1. The plaintiff is the appellant--in this first appeal,--from a decision of the learned Additional Subordinate Judge of Cuttack, whereby he dismissed the plaintiff's suit against the State of Orissa for a decree of Rs. 20.000/- as damages for wrongful dismissal and other incidental reliefs in the circumstances hereinafter stated.
2. The facts, shortly stated were these. The plaintiff (appellant herein) one Radhakanta Patnaik was a temporary Overseer of the Public Works Department appointed on June, 1942. He was in charge of Manijanga Section under Jagatsingpur Subdivision when on December 17, 1950 the Chief Engineer, defunct Irrigation Department, Orissa intimated to the S. D. O. P. W. D. Jagatsingpur that he (the Chief Engineer) would tour in his area from 24th to 27th December, 1950 and desired that Anantapur-Paradwip service road was made motorable for the station-wagon; accordingly the S.D.O., Jagatsingpur ordered the plaintiff,--who was the Sectional Officer then in charge of Manijanga Section,--that he should keep the canal embankment from Anantapur to Paradwip in motorable condition for the Chief Engineer's tour as aforesaid; in that connection the plaintiff had submitted a muster roll for payment) of Rs. 166/- to 81 labourers who were alleged to have been engaged on the work of repairing the road to make it motorable; the S.D.O. passed payment order thereon. Subsequently, however, it came to light oft enquiry that there was some falsification in the number roll; a charge sheet Was then drawn against the plaintiff overseer on May 19, 1951. The charges against him are as mentioned in the charge sheet Ext. 1 issued by Mr. J. Shaw the then Chief Engineer, Irrigation. On May 26, 1951, the plaintiff was dismissed, while a criminal case which in the meantime had also been filed against the plaintiff, was still then pending.
On January 16, 1952 the plaintiff was acquitted by the Magistrate. On July, 23 1953 the said dismissal order was set aside by the Government on a memorial filed by the plaintiff as appears from the letter of the Secretary, Works Department, to the Chief Engineer P. W. P. ('Ext. 6') on the ground if irregularity of procedure in dismissing the plaintiff, in that the plaintiff was not given the opportunity to show cause within a reasonable time against the punishment of dismissal which was provisionally decided nor was, he asked whether he wanted a personal hearing in the matter; the said letter from the Government indicated the manner and procedure to be adopted for enquiry into the charge and final decision accordingly, which was directed to be communicated to the Public Works Department for information of Government.
On October, 9, 1953, the Government Appeal which the State had filed from the said order of acquittal passed by the Magistrate was dismissed by the High Court; and it was held that the accused should be given the benefit of doubt for reasons stated in the judgment, and that the plaintiff had been rightly acquitted.
On February 12, 1954 Mr. C. M. Bennet, the then Chief Engineer, Public Works Department, Orissa, sent to the plaintiff a letter (Ext. 4), calling upon him, to intimate in writing if the plaintiff had anything to add to his previous statement, whether he desired to be heard in person and whether he wished to call any witness. In reply to the said letter of Mr. Bennet, the plaintiff added to his previous written statement that he had already been acquitted of the criminal charge by the High Court and he prayed for being reinstated; further that if he is not reinstated, he may be given personal hearing. Thereafter, as record shows, the plaintiff was given opportunity for personal nearing which was ultimately availed of by the plaintiff, as hereinafter fully discussed.
On May 28, 1954 the Chief Engineer M. R. Bennet again sent him second notice by letter Ext. B calling upon the plaintiff to show cause against the order of dismissal to be passed against him, as he had come to the provisional conclusion, that the plaintiff is guilty of the offence.
On July 9, 1954 by an order made by the Chief Engineer, Public Works (Mr. Bennet), the plaintiff was dismissed from Government Service with effect from the date of the said order. An appeal stated to have been filed by the plaintiff to the Government was also rejected on December 7, 1954. Thereafter on March 16, 1955 the plaintiff filed the suit against the State of Orissa for damages as stated above, after serving notice under Section 80, Civil Procedure Code as required by law. The trial Court dismissed the plaintiffs suit. Hence this first appeal.
3. The main points,--for consideration, in this appeal, are whether the procedure adopted by the Government for the dismissal of the plaintiff was regular and whether the plaintiff had reasonable opportunities of submitting his defence before the authorities before his dismissal. In this context, Bihar and Orissa Boards Miscellaneous Rules, 1928 (published under the authority of Government of Orissa) as applicable to the plaintiff have to be kept in view in deciding this case. Rule 172 provides for the procedure in cases of dismissal or removal. Rule 173 provides for procedure in Departmental enquiries and Rule 174 provides for procedure when orders of punishment are passed by an authority other than enquiring authority. Rule 170 (which applies to the facts of the case) provides as follows :
'Rule 176. Rules 172, 174 shall not apply-
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(c) Where from facts elicited in a criminal case brought against him, in which he has not been convicted, or in a civil suit institute against him, it is apparent that his retention in the public service is prima facie no longer desirable. These facts may be used as the basis of an order calling on him to show cause why he should not be punished by dismissal or otherwise. In such a case the officer concerned should have an opportunity of submitting his defence and he should not be precluded from tendering such further evidence in support of his case as he may see fit to produce.'
Rules of natural justice require that a party should have an opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence and that he should be given an opportunity of 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 the same; a tribunal is wrong, if he places the burden of establishing his innocence on the public servant; a tribunal's action in casting on the delinquent officer the burden of showing that his action was legal is itself opposed to the rules of natural justice; to constitute reasonable opportunity, the public servant must be served with a copy of the result of the enquiry together with the reasons for arriving at a finding of his guilt and must again be heard; no doubt if the civil servant adduces any evidence which was already placed by him in showing cause against the charges, it may not be received but this does not do away with the constitutional requirement that he should be given reasonable opportunity to show cause; against the proposed punishment which includes giving him a copy of the result of the enquiry and the reasons therefor, hearing him and allowing him even to adduce evidence to show that he is innocent or the punishment is severe; if this is not done, the purpose of the necessity for the second notice is not served, and Article 311(2) of the Constitution becomes nugatory.
4. It is on these principles, deduced from judicial decisions interpreting the statute and the rules thereunder as aforesaid, that we have to decide whether, in the present case, reasonable opportunity was given to the plaintiff to submit his defence to the charges.
5. The initial charge,--which was made against the plaintiff as appears from Ext. 1 dated May 19, 1951,--was that the plaintiff falsified a muster roll for employment of mulia labour on, doing repairs to the Taldanda canal service road between 20th to 25th December 1950; that the plaintiff had submitted a muster roll in favour of 31 mulias engaged as daily labour and disbursed on this account a sum of Rs. 166/-; that later investigation showed that out of 31 Mulias in the muster roll, only 4 were identified as having worked for three days and one who was not in the muster roll was also for four days; of the remainder one man had been dead for seven years, 9 appeared imaginary names, 4 were absent, 11 denied any knowledge of the work and 2 gave a false statement; apart from the 5 men actually engaged, the rest of the work was done by Irrigation Department permanent labour. The plaintiff was required to explain the above charge satisfactorily failing which he was liable to be dismissed from service. This, in fact, was the first charge by the then Chief Engineer, Irrigation Department, Mr. Shaw. The plaintiff had given his explanation to the said charges on May 21, 1951 as appears from Ext. 1.
Thereafter, by reason of the irregularity in the procedure, pointed out by the Government as aforesaid the successor Chief Engineer Mr. Bennet on February 12, 1954 wrote to the plaintiff a letter referring to the charges already made against him; it, however, appears from the said letter of Mr. Bennet that his charge,--though based on the same facts as stated in Mr. Shaw's letter dated May 19, 1951 as aforesaid,--was that the plaintiff had taken thumb-impressions and signatures other than those of the persons alleged to have been employed, as detailed in the muster roll prepared in connection with the repairs to the Taldanda canal bank done during the latter part of December, 1950; indeed this was a charge of falsification and forgery of thumb-impression and signature; the plaintiff was given a further opportunity to intimate in writing if he had anything to add to his previous statement, and whether he desired to be heard in person and if so whether he wished to call for any witness (Ext. 4).
The plaintiff then filed his explanation on February 19, 1954 (Ext. G) stating that to his previous written statement he wished to add that he had already been acquitted by the High Court of the same charge in the Government Appeal as aforesaid; that the department cannot now sit in judgment over the High Court, and accordingly he made a prayer that he be reinstated without further loss of time, and that in case he is not reinstated, as prayed for he might be given a personal hearing. As the plaintiff desired to be given a personal hearing, he was accordingly asked on February 25, 1954 to give a definite reply. Thereupon the plaintiff stated that he had nothing more to add to his previous statements; that in case there be any difficulty, he might be given an opportunity to explain the matter personally and further that he needed no witness to call. Thereupon, the Chief Engineer Mr. C. M. Bennet,--finding that there was no difficulty,--considered that no personal hearing need be given to the plaintiff for which opportunities had been given to the plaintiff which the plaintiff then did not avail of as aforesaid.
After careful consideration, the Chief Engineer Mr. C.M. Bennet came to the provisional conclusion to dismiss the plaintiff from service; accordingly on May 28, 1954 the provisional conclusion about the proposed punishment of dismissal from Government Service was communicated to the plaintiff, asking him to show cause against the penalty proposed to be inflicted, and that any representation that the plaintiff would submit would be duly considered before final orders were passed.
Thereafter the plaintiff asked for a personal hearing, which was given by the Chief Engineer Mr. C.M. Bennet on June 28, 1954; at the personal hearing the plaintiff expressed nothing new and his statement was kept on record.
After careful consideration of the entire case, the plaintiff's, past service, his personal Register and the provisional conclusion about the proposed punishment, the Chief Engineer Mr. C.M. Bennet confirmed his provisional conclusion about the punishment of the plaintiff's dismissal from Government service.
6. Merely because the Criminal Court did not convict the plaintiff of the charges of criminal breach of trust, cheating and forgery against him, that is no reason why the department,--which has to maintain the purity of its administration--should be precluded from making further probe into the matter, particularly when, as in the present case, the plaintiff was given the benefit of doubt in the criminal case. Under Rule 176 (c), if the department is satisfied that the retention of the plaintiff in the public service is prima facie no longer desirable, then even though he has not been convicted by criminal Court, it will still be open to the department to punish him by dismissal or otherwise, after proper enquiry and after giving the plaintiff opportunity of submitting his defence, in compliance with the procedure laid down in the rules, all according to law. In our opinion, in the present case, there was proper enquiry, and the plaintiff was given every opportunity of submitting his defence.
7. At the trial of this suit before the learned Additional Subordinate Judge, the plaintiff, who was the only witness, said that as no witness was examined by the department and that as there was no necessity on his part to call any witness, he did not ask in his explanation to Mr. Bennet that his witnesses should be examined and cross-examined by the plaintiff. The plaintiff's case,--as he deposed at the trial of the suit,--was that it was not a fact that he did not ask for production of witnesses, as he got the opportunity to cross-examine them during the criminal trial; that, according to the plaintiff, no departmental enquiry was held and that he was summarily dismissed without enquiry. The plaintiff further said, in cross-examination, that he did not submit any explanation to the second show-cause notice about dismissal but he was given a personal hearing by Mr. Bennet but he did not ask for examination of witnesses then; that he did not write to Mr. Bonnet later on to get witnesses examined and cross-examined, as the plaintiff had no idea of getting witnesses examined and cross-examined.
It is, however, clear from records that the plaintiff intimated to Mr. Bennet that he needed no witness to call, as appears from the order of dismissal dated July, 9, 1954 (Ext. A) where, the plaintiff's statement in this context has been quoted in the order. The plaintiff had throughout given evasive replies to the charges made against him; it, indeed, the plaintiff had any real defence to the charges, it was open to him to call his witnesses or ask for production of the department's witnesses whom the plaintiff could have cross-examined. The plaintiff did not avail himself of the opportunities given to him as aforesaid.
8. In this view of the case, the decision of the learned trial Court,--dismissing the plaintiffs suit,--is upheld. This appeal is, accordingly, dismissed with costs; this being a pauper appeal, the plaintiff is directed to pay the court-fee of both the trial court and also of this Court.
G.C. Das, J.
9. I agree.