1. This is an application under Article 226 of the Constitution by an employee of South Eastern Railway against an order of the Divisional Commercial Superintendent, Khurda Road, dated 24-4-1963, removing him from service, on the basis of departmental proceeding started against him.
2. The specific charges of misconduct were framed against him on 6-6-62 and an enquiry was held subsequently. The enquiring officer held that, fee charges were proved. Then on 15-3-1963 he, issued a second notice on the petitioner to show cause why he may not be removed from service. In, paragraph 7 of the counter affidavit filed by the Rly. it is admitted that this notice was received by the petitioner only on 1-4-1963 and the petitioner was asked to show cause within 7 days. The petitioner, however, did not show cause and he was eventually removed from service by the aforesaid order D/- 24-4-1963.
3. On behalf of the petitioner it was stated that on receipt of the second show cause notice the petitioner applied to the authorities on 6-4-1963 for extension of time to submit his explanation (see annexure D) but without waiting for his reply the Divisional Commercial Superintendent removed him from service on 24-4-1963. In the counter filed by the Rly. this statement of fact is not challenged nor is it stated that on receipt of the petitioner's application for extension of time to give is reply (annexure D) he was informed that that prayer was rejected. The factual position, therefore seems to be that the petitioner was given only 7 days time from the date of receipt of the second notice, to show cause why he may not be removed from service and he was not informed that his application for further time had been rejected. The petitioner might reasonably contend that he was under the impression that his application for time would be granted in due course and that he was awaiting a reply from the railway for submitting his explanation. But without giving him any information as to the fate of his application for time he was removed from service on 24-4-1963.
4. It is well settled that what is 'reasonable opportunity' of showing cause against the proposed action as contemplated in Article 311(2) of the Constitution, .... is mainly a question of fact, depending on the circumstances of each case and it is also justiciable to a limited extent, if his subsequent removal is challenged on the ground that this clause has been contravened. Though it is difficult to lay down any general rule as to the period of time that should be granted to a delinquent Government servant to show cause against the action proposed to be taken against him nevertheless we think that in this case the granting of 7 days, time to the petitioner and the omission on the part of the Railway authorities even to inform the petitioner that his application for further time was rejected, would suffice to show that no 'reasonable opportunity' was given. In this connection we may refer to the observations of the Supreme Court in Joseph John v. State of Travancore-Cochin, (S) AIR 1955 SC 160 (164) where their Lordships noticed the fact that on two occasions a delinquent public servant's prayer for time was granted by the superior authority and his attempt to get time on a third occasion was defeated and he was informed that no further time would be granted. Taking these factors into consideration their Lordships held that it could not be said that he was not given a reasonable opportunity to show cause. But here the facts are completely different.
5. We must accordingly hold that the mandatory provisions of Article 311(2) of the Constitution have not been fully complied with and that the petitioner is entitled to a reasonable opportunity to show cause against the action proposed to be taken against him.
6. The order dated 24-4-1963 removing the petitioner from service is therefore quashed and the departmental proceeding against the petitioner are restored to the stage at which they were on 15-3-1963 when the Rly. issued the second notice on him to show cause against his removal. It is open to the authorities to dispose of the proceeding according to law from that stage.
7. The petition is allowed with costs. Hearing fee Rs. 50/-.
8. I agree.