K.L. Pandey, J.
1. By an order dated 1 May 1961, the State Government directed that the petitioner, who was employed as Superintendent, Colonisation Department, Gwalior, and who was found guilty of misconduct and breach of Government Servants' Conduct Rules, be reduced in rank and posted as an. Upper Division Clerk in the same department. Insupersession of this order, the 'State Government passed another order dated 30th May 1961 whereby he was permanently reduced to the rank of an Upper Division Clerk with a maximum salary of Rs. 150/- and the period, of his suspension, was not treated as on duty except for purposes of pension. By this petition under Article. 226, of the Constitution, he has challenged these two orders. (2) On 12th March 1959, the petitioner was suspended with immediate effect and thereafter a departmental enquiry was ordered against him on the following charges:
(i) He got an application dated 26th May 1952 made by his minor son for the allotment of the land of one Shivnath Singh and suppressed therein the fact that the applicant was a minor,
(ii) That in spite of the fact that pattas were distributed on 24th July 1951, it was stated in the application that pattas had not been distributed,
(iii) That forged applications from Shri Mulaimsingh and others to facilitate the grant of a patta to his minor son.
(iv) In contravention of Rules 3 (1) and 10 of the Madhya Bharat Government Servants' Conduct Rules, he did not intimate the fact that, upon the death of his son, he came into possession of the land,
(v) In contravention of Rule 11 of the said Rules, he failed to give intimation about the said. land.
the State Government appointed the Collector of Morena as 'enquiry officer' but he deputed Shri S. N. Shrivastava Deputy Collector, Morena, to hold the enquiry. Upon service of the charge-sheet on the petitioner, he submitted: his explanation dated 22nd January 1960 in which he contested all the charges on factual and other grounds. On this date, even before any witness was examined against the petitioner, he was asked to submit a list of-his defence witnesses. In response to this, he filed on the adjourned date an application to say that the case was very old, that he had submitted his reply to the charges and that the case be decided on merits 'on the basis of records'. Thereupon, without recording any oral evidence, the Deputy Collector submitted his report dated 26th March 1960 to the effect that all the charges were proved. The Collector of Morena then heard the petitioner and made further report dated 2nd April 1960 holding that the charges (i), (ii), (iv) and (v) were fully, proved. This report was accepted by the State Government which then, issued a show-cause notice dated 12th August 1960. In his reply dated 5th September 1950, 'the petitioner attacked the proceeding 'inter alia' on the ground that no enquiry was made, that no evidence was recorded and that some of the conclusions were mere surmises based on no evidence, which he could not rebut in any manner. Without specifically considering the petitioner's grievances against the conduct of the enquiry, the State Government passed the two impugned orders.
3. Although numerous grounds have been raised in support of the petition, only three of these were pressed before us. It was urged that when the Collector was appointed the 'enquiry officer', he could not have delegated the holding of the enquiry to a Deputy Collector. We consider that, when the authority competent to punish a delinquent civil servant entrusts the enquiry to a subordinate officer, that officer should himself make the enquiry and not delegate this duty to any other. However,we are of the view that this is only an irregularity which does not vitiate the enquiry unless it appears that it has prejudiced the civil servant
4. The second point is more substantial and we arcof opinion that it vitiates the enquiry. As we have indicated earlier, no oral evidence was recorded and, in that sense, there was no enquiry, though the charges couldbe proved only by evidence other than the application dated 26th May 1962 and the application made by Mulaimsingh and others. It was urged before us that the petitioner himself wanted the case to be decided on merits 'on the basis of records' and he could not now be heard to say that he was thereby prejudiced. In ouropinion, this is not correct. The enquiry officer committed the initial mistake of requiring the petitioner to furnish a list of his defence witnesses before any witness was examined against him or he was told that certain documents on record fully established the charge againsthim. The petitioner's application dated 15th February 1960, in the circumstances, was merely an intimation that he did not want to read any oral evidence in his defence. It was open to him to rely upon cross-examination of thewitnesses proposed to be examined against him and to say that he did not wish to lead any oral evidence in his defence. The argument that the petitioner induced the enquiry officer not to record any oral evidence does not bear examination, in his report the Deputy Collector stated:
'No evidence was recorded in this case as it wasnot deemed necessary in view of the facts on the record.Shri Anand Narain Shukla also in his letter dated 15-2-1960 has requested to decide the case on merits onthe basis of the record and has not cited any witness in his defence.'
The Collector similarly stated:
'No evidence was recorded and Shri Shukla specifiedthat he did not wish to lead any evidence as all the evidence was a matter of documentary record.'
In our view, the enquiry officer was not relieved of hisobligation to take oral or other evidence in support of the charges merely because the petitioner did not wish to lead any oral evidence in his defence. We are also of opinion that the constitutional protection afforded to acivil servant cannot be: denied to him merely by founding a case against him on surmises.
5. In this situation, when, in his reply to the show cause notice, the petitioner complained that there wag no enquiry and he had no opportunity of defending him-self, the State Government ought to have ordered a fresh enquiry. This is what the Supreme Court stated in Khem Chand v. Union of India, 1958 SCR 1080 at page 1099 : (AIR 1958 SC 300 at p. 308):
'Of course if the government servant has been through the enquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, which implies that if no enquiry has been held under Rule 55 or any analogous rule applicable to the particular servant then it will be quite reasonable for him to ask for an enquiry.'
it is urged that there was, In this case, art enquirywhich had been properly carried out and the inferencesdrawn from such evidence as could be collected were not open to challenge in these proceedings. If an enquiry is properly carried out, that is no doubt the true position. But when the inferences are mere surmises largely because there was no proper enquiry, it cannot be contended that the obligation to hold a proper departmental enquiry had been duly carried out. In Jagdish Prasad v. State of Madhya Bharat, AIR 1961 SC 1070, the Supreme Court stated:
'The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry, it would not be fair to strain facts against the appellant.' (Page 1074)
In State of Madhya Pradesh v. Chintaman Sadashiva, AIR 1961 SC 1623, the Supreme Court stated at page 1629: 'Whenever it is urged before 'the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity, it would be open to the High Court to examine the matter and decide whether the requirements of Article 311 (2) have been satisfied or not.'
In our opinion, having regard to the manner in which the enquiry was held in this case, the petitioner was not given a reasonable opportunity of defending himself and thereby denied the protection afforded by Article 311 (2] of the Constitution.
6. We would now take up the last point urged before us. Admittedly the report of the enquiry officer, namely the Deputy Collector, was not supplied to the petitioner along with the show-cause notice. It is argued that the Deputy Collector was asked to make an enquiry with a view to acquainting the Collector with the factual position of the case pertaining to the charges, that the final report was made by the Collector himself and that it was not necessary to supply to the petitioner a copy of the Deputy Collector's report especially when he did not ask for it. In our opinion, a further opportunity to show cause as contemplated by Article 311 (2) of the Constitution implies that the reasons for coming to the conclusion about a civil servant's guilt must be communicated to him. We have no means of knowing to what extent the Collector and the State Government were influenced by the report of the Deputy Collector about the 'factual position' in a situation in which we find that he actually held the petitioner guilty of all charges. We think that, in the circumstances of the case, the petitioner was entitled to a copy of that report. However, having regard to the view we have taken of the second point, we do not consider it necessary to dwell further on this point.
7. The result is that the petition succeeds and is allowed. The orders dated 1st May 1961 and 30th May 1961 are quashed. The respondent shall bear its own costs and pay those incurred by the petitioner to whom the security amount shall also be refunded. Hearing fee Rs. 50/-.