1. This is a first appeal by the original plaintiff J. J. Mody who was appointed as regional publicity officer on 8 November, 1949. He was dismissed from service on 6 December, 1950 after having been suspended from service earlier, and a departmental inquiry was held into the allegations that he had made some defamatory aspersions against some Ministers of the Government of the Bombay State. This order of dismissal was, however, set aside in Civil Suit No. 10 of 1952 filed by the appellant. After the decision of that suit, the Government passed an order on 26 May, 1954 continuing his suspension from 6 December, 1950 and gave second notice to the appellant to show cause why he should not be removed from service. On 29 December, 1954, the Government passed an order dismissing the appellant from service. The present suit was thereupon filed by the appellant on 30 September, 1955 for a declaration that he is not guilty of any misconduct, that the second order of suspension dated 26 May, 1954, and the second order of dismissal, dated 20 December, 1954, are illegal, void, ultra vires and inoperative, that he still continues in service in the post which he held prior to his first suspension order, dated 9 March, 1950, and that he is entitled to all his salaries with progressive increments and allowances and other rights and amenities attached to his post. He has also prayed for an order on the State of Bombay to reinstate him in the post which which he held prior to his first suspension, dated 9 March, 1950, and for a decree for Rs. 11,945-13-0 for arrears of salary and dearness allowance. Lastly, he has prayed for costs of the suit. The suit was resisted by the State. The learned Civil Judge, Senior Division, dismissed the plaintiff's suit. In appeal the following points are urged :-
(1) The preliminary inquiry held by Mr. Aiyer, the Director of Publicity, on 7 March, 1950 was illegal as no reasonable opportunity had been given to the appellant in that inquiry.
(2) A subsequent departmental inquiry ordered by the order dated 29 June 1950 whereby Mr. Benjamin, the Collector of Baroda, was appointed as the inquiry officer, was vitiated by the fact that the inquiry officer, viz., the Collector of Baroda, is subordinate to one of the Ministers against whom aspersions were alleged to have been made.
(3) A statement admittedly signed by the appellant was extorted from him by pressure in the preliminary inquiry.
(4) Legal aid was not allowed, although the appellant had made a request for permission to engage a lawyer.
(5) The words stated to have been uttered by the appellant making aspersions against the two Ministers were uttered jokingly in the course of a private talk and do not amount to misconduct in law.
(6) The suspension order dated 26 May 1954 could not have any retrospective effect.
(7) No reasonable opportunity was given to the appellant to put forward his case at the departmental enquiry, because he was not allowed permission to engage a lawyer.
(8) The Public Service Commission had not been consulted and therefore the order of dismissal is vitiated and void.
2. As regards the alleged illegality of the preliminary inquiry conducted by Mr. Aiyer, the Director of Publicity, it is important to note that this alleged inquiry was conducted before a show-cause notice was give. It was, more or less, in the nature of collection of facts. Under Art. 311 of the Constitution, we have to see whether a reasonable opportunity had been given to the Government servant in question as contemplated in the said article. If a reasonable opportunity had not been give, then the order of dismissal would be bad. Even when a Court decides that an order of dismissal is bad in view of the provisions of Art. 311 of the Constitution, it does not hold that the departmental inquiry was illegal. What it holds is merely that a reasonable opportunity had not been given to the Government servant in question. We, therefore, do not propose to discuss the point as to the legality or otherwise of the preliminary inquiry which was conducted initially before a show-cause notice was given. The main question that the appellant has to prove is that no reasonable opportunity had been given to him as required by Art. 311 of the Constitution.
3. It is next contended that during the preliminary inquiry a statement signed by the appellant was extorted under pressure. This is a question of fact, which the Court has no jurisdiction to inquire into.
4. It is next contended that the Collector of Baroda, being a subordinate to the Revenue Minister, was biased against the appellant and that the departmental inquiry should not have been given to an officer of the Revenue Department. It is contended that the inquiry should have been entrusted to an officer of the Judicial Department. The learned counsel for the appellant relies on Baishnab Charan v. State of Orissa [A.I.R. 1957 Orissa 70]. However it is not necessary to refer this decision in view of the fact that the question had been decided by their lordships of the Supreme Court. In Maneklal v. Dr. Prem Chand [A.I.R. 1957 S.C. 425 at 429], their lordships have made the following observations :
'It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. As Viscount Cave, L.C., has observed in Frome United Breweries Company v. Bath Justices [1926 A.C. 588 at 590] :
'This rule has been asserted, not only in the case of the Courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as Judges of the rights of others.' In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a judge. But where pecuniary interest is not so attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. 'The principle', says Halsbury, 'nemo debet esse judex in cause propris sue precludes a justice,' who is interested in the subject-matter of a dispute, from acting as a justice therein.' [Halsbury's Laws of England, Vol. XXI, p. 535, Para. 952]. In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.'
5. But in the instant case there is nothing to show that the Collector of Baroda was in any way biased against the appellant. Simply because the allegations related to alleged aspersions made against the Revenue Minister, it cannot be said that the Collector of Baroda was biased against the appellant. The Collector of Baroda would not be biased against the appellant, if he was not satisfied that the appellant had made such aspersions. The question before the Collector was whether the appellant had, in fact, made such aspersions. It is therefore difficult to hold that on this question the Collector of Baroda was prejudiced against the appellant.
6. It is next contended that the Collector of Baroda did not follow the instructions given in the manual prepared by the Government of Bombay containing instructions for officers holding departmental inquiries. He has relied on Province of Bombay v. Madhukar Ganpat [53 Bom. L.R. 754], and, in particular on the following observations :
'A domestic tribunal was bound to act strictly according to its rules and was under an obligation to act honestly and in good faith.'
7. It is clear from the observations therein that the Judges of the Bombay High Court were referring to the rues under the Police Act. The manual of instructions relied on by the learned counsel for the appellant does not consist of statutory rules but merely consists of departmental instructions.
8. The learned counsel for the appellant also relies on the following observations in the same case :
'If the requirements of natural justice had been complied with, a Court of law would not act as a Court of appeal in reference to a decision of a domestic tribunal. In the body of his judgment Mr. Justice Blackwell referred to the observations of Lord Atkinson in Thompson v. British Medical Association (N.S.W. Branch) [1924 A.C. 764 at 778] :
'That decision if legal evidence be given in the course of the proceeding adequate to sustain it cannot, in the absence of some fundamental error, be impeached or set aside, save upon the ground that this body was interested, or biased, by corruption or otherwise or influenced by malice in deciding at it did decide.' and characterized them as obiter. Then, again, in Bell v. Royal Western India Turf Club [(1944) 47 Bom. L.R. 916] it was held that a domestic tribunal was not bound by the ordinary rules of evidence, nor was it bound to follow the procedure of the Courts of law or anything like it. It was not even bound to hear the parties, but might reach its decision even by correspondence. It was observed in that case that it was not even bound to act in a way that 'the man in the street' would necessarily regard as just. But even if we were to hold on the authority of Thompson v. British Medical Association (N.S.W. Branch) that adequate legal evidence is necessary to support a charge in an enquiry by a domestic tribunal, even then, in our opinion, there was adequate legal evidence in this case.'
9. It is, therefore, contended that there must be adequate legal evidence, and it is also argued that in fact there is no adequate evidence in the case, because there is only the evidence of Mr. N. K. Naik, who is on inimical terms with the appellant. There can be no doubt that there must be adequate legal evidence in a departmental inquiry. The observations relating to adequate evidence do not permit Courts to appreciate the evidence at a departmental inquiry or before a domestic tribunal. As observed in that very case itself, if the requirements of natural justice had been complied with, a Court of law would not act as a Court of appeal in reference to the decision of a domestic tribunal. We, therefore, do not propose to appreciate the evidence and to decide whether the officer holding the departmental inquiry was right or not in the conclusion which he had arrived at.
10. It is next contended that the departmental inquiry is vitiated because the appellant was not allowed to engage the services of a lawyer. That the appellant had made an application for permission to engage a lawyer and this permission was refused are admitted facts. It is, however, contended by the learned Government Pleader for the State that it is not necessary to give permission to a Government servant to engage a lawyer at an inquiry preceding the order of his dismissal. No doubt there is no provision in the Constitution or anywhere else making it obligatory on the officer holding the inquiry to give permission to the Government servant in question to engage the services of a lawyer. The main question in whether the provisions of Art. 311 of the Constitution have been complied with; in other words, whether a Government servant had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The question whether he had been given such a reasonable opportunity would always depend on the facts of each case and the circumstances of each case, and the question whether the appellant had been given a reasonable opportunity would depend on various considerations. In Khem Chand v. Union of India and others [1959 - I L.L.J. 167 at 175] their lordships of the supreme Court made the following observations :
'The Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the Government servant should have the opportunity to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and servant than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment.
The reasonable opportunity envisaged by the provisions 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 of 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.'
11. These observations are also referred to in Kapur Singh v. Union of India : 2SCR569 . It is true that in these cases the question whether a reasonable opportunity would include a permission to engage the services of a lawyer was not considered, because it did not arise for consideration on the facts of the case decided by the Supreme Court. In Nripendra Nath v. Chief Secretary, Government of West Bengal [1961 - II L.L.J. 312], the following observations were made :
'The petitioner's first grievance is that he was denied the use of a lawyer and, therefore, the principles of natural justice have been violated. Rule 55, which I have quoted elsewhere, expressly requires 'adequate opportunity' to be given to the public servants. The question then is, can the assistance of a lawyer be regarded as part of such 'adequate opportunity'. The learned Advocate-General has relied on the well-known authority of Rajagopala Ayyangar v. Collector of Salt Revenue, Madras [I.L.R. 1938 Mad. 127 (A.I.R. 1937 Mad. 735)] and contended that the words 'to be heard in person in rule 55 of the Civil Services (classification, Control and Appeal) Rules expressly excludes the right to be represented by a lawyer in support of this contention. He has cited other authorities of Quadratullah v. N. W. F. Province Veeraswami v. Province of Madras [A.I.R. 1948 Mad 379]; Lakshmi Narayan Gupta v. A. N. Puri : AIR1954Cal335 ; Karuppa Udayar v. State of Madras [1956 - II L.L.J. 343] and Punjab State v. Bhagat Singh [A.I.R. 1955 Punj. 118 at 122].
The question now in India has to be judged not only on the expression 'adequate opportunity' and 'be heard in person' in rule 55 but also in the light of the expression 'a reasonable opportunity of showing cause' in Art. 311(2) of the Constitution. If on the particular facts and complexity of a case, assistance of a lawyer is regarded as a part of reasonable opportunity, then denial of such an opportunity is violation alike of the constitutional protection under Art. 311(2) and the principles of natural justice. The leading authority of the case of I.L.R. 1938 Mad. 127 and the decision of the Federal Court and other Courts on the same subject, did not have occasion to consider this in the light of the Constitution. Assistance of a lawyer cannot always be regarded as a part of 'reasonable opportunity to show cause.' Courts in India on the particular facts of some cases have held that assistance of a lawyer was not part of a reasonable opportunity. It may on the facts of a particular case be a luxury, unnecessary or immaterial. What is reasonable opportunity in the Indian Constitutional context of Art. 311(2) will depend on the facts of each case and the Constitution has laid down no hard and fact rule by defining reasonable opportunity for all cases.'
12. In R. C. Verma v. R. D. Verma : AIR1958All532 , the following observations were made :
'It is true that in the departmental trials the petitioner is not entitled to claim as a matter of right facility for legal advice, but the refusal to afford a reasonable opportunity to take the legal advice when viewed in the light of other circumstances may legitimately lead to the inference that the petitioner was not given a reasonable opportunity.'
13. In Dr. K. S. Rao v. State of Hyderabad (now Andhra Pradesh) [1958 - I L.L.J. 206], the following observations were made :
'The petitioner replied that, having regard to his status and the fact that he wished to challenge the correctness of the opinion of the Medical Board, his case required to be handled by an advocate. But that simple request was refused. It might be that, in the opinion of the enquiry officer, the case did not require specialised professional help, but from the point of view of the petitioner, it was a serious matter which affected his official career and which might, as indeed it has happened in this case, result in his dismissal from service. Rightly or wrongly when the petitioner was under a reasonable apprehension that the enquiry was the result of a preconceived plan and a concerted action on the part of the Medical Department, his request for professional help was certainly justified and the enquiry officer should have given him that opportunity. His refusal to accede to that simple request has certainly deprived the petitioner in the circumstances of the case of an opportunity to defend himself.'
14. With respect, we agree with the view that whether the refusal to give permission to engage a lawyer would amount to the failure to give a reasonable opportunity to show cause for purposes of Art. 311 of the Constitution, would depend on the facts and the circumstances of each case. In the instant case the matter is quite simple. The appellant was alleged to have made defamatory aspersions against some Ministers of the Government. The question whether he had made these aspersions or not was a matter for the departmental inquiry to decide. It is true that whether the making of such aspersions would amount to misconduct in law was not directly a matter for decision before the officer holding the departmental inquiry. That question was a matter for decision by the officer deciding the question whether to impose a penalty. If the aspersions do not amount to misconduct in law, it would also be open to the appellant to urge that argument in a Court of law. We, therefore, feel that this was not a case in which the omission to give permission to engage a lawyer would amount to failure to give reasonable opportunity.
15. It is next urged that while passing the order of dismissal the Government did not consult the Public Service Commission as required by Art. 320 of the Constitution. But their lordships of the Supreme Court have decided in State of U.P. v. Manbodhan Lal [1958 - II L.L.J. 273] as follows :
'Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ.
On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the provisions of Art. 311 have been complied with in this case - and it has not been contended at any stage that they had not been complied with - he has no remedy against any irregularity that the State Government may have committed.
Unless it can be held, and we are not prepared to hold, that Art. 320(3)(c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.'
16. On this point, an application for amendment of the plaint was given to the trial Court and it was rejected on the ground that it had been given at the time of the hearing of arguments. The learned Judge has not referred to the observations contained in 1958 - II L.L.J. 273, referred to above, but he referred to D. A. Koregaonker v. State of Bombay [1957 - II L.L.J. 23], wherein it is held that the provisions of Art. 320(3)(c) of the Constitution of India are mandatory and that non-observance would vitiate any order passed by the Government imposing a penalty upon a public servant. We fell that the learned Judge should have allowed the application for amendment of the plaint. In fact, the plaintiff had put questions in the cross-examination of one of the defendants' witnesses referring to the necessity for consultation with Public Service Commission. In any case, this was not a question of law and the only thing that the Government had to prove was whether to show that the Public Service Commission had been consulted or to show that in the case of the appellant such consultation was not necessary. In these circumstances the application for amendment should have been allowed. In fact, there was no need for amendment of the plaint because the fact that the order of dismissal is illegal has been set out in the plaint. The fact that it is illegal may be due to several reasons and several arguments may be advanced to show that it was illegal, and it is not necessary to set out in the plaint all the arguments in support of the plea. It is true that the fact that the Public Service Commission had not been consulted had not been set out in the plaint. But this was a point within the special knowledge of the defendant and, in these circumstances, no amendment of the plaint was really necessary. However, in view of the declaration of law contained in the judgment of their lordships of the Supreme Court in 1958 - II L.L.J. 273, it is not necessary to consider this contention.
17. It is also contended that even assuming that the defamatory remarks had been made by the appellant against the two of the Ministers of the Government, that itself, would not amount to misconduct in law. It is conceded by the learned Government Pleader that the utterance of such remarks does not amount to an offence under the Government Servants' Discipline and Conduct Rules. But the appellant is in the position of servant of the Government of the State and the Government of the State is in the position of a master. General principles relating to master and servant would therefore apply. A master is entitled to dismiss his servant for various reasons and some of them are as follows :
(i) Where the act or conduct of the servant is prejudicial or likely to be prejudicial to the interest of the master or to the reputation of the master;
(ii) where the act or conduct of the servant is inconsistent or incompatible with the due or peaceful discharge of his duty to his master;
(iii) where the act or conduct of a servant makes it unsafe for the employer to retain him in service;
(iv) where the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;
(v) where the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;
(vi) where the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;
(vii) where the servant is abusive or if he disturbs the peace at the place of his employment;
(viii) where the servant is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant;
(ix) where the servant is habitually negligent in respect of the duties for which he is engaged; and
(x) where the neglect of the servant though isolated, tends to cause serious consequences.
18. This enumeration is not exhaustive. But the case of the appellant would fall under at least two of the grounds enumerated above. The remarks made by the appellant would lower the reputation of the Ministers.
19. It is true that the Government of the State is carried on in the name of the Governor - vide Art. 154 of the Constitution. But under Art. 166(3) of the Constitution, it can be said that the Ministers are a part of the Government. In this view, the remarks made by the appellant have a tendency to affect the reputation of his master and the master is, therefore, entitled to dismiss his servant for such reasons. There is therefore, no merit in this contention urged by the appellant.
20. It is lastly urged that the suspension order dated 26 May 1954 could not have retrospective effect. The first order of suspension is at Ex. 92 and by that order that Government of Bombay directed that the appellant should be placed under suspension with effect from the date on which the order was received by him pending the disposal of the departmental inquiry into his conduct. The inquiry officer submitted his report and the Government passed an order of the dismissal of the appellant on 6 December, 1950 and naturally, after the appellant came to be dismissed, he can no longer be held as an officer under suspension. The order of suspension, therefore, came to an end with the order of his dismissal. But, as a result of the suit filed in the civil court, the order of dismissal was declared to be void. On 26 May, 1954, the Government passed a second order continuing the previous order of suspension. This order can be treated as fresh order of suspension of the appellant. In fact, it purports to be a continuation of the previous order of suspension. As already observed, in view of the terms of the first order of suspension, that order came to an end on 6 December, 1950 when the appellant was dismissed. Even apart from the wording of the first order of suspension, the order of suspension must be deemed to terminate on the date of the order of dismissal, because a Government servant cannot be dismissed and placed under suspension at the same time. As observed by their lordships of the Supreme Court in Om Prakash Gupta v. State of Uttar Pradesh [1956 - I L.L.J. 1] with the order of dismissal the order of suspension lapses and the order of dismissal replaces the order of suspension, which then ceases to exist. The subsequent declaration by the civil court that the order of dismissal was bad could not revive the suspension order when it did not exist. By reason of the order of the civil court, the appellant was deemed to be continuing in service. He continued in service until he was suspended from service. Such an order of suspension was passed on 26 May, 1954, and the appellant must be deemed to be placed under suspension from 26 May, 1954, and the order of suspension cannot suspend an officer with retrospective effect from an earlier date, because a Government servant in the absence of an order of suspension must be deemed to have been in service. We, therefore, hold that the order of suspension cannot have any retrospective effect and would have effect only from the date of the order, i.e., 26 May, 1954. But, by virtue of the order of the civil court in the first litigation, the appellant was deemed to be in service. Ordinarily, therefore, the appellant would be entitled to salary for the period between the date of his dismissal, namely, 6 December, 1950, and the date of his second suspension, namely, 26 May, 1954. But his plaint for part of this period is barred by limitation as the suit was filed on 30 September, 1955. For wages or salary the period of limitation is three years, to which two months have to be added, because a notice of two months is necessary under the provisions of S. 80, Civil Procedure Code - vide S. 15 of the Limitation Act. As the suit was filed on 30 September, 1955 the appellant would therefore be entitled to salary from 30 July, 1952 to 26 May, 1954, the date of the second order of suspension. It is admitted that for the first year of this period the appellant would have been entitled to a pay of Rs. 310 per month including dearness allowance and during the next ten months, he would have been entitled to Rs. 325 including the dearness allowance. He would, therefore, be entitled to an amount of Rs. 6,950 but for the fact that he drew salary of Rs. 2,970 during these 22 months by accepting another employment at the rate of Rs. 90 plus dearness allowance at the rate of Rs. 45 per month. This figure is conceded by learned counsel for both sides. In arriving at this figure, the subsistence allowance at Rs. 70 per month payable to the appellant for 7 months, which has not been drawn by him, has not been taken into account. The appellant would therefore be entitled to Rs. 3,980 by reason of the fact that the second order of suspension could not have retrospective effect. In the result, the judgment of the lower Court is confirmed with a modification, and the appellant is declared to be entitled to Rs. 3,980 together with interest at 4 per cent per annum from 26 May, 1954. The plaintiff will get proportionate costs of the suit as well as of the appeal from the defendant. The respondent-defendant will bear its own costs of the appeal of the appeal and the suit.
[Note. - Subsequent to this order it was represented that there was an arithmetical error. Both sides agreed that the figure Rs. 3,980 in the last paragraph of the above order should be Rs. 4,303.95. By as order of the Court dated 8 September, 1961, the figure Rs. 3,980 was altered to Rs. 4,303.95].