Jagjit Singh, J.
(1) On May 1, 1969 Shri B. L. Bhola, Supervisor, Military Farm. Deviali, was dismissed from service. Through a petition, filed on June 7, 1969, he challenged the order of his dismissal from service.
(2) The petitioner had joined service as Munshi in a Military Farm, under the Ministry of defense, on February 1, 1938. He was promoted as Supervisor, Military Farm, Secunderabad, on January 1, 1958. From Secunderabad he was transferred to Pachmari and was relieved on April 25, 1961 for joining his duty at the new place of his posting. At Secunderabad he remained in-charge of the cattleyard from December 26, 1957 to July 24, 1959 and again from January 20, 1961 to April 25, 1961.
(3) A report was made by the petitioner on April 21. 1961. while he was still posted at Secunderabad. According to that report on the previous night at about 8-45 p.m. he had seen a boy standing near Gawala Matialoo son of Bhimiah. On being asked by him the boy told him that he was younger brother of Matialoo and had brought food for his brother. When he asked the boy to leave the shed after handing over the food to his brother, Matialoo behaved in a very insulting manner towards him and said that the boy had come to hand over his food and not for purposes of stealing milk. The milched milk was, however, not removed by Matialoo to the milk room but was left in the milking pail. For sometime thereafter he remained busy in checking milk yields of animals and testing of milk. During the course of checking he went to buffalo shed number two. What happened there was described in the report as under :-
'DURING the course of checking I also went in Buff shed No. 2 and found gowala SATTAYA/BHIMIAH, brother of the above said gowala Mutyaloo/Bhimiah, holding a hand bag with something in the bag. I suspected he might have stolen the milk and as such I removed that bag from his hand. He was in very angry mood and told me using insulting and teasing words that you are insulting us and we will see to it. I asked him for what purpose he has brought this bag in the shed. He began to speak so many stories to me. In the meantime A/Supr Shamlal also came there and struggle was ended. Now I have been informed in the presence of your Kindness by the Pool Officer that the same gowala Sattaya/Bhimiah has been caught by the police last night with milk and has been locked there. As the same gowala SATTAYA/Bhimiah has not yet reported for duty I have to report his absence for duty for necessary action please.
(4) I have also been informed by the police station Bowenpalli on telephone that he has been caught with the milk last night and have been detained there.'
(5) Dr. V. V. S. Tyagi was in those days working as Pool Officer in the Military Farm, Secunderabad. On April 24. 1961 Dr. Tyagi sent a report to the Farm Officer. According to that report some of the labourers had made allegations against the petitioner that he had given them appointments after taking money and that for borrowing money they had either to pawn jewellery or pay interest at rates as high as 75 per cent per annum, it was also stated in that report that the labourers had alleged that in some cases they were discharged from service because they could not make payment 'of the final Installments and that the money already paid by them had not been refunded'. The Pool Officer, however, did not mention the names of the labourers who had made allegations against the petitioner. The reason given by him for not naming the labourers were as follows :--
'If the above allegations are correct it is a very serious matter because in addition to corruption and bribery it would also mean extortion and taking advantage of the illiteracy and lack of foresight of the labour. If such things have really happened then I too feel ashamed of my presence on this Farm. Under these circumstances the names of the labourers have not been revealed for obvious reasons.'
(6) A suggestion was made by the Pool Officer that an enquiry should be made into the various allegations 'as well as in the general principles and practices of employment in the cattle-yard'. The Officer-in-charge, Military Farm, Secunderabad, on April 25, 1961 passed on the complaint, made by Dr. Tyagi, to the petitioner for his comments. Before offering his comments or submitting his Explanationn the petitioner asked for certain information. Amongst other things he wanted to know whether from the date of his posting to the Military Farm, Secunderabad, till his transfer from there any complaint of any sort having connection with the allegations against him was received from any one else. He further wanted to know as to who was the appropriate authority to employ or fill leave vacancies. A reply was sent to him by the Officer-in-charge, Military Farm shed, on August 21, 1961, which, inter alia, mentioned that no complaint had been received except the one under reference and that the Officer-in-charge of the Farm was the competent authority for employment and even filling of leave vacancies.
(7) On April 24, 1962 a charge was framed against the petitioner and disciplinary proceedings were started against him by the Deputy Director of Military Farms. The charge was in the following terms:-
'THATthe said Shri B. L. Bhola while functioning as in charge, Cattleyard at Military Farm, Secunderabad, from 20 Jan. 61 to 25 Apr. 61, committed misconduct and failed to maintain absolute integrity and devotion to duty in as much as he demanded and accepted several sums of money ranging from Rs. 50.00 to Rs. 100.00 to the tune of Rs. 360.00 in the aggregate from Sarva Shri Nimtury Malliah s/o Narasimha, Balsu Narasiah s/o Durgiah Muramandia Narasimha s/o Durgiah, Bollula Kistiah s/o Narsimha and Gondolu Masiah s/o Bhimaiah, temporary workers in Military Farm, Secunderabad, promising to secure them permanent appointment in the Military Farm and thereby contravened Rule 3 of the Central Civil Services (Conduct) Rules 1955.'
(8) Shri Himmat Singh, Farms Officer, was appointed as the Enquiry Officer on December 8, 1962 and was directed to hold the enquiry against the petitioner at the Military Farm, Secunderabad.. An enquiry was accordingly held and the enquiry officer submitted his report exonerating the petitioner. On June 3, 1964 the Director, Military Farms, agreeing with the findings of the enquiry officer and in consultation with the Quarter Master General decided to drop the charge against the petitioner 'for want of sufficient evidence'. The case was. thereforee, ordered to be closed and the petitioner was informed.
(9) After the dropping of the disciplinary proceedings against the petitioner he continued to serve as Supervisor, Military Farm and was even given a commendation certificate by the Chief of the Army Staff in connection with services rendered during the period of Indo-Pak conflict in the year 1965.
(10) On April 1, 1966 an order was issued by the Government of India. Ministry of defense, under rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 whereby the disciplinary proceedings against the petitioner and one Praveen Singh 'subsequent to the stage of defense statements submitted by them in reply to charge sheets' were quashed. On the same date by another order Shri V. P. Gautama, Commissioner for Departmental Enquiries, Central Vigilance Commission, was appointed as enquiry officer to enquire into the charges against the petitioner and Praveen Singh. On January 16, 1967 Shri A. K. Ray, successor of Shri Gautama as Commissioner for Departmental Enquiries, was appointed as the enquiry officer and was directed to continue with the enquiry from the stage reached by his predecessor.
(11) Shri Ray, the new enquiry officer, submitted his report on January 30, 1968. The finding given by him in respect of the petitioner was as under: -
'Defendant Bhola illegally obtained Rs. 60.00 from Nimtury Malliah promising to make him permanent. When on the eve of defendant Bhola's transfer, Nimtury Malliah asked him to return the money, defendant Bhola asked him to leave the lob and made necessary recommendation as per Exhibit P-l even though Nimtury Malliah was not the juniormost Gowalla.'
(12) After a show cause notice dated May 17, 1968 was served on the petitioner and he had been given an opportunity of making a representation against the proposed penalty of dismissal from service, the order of dismissal dated May 1, 1969 was passed. The order purported to have been issued by order and in the name of the President of India.
(13) In the petition filed for challenging the order of dismissal it was averred that on account of the incidents which took place on the night between the 20th and the 21st April 1961 the Gowalas the labourers approached Dr. Tyagi, Pool Officer, to help them in securing the release of Sattaya and when the petitioner did not give his consent to Sattaya being released the Gowalas and the Pool Officer became inimical to him. It was urged that the complaint made by Dr. Tyagi against him on April 25, 1961 was outside his duties. It was stated that the enquiry once dropped by a competent authority could not be re-opened after nearly one year and nine months. The subsequent enquiry conducted against him was also criticised on certain grounds. One thing is significant in this ase that before the petitioner had made a report on April 21, 1961 against the conduct of Mattialoo and Sattaya sons of Bhimiah, who were then working as Gowalas in the Military Farms, Secunderabad, there was no complaint, whatsoever, against him by any of the labourers. In a letter sent to the petitioner by the Officer In-charge, Military Farm, Secunderabad, on August 21, 1961 it was admitted that no complaint has been received except the one under reference, which meant the complaint made by the Pool Officer on April 24. 1961. In the affidavit filed by Smt. Usha Chatrath, Under Secretary, Ministry of defense, on behalf of the respondents in opposition to the writ petition, it was stated, 'ft is true that no written complaint had been received from any of the labourers in the Military Farm either by Dr. Tyagi or by the Officer In-charge of the Farm'. The complaint made by Dr. Tyagi was also vague and did not mention the names of the labourers or Gowalas who had made allegations against the petitioner regarding accepting or extorting illegal gratification. It will, thereforee, be not an unreasonable inference to draw that even if some allegations were made by some of the Gowalas to the Pool Officer on April 24, 1961 those were probably meant to be retaliatory steps on their part for the incidents which took place on the night between the 20th and the 21st April 1961 when one of the Gowalas was arrested by the police with milk which was alleged to be stolen. Unless Dr. Tyagi had some personal grudge against the petitioner his suspicion would have been aroused by the absence of any specific allegations and the fact that the allegations were made after report by the petitioner and arrest of a Gowala. The reason given by Dr. Tyagi for not disclosing the names of the labourers who had made complaint against the petitioner arc not intelligible. It appears that for some unknown reason Dr. Tyagi wanted to harm the petitioner and, thereforee, made a vague but damaging report against the petitioner. Ordinarily if any definite allegations were made against an in-charge cattle-yard to a comparatively senior officer which appeared to be not altogether without substance, the latter would not have omitted to mention the names of the persons who made the allegations and would have also given details as to what were the exact allegations made before him. After Realizing that it would be a very serious matter if the allegations were correct and then not disclosing the names of the persons who made the allegations at least shows that the officer who made the report against the petitioner was not sure as to the nature of the allegations and the persons who were then prepared to come forward to support them.
(14) I have however, not been impressed by the argument that making the complaint or report was outside the duties of the Pool Officer. If any definite allegations which appear to have some basis are brought to the notice of a superior officer it is certainly proper for him to bring that matter to the notice of the competent authority.
(15) Further in a proper case an enquiry once dropped can also be reopened. The relevant portion of rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules reads as under :-
'29.(1) Notwithstanding anything contained in these rules.-
(I)the President, or may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(A)confirm, modify or set aside the order; or
(B)confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(C)remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(D)pass such other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry ill the manner laid down in rule 14 and after giving a reasonable opportunity to the Government servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Commission where such consultation is necessary:'
(16) Proceedings against the petitioner from the stage of his defense statement were quashed under rule 29 and, thereforee, the enqury from that stage onwards became re-opened. No legal objection can be taken thereto. It has, however, to be seen whether the findings against the petitioner that he had illegally obtained Rs. 60.00 from Nimturi Malliah is based on any evidence which could at all be relied upon.
(17) The record of the enquiry was produced by the learned counsel for the respondents and it was stated that the evidence which had bearing on the finding given by the enquiry officer comprised of the statements of Nirnturi Malliah, Nirnturi Narasimha and Maghi Lal. The statements of those persons were also read in extenso.
(18) In the statement of allegations relating to the charge it was mentioned that the petitioner had demanded Rs. 100.00 as illegal gratification from Nirnturi Malliah son of Narasimha, a temporary worker, and had accepted Rs. 60'.00 by promising to make him permanent. In his statement before the enquiry officer, subsequent to the re-opening of the enquiry, Nirnturi Malliah stated on October 10, 1966 that four years ago he gave Rs. 60'.00 to the petitioner when there was no one else with him. He also mentioned that the petitioner had told him that he would make him permanent. Describing as to how he got the money alleged to have been paid to the petitioner he staled that he got Rs. 50.00 from Misri Lal by pledging ear rings, ear band etc. and due to Nimturi Narasimha standing as his surety. He added that Rs. 30.00 more were obtained by him from Misri Lal and out of the amount of Rs. 80.00 Rs. 60.00 were paid to the petitioner. It was admitted by him that four days before he made a complaint to Dr. Tyagi the petitioner had checked the Gowalas at night and a bottle of milk was caught in the checking but he did not know who had kept it there Nimturi Narasimha in his statement dated October 10, 1966 mentioned that he got Rs. 30.00 for Maliah from a Marwari by standing as a surety without asking Maliah as to why he wanted the money. Even though Nimturi Malliah had definitely named Misri Lal as the person from whom he got the money, yet one Manghi Lal deposed before the enquiry officer, also on October 10, 1966, that on the 2nd March about five years ago Nirnturi Malliah had borrowed from him Rs. .00 without pledging anything and later on Nirnturi Malliah got Rs. 30.00 by pledging some ornaments. The amount of R.s. 50.00 was stated to have. been given by him on the surety of Nirnturi Narasimha and regarding giving the amounts of Rs. 50.00 and Rs. 30.00 entries were stated by him to have been made in his account books. The account book or even copies of relevant entries there from were not produced.
(19) From the evidence before the enquiry officer it could not be reasonably inferred that the allegation about payment of Rs. 60.00 by Nimturi Malliah to the petitioner as illegal gratification had been established. According to Nimturi Malliah himself payment was made four years before he made his statement on October 10, 1966, and that would mean about October 1962. The petitioner was transferred from Secunderabad on April 25, 1961 and obviously no payment could have been made to him by Nimturi Malliah after the transfer. The version of Maghi Lal that he had advanced Rs. 50.00 and Rs. 30.00 to Nimturi Malliah is contradicted by the latter as he clearly stated that the money was borrowed from Misri Lal. No connection, whatsoever, was established between Misri Lal and Maghi Lal. In spite of the fact that entries regarding advancing the money were stated to have been made yet these were not produced probably as no such entries existed. Even the statement of Nimturi Narasimha was contradictory to that of Nimturi Malliah regarding the version that Rs. 50.00 had been raised by pledging some ornaments and on the surety of Nimturi Narasimha. It was also not natural that Nimturi Narasimha did not enquire or was not told the object of borrowing money from a money lender if Nimturi Narasimha was to stand as a surety.
(20) The evidence produced during the enquiry was thus improbable, self-contradictory and of such a nature that on its basis it was not possible to reasonably hold that the allegations about the payment of Rs. 60.00 to the petitioner had been substantiated. It was also relevant in that connection that the petitioner had no power of appointing labourers in permanent or leave vacancies and a person already working as a temporary labourer for some years could not have paid money to him in order to become permanent. Not being a new man the labourer concerned ordinarily should have known that the proper authority for appointing him on a permanent basis was the Farm Officer and not the petitioner.
(21) In the finding of the enquiry officer it was also stated that when Nimturi Malliah asked the petitioner to return the money the latter made a recommendation 'as per Exhibit P/1 even though Nimturi Malliah was not the junior-most Gowala'. The report marked as Exhibit P/1 was stated to have been written by the petitioner suggesting that Gowala 'Narsima/Mattiah' being the juniormost of the lot may be discharged with effect from April 25, 1961 due to decrease in the mulching level. That report was not signed by the petitioner but by Shri Praveen Singh, who took over from the petitioner. Through a correction made in the report the name 'Narsima/Malliah' was changed to 'Malliah Narsimah'. There was, however no charge against the petitioner in respect of that report or that on being asked to return any money he did not do so. Any finding given beyond the charge could not be taken into consideration for purposes of imposing any penalty.
(22) As the petitioner was a civilian employee in defense service it was urged on behalf of the respondents that he could not be considered to be holder of a civil post under the Union and he was, thereforee. not entitled to the protection of article 311 of the Constitution and can, thereforee, make no grievance of the fact that reasonable opportunity as required by clause (2) of article 311 was not given to him.
(23) It was. however, not disputed by Shri R. M. Mehta, learned counsel for the respondents, that even though article 311 of the Constitution was not applicable to the petitioner, still the Central Civil Services (Classification, Control and Appeal) Rules applied to him and that those rules having been made under article 309 of the Constitution were statutory in character. A Full Bench of the Punjab and Haryana High Court in the case of Sham Lal v. Director, Military Farms, Army Headquarters, New Delhi, and other considered the question whether a person holding a civil post connected with defense could claim protection of a civil court or invoke the extraordinary jurisdiction of the High Court for interference with the 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 309 of the Constitution in spite of the fact that such an employee was not en titled to invoke the protection of article 311 of the Constitution. The question was answered in the affirmative. Speaking for the Court Grover, J. (as his Lordship then was) observed :-
'....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 be justiciable.'
(24) The provisions of rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules not only require that the charge against a Government servant should be established by the disciplinary authority by producing evidence but also that the Government servant should be given opportunity to defend himself. Further rule 15 of the said rules provides that if the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant it has to furnish to the Government servant a copy of the report of the enquiring authority and give a notice staling' the penalty proposed to be imposed on the Government servant and call upon him to submit within fifteen days of the receipt of the notice or such further time not exceeding fifteen days, as is allowed, such representation as the Government servant may wish to make on the proposed penalty 'on the basis of the evidence adduced during the enquiry held under rule 14'. There being no legal evidence against the petitioner on the basis of which the charge against him could reasonably be held to have been established imposing the penalty of dismissal from service amounted to contravention of the requirements of the statutory rules which applied to the petitioner in the matter of imposing the penalty of dismissal from service on him. Obviously the rules contemplate that the penalty to be imposed should be on the basis of the evidence adduced during the enquiry and that evidence has to be legal evidence or such evidence on the basis of which a reasonable person may hold the Government servant concerned guilty of the charge or an article of the charge against him.
(25) Though article 311 of the Constitution may not have been applicable in the case of the petitioner yet it is a fit case in which the extraordinary jurisdiction of this Court for interfering with the order of punishment should be exercised on the ground that the punishment had been inflicted in violation of the service rules framed by the President under article 309 of the Constitution. The punishment imposed on the petitioner was not based on any legal evidence but the evidence relied upon was highly improbable, self-contradictory and of such a nature on which no reasonable person, in my opinion, could have held the charge to have been proved.
(26) The petition is, thereforee, accepted. A writ in the nature of certiorari should be issued for quashing the order of the dismissal of the petitioner from service. The petitioner shall also be entitled to his costs. The counsel fee shall be assessed at Rs. 150.00.