1. The short question of law which arises in this appeal is whether theappellant, the State of Bombay (now Maharashtra), shows that its predecessorState of Madhya Pradesh (hereinafter called the Government) had given areasonable opportunity to the respondent, Narul Latif Khan, to defend himselfbefore it passed the final order on June 6, 1952 compulsorily retiring himunder Article 353 of the Civil Service Regulations. By this order, therespondent was compulsorily retired and in relaxation of Art. 353, TheGovernment was pleased to allow the respondent to draw a compassionateallowance equal to the pension which would have been admissible to him had hebeen invalidated.
2. This order was challenged by the respondent by filing a suit in the Courtof the first Additional District Judge at Nagpur. In his plaint, the respondentalleged that the impugned order whereby he was compulsorily retired, wasinvalid and he claimed a declaration that it was ultra vires and inoperative.He also asked for a declaration that he was entitled to be restored to the postwhich he held on July 6, 1950, and that he should be given all pay, allowances,increments and promotions to which he would have been entitled if he had beenpermitted to continue in service. In the result, the respondent asked for adecree for Rs. 62,237 with interest at 6 per cent per annum from the date ofthe suit till realisation.
3. This claim was resisted by the appellant on several grounds. Theprincipal ground on which the appellant challenged the respondent's claim,however, was that he had been given a reasonable opportunity to defend himself,and so, the impugned order was perfectly valid, and legal. Several other pleaswere also raised by the appellant. On these pleas, the learned trial Judgeframed appropriate issues. The issue with which we are concerned in the presentappeal, however, centered round the question as to whether the Constitutionalprovision prescribed by Art. 311 affording protection to the respondent hadbeen contravened. The trail Judge made a finding against the respondent on thisissue. He also recorded his findings on the other issues with which we are notdirectly concerned in the present appeal. In regard to the money claim made bythe respondent, the learned trial Judge made a finding that in case he was heldentitled to such relief, a decree for Rs. 37,237 may have to be passed in hisfavour. In view of his conclusion that the impugned order was valid, noquestion arose for making such a decree in favour of the respondent. Therespondent's suit, therefore, failed and was dismissed.
4. The respondent then took the matter in appeal before the High Court ofJudicature at Bombay, Nagpur Bench. The High Court has, in substance, held thatthe constitutional provisions prescribed by Art. 311 have not been compliedwith by the appellant before it passed the impugned order against therespondent. It has found that the departmental enquiry which was held sufferedfrom the serious infirmity that the enquiry officer did not hold an oralenquiry and did not allow an opportunity to the respondent to lead his oralevidence. It has also held that the second notice served by the appellant onthe respondent calling upon him to show cause why the report made by theenquiry officer should not be accepted and appropriate punishment should not beinflicted on him, was defective, and that also made the impugned order invalid.The High Court appears to have taken the view that the impugned order does notshow that the appellant had taken into account the explanation offered by therespondent in response to the second notice issued by the appellant. As aresult of these findings, the High Court has reversed the conclusion of thetrial Court on the main question and has found that the impugned order isinvalid and inoperative. On that view, the High Court considered the moneyclaim made by the respondent, and it confirmed the finding of the trial Courtthat the respondent would be entitled to a decree for Rs. 37,237. In fact, thealternative finding recorded by the trial Court in respect of the amount towhich the respondent would be entitled in case he succeeded in challenging thevalidity of the impugned order, was not questioned before the High Court. Inthe result, the High Court allowed the appeal and passed a money decree for Rs.37,237 in favour of the respondent in terms of prayer (A) of paragraph 31 ofthe plaint. The appellant then applied for and obtained a certificate from theHigh Court and it is with the said certificate that it has brought the presentappeal before this Court. That is how the main question which falls for ourdecision is whether the constitutional provision prescribed by Art. 311 hasbeen complied with by the appellant before it passed the impugned order.
5. At this stage, it may be relevant to refer to some material facts. Therespondent was appointed as Extra Assistant Commissioner in 1926 and since thenhe had been holding various offices in the State service of the then MadhyaPradesh Government. In 1950, he was holding the post of a Treasury Officer atNagpur. It appears that privilege leave for over a year was due to him and hehad applied for four months' privilege leave. On June 12, 1950, Governmentinformed him that his request for leave was rejected and he was told that nofurther application for leave would be entertained in future. On July 7, 1950,the respondent proceeded on casual leave for two days, and on July 8, 1950 herenewed his application for four months' leave on medical grounds. Thisapplication was accompanied by a certificate given by Dr. Dange. Government,therefore, decided to constitute a Medical Board for examining the respondentin order to decide whether leave on medical grounds should be granted to him.Accordingly, the respondent appeared before a Special Medical Board on July 22,1950. The Medical Board, however, could not come to a decision as to whetherthe respondent should be granted leave on medical grounds for four months. Itrecommended that the respondent should get himself admitted in the MayoHospital, Nagpur, for observation and investigation. In accordance with thisreport, Government asked the respondent to get himself admitted in the MayoHospital in time, so that the Board could examine him on August 8, 1950. Therespondent refused to go to the Mayo Hospital and pressed that he should beallowed to go to Calcutta to receive medical treatment from experts. It appearsthat on July 26, 1950, the respondent received a telegram from Raipur statingthat his daughter was dangerously ill there. He, therefore, made anotherapplication on the same day requesting for ten days' leave to enable him to goto Raipur and see his ailing daughter. On July 31, 1950, Government granted therespondent's request. Accordingly, the respondent went to Raipur. From Raipurhe renewed his application for four months' leave on Medical grounds andproduced certificates from Dr. Bhalerao and Dr. Kashyap. That led to a lengthycorrespondence between the respondent and the Government which shows thatGovernment insisted on his appearing before the Medical Board and therespondent was not prepared to go to Nagpur because he alleged that he wasseriously ill and could not undertake a journey to Nagpur. Ultimately, onSeptember 9, 1950, Government called upon the respondent to resume his dutieswithin three days from the receipt of the said letter failing which he was toldthat he would be suspended and a departmental enquiry would be started againsthim. On October 4, 1950, the respondent wrote a lengthy reply setting forthhis contentions in detail. Since he did not resume his duties, Governmentdecided to suspend him and start a departmental enquiry against him. Mr. S. N.Mehta, I.C.S., was accordingly appointed to hold the enquiry. On November 29,1950, Mr. Mehta wrote to the respondent that Government had directed him toconduct the departmental enquiry, and called upon the respondent to attend hisoffice on December 7, 1950, at 11.00 a.m. The respondent, however, did notappear before him and wrote to Mr. Mehta that owing to his illness, he wasunable to appear before him. He again pleaded that he was seriously ill.
6. On January 15, 1951, Mr. Mehta served the respondent with a charge-sheet.Three charges were framed against him. The first charge was that he haddeliberately disobeyed the orders of Government when he was asked to gethimself admitted in the Mayo Hospital for observation and investigation. Thesecond charge was that he had failed to report for duty even though no leavewas sanctioned to him by Government and he was specifically ordered byGovernment to report for duty. The third charge was that he had persistentlydisobeyed the orders of Government and he had thereby shown himself unfit tocontinue as a member of the State Civil Service. Material allegations on whichreliance was placed against the respondent in support of these charges werealso specified under the respective charges.
7. The respondent was, however, not prepared to appear before Mr. Mehta andhe raised several technical contentions. Ultimately, he sent his writtenstatement and denied all the charges. His case appears to have been that he hadnot deliberately disobeyed any of the orders issued by Government. In regard tohis getting admitted in the Mayo Hospital, he seems to have taken the plea thatwhen he was allowed to go on casual leave to see his ailing daughter at Raipur,it was clear that he could not have got himself admitted in the Mayo Hospitalso as to enable the Medical Board to examine him on August 8, 1950. In respectof the charge that he had persistently refused to obey the orders ofGovernment, his case was that he was dangerously ill and that he genuinelyapprehended that if he undertook a journey to resume him duty, he might evencollapse. He requested the enquiry officer to allow him to appear by a lawyerwhom he would instruct to cross-examine the witnesses whom the Government wouldexamine against him. He also stated that he wanted to give evidence of his owndoctors who would depose to his ailing condition at the relevant time.
8. It appears that Mr. Mehta wanted to accommodate the respondent as much ashe could and when he found that the respondent was not appearing in personbefore him, he in fact fixed a date for hearing at Raipur on September 21, 1951where he happened to be camping. On that date, the respondent appeared beforeMr. Mehta and Mr. Mehta made a note as to what transpired on that date. Thenote shows that 'the whole case was discussed with the respondent. Hisplea was that he should be allowed to appear through a counsel, but it wasexplained to him in detail that as far as the case can be seen from Governmentside at present, it does not involve the taking up oral evidence. He agreedthat he would not press for this facility. He would, however, like to give adetailed answer to the charge-sheet. He also undertook to appear in personregularly in future'. Thereafter, Mr. Mehta required the respondent tofile his detailed written statement, and in fact, the respondent did file hisdetailed written statement containing the pleas to which we have alreadyreferred. On November 8, 1951, Mr. Mehta wrote to the respondent that he wouldbe glad to hear him in person in case he wished to make an oral statement onNovember 20, 1951, and when the respondent did not appear on the said date, Mr.Mehta proceeded to examine the documentary evidence showing the failure of therespondent to comply with the orders issued by Government and made his reporton November 24, 1951. He found that the three charges framed against therespondent were proved. In his report, Mr. Mehta observed that 'theconduct of the respondent and the language used by him from time to time in hiscommunications discloses an attitude of disobedience and insubordination whichno Government can tolerate from its subordinate officers'. We mayincidentally observe that the comment thus made by Mr. Mehta in regard to thecommunications addressed by the respondent to him appears to us to be fullyjustified but, in our opinion, this aspect of the matter cannot have anymaterial bearing on the question with which we are concerned. The validity ofthe impugned order must be judged objectively without considering theimpropriety of the language used by the respondent or the reluctance shown byhim to appear before Mr. Mehta.
9. In his report, Mr. Mehta has also observed that when the respondent methim, he explained to him that the case did not involve recording of any oralevidence as it was based on documents only. Mr. Mehta adds that according tothe impression he got at that time, the respondent was satisfied that in thecircumstances, the assistance of a counsel was unnecessary. It is, however,plain from the several letters written by the respondent to Mr. Mehta that hewas insisting upon an oral enquiry and that he wanted to examine his doctors toshow that he was so ill at the relevant time that he could not have resumed hisduties. On March 2, 1951, the respondent wrote to Mr. Mehta stating, interalia, that he wished to put in the witness-box a few high-ranking Governmentofficers and the doctors whom he had consulted about his illness. Earlier onJanuary 20, 1951, he had written to Mr. Mehta requesting him to conduct an oralenquiry as laid down in paragraph 8(iv) G.B. Circular 13. Similarly, on April23, 1951, he again informed Mr. Mehta that in his opinion the institution ofthe departmental enquiry after suspending him was illegal and had caused himgrave injury, and he added that oral and documentary evidence will be producedin defence.
10. It does appear that Mr. Mehta explained to the respondent that so far asGovernment was concerned, it rested its case merely on documents and did notthink it necessary to examine any witnesses, and thereupon the respondentagreed that he need not have the facility of the assistance of a lawyer. But itis clear from the remarks made by Mr. Mehta in the order sheet on September 21,1951, and the observations made by him in his report that the only point onwhich the respondent agreed with Mr. Mehta was that he need not be allowed theassistance of the lawyer in the departmental enquiry. We have carefullyexamined the record in this case and we see no justification for assuming thatthe respondent at any time gave up his demand for an oral enquiry in the sensethat he should be given permission to cite his doctors in support of his pleathat his failure to resume his duties was due to his ill-health. The chargeagainst him was that he had deliberately disobeyed the Government orders, andit is conceivable that this charge could have been met by the respondent byshowing that though he disobeyed the orders, the disobedience was in no sensedeliberate because his doctors had advised him to lie in bed; and thusconsidered, his desire to lead medical evidence cannot be treated as a meresubterfuge to prolong the enquiry. It is true that the respondent did not givea list of his witnesses; but he had named his doctors in his communications toMr. Mehta, and in fact Mr. Mehta never fixed any date for taking the evidenceof the witnesses whom the respondent wanted to examine. If Mr. Mehta had toldthe respondent that he would take the evidence of his witnesses on a specifieddate and the respondent had failed to appear on the said date with hiswitnesses, it would have been an entirely different matter. Therefore, theposition is that Mr. Mehta did not hold an oral enquiry and did not give anopportunity to the respondent to examine his witnesses and so, the questionwhich arises for our decision is : does the failure of Mr. Mehta to hold anoral enquiry amount to a failure to give a reasonable opportunity to therespondent within the meaning of Art. 311
11. The requirements of Art. 311(2) have been considered by this Court onseveral occasions. At the relevant time, Art. 311(2) provided that no person towhom Art. 311 applies shall be dismissed or removed or reduced in rank until hehas been given a reasonable opportunity of showing cause against the actionproposed to be taken in regard to him. It is common ground that the impugnedorder of compulsory retirement attracts the provisions of Art. 311(2). If itappears that the relevant statutory rule regulating the departmental enquirywhich was held against the respondent made it obligatory on the enquiry officerto hold an oral enquiry if the respondent so demanded, then there would be nodoubt that the failure of the enquiry officer to hold such an oral enquirywould introduce a serious infirmity in the enquiry and would plainly amount tothe failure of the appellant to give a reasonable opportunity to therespondent. This position is not disputed by the learned Attorney-General andis indeed well-settled. So, the narrow question to which we must address ourselvesis whether it was obligatory on Mr. Mehta to hold an oral enquiry and give areasonable opportunity to the respondent to lead oral evidence and examine hisdoctors. We will assume for the purpose of this appeal that in a given case,Government would be justified in placing its case against the charge-sheetedofficer only on documents and may be under no obligation to examine anywitnesses, though we may incidentally observe that even in such cases, if theofficer desires that the persons whose reports or orders are being relied uponagainst him should be offered for cross-examination, it may have to beconsidered whether such an opportunity ought not to be given to the officer;but that aspect of the matter we will not consider in the present appeal.Therefore, even if it is assumed that Government could dispense with theexamination of witnesses in support of the charges framed against therespondent, does the relevant rule make it obligatory on the Enquiry Officer tohold an oral enquiry and give the respondent a chance to examine his witnessesor not
12. This question falls to be considered on the construction of rule 55 ofthe Civil Services (Classification, Control and Appeal) Rules. This rule readsthus :-
'Without prejudice to the provisions of the PublicServants Inquiries Act, 1850, no order of dismissal, removal or reduction shallbe passed on a member of a service (other than an order based on facts whichhave led to the conviction in a Criminal Court or by a Court, Martial) unlesshe has been informed in writing of the grounds on which it is proposed to takeaction, and has been afforded an adequate opportunity of defending himself. Thegrounds on which it is proposed to take action shall be reduced to the form ofa definite charge or charges, which shall be communicated to the person chargedtogether with a statement of the allegations on which each charge is based andof any other circumstances which it is proposed to take into consideration inpassing orders on the case. He shall be required within a reasonable time, toput in a written statement of his defence and to state whether he desires to beheard in person. If he so desires or if the authority concerned so direct, anoral enquiry shall be held. At that enquiry oral evidence shall be heard as tosuch of the allegations as are not admitted, and the person charged shall beentitled to cross-examine the witnesses, to give evidence in person and to havesuch witnesses called, as he may wish, provided that the officer conducting theenquiry may, for special and sufficient reason to be recorded in writing,refuse to call a witness. The proceedings shall contain a sufficient record ofthe evidence and a statement of the findings and the grounds thereof.'
13. It appears that the Government of Madhya Pradesh had issued a Circularexplaining this Rule. The Circular contained Rule 8 which is relevant. Itprovides that 'particular attention is invited to the provisions regardingoral enquiry. In case the person charged desires that an oral enquiry should beheld, the authority holding the departmental enquiry has no option to refuseit'. The High Court seems to have based its conclusion substantially, ifnot entirely, on this rule. We do not propose to adopt that course. The rulemay be no more than a circular issued by Government and we do not propose toexamine the question as to whether it has the force of a statutory rule. Ourdecision would, therefore, be based on the construction of Rule 55 of the CivilServices Rules which admittedly applied and which admittedly is a statutoryrule.
14. The relevant clause in this Rule provides that the officercharge-sheeted shall be required within a reasonable time to put in a writtenstatement of his defence and to state whether he desires to be heard in person.This clause has been complied with in the present proceedings. Mr. Mehta gavenotice to the respondent to appear before him in person on the 20th November,1951 and the respondent did not appear on that date. It is the next clause onwhich the decision of the present appeal depends. This clause lays down that ifhe, that is to say the charge-sheeted officer, so desires or if the authorityconcerned so directs, an oral enquiry shall be held. In our opinion, it isplain that the requirement that an oral enquiry shall be held if the authorityconcerned so directs, or if the charge-sheeted officer so desires is mandatory.Indeed, this requirement is plainly based upon considerations of naturaljustice and fairplay. If the charge-sheeted officer wants to lead his ownevidence in support of his plea, it is obviously essential that he should begiven an opportunity to lead such evidence. Therefore, we feel no hesitation inholding that once the respondent expressed his desire to Mr. Mehta that hewanted to lead evidence in support of his plea that his alleged disobedience ofthe Government orders was not deliberate, it was obligatory on Mr. Mehta tohave fixed a date for recording such oral evidence and give due intimation tothe respondent in that behalf.
15. It is true that the oral enquiry which the enquiry officer is bound tohold can well be regulated by him in his discretion. If the charge-sheetedofficer starts cross-examining the departmental witnesses in an irrelevantmanner, such cross-examination can be checked and controlled. If the officerdesires to examine witnesses whose evidence may appear to the enquiry officerto be thoroughly irrelevant, the enquiry officer may refuse to examine suchwitnesses; but in doing so, he will have to record his special and sufficientreasons. In other words, the right given to the charge-sheeted officer tocross-examine the departmental witnesses or examine his own witnesses can belegitimately examined and controlled by the enquiry officer; he would be justifiedin conducting the enquiry in such a way that its proceedings are not allowed tobe unduly or deliberately prolonged. But, in our opinion, it would beimpossible to accept the argument that if the charge-sheeted officer wants tolead oral evidence, the enquiry officer can say that having regard to thecharges framed against the officer, he would not hold any oral enquiry. In thepresent case, the witnesses whom the respondent wanted to examine wouldundoubtedly have given relevant evidence. If the doctors who treated therespondent had come and told the enquiry officer that the condition of therespondent was so bad that he could not resume work, that undoubtedly wouldhave been a relevant and material fact to consider in deciding whether thecharges framed against the respondent were proved. Even if we disapprove of theattitude adopted by the respondent in the course of this enquiry and condemnhim for using extravagant words and making unreasonable contentions in hiscommunications to the enquiry officer, the fact still remains that he wanted toexamine his doctors, and though he intimated to Mr. Mehta that he desired toexamine his doctors, Mr. Mehta failed to give him an opportunity to do so.That, in our opinion, introduces a fatal infirmity in the whole enquiry whichmeans that the respondent has not been given a reasonable opportunity to defendhimself within the meaning of Art. 311(2). On that view of the matter, it isunnecessary to consider whether the High Court was right in its otherconclusions that the second notice served by the appellant on the respondentwas defective and that the final order was also defective inasmuch as it didnot appear that the appellant had taken into account the representation made byrespondent.
16. It is not disputed by the learned Attorney-General that if we hold thatthe enquiry conducted by Mr. Mehta contravened the mandatory provision of r.55, the decision of the High Court could be sustained on that ground alone.
17. In the result, the appeal fails and is dismissed with costs.
18. Appeal dismissed.