Skip to content


Sham Lal Vs. Director, Military Farms, Army Headquarters, New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2811 of 1964
Judge
Reported inAIR1968P& H312
ActsConstitution of India - Articles 226, 309, 310 and 311; Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952 - Rule 15
AppellantSham Lal
RespondentDirector, Military Farms, Army Headquarters, New Delhi and ors.
Appellant Advocate H.S. Gujral and; Sushil Malhotra, Advs.; Amar Singh Amba
Respondent Advocate C.D. Dewan, Deputy Adv. General and; S.K. Jain and; Bhim
DispositionPetition allowed
Cases ReferredIn Anand Narain v. State of M. P.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....a.n. grover. j.1. the question that has to be decided is whether a person holding a civil post connected with defence can claim protection of a civil court or invoke the extra ordinary jurisdiction of this court for interference with departmental proceedings or a departmental order of punishment on the ground that the same had been commenced or inflicted in violation of service rules framed by the president under article 109 of the constitution in spite of the fact that such an employee may not be entitled to invoke the protection of article 311 of the constitution.2. it is common ground that the petitioner while serving as assistant supervisor in the military dairy farm. ferozepur cantonment, was compulsorily retired from service as a measure of punishment. his main grievance was that.....
Judgment:

A.N. Grover. J.

1. The question that has to be decided is whether a person holding a civil post connected with Defence can claim protection of a Civil Court or invoke the extra ordinary jurisdiction of this Court for interference with departmental proceedings or a departmental order of punishment on the ground that the same had been commenced or inflicted in violation of service rules framed by the President under Article 109 of the Constitution in spite of the fact that such an employee may not be entitled to invoke the protection of Article 311 of the Constitution.

2. It is common ground that the petitioner while serving as Assistant Supervisor in the Military Dairy Farm. Ferozepur Cantonment, was compulsorily retired from service as a measure of punishment. His main grievance was that the procedure prescribed by Rule 15 of the Civilians in Defence Services (Classification Control and Appeal) Rules, 1952 (herein after called the rules) promulgator by the President of India in exercise of the powers conferred by Article 309 of the Constitution was not followed. This rule provides in detail for the manner in which opportunity is to be given to a member of a service governed by the rules before any order can be made of dismissal, removal, compulsion retirement or reduction in rank. The safeguard contained in the rule is almost in the same terms as is provided by Article 311(2)(a) of the Constitution but it has been laid down with more particularity and details

3. Now, In view of the language of Article 311 it cannot be disputed that the petitioner, who is not a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State, cannot claim the protection of that Article. It is, however, maintained on his behalf that Rule 15 of the rules confers a similar protection on him and that if the proceeding prescribed thereby has not been followed he can agitate the matter in a Court of law. The rules were framed under Article 309 which reads as follows:

'Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act'.

But Article 310(1) provides.

'Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil, post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.'

It is well known that the tenure of a Government servant till the enactment of the Government of India Act, 1935. was based on the English doctrine of pleasure of the sovereign 'Durante Bene Placito'. As pointed out by Das C. J., in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36. the established notion was that the implied condition between the Crown and its servant was that the latter held his office during the pleasure of the Crown and that public policy demanded this qualification. In the Government of India Act, 1915, as originally enacted, there was no provision embodying the English doctrine. Section 96B, which was introduced along with other sections by the Government of India Act, 1919, gave a statutory recognition to the rule that the servants of the Crown held office during the pleasure of the Crown. One restriction was imposed upon the exercise of the Crown's pleasure in that a servant could not be dismissed by an authority subordinate to that by which he was appointed. It was for the first time that Section 240(3) of the Government of India Act, 1935, provided a statutory safeguard in respect of dismissal or reduction in rank of a Government servant. Finally our Constitution makers incorporated a similar safeguard in Article 311(2) but Article 310(1) in terms embodies the rule that public servants hold their office during the pleasure of the President or the Governor, as the case may be. That pleasure must be exercised subject to the provisions contained in Article 311. With regard to public servants who could not claim the benefit of Article 311 the view which was widely held prior to the decision of the Supreme Court in State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751, was that such servants could not agitate in the Law Courts that the procedure laid down by the properly framed rules or other legislation had not been followed and could seek relief only from departmental authorities. In this connection the twin decisions of the Privy Council in R. T. Rangachari v. Secretary of State, AIR 1937 PC 27 and Venkata Rao v. Secretary of State, AIR 1937 PC 31, constitute an important landmark in the history of law relating to public servants in India. According to these decisions, His Majesty's pleasure was paramount and could not legally be controlled or limited by the Civil Service Classification Rules made under Section 96B(2) of the Government of India Act and that these rules made provisions for redress of grievances by administrative process. In other words, it was clearly held that the statute of 1919 did not confer any right of action to enforce the aforesaid rules.

4. In this Court the question of justifiability of the breach of the rules came up before a Division Bench in Naubat Rai v. Union of India, AIR 1953 Punj 137. In that case Naubat Rai, who was at one time the Manager of the Military Dairy Farm in Ambala Cantonment, moved this Court under Article 226 of the Constitution challenging his removal from service. It was contended inter aha before the Bench on behalf of Naubat Rai that Army Instructions (India) No 212 had not been followed and Rule 158 of the rules made under the Army Act had been disregarded in the matter of the enquiry which was held against him. Relying on the decision in Venkata Rao's case, AIR 1937 PC 31, it was held that even if there had been any transgression of A. I. I. 212, that could not be a ground for interference by this Court. In Union of India v. Rum Chand Beli Ram, MR 1955 Punj 166, another Bench had to consider the case of a Military servant who had filed a suit for a declaration that his discharge from service was wrongful, void and inoperative. Harnam Singh, J., referred to the decisions of the Privy Council mentioned before and said that even though such a suit satisfied one of the conditions of Section 9 of the Civil Procedure Code it was impliedly barred on the principle that Courts were not to countenance matters which were injurious to and against the public weal. Kapur J., (as he then was) delivering a separate but concurrent judgment observed:--

'But the law in regard to the Defence services has remained the same. At no time in the constitutional history of India has any similar protection against arbitrary dismissal, removal or reduction in rank been provided in regard to these services. On the other hand they continued to hold office during the pleasure of the Crown and now they hold office during the pleasure of the President, and therefore the law as was stated by the Privy Council in AIR 1937 PC 31, would continue to apply to them. The question whether their dismissal or removal is arbitrary or not is not a justiciable issue and it must be taken that this matter is by implication barred even if an extended meaning is to be given to Section 9, Civil Procedure Code'.

The case of Dass Mal v. The Union of India, AIR 1956 Punj 42, was one of civil personnel attached to Defence Services. Kapur J. (as he then was) reiterated the view that if a person held office at the pleasure of the President and the protection of Article 311 of the Constitution or Section 240(3), Government of India Act of 1935, was not available, then it was not for the Courts to put limitation on the exercise of the pleasure by the President or the Crown as the case might be and a suit could not be brought for infringement of any rules dealing with his conditions of service. The decisions in Venkata Rao and Ranga Chari's cases, AIR 1987 PC 31 and AIR 1937 PC 27, were followed, Chopra J., in Union of India v. Dharampal Chopra 1957-59 Pun LR 472, which was the case of an Assistant Supervisor, incharge Dalhousie Branch of Military Farm, followed the earlier decision in Dass Mal's case AIR 1956 Punj 42. The last important decision in this line of cases of this Court is the one given in Lekh Raj Khurana v. Union of India R. S. A. No. 43-D of 1956 decided by Khosla C. J., and Tek Chand J., on 23rd May 1961 (Punj), which dealt primarily with the question whether a person employed in the Defence Forces but holding a civil post could claim the protection of Article 311. After referring to various decisions and in particular, the pronouncement of the Privy Council in Venkata Rao's case, AIR 1937 PC 31, it was held that he was not entitled to such a protection and further a breach of the departmental service rules did not entitle him to seek redress in a Court of law

5. A brief reference to decisions of other Courts on the point in question may be made. In Subodh Ranjan Ghosh v. N. A. O. Callaghan, AIR 1956 Cal 532, the petitioner was employed in the Military Engineering Service, Sinha J., after referring to the rules, held that Articles 309 and 310 applied but Article 311 was not applicable and, therefore, the petition could not succeed. In Chnandra Bhan Varma v. Union of India, AIR 1956 Bom 601 and Tara Singh Ujagar Singh v. Union of India, AIR 1960 Bom 101, a similar view was expressed. It is clear from Jagannath Singh v. Assistant Excise Commissioner, AIR 1959 All 771, that an identical view prevailed in Allahabad Court.

6. It would appear that in some cases a discordant note was struck. In Laxminarayan Chironjila) v. Union of India, AIR 1956 Nag 113, the petitioner was in the employment of the Defence Department as a Civilian employee. His complaint was that he bad not been given an opportunity of showing cause against his reversion, as required by Article 311. It was held by a Bench consisting of Sinha C. J., and Mudholkar J., (as they then were) that although the petitioner could not invoke the provisions of Article 311 but if Sub-rule 3 (iii) of Rule 212 of the Army Instructions (India), which provided that no order of dismissal, removal or reduction would be passed on a Government servant un-less he had been informed in wrting of the grounds on which it was proposed to take action and had been afforded an adequate opportunity for defending himself, applied, he would be entitled to a relief from the Court. In Dwarka chand v. State of Rajasthan, AIR 1958 Raj 38, Wanchoo C. J., (as he then was) and Dave J., held that the pleasure mentioned in Article 310 bad to he exercised according to law or rules framed under Article 309 or analogous law. If there was no rule or taw which laid down that an order exonerating a public servant in a departmental enquiry was open to revision and a fresh enquiry could be ordered, it was not open to the State to assume such a power on the ground that Article 310 made a provision that the tenure of public servant is at the pleasure of the President or the Governor. Similarly in Dr. G. Valayya Pantulu v. Government of Andhra, AIR 1958 Audh Pra 240, Subba Rao C.J., (as he then was) and Jagan Mohan Reddy J., were of the view that statutory rules of pro cedure laid down in the Andhra Civil Service (Disciplinary Proceedings Tribunal) Rules, 1953 were as much binding on the Government as on the officer against whom an enquiry was being held; although in cases where the entire procedure which had been followed had not been objected to by the officer concerned the High Court would not interfere under Article 226 of the Constitution

7. It would appear from the above discussion that in majority of cases the two decisions of the Privy Council in Venkata Rao and Ranga chari's cases, AIR 1937 PC 31 and AIR 1937 PC 27, were followed and applied and the ambit and range of any rules framed under Section 240 of the Government of India Act or Article 309 of the Constitution were circumscribed within the narrow limits of administrative instructions or directions which were not justifiable at the instance of an aggrieved public servant who could not claim the protection provided by Section 240(2) of the Government of India Act. 1935 or Article 311(2) of the Constitution The decision in AIR 1961 SC 751, marks the next landmark in this Branch of law. In the majority Judgment delivered by Subba Rao J. Venkata Rao and Rangachari's cases, AIR 1937 PC 31 and AIR 1937 PC 27, were discussed in Pani graph 24 and it has been said:--

'On a construction of these provisions the Judicial Committee held that His Majesty's pleasure was paramount and could not legally be controlled or limited by the rules. Two reasons were given for the conclusion namely, (i) Section 96B in express terms stated that the office was held during the pleasure and there was no room for the implication of a contractual term that the rules were to be observed; and (ii) Sub-section (2) of Section 96B and the rules made earful provisions for redress of grievances by administrative process and that Sub-section (5) reaffirmed the superior authority of the Secretary of State in Council over the civil service. It may be noticed that the rules framed in exercise of the power conferred by the Act was to regulate the exercise of His Majesty s pleasure. The observations were presumably coloured by the doctrine of 'tenure at pleasure' obtaining in Engliand, namely, that it could only be modified by statute, influenced by the principle that the rules made under a statute shall be consistent with its provisions and, what is more, based upon a construction of the express provisions of the Act. These observations cannot, in our opinion, be taken out of their context and applied to the provisions of our Constitution and the Acts of our Legislatures in derogation of the well-settled principles of statutory construction'. Subba Rao J., further proceeded to observe that the above remarks would equally apply to High Commissioner for India v. I. M. Lall, AIR 1948 PC 121 and made it quite clear that in S. A. Venkataraman v. Union of India, AIR 1954 SC 375, their Lordships did not lay down any general proposition but only stated the gist of the reasoning in Venkata Rao's case, AIR 1937 PC 31, and similarly Das C J., stated the scope of the rule in Venkata Rao's case. AIR 1937 PC 31, in the decision in Khem Chand v Union of India, AIR 1958 SC 300 The learned Judge next observed that the decisions of the Judicial Committee on the provisions of the earlier Constitution Acts could be sustained on the ground that the rules made in exercise of power conferred under the Acts could not override or modify the tenure at pleasure provided by Section 96B or Section 240 of the said Acts. There-Fore, when the paramountey of the doctrine was conceded or declared by the statute, there might have been justification for sustaining the rules made under that statute in derogation thereof on the ground that they were only administrative directions, for otherwise the rules would have to be struck down as inconsistent with the Act. Referring to the decisions of the different High Courts in India, the learned Judge said that they expressed two divergent views; one line relied upon the observations of the Privy Council in Venkata Rao's case, AIR 1937 PC 31 and laid down that all statutory rules vis-a-vis the disciplinary proceedings taken against a Government servant were administrative directions, and the other applied the well-settled rules of construction and held that the appropriate authority was bound to comply with the mandatory provisions of the rules in making an enquiry under a particular statute. The majority view of the Court on this point was expressed in the following words:-- 'In our view, subject to the overriding power of the President or the Governor under Article 310, as qualified by the provisions of Article 311, the rules governing disciplinary proceedings cannot be treated as administrative directions, but shall have the same effect as the provisions of the statute where under they are made, in so far as they are not inconsistent with the provisions thereof.'

8. In Babu Ham Upadhya's case, AIR 1961 SC 751, the delinquent Sub-Inspector of Police along with one Lalji had been accused of mis-appropriating a sum of Rs. 250 belonging to Tika Ram. At the instance of the Deputy Inspector General of Police proceedings were taken against him under Section 7 of the Police Act by the Superintendent of Police. After the departmental enquiry had been held and the show cause notice issued, the Superintendent of Police reduced him to the lowest grade of Sub-Inspector for a period of three years. The Deputy Inspector General of Police, however, on consideration of the entire record was of the view that he should be dismissed from service and he ordered accordingly. That order having been confirmed by higher authorities, a petition was filed under Article 226 of the Constitution for quashing those orders. The learned Judges of the High Court held that the provisions of Paragraph 486 of the U. P. Police Regulations had not been observed and, therefore, the proceedings under Section 7 of the Police Act were invalid and illegal. On appeal being taken to the Supreme Court, one of the main contentions raised on behalf of appellant Stale of Uttar Pradesh was that the rules made in exercise of a power conferred on a Government under a statute delegating powers to a subordinate officer to dismiss a servant could only be administrative directions to enable the exercise of the pleasure by the concerned authorities and that any breach of those regulations could not possibly confer any right on the aggrieved Government servant to go to a Court of Law. Subba Rao J., delivering the judgment of the majority, after referring to Section 7 of the Police Act and Section 46 under which the U. P. Police Regulations prescribing the procedure for investigation and enquiry had been made, traced the historical background of the provisions embodied in Articles 309, 310 and 311 of the Constitution and the matter of justiciability of any law enacted by the Legislature or rules framed under Article 309 was considered to which reference has already been made before. While dealing with the scope of the aforesaid Articles it was observed in Paragraph 20 about Article 309 of the Constitution:-

'A law made by the appropriate Legislature or the rules made by the President or the Governor, as the case may be under the said Article may confer a power upon a particular authority to remove a public servant from service; but the conferment of such a power does not amount to a delegation of the Governors pleasure. Whatever the said authority does is by virtue of express power conferred on it by a statute of rules made by the competent authorities and not by virtue of any delegation by the Governor of his power. There cannot be conflict between the exercise of the Governor's pleasure under Article 310 and that of an authority under a statute, for the statutory power would be always subject to the overriding pleasure of the Governor'.

In Paragraph 22 Subba Rao )., Summarised his conclusions thus:

'(1) In India every person who is a member of a public service described in Article 310 of the Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution. (3) This tenure is subject to the limitations or qualifications mentioned in Article 311 of the Constitution. (4) The Parliament or the Legislatures of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311. (5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President, or the Governor under Article 310 of the Constitution read with Article 311 thereof. (6) The Parliament and the Legislatures also can make a law laying down and regulating the scope and content of the doctrine of reasonable opportunity' embodied in Article 311 of the Constitution; but the said law would be subject to judicial review. (7) If a statute could be made by Legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits'

As regards the Police Act and the rules made thereunder, it was that they constituted a self-contained code providing for the appointment of police officers and prescribing the procedure for their removal. It followed that where the appropriate authority took disciplinary action under the Police Act or the rules made thereunder, it must conform to the provisions of the statute or the rules which had conferred upon it the power to take the said action. If there was any violation of the said provisions, the public servant would have a right, to challenge the decision of that authority provided the rules were mandatory and not directory. While holding that paragraph 486 of the U. P. Police Regulations was mandatory it was observed that when a rule said that a departmental trial could be held only after a police investigation it was not permissible to hold that it could be held without such investigation

9. It is necessary to refer to the judgment of the minority delivered by Wanchoo J., because that would throw a good deal of light on the nature and content of the contentions that were raised in Babu Ram Upadhya's case, AIR 1961 SC 751, Wanchoo J., with whom Gajendra-gadkar J., (as he then was) agreed, noticed the argument of Mr. Pathak who had appeared for Babu Ram Upadhya that in view of the words of Article 310 a statute of statutory rules could also cut down the nature of the pleasure-tenure provided by Article 310 in the same way as in England an Act of Parliament cuts down the ambit of His Majesty's pleasure in the matter of dismissal. Wanchoo J., referred to the Articles in question as also to the decision of the Privy Council it) Venkata Rao's case, AIR 1937 PC 31 and said that if the rules or the law defined the content of the guarantee contained in Article 311(2) they might to the extent be mandatory but only because they carried out the guarantee contained in Article 311(2). Excepting this according to him, any law or rule framed under Article 309 cannot cut down the pleasure tenure as provided in Article 310 and further that all public servants other than those who are excepted expressly by the provisions of the Constitution hold office during the pleasure of the President or the Governor, as the case may be, and that no law or rule passed or framed under Article 309 or Article 154(2)(b) ran cut down the content of the pleasure tenure as contained in Article 310 subject to Article 311. With regard to Section 7 of the Police Act and the regulations framed thereunder Wanchoo J., observed that if any of the rules framed under Section 7 carry out the purpose of Article 311(2) to that extent they will be mandatory and in that sense their contravention would in substance amount to contravention of Article 311 itself. He went on to say:--

'If this were not so, if would be possible to forge further fetters on the pleasure of the Governor to dismiss a public servant and this in the light of what we have said above is clearly not possible in view of the provisions of the Constitution'

Dealing with the argument that power had not been delegated by the Governor under Article 154(1) in the instant case and that it had been conferred on the police officers by law, Wanchoo I., expressed the view that that would make no difference to the nature of the power. which was being exercised under Section 7 of the Police Act. According to him, whether it was delegation by the Governor himself or whether it was delegation by law under Article 154(2)(b) or by an existing law, which must be treated as analogous to a law under Section 154 (2) (b), the officer exercising the power of dismissal was only indirectly exercising the Governor's power to dismiss at pleasure and his order of dismissal 'had the same effect as the order of the Governor to dismiss at pleasure. As regards Regulation 486, it was observed that it was not meant for the purpose of carrying out the object of Article 311(2) and, therefore it could not be mandatory and could not add a further fetter on the exercise of the power to dismiss or remove at the pleasure of the Governor over and above the guarantees contained in Article 311. It was then said that Paragraph 486 of the Police Regulations was meant for the purpose of making a preliminary enquiry only and was not meant to carry out the object contained in Article 311(2) and consequently it was merely directory.

10. Mr. H. S. Gujral for the petitioner has sought to establish from the majority decision of the Supreme Court that it has now been finally settled that any rules framed under Article 309 of the Constitution government disciplimary proceedings cannot be treated as administrative directions. According to him, it is clear from the majority judgment that the tenure of the public servant in India is dependent on the pleasure of the President or the Governor, as the case may be, and that if the pleasure is exercised by either of these authorities the only fetters on the exercise of that power are those which are to be found in Article 311 of the Constitution but if certain authority other than the President and the Governor is empowered by a statute or by the rules framed under Article 309 to appoint as also to dismiss, remove or compulsorily retire servants of a particular class or category and if it is that authority which exercises the said power it is bound to comply with the rules of which it is the creature.

11. Mr. Gujral has referred in detail to the rules by which the petitioner is governed which have admittedly been promulgated under Article 309 of the Constitution. He says that indisputably the Director of Military Farms. Army Headquarters, who made the impugned order, did so in exercise of the powers conferred on him by the rules. It was under Rule 13 that the punishment which was awarded was inflicted. It was therefore, incumbent on the afore-said authority to comply with the procedure laid down in Rule 15 before exercising the powers conferred on the said authority of inflicting punishment under Rule 13.

12. Mr. Chetan Das Dewan for the respondents has sought to press the points on the lines of the minority judgment in Babu Ram Upadhya's case. AIR' 1961 SC 751. According to him, the decisions of the Privy Council in Venkata Rao and Rangachari's cases, AIR 1937 PC 31 and AIR 1937 PC 27, are still good law and that the Rules should be regarded as merely administrative directions which are not justiciable. He has relied a great deal on a recent decision of the Madhya Pradesh Court in Kailashchand Ratan Chand v. General Manager, Ordnance Factory Khamaria Jabalpur, AIR 1988 Madh Pra 82. In that case P. V. Dixit C J., and K. L. Pandey J., held that a machinist in Ordnance Factory who was excluded from the benefit of Article 311 could not claim the benefit of the rules which had been made under Article 309, the rules there being the same as in the present case. The case of Babu Ram Upadhya, AIR 1961 SC 751, was regarded by them as distinguishable on the ground that it had been held therein that the rules prescribing the process for removal of a police officer only laid down and regulated the scope and content of reasonable opportunity contemplated by Article 311(2) and did not in any way affect the powers of the President or the Governor under Article 310 read with Article 311 of the Constitution and further the Supreme Court had no occasion to consider the case of dismissal or removal of an employee who did not fall within the purview of Article 311 of the Constitution and had relied solely on the rule made under Article 309 prescribing procedure for the removal or dismissal of a Government servant from service. Indeed, the Madhya Pradesh Court sought to press into service the seven propositions laid down by Subba Rao J., in the majority judgment in support of the view that no rules under Article 309 of the Constitution could be made so as to modify the tenure at pleasure embodied in Article 310 as qualified by Article 311. With the utmost respect to the learned Judge of the Madhya Pradesh Court it is not possible to see how Babu Ram Upadhya's case, AIR 1961 SC 751, was limited only to the narrow question whether the Police Regulations defined or implied the content of reasonable opportunity envisaged by Article 311(2) of the Constitution. The majority and the minority judgments in that case which have been considered in detail by me do not justify the conclusion which has been drawn by the Madhya Pradesh Court. The discussion in that case covered a good deal of general field relating to this branch of law and the propositions, which were enunciated in the form of conclusions by Subba Rao J., did not deal merely with the narrow question whether statute or rules could be made defining the scope and content of the reasonable opportunity envisaged by Article 311(2) of the Constitution. At any rate, there can be no manner of doubt that according to the majority judgment although any law or statutory rules made under Article 309 in relation to conditions of service of public servants could not cut down the pleasure of the President or the Governor, as the case may be, they could not be regarded as mere administrative directions and to that extent the decisions of the Privy Council must be regarded as having not been accepted in their entirety, particularly where the authority that has proceeded to award punishment has done so in exercise of the powers conferred by a statute or the rules framed thereunder.

13. The Madhya Pradesh Court does not appear to have noticed an earlier decision of a learned Single Judge of that Court in Kapoor Singh Harnam Singh v. Union of India, AIR 1960 Madh Pra 119 in which the same rules which were being considered in the later decision of that Court had been held to be justiciable nor is it possible to accept, with respect, the distinction made by Dixit C. J., who delivered the judgment of the later case that the subsequent pronouncement of the Supreme Court in the State of Mysore v. M. H. Bellary, AIR 1965 SC 868, would not govern the matter. In that case the claim of the petitioner was that on a proper construction of Rule 50 (b) of the Bombay Civil Service Rules he should have been posted as an Assistant Secretary and been allowed the scale of emoluments applicable to that post. It was observed in paragraph 4 by their Lordships:

'In view of the decisions of this Court of which it is sufficient to refer to (1961) 2 SCR 679 = AIR 1961 SC 751 it was not disputed that if there was a breach of a statutory rule framed under Article 309 or which was continued under Article 313 in relation to the conditions of service the aggrieved Government servant could have recourse to the Court for redress'. In that case the writ petition had been allowed by the High Court and that decision was affirmed by the Supreme Court. According to Dixit C. J., in Kailashchand Ratan Chand's case, AIR 1966 Madh Pra 82, there was no question of the illegality of the order of dismissal or removal of a Government servant to whom Article 311 did not apply. To my mind that case leaves no room for doubt that according to the decision In Babu Ram Upadhya's case, AIR 1981 SC 751, the rules framed under Article 309 in relation to the conditions of service were justiciable and enforceable in Courts of law.

14. At the time of arguments the learned counsel for the parties were not aware of and did not refer to a decision of a Full Bench of this Court delivered at Delhi on 23rd September, 1965 in P. H. Laxminarayanan v. Engineer-in-Chief, Army Headquarters, L. P. A. No. 8-D of 1962 (Punj). In that case the petitioner was an Assistant Executive Engineer in the Military Engineering Service and he had been dismissed by the Chief Engineer. He had relied on the same rules as have been relied upon in the present case and had urged that he could not be dismissed without following the procedure laid down in Rule 15. The following two questions were referred to the Full Bench:

'(1) Whether on the true construction of Articles 309 and 310 of the Constitution the pleasure of the President under Article 310 can be exercised by him alone or can it be delegated to any subordinate officer to be exercised in accordance with the rules framed or statute enacted under Article 309 of the Constitution; and

(2) Whether violation of any rules or statute enacted under Article 309 of the Constitution regulating the conditions of service of such servants of the State as are not profected by Article 311 is justiciable?'

The answer of the Full Bench to the first question was that the pleasure of the President or the Governor mentioned in Article 310 could be exercised by such persons as the President or the Governor might respectively direct but such pleasure must be exercised in accordance with the rules or the statute made in that behalf, and that the President could delegate the powers under Article 310 but Article 309 could not impair or affect the pleasure of the President therein specified. The Full Bench relied largely in answering the first question on the decision in Moti Ram v. General Manager, N. E. Frontier Railway, AIR 1964 SC 600, in which it has been observed at page 606 that according to the proviso to Article 309, it would be competent for the President or the Governor to make rules regulating the recruitment and prescribing the conditions of service of persons respectively appointed to services and posts under the Union or the State. The pleasure of the President or the Governor mentioned in Article 310(1) can be exercised by such person as the President or the Governor may respectively direct in that behalf and the pleasure thus exercised has to be exercised in accordance with the rules made in that behalf. Further that the rules and indeed the exercise of the power conferred on the delegate must be subject to Article 310 and so Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified. As regards the second question, this is what S. K. Kapur J., who delivered the judgment of the Full Bench, said:--

Coming now to the second question, the learned Solicitor General contends that in cases where Article 311 is not applicable the rights arising out of the rules or the law made under Article 309 are not justiciable. He says that the only remedy in case of violation of such rules is to approach the Government but not the Court. In support of this proposition he relies on AIR 1937 PC 31. He, however, does not dispute that according to the decision in Babu Ram Upadhya's case, AIR 1961 SC 751, such rights would be justiciable. In the circumstances, we are of the opinion that the question of violation of any rules or statute enacted under Article 309 of the Constitution regulating the conditions of service of such servants of the State as are not profected by Article 311 would be a justiciable matter'.

15. It is true that the question of justiciability of the rules was conceded before the Full Bencn at Delhi and a concession was also made before their Lordships in M. H. Bellary's case, AIR 1965 SC 868, relating to the rules under consideration there but it is not possible to see how the concessions which were made by eminent counsel were not well founded or were based on any misapprehension with regard to the law laid down in Babu Ram Upadhya's case. AIR 1961 SC 751. Moreover, the observations in Moti Ram's case, AIR 1964 SC 600, further reinforce and support the view that although-the pleasure of the President or the Governor cannot be controlled or fettered except to the extent provided in Article 311 of the Constitution, the President or the Governor may respectively direct that such pleasure must be exercised in accordance with the rules or the statute made in that behalf under Article 309 of the Constitution. If such rules or statutory provisions exist and the competent authority proceeds to exercise power in the matter of taking disciplinary action against a Government servant it is bound to follow the procedure prescribed by such provisions and their non-compliance would justiciable.

16. For the reasons given above, I would answer the question referred to the Full Bench in the affirmative.

Mehar Singh, C.J.

17. -I agree.

Shamsher Bahadur, J.

18. I also agree

ORDER OF THE SINGLE BENCH (Dated 21-7-1966)

Narula, J.

19.Though the history of this case is somewhat lengthy, the main question to be ultimately answered in this writ petition at this stage is whether the petitioner was or was not afforded adequate opportunity to defend himself (in the disciplinary proceedings culminating in his compulsory retirement from the post of Supervisor Military Dairy farm), within the meaning of Rule 15 of the 'Civilians in Defence Service (Classification, Control and Appeal) Rules. 19.52' hereinafter referred as the 1952 rules

20. In order to decide this question it is necessary to sof out briefly the relevant facts. In 1960 when Sham Lal petitioner was posted at Secunderabad as Supervisor Military Dairy Farm, there was a report by Dr. Tyagi, Pool Officer to the effect that he had found one bap of powder milk surplus which was unaccounted for with the petitioner. Mr. L. P. Aiyar, farm officer. gave a warning to the petitioner on 28th January, 1961 (Annexure 'A') for his future conduct In that communication, a reference was made to the petitioner's explanation and he was directed to refrain from drawing stores in future on requisition slips, and was directed to draw stores in future only on properly written supplementary issue orders and was warned that where stores would not be drawn in accordance with proper procedure they would be treated as surplus with the petitioner and action would be taken against him accordingly It appears that a preliminary enquiry into the allegations against the petitioner was gof conducted through the Special Police Establishment and that on receipt of report of the Special Police, disciplinary proceedings were initiated against the petitioner. Colonel Amin Lal, Deputy Director, Military Farms, New Delhi was appointed as the enquiry officer

21. On June 24, 1963, the petitioner applied to the Deputy Director, Military, Farms for being supplied with copies of the previous statements of Krishna Sahney and T Ramaya witnesses who had been examined during the preliminary enquiry and who were cited as witnesses proposed to be produced against the petitioner in the confronted enquiry. On July 9, 1963, the petitioner was informed by telegram that the copies in question could not he supplied to him as those were of confidential nature. Copy of the telegram is Annexure- 'B' to the writ petition.

22. At the, close of the enquiry, a long report containing 112 paragraphs was submitted by the enquiry officer to the Director. On considering the report, the Director served on the petitioner a 'show-cause' notice dated 24th April, 1964 (Annexure C), wherein it was stated that the petitioner's defence statement had been carefully considered in the light of the charges levelled and in the light of the proceedings of oral enquiry and all other evidence on record, and that the petitioner had been found guilty of the charges of gross-misconduct. A copy of the findings of the oral enquiry was stated to have been enclosed with the notice It is, however, not in dispute that what was actually provided to the petitioner with the show-cause notice was only an extract from the enquiry report containing a copy of the same from paragraphs 77 to 109 only. A copy of the said extract from the report has been placed on the record of this case as Annexure 'L' by the petitioner and another copy of the same extract has been produced by the State as Annexure R-9 to the respondent's written statement. The petitioner found himself handicapped in the matter of submitting his defence by the uon-supply of copy of the full report of the enquiry officer. He, therefore, sent letter, dated May 23, 1964 (Annexure 'D') to the Deputy Director stating that in order to represent his case finally 'as per show-cause notice given to him, he had to discuss the charge and the evidence there upon in an elaborate manner and that this vas not possible unless the petitioner had been provided with copies of statements of all the witnesses taken down by the enquiry officer. In the said communication the petitioner expressed an apprehension to the effect that important portions of the report which the petitioner felt ware favourable to him, had been kept back. It was, therefore, requested by the petitioner that a copy of the complete proceedings including the statements of the witnesses should be furnished to him. He also asked for extension of time to submit his reply to the 'show-cause' notice. Not having received any reply, the petitioner submitted a letter, dated July 3, 1964 (Annexure 'K') to the punishing authority. In that letter, the petitioner emphasised that although he had waited for over a month for the supply of a complete copy of the oral enquiry proceedings of the case, he had not received the same and that he would be able to submit his final representation only on receipt of the complete copy. In that letter, the petitioner gave a long list of 18 documents including certain statements of witnesses with detailed references of which he required copies. It was only on July 9, 1964 that the respondent sent his reply (Annexure 'G') to the petitioner informing him that the extracts from the proceedings had already been provided to the petitioner in accordance with existing orders and that copy of the entire oral enquiry proceedings could not be furnished to the petitioner as he had been present at the oral enquiry and could take notes of the proceedings if he so desired. This reply was followed by respondent's telegram, dated nil (Annexure 'F') wherein the petitioner was directed to submit his written explanation by the 22nd of August, 1961. Thereupon Sham Lal submitted his 'interim reply' to the 'show-cause' notice on August 19, 1964 and specifically stated therein that he would be entitled to submit a further reply on the receipt of complete copies of the preliminary and regular enquiry report of the proceedings. It may be mentioned here that at an earlier stage i. e. on 6th July, 1964, the petitioner had requested for being furnished with a copy of the report of the Special Police Establishment also as the petitioner considered the same to be essential in connection with the drafting of his representation against the 'show-cause' notice. It was to the said request that reference was made by the petitioner in his interim reply while asking for a copy of the enquiry officer's preliminary report in addition to the complete copy of the enquiry officer's proceedings. It was at this stage that the petitioner filed the present writ petition in this Court on December 23, 1964. The petitioner claimed that having been punished by Mr. Aivar (by letter Annexure 'A'), he could not be re-punished for the same offence. He also claimed that he had been denied adequate opportunity to defend himself in the disciplinary proceedings. This he claimed on three founts; viz. (i) that the copy of the preliminary Special Police Establishment report was not furnished to him in spite of being asked for; (ii) that a complete copy of the enquiry officers proceedings and report was not furnished to the petitioner despite his repeated requests; and (iii) the copies of the statements of Krishna Sahney and T Ramaya given by them at the preliminary stage were illegally refused to be given to the petitioner He also claimed that his compulsory retirement in the above mentioned circumstances amounted to his dismissal from service and was in the nature of punishment. The writ petition was admitted by the Motion Bench (Falshaw C.J. and Khanna J.) on December, 24, 1964, and further departmental proceedings against the petitioner were stayed ad interim.

23. In reply to the writ petition, a written statement was filed duly supported by the affidavit of Mr. B. S. Bajwa, Director of Military Farms, dated 2nd February 1965. An additional affidavit of Colonel Amin Lal, Deputy Director (respondent No. 2) dated 2nd February, 1965. was also filed wherein it was stated that he had examined prosecution witnesses, T. Ramaya and Krishna Sahney, but that the petitioner did not while cross-examining those witnesses apply to him for the supply of copies of their previous statements. In the main written statement. dated 2nd February, 1965. signed and verified by the Director of Military Farms, it has been averred that the petitioner was governed by the 1952 rules, that the warning issued to him by Mr. Aiyar was in respect of non-observance of proper procedure for drawing stores and had nothing to do with the charge ultimately brought out against the petitioner in respect of which the departmental enquiry was held against him. Regarding the attack in connection with the non-supply of the report of the Special Police Establishment, it has been stated by the respondent that after investigation the police did make a report, dated October 13, 1961, and that according to the report the petitioner was prima facie found to have committed misconduct and this led to the issue of the charge-sheet against him. Regarding the warning (Annexure 'A'), it is averred in the written statement that the petitioner did not take this objection in his written explanation. It has been admitted by the Director that the copies of the statements of the two witnesses in question were not supplied to the petitioner on the ground that they were confidential, but that the petitioner had not shown how this had handicapped him. Reference has also been made to a certificate at the close of the enquiry proceedings signed by the petitioner. wherein he purports to have stated that he had been given full opportunity to examine and cross-examine the witnesses and that he had no complaint against the manner in which the oral enquiry had been conducted. Regarding the non-supply of copies of the statements of the said two witnesses, it has been added by the Director in the written statements that the enquiry officer did not depend upon the statements of Krishna Sahney and T Ramaya and that the findings were not based on their statements. The Director has further added that the statements of these two witnesses were regarded as confidential and, therefore, copies thereof were declined, but that the petitioner had not been handicapped by the same. If has been admitted that the petitioner was furnished only with the extracts from the enquiry report and not with the whole report in spite of his requests for the same. The rejection of the petitioner's request for supply of the preliminary police report has also been admitted.

24. The petitioner submitted a written rejoinder, dated the 21st February, 1965 in reply to the written statement. With his said replication he has filed as Annexure 'I', an attract from a copy of Government of India, Ministry of Defence letter, dated December 8, 1961 wherein it is provided that if an accused officer requests during departmental enquiries for any official records other than those included in the list of records which must be furnished to him, such requests should normally he acceded to. As Annexure 'J' to the rejoinder, the petitioner has filed a copy of letter, dated July 28, 1964, wherein the petitioner had been informed that copy of the Special Police Establishment investigation report could not be furnished to him. On April, 7, 1965, the petitioner submitted C. M. 1187 of 1965 stating that he had come to know that the impugned order, dated December 11, 1964 inflicting on the petitioner the punishment of compulsory retire ment had been passed before the stay order was issued in this case, and that the said order was expected to be enforced with effect from 31st December, 1964, which enforcement had been withheld on account of the stay order granted by this Court. The petitioner, however prayed for leave to amend his writ petition in view of the subsequent disclosure about the punishment already having been inflicted on him. The main amendment was in the relief claimed by the petitioner wherein he added a prayer for quashing the final order inflicting the punishment of compulsory retirement on him. Notice of the application for amendment was -served on the respondent and the petition was directed to be heard and disposed of with the writ petition. No objection to the grant of the amendment was either raised or could justly be raised and the case has been heard on the basis that the amend merit has been allowed

25. At the hearing of the writ petition before me on August 3, 1965, Mr. Gujral claim ed protection of Rule 15 of the 1952 rules. Two Division Benches of this court had expressed doubts about the enforceability and justifiability of service rules in Article 226 proceedings. By my order, dated August 5, 1965. 1 directed that the case may be placed before my Lord, the Chief Justice for constituting a Bench of more than two Judges to reconsider the following question:--

'Whether a person holding a civil post connect ed with defence can claim protection of a civil Court or invoke the extraordinary jurisdiction of this Court for interference with departmental proceedings or a departmental order of punishment on the ground that the same has been commenced or inflicted against him in violation of service rules framed by the President under Article 309 of the Constitution in spite of the fact that the employee in question may not be entitled to invoke the profeccion of Article 311 of the Constitution'

26. By judgment, dated May 17, 1966, the Full Bench (Mehar Singh J as my Lord, the Chief Justice then was. Grover and Shamsher Bahadur JJ.) have answered the above said question in the affirmative. Their Lordships have held that if any rules framed under Article 309 of the Constitution or other statutory provisions exist and the competent authority persists to exercise power in the matter of taking disciplinary action against a Government servant, it is bound to follow the procedure prescribed by such provisions and their non-compliance would be justiciable. This case which has now been laid before me for disposal on merits in the light of the law laid down by the Full Bench, has to be disposed of on that footing.

27. Mr. H. S. Gujral, the learned counsel for the petitioner has raised two main points. Firstly it is contended by him that the petitioner has been subjected to double jeopardy and has been punished twice for same default. It is contended that the order of Mr L. P. Aiyer, Officer lncharge Military Farm, Secunderabad, dated 28th January, 1961 (Annexuree 'A') constituted the first punishment inflicted on the petitioner on the charge in question. The said order was passed after serving the charge-sheet on the petitioner and obtaining Ins explanation. The order shows that it was passed with reference to the explanation submitted by the petitioner. In the order, dated January 28, 1961 the petitioner was 'warned' and this, it is argued constituted the punishment. The alleged punishment inflicted by order dated January 28, 1961, is claimed to be a bar to the impugned disciplinary proceedings resulting in the compulsory retirement of the petitioner from service. I do not find any force in this countention of Mr. Gujral. It appears to me that if the order of 28th January, 1961 is read in its proper perspective, it was a mere directive to the petitioner to conduct himself in a particular manner in the matter of drawing of skimmed milk powder from the stores; accompanied by a warning about the result oj non-compliance with the direction. The warning contained in the letter was not a punishment meted out to the petitioner, but was a prospective threat of treat inn irregularly drawn skimmed milk powder as surplus store. The mere fact that the letter refers to the explanation of the petitions claiming the previous drawing of skimmed milk powder as regular, does not show that the charges to which the explanation was a reply, were disposed of by the letter in question. The alleged irregular conduct of the petitioner led to double proceedings: one was the disciplinary action and the other was preventive action to safeguard recurrence of such irregularities in future. Whereas the impugned proceedings and orders are the result of the first set of proceedings and orders dated January 28, 1961 related to the second set. On the facts of this case and in the circumstances brought out from the record of this case, I hold that no punishment was inflicted on the petitioner by order, dated January 28, 1961 and that the petitioner was never put in double jeopardy in connection with the charges which have resulted in his compulsory retirement.

28. The second and the main point urged by the learned counsel for the petitioner is that the right of being afforded adequate opportunity of defending himself against the charages leading to his compulsory retirement guaranteed by the 1952 rules, has been flagrantly violated in this case inasmuch as,

(i) the copies of the statements of the two prosecution witnesses viz. (a) Krishan Sahney and (b) T. Hamaya, given by them at the preliminary enquiry nave been illegally withheld from the petitioner thus depriving him of an opportunity to effectively cross-examine those witnesses and to obtain from their statements at the preliminary stage possible material in favour of the petitioner;

(ii) the complete report of the enquiry officer has not been furnished to the petitioner; despite his repeated and written requests, either with the 'Show-cause' notice or at any subsequent stage resulting in the withholding of copies of the entire proceedings contained in Paragraphs 1 to 76 of the enquiry officer's report; and

(iii) the report of the preliminary enquiry held by the Special Police Establishment has been illegally withheld from the petitioner despite his written request for being furnished with the same.

29. It is neither possible nor proper to lay down any hard and fast rules for affording adequate opportunity of defending an accused officer in a departmental proceeding beyond those specific directions which are contained in Rule 15 itself. Independent of the definite steps directed to be taken by the rules, it is necessary for the authorities concerned to observe principles of natural justice in the matter of disciplinary proceedings against Government servants. What is an adequate opportunity of defending himself against a particular charge would always depend on the facts and circumstances of a given case. Chagla C. J., (as he then was) and Dixit J., held in State of Bombay v. Gajanan Mahadev Badley, AIR 1954 Bom 351, that if a government servant conies to Court and complains that his dismissal was wrongful and that reasonable opportunity was not given to him as required by law, it is for the State then to satisfy the Court that in fact reasonable opportunity was given to him. In AIR 1958 SC 300, it was held that a reasonable opportunity envisaged by Article 311(2) of the Constitution to be afforded to a Government servant includes (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 defence; 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 alter applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the punishments in question and communicates the same to the Government servant. It would be noticed that the provisions of Rule 15 of the 1952 rules are very much similar to those contained in Article 311(2) of the Constitution. Rule 15 reads as follows:--

'Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a Service (other than an order based on facts which had 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 is 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 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 enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations are or 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 officer conducting the enquiry 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. On completion of the enquiry after the authority empowered to impose the penalty has considered the defence and arrived at a provisional conclusion in regard to the penalty to be imposed, the person charged shall, if the penalty is dismissal, removal, compulsory retirement or reduction, be called upon to show cause within a reasonable time, not ordinarily exceeding a fortnight, against the particular penalty to be imposed. Any representation submitted by the person charged shall be duly taken into consideration before final orders are passed.

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 cases for special and sufficient reasons to he 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'

In State of Madhya Pradesh v. Chintaman Sadashiva, AIR 1961 SO 1623, it was held by their Lordships of the Supreme Court in connection with the reasonable opportunity envisaged by Article 311(2) of the Constitution that a proper opportunity must be afforded to the accused officer at the stage of the enquiry after the charge is supplied to him as well as at the second stage when punishment is about to be imposed on him. II the first enquiry was materially defective and denied the public servant an opportunity to prove his ease it is impossible to hold that a reasonable opportunity guaranteed to a public servant by Article 311(2) had been afforded to him. The Supreme Court added in that case that whenever it is urged before the High Court that in disciplinary proceedings a 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. Their Lordships emphasised that the only general statement that can be safely made as a test for judging whether or not an officer has had a reasonable opportunity is that the departmental enquiry officers should observe rules of natural justice and that if the inquiries are fairly and properly conducted, the decision reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Courts of Law. Rules of natural justice require that a party should have the 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 the department, and that no materials should be relied on against the public servant without his being given an opportunity of explaining them. If it appears that effective exercise of the right of cross-examination has been prevented by the enquiry officer by not giving to the public servant relevant documents to which he is entitled, it would inevitably mean that the enquiry had not been held in accordance with the rules of natural justice.

30. It is in the light of the law laid down in the above cases that a decision has to be given on the three points raised by Mr. Gujral. On the first point it is not in dispute that Krishna Sahney and T. Kamaya had been examined as witnesses against the petitioner at the preliminary stage. It is also admitted that the petitioner specifically asked for copies of their said statements being furnished to him in the petitioner's application, dated June 24, 1963, and that the said request was definitely and un equivocally rejected in the Government's letter (Annexure B') dated July 9, 1963 on the solitan ground that those statements were confidential The only other ground on which the non-supply of the copies has been justified in the written statement of the respondent is that the enquiry officer did not rely upon those earlier statements of the two witnesses. It appears to me that the defence of the State relating to this this attack on the disciplinary proceedings has no force. In order to afford adequate opportunity to defend himself, a public servant is entitled to an opportunity to effectively cross-examine even witness that is produced against him. In order to effectively cross-examine the two witnesses, the petitioner was entitled to obtain the copies of their previous statements given by them in connection with the same charges. It is beyond comprehension as to what could be confidential in those statements. Moreover, in the return filed in Court, it has been emphasised that if the petitioner had asked for those copies again from the enquiry officer, he would have got the same. It would be meaningless to expect the petitioner to go on repeating requests which had already been rejected by the competent authority. The second defence against this attack of the petitioner is factually incorrect. It appears from Para 89 and certain other paragraphs of the enquiry officer's report that he did refer to and rely upon statements of those witnesses for holding the petitioner guilty of the charges levelled against him. For the respondent to have said that the enquiry officer did not rely on the statements of those witnesses, is, therefore, bused on some misapprehension. Dewan Chetan Dass, learned counsel for the State relied on the judgment of a Division Bench of Madhya Pradesh High Court in Shannanand v. Supdt. Gun-Carnage Factory, Jabalpur, AIR I960 Madh Pra 178, and argued that it was not necessary to supply copies of the statements in question to the petitioner. It appears to me that the law laid down by the Division Bench of the Madhya Pradesh High Court was really in favour of the petitioner. It was held by their Lordships that Section 145 of the Evidence Act, does not apply to the departmental enquiries in terms but the general principles of that section are recognised as a general mode of testing the statements of witnesses as the rule contained in the said section is based on principles of natural justice. Madhya Pradesh High Court further held that a delinquent in a departmental enquiry should be given a reasonable opportunity to defend which includes not only a right to cross-examine the witnesses for the department, but also to cross-examine them effectively and that it is not for the department to decide whether the statements would lead to an effective cross-examination of not. It was also held in that case that the previous statements of the witnesses are an effective aid in cross-examination and denial to supply them must be treated as denial of giving an adequate opportunity to defend against the charge. There is also force in the further contention of Mr Gujral that even if the witnesses had said nothing against the petitioner in then previous statements at the preliminary stage, it was the right of the petitioner to find out from those statements if the witnesses had deposed something in favour of the petitioner and to take advantage of the same by bringing those matters on record by the cross-examination of those witnesses. A Division Bench of the Orissa High Court held in James Bushi v. Collector of Ganjam, AIR 1959 Ori 152, that if a witness is examined against a delinquent officer, the latter should be given the copies of the previous statements of that witness, so as to enable him effectively to cross-examine that witness. The Orissa High Court went to the extent of holding that if there was a preliminary enquiry preceding the holding of a regular departmental enquiry, the delinquent officer should be given copies of statements made by witnesses during that preliminary enquiry, unless the preliminary enquiry was of a confidential nature. The preliminary departmental enquiry held against the petitioner could 'of be treated as confidential though the enquiry by the Special Police Establishment may be treated on a different footing. In the circumstances of this case, I hold that the non-supply of the copies of the statements of the said two witnesses given by them at a preliminary stage against the petitioner to enable the petitioner to effectively cross-examine them at the confronted enquiry, was violative of the principles of natural justice and stood in the way of the petitioner exercising his statutary right of adequately defending himself.

31. I also find great force in the second point urged by Mr. Gujral. Once again the facts are not in dispute. A copy of the full enquiry report was not given to the petitioner. The report consisted of 112 paragraphs out of which the last three did not deal with the petitioner. No copy at all of paragraphs 1 to 76 of the report was limiished to the petitioner-He specifically asked for the same in his letter, dated May 23, 1964 (Annexure 'D'). He gave details of those parts of the report which he badly needed in his letter dated July 8, 1961 (Annexure 'K'). Authorities still thought it fit to refuse to give him the major part of the report in their letter, dated July 9, 1964 (Annexure 'I') on the ground that he was present during the enquiry and could have taken notes of the proceedings. In the written statement, it has been stated that on recording the findings in Paragraphs 77 onwards of his report, the enquiry officer had nowhere referred to the record of which copies were not given. I have checked up and found that at least at 20 places, the enquiry officers, has referred to the previous portion of the report while giving his findings in Paragraphs 77 onwards. In Narayan Das v. Member, Board of Revenue, Sambalpur, AIR 1956 Ori 219, it was held that 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 the finding of his guilt. In Ratnesh Chandra v. State Government of Uttar Pradesh, AIR 1959 All 47, Sahai, J., held that where a copy of the report of the enquiry officer which would have indicated the grounds on which the Government servants removal was recommended; is not supplied to him, it cannot be held that he had reasonable opportunity of showing cause against the action proposed. In Anand Narain v. State of M. P., AIR 1964 Madh Pra 318, it was held that when the report of the enquiry officer had not been supplied to the petitioner, particularly when he had asked for it, he had no means of defending himself in an adequate manner. There is no doubt that in this case a substantial part of the report was supplied to the petitioner, but in the circumstances explained above, that was not enough particularly in view of the fact that the petitioner was asking for the complete report repeatedly and it would be impossible to appreciate the findings of the enquiry officer without referring to the statements of the witnesses to which reference has been made in that part of the report of which a copy was furnished to the petitioner. I am, therefore, of the opinion that even this lapse on the part of the Government constituted the violation of the safeguards provided by Rule 15 of the 1952 rules.

32. I do not, however, find any force in the contention of Mr. Gujral about adequate opportunity having been declined by the non-supply of a copy of the report of the Special Police Establishing it. There is no doubt that the petitioner asked for the same and his request was declined. But it has been urged that those enquiries were of a preliminary nature and were confidential enquiries by the Special Police Establishment. I find great force in the arguments of Dewan Chetan Dass based on that judgment of the Madhya Pradesh High Court in AIR 1960 Madh Pra 178, that the petitioner was not entitled to a copy of the report of the Special Police Establishment. Nor is it shown bow the petitioner has been prejudiced by the non-supply of a copy of that report.

33. On account of my findings to the effect that the petitioner has not been afforded adequate opportunity to defend himself as required by Rule 15 of the 1952 rules, inasmuch as copies of the statements of the two witnesses recorded at the preliminary stage and full copy of the report of the enquiry officer were not furnished to him despite his repeated requests for the same, I allow this writ petition and set aside the impugned proceedings and orders against the petitioner, but leave the parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //