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Nathuram Dansena Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 120 of 1966
Judge
Reported inAIR1967MP207; (1968)ILLJ660MP
ActsConstitution of India - Article 311(2)
AppellantNathuram Dansena
RespondentState of M.P. and ors.
Appellant AdvocateJ.N. Bagrath, Adv.
Respondent AdvocateA.P. Sen, Adv. General and ;K.K. Dube, Govt. Adv.
DispositionPetition dismissed
Cases ReferredQuinn v. Leathem.
Excerpt:
.....that the punishment proposed is excessive. if the proposed punishment was 'mainly based upon' the previous record of a government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from ihe know ledge of the government servant .we therefore, hold that it is incumbent upon the authority to give the government servant al the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an ex planation''(underlining (herein ') is ours) the supreme court further said in the present rase the second show cause notice does not..........while imposing the punishment of dismissal the divisional forest officer took into account the previous record of the petitioner; and that he was not entitled to do so when the petitioner was not informed by the showcause notice which was issued to him. that his previous record would be taken into account for determining the punishment to be imposed upon and when the previous record was not even disclosed in the aforesaid notice. learned counsel placed reliance on state of mysore v. manche gowda. atr 1964 sc 506 4. in our judgment, this application must be dismissed. the decision of the supreme court cited by the learned counsel has no applicability here that was a case where an enquiry was held on certain charges against manche gowda an assistant to the additional development.....
Judgment:

Dixit, C.J.

1. The petitioner in this case challenges the legality of an order passed by the Divisional Forest Officer, Raigarh Division, on 23rd November 1964 dismissing him from service, and prays for the issue of a writ of certuirari for quashing that order.

2. The applicant was employed as a Forest Guard in Raigarh Division. In 1964 a departmental enquiry was held against him on the charges that he did not report illicit felling and the 'damage of standards' during a certain period and was thus guilty of gross neglect of duty, and that he also connived at the illicit felling of trees done by Bansidhar Sharma to whom Coupe VIII Putukachar had been sold. The departmental enquiry was held by Shri Hazara Singh, Range Officer, Udaipur Range. At the end of the enquiry, he found the two charges to be prima facie established against the petitioner Thereafter on a perusal of the report of the Range Officer and agreeing with his findings the Divisional Forest Officer, Raigarh Division, issued to the applicant a notice on 10th July 1964 to show cause why he should not be dismissed from service A copy of the report of the Enquiry Officer was forwarded to the petitioner along with the notice to show cause. The petitioner gave his explanation which did not convince the Divisional Forest Officer, who accordingly made the impugned order on 23rd November 1964.

3. The only ground on which Shri Nagnath learned counsel appearing for the petitioner, attacked the validity of the order of dismissal was that while imposing the punishment of dismissal the Divisional Forest Officer took into account the previous record of the petitioner; and that he was not entitled to do so when the petitioner was not informed by the showcause notice which was issued to him. that his previous record would be taken into account for determining the punishment to be imposed upon and when the previous record was not even disclosed in the aforesaid notice. Learned counsel placed reliance on State of Mysore v. Manche Gowda. ATR 1964 SC 506

4. In our judgment, this application must be dismissed. The decision of the Supreme Court cited by the learned counsel has no applicability here That was a case where an enquiry was held on certain charges against Manche Gowda an Assistant to the Additional Development Commissioner. Planning, Banglore The Inquiring Authority found the charges to be prima facie established against the civil servant, but recommended that he should be reduced in rank The Public Service Commission, to whom the case of the delinquent servant was referred, was also of the opinion that he should he reduced in rank

The Mysore Government did not accept the recommendation made by the Inquiring Authority with regard to the punishment of reduction in rank. It was not bound to do so. It took the view that the charges proved against the Assistant to the Additional Development Commissioner were of a very grave nature and such as to render him unfit for continuance in Government service. Accordingly, a notice to show cause was issued to the Assistant, which was in the following terms:

'The Inquiring Authority has recommended that vou may be reduced in rank. As the charges proved against you are of a very grave nature and are such as render you unfit to remain in Government service, and the Government consider that a more severe punishment is called for in the interest of public service, it is proposed to dismiss you from service'. Manche Gowda, the Assistant to the Additional Development Commissioner, gave his reply to the notice to show cause issued to him. This reply was not found satisfactory by the Mysore Government, and on 6th January 1959 that Government passed an order dismissing him from service. The order of the Government, in so far as it is material here, ran thus- 'As regards the quantum of punishment; Government have examined the previous record of the Office and have given careful consideration to the recommendation of the Public Ser: vice Commission. Sri Manche Gowda was recruited directly as a Gazetted Officer. He had been punished twice ..... for making false claims of T. A. and tampering with the accounts and ledgers of Food Depot and again ...... for not having credited to Government certain sums of money which ho had collected from the Office Staff. Yet he failed to learn a lesson; he had indulged in similar offences. It is clear that he is incorrigible and no improvement can be expected in his conduct. In the circumstances a reduction in pay and continuance of the Officer in Government Service, as recommended by the Public Service Commission, is no remedy. Having regard to the status of the officer and the nature of the charges proved against him, Government have come to the conclusion that he is unfit to continue in Government service and direct that he may be dismissed from service forthwith'

In the notice to show cause, which had been issued to Manche Gowda, his previous record had not been disclosed and it was not stated therein that it would be taken into account for determining the punishment to be awarded to him. It was in these circumstances that the Supreme Court affirmed the decision of the Mysore High Court quashing the order of Man che Gowda's dismissal on the ground that the circumstances on which the Government relied for the proposed infliclion of punishment of dismissal were not put to Manche Gowda for being explained by him, in the show cause notice which had been issued to him on 4lh February 1958

5. The Supreme Court observed;

'Under Article 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only lo prove that he is not guilly of the charges levelled against him, but also to establish that tbe punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and therefore, it is necessary that tbe Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in State of Assam v. Bimal Kumar Pandit, Civil Appeal No. 832 of 1962. D/-12-2-1963: AIR 1963 SC 1612. If the grounds are not given in the notice, it would he well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was 'mainly based upon' the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from Ihe know ledge of the Government servant .... We therefore, hold that it is incumbent upon the authority to give the Government servant al the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an ex planation'' (Underlining (herein ' ') is ours) The Supreme Court further said

'In the present rase the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved againsl him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant the Government might not have imposed the penal of dismissal on him and might have accepted the recommendation of the Enquiry Officer and the Public Service Commission This order therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service This notice clearly contravelled the provisions of Article 311(2) of the Constitution as interpreted by Court'

6. The decision of the Supreme Court must be read in the context of the facts of the case before the Court, and keeping in view what has been said in the case of Quinn v. Leathem. 190) AC 495 that a case is only an authority fot what il actually decides and not for what would seem to flow from it There is nothing in the judgment of the Supreme Court which would go to show that in Manche Gowda's case. AIR 1964 SC 506 it laid down the broad proposition contended for by the learned counsel for the petitioner namely that whenever there is a reference to the previous or past record of the delinquent servant in the order of the competent authority inflicting punishment on him, then the order would be vitiated if by the notice to show cause issued to the civil servant concerned he was not intimated that his past record would be taken into consideration for determining the quantum of punishment and if in the notice the past record was no| disclosed.

The decision in Manche Gowda's case only lays down the proposition that if the punishment awarded is based not on the gravity of the charges found to be proved but mainly upon the previous record of the Government servant concerned, then it is incumbent upon the authority to give to Ihe civil servanl at the second stage a reasonable opportunity to show cause againsl the proposed punishment bv disclosing in the notice the past record of the servant and intimating him that it would be taken into consideration while determining the punishment to be awarded to him

7. Now. in the present case, the Enquiry Officer did not make any recommendation about the punishment to be given to the applicant. The Divisional Forest Officer, however, took the view that having regard to the gravity of the charges established the petitioner deserved to be dismissed from service. The charges proved againsl the petitioner were not trivial. The supervision and control of illicit felling in forest coupes depends solely on a Forest Guard who is the man on Ihe spot. If. therefore, a Forest Guard is remiss in his duties and connives at the acts of a contractor indulging in illicit felling causing considerable loss to the Government then undoubtedly it is a serious offence. It cannot. therefore, be maintained that the charges even if proved against tbe pelitioner themselves did not justify the punishment of dismissal from service.

It is true that in the last paragraph of the impugned order, the Divisional Forest Officer observed that the previous record of the petitioner indicated that the applicant was unreliable ami a shirker and was not well thought of bv the Range Officers, But if the impugned order is read as a whole, il is plain that Ihe penalty of dismissal from service inflicted on the petitioner was based on the gravity of the charges proved against him and not his previous record There is no room in the present case whatsoever for thinking that but for his previous record the Divisional Foresl Officer would not have imposed the penally of dismissah on him The reference by the Divisional Forest Officer in the impugned order to the previous record of the petitioner was for the purpose of poinling out that there were no extenuating circumstances justifying the award of a lesser penalty II was not for the purpose of justifying a higher penally than that warranted by the nature and gravity of the charges proved against the petitioner,

8. In conclusion this petition must beand is dismissed with costs Counsel's fee isfixed at Rs. 75 The outstanding amount ofsecurity deposit, if any, after deduction of costs,shall be refunded to the petitioner


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