1. This is an appeal against the decree of the Subordinate Judge of Nellore, dismissing the suit filed by the appellant, a peon in the Forest Department, for a declaration that his dismissal from service by the District Forest Officer was wrongful; for a direction to the Government to reinstate him in office, or in the alternative for Rs. 6,000 as damages. The suit was brought against the Government and also against the District Forest Officer, because it was alleged that the District Forest Officer had acted with malice. The learned Subordinate Judge found that the dismissal was not wrongful; and so he dismissed the suit with costs.
2. Four main objections have been raised to the decree of the lower Court. One is that fundamental principles of justice were violated in withholding from the appellant certain papers which had a bearing on the case and the absence of which hampered him in his defence. The second was that he was not allowed to appear by a vakil, the third was that he was not permitted to examine the District Forest Officer and his servants as his witnesses; and the last was that the provisions of Section 240(3) of the Government of India Act had not been complied with the consequence that the dismissal was illegal.
3. We have seen the various documents referred to in connection with the first ground; and we agree with the learned Subordinate Judge that no material papers were withheld from the appellant. In fact, this point has not seriously been pressed.
4. On the question whether the appellant was entitled to be represented by a vakil, there is an authority of a Bench of this Court in Rajagopala Iyengar v. Collector of Salt Revenue, Madras : AIR1937Mad735 that no such right exists. Two principal reasons were given by the learned Judges for the decision. One was that Rule 55 of the Civil Service (Classification, Control and Appeal) Rules, gave a right to be heard in person, which expression seemed to preclude a right of appearing through a pleader. The other reason was that there was no common law right of that nature and that the rules did not suggest that any such right existed. The learned Chief Justice said:
Mr. Jayarama Aiyar has conceded that there is no right at common law to appear by an agent and the Advocate-General argues that there is no such general right and that the scheme of the Indian Legislature is to confer only a special right to be represented by an advocate or agent such as that given by Section 340 of the Criminal Procedure Code. Such a statutory right is also given under Order 3, Rule 1, Civil Procedure Code.
5. It is argued that the attention of the learned Judges was not drawn to English cases in which it was held that there is such a common law right. Three cases have been cited here : Jackson & Co. v. Mapper : In re Schmidt's Trade Mark (1886) 35 Ch. 162 Reg v. Assessment Committee of St. Mary Abots Kensington 64 L.T. 240 and Norey v. Keep (1909) 1 Ch. 561. In the first case it was held that an agent could appear for an appellant to register a trade mark. In the second case it was held that a person assessed to a poor rate tax had a right to appear before the Tribunal to argue with regard to the quantum of his tax through a surveyor. The last case upheld the claim to a right to inspect Trade Union accounts by an accountant on behalf of the members. Reference was made in all these cases to the general right of a person to appear by an agent in all matters. In a case like the present, however, we cannot see how any common law right can exist. In the absence of a statutory right such as is indicated in Section 240 of the Government of India Act, the appellant would have no right, if the Government wished to dispense with his services, other than reasonable notice. Such further rights as he might have were created by the Government of India Act of 1935, and by the various statutes and rules in existence prior to that Act. If the rights of a Government servant are created by statute or by rule, the extent of his rights must be gathered only from a reading of those statutes or rules; and he cannot have any right apart from those rules or statutes.
6. There is very little direct authority on this point, because it has always been the practice that a public servant does not appear by pleader without permission of the enquiring officer; and it has always been presumed that he had no such right. The question was however raised before the Federal Court in Quadritullah v. North West Frontier Province (1944) 1 M.L.J. 500 : 1944 F.L.J 160 where a dismissed Sub-Inspector contended that he had not been given an opportunity of being heard through counsel. It seems not to have been argued in that case that he had a common law right to be heard, but that the refusal to allow him to appear through pleader had resulted in his not having a reasonable opportunity of showing cause against his proposed dismissal. The learned Chief Justice said:
The appellant's complaint was that the preliminary enquiry by the Inspector was held in his absence and that at the subsequent open enquiry before the Superintendent the file prepared by the Inspector was used and he was not permitted to be represented by counsel. Both the Courts below went in detail into the evidence of these matters and were satisfied that the appellant was given a reasonable opportunity of showing cause against his proposed dismissal. Having listened with care to all that was addressed to us by appellant's counsel, we too are convinced that on this point also the Courts below came to a right conclusion.
7. If the rules or the common law gave a right to a public servant to be represented by counsel, then the refusal of the enquiring officer to permit him to be represented by counsel would mean that he was not given a reasonable opportunity of showing cause. We have no doubt that the learned Judges of the Federal Court were of opinion that he had no such right as is claimed by the appellant in this appeal.
8. The District Forest Officer, in a long statement prepared to explain to the accused the nature of the charges against him, said that he had told his servants that he intended following a strictly vegetarian diet while in camp and that no meat was to be prepared for him. He mentioned this because the appellant was charged with having taken a fowl from the son of a forest guard without paying for it and had explained at one stage that he had bought it for the District Forest Officer. The peon wished to examine the District Forest Officer and the servants of the District Forest Officer in order to show that he had not been told anything about his instruction not to be provided with meat. This reference to the instructions given by the District Forest Officer to his cook was however quite irrelevant, as he did not assert that the appellant had knowledge of the instructions given by him to his cook; and this irrelevancy was the reason why the Forest Officer refused permission to examine his servants and the conservator refused to allow the Forest Officer to be examined. These orders seem to have been correct and certainly did not lead to any miscarriage of justice for they confined the enquiry to the really relevant issues.
9. The appellant was charged twice with the offences for which he was subsequently dismissed. As a result of the first enquiry the appellant was sentenced by the District Forest Officer to suspension for six months. In appeal to the Conservator of Forests, the punishment was enhanced to dismissal, on the ground that such offences were very common amongst menials and very difficult to detect and that therefore when a menial was caught, it was necessary to impose a severe sentence. The matter was then taken in further appeal to the Chief Conservator of Forests who found, upon a scrutiny of the procedure adopted, that there had been an irregularity in that the witnesses who made statements at a preliminary enquiry were not called upon to repeat those statements before cross-examination began. It was ordered by the Chief Conservator of Forest that these statements should now be read over to the appellant and a fresh opportunity given for cross-examination. It would have been permissible, upon the order of the Chief Con-servator of Forests, for the District Forest Officer to have continued the trial on the same charge from the stage at which the irregularity had been committed. He did not however do that, but drew up a fresh charge. On the first occasion two charges were framed : (1) Taking advantage of his official position and demanding and accepting gratification from subordinates and their relations; and (2) making false statements to the District Forest Officer. Then followed a summary of the evidence in support of these charges. Then, in a fresh paragraph, the appellant was directed to show cause why he should not be dismissed from service for mis-conducting himself. Unfortunately, this direction was not repeated in the second charge sheet and that omission has given room for the argument that the provisions of Section 240(3) of the Government of India Act were not complied with.
10. Section 240(3) of the Act says that
No such person as aforesaid shall be dismissed 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.
11. The learned advocate for the appellant has placed a great deal of reliance on the judgment of the learned Chief Justice and Zafrullah Khan, J., in Secretary of State for India v. I.M. Lall (1945) 2 M.L.J. 270 : (1945) F.C.R. 103 : (1945) F.L.J. 129. The learned Chief Justice at page 138 remarked:
In our judgment, the words ' against the action proposed to be taken in regard to him ' require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon....All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civiL servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him.... It does however seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity, has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken.
12. The learned Judges make it clear that they considered that the proper time at which the officer whose conduct is being enquired into should be called upon to show cause is after the evidence has been taken and the authority proposes to take such action as is referred to in the sub-section. The learned Government Pleader how-ever refers to certain passages of this same judgment in which it is suggested that this rule need not be construed too strictly. For example, immediately after the passage above cited, the learned Chief Justice remarked:
It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges, are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or in adequately summarised form, the results of that enquiry, and the findings of the enquiring officers and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank.
13. It is true that in this case because of the simplicity of the charges and of the evidence, the result would clearly have been, the same, even if the rules had been complied with; but the above passages from the judgment of the learned Chief Justice of the Federal Court make it clear that if the procedure is not followed, dismissal is improper. It is argued by the learned Government Pleader that since each case has to be considered on its own merits, an examination of the procedure adopted will show that a reasonable opportunity was given to the appellant to show cause why he should not be dismissed. In view of the simplicity of the case, we think that if the appellant had been dismissed as a result of the first enquiry he would have had no cause to complain; but the appellant was tried a second time, de novo, and a fresh charge framed; so that the presence in the first charge of a direction to show cause why he should not be dismissed and the remarks of the Conservator of Forests in appeal that he considered that dismissal was the proper punishmen for such an offence cannot be said to be reasonable notice of the nature insisted upon by the learned Judges of the Federal Court. In their opinion, the attention of the Government servant concerned must be prominently drawn to the proposed action at the time when such proposed action is about to be taken. We therefore feel that in view of this decision of the Federal Court we have no option but to hold that the appellant was improperly dismissed.
14. The only remaining question is with regard to the damages to which he is reasonably entitled. Sub-section 3 of Section 240 only applies to dismissals and to reductions in rank; so that although we have found that since this sub-section was not complied with the appellant was improperly dismissed, yet it does not follow that he was not properly found guilty of the offences with which he was charged. The enquiry was regular and the findings of fact cannot be disputed in this Court. We cannot ignore the fact that he was properly suspended during the enquiry and was found guilty of the offence with which he was charged. It has been pointed out by the learned advocate for the appellant that the enquiry went on for a period of three years and that during that time the appellant could not have looked for any alternative employment and that he is entitled to be compensated on the basis of what he could have earned if he had been retained as a peon until he reached retiring age. We are satisfied that this is not the proper basis on which to calculate damages. He was properly kept under suspension during the enquiry and the long delay that occurred was largely due to the obstructive tactics adopted by him. He was at liberty, at any rate from the time of the final order, to look for alternative employment; in fact, it was his duty to do so. It was only if after seeking for employment and being unable to obtain any that he would be entitled to sums of the nature claimed by him in his plaint and in his appeal. We think that looking into this question from every aspect, the appellant would be reasonably compensated by a payment of two years' pay, which would amount to Rs. 432, his pay being, according to his statement, Rs. 18 a month.
15. There remains the question of costs. In the trial Court the appellant did not raise the only point upon which he has succeeded in this Court; and so he cannot well complain of the learned Judge's dismissal of the suit. Even in this Court he has failed on every issue except one; and expenses have been incurred on account of the other issues and considerable time has been spent in arguing them. We therefore feel that the just order would be that in the trial Court both parties should bear their own costs and that in this Court the first respondent should tear his own costs and half the costs of the appellant. As regards the second respondent, the District Forest Officer, the appeal has to be dismissed. As the Government Pleader is appearing for him also, there need be no order as to costs with regard to this respondent. The plaintiff must pay the court-fee due to Government in the lower Court.
16. The Order of the Court was made by
17. The learned Government Pleader has applied for a certificate-under Section 205 for leave to appeal to the Federal Court.
18. It is true, as stated by the learned Government Pleader, that there is little or no dispute with regard to the actual facts. The question that we have to decide is whether, within the meaning of Section 240(3) of the Government of India Act, the appellant was given reasonable opportunity of showing cause against the action proposed to be taken against him. After an examination of the facts and a reference to a similar case dealt with by the learned Judges of the Federal Court in The Secretary of State for India v. I.M. Lall (1945) 2 M.L.J. 270 : (1945) F.C.R. 103 : (1945) F.L.J. 129 we came to the conclusion that the appellant had not been given a reasonable opportunity of showing cause. That is a question of fact or, at best, a question of law arising out of the interpretation of facts. Certainly on question arises as to the interpretation of the Act. Section 240(3) is clear that a reasonable opportunity had to be given to the appellant.
19. In The Governor-General in Council v. T.M. Krishnaswami Pillai : AIR1946Mad366 this Court gave a certificate in a somewhat similar case; and on the strength of that certificate an appeal was filed in the Federal Court. The learned Judges pointed out that a certificate should not have been granted by this Court as the question raised -was one of fact.
20. The application is dismissed.