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State of Gujarat Vs. Pagi Bhurabhai Rumalbhai - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 387 of 1965
Judge
Reported inAIR1969Guj260
ActsConstitution of India - Article 311 and 311(2); Public Servants (Inquiries) Act, 1850
AppellantState of Gujarat
RespondentPagi Bhurabhai Rumalbhai
Appellant Advocate G.M. Vidyarthi, Asst. Govt. Pleader
Respondent Advocate S.B. Majumdar, Adv.
DispositionAppeal allowed
Cases ReferredState of Orissa v. Binapani Dei
Excerpt:
service - dismissal - articles 311 and 311 (2) of constitution of india and public servants (inquiries) act, 1850 - respondent in police department charged with criminal trespass - dismissed from service and confirmed by higher authority - petitioner contended that he had not been given reasonable opportunity under article 311 (2) - whether respondent should be given personal hearing - appellate court in error in coming to conclusion that order of dismissal was bad in law as personal hearing not given to him - appellate court's order set aside. - - the main ground on which this declaration was sought was that he was not given a personal hearing at the stage of appeal and, therefore, he was not given a reasonable opportunity as is contemplated by article 311(2) of the constitution.....n.k. vakil, j. 1. the only point involved in this second appeal is whether reasonable opportunity to be given to a government servant under article 311(2) of the constitution in a departmental inquiry includes a right of personal hearing at the stage of appeal.2. the respondent had joined the police department on 18th of april 1945 and, at the relevant date, he was working as a police head constable. he was charged with criminal trespass into the compound of the p. s. i. dohad (rural) on the night between the 25th and 26th of november 1959. thereafter a preliminary inquiry was held and subsequently a departmental inquiry was held as a result of which the plaintiff was dismissed from service by the order of the d.s.p. dated 22nd of july 1960. the respondent then filed an appeal before the.....
Judgment:

N.K. Vakil, J.

1. The only point involved in this second appeal is whether reasonable opportunity to be given to a Government Servant under Article 311(2) of the Constitution in a Departmental Inquiry includes a right of personal hearing at the stage of appeal.

2. The respondent had joined the Police Department on 18th of April 1945 and, at the relevant date, he was working as a Police Head Constable. He was charged with criminal trespass into the compound of the P. S. I. Dohad (Rural) on the night between the 25th and 26th of November 1959. Thereafter a preliminary inquiry was held and subsequently a departmental inquiry was held as a result of which the plaintiff was dismissed from service by the Order of the D.S.P. dated 22nd of July 1960. The respondent then filed an appeal before the D.I.G. and it is the case of the respondent that he had requested the D.I.G, to give a personal hearing to him but that request was rejected by the D.I.G. and the appeal was dismissed on the 31st of December 1960. The plaintiff then approached the Inspector General of Police by filing a revision application which was also dismissed. He then approached the Government of Gujarat with another revision application which also met with the same fate. The respondent then filed Regular Civil Suit No. 96 of 1953 hi the Court of the Senior Civil Judge at Godhra. He filed the suit for a declaration that the order passed by the D.S.P., Godhra, dated 22nd July 1960 dismissing him from service was illegal and ultra vires. The main ground on which this declaration was sought was that he was not given a personal hearing at the stage of appeal and, therefore, he was not given a reasonable opportunity as is contemplated by Article 311(2) of the Constitution and, therefore, the order is bad. The main contention on behalf of the defendant was that the respondent was not entitled to any personal hearing at the appellate stage before the D.I.G. The trial Court decreed the suit. The State of Gujarat, therefore, approached the District Court at Godhra, the appeal being Appeal No. 361 of 1964 and the learned Assistant Judge who heard the appeal, confirmed the decree of the original Court, holding that a personal hearing is the necessary requirement of the concept of reasonable opportunity to be given under Article 311(2) at the stage of hearing of appeal also. It may be mentioned that the learned appellate Judge solely relied upon the decision in AIR 1963 Assam 183, Dharani Mohan v. State of Assam and did not accept the contention of the State that the said ruling could not be considered to be good law in the face of the Supreme Court decision in AIR 1960 SC 493, Kapur Singh v. Union of India.

3. Now, so far as the departmental proceedings are concerned, there is no dispute that the respondent was given a reasonable opportunity both at the first stage of the inquiry and also the second stage of the inquiry when the punishment was meted out and his only contention is that the order dismissing him is bad in law as he was not given a personal hearing though he demanded it, by the D.I.G. who heard his appeal. The learned Assistant Government Pleader Mr. Vidyarthi submitted that the first appellate Court was wrong in holding that In case of dismissal of a Government Servant, he is entitled to a personal hearing even at the stage of appeal, by relying upon the decision of AIR 1963 Assam 183 (supra). He urged that the relevant observations in the decision of the Supreme Court were not properly appreciated. He argued that reasonable opportunity of showing cause required to be given under Article 311(2) did not necessitate a personal hearing at the stage of appeal. In order to support his submission, some rulings were cited to which I shall advert a little later.

4. Mr. S. B. Majumdar, the learned advocate for the respondent, supported the finding and the judgment of the appellate Court. He argued that there la no decision of any High Court or the Supreme Court which directly deals with the stage of appeal and the Assam High Court judgment only holds the field. He urged that the learned appellate Judge was right in relying upon the Assam High Court decision because it correctly decides the law. He supported the view of the learned appellate Judge that the decision of the Supreme Court relied upon by the State, cannot apply to the facts of the present case. He also cited some other decisions and I shall refer to them at the proper stage. The order of dismissal of the respondent was confirmed by the appellate authority viz. the D.I.G. on the 31st of December 1960. There is no dispute that the respondent had applied for a personal interview from the D.I.G. before the appeal was decided and that request was refused. Article 311(2) of the Constitution at the relevant date, reads as under without the provisos with which we are not concerned:

'(2) 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.'

This provision came to be amended in the year 1963 and now, without the provisos it stands as follows:

'(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an Inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard In respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.'

5. Before it was amended, the decisions of various High Courts were not uniform on the subject of personal hearing being given to the delinquent and whether reasonable opportunity to be given to the servant was meant that the opportunity should be given at both the stages of inquiry or only once. But ultimately, the trend of the decisions of the Supreme Court was that what was intended by the Legislature was to give opportunity to the servant at both the stages, viz. the stage of inquiry and also the second stage when the punishing authority decides what punishment should be meted out. But at the same time, these decisions laid down that the personal right of hearing can only be claimed at the first stage when the Government Servant must have the opportunity to lead evidence, cross-examine witnesses and advance arguments. But, at the second stage, It would be sufficient compliance with the requirement of the Constitutional protection if a right of representation only is given. It appears, the Parliament, in order to clarify its intention, made the amendment which now provides for two stages of departmental inquiry and opportunity to be given at both the stages; but the right of personal hearing is given only at the first stage and a right to make a representation at the second. It is not disputed that the right of representation does not include the right of personal hearing. It is true that Article 311 does not directly lay down any rule of conduct or procedure at the stage of appeal. But, in my view, the basis on which the two different types of opportunity which is considered to be reasonable opportunity is afforded to the servant should govern the stage of appeal also. It appears fairly clear to me that the fundamental basis on which it is thought necessary to include in the concept of 'reasonable opportunity' the right of personal hearing and putting forward of his case at the first stage is that he must have the opportunity of leading his evidence, cross-examining the witnesses of the Government on which reliance is placed to hold the inquiry, pointing out the demeanour of those witnesses and personally appeal to the inquiry officer to appreciate that evidence in the light in which he would like it to be appreciated and urge his case to convince him of the weaknesses of the Government case and the strength of his case. At the second stage, however, only a right to make representation has been held to be sufficient compliance with the requirement of the Constitutional protection of giving of reasonable opportunity and the requirement of personal hearing is not thought necessary because at that stage, the authority has merely to take his decision from the record before him as regards the adequate punishment to be awarded to him. There the delinauent can represent in writing and put forward all the points and arguments from all the record which is always available to him as to why the punishment proposed to be awarded should not be awarded. In my view, therefore, the right of personal hearing is Intended to be a necessary requirement of the concept of reasonable opportunity to show cause only at the stage when the evidence is to be led, cross-examination of witnesses is to be done and the demeanour of the witnesses is to be watched and denoted and not at the stage when the decision is to be taken from the record before the deciding authority. The proceedings in the departmental inquiries are only quasi-judicial proceedings. Therefore, all the procedure of an ordinary trial or proceeding in a Court of law are not applicable. In the departmental inquiries, reasonable opportunity will be said to have been given when the principles of natural justice and fair play are observed. It is now well settled that the principles of natural justice and fair play do not postulate personal hearing at every stage and, as I have already pointed out, Parliament has now clearly signified its intention and so have the Law Courts that the right of a personal hearing is only contemplated by the principles of natural justice at the first stage of inquiry where evidence is to be led and cross-examination should be allowed. Under the circumstances, I am of the view that the principle obtainable in proceedings before Courts of Law that even at the stage of appeal the right of personal hearing is a necessary right to do justice between the parties, cannot be bodily applied to departmental inquiries which are not bound to follow all the procedure and requirement of a judicial trial or proceeding. With great respect, therefore, to the learned Judges of the Assam High Court, I am unable to agree with their decision in AIR 1963 Assam 183 (supra). It is no doubt true that the refection of the appeal involves confirmation of a punitive action against the appellant and disposal of his rights in the matter. But so is the case at the second stage of the inquiry also and yet it is not thought necessary to include the right of personal hearing at that stage. In the said decision none of the Supreme Court decisions laying down principles to be followed in quasi-judicial inquiries are discussed or referred to. Implicit in the reasoning of the learned Judge is the assumption that the ordinary procedure in law courts in appeal is the procedure to be followed even as regards appeal arising from a proceeding in departmental inquiry. The learned Judges have observed that the act of punishing a Government servant by the competent authority, although in the nature of an administrative act, nevertheless involves the exercise of a judgment. The proceedings, in their opinion, therefore, assume the character of a quasi-judicial proceeding and the necessity of taking an objective view of the matter would be involved. Similarly, the power of an appellate authority involved the exercise of the judgment as to the correctness or otherwise of the action taken which is made the subject matter of appeal. The appellate authority for the same reasons, fulfils and performs in the disposal of the appeal quasi-judicial functions. This position has been made clear by the Supreme Court in more than one decision.

6. There can be no quarrel with these observations of the learned Judges. But then they have further observed that in the Supreme Court decision Their Lordships have held that where a statutory right of appeal is given to an authority, that authority, in disposing of the appeal must be deemed to be acting judicially. In any event their functions partake o| the character of quasi-judicial functions and necessarily must conform to the minimum standards that should obtain in judicial or quasi-judicial proceedings and this includes the important right and privilege to the appellant to be heard in support of his appeal. Now it is here that with due respect I differ from the learned Judges. To my mind, the quasi-judicial proceedings for all purposes could not be placed on the same footing as Judicial proceedings and all the rights to which the parties are entitled in a full-fledged judicial proceeding cannot be made available to them in a quasi-judicial proceeding. Besides, we are governed by Article 311(2) of the Constitution and this Article, as I have already pointed out has been the subject matter of various decisions of the Supreme Court, and while discussing this very important aspect, the learned Judges of the Assam High Court have not referred to any of them. Under these circumstances, with very great deference, I think that the principle tried to be laid down by the High Court of Assam in this case is not correctly laid down for the reasons that I have already stated and some more that I shall be giving hereafter.

7. In AIR 1960 SC 493 (supra) Shah J, speaking for the Supreme Court, has observed as follows:

'By the Constitution, an opportunity of showing cause against the action proposed to be taken against a public servant is guaranteed and that opportunity must be a reasonable opportunity. Whether opportunity afforded to a public servant in a particular case is reasonable must depend upon the circumstances of that case. The enquiry in this case was held by the Enquiry Commissioner who occupied the high office of Chief Justice of the East Punjab High Court. The appellant himself examined 82 witnesses and produced a large body of documentary evidence and submitted an argumentative defence which covers 331 printed pages. An opportunity of making an oral representation not being in our view a necessary postulate of an opportunity of showing cause within the meaning of Article 311 of the Constitution, the plea that the appellant was deprived of the constitutional protection of that Article because he was not given an oral hearing by the President cannot be sustained.'

This decision was cited on behalf of the State in the appellate Court, but the learned appellate Judge distinguished it on the ground that in the said judgment, the Supreme Court did not lay it down as the general principle that an opportunity of making an oral representation was not a necessary postulate of an opportunity of showing cause within the meaning of Article 311 of the Constitution. The learned appellate Judge however observed that it appeared to him that in that ruling it had not been laid down that it is not necessary for the Enquiry Officer or the Appellate Authority to give a personal hearing. On the contrary, it had been observed that whether a reasonable opportunity has been given to a public servant in a particular case depends upon the circumstances of that case. Their Lordships were not deciding the point as to whether when a public servant is not heard in person by the Enquiry Officer or by the appellate authority it can be said that he was not given a reasonable opportunity to defend himself. In his opinion, therefore, the ruling did not apply to the facts of the present case. But I am afraid this is not a proper reading of that case. In the said case, an enquiry was held against an I. C. S. Officer under the Public Servants (Inquiries) Act XXXVII of 1850 on various charges, The Chief Justice of the East Punjab High Court was appointed the Enquiry Commissioner. After the report was submitted, a copy of it was supplied to the officer and he was informed that the President of India was of the opinion that the officer was unsuitable to continue in Government Service and that the President accordingly provisionally decided that he should be dismissed. The officer was informed that before the President took action he desired to give the officer an opportunity of showing cause against the action proposed to be taken and that any representation which he may make in that connection will be considered by the President before taking the proposed action. The officer then submitted a detailed representation in writing. Ultimately the officer was dismissed. He filed a writ petition in the East Punjab High Court praying for appropriate writs which was dismissed. The officer then filed the appeal before the Supreme Court. Before the Supreme Court, the appellant inter alia raised the contentions as follows:-- (1) that the Inquiry Commissioner held the inquiry in a manner contrary to the rules of natural justice in that the Commissioner did not allow the appellant sufficient opportunity to examine witnesses and to produce documentary evidence in support of his case; (2) that the order of dismissal by the President was challenged on the plea that the President not having directed viva voce examination before him of witnesses whose evidence was recorded by the Enquiry Commissioner and not having given opportunity to the appellant to make an oral submission about the evidence led, in the case and particularly the defence, the appellant was deprived of a reasonable opportunity of showing cause against the action proposed to be taken against him. As regards the first plea, after considering all the relevant factors, the Supreme Court agreed with the High Court that the enquiry was not vitiated on account of violation of the rules of natural justice. With regard to the second contention the Supreme Court held that the President was not bound before passing an order of dismissing the servant, to hear the evidence of witnesses. He could arrive at his conclusion on the evidence already recorded in the Enquiry. By Article 311 of the Constitution, a public servant is entitled to show cause against the action proposed but exercise of the authority to pass an order to the prejudice of the public servant is not conditioned by the holding of an inquiry at which evidence of witnesses viva voce is required to be recorded, notwithstanding an earlier fair and full inquiry before the Enquiry Commissioner where evidence is recorded. Then follow the observations that I have reproduced hereabove. Article 311 speaks of two requirements, opportunity to show cause and that opportunity should be reasonable. There can be no doubt that the ratio of the Supreme Court decision, with regard to the right to 'show cause' given to the public servant, is that an opportunity of making an oral representation is not a necessary postulate of an opportunity of showing cause within the meaning of Article 311 of the Constitution. Then as regards the reasonableness of that opportunity the Supreme Court said that, that would depend upon the facts of each case and then observed that in that particular case the enquiry was made by a person holding as high an office as that of a Chief Justice of a High Court and the appellant had examined no less than 82 witnesses and produced a large body of documentary evidence and had also submitted a long argumentative defence. Thus these observations were made as regards the first stage of the enquiry. The opportunity to show cause given to the public servant consists of that first stage of enquiry then the second stage when the punishment is proposed to be inflicted. Where appeal or revision is provided that is the third stage. In my view therefore it would not be right to say that the ratio of this Supreme Court decision would not apply to the present case. I think that the said latter observations hold good and would apply to the present case also. Even if the principle as to whether reasonable opportunity is given or not would depend upon facts of every case is adopted in the present case, nothing is shown that the facts of this case are such that the representation at the stage of appeal is not sufficient compliance. The remarks in the Supreme Court case regarding the inquiry by the High Court Judge cannot mean that it would be reasonable opportunity given only if inquiry is made by each high authority. In my judgment, these observations lay down two independent principles. Again it is not possible to conclude that these remarks were confined only to the second stage of the inquiry and not to the subsequent stage viz. the stage of appeal. The appellate Judge was, therefore, in error when he held that this Supreme Court decision had no bearing on the present case.

8. Mr. Majumdar, the learned advocate for the respondent, tried to urge that in that case an I.C.S. Officer was concerned and, therefore, when the matter went to the President, he was acting as the appellate authority who had the right to dismiss the servant and, therefore, the Supreme Court was only examining the second stage, that is to say, the awarding of adequate punishment and, therefore, the remarks made by the learned Judges cannot be held to apply at the stage of appeal. I find it difficult to agree with Mr. Majumdar. Though it is a fact that the President was concerned with the second stage of the Departmental Inquiry, when it was observed that an opportunity of making an oral representation was not a necessary postulate of an opportunity of showing cause within the meaning of Article 311 of the Constitution, the Supreme Court laid down as to what was exactly contemplated by the phrase 'opportunity to show cause' in Article 311(2) and the observation was not confined to the second stage only. I shall further refer to this aspect a little later.

9. In AIR 1957 SC 648, F.N. Roy v. Collector of Customs, Calcutta the inquiry was under the Sea Customs Act. The Collector of Customs confiscated certain goods belonging to the petitioner in the said matter and imposed a penalty of Rs. 1,000/-. The petitioner then preferred an appeal which was dismissed. The petitioner approached the Government of India in revision which was also rejected Thereupon the petitioner approached the High Court of Punjab under Article 226 of the Constitution, but that also was dismissed. Ultimately he approached the Supreme Court. In the Supreme Court, one of the contentions was that the petitioner had not been given a personal hearing in the appeal that he had preferred to the Central Board of Revenue and the application in revision to the Government. While dealing with this contention, the Supreme Court observed that there is no rule of natural justice that at every stage a person is entitled to a personal hearing. . It is true that they have also said that furthermore the' appeal was out of time but it is to be noted that that was only considered as a matter of fact and it was not taken into consideration to lay down the principle I have just quoted. Mr. Majmudar tried to distinguish it on the ground that it was not a case where Article 311(2) was in the picture. That is true, but after all, as pointed out, Article 311(2) also only incorporates the rule of natural justice and fair-play when it lays down that a person shall be given a reasonable opportunity to show cause.

10. Mr. Vidyarthi has cited some more authorities but they were confined specifically to the determination of the question whether at the second stage, that is to say the awarding of the punishment, personal hearing is contemplated by Article 311(2) or not. I do not, therefore, find it necessary to discuss them.

11. Mr. Majumdar, however, put forward an ingenious argument. He urged that the principle adopted that at the first stage a personal hearing is to be given and at the second stage a right of representation has to be given itself comes to the rescue of the respondent. In his submission in the appeal the whole case is laid open to be attacked and challenged viz. all that took place in the inquiry at the first stage and also all that happened and the decision reached at the second stage regarding the punishment awarded. That being so, the principles of natural justice required that the kind of opportunity required to be given at both the stages should be given at the stage of appeal. But I am afraid this submission is not sound. True it is that at the stage of appeal it is open to the person proceeded against to have his say against all that may have gone against him or taken to go against him at the first stage of inquiry as well as the second stage. But that does not mean that all that is permissible to be done in compliance with the principles of natural justice for giving him the reasonable opportunity to show cause is to be allowed also at the stage of appeal. Carried to its logical extreme, it would mean he will have a right to recall witnesses for further cross-examination, lead fresh evidence etc. But that cannot be allowed except possibly where the appellate authority himself may feel the need of it. As pointed out, the reason behind allowing a personal hearing at the first stage is that the concept of natural justice woven in the requirement of giving a reasonable opportunity to show cause to be given in even quasi-judicial inquiries includes the requirement of an opportunity of leading evidence, having a look into the documentary evidence, cross-examining the witnesses, seeing their demeanour and bringing these facts pointedly to the notice of the inquiry officer through the medium of a personal submission. The same position, however, does not obtain at the stage of an appeal. Though the whole case is laid open for attack the very fact that it is an appeal has its own limitations in respect of the reasonable opportunity to be given. It being a departmental appeal, in my view, the principles of an appeal, arising in trials or proceedings before the regular Courts of Law cannot apply. It cannot be said that because in a full judicial proceeding in the appeal the appellant has the right to have a personal hearing, therefore. In departmental appeals also that principle should apply. I am, therefore, unable to accept the submission made by Mr. Majumdar.

12. Mr. Majumdar then tried to take me through the rules from the Police Manual to support the respondent's case. He first referred to Rule 457 in the Bombay Police Manual, 1959 (Volume 1), which gives a right of appeal to every police officer on whom any major punishment is inflicted This appeal is to be made to authorities specified in column No. 2 of the statement given in the said rule, against the orders of punishments passed by the officers shown in column No. 1 thereof. This would show that the respondent was entitled to file the appeal to the Deputy Inspector General of Police. The next rule is Rule 458 which provides for consideration of appeals by the appellate authority. Mr. Majumdar laid great stress on Sub-rule (2) which runs as under:

'(2) Notwithstanding anything contained in this rule, where an appeal is made to any appellate authority other than the State Government or the Inspector General of Police, the Inspector General may, for promoting the ends of justice or tending to the general convenience of the appellant or witnesses or officers concerned, of his own motion or otherwise, transfer such appeal for disposal to any other appellate authority competent to entertain the same.'

It was argued that this sub-rule contemplates the taking into account of the evidence of the appellant and also witnesses This necessarily implies that a party had a right of personal hearing. If a mere written representation was contemplated, this provision would not have been there. In the first place, this was never the case of the respondent that even under the rules of the Police Manual, a right of hearing was given to him. This particular rule cannot be made use of to decide as to whether the respondent had a right of personal hearing under Article 311(2). But apart from that, I find that the argument based on this sub-rule of Mr. Majumdar is fallacious. It appears that this provision made in Sub-rule (2) is only an enabling provision' that where the appellate authority is other than the State Government or the Inspector General of Police, the Inspector General of Police may, for promoting the ends of justice or tending to the general convenience of the appellant or witnesses or officers concerned, transfer such appeal for disposal to any other appellate authority competent to entertain the same. This provision is possibly made because the appellate authority may itself want to hear on re-examine any witnesses and, under the circumstances, the Inspector General of Police may, to suit the convenience of the witnesses or the appellant himself, transfer it to another appellate authority. But it cannot be the only necessary implication from this provision that because a personal hearing is contemplated even at the stage of appeal that it finds its place in rule 458. Certainly it cannot be said that the convenience of the witnesses is something in the ordinary course of a procedure before an appellate authority. The last rule to which my attention was drawn was Rule 459 which deals with the form and procedure of submission of appeals and if lays down that every appeal preferred shall contain all the material statements and arguments relied upon by the appellant and shall contain no disrespectful or improper language and shall be complete in itself. It shall be accompanied by the copy of the order appealed against. This rule Is very significant to show that a personal hearing is not contemplated even under the rules and it is, therefore, that all that the appellant has to say or would like to draw the attention of the appellate authority, he has to put down in his appeal.

13. In my view, therefore, none of these rules can be of any help to decide the question before me nor do I agree with Mr. Majumdar that even under the rules a right of personal hearing is contemplated.

14. My attention was then drawn by Mr. Majumdar to several authorities apart from the Assam High Court case (supra). The first is AIR 1961 All 45, C.S. Sharma v. State of Uttar Pradesh. I do not think that there is anything in this decision which can help the respondent to support the judgment of the first appellate Court. In the first place. It Is obvious that the decision deals with the question as to whether the person concerned should have been given a personal hearing or not at the first stage. It is specifically stated that the learned Judge was of the opinion that the order of dismissal was also vitiated inasmuch as the inquiry against the officer charged was not conducted properly and he was not granted an opportunity to argue his case before the enquiring officer.

15. In B.C. Verma v. R.D. Verma, AIR 1958 All 532, the learned Judge observed that the contents of the words 'show cause' are wider than giving of a particular opportunity to give a written explanation and in this view of the matter unless the opportunity given of an earlier stage is regarded as sufficient Compliance with, the provisions of Article 311 merely an opportunity given to offer an explanation against the proposed action cannot be regarded as sufficient compliance with Article 311 and he then proceeded to say that it is a reasonable view of Article 311 that in disciplinary proceedings it is necessary that an opportunity should be given to show cause at one or the other of the two stages. This has nothing to do with the question on hand. Some reliance was tried to be placed on the observations that strict rules of evidence are not to be complied with, but that cannot mean that the proceedings can be held in an arbitrary manner. The rules of natural justice must still be complied. Ordinarily there must be a personal hearing. If a person is entitled to show cause he is entitled to a hearing and if he is entitled to a hearing he must have the opportunity of being Personally heard, of calling Ms own evidence and cross-examining any witnesses called by the prosecution. All these remarks are general remarks and they are only made with reference to the facts of that case and as I have pointed out, the learned Judge was concerned with the first stage of inquiry.

16. The next authority on which reliance was tried to be placed was AIR 1997 SC 1269, State of Orissa v. Binapani Dei but in this case also there is nothing which directly helps the respondent. The remark particularly relied upon is that the rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to Judicial tribunals and bodies of persons invested with authority to adjudicate upon matters Involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is the basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case. These remarks were made in respect of the decision of the State where the learned Judges found that the decision of the State was not based upon the result of an inquiry held in a manner consonant with the basic concept of justice. The learned Judges found that the order made by the State to the prejudice of the person was in derogation of his vested rights and which Was not in accordance with the basic rules of justice and fair-play. The facts of the case were entirely different and the learned Judges found that there was no reasonable opportunity given to the party even at the enquiry stage.

17. These were some of the cases which Mr. Majumdar particularly relied upon, but I do not find either of them to be to the point Having given my careful consideration to the position of law and the submissions made on the part of the parties, I find that the Courts below were in error in coming to the conclusion that the order passed by the D.S.P. dismissing the respondent was bad in law as he was not given a personal hearing by the appellate authority. The result is that the appeal has to be allowed. I set aside the judgment of the appellate Court and the suit is dismissed. Having regard to the facts of the case, however. I pass no orders as to costs.


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