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S. Neelakanta Iyer Vs. State of Kerala - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberO.P. No. 268 of 1959
Reported inAIR1960Ker279; (1960)IILLJ398Ker; (1960)IILLJ398Ker
ActsConstitution of India - Artilces 310, 310(1), 311(1) and 311(2); Kerala Civil Service (Classification, Control and Appeal) Rules, 1957 - Rule 17(2) and 17(5)
AppellantS. Neelakanta Iyer
RespondentState of Kerala
Appellant Advocate T.S. Krishnamurthy Iyer and; G. Rajasekhara Menon, Adv.
Respondent AdvocateGovt. Pleader
Cases ReferredBimal Charan Mitra v. State of Orissa
constitution - disciplinary action - article 311 of constitution of india and rules 17 (2) and 17 (5) of kerala civil service (classification, control and appeal) rules, 1957 - removal from service challenged on ground of violation of article 311 - removal not ordered on ground of enquiry report - non application of mind by government - removal order set aside - government at liberty to initiate action against petitioner on basis of enquiry report. - - the violation of the rule complained of by the petitioner consisted in the committal of the enquiry, and in the appointment under rule 17(3) of the kerala rules, of the commissioner to hold the enquiry, before complying with the formalities and the procedure prescribed by paragraph 1 of rule 17(2), and upon the mere receipt of the.....orders.velu pillai, j. 1. by this petition under article 226 of the constitution, the petitioner challenges the validity of ext. p-6, an order dated 24-1-1959, passed by the respondent, the government of the state of kerala removing him from service as a sub-inspector of police. a petition of complaint against him for alleged misconduct, was presented to the then minister for law by one radhamma, upon which, pending enquiry, he was suspended from service on 17-2-1958. preliminary enquiries having been made thereon, government ordered, by notification dated 7-3-1958. 'a detailed departmental enquiry under the kerala civil service (classification control and appeal) rules, 1957', which may be referred to hereafter as the kerala rules, to be held on the complaint for 'indecent behaviour and.....

S.Velu Pillai, J.

1. By this petition under Article 226 of the Constitution, the petitioner challenges the validity of Ext. P-6, an order dated 24-1-1959, passed by the respondent, the Government of the State of Kerala removing him from service as a Sub-Inspector of Police. A petition of complaint against him for alleged misconduct, was presented to the then Minister for Law by one Radhamma, upon which, pending enquiry, he was suspended from service on 17-2-1958. Preliminary enquiries having been made thereon, Government ordered, by notification dated 7-3-1958. 'a detailed departmental enquiry under the Kerala Civil Service (Classification Control and Appeal) Rules, 1957', which may be referred to hereafter as the Kerala Rules, to be held on the complaint for 'indecent behaviour and misconduct' on his part, and committed the enquiry to the Enquiry Commissioner and Special Judge who may he referred to hereafter as the Commissioner. Upon the complaint, the Commissioner framed a charge against the petitioner, the substance of which was, that after ascertaining that Radhamma's husband was not at home on the evening of 7-2-1958, he entered her house on the pretext of questioning her on a matter pending before him in his official capacity, although she had been questioned previously, directed her brother who was in the house to remain in the verandah, entered the kitchen, talked indecently to her, touched her person, and when she was trying to escape, caught hold of her and restrained her and promised to put an end to her troubles if she acted as desired by him, and that he behaved in this manner with the intention of outraging her modesty.

The Commissioner issued summons, Ext. P-1 with the charge appended, to the petitioner, who filed his written statement of defence, and after enquiry, submitted to Government a report, Ext. P-2, dated 12-5-1958, holding 'the charge or misconduct' to be proved, and suggesting the petitioner's 'reversion to his next lower post for a particular period as contemplated by Rule 9 (iv)' of the Kerala Rules, as a suitable punishment. It is seen from the file of papers furnished to me by the learned Government Pleader, that by letter dated 29-7-1958, Government sought the opinion of the Public Service Commission, stating, that in their view, dismissal from service would be the proper punishment. By Ext. P-7, reply, dated 12-9-1958, the Public Service Commission agreed with the view of Government as to the punishment, upon which Ext. P-3, notice with a copy of Ext. P-2 appended was issued by Government on 11-10-1958, to the petitioner to show cause against the proposed punishment.

The petitioner submitted his reply Ext. P-4, upon which, suggesting that the punishment may be reduced to one of removal from service, Government again addressed the Public Service Commission on 26-12-1958, for its opinion, and the latter concurred in the modification proposed. Accordingly, the impugned order, Ext. P-6, was passed and on 21-2-1959 the Inspector-General of Police (General) intimated the petitioner by Ext. P-5, that he was removed from service with effect from 17-2-1958, the date on which he was suspended from service. The main contentions on behalf of the petitioner are three-fold, first that he was not afforded reasonable opportunity within the meaning of Article 311(2) of the Constitution of showing cause against his removal from service, second, that on receipt of the Commissioner's report Government did not come to any finding as to his guilt, and third, that whatever conclusion Government arrived at had been induced by the Public Service Commission.

2. The first of the above contentions was really based on non-compliance with the provisions in Rule 17(2), of paragraph 1 of the Kerala Rules, which may be extracted below:

Rule 17(2). 'In every case where it is proposed to impose on the member of a service any of the penalties specified in items (iv), (vii), (viii) and (ix) of Rule 9, the grounds on which it is proposed to take action shall be reduced to the form of a 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 nut in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. It he so desires or if the authority concerned so directs an inquiry shall be held.'

In the context of Article 311(1) of the Constitution which forbids removal of a civil servant from service by way of punishment 'by an authority subordinate to that by which he was appointed' it seems reasonable to construe the provision in paragraph 1 of Rule 17(2) as implying that it is the same authority that can initiate and pursue the steps enjoined by it. This rule was to construed by a learned Judge of this court in Itticheria v. State, 1959 Ker LT 141, and with respect, I agree with him. Under it, the written statement of defence by the civil servant, in answer to the charges against him which have been communicated to him has to be put in before that authority, which may then order an enquiry, if it considers necessary so to do, or if so desired by the civil servant.

As explained by the Andhra High Court in State of Andhra Pradesh v. Kameswara Rao, (S) AIR 1957 Andh Pra 794, one of the objects intended to be served by the above provision, is to enable the authority to exonerate the civil servant, even at that preliminary stage, if on a perusal of his statement of defence the authority feels that there is no case for an enquiry, or to limit the scope of the enquiry, if any, to be held. The violation of the rule complained of by the petitioner consisted in the committal of the enquiry, and in the appointment under Rule 17(3) of the Kerala Rules, of the Commissioner to hold the enquiry, before complying with the formalities and the procedure prescribed by paragraph 1 of Rule 17(2), and upon the mere receipt of the complaint, though perhaps after an antecedent investigation into it, by one of the departmental servants. On the true construction or the above provision, it has to be held, that there was a violation of it in the manner complained of

It was also contended on behalf of the petitioner, that by committing the enquiry in the above manner. Government virtually delegated their duty to frame charges against the petitioner, to the Commissioner which could not be done under law. 1959 Ker LT 141 is an authority in support of the petitioner also on this point, but on this, I cannot find my way to go the same length with it. In that case, the order committing the enquiry and the order appointing a tribunal to hold the enquiry, were quashed on both these grounds. It may be, that this court would interfere under Article 226, when a plain violation or broach of a statutory rule is brought to its notice, at a very preliminary stage, when the irregularity can be set right by timely interference. But the question which arises here is different and is whether a breach of the provision in Rule 17 (2), paragraph 1, irrespective of any prejudice resulting from it is per se a legal and a justifiable ground, for setting aside an order of removal of a civil servant from service. 1959 Ker LT 141 has not decided this question; but Gopinathan Nair v. State, 1959 Ker L. T. 961: (AIR 1960 Kerala 63) has held, that non-compliance with the same provision by the punishing authority, by its omission to frame the charge, and by leaving it to the enquiring officer to do so, is no ground to invalidate the final order 'so long as there has been a fair enquiry as envisaged by Article 311'. But these observations were contended to be obiter as the order of dismissal of the servant was quashed in that case on a different ground. It must be stated, as indicated above, that the learned counsel for the petitioner was not prepared to put his case on any prejudice having resulted to the petitioner from a violation of the provision in question, but he contended for the broad proposition, that in law a violation of the procedure prescribed by paragraph 1 of Rule 17 (2) by itself amounts to a denial of 'reasonable opportunity' guaranteed by Article 311(2).

3. Article 310 enunciates the doctrine of 'pleasure' if it may be so described, as regards the tenure or the termination of service of a civil servant and corresponds to the English doctrine that all public officers and servants of the Crown hold their appointments at the 'pleasure' of the Crown, The expression 'during the pleasure as it occurs in that Article is no term of art, but has certain legal implications, such as, that the service of the civil servant is terminable at any time, that damages cannot be awarded to him as for wrongful dismissal, and that arrears of pay cannot be recovered by him, should the order of dismissal be declared to be void. The doctrine has been interpreted by the Supreme Court in State of Bihar v. Abdul Majid, AIR 1954 SC 245 at 250, to mean 'that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned'.

It is unnecessary to examine how this doctrine was being applied in India through the decades which have preceded the birth of the Constitution of India, both before and after the date of the Government of India Act, 1919, and the date of the Government of India Act, 1935, as such examination has been undertaken in several decided cases. It is sufficient to note, that Article 310

(1) itself has limited the application of the doctrine by making it subject to the express provisions in the Constitution, such provisions being found in Articles 124, 148, 218 and 324, which respectively provide, that the Supreme Court Judges, the Auditor-General, the High Court Judges, and the Chief Election Commissioner, shall not be removed from their respective offices, except under Certain conditions, and also, I may add, in Article 311

(2) which prescribes, that before a civil servant is dismissed or removed, or reduced in rank, he ought to be 'given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him'.

The Kerala Rules, though framed under Article 309 and are therefore statutory do not proprio vigore form part of the Constitution within the meaning of the term 'except as expressly provided by this Constitution' in Article 310(1); this is also true of the Civil Service (Classification. Control and Appeal) Rules, framed under Section 96-B of the Government of India Act. 1.919, or of any similar body of Rules, whether framed, earlier and deemed to continue in force after the Constitution by virtue of Articles 313 and 372, or promulgated for the first time under Article 309. The rules so continued or framed, may deal with the tenure of service or with the conditions of service of civil servants, but AIR 1954 SC 245, has made a distinction between them; rules of the former category are of no avail against the doctrine in Article 310(1) in so far as they seek to impose fetters in its application but rules of the latter category have nothing to do with it. At the same time, it has to be observed, that even rules which deal with tenure of service, to the extent that they make ur the concept and constitute the essence of reasonable opportunity within the meaning of Article 311(2), may operate to qualify the doctrine, but this is because they are so ingrained in Article 311(2) as to form part of it. In Ramesh Chandra Verma v. R. D. Verma, AIR 1958 All 532 the court even suggested that

'rules which deal with the tenure of service, and have got the effect of limiting the pleasure of the President or the Governor. ..... can only be regarded as administrative rules containing directions for the subordinate authorities, and any contravention of these rules may not confer upon the petitioner a cause of action'.

It seems unnecessary for deciding the present question to hold more than that such rules, as are not, or cannot be deemed to be fused into, the concept of 'reasonable opportunity' cannot limit the application of the doctrine, The question resolves itself to whether the procedure prescribed by Rule 17(2) paragraph 1 of the Kerala Rules is of such a character, that a violation of it in any respect would be a negation of the concept of 'reasonable opportunity' in Article 311(2).

4. Article 311(2) does not purport to define what is reasonable opportunity; it does not leave it to be defined by rules either. What 'reasonable opportunity', means, has therefore to he determined by the court, on the facts and circumstances of each case, and not in accordance with any set formula. As observed in Choudhury v. Union of India, AIR 1956 Cal 662 :

''it cannot be left to the vagaries of each individual since that would introduce a thousand shades of reasonableness which cannot be permitted. It must therefore mean 'reasonable' according to the rules of natural justice which are rules or law; Joseph John v. State of Travancore-Cochin, (S) AIR 1955 SC 160.'

Therefore, as I understand the position, the formulation of rules of procedure for taking disciplinary action, such as the Civil Service (Classification, Control and Appeal) Rules or the Kerala Rules, has served to provide a code of procedure, founded on the principles of natural justice, and approximated to them as far as possible, instead of leaving to the Inquiry Officer in each case, to devise his own procedure, in accordance with what he conceives to be reasonable or just. The rules so framed may fail to conform to the trite pattern of natural justice in certain respects as in the case of paragraph 2 of the Kerala Rule 17 (2), which did not permit the civil servant to examine himself or his witnesses and was therefore impugned in 1959 Ker LT 141; at the same lime, everything in these rules, cannot be considered to be of the essence of natural justice, or even of what is reasonable opportunity. This lack of complete identity therefore leaves a field open for judicial interpretation and decision of what constitutes reasonable opportunity.

5. The concept of 'reasonable opportunity' has been expounded recently by the Supreme Court in Khem Chand v. Union of India, AIR 1958 SC 300 at page 307 as follows:

'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.'

The above exposition has been made untramelled by the provisions of any rule for disciplinary action, and Their Lordships proceed to observe:

'In short, the substance of the protection provided by rules like Rule 55 referred to above, (Rule 55 of the Civil Service Classification, Control and Appeal Rules) was bodily lifted out of the rules, and together with an additional opportunity embodied in Section 240(3) of the Government of India Act, 1935 so as to give a statutory protection to the government servants, and has now been incorporated in Article 311(2) So as to convert the protection into a constitutional safeguard.'

In this passage Their Lordships have spoken only of 'the substance of the protection provided by rules', as distinguished from the letter of the rules, as Incorporated in Article 311(2). This is one phase of the question. What after all is the purpose of holding an enquiry? In Venkataraman v. Union of India, AIR 1954 SC 375, speaking with reference to the Public Servants (Inquiries) Act, XXXVII of 1850, which in a sense may be deemed to be in pan materia with rules for taking disciplinary action, the Supreme Court considered the only purpose of an enquiry under that Act to he to help Government, the punishing authority, to come to a definite conclusion regarding the guilt of the civil servant and provisionally to determine the punishment, prior to giving him the notice to show cause, and held that;

'an enquiry under this Act is not at all compulsory, and it is quite open to the Government to adopt any other method, if it so chooses.''

An officer to whom an enquiry is committed is no court, but only an agency provided by the punishing authority as a part of the machinery for collecting facts and materials for basing its conclusion; he is engaged in a fact-finding mission and holds no trial. He need not follows the rules of procedure of a court or apply the provisions of the Evidence Act as such, and his report is not binding on the punishing authority.

6. The learned counsel for the petitioner posed the question, who is the person or authority to grant reasonable opportunity? It seems to me, that the short answer is, that reasonable opportunity that is posited, is of the civil servant to establish his innocence concerning the accusations on which he is sought to be punished, and must be judged with reference to himself and not others. This is not to ignore the responsibility of the punishing authority, for, it is far too elementary to state, that on receipt of the report of the enquiry, it is the punishing authority which must come to a finding of guilt and tentatively decide the punishment. There is no good ground to think, that it is of the essence of reasonable opportunity, that, on receipt of a complaint against the civil servant, the punishing authority must not only determine to take action upon it, but must also frame the charges itself, call for the defence, and then decide as to the further course of action.

This certainly is the prescription in paragraph 1 of Rule 17 (2) and it is desirable that it should be complied with. The learned counsel then asked the further question, whether it is for the officer holding the enquiry to decide what charges should be enquired into Cases of a violation of the above provisions, resulting in prejudice to the civil servant may lie conceived, but as I have pointed out, it was not the case of the petitioner that he had suffered any prejudice on this account, and his learned counsel contended only for the larger proposition. It has to lie observed that in the present case, there can be no question of prejudice on this score when the only accusation against the petitioner was a clear cut one of alleged misbehaviour towards the woman, and the punishing authority forwarded the complaint to the Commissioner for enquiry and report. The scope of the charge to he framed and of the enquiry to be made, may be held to he sufficiently delineated by the punishing authority in adopting this procedure. Theoretically, it can be urged on behalf of the petitioner, as was done, that had the punishing authority complied with the procedure in paragraph 1 of Rule 17 (2), it might have exonerated the petitioner before ordering an enquiry. A somewhat similar argument was addressed on behalf of the civil servant in the following teems in Dr. G. Valayya Pantulu v. Government of Andhra, AIR 1958 Andh Pra 240:

''It is contended that, if the proper procedure was followed and the proposed penalty was indicated to him even at the outset the petitioner would not have demanded oral enquiry but would have appeared in person before the Departmental superior with a better chance of proving his innocence or at any rate securing indulgence from the superior'

but was overruled by Subha Rao, C. J., as he then was, on the ground, that the petitioner had never raised the plea during the enquiry, and that he was not prejudiced, as he had full opportunity to meet the charges, and establish his innocence; in other words, the learned Chief Justice treated the breach of the Rule, as a mere irregularity unattended by prejudice.

7. Several decided cases were cited for the petitioner, in which the effect of a violation of the rule had to be considered, and I shall refer to a tew of them. It has to be observed that the preponderance of judicial opinion is in favour of the view, that a mere breach of the Rules does not spell a denial of reasonable opportunity within the meaning of Article 311(2). The observations of a learned Judge of this court in 1959 Ker LT 961: (AIR 1960 Kerala 68) adverted to earlier were made in relation to a similar breach of Rule, the omission of the punishing authority to frame charges and to follow the steps enjoined by paragraph 1 of Rule 17(2). The same learned Judge held in Krishnaswamv v. State of Kerala. 1959 K. L. T. 1273: (AIR 1960 Kerala 224) that a breach of Rule 17 (5) (ii) of the Kerala Rules also did not amount to an infringement of the guarantee under Article 311(2).

The Travancore-Cochin High Court had taken a similar view on the effect of non-compliance with rules, in Sundaram v. State, (S) AIR 1956 Trav-Co. 158 and in Toseph John v. State, 1953 Ker LT 1: (AIR 1953 Trav-Co 130) (FB). Krishnamoorthy v. State of Madras. AIR 1951 Mad 882. S. Thakoorjee v. State of Madras. (S) AIR 1955 Andhra 168 and Kapur Singh v. Union of India, (S) AIR 1956 Punj 58 are some of the cases, decided in other jurisdictions which have adopted the same view. In the ease of AIR 1958 Andh Pra 240, already cited, it was held that though the rules cannot be ignored altogether, it is not every breach or violation of the rule, that will entail a quashing of the order of punishment. The petitioner's counsel relied very strongly on P. M. Mukherjee v. I. G. of Police, AIR 1959 Cal 1, where, it was contended that in spite of compliance with Article 311(2) the court set aside the impugned order, upon a violation of Rule 861 (e) of the Bengal Police Regulations, by reason of the omission of the Authority to give a personal hearing to the public servant; but the court observed in paragraph 16 of the judgment, that it would not have quashed the order, but for a mere potent ground, that the Authority was guilty of violation of the rules of natural justice in allowing itself to be influenced by extraneous considerations.

In other words, the violation of Rule 861 (e) was considered to be only an irregularity, not sufficient of itself to vitiate the order. Kanhaiyalal v. State of Rajasthan, AIR 1958 Raj 1, was an extreme case in which the civil servant was not given the facilities to be heard in person or the opportunity to furnish his defence, and in Benimadhav v. State, AIR 1957 Madh Pra 118 no enquiry worth the name was held, no opportunity was given to the petitioner to cross-examine persons connected with the alleged malpractice, and no notice was issued after the findings were arrived at. I do not consider State of Punjab v. Sukhbans Singh, (S) AIR 1957 Punj 191 as an authority, that a mere violation of the rules, by itself, is sufficient to vitiate the punishment. There is an observation in AIR 1956 Cal 662, that the charge must be issued in the name of the punishing authority, but this does not go further than the rule; as observed in the judgment in that case, there was a violation of the Rules at every stage. In Rajagopala Ayyar v. Madras State. (S) AIR 1955 Mad 182, the case against the civil servant, a judicial officer, could not have been sent up for enquiry under Madras. Civil Service (Disciplinary Proceedings Tribunal) Rules, 1948. These cases are distinguishable.

8. On the first contention, it remains to consider the argument which was advanced, that the delegation of the power to hold an enquiry is illegal. In support of it, counsel relied on the dicta in Barnard v. National Dock Labour Board, (1953) 1 All E. R, 1113 that 'no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication,' and in Vine v. National Dock Labour Board, (1956) 3 All E. R. 939 that 'disciplinary powers, whether judicial or not, cannot be delegated'. In these cases the concerned local dock boards which possessed disciplinary powers over their workmen, purported to delegate them to others, who in the exercise thereof, ordered suspension of a workman in the former case, and issued notice of termination of service in the latter, both of which were specific punishments under the Dock Workers (Regulation and Employment) Order, 1947; the delegation was held to be bad on the principles stated above. But it has to be noted, that the delegation in each case, was of the very power to impose the punishments, and not of a mere right to hold the enquiry or to collect facts and materials to help the punishing authority, in coming to a conclusion. In my view, this argument is concluded by the decision of the Supreme Court in Pradyat Kumar v. Chief Justice of Calcutta. (S) AIR 1956 SC 285 where a delegation by the Chief Justice of Calcutta to one of the puisne Judges to hold an enquiry against the Registrar of the High Court, was held by the Supreme Court to be valid. After referring to (1953) 1 All ER 1113 the Supreme Court observed:

'It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power'

and relying on Board of Education v. Rice. 1911 A. C. 179 remarked that

'a functionary who has to decide an administrative matter, of the nature involved in this case can obtain the material on which he is to act in such manner as may be feasible and convenient... .'

The rule was applied by the Allahabad High Court in AIR 1958 All 532 and by the Calcutta. High Court in AIR 1956 Cal 662, already cited.

Reiving on 1959 Ker LT 141, it was urged for the petitioner, that the right or power to frame the charges, and to decide to hold an enquiry, could not be delegated. If this case has to be decided within the framework of paragraph 1 of Rule 17 (2), there is some force in this objection, and this, I think, was the view taken in 1959 Ker LT 141, where as indicated, the question came up in this court before the commencement of the enquiry. In my judgment, the question, as it now arises, pertains really to an infraction of the rule, and not to the domain of 'reasonable opportunity' and can therefore be answered only on the touchstone of prejudice to the petitioner, but of this, he has no complaint

9. On the first contention, I am of the opinion, that though the rules for disciplinary action like the Kerala Rules are meant to be observed and not to be ignored, and the complaint of the civil servant against his punishment has also to be tested in the context of the rules, it is not every breach of it that will attract Article 311(2). I therefore repel the contention.

10. The second contention, that Government did not come to a finding, on the guilt or otherwise of the petitioner, appears to me to be sustainable. It must follow from the prescription in Article 311(1), that it is the authority designated by it that must find the civil servant to be punishable, before it proceeds to impose the punishment, and where this condition is not present, the requirements of reasonable opportunity cannot be held to be satisfied. The relevant parts of Rule 17 (5) of the Kerala Rules are extracted below:--

(i) ii '.... The appointing authority shall, on an examination of such proceedings 'record his findings' on the several charges inquired into, and record a further finding in cases where no charges have been made out whether the government servant is free from blame.

(II) ' 'After the appointing authority records his findings' under Clause (i) of this Sub-rule or under Sub-rule (2) he shall come to a provisional conclusion in regard to the penalty to be imposed and then consult the Public Service Commission for advice except in cases ....... On receipt of the advice of the Public Service Commission, the appointing authority shall call upon the member of the service to show cause ....The appointing authority shall give to the member of the service a copy of the report of inquiry together 'with the findings thereon' .......'

The underlining (here in ' ') is by me. To record the findings on the several charges and to forward them together with a copy of the report of the inquiry to the civil servant, is of course, the obvious duty of the punishing authority under the rule aforesaid, and to consider the materials furnished to it, and in the exercise of its judgment, to come to a finding of guilt or otherwise, is the irreducible minimum that is expected of it. It may be unnecessary to cite cases, to establish the duty of the punishing authority in this respect; however, AIR 1956 Cal 662 may be referred to as a case in point. In Baishnab Charan v. State of Orissa, (S) AIR 1957 Orissa 70, the file which the court had the advantage of perusing showed, though not the notice to show cause, that the Chief Minister did approve of the findings of the Tribunal in express terms; but in Bimal Charan Mitra v. State of Orissa, (S) AIR 1957 Orissa 184 there was no such indication, with the result, that the order of punishment was quashed. AIR 1958 Raj 1 cited already, is another case of this description.

11. The relevant passages in the letter dated July 29, 1958, addressed by Government to the Public Service Commission on receipt of Ext. P-2, the report of the inquiry, in the show cause notice, Ext. P-3, and in the order of removal from service, Ext. P-6. all of which have been referred to earlier, can well sustain the interpretation put upon them by the petitioner's learned counsel, that Government took for granted, the findings of the Commissioner, & concerned themselves only with deciding what is the measure of punishment to be awarded. The learned Government Pleader, however, maintained, that in spite of the lacuna in these proceedings, it must be deemed, that Government have-really approved the findings of the Commissioner, Beyond the dubious language in the current file, there is nothing to support this; at my instance the note file was placed before me. It is seen from it, that on receipt of Ext. P-2, a note was put up, that the conduct of the petitioner, as revealed by the report, was quite unbecoming of a police officer and that the Inspector-General of Police (General) may be consulted as to the punishment.

At the orders of the Chief Minister, a reference was made to the Inspector-General of Police (General), who suggested as a punishment, 'reduction by two stages in the timescale of pay' which would affect the petitioner's future increments and pension. The Chief Minister at first thought, that dismissal would be the proper punishment, but on receipt of the petitioner's explanation, considered, that the lighter punishment of removal from service was sufficient. The learned Government Pleader has not succeeded in pointing to anything in the files which establishes, that the punishing authority expressly approved of the findings of the Commissioner, or came to an independent conclusion as to the guilt of the petitioner or at least realised, that the ultimate responsibility in finding the guilt, apart from imposing the punishment, was on itself, and not the Commissioner. This therefore lends support to the contention, which I accept that the attention of the punishing authority was focussed only on the question of punishment and not on the preliminary question of the guilt or innocence of the petitioner.

12. This is sufficient to vitiate Ext. P-6. Thethird contention formulated does not arise andneed not be considered. In view of my finding onthe first contention, it needs no mention, that Government can proceed from the stage at which Ext.P-6 was received, as it is only after that stage thatthe petitioner can justly be heard to complain ofwant of reasonable Opportunity. With these observations Ext. P-5 is quashed. There will be noorder as to costs.

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