T.K. Joseph, J.
1. The petitioner who was a Sub-Inspector of Police in State service prays for the issue of a writ of certiorari or other appropriate writ, direction or order quashing the order of the respondent, the State of Kerala, dismissing him from service and also for a writ of mandamus or other appropriate writ, direction or order directing the respondent to treat the petitioner as still in service and to allow him his salary, other emoluments and benefits of service,
2. The facts necessary for the decision of the original petition may be briefly stated. The petitioner was the Sub-Inspector of Police at Kayam-kulam in November 1956. Following an enquiry into certain acts of misconduct alleged against him and two other police officers, he was dismissed from service by order (Ex. P 1) dated 12-1-1959. The case against the petitioner was that on thenight of 20-11-1956 he took a woman to the Government Rest House at Vavelikara for immoral purposes and that he spent the night there in the company or an Assistant Superintendent of Police and another Sub-Inspector of Police who had brought two more women of easy virtue for similar purpose. The three officers are stated to have spent the night in a riotous manner drinking and causing disturbance to the other occupants of the Rest House. They left at 4 A. M. the next morning without making any entry in the register of the Host House regarding occupation of the place, the previous night. Under instructions from the Inspector-General of Police, the District Superintendent of Police, Quilon, conducted a preliminary enquiry into the matter. He examined a few witnesses and finding that a 'prima facie' case was made out he framed charges against the three officers and issued notices to them asking them to show cause why they should not be punished for scandalous conduct unbecoming of police officers. Ex. P2 is the notice issued by him to the petitioner and it reads as follows:
'On 20-11-1956 at about 11 p. m. you then Sub-Inspector of Police, Kayamkulam, in company with (1) Sri K. A. Venugopalan, Assistant Superintendent of Police, Alleppey (2) Sri M. A. Chellappan Pillai, then Sub-Inspector of Police, Adoor and (3) Sri Kunjukutty, Tea Merchant, Kayamkulam took a young woman to the Government Rest House, Mavelikara, occupied the eastern room of the same till 4 a. m. that night evidently for immoral purposes, took alcoholic drinks and by your conduct and behaviour caused nuisance and disturbance to the inmates of the adjoining room. You made no entry in the Rest House Register about your occupying the room.
The above conduct of yours is scandalous and Quite unbecoming at your official position. Please show cause within five days of receipt of this why you should not be handed up for punishment for the same. Copies, of the statements obtained in this connection are hereto appended for your perusal,'
The Inspector-General of Police reported the result of this enquiry to the Government and the Government passed an order (Ex. P3S dated 19-1-i957 suspending the petitioner and the other two officers pending an enquiry to be conducted by the Deputy Inspect or-General of Police, X-Branch. In addition to the charges framed by the District Superintendent of Police, the Deputy Inspector-General of Police framed one more charge, namely that of leaving their respective jurisdiction without previous permission. Ex. F4 is the notice given to the petitioner regarding this charge and it also gives the names of witnesses proposed to be examined. After an elaborate enquiry, the Deputy Inspector-General of Police found all the three officers guilty and he submitted a report to that effect. The Government then issued notices to the officers to show cause why they should not be dismissed from service. After considering the explanations offered by them, and after consultation with the Public Service Commission, the Government passed the order (Ex. PI), dated 12-1-1959 dismissing the three officers from service. The other two officers appear to have acquiesced in the order.
3. The main ground on which the petitioner relies is that he was not given reasonable opportunity to show cause against the action taken. The points raised in this connection are (1) that there was no fair enquiry and that principles of naturaljustice were violated, inasmuch as evidence recorded 'ex parte' was used at the enquiry, (2) that the -enquiry was not in conformity with Act XI of 1122 (Travancore) or the later order of the Government of Travancore-Cochin (Ex. P7) dated 3-4-1951 prescribing the procedure for such enquiries, and (3) the decision of the Deputy Inspector-General of Police is vitiated by bias. A counter-affidavit has been filed on behalf of the State by the Superintendent, Home Department, Government of Kerala, contending that the order of dismissal is proper and that the grounds relied on by the petitioner are unsustainable. It is also contended by the State that the petitioner has another effective remedy, namely, an appeal to the Governor. The petitioner has filed an affidavit in reply.
4. I may at the outset state that there is no substance in the point that the order of dismissal is bad for failure to adhere strictly to the provisions of Act XI of 1122 (Travaneore) or the revised instructions of the Government (Ex. P7) prescribing the procedure for taking disciplinary action against Government servants. Apart from the fact that the former is a statute prescribing the procedure for public enquiries, many of the provisions of the Act have become obsolete in view of the constitutional safeguards contained in Article 311 of the Constitution. The matter is now governed by Article 311 which lays down that before a Government 'servant is dismissed, removed or reduced in rank, he must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. What such reasonable opportunity envisages has been laid down by the Supreme Court in Khem Chand v. Union of India, AIR 1958 SC 300, as:
'(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 bu 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.'
So long as these requirements are complied with, the omission to adhere strictly to the procedure prescribed for such enquiries cannot vitiate the final decision. What is required is a fair enquiry in consonance with principles of natural justice.
5. So for as the enquiry preceding the dismissal of the petitioner is concerned, I have no hesitation in holding that there was no fair enquiry. Evidence recorded by the District Superintendent of Police, Quilon, and an Assistant Superintendent of Police who was later deputed tn assist the officer conducting the enquiry were made use of in arriving at the conclusion that the petitioner was guilty. The report submitted by the Deputy Inspector-General of Police shows that objection was taken to the odmissibility of such evidence in the enquiry. The objections were overruled on the ground that the persons whose statements were thus made use of could not be got at forexamination. One of the reasons relied on for admitting such evidence was that the rules of evidence followed in a trial in a court of law need not be strictly observed in an enquiry of this kind. This may be true in a broad sense but finding a pci'son guilty on the basis of evidence recorded behind his back is a flagrant violation of principles of natural justice. In such a case the delinquent officer is denied the right and opportunity of proving the falsity of such evidence by cross-examination of the persons who have given the evidence.
This question has come up for decision in other courts. Rabindra Nath v. State, AIR 1956 Cal 116; and Ramesh Chandra v. R. D. Verma, AIR 1958 All 532, are two decisions of the Calcutta and Allahabad High Courts quashing orders of dismissal of civil servants on this ground. Chagla C. J., and Dixit J., have taken the same view in State of Bombay v. Gajanan Mahadev, AIR 1954 Bom 351. The evidence of those witnesses was certainly material because they are persons who arc said to have identified the petitioner and the other two police officers when they spent the night at the Rest House. It was pointed out on hehalt of the respondent that the petitioner did not object to the admission of such statements in evidence.
There is no substance in this objection because it is shown that the Assistant Superintendent of Police whose case was also being enquired into along with that of the petitioner did raise the objection. In view of the objection raised by one of the officers, the others were not bound to raise the same. Another point urged by the learned Government Pleader who appeared for the State was that this evidence is clearly separable from the rest of the evidence and that the latter alone is sufficient to support the conclusion arrived at. It is not possible for me to say whether the Deputy In spec for-General of Police could have reached the same conclusion it the evidence therein takon 'ex parte' had not been admitted. One thing is clear from the reports, and that is that the Deputy Inspector-General of Police treated this evidence as very material for arriving at a finding.
6. I may in this connection point out another objectionable course adopted in the enquiry. Even in the case of the witnesses examined at the enquiry, earlier statements taken from them 'ox parte', either by the District Superintendent of Police or the Assistant Superintendent of Police were allowed to go in. I cannot understand why these statements were admitted, as those witnesses were available to give evidence in the enquiry. The following observations of Chagla C. J., in AIR 1954 Bom 351, are instructive:
'Even assuming that a statement of such a witness is furnished to the Government servant it is a sound rule that Courts of law follow and which oven domestic tribunals should follow that all evidence must be given in the presence of an accused person and in the presence of a person against whom action is proposed to be taken. It is one thing to make a statement behind the back of a person; it is entirely a different thing to make a statement in front of the court or a domestic tribunal and in the presence of a person against whom you are going to make serious charges.'
The learned Government Pleader made the records relating to the enquiry available and it is seen that some of these statements were proved after the examination of the witnesses and that the objection regarding admissibility of the same wasoverruled, saying that no prejudice would be caused to the delinquent as they got an oppor-tunity of cross-examining these witnesses from whom the statements were taken. Whatever be the extent of the latitude allowed in such departmental enquiries, such limits have been clearly transgressed in this enquiry. The order of dismissal based on the findings thus arrived at by the officer who conducted the enquiry must therefore be quashed.
7. In view of the above conclusion it is unnecessary to consider the other points raised by the petitioner. I may however observe that I was not impressed by the same. Learned counsel for the petitioner pointed out that under the rules the charges had to be framed by the head of the department and not by the District Superintendent of Police or the Deputy Inspector-General of Police who conducted the formal enquiry. I have already indicated that non-compliance with the procedure prescribed for such enquiries cannot invalidate the final order so long as there has been a fair enquiry as envisaged by Article 311.
So far as this case is concerned it cannot bedenied that the petitioner had adequate notice ofthe charges which he was to meet. Another pointraised was that the Assistant Superintendent ofPolice who was appointed to assist the officer whowas conducting the enquiry was collecting evidence and particulars regarding witnesses to be examined and he' also gave evidence to prove somestatements recorded by him ex parte and that thefindings are therefore vitiated by bias. It wouldhave been better if the Government had appointeda prosecutor for this purpose, but I do not thinkthis has vitiated the enquiry. It is not as thoughthe officer who conducted the enquiry himself wasgiving evidence against the petitioner. Thesequestions however are not necessary for the decision of this petition.
8. Reference has also to be made to a point taken by the State, namely, that R. 21 of the Kerala Civil Service (Classification, Control and Ap-peal) Rules, 1957, provides for an appeal to the Governor from the decision of the Government and that there is thus another remedy open to the petitioner. In fairness to the learned Government Pleader it has to be stated that though this point was raised, he did not contend that the existence of another remedy was a bar to interference by this court under Article 226 of the Constitution. I do not think this provision in the Kerala Civil Service (Classification, Control and Appeal) Rules is proper or effective after the Constitution because under the Constitution, the executive power of the State is vested in the Governor and all executive orders are issued in the name of the Governor,
The order of dismissal, Ex PI, itself is seen to be one passed by the Governor in consultation with the Ministers and the Constitution does not warrant this provision for an appeal to the Governor in his personal capacity from an order of the Government in consultation with the Ministers. It appears that this provision in the Kerala Rules was copied from similar rules in one or other of the neighbouring States to which the Government of India Act, 1935 was applicable. Section 52 of the Government of India Act, 1935, conferred certain responsibilities on the Governor including:
'The securing to, and to the dependants of persons who are or have been members of the publie services of any rights provided or preserved for them by or under this Act. and the safeguarding of their legitimate interests.'
This provision is not re-enacted in the Constitution. The rule which provided for an appeal to the Governor from the order of the Government has thus become obsolete after the Constitution. The above view was taken by the High Court of Andhra Pradesh in State of Andhra Pradesh v. Kameswara Rao, AIR 1957 Andh Pra 794. The propriety of retaining this rule in the Kerala Civil Services (Classification, Control and Appeal) Rules 1957 may have to be examined by the Government.
9. As the enquiry which preceded the order of dismissal is not one satisfying the requirements of Article 311 of the Constitution the order of dismissal must be set aside. I may however make it clear that this judgment will not be a bar to a fresh enquiry against the petitioner and taking such action as they deem fit on the basis of the same.
10. The petitioner was under suspension when the enquiry was conducted and it is not proper to grant the second prayer in the petition, namely the writ of mandamus.
11. The original petition is allowed in respectof the first prayer and the order of dismissal ofthe petitioner is quashed. The petitioner and therespondent are directed to bear their costs. .