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The State of Bombay (Now the Gujarat State) Vs. Raojibhai Motibhai Patel - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberA.F.O.D. No. 94 of 1960
Judge
Reported inAIR1961Guj130; (1961)GLR331
ActsConstitution of India - Article 311 and 311(2)
AppellantThe State of Bombay (Now the Gujarat State)
RespondentRaojibhai Motibhai Patel
Appellant Advocate B.R. Sompura, Asst. Govt. Pleader
Respondent Advocate N.C. Shah, Adv.
DispositionAppeal dismissed
Cases ReferredSisir Kumar Das v. State of West Bengal
Excerpt:
service - representation - article 311 of constitution of india - delinquent employee should be given fair opportunity to deny his guilt and establish innocence - employee should have fair opportunity to answer charges levelled against him - employee entitled to make representation both on merit as well as quantum of punishment - violation of this principle offends article 311. - - the inquiry officer recommended that in view of the gravity of the offences, the punishment of dismissal should be meted out to the plaintiff. if these rules arc satisfied, the inquiry is not open to attack on the ground that the procedure laid down in the evidence act for taking evidence was not strictly followed. ' 8. as to what are the rules of natural justice, it is not always easy to define them and.....mehta, j.1. this is an appeal by the former state of bombay against the judgment and decree passed by the learned joint civil judge, senior division, ahmedabad, declaring an order of dismissal passed against the plaintiff to be illegal, ultra vires and void and that the plaintiff continues to be in the service of the state.2. the plaintiff joined the excise department of the former bombay state as a sub-inspector in 1926. at the relevant time in december 1948, the plaintiff was an assistant inspector of excise, eastern division, ahmedabad. the allegation of the state against the plaintiff was that one chhotu raiji had given information to the effect that police patel narsibhai ranchhodbbai of maroli village and another police patel fakirbhai khushalbhai of village vasai, both villages.....
Judgment:

Mehta, J.

1. This is an appeal by the former State of Bombay against the judgment and decree passed by the learned Joint Civil Judge, Senior Division, Ahmedabad, declaring an order of dismissal passed against the plaintiff to be illegal, ultra vires and void and that the plaintiff continues to be in the service of the State.

2. The plaintiff joined the Excise Department of the former Bombay State as a Sub-Inspector in 1926. At the relevant time in December 1948, the plaintiff was an Assistant Inspector of Excise, Eastern Division, Ahmedabad. The allegation of the State against the plaintiff was that one Chhotu Raiji had given information to the effect that Police Patel Narsibhai Ranchhodbbai of Maroli village and another Police Patel Fakirbhai Khushalbhai of village Vasai, both villages being within the plaintiff's charge, were dealing in illicit liquor to one Excise Sub-Inspector Mr. P. Y. Pradhan, who was working out the case. In the meanwhile this information was passed on to the plaintiff by an Excise Constable. The plaintiff arranged to trap these two Police Patels and their associates -- one Dahya Luhar and one Dafer Puna Taiyab, who is a camel-man. The raid was carried out, according to the defendants, by the plaintiff with the assistance of the Chief Excise Inspector, R. D. Desai and Sub-Inspectors Karanjgaonkar, Pradhan, Trivedi and Pandya and some Excise Constables on the night of 17th January 1948; that an offence was detected and that the said two Police Patels and their associates were arrested including the Muddamal liquor and brought the same night to Ahmedabad; that a Panchnama was pretended to be made on the spot though actually no Panchnama was made on the spot. The allegation of the Department was that on reaching Ahmedabad, only Dahya Luhar and Dafer Puna were put into the lock-up by the plaintiff while the two Police Patels were allowed to go scot-free; that subsequently even Dahya Luhar was discharged and that the plaintiff then asked Sub-Inspector Pradhan to take up the investigation. Sub-Inspector Pradhan, however, expressed his unwillingness on 20th January 1948 to do this job. The plaintiff then himself took up the investigation of the case and, it was the Department's case, that he charge-sheeted only Dafer Puna Taiyah. Even the preliminary case report was delayed and submitted by the plaintiff on 22nd January 1948 instead on the same day of the raid as required by the departmental orders. The case of the Department further was that the plaintiff made the accused Dafer Puna to confess his guilt before the learned Magistrate and on his confession Dafer Puna was summarily convicted and sentenced to three months' R. I. and to pay a fine of Rs. 500/-, in default to suffer further R. I. for three months and the Dafer's camel which brought the contraband liquor was confiscated. Chhotu Raiji on learning about this conviction from Press reports, sent an application to the Congress House, which resulted in a preliminary inquiry by the Anti-Corruption Branch Sub-Inspector Rana against the plaintiff. The plaintiff's case was that the real informant was Fakirbhai Khushalbhai and not Chhotu Raiji and that the allegations against him were engineered at the instance of designing persons, including Sub-Inspectors Pradhan and Karanjgaonkar; that Chhotu expected to get a reward; that only one accused was arrested and that the Panchnama was actually made on the spot. Consequent, however, upon the report of Sub-Inspector Rana after his preliminary inquiry, the plaintiff was suspended by the Commissioner of Excise on 1-12-1948. The Deputy Commissioner of Excise, Bombay, Mr. A. U. Sheikh, was appointed to conduct an inquiry against the plaintiff. On 13th January 1949, a charge-sheet containing four charges was delivered to the plaintiff. The four charges were :

(1) That the plaintiff made a statement before a public servant, which he knew or had reason to believe to be false, viz. (a) that he received the information from Fakirbhai Khushalbhai (b) that only one accused was arrested on the spot (c) that only one accused was brought to Ahmedabad; and (d) that a Panchnama was drawn on the spot.

(2) That he intentionally and deliberately screened the three actual offenders said two Police Patels and the said Dahya Luhar.

(3) That he fabricated a false Panchnama; and

(4) That he delayed making the preliminary case report till 22nd January 1948 in contravention of the orders of the Superintendent of Excise.

3. The plaintiff was called upon to put in his Written Statement within 15 days of the receipt of the charge-sheet and also to state whether he wished that any witnesses should be examined to prove the above charges (probably another way of asking him whether he confessed his guilt), to cross-examine any of the witnesses or to produce any witness on his behalf. He was also asked to state if he wished to be heard in person on the above charges. The charge-sheet was accompanied by a list of witnesses and their statements and other documents on which the Department intended to rely in support of the charges. The plaintiff filed his Written Statement on 26th June 1949 and gave a list of defence witnesses. The inquiry was held on 16th, 17th and 18th February and 31st May 1950. On 29th June 1950, the Inquiry Officer made his report holding that all the charges were proved. The fourth charge of delayed preliminary report was actually admitted by the plaintiff. The Inquiry Officer recommended that in view of the gravity of the offences, the punishment of dismissal should be meted out to the plaintiff. A show-cause notice was issued by the Director of Prohibition and Excise on 1st February 1951 asking the plaintiff to show-cause why the punishment of dismissal should not be meted out to him. The plaintiff gave his reply on 14th February 1951. The Director of Prohibition and Excise by his order dated 26th June 1951 dismissed the plaintiff with effect from the said date. The plaintiff preferred appeals to the Minister for Excise and Prohibition and also to the Chief Minister, which were also dismissed. After giving the statutory notice under Section 80 of the Civil Procedure Code, the plaintiff has filed the present suit for a declaration that the said dismissal order is void and illegal in that (1) the inquiry was not carried out strictly according to the Bombay Civil Service Conduct, Discipline and Appeal Rules; (2) that it was against the rules of natural justice; (3) that it was conducted with prejudice and malice and (4) that after the second show-cause notice, he was not given a reasonable opportunity to be heard on merits and that the officer concerned asked him to confine himself only to the question of the quantum of punishment.

4. It may be stated that the plaintiff has not asked for the arrears of salary but he has asked for a further declaration that he continues to be in service. It may he mentioned that no particulars are given in the plaint in regard to the first three grounds of attack beyond allegations in general terms but during the evidence stage they were substantially crystallized to the effect that the plaintiff was not supplied with the reports of the preliminary Inquiry Officer, Sub-Inspector Rana, which resulted in the departmental proceedings against the plaintiff, and the Superintendent of Excise, Mr. Vyas, and also that certain relevant documents were not supplied to him, viz., Chhotu Raiji's application for making inquiry as also the statements of Police Patel Fakirbhai Khushalbhai and Chief Excise Inspector, Mr. Desai. It was further crystallized during the evidence stage in the form of a complaint made by the plaintiff against the validity of the dismissal order that the convict Dafer Puna in Jail made a statement before Sub-Inspector Rana in the preliminary inquiry and that the statement was admitted in evidence without the said Dafer Puna being himself examined in the inquiry proceedings and the plaintiff being given an opportunity to cross-examine him. Such was also the complaint in regard to the statement of Fakirbhai Khushalbhai. The complaint of the plaintiff was that Fakirbhai was not examined as a witness by the Department and notwithstanding that fact his statement before Sub-Inspector Rana was used by the Inquiry Officer in his report against the plaintiff without the plaintiff being given an opportunity of cross-examination. It was further crystallized that the Inquiry Officer conducted the proceedings with malice and prejudice and it was stated in this connection that on one occasion during the progress of the inquiry, the Inquiry Officer met Chhotu Raiji behind the back of the plaintiff. The final ground, as mentioned above, was that on the second show-cause notice the plaintiff was not heard on merits but was asked to confine himself only to the quantum of the punishment. On these grounds it was pleaded by the plaintiff in the present suit that the order of dismissal contravened the constitutional guarantee contained in Article 311(2) of the Constitution and was, therefore, void and illegal.

5. The defence of the State on the other handis that the suit is not maintainable; that the dismissal order is legal and valid; that there was noprejudice or malice in the Inquiry Officer; that theplaintiff was given a reasonable opportunity of being heard also after the second show-cause noticewas given to him and further that there was noviolation of the Bombay Civil Service Conduct, Discipline and Appeal Rules and that the rules ofnatural justice were not infringed as alleged by theplaintiff or at all.

6. The learned trial Judge held that the suit was maintainable; that the inquiry was not in accordance with the Bombay Civil Service Conduct, Discipline and Appeal Rules and that the said relevant documents were not supplied to the plaintiff, which prejudiced him in his defence and violated the principles of natural justice. The learned trial Judge also held that the use of Dafer Puna's statement recorded by Sub-Inspector Rana, without an opportunity being given to the plaintiff for cross-examination, violated the rules of natural justice. He also held that the Inquiry Officer met witness Chhotu at night when the inquiry was proceeding, and that it was most objectionable and prejudiced the plaintiff's case. The learned trial Judge also held that after the second show-cause notice, the plaintiff was not heard on merits and it violated the provisions of Article 311(2) of the Constitution. On the general question of malice and prejudice, the learned trial Judge found against the plaintiff. The learned trial Judge came to the conclusion that the plaintiff did not get a reasonable opportunity of defending himself as contemplated in Article 311(2) of the Constitution and that, therefore, the dismissal order was void and illegal and that the plaintiff continued to be in service. It may be mentioned that the plaintiff has actually reached the age of superannuation in 1956 while the judgment of the trial Court was delivered on 30th March 1957. We shall now proceed to examine each of the attacks made on the validity of the said dismissal order.

7. Before we deal with the various points raised by the learned Assistant Government Pleader, it would be convenient if we mention the legal approach to the different questions which have been raised before us. It is the plaintiff's case that the dismissal order was vitiated as it violated the provisions of Article 311(2) of the Constitution which provides as follows :

'No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'

In other words, the gravamen of the plaintiffs contention is that in regard to the dismissal order, which is passed against him, he has not been afforded a reasonable opportunity of defending himself. The above provision of the Constitution has been interpreted by the Supreme Court in : (1) Parshotam Lal Dhingra v. Union of India, (1958) SCR 828: (AIR 1958 SC 36) and (2) Khem Chand v. Union of India, (1958) SCR 1030 : (AIR 1958 SC 300). As we read these two decisions, the following position seems to be established in regard to the protection afforded to a Civil Servant under the provisions of Article 311(2), viz.-- (1) that the Civil Servant concerned should be told the charge or charges levelled against him and (2) he should be given a statement of allegations (evidence in support of the charges) in support of the charge or charges. Further in support of the charges, evidence should be led in the presence of the delinquent and he must be given an opportunity of cross-examination of witnesses, who give evidence against him.

Further, the delinquent should be given a reasonable opportunity to lead evidence in his defence. After this is done, the Inquiry Officer applies his mind and if he comes to the conclusion that the charges against the Civil Servant are proved and if he proposes any of the three kinds of punishments, viz., dismissal, removal or reduction in rank, the Civil Servant should be given an opportunity to make his representation as to why the punishment, which is proposed to be meted out to him, should not he inflicted and in making such a representation, the Civil Servant is entitled to show either that he has not been guilty of any misconduct to merit any punishment at all or that the particular punishment proposed to be given is much more drastic and severe than he deserves. Implicit in the above statement is the position that the penalty which is proposed to be inflicted can only be provisionally determined after an inquiry is held, in other words, after the evidence in support of the charges is led and the defendant is allowed to cross-examine and lead evidence in defence on the charges against him, in regard to which he has been previously told what the evidence in support of the charge is. The constitutional guarantee implies that the defendant should be given a reasonable opportunity to show cause against the punishment which is proposed to be inflicted on him and further that this opportunity means that the defendant is entitled then to show that he is not guilty of the charge as also to show that the punishment is too drastic or severe than what ho merits. These requirements must be met with in compliance with the provisions of Article 311(2) of the Constitution. In this connection, reference may also be made to the case of AIR 1957 SC 892 at p. 895), where the Supreme Court has observed that the inquiry contemplated under Article 311(2) must be formal and must satisfy the rules of natural justice and the requirements of Article 311(2). As to what the rules of natural justice are in this connection it has been observed by the Supreme Court in case of The Union of India v. T. R. Varma, (1958) SCR 499, at page 507 : ((S) AIR 1957 SC 882 at p. 885), as follows ;

'The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law, Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules arc satisfied, the inquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.'

8. As to what are the rules of natural justice, it is not always easy to define them and in this connection we cannot do better than refer to the observations of Lord Justice Tucker in Russell v. Duke of Norfolk, (1949) 1 All ER 109, cited by Barman J. in the case of Byrne v. Kinematograph Renters Society Ltd., (1958) 1 WLR 762, on p. 784, as follows:

'There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.'

In regard to the inquiry against a Civil Servant and the compliance of the constitutional guarantee, however, as we have stated earlier that broadly speaking the rules of natural justice which are required to be complied have been stated by the Supreme Court in the above cited T. R. Varma's case, 1958 SCR 499: ((S) AIR 1957 SC 882). Bearing this legal approach in mind, we shall now come to the several contentions raised in this appeal.

9. Now, the first submission that has been made by the learned Assistant Government Pleader is that though the use of the statement of Dafer Puna was made by the Inquiry Officer in the report, the use that has been made is not substantial. In other words, that it was a minor kind of use which has been made and that, therefore, it does not confravene the rules of natural justice. In this connection our attention was drawn to the report of the Inquiry Officer, wherein reference has been made to the statement of Dafer Puna by the Inquiry Officer. A reference to the report on this point shows that after analysing the evidence of Chhotu Raiji, who was the person responsible for setting in motion the machinery for Departmental Inquiry against the plaintiff and was an important witness, the Inquiry Officer proceeds to discuss the statement of Dafer Puna in detail and says that the statement of Dafer Puna can be admitted in evidence for the purpose of corroboration at least. It is the contention of the learned Assistant Government Pleader that the use that is made of the statement of Puna is for the purpose of corroboration and not for the purpose of main evidence and that, therefore, the rules of natural justice are not infringed. We are unable to agree with this contention. In the first place, the use that has been made cannot, by any stretch of imagination, be said to be subsidiary or nominal. The use of evidence as corroboration is a substantial use of evidence as such. In this case, the corroboration is of a witness, viz., Chhotu Raiji, who is an interested witness before the Inquiry Officer. In these circumstances, it is impossible to accept the suggestion that the use that was made was either nominal or subsidiary. Proceeding further, however, it is also not possible for us to accept the suggestion that the Inquiry Officer was entitled to use the statement of a witness, which witness has not been examined before him and in regard to whom an opportunity of cross-examining is not given to the delinquent. This is one of the essential requirements of the provisions of Article 311(2) of the Constitution, as has been referred to by us in a previous part of this Judgment. It is an important right guaranteed by tilt Constitution to a Civil servant against whom disciplinary action is taken and against whom evidence is recorded that he should be given an opportunity of cross-examining the witnesses, who have given evidence against him. It was contended on behalf of the State that in this case, the witness was not available as the Dafer was a wandering camel-man and his whereabouts were not known and, therefore, on a parity with Section 33 of the Indian Evidence Act and applying the same reasoning and the spirit, the statement of such a witness can be admitted in evidence by the Inquiry Officer. In this connection, we were referred to the observations of the Calcutta High Court in the case of Sisir Kumar Das v. State of West Bengal, (S) AIR 1955 Cal 183, at Page 184, as follows :

'In departmental proceedings, the strict laws of evidence according to the Evidence Act are not applicable. Police Officers holding departmental enquiries are not expected to act like trained lawyers who can either decide whether the evidence adduced is in strict conformity with the rules laid down by the Evidence Act, or to sift the evidence in a strictly legal manner as could be done by a Judge trained in law.'

We do not think that this passage can lend any support to the contentions of the learned Assistant Government Pleader. It is an established principle that in departmental proceedings, the rules of evidence according to the Evidence Act are not applicable. Nonetheless, it has been accepted by the Supreme Court that the right to cross-examine a witness who has given evidence against a delinquent in departmental proceedings is a safeguard, which is implicit in Article 311(2) of the Constitution. Assuming however that the reasoning of Section 33 applies, even so, it is not applicable to the instant case, for in regard to the statement of Dafer Puna, which is considered by the Inquiry Officer, other objections apart, no right or opportunity of cross-examining was given to the delinquent at the time when his statement was taken by Sub-Inspector Rana of the Anti-Corruption Branch, when Dafer was serving his term of imprisonment in Sabermati Jail and further at that preliminary stage the delinquent was not a party to the proceedings. In our view, therefore, the use made by the Inquiry Officer of the statement of Dafer Puna in these inquiry proceedings is contrary to the protection implicit in the provisions of Article 311(2) of the Constitution, in that Dafer Puna's statement was used without an opportunity being given to the delinquent of cross-examination. That alone is sufficient to vitiate the inquiry proceedings and the dismissal order which is based on it. On the same fooling stands the complaint of the plaintiff in regard to the use of the statement of Fakirbhai Khushalbhai. The statement ot Fakir-bhai was also recorded by the Preliminary Inquiry Officer Rana. Fakirbhai was not examined as a witness before the Inquiry Officer and no opportunity of cross-examination was given to the plaintiff and yet the statement of Fakirbhai has been used by the Inquiry Officer in his report against the delinquent. This defect is also as vital as the one in regard to the statement of Dafer Puna and equally vitiates the inquiry proceedings.

9a. In connection with the non-supply of the report of Sub-Inspector Rana, who made his report of the preliminary inquiry, it was contended by the learned Assistant Government Pleader that it was not necessary for the Inquiry Officer to give a copy of that report to the plaintiff. The reasons given were that Rana's report has not been referred to by the Inquiry Officer in his report and further that Rana's report is not referred to either in the charges levelled against the plaintiff or in the statement of allegations made against the plaintiff and copies of which were supplied to him. We accept the contention of the learned Assistant Government Pleader in this regard for we find that the Inquiry Officer has not relied on Sub-Inspector Rana's report and secondly also that this report of Sub-Inspector Rana has not been referred to either in the charge or charges against the plaintiff or in the statement of allegations supplied to the plaintiff. In this connection, therefore, we do not think that the learned trial Judge was right in treating this as one of the vital flaws in the inquiry proceedings.

10. Next, it was contended on behalf of the State that the Inquiry Officer was justified in withholding the report of the Superintendent of Excise, Mr. Vyas, from the plaintiff. In this connection also, the position is similar to the one in regard to the report of Sub-Inspector Rana, for the report of Mr. Vyas has not been referred to in the Inquiry Officer's report. Nor has it been referred to in the charges against the plaintiff; nor in the statement of allegations in support of the charges. Therefore, in this regard also we are of the view that the learned trial Judge was in error, with respect, in thinking that non-supply of the report of Mr. Vyas was also one of the vital errors in the inquiry proceedings,

11. Next, we come to the complaint of the plaintiff in regard to the non-supply of Chhotu Raiji's first information to Sub-Inspector Pradhan. Here it has been contended by the learned Assistant Government Pleader that, in the first instance, there is nothing on the record to show that the plaintiff ever asked for this document and secondly, that, if reference is made to the reply, which the plaintiff has given to the show-cause notice, it is apparent that the plaintiff was in possession of this information. We are in agreement with the contention of the learned Assistant Government Pleader on this point. In the first place, there is nothing on record to show that the plaintiff ever asked for this document and in the second place, on a perusal of the reply which the plaintiff has given in answer to the second show-cause notice, the plaintiff himself has referred to the contents of this document. It is obvious, therefore, that there is no substance in this complaint of the plaintiff and that the conclusion of the learned trial Judge against the State in this respect also is not justified.

12. Next, we come to the plaintiff's complaint for the non-supply of Chhotu Raiji's application for further inquiry, which he made to the Congress House against the plaintiff, after he came to know about the conviction of Dafer Puna. In this regard also, it is pointed out by the learned Assistant Government Pleader that there is nothing on the record to show that it was not supplied to the plaintiff or that he ever asked for it. We accept the contention of the learned Assistant Government Pleader in this respect also and we find that the complaint of the plaintiff on this score is not at all justified and the conclusion of the learned trial Judge on this point is, in our view, with respect, erroneous.

13. Next, we come to the State's contention that the learned trial Judge's conclusion in regard to the alleged meeting between the Inquiry Officer and Chhotu Raiji in the Circuit House when the inquiry was in progress and that it must have prejudiced the plaintiff's case before the Inquiry Officer, is not justified. In this regard, the evidence consists of the statement of the plaintiff in his deposition to the effect that the Inquiry Officer called Chhotu Raiji on the 17th February 1950 at 9 p.m. in the Circuit House, where the Inquiry Officer was staying. He has further stated that Chhotu had admitted before the Inquiry Officer that he was called by the Inquiry Officer at night and further the plaintiff has stated in his cross-examination that he had seen Chhotu standing on the first floor gallery of the Circuit House on the night of 17th February 1950, when he was returning from Camp Hanuman. This is the evidence on which the finding of the learned trial Judge is based. It may be pointed out that the statement that the witness saw Chhotu standing on the first-floor gallery of the Circuit House on the night of 17th February, when he was returning from Camp Hanuman, cannot lead to the conclusion that there was a meeting between the Inquiry Officer and Chhotu. Further the statement that Chhotu admitted that he was called by the Inquiry Officer at night in the plaintiff's deposition amounts to hearsay, which is inadmissible in evidence. Further, the statement that at 9 p. m. on the 17th February, Chhotu was called by the Inquiry Officer in the Circuit House, where the officer was staying, in obviously again hearsay, for the witness has not stated that he was present when Chhotu was called. In this state of evidence it is not possible for us to say that there is cogent evidence to the effect that there was any secret talk between the Inquiry Officer and Chhotu or in regard to the nature of that talk. In these circumstances, we think that the conclusion of the learned trial Judge was erroneous in this respect that as there was a secret talk between the Inquiry Officer and Chhotu and that the plaintiff's case must have been prejudiced before the Inquiry Officer, We also find little substance in the plaintiff's contention accepted by the learned trial Judge that he was prejudiced by the non-supplying to him of the Statement of the Excise Inspector Desai, who was a co-accused in the inquiry in question and whose statement was recorded by Mr. Rana. No use has been in our view made of this statement either in the charges or the statement of allegations in the report of the Inquiry Officer. This objection of the plaintiff, therefore cannot be sustained.

14. Next we come to the complaint of the plaintiff that he was not heard on merits after the second show-cause notice. It is contended on behalf of the State firstly that the plaintiff was heard on merits; and secondly, that if he was not heard, it was not necessary that he should be heard on merits at the time of the second show-cause notice, for the reason that at an earlier stage he had sufficient opportunity to be heard on merits. In this respect, we may refer to Ex. 70, which was brought to our notice by the learned Assistant Government Pleader, which is the dismissal order, dated the 26th June 1951, passed by the Director of Excise and Prohibition. The dismissal order is headed this way:

'Read:-- This office circular No. 31-140/48, dated 13th January 1949 framing Departmental charges against Shri R. M. Patel, Excise Asstt. Inspector under suspension.

(2) Written statement of Defence dated 22nd June 1949 and 16th June 1950 from Shri R. M. Patel.

(3) This office letter No. C. 31/18/51 (Estt. II) dated 1st February 1951 forwarding a copy of findings of the inquiry officer into oral inquiry made against Shri Patel and Desai and calling upon him to show cause why he should not be dismissed from Government service.

(4) Reply dated 24th February 1951 from Shri R. M. Patel to show cause notice'.

It was contended from this statement 'Read' at the top of the dismissal order that it was after reading these documents that the dismissal order was passed. In other words, it was contended that the Director of Excise and Prohibition, who passed the dismissal Older, had taken into consideration the reply of the plaintiff to the second show-cause notice on merits. Prima facie, the argument seems to be plausible but if one proceeds further and takes into account the language of the dismissal order, in para 2 it will be apparent that it cannot be said that the Director of Excise and Prohibition had considered the explanation of the plaintiff on merits in answer to the second show-cause notice. In para 2, amongst other things, it is stated as follows:

'On Shree R. M. Patel's denying the charges as I, II and III above, the Deputy Commissioner of Prohibition and Excise was directed by the Commissioner to hold oral inquiry in the charges. The Deputy Commissioner completed the inquiries, heard Shree R. M. Patel personally and then submitted the report of his findings with reasons. The Director of Excise and Prohibition having agreed with these findings that all the charges are substantially proved, issued a notice on 1st February 1951 to Shree R. M. Patel for showing cause against that proposed punishment only and not for considering whether the charges were proved or not'.

It is clear from this statement that the Director of Excise and Prohibition went through the papers, including the report of the Inquiry Officer, and further it is clear that he issued the second show-cause notice after having already agreed with the findings of the Inquiry Officer and only for the purpose of hearing the delinquent on the proposed punishment and not for considering whether the charges were proved or not. There is no doubt, therefore, that the Director of Excise and Prohibition, did not consider the reply of the plaintiff to the second show-cause notice on merits but he applied his mind only on the question of the quantum of punishment. Therefore, there is no force in the submission of the learned Assistant Government Pleader that, in fact, the Director of Excise and Prohibition had considered the plaintiffs reply to the second show-cause notice on merits.

15. Next, we come to the argument on behalf of the State that it was not necessary to consider the representation of the plaintiff on merits in answer to the second show-cause notice. We do not think that this contention is tenable in view of the observations of the Supreme Court, which we have quoted above and specially the observations in Khem Chand's case, 1958 SCR 1030 at p. 1096: (AIR 1958 SC 300 at p. 307). After referring to the procedure, which must necessarily be adopted in the inquiry upto the stage of the leading of evidence by both the parties and the making of the report by the Inquiry Officer, the observations proceed to say as follows:

'All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case'.

In other words, these observations show that the delinquent is entitled to show that he has not been, guilty of any of the charges to merit any punishment and further he is entitled to show that the punishment, which is proposed to be meted out to him is drastic, which he does not merit. In other words, he is entitled to show two things-- (1) that he is not guilty; and (2) that the punishment is severer than warranted. Further, their Lordships have summarised the position in this way:

'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 summary (c) above, clearly shows that in answer to the second show-cause notice, a Government servant is entitled to make his representation to show why the proposed punishment should not be inflicted upon him. In other words, he is entitled to show both that he is not guilty as well as to show that the punishment is too severe and drastic than the one warranted by the facts and circumstances of the case. It is therefore clear that in answer to a show-cause notice, under Article 311(2) of the Constitution, a Government servant is entitled to make his representation both on the merits as well as on the quantum of punishment and it is only when this opportunity is afforded to him that it can be said that he was given a reasonable opportunity to answer the charges levelled against him and to show why the proposed punishment should not be inflicted upon him. This being our view, we do not think that we can accept the argument of the learned Assistant Government Pleader that it was not necessary in answer to the second show-cause notice, under the provisions of Article 311(2) of the Constitution that the delinquent should be heard on merits by the officer, who fives any of the three kinds of punishments contemplated in the said Article.

16. Before parting with this case, it may be mentioned that the fourth charge of making a delayed occurrence report was admitted by the plaintiff and the three other charges were held to be proved against him on the evidence before the Inquiry Officer. The punishment of dismissal is awarded to him as a combined punishment on all the four charges. Therefore, in regard to the charge that is admitted, it is not possible for us to separate the punishment which is inflicted under the dismissal order in regard to all the four charges against the plaintiff.

17. In view of the above discussion, it is clear that for the reasons that the Inquiry Officer had taken into account the materials on record in the formof the statement of Dafer Puna Taiyab, as well asthe statement of Fakirbhai Kushalbhai, withoutaffording any opportunity to the plaintiff for cross-examination, the dismissal order is void. It is alsovoid for the reason that the delinquent was not heardon merits in answer to the second show-cause notice.

18. In the result, the State's appeal is dismissed with costs. In view of the fact that the plaintiffhas already reached the age of superannuation, therewould be no declaration that he continues in Government service but the declaration of the learnedtrial Judge that the dismissal order is void, illegaland ultra vires will stand.


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