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Altafur Rahman Fazlur Rahman Vs. Collector Central Excise, Allahabad - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1747 of 1957
Judge
Reported inAIR1960All551; [1960(1)FLR477]; (1960)IILLJ146All
ActsConstitution of India - Articles 226 and 311; Fundamental Rules - Rule 55
AppellantAltafur Rahman Fazlur Rahman
RespondentCollector Central Excise, Allahabad
Appellant AdvocateS.B.L. Gaur, Adv.
Respondent AdvocateJ. Swarup, Adv.
DispositionPetition dismissed
Excerpt:
(i) constitution - writ petition - article 226 of constitution of india - latches - then no interference by court - interference with order of central board of revenue beyond the jurisdiction of high court. (ii) constitution - opportunity of being heard - article 311 of constitution of india - reasonable opportunity to show cause - does not include right of personal hearing. - - he, according to the petition, carried on his duties efficiently and diligently to the utmost of his capacity and in 1952 he was posted at jhinjhana range, district muzaffarnagar, from where he was transferred to the cigarette factory by the order dated 8th september, 1952. as alleged by the petitioner, there was one dharma a tobacco cultivator who got displeased with the petitioner as he wanted certain.....orderv.d. bhargava, j.1. this is a petition under article 226 of the constitution filed by one altafur rahman, who was an employee in the central excise department. according to the petitioner after having passed his b.sc., examination in the year 1943 he joined as an inspector central excise and was posted at mogha in the district of feerozpur. he, according to the petition, carried on his duties efficiently and diligently to the utmost of his capacity and in 1952 he was posted at jhinjhana range, district muzaffarnagar, from where he was transferred to the cigarette factory by the order dated 8th september, 1952. as alleged by the petitioner, there was one dharma a tobacco cultivator who got displeased with the petitioner as he wanted certain remissions in the assessments made by him,.....
Judgment:
ORDER

V.D. Bhargava, J.

1. This is a petition under Article 226 of the Constitution filed by one Altafur Rahman, who was an employee in the Central Excise Department. According to the petitioner after having passed his B.Sc., examination in the year 1943 he joined as an Inspector Central Excise and was posted at Mogha in the district of Feerozpur. He, according to the petition, carried on his duties efficiently and diligently to the utmost of his capacity and in 1952 he was posted at Jhinjhana Range, district Muzaffarnagar, from where he was transferred to the Cigarette Factory by the order dated 8th September, 1952. As alleged by the petitioner, there was one Dharma a tobacco cultivator who got displeased with the petitioner as he wanted certain remissions in the assessments made by him, but the petitioner refused. Therefore, he lodged a complaint against the petitioner to the Assistant Collector, Meerut, upon which the Assistant Collecor, Meerut, asked the petitioner by a letter dated 10th of March 1953 to explain two matters.

I need not give the details of the matters on Which explanation was sought for. An explanation on those two matters was submitted by the petitioner on the 14th of May, 1953. On the 3rd of August 1953 he was served with another charge-sheet in which five matters were asked to be explained. The explanation was submitted by the petitioner on the 20th of October, 1953. The petitioner thereafter gives in the petition the details of the charges and the explanation which are not necessary to be given here in the judgment.

2. After the explanation of the charges had been given Sri Section P. Asthana, Superintendent of Central Excise, Dehradun, was appointed to make an enquiry into the matter by an order dated 19th of November, 1953, and the enquiry was conducted by the aforesaid Mr. Asthana from the 27th of January 1954 to the 30th of January 1954 in which the witnesses for the prosecution and the defence were examined. It was contended that two of the witnesses of the petitioner, that is, Janardan Das and Prakash Chand though served with a notice did not turn up. The petitioner applied for their resummoning, but that request was rejected by Mr. Asthana, who called upon the petitioner to submit his written argument, which was submitted on the 13th of February 1954. The Enquiring Officer submitted his report to the Collector, opposite party, on the 27th of February 1954.

On receipt of that report the Collector served a second notice upon the petitioner to show cause as to why the petitioner should not be removed from service though the Enquiring Officer had only recommended the withholding of the petitioner's increment for five years. In pursuance of that notice the petitioner submitted an explanation on the 7th of May 1954 and specifically requested the Collector to give an opportunity to him to be heard in person. Later on a supplementary explanation was further submitted on the 8th of June, 1954.

3. It is contended in the petition that the opposite party that is the Collector of Central Excise did not read the explanations nor gave an opportunity to the petitioner to represent his case personally and by his order dated 6th of September 1954 removed the petitioner from his post without considering the fact that the petitioner had to his credit a long service of about eleven years with creditable work and without any blemish. The petitioner applied to the Collector that fuller copy of the judgment may be given to him so that he may be in a position to file an appeal and he received a reply from the Collector dated 30th of September 1954 saying that the copy of the order supplied to him was the full order.

Against the order of the Collector the petitioner filed an appeal to the Secretary, Central Board of Revenue, New Delhi. That appeal was rejected and the petitioner was informed of the rejection by the Collector, Central Excise, on the 6th of December 1955. Thereafter the petitioner is said to have made a representation to the Hon'ble the Finance Minister of the Government of India which was forwarded to the President of India for consideration and the petitioner was informed by the Collector by his letter dated 22nd April 1957 that that petition has also been rejected. Thereafter this petition was filed in this Court against his wrongful removal.

4. Among the points raised by the learned counsel for the petitioner are: (1) That though in his explanation, which had been given second time to the notice to show cause why he sould not be removed from service, he had prayed that an opportunity be given to him of personal hearing, yet against the principle of natural justice, he was refused that right. (2) That the judgment does not show that his previous record of service was taken into consideration as required by Rule 156 of the Central Excise Circle and Divisional Office Procedure Manual (3) That there were certain alleged adverse remarks which had been made in the service-book but they had not been intimated to him from time to time when they were made and all of them were intimated to him in June 1954. The notice of adverse entry should have been given as and when it was made. (4) He had applied for re-summoning of Janardan Das Vaid and Prakash Chand and his application for resummoning them was rejected.

5. On behalf of the opposite parties a counter affidavit has been filed, iu which inter alia, it has been asserted, that it was wholly incorrect to say that the previous records were not taken into consideration and that any request for resummoning the witnesses had been made which was rejected.

6. Learned counsel for the opposite parties has further taken some of the legal grounds. They are:--

(1) That there has been inordinate delay in filing this writ petition in this Court. The order of removal is dated 6th of September, 1954 and he was informed by the Collector on the 6th of December 1955 that his appeal before the Central Board Revenue, New Delhi, had also been rejected and it was after the 6th of December 1955 that he should have come to this Court in a writ petition and his corning after a year and a half would be, a belated act.

(2) It was contended that the order of the Collector removing the petitioner from his service has merged in the appellate order of the Central Board of Revenue and without setting aside the order or the Central Board of Revenue, it will not be possible for this Court to restore the petitioner to his post and since the Central Board of Revenue or any of its officer has not been made a party to the petition the petition is incompetent

(3) That even if the Central Board of Revenue was a party it being beyond the jurisdiction of this Court, this Court could not entertain writ petition against the authority outside its jurisdiction.

(4) That in this case there are controversial questions of fact, and, therefore, the proper remedy of the petitioner lay in a civil court and not by way of a writ petition.

7. Before proceeding with the merits of the case I would like to dispose of preliminary grounds taken by the learned counsel for the opposite parties. The counsel for the opposite parties had argued that it is a matter of importance that persons, who want remedy in writ jurisdiction should come as soon as possible and ordinarily this Court refuses to entertain the writ petitions which have been filed beyond ninety days of the order complained against. In the present case if the petitioner complains against the order of the Collector dated 6th September, 1954, then the petitioner has come too late, that is, he has come about three years thereafter and in case the petitioner wants to have the order dated 6th December 1955 of the Central Board of Revenue set aside, then, in that event, also he has came more than a year and a half after.

He has further contended that in cases where public servants are removed they should come to this court at an early date because there is likely to be disturbance in the administration, if that post is kept vacant for a long time and in case the post is filled up complications are likely to arise. Decisions might take considerable time but the petitions should be filed within time. So far as the petitioner is concerned, he should have been alert enough to come to this Court immediately. Learned counsel has placed reliance on a decision of the Supreme Court of United States in the case of United States Ex. Rel. Arant v. Franklin K. Lane, (1918) 63 Law Ed. 650 wherein it has been observed as follows:--

'When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his case obvious considerations of public policy make it of first importance that he should promptly take the action requisite to effectively assert his rights, to the end that if his contention be justified, the government service may be disturbed as little as possible, and that two salaries shall not be paid for a single service.

Under circumstances which rendered his return to the service impossible, except under the order of a court, the relator did nothing to effectively assert his claim for reinstatement to office for almost two years. Such a long delay must necessarily result in changes in the branch of the service to which he was attached, and in such an accumulation of unearned salary that, when unexplained, the manifest inequity, which would result from reinstating him renders the application of the doctrine of laches to his case peculiarly appropriate in the interests of justice and sound public policy.'

8. After making that observation the Supreme Court held that they agree with the Court of Appeal that

'it is entirely unnecessary to consider whether the removal of the relator from office was technically justified or not, since by his own conduct he has forfeited the right to have the action of the Secretary of the Interior reviewed.'

So far as the Supreme Court as well as this Court are concerned, they have always been of unanimous opinion that if there had been laches in bringing the matter to this Court, this Court will not interfere.

9. On behalf of the petitioner it had been contended that since in Rule 168 of the Central Excise Circle and Divisional Office Procedure Manual, there was a provision for the petition to the President, therefore, if he had moved an application to the President that period should also be taken into consideration. The petition to the President, is in the nature of a mercy petition and does not actually give any right. The petitioner, I do not think is entitled to the time taken by him in moving the petition. Moreover, the petitioner, in his affidavit, has nowhere mentioned the date on which he had moved the petition to the Finance Secretary which was forwarded later on. How much time had elapsed in between, is also not known. Under the circumstances, I think the petitioner is guilty of laches.

10. The second and third gounds, which appear to be fatal to the petition, urged by learned counsel for the opposite parties about the defect of the petition, were that the Central Board of Revenue, New Delhi, or its officers were not made-party, and, even if they had been made party, this Court would have had no jurisdiction to pass an order against them, because the order of the Central Board of Revenue is an appellate and final order and its office is situate at New Delhi and is beyond the jurisdiction of this Court.

11. It is a well settled law that a High Court cannot issue a writ to an authority which has its office outside its jurisdiction. Their Lordships of the Supreme Court had laid down the proposition in the case of Election Commission, India v. Venkata Rao : [1953]4SCR1144 wherein the High Court of Madras had issued a writ against an Election Commission having its office permanently located at New Delhi and the Supreme Court set aside that order on the ground that the High Court of Madras could not issue any writ under Article 226 of the Constitution to an Election Commission having its office at New Delhi, which is beyond the jurisdiction of that Court.

12. In that case their Lordships of the Supreme Court held at page 213 as follows:

'We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its activities elsewhere exercises jurisdiction within those territorial limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as 'functioning' within the territorial limits of the High Court and being, therefore, amenable to its. jurisdiction under Article 226'.

13. Learned counsel for the petitioner contended that in that case their Lordships of the Supreme Court had specifically left open the case where the authority claiming to exercise jurisdiction over a matter at the first instance is located in one State and the appellate authority is located in another State. They did not decide the question whether the High Court in the first State would' have jurisdiction to set aside the order of the authority of first instance and also that of the appellate authority by which the first one was merely confirmed.

14. He further relied on a bench decision of the Rajasthan High Court Barkat Ali v. Custodian General of Evacuee Property of India , where it was held that

'The order really in dispute before the High Court was not the order of the Custodian General, but the order of the Custodian Rajasthan. As that order was passed by a person within the territories over which the High Court had jurisdiction, and related to Pali which was also within the jurisdiction of the High Court, the High Court could issue a writ against the Custodian of Evacuee Property Rajasthan, and the Assistant Custodian of Evacuee Property, Pali, though not to the Custodian General, whose office was located in Delhi'.

15. Learned Counsel further placed reliance on the case of State of U. P. v. Mohammad Nooh AIR 1958 SC 86 for the proposition that it is only for a limited purpose of limitation and execution that the decree of the trial Court merges in the decree of the appellate court when it is only confirmed, otherwise the effective decree is of the trial court and, therefore, this Court can interfere. The observations o their Lordships of the Supreme Court in that case were to the following effect:

'While it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree; or for computing the period of limitation for an application for final decree in a mortgage suit. But whatever be the theory under other systems ot law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted, where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective''.

He has further placed reliance on the case of Ghafar Shah v. Sikandar Shah, AIR 1935 Pesh 91, where the Peshawar Court held :

'An order dismissing a petition for revision does not substitute a decree of the revisional court for that of the court below. When a revising Court refuses to exercise its power of revision, it does not confirm any decree, but merely declines to interfere, leaving the decree of the court below intact as the decree of that Court.'

16. Another case on which reliance was placed was Joginder Singh Waryam Singh v. Director, Rural Rehabilitation, Pepsu, Patiala, (S) AIR 1955 Pepsu 91, where it was held :

'Where an appellant or his agent does not take effectual steps for the prosecution of his appeal before the Privy Council, the appeal stands dismissed for non-prosecution under Rule 5 of the Order in Council of 13th June 1953; there is no order of His Majesty in Council dismissing the appeal, nor it is necessary that any such order should be made in the appeal. Therefore, where a Privy Council Appeal is dismissed for non-prosecution, the executable decree is that of the lower court and the period of limitation for execution is that prescribed by Article 179 of the second schedule of the Indian Limitation Act, 1877.'

There were other cases on which reliance was placed including the cases of :

Karuppa Chetty v. Board of Commrs. for Hindu Religious Endowments AIR 1949 Mad 857; Buta Mal v. Financial Commr., Relief and Rehabilitation, Simla, ; Ranganathan v. Madras Electric Tramways, (1904) Ltd. : (1952)ILLJ772Mad and Ryots of Garabandho v. Zamindar of Parlakimedi .

17. So far as the case of , is concerned, in another Bench, deciding the case of Durgadas v. Custodian Rajasthan , Hon'ble Wanchoo, C. J., as he then was, reversed his own judgment. In that case a decision of this Court in Hafiz Mohammiad Yusuf v. Custodian General Evacuee Properties, New Delhi : AIR1954All433 and Thangal Kunju Musaliar v. H. Venkatachalam : [1956]29ITR349(SC) , were followed. Relying on the observation of the Supreme Court, their Lordships had said that the observations quoted in judgment were specific and clear cut and in view of those observations they held that the view taken in Barkat Ali's case , could no longer be sustained.

18. So far as the case of AIR 1958 SC 86 is concerned, that actually did not consider the question ot jurisdiction in writ petition. It was only a question of execution of a decree which was before their Lordships and I do not think that that case has any application to the present case. On the other hand the observations of their Lordships of the Supreme Court in the 1956 case : [1956]29ITR349(SC) are relevant. Their Lordships in that case laid down that a citizen has always a right to come to the High Court for the vindication of his rights and redress of his grievances and the only conditions of its exercise of that jurisdiction are firstly that the writ cannot run beyond the territories subject to its jurisdiction and secondly, the person or authority to whom the High Court is empowered to issue such writ must be 'within those territories' which already implies that they must be amenable to its jurisdiction by residence or location within those territories.

19. Considering other decisions their Lordships held in that case that :

'These decisions, however, are clearly not in point for, in each of them, the order passed by the authority within the territories and accordingly within the jurisdiction of the High Court concerned had merged in the order of the Superior authority which was located outside the territories and was, therefore, beyond the jurisdiction of the High Court. In that situation, a writ against the inferior authority within the territories could be of no avail to the petitioner concerned and could give him no relief for the order of the superior authority outside the territories would remain outstanding and operative against him.'

The reason given for this finding was that by issuing a writ against the agent or the subordinate authority under those circumstances, the High Court would be putting him in a position, whereby, he would be compelled to disobey the orders of his principal, and directions would be of no avail for the simple reason, that an agent or the inferior authority was bound to obey all lawful directions of his principal and not directions, which the High Court holds to be unlawful or not justified in law.

Most of the other decisions relied on by the applicant were based on the decision of their Lordships of the Privy Council in In the case of : [1953]4SCR1144 , their Lordships of the Supreme Court distinguished that case and observed that in any case the decision did not turn on the construction of a statutory provision similar in scope, purpose or wording to Article 226 of the Constitution, and is not of much assistance in the construction of that articles.

20. Their Lordships came to the conclusion

'As, therefore, no writ could be issued against that outside authority and as the orders against the authority within the territories would, in view of the orders of the superior authority, have been infructuous, the High Court concerned, had, of necessity, to dismiss the petition.'

21. So far as this Court is concerned, it has held in : AIR1954All433 , that

'the decree of an appellate court supersedes the decree of the first court, even in cases where the appellate court merely affirms the original decree.'

That case was under the Evacuee Property Act. There the objections of the petitioner were dismissed by the Assistant Custodian and an appeal from the order of the Assistant Custodian was dismissed by the Additional Custodian. Then an application in revision under Section 27 of the Administration of Evacuee Property Act was filed to the Custodian General, and the Custodian General dismissed that application in revision.

After the dismissal of the application by the Custodian General, a writ petition was filed in this Court challenging the order of the Assistant Custodian and this Court refused to entertain it on the ground that the dismissal of the petitioner's objections by the Assistant Custodian had merged in the order of the Custodian General, whose office was 'located in New Delhi, and, where he was ordinarily residing, and which was not within the territory in relation to which the Allahabad High Court exercised jurisdiction and, therefore, no writ of certiorari to quash the order of the Assistant Custodian could be passed.

22. In my opinion this case is very analogous to the present case. When the order of the Collector of Central Excise was appealed to the Central Board of Revenue and the Central Board of Revenue rejected the appeal, the order of the Central Board of Revenue would really be the final order and without setting aside the order of the Central Board of Revenue, it will not be possible to give any relief to the petitioner, and, since the office of the Central Board of Revenue is located at New Delhi this Court cannot call for the record from that office, and, the Central Board of Revenue being not a party to this writ petition, even no direction can be given to it to do anything.

23. This decision of the Allahabad High Court was approved in (S) AIR 1955 Pepsu 91, where besides the decision being approved the question was discussed at length and practically all the decisions of different Courts and the Supreme Court were discussed and it was hold that:

'Orders of the Assistant Custodian General passed in revision superseded those of the local tribunal and those really were the orders in dispute before the High Court. It would not be held that where a revision was dismissed the Assistant Custodian General did not confirm the order of the local tribunal but merely declined to interfere and it was therefore the order of the local tribunal which was in dispute and the High Court had jurisdiction to issue writs.'

was dissented from.

24. There is also the case of the Punjab High Court, a certified copy of which has been produced before me. It is Civil Writ No. 841 of 1958, Sri M. P. Bakshi, Ex-Inspector of the Life Insurance Corporation of India. This was a petition under Article 226 of the Constitution. In that case the petitioner was suspended by an order of the Divisional Manager of the Corporation on account of certain complaints of forgery. An enquiry was held and the petitioner was dismissed by the said Divisional Manager. The petitioner preferred an appeal to the Executive Committee of the Life Insurance Corporation, Bombay which was dismissed on 27-6-1958. Thereafter a petition was filed challenging the order of the Divisional Manager and of the Executive Committee. A preliminary objection was taken on behalf of the respondent that since the Executive Committee of the Life Insurance Corporation which made the final order was situated in Bombay and was not amenable to the jurisdiction of that Court, a writ could not be issued. This preliminary objection was upheld by the Punjab High Court on the ground that since the final order was that of the Executive Committee which was beyond the jurisdiction of the Punjab High Court, it had no jurisdiction.

25. In the circumstances, I think this court has no jurisdiction to interfere with the order of the dismissal of the petitioner after an order by the Central Board of Revenue has been passed which is beyond the jurisdiction of this court and the Board also is not a party to this petition.

26. Two of the matters upon which the petitioner challenges the order of dismissal are questions of fact which are not admitted. They being whether previous records had been taken into consideration or not and whether there was an application for resummoning of the witnesses or not. As already mentioned the counter affidavit filed on behalf of the opposite parties has said that the previous records had been taken into consideration and there was no prayer for resummoning of the witnesses.

There is no written application which is alleged to have been filed for resummoning of the witnesses and these two questions of fact can really be not properly agitated in a writ petition, where no evidence can be taken and the matter has to be decided simply on affidavits. In a very similar case their Lordships of the Supreme Court held in Union of India v. T. R. Verma : (1958)IILLJ259SC , as follows:

'At the very outset, we have to observe that a writ petition under Article 226 is not the appropriate proceeding for adjudication of disputes like the present. Under the law, a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights, and in such an action, the Court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ petition.'

Their Lordships considered that:

'It is true that the existence of another remedy does not affect the jurisdiction of the court to issue a writ, but, .....' the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. ..... And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor.'

In that case there were serious disputes on questions of fact which could not be satisfactorily decided without taking evidence and, therefore, their Lordships held that :

'It is not the practice of the Courts to decide I questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit.'

As I have just mentioned above, there are also disputes in the present case about questions of fact whether any application was made for resummoning of the witnesses or not and whether that was rejected or not.

27. So far as the judgment, which is a very short one and not of a speaking type, is concerned, I do not think that in departmental enquiries it is necessary to write long judgments giving the facts and the reasons for its decision. Mere absence of the mention of consideration of the previous records will not ipso facto prove that the authority had not considered the previous records.

28. There might have been something to be said on the question of refusal to summon the witnesses, but as that is a controversial matter and cannot be decided in a writ petition I do not think on that ground I can give any relief to the petitioner. In the petition it had not been alleged that the adverse remarks had not been given to him as and when they were made. In the counter affidavit while refuting the allegation that his previous record was not considered, it was contended that there had been some adverse remarks also which had been communicated to the petitioner from time to time. With the rejoinder, affidavit copies of the adverse remarks had been filed.

The copies which had been filed, from which it appears that they had all been given on the 24th June, 1954, I might have made enquiries whether they had been given earlier or not but as in the present case before the final order of dismissal had been passed the petitioner had full opportunity to meet those adverse remarks, I think that would not in any way affect the decision of the authorities. As the petitioner had not been prejudiced he cannot complain about their being given at a late stage.

29. The learned counsel for the petitioner had argued at great length that refusal to give a personal hearing was in violation of the principles of natural justice. In paragraph 18 of the affidavit it was alleged that while he had submitted his explanation on the 7th May, 1954 he had specifically requested the Collector to give him an opportunity of being heard in person. In reply to this paragraph in the counter affidavit it was alleged that all possible opportunity was afforded to the petitioner. The petitioner was present all through the enquiry proceedings right up from the time the charge sheet was framed and he participated therein and cross-examined the witnesses, who deposed against him and even produced oral and documentary evidence.

The petitioner had full opportunity to urge any point in his written explanation, and he did avail of this opportunity. It was contended by the learned counsel for the petitioner, that this opportunity of personal hearing was given to him at the first stage, but after the show cause notice, why he should not be removed from service, no opportunity was given, and by his petition dated 7th May, 1954 he had specifically asked for a personal hearing on the second occasion. It was contended by him that by Rule 55 of the Fundamental Rules it was obligatory on the department to give him an opportunity of personal hearing. This rule provides:

'The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. .....''

Reliance was placed on the words 'he desires to be heard in person' and it was contended that he had in his petition asked specifically for being heard personally.

30. What Article 311(2) of the Constitution contemplates is that there shall be two stages: (1) the enquiry stage and (2) after enquiry where a further opportunity to show cause against the punishment proposed is to be given. I need not cite authorities for this proposition as it is a well settled proposition of law. Again at the enquiry stage what 'reasonable opportunity' means within the meaning of Article 311(2) has been given in several authorities. Inter alia I might mention the cases of Joseph John v. State of Travancore-Cochin, 1955 Section : (1956)ILLJ235SC and Khem Chand v. Union of India : (1959)ILLJ167SC . An analysis of different authorities establishes that at the initial stage reasonable opportunity requires (a) the authority must (i) frame specific charge with the allegations on which they are based; (ii) intimate those charges to the Government servant concerned; fiii) give him an opportunity to answer those charges; (iv) give him an opportunity to defend himself against those charges by cross-examining witnesses produced against him and by examining himself or any other witnesses in support of his defence; (v) after considering his answers take its decision; (b) the rules of natural justice should be observed in coming to the finding against the accused.

31. After the enquiry and a finding by the Enquiring Officer that the servant concerned was guilty of any of the charges levelled against him, a further opportunity to show cause against the punishment proposed has to be given. At this stage the competent authority, after it is over, and after applying his mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the three punishments specified in Clause (2) of Article 311, communicate the same to the Government servant and gives him a reasonable time and opportunity to make his representation why the proposed punishment should not be inflicted on him.

32. Rule 55 mentioned above speaks about the opportunity of personal hearing if desired to be given at the time of the enquiry and in my opinion Rule 55 has no application, to the show cause notice which is given after the enquiry when punishment is to be determined. If Rule 55 had not provided that if the Government servant wants a personal hearing he should be given and if the same was not given then it could not be said that any principle of natural justice had been violated. In my opinion, reasonable opportunity to show cause does not necessarily include the right of personal hearing at every stage. This right may be given and may be in some cases proper, but it will not be an essential condition that in every case it should be either offered or if not given then in that event, the dismissal or removal would be bad.

33. Learned counsel for the petitioner relied on the case of Ramesh Chandra Verma v. R. D. Verma : AIR1958All532 a learned single judge of this Court had observed as follows:

'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.'

It was further contended that if personal hearing is not given it would be a contravention of the principles of natural justice. In the present case the learned single Judge was referring to the enquiry stage and not to the second stage as Rule 55 itself provides that if at that stage the Government servant concerned wants a personal hearing he should be afforded an opportunity. But this observation of the learned single Judge does not apply to the subsequent stage, where the punishment is to be determined.

34. Reliance was further placed on the case of Dipa Pal v. University of Calcutta : AIR1952Cal594 . That was not a case of dismissal. In that case one student had appeared in the examination and she had obtained pass marks but she was not allowed to pass because there was a suspicion that she had copied and then without any opportunity having been given to her the case was decided against her and then a writ petition was filed. There was no specific mention that because she was not given a personal hearing, therefore, the decision was bad. In that case, actually no opportunity at all was given to her, and the case was entirely decided without bearing. That would be entirely a different matter.

35. On the other band learned counsel for the opposite parties has relied on the decisions of the Supreme Court as well as of the House of Lords for the proposition that personal hearing at every stage is not necessary. One of such decisions is F. N. Roy v. Collector of Customs, Calcutta : 1983ECR1667D(SC) . In paragraph 1 their Lordships have observed as follows:

'It was then stated that the petitioner had not been given personal hearing of the appeal that he preferred to the Central Board of Revenue and the application in revision to the Government. But there is no rule of natural justice that at every stage a person is entitled to a personal hearing.'

In several decisions including the decision of : (1958)IILLJ259SC their Lordships have nowhere laid down that personal hearing would be one of the ingredients of reasonable opportunity. In the above case they have observed in paragraph 10 as follows:

'Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conluct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law.

Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence at the opponent should be taken in his presence, and that he should be given the opportunity o cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.

If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.'

In the present case there is no complaint that any of the conditions mentioned above had been violated.

36. Reliance was further placed by the learned counsel for the opposite parties on The King v. Local Government Board, Ex parte, Arlidge, 1914-1 KB 160 where it had been observed as follows:

'It is said that a written argument is an illusory tiling that there is no eloquence or at least no persuasion but in speech. Parliament should know something about that, and it has left the matter to the Board. I find the contention bewildering. Are reasoning and writing mutually exclusive processes? The appellant desires to enjoy what Mr. Uphohn felicitously calls the bound and rebound of ideas and arguments between the 'Bench and the Bar'. This invests with authority a practice for should I say a foible) of Judges, which I had believed to be pardonable and hoped to be not without its uses, but I am unable to see that it is the very pith of the administration of natural justice.'

This case went up in appeal to the House of Lords and the decision is reported in Local Government Board v. Arlidge, 1915 AC 120. At page 134 Lord Chancellor held as follows:

'I do not think the Board was bound to hear the respondent orally, provided it gave him the opportunities he actually had.'

37. In re, Shanmuga Mudaliar : AIR1951Mad276 a similar view was taken by that Court. A Bench of that court relied on 1915 AC 120 and rejected the contention that personal hearing was an essential ingredient. The only ground on which the writ petition was sought was that the Board had not given an opportunity to the petitioner to be orally heard. In that case it was held that:

'There is nothing in the Act or in the Rules framed thereunder which enjoins on the Board the duty to give an oral hearing to a person who invokes their revisional jurisdiction. All that quasi judicial Tribunals like the Board of Revenue have to do is to give sufficient opportunity to the persons who approach them for the exercise of their jurisdiction to state their case.'

38. In the present case I think the petitionerhad been given full opportunity. He had submitteda detailed explanation and I do not think by hispersonal appearance he would have had in any wayimproved the matter and if personal hearing hadnot been given, he had been prejudiced in any way.The petition has, therefore, no force. It is accordingly dismissed with costs which I assess at Rs. 100/-.


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