. There is therefore, no getting away from the fact that Article 311(2) has not been fully complied with and the appellant has not had the benefit of all the constitutional protection and accordingly his dismissal cannot be supported. We therefore, accept this appeal and set aside the order of the Single Judge.....'
The plea of substantial compliance which had Eound favour with the learned Single Judge of the Punjab High Court was repelled by the Supreme Court. The position io the present case is the same if not better for the appellant and there is, therefore) no alternative but to set aside the order o the Courts below and to decree the plaintiff's suit.
9. Mr. Laxmi Saran, learned Junior Standing Counsel has tried to salvage the case by raising two contentions. It was urged that the appellant had not been shown to be a Government servant to whom the provisions of Article 311(2) of the Constitution would be attracted. In this connection he has referred to the additional pleas filed but then no issue on this point was framed and the reasonable inference is that this point was never pressed. Forthermore, no evidence was led to show that a Bus Conductor employed in U. P. Roadways was not a Government servant. It was next contended that the suit was barred by limitation under Article 120 of the Indian Limitation Act as the right to sue had accrued on the 27th November, 1951 on the date when the appellant was dismissed from service and the suit was not filed till 19th December, 1957. This contention is also without force as it ignores the provisions of Section 15 Sub-clause (2) of the Limitation Act. In any event the order of the trial Court shows that the issue of limitation was not pressed on behalf of the State.
10. For the reasons given above the judgment and the decree of the lower appellate Court is set aside and the plaintiff's suit is decreed.
11. The appeal is accordingly allowed; but inthe circumstances of the case there will be no order asto costs.