P.K. Tare, J.
1. This appeal is by the plaintiff, whose suit was dismissed by the two courts below. It arises out of the decree dated 31-3-1956 passed by Shri D.M. Aney, Second Additional District Judge, Jabalpur, in Civil Appeal No. 6-A of 1956, arising out of the decree dated 1-11-1954 passed by Shri L.S. Khare, First Civil Judge Class II, Jabalpur, in Civil Suit No. 204-A of 1953.
2. The appellant was a supervisor in the Military Dairy, Jabalpur. Upon a report from the security staff attached to the Military Sub-area, a Court of inquiry consisting of 3 persons was constituted in order to inquire into the mal-practices, said to have been prevalent in the military dairy farm. The appellant held the post in the civilian section of the Defence Department. The court of inquiry submitted a report, in pursuance of which, a charge sheet, dated 2-4-1952 was framed against the appellant. One, Major Sarwansingh was directed by the order dated 30-10-1952 to hold an oral enquiry into the charges against the appellant.
He submitted his final certificate about the conclusion of the inquiry on 6-11-1952. He, however, did not record any findings of his own, but submitted the papers of the appellant's case to the authority, who was competent to take disciplinary action against the appellant. A show cause notice dated 21-3-1953 was issued by the competent authority, in reply to which the appellant furnished his explanation. Finally the appellant was dismissed from service by order dated 14-8-1953. The dismissal order has not been produced by either of the parties. But the fact of dismissal was not disputed during arguments. An intimation of the fact of dismissal was however communicated to the appellant by the Manager of the Military Dairy Farm.
3. The learned counsel for the appellant did not challenge the findings of the Court of inquiry; but, confined his case to a contravention of Article 311(2) of the Constitution of India. In the alternative it was urged that even if Article 311 of the Consititution were held inapplicable to the appellant, Service rules governing the appellant, embodying the principles of Article 311, had been violated and, therefore, the appellant's dismissal was wrongful and illegal, as being in contravention of the Service Rules, as also opposed to the principles of natural justice.
4. The most important question for consideration is whether a member of the civilian personnel connected with the Defence Department is governed by the constitutional safeguard, provided by Article 311 of the Constitution. In this connection it is significant to note the difference in the language of Articles 309 and 310 on the one hand; and Article 311 on the other hand. Article 309 of the Constitution lays down that subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.
The President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, is empowered to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature.
5. Article 310 of the Constitution provides that except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President. Sub-clause (2) of the said Article provides that notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor or Raj Pramukh of the State, any contract under which a person not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor or the Rajpramukh, as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or ho is, for reasons not connected with any misconduct on his part, required to vacate that post
In Article 311 of the Constitution, there is no reference to a member of Defence Services or to a person holding a post connected with defence. It mentions a member of a civil service or an all India service or a person holding a civil post under the Union. From this it can reasonably be inferred that the omission to mention persons in civilian sections connected with defence excludes all persons connected with defence from the operation of Article 311 of the Constitution
6. But Article 310 of the Constitution empowers the President to frame service rules or regulations and a person who is not entitled to the protection of Article 311 may be entitled to benefit conferred by the service rules or the regulations. The learned Judges of the Calcutta and Punjab High Courts took this view in Nagendra Kumar Roy v. Commrs. for the Port of Calcutta. fS) AIR 1955 Cal 56, Subhodh Ranjan Ghosh v. Major N.A.O. Callaghan, AIR 1956 Cal 532 and Dass Mal v. Union of India, AIR 1956 Punj 42. It is, therefore, clear that as the language of Article 311 indicates, the appellant is beyond the purview of the said Article.
7. However, Army Instructions (India), 1949, which would govern the appellant's case, provided for the same safeguards to civilians connected with the defence service. Under instruction no. 212, the following discipline and appeal rules were framed:
'Rule 6. Service of a charge sheet: No order of dismissal, removal or reduction shall be passed on a government servant unless he has been informed in writing of the grounds on which it is proposed to take action, and he has been afforded an adequate opportunity for defending himself. The ground 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 persons charged together with a statement of the allegations on which such charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.
He will 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 directs, 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 have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for special & sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof.
In case a Board of Inquiry is held to investigate into an incident and no formal charges have been framed as against any one at this stage, a Government servant, involved in the incident against whom disciplinary action is contemplated should subsequently on the basis of the finding of that Board of Inquiry, be served with a charge sheet and asked to put in a written statement in his defence within a reasonable time.
He should also be furnished with a copy of the proceedings of the Board of Inquiry and asked whether he wishes further to examine Or cross-examine any witness. If he expresses a desire to do so, the officer conducting the inquiry should arrange to summon the witnesses concerned provided that officer may, for special and sufficient reasons to be recorded in writing, refuse to call a witness.'
8. Rule 7 of the said Rules is as follows:
'The defence of the government servant referred to in the above rule should be carefully considered in the light of the evidence, disclosed in the proceedings of the enquiry.'
Rule 8 is as follows:
'Notice to show cause: On completion of the enquiry after the punishing authority has considered the defence of the accused and arrived at a provisional conclusion must, if the penalty, to be imposed on the accused is dismissal, removal or reduction, be called upon to show cause within a reasonable time not ordinarily exceeding a fortnight, against the particular penalty proposed to be inflicted.'
Rule 9 of the said Rules is as follows:
'(1) Any representation submitted by the accused in this behalf should be duly taken into consideration before final orders are passed.
(2) This is necessary to ensure compliance with the provisions of Article 311 of the Constitution of India, and with the provisions of Section 240(3) of the old Government of India Act, 1935 in respect of cases occurring before 26th January, 1950.'
It will thus be seen that the said rules not only ensure a proper departmental enquiry against a guilty person, but also provide for the same safe-guara, as is provided by Article 311 of the Constitution of India. Subsequently the said Army Instructions were substituted by Army Instructions No. 176 of 1955. In the present case, we are not concerned with the Army Instructions No. 176 of 1955, as the appellant's dismissal was prior to the enactment of those instructions.
9. The Government framed Civilians in Defence Services (Classification Control and Appeal) Rules 1952, regarding classification, discipline and appeals of the civilians connected with defence services. Rule 15 of the said Rules is as follows:
'Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a service (other than an order based on facts which had led to his conviction in a criminal court or by a Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself.
The grounds on which it is proposed to take action shall be reduced to the form of 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 i,s 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 directs, an oral enquiry shall be held. At that enquiry 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 enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.
On completion of the enquiry after the authority empowered to impose the penalty has considered the defence and arrived at a provisional conclusion in regard to the penalty to be imposed the person charged shall, if the penalty is dismissal, removal, compulsory retirement or reduction, be called upon to show cause within a reasonable time, not ordinarily exceeding a fortnight, against the particular penalty to be imposed. Any representation submitted by the person charged shall be duly taken into consideration before final orders are passed.
This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.
Government of India's order. A Government servant who is required to perform a journey to attend a departmental enquiry (other than a police enquiry) held against him under Rule 15 of Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, at a station other than his headquarters, may be allowed travelling allowance as for a journey on temporary duty from his headquarters to the place where the departmental inquiry is held and back. No travelling allowance will, however, be admissible if the inquiry is held at the outstation at his own request.
The above provision will apply to Government servants as referred to above either on leave or under suspension, subject to the conditions that T.A. will be admissible to the place of inquiry either from his headquarters or from the place where he was on leave or was permitted to reside during suspension, whichever is less, and will be regulated in accordance with the grade to which he belonged prior to his going on leave or suspension. Similar T.A. will be admissible for the return journey.
T.A. rules for witness attending departmental inquiry will continue to be governed by AI 324/61 as amended. However, civilian Government servants who are cited by the accused Government servants as witnesses and are summoned by the inquiry officer, in a departmental inquiry to give evidence at a station other than the stations where the said witnesses are serving or residing, are not entitled to receive T.A. as the interests of the Government are not served by their evidence.'
This rule is applicable not only to cases of dismissal, removal of reduction; but also to a case of compulsory retirement. As such this rule covers cases of compulsory retirement as well, which is not the case under Article 311 of the Constitution.
10. Under Articles 309 and 310 of the Constitution, the President has the power to frame the necessary rules applicable to civilian personnel connected with defence services. Therefore, if those rules make the provisions of Article 311 of the Constitution, applicable to such personnel, they will get the protection of the Article not by virtue of the Article itself, but by virtue of the rules framed under Articles 309 and 310 of the Constitution. It is, therefore, clear that the appellant will get the benefit of the safeguards provided by the rules, which are on lines analogous to Article 311 of the Constitution.
11. Corning to the merits of the present case we find that after the proceedings before the Court of inquiry were completed, the following charges were framed against the appellant:
'The accused Asstt. Supervisor Kapoor Singh is charged with:
(i) Misappropriation of Government property,
(ii) Falsification of accounts,
(iii) An act prejudicial to good order and discipline,
in that he whilst employed as Dairy Incharge of Military Farm, Jabalpur,
(i) sent out unaccounted for 926 lbs. of milk and 1 lb. of butter on 14-6-1951 for cash sale to unauthorised persons through deliverymen Shiv Parshad s/o Vithobaji, Bandoo s/o Guthumunilal, Ram Dulare, Ajudhia s/o Gayadin and Ram Autar s/o Ciamber and other unauthorised persons. But for the detection by Field Security Officer on the morning of 14-6-1951 the sale proceeds would have been misappropriated by him, as it was the fraudulent practice in the past;
(ii) failed to account for the replaced milk in the place of bad milk in the relative check sheets and IAPS 1520 and not completing salesman check sheets at the time of issue which practices are contrary to orders;
(iii) instigated witnesses Butterman Vishwanath and Hari Pershad of dairy section to change their original statements and deliberately despatching milk of various Units in one can thereby encouraging deliverymen to cheat and misappropriate milk issued to them;
(iv) selling milk coupons to unauthorised persons against cash, which was not accounted for in Military Farm Jabalpur accounts.
A.D.R.V., and Farms.'
By order dated 30-10-1952, Major Sarwansingh was directed to conduct an oral enquiry into the appellant's ease, with a further direction that he was to follow the procedure laid down in paragraph 6 of Army Instructions No. 212 of 1949. Major Sarwansingh accordingly conducted the inquiry and submitted the papers of the appellant's case to the competent authority. He did not record any findings about the guilt of the appellant.
12. A show cause notice dated 21-3-1953 was issued by the Brigadier to the appellant, which is in the following terms:
'Alter careful consideration of the defence tendered by you in the light of the charges levelled against yon and all other evidence on record it is provisionally proposed to dismiss you from service.
Will you please therefore show cause within a fortnight from the date of receipt of this communication as to why the above mentioned proposed penalty should not he inflicted.
Sd/- M.L. Bhandari
13. In reply to the said show cause notice, the appellant submitted his explanation and finally the appellant was dismissed from service. The order of dismissal is not on record. Therefore, it is not possible to know the grounds o[ the appellant's dismissal except with reference to the show cause notice dated 16-4-1953. Even the inquiry officer Major Sarwansirig did not lecord any findings.
14. The learned counsel for the appellant challenged the constitutionality of rule 6 of Army Instructions No. 212 of 1949, relating to the findings of Board of Inquiry being accepted for the purpose of the departmental inquiry, which is to follow the formal inquiry. As rule 6 lays down an elaborate procedure giving full opportunity to the employee concerned to put his defence including examination of witnesses, the said rule cannot be said to be unconstitutional in any manner. As rule 8 specifically provides for a show cause notice on the lines of the provision of Article 311(2) of the Constitution, the provision of Rule 6 is not such a procedure, which would be in denial of the principle of natural justice.
As rule 6 is framed, it stands on altogether a different basis- from rule 1709 of the State Railway Establishment Code, which also provides for a summary enquiry departmentally after the Inquiry Committee has inquired into the causes of an accident, and in some cases even the departmental enquiry is dispensed with. But under Army Instructions 212, the departmental enquiry is not at all dispensed with. Therefore, I am of opinion that rule 6 is constitutional and valid.
15. The learned counsel for the appellant was unable to point out any irregularity in the matter of holding the departmental enquiry or in the matter of an opportunity being afforded to the appellant to put up his defence. However, the learned counsel pointed out contravention of rule 8 of Army Instructions No. 2f2 of 1949, relating to denial of a reasonable opportunity to show cause against the action proposed to be taken.
16. As Rule 6 contemplates elaborate enquiry after the findings of the Board of Inquiry, it is necessary that the competent officer, who has the power to impose panalry, should come to a conclusion about the guilt of the employee. In departmental enquiries, the conclusion regarding the guilt of an employee is usually apparent from the findings or the report of the Enquiry Officer. In the present case the Enquiry Officer Major Sarwansingh recorded no such findings.
In the show cause notice dated 21-3-1953, the dismissing authority has merely stated that after careful consideration of the defence in the light of the charges levelled, and all other evidence on record, it was provisionally proposed to dismiss the appellant from service. As many as four charges were framed against the appellant. There is no material on record to indicate as to on what charges the dismissing authority held the appellant guilty and what punishment was proposed for each charge found proved. Thus it is amply established in the present case that there was a clear contravention qf Rule 8 of Army Instructions No. 212 of 1949, which is analogous to Article 311(2) of the Constitution.
17. Their Lordships of the Supreme Court in a series of cases have laid down that the provisions of Article 311(2) are substantial and a mere technical compliance with the same would not be enough. In P. Joseph John v. State of Trav-Co., (S) AIR 1955 S.C. 360, their Lordships of the Supreme Court approving of the Privy Council decision in High Commissioner for India v. I. M. Lall, 75 Ind App 225: (AIR 1948 PC 121) held that the opportunity to show cause ought to be given alter the guilt of the employee is determined and a provisional punishment is proposed.
Their Lordships of the Privy Council in the said ease have emphasised the need for a strict compliance with the provisions of the constitutional safe-guard and that even if a guilty person is denied the constitutional opportunity, he is entitled to urge that the order of dismissal is liable to be quashed on that ground alone. In the present case, there is no document except the show cause notice to indicate that the guilt of the appellant had been provisionally determined. But as the show cause notice itself is vague on the point, it cannot be said with any reasonable certainly that the dismissing authority applied his mind to the question of the appellant's guilt With reference to each charge and the proposed punishment for every charge found proved. In Khemchand v. Union of India, AIR 1958 SC 300, their Lordships of the Supreme Court laid down the following dictum regarding the reasonable opportunity to be afforded to a civil servant;
'(a) An opportunity to deny his guilt and establish his innocence, which he can only do it he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry 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 and communicates the same to the government servant.'
Their Lordships further reiterated the same principle in Union of India v. Jiwanram, AIR 1958 SC 905. [n view of the pronouncement of their Lordships of the Supreme Court, a strict compliance with the provisions of Article 311(2) is absolutely necessary before the eivil servant is either dismissed or removed or reduced in rank. The Army Instructions also provide a similar safeguard against compulsory retirement. However, we are not concerned with that in the present case.
When multiple charges are framed against an employee, it is necessary for the dismissing officer to apply his mind regarding the guilt of the employee on each charge and to propose a punishment for such charges as are held proved by him. A mere vague assertion that the dismissing authority finds the appellant guilty is tantamount to denial of a reasonable opportunity as contemplated by Rule 8 of the Army Instructions 212 of 1949.
A Division Bench of this Court presided over by Sinha C. J. (as he then was) and Bhutt J. (as he then was in Krishnarao v. The State, Misc. Petn. No. 55 of 1953 D/- 29-7-1953 (Nag) held that the show cause, notice was invalid, as it did not make any mention of the decision of the dismissing authority on the different charges nor did it specify on which of the charges action of dismissal was provisionally decided upon.
The learned Judges were of the view that unless an employee was made aware of the charges held proved and punishment to be proposed on each of the charges indicated, he could not effectively put up his defence that there was no proper compliance with the requirements of Article 311(2) of the Constitution. Therefore, the learned Judges held the dismissal to be unconstitutional in that case.
18. In the present case, as there was a patent contravention of Rule 8 of Army Instructions No. 212 of 1949, the dismissal was wrongful and illegal. By virtue of Rule 9 of the said Instructions, Article 311 of the Constitution was made applicable to the civilian employees connected with defence. Apart from that Rule 8 specifically provided for the same safeguard as Article 311(2) of the Constitution,
Upon any view that may be taken on the applicability of Article 311 of the Constitution of India to the appellant's case, his dismissal was clearly wrognful and illegal, if not unconstitutional. Therefore, the said order cannot be upheld in the present case.
19. For the reasons aforesaid, this appeal succeeds and is allowed with costs throughout. Theappellant's dismissal dated 14-8-1955 is declared tobe wrongful and illegal and it is further declaredthat he snail be deemed to have been in service. Theauthorities shall, however, he free to deal with the appellant in accordance with law. Leave for filingLetters Patent Appeal under Clause 10 of the LettersPatent is refused. Counsel's fee Rs. 50/- if certified.