1. This is an appeal by the State of Orissa against the judgment of the Subordinate Judge of Berhampur, decreeing the respondent-plaintff's suit for a declaration that the order discharging him from service passed by the Deputy Commissioner of Khondmals on 15th March 1952 (Ext. F) was, void and inoperative and for other consequential reliefs.
2. The plaintiff was employed as a ministerial officer in the office of the Deputy Commissioner, Khondmals at Phulbani. He first went on leave on 14th April 1951, for the purpose of undergoing survey training at Berhampur, but did not rejoin duty after completing the training and took leave from time to time on various grounds which need not be mentioned here. Ultimately, on 3-11-51 (see Ext. M/1) the Deputy Commissioner framed specific charges against the plaintiff for various acts of misconduct in the discharge of his duties and called upon him to show cause within seven days of the receipt of the charges as to 'why he may not be dismissed or otherwise punished.' A copy of this order was sent to the plaintiff to the following address:
'C/O Bharathi Cycle Stores,
by registered post acknowledgment due. But it was returned unserved with an endorsement on the registered envelop to the effect 'Absent' (sec Ext. B-3).
Presumably that endorsement was made by the postal peon but he was not examined as a witness in this case. Not content with sending a registered notice, the Deputy Commissioner sent a letter to the Tahasildar of Berhampur (Ext. M) on the 1st December 1951, requesting him to direct service of the charges on the plaintiff. In that letter he mentioned that 'It has been learnt that he has been working in Bharahi Cycle Stores Berhampur'. The Tahsildar tried to effect service through his peon but was not successful.
3. There are three endorsements on the letter Ex. M dated 28th December 1951, 4-1-1952 and 18-1-1952, to the effect that the plaintiff could not be traced. English translations of three endorsements are given below:
'1st, Endorsement; On enquiry the addressee was found absent and reported to have gone to (torn) Pentha. The members of his family stated that it was not known as to when he would return
Sd. Illegible (in Telugu)28-12-51.2nd Endorsement. The process server reports that on enquiry the addressee was found absent in the village and was reported to have gone to Visakhapatnam. Further it was ascertained from the members of his family that he will be coming back within a week hence as appears from a letter received by them.
Sd. Illegible.4-1-1952.3rd Endorsement. On enquiry it was ascertained from the members of his family that the addressee is coming from Visakhapatnam. Sd. Banchhanidhi Hatia(in Oriya)18-1-1952.'
Then on 29th January 1952 the Tahasildar resub-mitted the notice, Ext. M. to the Deputy Commissioner, Khondmals with the following endorse ment:
'N Dis -- Resubmitted with the endorsement made on the reverse of the proceeding'.
This was received in the office of the Deputy Commissioner on the 6th February 1952 as is clear from the stamp of his office on Ext. M-2.
4. The Deputy Commissioner appears to have thought that the failure of the postal authorities to deliver the registered letter (Ext. B-3) to the plaintiff and the failure of the Tahasildar also to get the charges personally served on the plaintiff through his peon at the address given, namely C/O Bharathi Cycle Stores, Berhampur were sufficient to show that the plaintiff was untraced and that it was not reasonably practicable to serve the charges on him and to give him an opportunity to show cause against them -- as in his opinion the plaintiff was deliberately avoiding service. Hence he passed impugned order of discharge from service by Ext. F dated 15th March 1952. In that order he made the following observation:
'As it was found difficult to communicate to him the above charges as evidently Sri P.K. Swamy was deliberately avoiding to receive the communication from this office, a copy of the charges was sent to the Tahasildaj, Berhampur, for service, as a last resort with a view to obtaining the explanation of Shri Swamy. But this time also, the charges were received back unserved from the Tahsildar with the remark that he was not at Berhampur. Since Sri Swamy has already been afforded maximum opportunity to explain the charges against him the proceeding against him is being disposed of without further reference to him on the basis of the available evidence.'
There he held that all the charges were proved and after holding him guilty of gross misconduct and insubordination he discharged him from service with effect from 14th June, 1951.
5. The plaintiff's main contention was that the mandatory provisions of Art. 311 of the Constitution were not complied with and that consequently the order of discharge from service was void and inoperative. He further stated that he was always at Berhampur, that he never avoided service, and that he was not aware that the Tahasildar of Berhampur was trying his best to serve the charges on him.
6. The relevant portion of Article 311 of the Constitution may now be quoted:
'311 (2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be takea in regard to him:Provided that this clause shall not apply--(b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by the authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause or
(c) * * *(3) If any question arises whether it is reasonably practicable to give any person an opportunity of showing cause under Clause (2) the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be shall be final.'
7. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules (now replaced by the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962) may also be quoted in this connection:
'55. Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts which have 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 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 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 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 to have such witnesses called as he may wish, provided that the offer conducting the inquiry 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.
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 case, 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.'
8. It will be noticed that there is some overlapping between the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and Article 311(2) of the Constitution. In the well known case of Khemchand v. Union of India, AIR 1958 SC 300 their Lordships of the Supreme Court pointed out that the essential portions of Rule 55 have been practically included in Article 311(2) of the Constitution and an additional protection has been given to the public servant. Their Lordships summarised 'reasonable 'opportunity' envisaged in Article 311 as follows:
'(a) an opportunity to deny his guilt and establish his innocence which he can only do if 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 offence; 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.'
9. It is thus abundantly clear that in all disciplinary proceedings against a Government Servant he is entitled to be given a reasonable opportunity' at two stages. In the first stage the charges levelled against him should be communicated to him so that he may get an opportunity to defend himself either by cross examining witnesses or by examining his own witnesses. Secondly even if he does not avail himself of this opportunity at the first stage, the superior authority must decide whether the charges' are established by an ex parte enquiry, if considered necessary, and then tentatively decide about the proposed punishment to be inflicted on the public servant concerned and again give him an opportunity to show cause against the punishment.
10. It is true that in respect of both the stages special circumstances may arise in consequence of which the superior authority may dispense with the service of notice on the delinquent public servant. In the first stage he may not comply with the provisions of Rule 55, and proceed with the enquiry ex parte if the person concerned has absconded or where it is for other reasons considered impracticable to communicate with him but this he can do only 'for special and sufficient reasons to be recorded in writing'. At the second stage also he may dispense with the issue of notice if he is satisfied that for some reasons to be recorded in writing 'it is not reasonably practicable' to give the public servant concerned an opportunity of showing cause against the proposed punishment. It is true that at both the stages the satisfaction is the 'subjective' satisfaction of the superior authority holding the enquiry. But Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and Proviso (b) to Clause (2) of Article 311 of the Constitution requires that the reasons for such satisfaction should be recorded in writing, thereby giving some sort of limited jurisdiction to Court to examine whether they are good reasons, in law, or no reasons, at all. It is also true that according to Clause (3) of Article 311 of the Constitution the satisfaction of the authority concerned is final. But it is well settled that the finality conferred by such a statutory provision will not take away the limited jurisdiction of the Civil Courts.
11. The next question for consideration is whether the exercise of discretionary power by the superior authority to dispense with the service of notice is justiciable, and if so, to what extent. In Halsbury's Laws of England, Third Edition, Volume 30, at page 688 (para 1327) it was pointed out that statutory powers must be exercised bona fide, reasonably, without negligence, and for the purpose for which they were conferred. In the recent book of S. A. de Smith on judicial Review of Administrative Action at page 188, the learned, author after pointing out that the Court must first examine whether the authority has acted in good faith, further observes.
'In most contexts the Courts will pursue their inquiry further and will consider whether the repository of a discretion, although acting in good faith, has abused its power by exercising it for an inadmissible purpose or on irrelevant grounds or without regard to relevant, considerations or with gross unreasonableness.'
Again at page 243 the learned author has discussed those cases where by the statutory provision itself,
'the competent authority is empowered to take a prescribed course of action when it 'is satisfied', or when 'it appears' to it, or when 'in its opinion' a given state of affairs exists'
and observed as follows:
'In cases set in this type of context the expression of the opinion or satisfaction of the competent authority has usually been accepted as conclusive ...... but there are several dicta indicating that the act of the authority might be held invalid if it were shown that there was no evidential or rational basis upon which it could have formed its opinion.' (See decisions cited thereunder).
12. Some of the English decisions may now he noticed. The audi alteram partem rule is so clearly established that it is only in exceptional circumstances and subject to the safeguards provided in the statute itself that an authority is permitted to contravene this rule -- Thus in De Ver-teuil v. Knaggs, 1918 AC 557 at p. 561: (AIR 1918 PC 67 at p. 69) it is observed that there might be obstructive conduct on the part of the person affected which might justify the relaxation of this rule. In R. v. Minister of Health, 1937-3 All ER 176. it was held that where the statute conferred on the, minister the power to satisfy himself that the local authority had served appropriate notice under Section 63(1) of the Housing Act, the satisfaction of the minister would ordinarily be sufficient subject to the following qualification:
'No doubt the Minister must not be satisfied with unreasonable readiness or with culpable complacency, but otherwise it suffices that he is in fact satisfied.'
In the well known case of Nakhuda Ali v. M. F. de S. Jayaratne, 1951 AC 66 their Lordships of the Privy Council while construing Regulation 62 of the Defence (Control of Textiles) Regulations 1945 of Ceylon which empowered the Controller of Textiles to do certain things where the Controller has 'reasonable grounds' to believe that no dealer should be allowed to continue as a dealer, observed, while explaining the well known decision in Liversidge v. Anderson, 1941-3 All ER 338 at p. 77 (of 1951 AC).
'After all, words such as these are commonly found when a legislature or law-making authority confers powers on a minister or official. However read, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power. But if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothing. No doubt he must exercise the power in bad faith but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than formality. Their Lordships therefore treat the words in reg. 62, 'Where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer' as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before lie can validly exercise the power of cancellation.'
It is true that their Lordships went further and said that Controller's action was administrative and was not amenable to certiorari. But this portion of their judgment does not appear to have been wholly endorsed by the House of Lords in a recent judgment in Ridge v. Baldwin, 1963-2 WLR 935 at p. 950. Lord Reid pointed out:
'Nothing short of a decision of this House directly in point would induce me to accept the position that, although an enactment expressly required an official to have reasonable grounds for his decision, our law is so defective that a subject cannot bring up such a decision for review however seriously he may be affected and how-ever obvious it may be that the official ac'ed in breach of his statutory obligation.'
In Ross-Clunis v. Papadopoullos, 1958-2 All ER 23 (at p. 33) a similar question arose for considering while construing Regulation 5(2) of the Cyprus Emergency Powers (Collective Punishment) Regulations, 1955 which requires the commissioner to satisfy himself that the inhabitants of a particular area were given adequate opportunity of understanding the subject matter of the enquiry and making representations thereon. Regulation 13 gave finality to the orders made by the commissioner Nevertheless the Privy Council observed at page 33 as follows, while noticing the argument that the satisfaction was a subjective satisfaction of the commissioner:
'Their Lordships feel the force of this argument, but they think that if it could be shown that there were no grounds on which the appellant could be satisfied, a court might infer either that he did not honestly form that view or that in forming it, he could not have applied his mind to the relevant facts.'
13. Thus there is abundant authority for the view that though for adequate grounds to be recorded in writing the superior authority may dispense with the service of notice (at both the stages) on the delinquent public servant if he is satisfied due to special circumstances that it will not be practicable to serve the notice on him and though by Clause (3) of Art. 311 his satisfaction is declared to be final, the courts have limited jurisdiction to examine the reasons given by him with a view to satisfy themselves that he did not act with 'unreasonable readiness' or with 'culpable complacency' or by not applying his mind to the relevant facts and thereby acted either with gross unreasonableness or without regard to relevant circumstances. To that extent his satisfaction though subjective is justiciable.
14. Here though the plaintiff examined himself and stated that he was always at Berhampur and that he never avoided service of notice, the defendant has not cared to lead any evidence worth the name to show that the plaintiff was deliberately avoiding the receipt of the charges. The charges were sent to the old address, namely 'Bharati Cycle Stores, Berhampur' first by registered post which was returned with an endorsement 'absent'. Then the Tahasildar of Berhampur was directed to effect personal service, the same address was given. On three occasions, namely 28-12-51, 4-1-52 and 18-1-52 the process server reported that the delinquent public servant was not in his house. But it is not clear from the endorsements as to whether the process servers made enquiries at the address 'Bharathi Cycle Stores.' Presumably this was done.
There was also nothing on record to show that the Tahasildar got affixed a copy of the charges at the residence of the plaintiff. Exts. M, M(1) and M(2) are entirely silent on this point, and the only witness examined by the defendant (D. W. 1) has obviously no personal knowledge as to how an attempt was made to serve a copy of the charges on the plaintiff. On 29th December 1951 the Deputy Commissioner had received a letter Ext. E signed by the plaintiff where his address for a week was given as 'Bharati Electronics Co., Berhampur' which seems different from the original address 'Bharati Cycle Stores, Berhampur'. If these two addresses are identical, some evidence to that effect should have been given by the defendant. On receipt of Ext. E on 29th December 1951 the Deputy Commissioner was in duty bound to issue a fresh notice of the charges to that new address either by post or personal service through the Tahasildar of Berhampur. No such effort was admittedly made. It is true that in Ext. E the plaintiff gave the new address only for a week. But the Deputy Commissioner appears to have assumed that the plaintiff would be there for some months thereafter, because he sent a copy of his final order of discharge Ext. F to the address on 15-5-52.
Thus the factual position is that from 3-11-51 till 29-1-52 efforts were made to serve the charges on the plaintiff at his old address 'Bharati Cycle Stores, Berhampur'. On 29th December 1951, the Deputy Commissioner had already received an intimation from the plaintiff about the change of his address. This omission to get the charges served at the new address though the Deputy Commissioner was aware of that change of address must, in the circumstances be held to show gross negligence on his part. It would also come within the scope of the expression 'unreasonable readiness' or 'culpabale complacency' on his part to assume that the plaintiff was delibarately avoiding to receive communication from his office. The Depuly Commissioner's exercise of his discretion conferred by the second part of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules must therefore be held to be grossly unreasonable and as such not binding on this Court.
15. The departmental proceedings against the plaintiff suffer from another serious infirmity. As pointed out by their Lordships of the Supreme Court in the Khemchand Case, AIR 1958 SC 300 the plaintiff was entitled to a second notice regarding the tentative view formed by the superior authority about the nature of the punishment to be proposed and then to be given an opportunity to show cause against that punishment Here it does not appear that any effort was made to serve the second notice, and the Deputy Commissioner's order Ext. F also does not show that he applied his mind to this aspect. He has written a composite order holding after an ex parte enquiry that the charges were proved and deciding that the plaintiff should be discharged from service. He has not stated anywhere that after holding the charges to be proved he formed an opinion as to the punishment proposed and then further decided that the second notice also could not be served on the plaintiff as he was deliberately avoiding to receive communication and that consequently the Deputy Commissioner was compelled to exercise the discretion conferred on him by proviso (b) to Article 311(2).
Mr. Rath, learned counsel for the Deputy Commissioner however contended that though the order of the deputy commissioner (Ex. F) does not expressly show that he considered the question of issuing second notice separately, nevertheless a fair construction of his order would show that he thought that the Second notice also could not be served on the plaintiff on account of his conduct. No such inference can however be fairly made from a perusal of the order of the Deputy Commissioner Ext. F. Moreover there was an interval of nearly six weeks from the date of the report of the Tahsil-dar Ext. M(2) (29-1-52) and the date on which the Deputy Commissioner held the charges to be proved (15-3-52). The Depu y Commissioner could not therefore assume that if another effort was made to give the second notice, that effort would also prove futile. At any rate, his order does not show that he applied his mind to the question or gave reasons for holding that it was not reasonably practicable to serve the second notice on the plaintiff. It must therefore be held that the provisions of Article 311(2) have not been complied with and the removal of the plaintiff from service was unconstitutional. The lower court has decreed the plaintiff's claim for arrear of salary subject to law and limitation, and as this order of the lower court has not been challenged before this Court, there is no ground for interfering with this portion of the order also.
16. The appeal is dismissed with costs.
17. I agree.