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Nani Gopal Mukherjee Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectService
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 116 of 1962
Judge
Reported inAIR1966Cal42,(1968)IILLJ617Cal
ActsConstitution of India - Articles 226 and 311(2); ;Code of Civil Procedure (CPC) , 1908 - Section 9; ;Civil Services (Classification, Control and Appeal) Rules - Rule 55
AppellantNani Gopal Mukherjee
RespondentState of West Bengal
Appellant AdvocateN.C. Sen, ;Amiya Kumar Chatterjee and ;Kamalesh Banerjee, Advs.
Respondent AdvocateN.C. Chakraborty and ;N.G. Das, Advs.
DispositionAppeal dismissed
Cases ReferredState Medical Faculty of West Bengal v. Kshiti Bhus
Excerpt:
- chatterjee, j.1. i have read the judgment, brother sen j., is going to deliver. i agree with him but i propose to discuss the question regarding the maintainability of the suit.2. the question in this appeal is under what circumstances a civil court can grant a decree declaring orders passed on an enquiry in terms of article 311 of the constitution to be null and void. in secretary of state v. mask and co. the judicial committee observed as follows;'it is also well settled that even if jurisdiction (of civil court) is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'but these observations have not solved.....
Judgment:

Chatterjee, J.

1. I have read the Judgment, brother Sen J., is going to deliver. I agree with him but I propose to discuss the question regarding the maintainability of the suit.

2. The question in this appeal is under what circumstances a civil court can grant a decree declaring orders passed on an enquiry in terms of Article 311 of the Constitution to be null and void. In Secretary of State v. Mask and Co. the Judicial Committee observed as follows;

'It is also well settled that even if jurisdiction (of civil court) is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'

But these observations have not solved the problem. In Healey v. Ministry of Health 1954-3 All ER 449 Denning, L. J. observed as follows:

'Since Barnard v. National Dock Labour Board, (1953-1 All ER 1113) I take it to be clear law that the Queen's Courts can grant declarations by which they pronounce on the validity or invalidity of the proceedings of statutory tribunals. Suppose, he said, that a man bad served more than ten years and had reached the age of sixty. Under reg. 7 he would be entitled to a pension. Suppose, however, that the Minister determined that he had no right to one. Would not the courts interfere? I think that they would. In that case there would be good reason for thinking that the Minister had mistaken or misused his powers and on that ground the court would decree his determination to be invalid, in much the same way as it can declare the decision of a valuer to be invalid: see Dean v. Prince, (1954-1 All ER 749).'

It has been urged by Mr. Sen on behalf of the appellant that a declaration can be made even in cases where the statutory tribunal has found facts, even though there was mo evidence before the tribunal in support of the order passed by the tribunal; this mistake of the statutory tribunal--it is urged--in finding a fact goes to the loot of the matter and stands on the same basis as any other matter which goes to the root. What appears to me is that in a case of such palpable error as referred to in the judgment of Denning, L. J. the courts would think that the Minister misused his power or, in other words, the Minister acted in bias. Hence, the court in such circumstances would come to a finding that the decision is vibrated by something which is akin to fraud and, therefore, I am inclined to say in such cases a suit may lie; we may declare the order void on the ground of fraud. But even if the materials be not sufficient and if the tribunal snakes an error on tacts which no other court of fact would make if versed in law and having judicial experience, the said error may be a good reason tor a writ of certiorari, but that 1 am afraid, is no good reason for declaring the order null and void.

3. I am referred to another decision reported in Beg v. Ashford (Kent) Justices, 1955-3 All ER 604 where Singleton, L. J. observed, 'An order for certiorari should not be granted merely because a witness had committed perjury.' In fact, it was also held in the aforesaid case of 1955-3 All ER 604 that 'no writ should be issued where the granting of the order would involve the court in weighing one set of alleged facts against another.' Hence, far from (SIC) the order invalid even a writ cannot be issued when it involves weighing of evidence by the Court. Ina rather recent decision reported in Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh : [1963]50ITR93(SC) it was held by Gajendragadkar, J. (as his Lordship then was) as follows;

'It is necessary to add that these observations, in 67 Ind App 222: (AIR 1940 PC 105) though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the statute have not been complied with. Non-compliance with the provision of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction.'

Mr. Sen, however, says if the finding is based on no evidence then that is not a question on the 'merits' of the case. Gajendragaakar, J. (as his Lordship then was) when considering the question of merits, was referring to all cases of justifiability of a decision apart from all questions of jurisdiction and apart from all infirmities and defects which make the proceedings illegal and void. The statutory authority has to consider whether there is sufficient evidence on record or not, they have that power; if they commit an error, and hold that there is sufficient evidence where there is none that is an error of law at most but no suit for declaration lies on the reason that such errors of fact or of law are not errors which affect the jurisdiction or authority of the tribunal nor are they arrived at by some violation oi: the fundamental rules of judicial procedure; it is difficult to say that such an error is due to some bias of the tribunal.

4. It is urged that the Deputy Secretary having conducted the enquiry on the directions of the Secretary, there is bias. I am afraid, I cannot agree. I am, therefore, of opinion that no suit to declare the invalidity of the decision of the tribunal lies, for a mere error of fact or an error of law. In this case the error is at most an error of law. The findings--it is claimed--are based on no evidence. But even then the decision is merely erroneous in law and not without jurisdiction nor without authority and the tribunal did not violate the fundamentals of judicial procedure.

5. I, therefore, agree with the order proposed..

6. A.C. SEN, J.: The plaintiff is the appellant before us. The appeal arises out of a suit for declaration, injunction and other reliefs. The primary object of the plaintiff, a civil servant, is to get a declaration that a certain order passed on 14th November, 1958 reducing him in rank is void and not binding upon him.

7. The material facts are as follows: At all material times the plaintiff was officiating in the post of the Superintendent of Veterinary Service, Headquarters in the Department of Agriculture, Animal Husbandry and Forest in itsVeterinary Branch. While the plaintiff was officiating in the said post a severe flood took place in August 1954 in North Bengal.

8. On or about 31st August, 1954 the plaintiff was directed to organise relief operations in the flood-affected areas of Jalpaiguri and Cooch Bihar. According to the plaintiff the direction was given verbally, whereas according to the State of West Bengal the direction was given by a written order. The plaintiffs case is that he was directed to organise in an advisory capacity under the supervision, control and guidance of the Deputy Commissioner of Jalpaiguri and Cooch Bihar. The defendant's case, on the other hand, is that the plaintiff was placed in charge of the relief operations in the District of Gooch-Bihar. The relief operations lasted for nearly a month and a half, and the plaintiff resumed his normal duties as the Superintendent, Veterinary Service. Headquarters on or about 13th October, 1954. During this period of one month and a half during which the relief operation lasted the plaintiff had to come to Calcutta on several occasions under verbal orders from the Secretary of his Department,

9. On or about 4th March, 1957 the plaintiff received a Charge-sheet dated 21st February, 1957 issued by C.K. Roy, Secretary to the Department of Agriculture, Animal Husbandry and Forest containing the following heads of charge:

Charge 1

That the plaintiff called for tender for supply of several thousand maunds of cattle fodder, but did not ask for and keep any approved sample of the tendered quality of cattle fodder, thus omitting to take steps for ensuring that the quality of the fodder supplied was gooa, as required under Rule 103 of the West Bengal Finance Rules, Part I. Charge 2

(a) That as against 18, 726 mds. 14 srs. of cattle fodder certified as received by the plaintiff from the contractors for flood relief work, the distribution registers available from the different distribution centres and the Officers-in-Charge under the plaintiff accounted for only 11, 785 mds., 33 srs 8 chhataks of cattle fodder.

(b) That although, as the person in overall charge, the plaintiff was responsible for the proper accounting and distribution of the entire quantity certified as received, the plaintiff did not, in spite of repeated directions, render any satisfactory account for the short-fall of 6,753 mds. 10 srs. 8 chhataks of cattle fodder, which together with the carrying cost would work out to the huge sum of Rs. 1,20,675. Charge 3:

That the plaintiff showed

(a) lamentable lack of supervision and control,

(b) or deliberately left serious loopholes inthe maintenance of stock accounts by--.

(i) discouraging Officers-in-Charge of distribution centres to retain duplicate challans relating to receipt of stocks;

(ii) arranging for delivery of stocks without consignment in bags some of which contained short weights; and

(iii) not taking proper precautions to maintain for scrutiny and future audit the chalans relating to delivery of stocks to the distribution centres in trucks, winch made it impossible for the Authorities to check and verify the claim of the fodder suppliers as also the carrying contractor.

10. In the preamble to the Charge-sheet it was recited that the plaintiff was placed in overall charge of free distribution of cattle fodder during the relief operation in the flood-affected areas of Cooch Bihar district in September-October, 1954. The aforesaid three charges were supported by a statement of allegations,

11. The plaintiff submitted his explanation against the said charges inter alia denying the said charges and his liability in regard to the allegations contained in the said Charge-sheet, The plaintiffs case with regard to the charges may e found in Para 12 of the plaint, which runs as follows:

'The said charges against the plaintiff are wholly untrue, baseless and mala fide. The plaintiff at all material times was never in overall or otherwise in any charge and/or control of any of the said relief operation. The plaintiff was never in charge of the purchase and/or stock and/or distribution of the cattle fodder in respect of the said relief operations and same were at all material times under the control, supervision and guidance of the respective Deputy Commissioners of Jalpaiguri and Cooch Bihar.'

12. An enquiry was held by P.C. Gope, Deputy Secretary, Agriculture, Animal Husbandry and Forest Department in regard to the said three charges against the plaintiff and on or about 10th August, 1957 the said P.C. Gope made a report inter alia holding as follows:

(i) That there was no infringement by the plaintiff of Rule 103 of the West Bengal Finance Rules Part I;

(ii) That the plaintiff had been placed in' over-all charge of the said relief operations;

(iii) That as the person in over-all charge of the said relief operations the plaintiff was responsible for the short-fall in the stock of cattle fodder;

(iv) That the plaintiff-showed lamentable lack of supervision and control in organising the said relief operations.

13. It is clear that the Enquiring Officer found him guilty of charges Nos. 2 and 3 but not of charge No. 1.

14. The plaintiffs case with regard to the findings in the report of P.C. Gope may be gathered from paragraphs 15 and 16 of the plaint, and they are quoted below:

'5. The said purported report and the purported findings therein are arbitrary, mala fide illegal and contrary to the evidence placed and/or tendered and /or the facts and circumstances placed and/or proved and/or established at or before the said purported enquiry.

in any event the said enquiring officer P. C. Gope was biased and/or exceeded his jurisdiction and/or acted beyond the scope of his authority in finding and/or holding the plaintiff guilty of offences not mentioned in the said charge sheet and/or recommending the drawingup of fresh charges against the plaintiff.

16. The said purported report of P.C. Gope dated August 10, 1957 is void, inoperative and of no legal effect and is not binding on the plaintiff.'

15. It may be noted at this place that with regard to the first charge, namely that the plaintiff was guilty of infringing Rule 103 of West Bengal Finance Rules, Part I the defence of the plaintiff before the Enquiring Officer was that the said Rule requires that all materials received should be examined, counted, measured or weighed when delivery is taken and that the quality and quantity should be checked and certified and the amounts entered into the appropriate stock registers. Thus, the plaintiff contended there is no provision in the said Rule for taking or keeping of approved samples. The Enquiring Officer accepted the contention of the plaintiff and held that Rule No. 103 did not require the plaintiff to ask for samples and to keep approved samples. He, however, concluded this portion of his enquiry with the following observations:

'Sri Mukherjee says that Rule 103 of WBFR did not require him to ask for samples. This is, no doubt, correct but anybody who has anything to do with calling of tenders knows well that furnishing of samples is an essential part in connection with a tender. Sri Mukherjee is an officer who has put in more than 20 years' service and he should have known this ordinary requirement of a tender.

The mention of Rule 103 in the charge sheet is not, however, happy for this Rule nowhere says anything about furnishing of samples. The proper Rule that should have been mentioned in the charge is Rule 47 of W. B. F. R. which lays down the principle to be followed in connection with the calling for and acceptance of tenders. The mention of Rule 103 and not of Rule 47 makes the charge defective. The Enquiring Officer is not competent to make any alteration or amendment in the charge and it is for the authority that has drawn up the charge to consider whether a fresh charge on this allegation should be drawn up against Sri Mukherjee or not.'

16. The passage quoted above appears to be the foundation of the plaintiff's allegation in the second part of Para 15 of the plaint that the Enquiring Officer was biased and/or exceeded his jurisdiction in conducting the enquiry.

17. On or about 18th March, 1958 the plaintiff received a notice from C.K. Roy, Secretary to the said Department asking the plaintiff to show cause against the punishment proposed. In the said notice C.K. Roy at first mentioned the three counts of charges and then intimated the plaintiff that the Enquiring Officer had since submitted his report. Then he went on to say,

'The enquiring officer after considering the evidence and your statement before him has found you guilty of all the three charges and has recommended permanent reversion to your substantive rank as a proper punishment, A copy of his report is enclosed for your information.'

C.K. Roy then told the plaintiff in para 2 of the said notice that he too fully agreed with the findings of the Enquiring Officer and accepted his recommendations regarding the punishment suggested. In Paragraph 3 of the notice G. K. Roy indicated the nature of the proposed punishment in the following terms:

'ft is, therefore, proposed by way of punishment to revert you permanently to your substantive post in the West Bengal Subordinate Veterinary Service, Class I....................'.

Aud the plaintiff was asked to show cause against the proposed punishment

18. C.K. Roy was not strictly accurate when fee stated in the said notice after recounting the three heads of charge that the plaintiff was found guilty of all the three charges by the Enquiring Officer. It has been indicated above that with regard to the first charge the Enquiring Officer remarked that the mention of Rule 103 instead of Rule 47 made the charge defective, though he found that the plaintiff was guilty of not asking for or keeping any approved sample of the tendered quantity of cattle fodder. Now, if failure to ask for or keep sample is the substance of the first charge and if the mention of Rule 108 is an obvious mistake, then certainly plaintiff was found guilty of that charge. If, on the other band, violation of Rule 103 is the substance of the first charge, then, undoubtedly, the plaintiff was found not guilty of the first charge. C.K. Roy thought that the substance of the first charge was the failure to ask for or keep sample, and this will be evident from the fact that in recounting the first charge he omitted to mention any Rule whatsoever. This explains why he stated in the said notice that the plaintiff was found guilty of all the charges, including the first charge. The Enquiring Officer did not say in so many words that the plaintiff was not guilty of the first charge; he simply said that the mention of Rule 103 and not of Rule 47 made the charge defective, that he, as Enquiring Officer was not competent to make any alteration or amendment in the charge, and that it was for the authority that had drawn up the charge to consider whether a fresh charge on that allegation should be drawn up against the plaintiff or not. That being the position, it cannot be said that C. K. Roy, who issued the notice to show cause against the proposed action was far wrong in holding tnat tne plaintiff was found to be guilty of all the charges. Moreover, a copy of the report submitted by the Enquiring Officer was sent along with the notice.

19. According to the plaintiff, the said notice dated 18th March, 1958 was on the face of ft vitiated by manifest error, was void, and inoperative and not binding on the plaintiff. He thinks that the Enquiring Officer found him not guilty of the first charge; C. K. Roy, on the other hand stated in the said notice before indicating the opposed punishment that the plaintiff had been found guilty of all the charges including the first charge by the Enquiring Officer. It is for this reason that the plaintiff asserts that the said notice was on the face of it vitiated by a manifest error.

20. The plaintiff duly submitted his explanation and showed cause to the said notice dated 18th March, 1958.

21. By a letter dated 14th November, 1958, R. Bhattacharjee, a Deputy Secretary to the said department communicated to the plaintiff the order reverting him to his substantive post in the Subordinate Veterinary Service, Class I. The said order dated 14th November, 1958, being annexure D to the plaintiff, starts by saying that the plaintiff was placed in over-all charge of free distribution of cattle fodder during relief operations in the flood-affected areas in Cooch Bihar District in September-October, 1954. The charges are enumerated thereafter. The concluding portion of the said order runs thus:

'And whereas after proper departmental proceeding the said Sri Nani Gopal Mukherjee was found not guilty of charge No. 1 but was found guilty of all the charges mentioned in charges Nos. 2 and 3, the Governor is pleased to order that Sri Mukherjee be and hereby is reverted with effect from the date of receipt of this order to his substantive post in the Subordinate Veterinary Service, Class I, his pay being fixed at a stage in the scale of that service in which he was at the time of his officiating promotion plus the number of increments he would have drawn if he had continued in that rank, and the dearness and other allowances as admissible under the existing orders of Government.'

22. It may be noticed that the operative portion of the order simply says that the plaintiff is reverted to his substantive post; the word 'permanently' before the word 'reverted' is not there, even though in the notice to show cause he was asked to show cause why he should not be reverted 'permanently' to his substantive post.

23. The order of reversion describes the plaintiff as officiating Superintendent of Veterinary Service. The plaintiff nowhere states in the plaint that he has a right to the rank in which he was officiating before his reversion. In paragraph 24 of the plaint he simply says that the defendant is denying the right of the plaintiff to the said post of the Superintendent, Veterinary Service, Headquarters; this should have been precedent by a positive assertion that he, the plaintiff had a right to the said post. As has been pointed out ay the Supreme Court in Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC in the case of an appointment to a permanent post in a Government service on an officiating basis the servant so appointed does not acquire any substantive right to the post. Their Lordships observed as follows:

'It is, therefore, quite clear that appointment to a permanent post in a Govt. service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time.'

24. In the plaint no reference has been made to any specific rule from which it may beinferred that his appointment on an officiating basis was not terminable at any time. Hence it may reasonably be contended that the plaint does not disclose any causes of action. But this aspect of the case was not considered by the trial court nor pressed by the defendant. Therefore, we do not express any opinion on this point.

25. We should like to point out another thing. It was neither considered by the trial court nor pressed by the defendant whether the order dated 14th November, 1958 reverting the plaintiff to his substantive post in the Subordinate Veterinary Service really amounted to reduction in rank within the meaning of Clause (2) of Article 311 of the Constitution. By that order his pay was fixed at a stage in the scale of the Subordinate, Veterinary Service in which he was at the time of his his officiating promotion plus the the number of increments he would have drawn if he continued in that rank, and the dearness and other allowances as admissible under the existing orders of Government. The order no doubt says that the plaintiff is being reverted as he has been found guilty of the second and third charges, but from that it cannot be inferred that the reversion is by way of punishment unless the reversion is visited with penal consequences. The plaint does not disclose the penal consequences flowing from the order of reversion, nor are the penal consequences apparent on the face of the order. As has been observed by the Supreme Court in Dhingra's Case, AIR 1958 SC 367

'the real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus, if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his further chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty.'

According to the view expressed by the Supreme Court in that case, unless the order of reversion visits the civil servant with penal consequences, reversion to the substantive lower post does not amount to reduction in rank within the meaning of Article 311(2). Now, if in the present case, the order dated 14th November, 1958 reverting the plaintiff to his substantive lower rank does not involve or entail evil consequences pointed out by the Supreme Court it is doubtful whether the plaintiff is entitled to the declaration sought for. However, this question too we are not deciding, as it was neither considered by the trial court nor pressed by the defendant.

26. The defendant, however, stated in Paragraph 1 of the written statement that the plaintiff had no cause of action for the suit.

27. Issue No. 9 in the suit raises the question as to the maintainability of the suit. That issue was framed as an additional issue on the 16th March, 1961, That issue must have beenraised because of the averment in the written statement that the plaintiff had no cause of action. This issue on maintainability was heard as a preliminary issue on 6th June, 1961. It was submitted on behalf of the State that the present suit was not maintainable, because the plaintiff was afforded every opportunity, to conduct his defence before P.C. Gope, the Enquiring Officer. Therefore, the defendant challenged the maintainability of the suit not on the ground that the plaintiff had no right to the post in which he was officiating, nor on the ground that the order reverting the plaintiff to his substantive lower post did not operate as reduction in rank within the meaning of Article 311(2) of the Constitution. The preliminary issue was found in favour of the plaintiff because, in the opinion of the learned Judge, the Enquiring Officer prejudged against the plaintiff the most important issue, namely, whether the plaintiff was put in over-all charge of the relief operation in the District of Cooch-Bihar. He held that the order of the Governor referred to by the Enquiring Officer for the purpose of showing that the plaintiff was put in overall charge of the relief operations in the District of Cooch Behar was never communicated to the plaintiff. He further held that it was impossible to conclude from the radiogram order (Ext. 1) that the plaintiff was put in overall charge of the relief operations in the District of Cooch Behar. Consequently he was not prepared to dismiss the suit on the ground that the suit was not maintainable.

28. It is obvious that the trial court tried the case on the footing that the plaintiff had a right to the post in which he was officiating and that the order of reversion resulted in reduction in rank. The defendant too, it appears, accepted the position. Before us too, it has been submitted By the learned Government Pleader on behalf of the State that the plaintiffs only right is the right to have a reasonable opportunity of showing cause against the action proposed. In other words, it is not his case that the suit is liable to be dismissed either because the plaintiff had no right to the post in which he was officiating or because by the order of reversion he was not reduced in rank within the meaning of Article 311(2) of the Constitution. We, therefore, do not propose to dismiss the appeal on those grounds.

29. It is contended on behalf of the plaintiff-appellant that in view of the finding of the learned Judge while deciding the preliminary issue as to the maintainability of the suit that the plaintiff was not in over-all charge of the relief operations in the District of Cooch Behar, the plaintiff is entitled to the declaration that the plaintiff still is and continues to be employed as the Superintendent, Veterinary Services, Headquarters. According to him, the report of P.C. Gope, the Enquiring Officer, dated 10th August, 1957, based as it is on the erroneous finding that the plaintiff was in over-all charges of the relief operations in Cooch Behar is void and not binding on the plaintiff. If the report goes, he argues, the subsequent order, namely the order dated 18th March, 1958 asking the plaintiff to show cause against the proposed punishment, the order dated 14th November,1958 reverting the plaintiff to his substantive post and the Order dated 29th November, 1958 posting the plaintiff as Poultry Instructor are necessarily void and not binding on the plaintiff.

30. Let us tot of all clarify the legal position. Article 310(1) of the Constitution provides that a Government servant holds office during the pleasure of the President or the Governor as the case may be, except as expressly provided by the Constitution. The Supreme Court had occasion to examine the position of a Government servant under the Constitution in the case of : (1958)ILLJ544SC . The learned Chief Justice after quoting in extenso Articles 310 and 311 of the Constitution summarised the position as follows:

'The exceptions contemplated by the opening words of Article 310(1) quite clearly refer, inter alia, to Arts. 124, 148, 218 and 324. . . Subject to these exceptions our Constitution, by Article 310(1), has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor, as the case may be and has, by Article 311, imposed two qualifications on the exercise of such pleasure. In other words the provisions of Article 311 operate as proviso to Article 310(1) ..... .Passingon to Article 311 we find that it gives a two-fold protection to persons who come within the article, namely (1) against dismissal or removal by an authority subordinate to that by which they were appointed and (2) against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them.'

The same view was expressed by the Supreme Court in the case of Khem Chand v. Union of India : (1959)ILLJ167SC wherein the learned Chief Justice observed as follows:

'The limitations thus imposed on the exercise of the pleasure of the President or the Governor in the matter of the dismissal, removal or reduction in rank of Government servants constitute the measure of the constitutional protection afforded to the Government servants by Article 311(2).'

31. That being the position in law under the Constitution as explained by the Supreme Court in the two cases cited above, the plaintiff cannot succeed unless he can show that he was not given reasonable opportunity to show cause against the action proposed to be taken in regard to him. Clause (1) of Article 311 is clearly inapplicable to the plaintiff; so it is not necessary to consider the other protection given to the Government servant under the Constitution. The learned Chief Justice of India indicated the scope of reasonable opportunity in Khem Chand's case : (1959)ILLJ167SC in the following terms:

'To summarise: the reasonable opportunity envisaged by the provision under consideration includes:

(a) An opportunity to deny his guilt and establish ins innocence, which he can only do it 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 defences and finally;

(c) an opportunity to make his representation as to why tne 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 tne charges proved against the Government servant tentatively proposes to inflict one of three punishments and communicates the same to the Government servant.'

32. If we apply this test laid down by the Supreme Court we are bound to hold that the plaintiff was given reasonable opportunity as envisaged by Article 311(2). Departmental proceedings were started against the plaintiff under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. He was told what the charges levelled against him were and the allegations on which the charges were based (vide Annexure A to the plaint). He was given ample opportunity to defend himself before the Enquiring officer by submitting a written statement by way of defence (vide the first annexure to the petition for injunction filed by the plaintiff), by cross-examining the witnesses examined for the State and by examining as his witness J.M. Lahiri, Joint Director of Veterinary Service. After the Enquiring Officer had submitted his report the plaintiff was supplied with a copy of the said report and asked to show cause against the punishment proposed. So he was given an opportunity to make his representation as to why the proposed punishment should not be inflicted upon him. The plaintiff as a matter of fact, submitted an elaborate statement showing cause against his proposed reversion to his substantive post in the lower rank (vide the second annexure to the petition for injunction filed by the plaintiff).

33. The next question is whether the competent authority, in the present case C.K. Roy, Secretary to the Govt. of West Bengal, applied his mind to the gravity or otherwise of the charges proved against the plaintiff before communicating to the plaintiff the punishment proposed to be inflicted upon him. C. K. Roy, no doubt made a mistake in thinking that the plaintiff was found guilty even of the first charge by the Enquiring Officer. But we have explained above that C.K. Roy was not much to be blamed for the said mistake. We have also explained why the error, if any, cannot be said to be an error apparent on the face of the record. In any event the error is not such from which it can be inferred that C.K. Roy did not apply his mind to the gravity or otherwise of the charges proved against the plaintiff before intimating the plaintiff the punishment proposed to be inflicted upon him. Therefore, mere is no escape from the conclusion that the plaintiff obtained full and reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

34. It is however argued on behalf of the plaintiff that reasonable opportunity implies that the Enquiring Officer must conduct theenquiry properly by carefully weighing the evidence for and against the servant before arriving at his findings on the charges levelled against him. The next step in the argument is mat if it is found by the Civil Court that the findings of the Enquiring Officer are against the weight of evidence or are based on no evidence, the Civil Court must hold that the Government servant did not get any reasonable opportunity o showing cause against the punishment proposed on such defective findings.

35. It is needless to point out that this is nothing but an attempt to extend the scope of reasonable enquiry as laid down by the Supreme Court in Khem Chand's case : (1959)ILLJ167SC , but that decision does not warrant such extension. Nor has the appellant been able to cite any authority in support of the proposition that reasonable, opportunity implies a correct decision by the Enquiring Officer. It is trite law that a Civil Court cannot sit in appeal over the decision of the Enquiring Officer, a domestic tribunal. As has been pointed out by the Supreme Court in the ease of U.R. Bhatt v. Union of India : AIR1962SC1344 , the Enquiring Officer is not bound by the strict rules of the law of evidence. Therefore, even if the decision of the Enquiring Officer is not strictly in accordance with the provisions of the Evidence Act, its validity cannot be challenged in a Civil Court on that ground. If the scope of reasonable enquiry is extended in the manner suggested by the plaintiff appellant, then in each case it will be necessary for the Civil Court to scrutinise the decision of the Enquiring Officer on merits. But it is well settled that the Civil Court can set aside the decision of a domestic tribunal like the Enquiring Officer only on certain specified grounds, namely (1) that it has acted under bias or bad faith, (2) that it has violated the principles of natural justice and (3) that it has exceeded its jurisdiction. The following proposition has been laid down by a Division Bench of our High Court in State Medical Faculty of West Bengal v. Kshiti Bhus : AIR1961Cal31 .

'The decision of such a domestic body or a tribunal ...... can only be interfered withby the courts of law on three main principles, namely (1) that such domestic authorities have acted under 'bias or in bad faith and mala fide, (2) that such authorities have violated the principle of natural justice in the proceedings and conclusions before it and (3) that such domestic authorities have exceeded their jurisdiction under the statutes, rules and regulations, regulating their duties and procedure.

36. In the present case there is nothing on record to show that the Enquiring Officer acted under bias or in bad faith and mala fide. He no doubt suggested that it was for the authority concerned to decide whether a fresh charge should be drawn up mentioning Rule 47 instead of Rule 103. But neither bias nor bad faith and mala fides can be inferred from this. Next, it cannot be said that the Enquiring Officer exceeded his jurisdiction in conducting the enquiry. It was faintly suggested that the Enquiring Officer exceeded his jurisdiction insuggesting that the proper punishment for the plaintiff would be his permanent reversion to his substantive post. But this was merely his suggestion. The enquiry was conducted in accordance with the Rules under which the proceeding was initiated against the plaintiff. Then again the recommendation of the Enquiring Officer was permanent reversion, but in the order finally passed on 14th November, 1958 the word 'permanent' is not there,

37. So far as the question of natural justice is concerned, it is contended on behalf of the appellant that the Enquiring Officer violated the principles of natural justice in drawing his conclusions. P.B. Mukharji, J. in the case of : AIR1961Cal31 has no doubt said that the decision of a domestic tribunal can be interfered with if it violates the principles of natural justice not only in the proceedings but in the conclusions before it. His Lordship has not explained what is exactly meant by the expression 'natural justice in the conclusion before the tribunal.' It is contended on behalf of the appellant that this expression means that if the Civil Court finds on an examination of the materials placed before the Enquiring officer that the conclusion of the Enquiring Officer as to the guilt of the Government was not justified, then the Civil Court is entitled to set aside the decision of the Enquiring Officer on the ground that the principles of natural justice have been violated. In other words, it is suggested by the appellant that in the name of natural justice, the Civil Court can sit in appeal over the decision of the domestic tribunal. We are, however, not prepared to accept such extreme contention. The principle of natural justice cannot be and has not been extended to this extent. We are therefore of opinion that the appellant has not been able to make out a case for interfering with the findings and decision of the Enquiring Officer.

38. The appellant wants us to set aside the decision of the Enquiring Officer so that he mayget the declaration asked for. But he forgets lat ultimately the order reverting him to his substantive post in the lower rank was passed by the Governor. Reference may be made in this connection to the following observations of the Supreme Court in the case of : AIR1962SC1344 :

'The order of discharge from service passed against him by order of the Governor General is not liable to be questioned on the ground that the materials may not have justified the passing of that order. It is not within the competence of the Civil Court to sit in judgment over the decision of the authority who is competent by law to dismiss a public servant provided he has been afforded an opportunity to defend himself consistently with the substance of the constitutional guarantee.'

In the present case it cannot be said that the appellant has not been afforded an opportunity to defend himself consistently with the substance of the Constitutional guarantee laid down in Article 311(2). That being the position the order of the Governor reverting the plaintiff-appellant to his substantive post in thelower rank cannot be questioned in the present suit.

39. Even if we turn to the findings of the Enquiring Officer, it cannot be said that they are not supported by any evidence on record or that they are perverse. The main grievance of the appellant is that but for the unwarranted finding of the Enquiring Officer that he was in overall charge of the relief operations in the District of Cooch-Bihar, he would have been found not guilty of all the charges laid against him. Can it be said that the finding of the Enquiring Officer that the appellant was in over-all charge of the relief operations is either perverse or not supported by any evidence? On this question the learned Judge has observed as follows:

'It is quite true that there is nothing specific about the plaintiff being put in charge of the relief operations in the District of Cooch Bihar in the radiogram (Ext. 1) mentioned. But it cannot be affirmed with certainty that he did not know the contents of the actual order and Ext. 3 certainly may lend support to the presumption that he knew very well that he was to be in charge of relief operation for the District of Cooch-Bihar, as his counter-part was in charge of the neighbouring District of Jalpaiguri. Strictly speaking, therefore, while a court might on evidence come to a different finding on this point, the finding of the Enquiring Officer cannot, in my judgment, be considered to be perverse.'

We entirely agree with the above view of the learned Judge.

40. The Enquiring Officer relied on the order dated 30th August, 1954 of the then Secretary of the said Department in deciding whether the appellant was in over-all charge of the relief operations. He observed as follows:

'It also appears from the order dated 30th August, 1954 of the then Secretary, Agriculture, Animal Husbandry and Forest Department File No. 37-55/54 that Sri Mukherjee (appellant) was appointed to be in charge of the relief operations in the District of Cooch-Bihar.'

When the aforesaid order was shown to him in course of his deposition in the present suit the appellant said that this was never communicated to him by the Director or by any other officer of his Department. He further said that he first came to know of this after the Enquiring Officer had submitted his report. He admits that on 30th August, 1954 Dr. Dutta, Director of his Department told him that the Secretary Mr. K. Sen, I. C. S. desired that he should organise relief centres in Jalpaiguri and Cooch Behar. He also admits that on the 14th of the next month Mr. K. Sen requested him to organise relief centres in the District of Jalpaiguri. It is quite likely that the order dated 30th August, 1954 recorded by K. Sen, I. C. S. was communicated to the appellant either by Dr. Dutta or by K. Sen himself. If these facts are considered along with' Ext. 3, a report submitted, may be for publicity, by the appellant to the Deputy Commissioner Cooch Behar, it cannot be said that the Enquiring Officer was not justified in concluding that the appellant was placed in over-all charge of the relief operations in the District of Cooch Behar. Ext. 5, being the deposition of J.M. Lahiri before the Enquiring Officer is farfrom convincing. At first he said that ho did not know, when he said mat as far as he remembered no order was issued by the Directorate placing N. G. Mukherjee in over-all charge of the relief operation in the District of Cooch Behar, He, however, said that no instruction was issued to the appellant by the Directorate as to what exactly he was required to dp in connection with the relief operation. But then there is a note appended to his deposition to the following effect:

'To make sure the Directorate file regarding flood-relief may please be seen.'

So the deposition of J.M. Lahiri practically proves nothing. Moreover, J.M. Lahiri was not examined as a witness in the suit. Therefore it is difficult to attach any importance to his deposition before the Enquiring Officer.

41. So even on merits, it cannot be said that the findings of the Enquiring Officer is so perverse that no authority or tribunal discharging judicial or quasi-judicial function could not have reasonably arrived at those findings.

42. On behalf of the respondent it was contended that the suit was barred by the principles of res judicata. The appellant filed an application under Article 226 of the Constitution challenging the validity of the order of reversion. The said application was dismissed by Sinha J. on 4th May, 1959. In the paper book only the judgment of Sinha J. has been printed, The petition under Article 226 and the affidavits-in-opposition and reply are not before us. It is not possible to ascertain the reliefs prayed for in the said application under Article 226. From the judgment it appears that the validity of the order of reversion was challenged on the ground of error apparent on the face of the record. The error relied upon appears to be the observation in the notice to show cause against the proposed punishment that the appellant was found guilty of all the three charges, when in fact he was found not guilty of the first charge. The scope of the present suit seems to be much more comprehensive than the petition under Article 226. In the petition under Article 226 the appellant appears to have challenged the validity of the order dated 18th March, 1958 asking the appellant to show cause against the proposed punishment, whereas in the present suit the appellant has challenged the validity of the charge sheet dated 21st February, 1957, the 'report of the Enquiring Officer, dated 10th August 1957, the orders dated 18th March, 1958, the order of reversion dated 14th November, 1958 and the order dated 29th November, 1958 posting the appellant on the basis of the order of reversion. Therefore the decision on the petition under Article 226 may not operate as res judicata in regard to the present suit. But it is contended on behalf of the respondent that what operates as res judicata is the actual decision. The actual decision in that petition under Article 226, according to the respondent, was that the order of reversion was valid and legal. There is much force in this contention. But in view of our decision on the, competence of the Civil Court to interfere with the order of reversion passed by the Governor and with the findings of the Enquiring Officer, we are not inclined to pass any opinion on the question of res judicata.

43. In the result the decision of the lower court is affirmed and the appeal is dismissed without costs.


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