(1) This appeal is directed against a decree passed by the lower appellate Court in favour of the plaintiff in reversal of the decree of the trial Court by which the suit had been dismissed.
(2) The facts lie within a narrow compass. Onkar Nath was a Foot Constable and was attached to Police Station, Gurdaspur. On the night between 1-8-1953 and 2-8-1953 he was on duty in the C. I. A.., Police Post at Sujanpur. One Ghunnu (Ghinnu) who was a suspect and was in police custody escaped that night. Onkar Nath was served with a charge-sheet for having been delinquent and neglectful in the discharge of his duties as a result of which the suspect had escaped from police custody. A departmental enquiry was held against him by Shri Surinder Pal Singh, the then District Inspector, who made a report on 23-11-1953. According to the report Onkar Nath was guilty of the charge which had been framed against him. The Superintendent of Police, who was the punishing authority, ordered his dismissal on 2-12-1953. Onkar Nath filed an appeal to the Deputy Inspector-General of Police, which was dismissed on 16-11-1954. A revision preferred to the Inspector-General of Police also failed on 27-7-1955.
On 4-1-1956 Onkar Nath instituted a suit out of which the present appeal has arisen for a declaration that the order of dismissal of the plaintiff passed by the Superintendent of Police and the subsequent orders of the superior authorities maintaining the order of dismissal were unconstitutional, illegal, ultra vires, arbitrary, void and ineffectual, and that he still continued to be a member of the police force. The State denied the allegations of the plaintiff and asserted that the entire enquiry proceedings as well as the order of dismissal were in accordance with as the order of dismissal were in accordance with the rules and the law, and the dismissal was fully justified and was legal.
(2a) On the pleadings of the parties the trial Court framed the following issues:
1. Is the order of dismissal of the plaintiff unconstitutional, ultra vires, void, illegal, bad in law, arbitrary, ineffectual and inoperative for the reasons given in para No. 5 of the plaint?
The trial Court dismissed the suit after recording a finding against the plaintiff on the aforesaid issues, but on appeal the learned Senior Sub-Judge came to the conclusion that the requirements of Art. 311(2) of the Constitution and of the Police Rule 16.24(ix) had not satisfied and the order of dismissal had been made in contravention of the mandatory provisions of the aforesaid Article and the Police Rule. The State has come up in appeal to this Court.
(3) The principal ground on which the learned Senior Sub-Judge considered that the order of dismissal was illegal is that no reasonable opportunity was afforded to the plaintiff for showing cause against the action proposed to be taken. It would be necessary to state a few more facts in order to appreciate the contentions which have been canvassed on behalf of both sides in the present case. As stated before, the enquiry officer submitted his report on 23-11-1953. The Superintendent of Police, who was the authority competent to punish the respondent, recorded the following order on 30-11-1953 (Exhibit D. 4):
'F. C. Onkar Nath No. 704 is present today. I have asked him if he has anything to say about the departmental file, which has been prepared by the District Inspector. I have also explained to him that in this case he is likely to be dismissed, and, therefore, he can produce any further evidence of (or) supplementary statement in his defence. F. C. Onkar Nath says that he has nothing further to say. I have, however, given him another two days to think over it.'
On the 2nd December, 1953 the Superintendent of Police made another order in the following terms (Exhibit D. 5):
'F. C. Onkar Nath is present today. He has nothing to say except that he is innocent and should not therefore, be punished.'
On the same date the Superintendent of police recorded another detailed order (Exhibit P. 10) in which he commented adversely at more than one place on the approach of the enquiry officer to the maternal certain other defects existing in the report and concluded by saying as follows:
'In view of the above, I hold that Onkar Nath is guilty of the charge framed against him. It was entirely due to the charge framed against him. It was entirely due to his negligence that Ghinnu accused escaped from his custody. F. C. Onkar Nath is, therefore, dismissed from service from today, 2-12-1953, forenoon.'
(4) The learned Senior Sub-Judge was of the view that the protection afforded by Police Rule 16.24(ix) was almost the same as had been given under Art. 311(2) of the Constitution. In para 10 of his judgment it is stated that the order dated 30-11-1953 does not give any indication that the plaintiff was apprised of the charge which was considered by the Superintendent of Police as having been proved against him, or that the entire matter had been considered by the Superintendent and that he had come to the conclusion that the charge had been proved against the plaintiff and he proposed to dismiss him on that charge. It was held by the learned Judge that the provisions of the aforesaid rule had not been complied with. Then he proceeded to consider the question whether reasonable opportunity had been afforded in accordance with the requirements contained in Art. 311(2) of the Constitution. The following part of his judgment on this point deserves to be reproduced:
'Coming to the present case, we find that the order of the punishing authority, copy Exhibit D. 4, does not indicate that the punishing authority had fully considered the proceedings, of the enquiry and the report of the enquiry officer and had come to the definite conclusion that the charge levelled against the plaintiff had been proved in his opinion and that he had provisionally come to the conclusion also that the punishment for the charge was to be dismissal. It also does not indicate that the plaintiff was told the grounds on which the charge was considered by him to be proved. If the punishing authority who was different from the enquiry officer, endorsed the report of the enquiry officer and agreed with the grounds on which those findings were arrived at, the plaintiff should have been intimated those grounds as contained in the enquiry officer's report. If there were any other grounds for the punishing authority for holding that the charge was proved, he should have intimated to the plaintiff those grounds as well. In any case, what is required under the provisions of the Constitution as well as the Police Rules mentioned above was that the plaintiff should have been apprised of the grounds on the basis of which it was considered tat the charge was proved and further that the punishment for such charge was to be dismissal.'
(5) It has been contended by the learned Assistant Advocate-General on behalf of the State that a proper and reasonable opportunity had been afforded to the respondent by the punishing authority for showing cause against the punishment which was proposed to be awarded to him after the enquiry officer had made a report finding him guilty of the charge that had been preferred against him. According to the Assistant Advocate-General there had been sufficient compliance with the rule relating to the affording of reasonable opportunity when the Superintendent of Police informed the respondent on 30-11-1953 that he was likely to be dismissed and he could produce any further evidence in defence if he so desired. It is urged that it was not necessary to provide the respondent with a copy of the report of the enquiry officer or inform him of the findings that had been given against him.
It is further submitted that even if it was necessary to inform him bout the findings there was sufficient compliance when the respondent was asked if he had anything to say 'about the departmental file' which had been prepared by the District Inspector of Police. According to the learned Assistant Advocate-General, there was only one charge of a definite nature against the respondent and on that charge the report was clearly against him and he should be presumed to have knowledge of the findings given by the enquiry officer. On the other hand it is contended by Mr. Abnasha Singh on behalf of the respondent that the manner in which the punishing authority conducted the proceedings cannot be regarded to be satisfactory at all and it had been rightly held that the punishing authority did not afford a proper opportunity for showing cause against the proposed punishment.
It is further contended that Exhibit D. 4 shows that on 30-11-1953 the Superintendent of Police who was the punishing authority had not applied his mind to the findings of the enquiry officer nor had he reached a definite conclusion himself as to the charge and that he had also not provisionally determined the actual punishment which he proposed to inflict on the respondent. I was only on 2-12-1953 that the Superintendent of Police came to the conclusion, vide Exhibit P. 10, that the charge had been proved against the respondent and that he should be dismissed. Another point on which a great deal of emphasis has been laid is that the punishing authority was bound to supply the respondent with a copy of the report of the enquiry officer to enable him to show cause against such punishment as was proposed to be inflicted on him. The copy had admittedly not been supplied.
(6) In Khem Chand v. Union of India, AIR 1958 SC 300, S. R. Das C. J., has summarised the meaning and scope of 'reasonable opportunity' envisaged by Art. 311(2) of the Constitution in the following words:
'To summarise: the reasonable opportunity envisaged by the provision under consideration 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 after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.'
There can be no doubt that in the present case the opportunity mentioned in (a) and (b) was dully afforded, but the main grievance of the respondent was that he was not afforded an opportunity to make a proper representation as to why the proposed punishment should not be inflicted on him for the reason that the competent authority never applied his mind to the report of the enquiry officer and did not inform him properly of the punishment which the authority tentatively proposed to inflict on him.
The learned senior Sub-Judge seems to be right in coming to the conclusion that Exhibit D. 4 (order dated 30-11-1953) did not indicate that the punishing authority had fully considered the report of the enquiry officer and had come to a definite conclusion that the charge levelled against the plaintiff had been proved and that the respondent had not been informed of the charge which had been considered to have been proved against him. In State v. Gajanan Mahadev, AIR 1954 Bom 351, Chagla C. J. made the following observations at p. 355:
'It is also important to bear in mind, as pointed out by the Privy Council, that the findings given by the officer holding the departmental inquiry are at that stage merely tentative. It is only when the authority who has a right to dismiss the servant comes to a definite conclusion on the charges which have been preferred against the servant and the actual punishment to follow is provisionally determined that the stage arises when a reasonable opportunity should be given to the servant to show cause against the action proposed to be taken. It is only at that stage, as again the Privy Council points out, that the action is proposed within the meaning of S. 240(3) of the Government of India Act.'
The same view was expressed by Chagla C. J. and Dixit J., in Dattatray Mahadev Kulkarni v. Union of India, AIR 1955 N. U. C. (Bom) 3843. In that case the learned Judges have further observed that it is not sufficient that the Government servant should have been merely informed as to the finding of the inquiry committee set up to enquire the charges framed against him.
He has a right to know the reasons and the grounds which led the committee to hold that the charges were proved. I have carefully examined Exhibits D. 4 and D. 5 and I am not at all satisfied that the respondent was informed of the grounds upon which the competent authority came to the conclusion that the punishment of dismissal should be imposed upon him. I am equally satisfied that on 30-11-1953 when the respondent was asked to show cause against the punishment likely to be inflicted on him the Superintendent of Police had not come to a definite conclusion with regard to the charge which had been levelled against the respondent and he came to a definite conclusion only on 2-12-1953, that the charge had been found proved against the respondent.
(7) The next question is how far it was incumbent on the Superintendent of Police to supply a copy of the report of the enquiry officer to the respondent before the could be called upon to show cause against the punishment proposed to be inflicted on him. In Civil Writ No. 309 of 1954 decided by Bishan Narain J., on 11-1-1956 this point came up for consideration. In that case a copy of the report of the enquiry officer had not been supplied nor was a copy of the decision of the Assistant Superintendent of Police given to the officer whose dismissal had been ordered by the latter. The learned Judge observed that the Assistant Superintendent of Police could propose action only after going into the facts of the case and not before and the petitioner in that case was not bound to show cause till that stage was reached. The Assistant Superintendent of Police who was the competent authority had arrived at the conclusion that the petitioner was guilty of misconduct in that case on 14-3-1954 and on 15th he was produced before the aforesaid officer. The following observations of Bishan Narain J., may be set out with advantage:
'The Assistant Superintendent of Police could propose action only after going into the facts of the case and not before, and the petitioner was not bound to show cause till that stage was reached. This stage was, in my opinion reached on 15-3-1954. It must be remembered that in the present case the officer holding the enquiry was different from the officer competent to take action, and this fact to my mind materially affects the case. On 15-3-1954, the petitioner did not know the grounds on which he had been held to be guilty of misconduct, nor did he know if the enquiry officer or the Assistant Superintendent of Police had ignored or had not sufficiently appreciated any extenuating circumstances in the case.'
In Bimal Charan v. State of Orissa, (S) AIR 1957 Orissa 184, Mohapatra and Das JJ., have laid down that the public servant against whom proceeding are pending is entitled to know the conclusions arrived at by the punishing authority for proposing such a punishment in order that he may be able to be in a position to defend his case. a mere service of notice of the proposed punishment cannot be deemed to be giving a reasonable opportunity to the public servant for showing cause against the action proposed to be taken in regard to him. The service of the copy of the findings of the punishing authority on the public servant is mandatory and the service of the report of the enquiry officer who is not the punishing authority, when there is no indication at all in the notice that the authority competent to punish agrees with those findings cannot constitute substantial compliance with the requirements of Art. 311(2) of the Constitution.
This case is very much in point and, if the ration of its decision is to be followed, it must be held in the instant case that no reasonable opportunity was afforded to the respondent. The enquiry officer was admittedly different from the punishing authority. Neither a copy of the report of the enquiry officer was furnished to the respondent nor is there any indication in Exhibit D. 4 or Exhibit D. 5 that the punishing authority agreed with the findings of the enquiry officer, nor was any information given to the respondent by the punishing authority what its own conclusions were. The learned Assistant Advocate-General has invited my attention to a decision of Chakravarti C. J. and Lahiri J. in Atindra N. Mukherjee v. G. F. Gillot, 59 Cal WN 835: (AIR 1955 Cal 543), where certain observations were made to the effect hat if the Government servant finds any difficulty in framing his defence against the proposed punishment by reason of not having a copy of the depositions he could well have asked for the copy and if his request was refused he might conceivably have some cause of complaint.
It is, therefore, contended on behalf of the State that if the respondent wanted to have a copy of the report of the enquiry officer or to know the conclusions arrived at by the punishing authority, he could have asked for the same. In the Calcutta case there was no report and it was observed at page 848 (of Cal WN): (at p. 549 of AIR) that there being no report at all, there could be no point in the Government servant contending that he had been prejudiced by not being furnished with a copy of the report. Even otherwise as observed in AIR 1954 Bom 351, it is for the State to satisfy the Court that in fact reasonable opportunity was given to the Government servant-once he comes to the Court and lays a complaint that his dismissal was wrongful and that a reasonable opportunity was not given to him as required by the statute.
The requirement of reasonable opportunity does not depend upon the Government servant asking for it. It is a statutory protection that is afforded to the servant and a statutory obligation cast upon the State and it is for the State to discharge that obligation irrespective of whether the protection is claimed by the servant or not. If the Court holds that reasonable opportunity was not given the order of dismissal must be sec aside and the Court cannot be influenced by the consideration that the dismissed servant did not ask for a reasonable opportunity. In a very recent decision of the Allahabad High Court in Ramesh Chandra v. State of U. P., AIR 1959 All 47, it has been held that where a copy of the report of the enquiry officer which would have indicated the grounds on which the Government servant's removal was recommended is not supplied to him, it cannot be held that he had reasonable opportunity of showing cause against the action proposed.
Bhandari C. J. and Gosain J., in a recent decision in Joti Parshad v. Supdt, of Police, 1957-59 Pun LR 532: (AIR 1958 Punj 327), have laid down that it is the duty of the Courts to see that the safeguards for public servants provided by the Constitution are not allowed to be rendered nugatory and the executive officers are not allowed to resort to unconstitutional acts and thus unjustly victimise the officials placed in a position subordinate to them. As soon as the Court comes to the conclusion that the order of dismissal has been made without affording adequate opportunity to the delinquent to defend himself, it becomes the imperative duty of the Courts to quash the said order.
(8) For all the reasons mentioned above, I am satisfied that there is no error in the decision of the learned Senior Sub-Judge, which must be affirmed. This appeal consequently fails and is dismissed with costs.
(9) Appeal dismissed.