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Atindra Nath Mukherjee Vs. G.F. Gillot and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 274 of 1953 (Mandamus)
Judge
Reported inAIR1955Cal543,59CWN835
ActsConstitution of India - Articles 310, 311(2), 313 and 372(1); ;Government of India Act, 1935 - Section 240(3); ;Civil Services (Classification, Control and Appeal) Rules - Rule 55
AppellantAtindra Nath Mukherjee
RespondentG.F. Gillot and ors.
Appellant AdvocateH.N. Roy Choudhury, Adv.
Respondent AdvocateAnil Kumar Das Gupta and ;S.K. Roy Choudhury, Advs.
DispositionAppeal dismissed
Cases ReferredGadadhar Dhal v. Union of India
Excerpt:
- chakravartti, c.j.1. the appellant before us has lost a fairly good job just for a pair of shoes. he was employed in the metal and steel factory, ishapore, in the capacity of a godown-keeper of the senior grade. it has been found against him departmentally that while so employed, he on 28-8-1951, ordered a labourer of the factory to make a pair of leather sandals for his personal use and that he also supplied the labourer with the requisite quantity of material from the government stores.if the appellant's transgression had stopped at that point, i do not know whether his employers would have taken as serious view of it as they have done, but they have also found that the appellant caused the issue of the material to be shown against a contract which had, in fact, been executed long ago,.....
Judgment:

Chakravartti, C.J.

1. The appellant before us has lost a fairly good job just for a pair of shoes. He was employed in the Metal and Steel Factory, Ishapore, in the capacity of a Godown-Keeper of the Senior Grade. It has been found against him departmentally that while so employed, he on 28-8-1951, ordered a labourer of the factory to make a pair of leather sandals for his personal use and that he also supplied the labourer with the requisite quantity of material from the Government stores.

If the appellant's transgression had stopped at that point, I do not know whether his employers would have taken as serious view of it as they have done, but they have also found that the appellant caused the issue of the material to be shown against a contract which had, in fact, been executed long ago, Upon-the above findings the appellant has been removed from his office, but he complains that his removal has not been in accordance with law.

2.It will be convenient now to state the 'facts in somewhat fuller detail. The Metal and Steel Factory at Shapiro is one of the Indian Ordnance Factories under the control of the Ministry of Defence, Gvernment of India. The post-held by the appellant was a civilian post, but attached to the Army and paid for from the Defence Service Estimates. What his duties were is not very clear, but since he was a Godown-Keeper it may be presumed that he was in charge of some Government store or stores.

According to the respondents, information had reached the Security Staff of the Factory that, of late, much unauthorised work was being done in the Belting Section and on 28-8-1951, a Supervisor of the Security Department received some definite information about some unauthorised work going on at the time. He paid a surprise visit and found one Sabdar Hossain, a labourer employed in the factory, making a pair of sandals. On being questioned, the labourer replied that he had been ordered by the appellant to make him a pair of sandals. It would seem that a format statement was thereupon taken from Sabdar Hossain and the appellant was also interrogated.

Thereafter on 6-9-1951, a charge-sheet was served on the appellant by which he was called upon to answer two charges, one being that he had wrongfully directed Sabdar Hossain to make him a pair of leather sandals during the working hours of the factory and the other being that he had supplied the required leather to Sabdar Hossain showing the leather as issued for the execution of another contract which had been completed long ago. The conduct involved in both the charges was described as 'gross misconduct' and the appellant was further charged with having intended to defraud the Government.

The charge-sheet was accompanied by certain other papers which were referred to as materials supporting the charges. In fact, they were two extracts from the statements respectively taken from, Sabdar Hossain and the appellant himself. In his statement Sabdar Hossain had stated that the appellant had directed him to make a new pair of sandals of the same kind as an old pair and that as soon as he (Sabdar Hossain) had seen the Supervisor of the Security Department approaching, he had tried to conceal the stealthy manufacture from the Supervisor by throwing the sandal towards a rack.

The appellant's statement contained an admission that he had asked Sabdar Hossain to repair one pair of slippers but he added that it was not for his personal use but for use in the Power House and that he could not say whether the two pounds of leather issued by him had been given to Sabdar Hossain for the completion of that job.

3. The appellant was allowed a weak's time to submit his written-statement, if he desired to submit any. The written statement was submitted on 11-9-1951, by which the allegations were denied and it was averred that-whatever had been done by the appellant, had been done in the course of an honest discharge of his official duties.

4. The next thing that happened was that a Court of Enquiry was convened by the superior authorities, but it appears that the composition of the Court was changed at least once and the Court which actually held the enquiry was constituted on 2-11-1951. The appellant was invited to attend the enquiry, to cross-examine the official witnesses and to make his own defence. He availed himself of the facility offered to him and not only cross-examined the witnesses, but also caused the official records to be produced before the Court in order to help him in making out his case.

In due course, the proceedings of the enquiry were forwarded to the Director-General. Ordnance Factories, for his consideration. On 9-3-1952, the appellant received a notice dated the 29th of February and the 4th of March, 1952, in which it was stated that the Director-General had carefully examined the proceedings of the Court of Inquiry and that he considered that both the cases of gross misconduct, as set out in the charge-sheet served on the appellant, had been established as true. The notice went on to ask the appellant to show cause why he should not be removed from service and added that his representation should be submitted within seven days of the receipt of the notice.

5. The appellant submitted a representation which apparently made no impression on the authorities. On 12-6-1952, an order was passed by the Director-General of Ordnance Factories, removing him from service.

6. Thereafter, the appellant moved this Court under Article 226 of the Constitution and obtained a. Rule. At the final hearing, however, the Rule was discharged by Sinha J. it is from that order that the present appeal has been preferred.

7. The only point urged before Sinha J. was that the removal of the appellant from service had been bad in law, inasmuch as he had not been given a reasonable opportunity to show cause against the action proposed to be taken against him and that he had not been given such opportunity, because no copy of the report made by the Court of Enquiry had been made available to him. That contention, which Sinha J. repealed, has been the main contention before us as well, but before taking it up for examination, I might dispose of certain new points which Mr. Roy Choudhury attempted to raise on behalf of the appellant.

8. It was contended, in the first place, that the whole of the enquiry against the appellant had been bad, inasmuch as the charges he had been called upon, to answer lacked clarity and did not give him sufficient notice of the case which he was being called upon to meet. In my judgment, it is wholly impossible to allow the appellant to take any point in this appeal regarding any alleged defect in the charges. In the first place, no such point was taken before the learned trial Judge. In the second place, the appellant does not seem to have complained at any stage of the proceedings had against him that he was finding difficulty in appreciating the tme meaning and effect of the charges and therefore in making his defence.

We invited Mr. Roy Choudhury to say whether in the writte-statement filed by him, the appellant had made any complaint regarding the obscurity of the charges. We were informed that -10 such complaint had been made. Even in the petition made to this Court under Article 226, the appellant had not alleged it as one of the defects of the proceedings had against him that the charges with which they were concerned were obscure or unintelligible. I am, therefore, of opinion that the first new point sought to be raised by Mr. Roy Choudliuiy is not open to his client. I might add that in fact the charges were as clear as any charges could be.

9. It was said, in the second place, that assuming that the procedure followed up to the enquiry held by the Court of Enquiry had been wholly regular even then the order passed by the Director- General was bad, inasmuch as there was nothing to show that he had given due consideration to the evidence before the Court or the Court's finding thereon. With regard to his second point as well Mr. Roy Choudhury is in the same difficulty as with regard to his first point. As I have stated already, his client did make a representation in response to the notice that he was to show cause why the two charges framed against him having been found established, he should not be removed from office.

We asked Mr. Roy Choudhury, as we did in the case of his first point, whether in the representation he had submitted, his client had made any complaint that the Director General of Ordnance Factories had not or did not appear to have given due, or any consideration to the findings of the Court or the proceedings before them. On this occasion also we were informed that no such complaint had been made. As in the case of the first point, so in the case of the second, even the petition to this- Court does not contain any aliegatiou that the Director-General had not given proper or any consideration to the proceedings of the Court.

Indeed, it seems impossible to see, how in view of the clear statement in the notice served upon the appellant on 9-13-1952, he could say that the Director-General had not given due consideration to the lacis of the case and had not arrived at a finding in a proper way. The notice said in the clearest terms that the Director-General had carefully examined the proceedings ot die Court and that he had come to the decision that both the charges of misconduct had been substantiated.

The appellant was not able to place any mate rial before us on the basis of which he could say that the statement made by the Director-General in-the notice was not correct and, indeed, no attempt had been made to make any such allegation before the learned trial Judge. The second of the new points sought to be raised by Mr. Roy Choudhury must accordingly also fail.

10. I may now proceed to consider what is the principal and indeed the only point of substance in the case. What that point is I have already mentioned. As Sinha J. has pointed out, the appellant's case that he had not been given a reasonable opportunity to show cause against the action proposed to be taken against him and that an omission to give such opportunity had occurred, because no copy of the report of the Court of Enquiry had been made available to him, was based Eqirely upon Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and particularly on a note recently added, below the Rule. The note which is introduced by the caption 'Government of India's decision' states, to quote only the material part, that

'alter the enquiry against a Government servant has been completed and after the punishing authority has' arrived at provisional conclusions in regard to the penalty to be imposed, the accused officer should, it the penalty proposed is dismissal, removal or reduction, be supplied with a copy of the report of the enquiring authority and be called, upon to show cause, within a reasonable time not'. ordinarily exceeding one month, against the particular penalty proposed to be inflicted.'

The contention of the appellant was that. Rule 35 applied to him and if it did, the Government of India's decision as to how the Rule was to be worked would also apply and, therefore, by not having been supplied with a copy of the report of the Court of Enquiry, he had been depirived of a facility assured to him by law. The respondents' reply wan that R. 55 did mot apply to the appellant at all, but he was governed by Army Instructions, particularly the Instructions described as No. 212 dated 25-6-1949.

11. The competition in the argument before the learned trial Judge was, therefore, between Army Instruction No. 212 and Rule 55 of the Civil Services (Classification., Control and Appeal) Rules together with the note thereto and it seems to have been assumed on both sides that the right of Government Employees to whom Rule 55 applied to be served with a copy of the report of the enquiring authority flowed from the Rule itself and, therefore, if the Rule applicd, the appellant's contention could not be resisted.

Sinha J. accepted' the contention of the respondents and held that Rule 55 did not apply to the appellant, who was governed by the Army instructions. But the learned Judge also held that even assuming that Rule 55 applied, the appellant could not insist that he was entitled to a copy of the report of the Court of Enquiry as of right and in any event, regardless of the circumstances of the case and that the mere failure to supply him with a copy of the report was sufficient to invalidate the order of removal.

In the learned Judge's view, the note added to Rule 55 was based on the decision of the Federal Court, subsequently affirmed by the Privy Council, in the case of - 'High Commissioners for India v. I. M. Lall , but the decision had not laid down that a copy pf the report of the enquiring officer or the enquiring body must be supplied to the officer proceeded against in every case and that whenever a failure in that regard occurred, it would have to be held that reasonable opportunity for defending himself had not been given to the officer.

According to the learned Judge, the Federal Court and subsequently the Privy Council had clearly said that each case much depend on its own facts and in his view it was not possible to say, on the facts of the present ease, that the appellant could justly complain that he had been prevented from explaining why he should not be removed from office, because he had not received a report of the court of enquiry.

12. Although there was a straight contest before the trial Court as to whether Army Instruction No. 212 would apply to an officer of the appellant's position or Rule 55, the respondents, although they were representing the State, did very little indeed to clarity the position and to put the Court m- possession of the necessary materials regarding the nature, effect and scope of the Army Instructions. If they did anything at all, they only helped to confuse and obscure the issue by causing a succession of affidavits to be sworn, each contradicting its predecessor.

The affidavits were all affirmed by one Sri T. G. Narayanam, who described himself as the Deputy Assistant Director-General, Ordnance Factories, and who might be expected, as One occupying that high position to know or at least to inform himself of the authority, in the exercise of which the Army Instructions had been framed and the considerations upon which their applicability depended. His actual performance, however, makes dismal reading. Although obviously concerned to make out that the Civil Services (Classification. Control and Appeal) Rules could not apply to the appellant who was governed by the Army Instructions, the Deputy Assistant Director-General nevertheless swore that the appellant was a member of a Subordinate Service which was one of the services classified undet-and governed by the Civil Services (Classification, Control and Appeal) Rules.

Not stopping there, he went on to swear that the Army Instructions had been framed under the provisions of the Civil Services (Classification, Con-not and Appeal) Rules, forgetting altogether that he was destroying the whole case of the respondents. In the second affidavit affirmed by him on 3-3-1953, the Deputy Assistant Director-General did not specify under which of the Civil Services (Classification, Control and Appeal) Rules the Army Instructions had been framed, but he was mace explicit in the next affidavit affirmed by him on 29-4-1953 where he said that the Army Instructions had been framed under R. 44 of the Civil Services (Classification, Control and Appeal) Rules.

It is perfectly clear that the person who was swearing affidavits of that kind had not the slightest conception of what ho was doing and was totally unconscious that he was assimilating the Army Instructions to the Civil Services (Classification, Control and Appeal) Rules and thereby making the appellant a member of a Civil Services, entitled to be treated as such. I should not omit to mention that while committing such confusion, the Deputy Assistant Director-General was also protesting in somewhat emphatic language that the appellant was governed by Army Instruction! No. 212 of 1949, but he seems not to have realised that he had already destroyed all basis for claiming that the Army Instructions stood on a separate footing with which members of the Civil Services had no concern.

Mr. Das Gupta who appeared before us on behalf of the respondents in this appeal frankly conceded that the statements made by the Deputy Assistant Director-General were utterly incorrect and that no attention should be paid to them. He did not overlook the fact that there were admissions by the respondents made through a chosen spokesman, but he contended that mistaken admissions on matters of law could not really bind any party and that we should examine the Rules and the Army Instructions for ourselves.

13. Even when launching upon that enquiry on our own account, we do not find that we can go very far. The only basis of the Army Instructions mentioned in the affidavits was a resolution of the Government of India in the Military Department, being Resolution No. 2228 published on-22-12-1917, but in exercise of what authority that resolution was passed and whether it was law or an executive decision could not be stated by anyone.

As far as we can see, the Government of India Act of 1915-19, that of 1935 and the present Constitution-all regard the Defence Services as a separate unit altogether, not directly 'connected with the ordinary organs of the Government to which the Civil Services belong and appertain. The successive Constitutions appear to have been concerned with only three organs of the State, namely, the executive, the legislature and the judiciary and if there has been any reference to Defence and Defence Services at all, ft has been only, except in the case of the 1935 Act, to say that their control lay vested in the Head of the State, whether the Governor-General or as now, the President,

The Act of 1915-19 merely said in Section 33 that the superintendence, direction and control of the civil and military government of India was vested in the Governor-General in Council. That is the solitary reference to Defence contained in the Act, although there are two sections relating to the Commander-in-Chief and one section requiring preference to be given to sons of the members of the fighting forces and one section relating to defence expencuture.

Besides affording us these tiny glimpses of how the defence of the country and its military needs were being provided for, the curtain over the subject of Defence is not'lifted. The next Act of 1935 is a little more vocal and contains a whole chapter, though a short one, regarding Defence Services. It is Chapter I of Part X and consists of Sections 232 to 239. The reason why that Chapter was added is to be found in para 295 of the report of the Joint Parliamentary Committee Vol. I and Para 111 of the White Paper.

The Chapter provides for the control of Defence appointments, saves old rights of appeal, charges the pay of the members of the Defence Services and other Defence expenditure on the Federal revenues and says that those provisions would apply, not only to members of the fighting forces, but also to persons who

'hold or have held, posts in India connected with the equipment or administration, of those forces or otherwise connected with defence.''

A provision for giving preference to sons ot persons who have been in Military or Civil Services of the Crown is also included. The present Constitution of India, however, seems to have gone back to the reticence of the Government of India Act of 1915-19 and besides stating in Article 53(2) that the supreme command of the Defence Forces shall be vested in the President and that the exercise thereof shall be regulated by law and providing in Article 310 that except as expressly provided by the Constitution, every person who is a member of a defence service or holds any post connected with defence, holds; the same during the pleasure of the President, like persons who are members of the civil service, nothing whatever is said about the defence personnel or the conditions of their service.

I have omitted to mention that like the Constitution Acts preceding it, the Constitution also makes the defence expenditure a charge on the public revenues of the country and therefore non-votabje. But however few and meagre the provisions regarding defence services in the Constitution Acts may be, a clear line is drawn in each one of them between the civil services and the defence services.

The civil services Or rather the public services occupy elaborate chapters in each one of the Constitution Acts and there is no obscurity as regards the nature of the services to which they are devoted. Taking the Act of 1915-19 first, Part VIIA of the Act is expressly devoted to the civil services in Injdia and Section 96B of the Act, which is the predecessor of both Article 311 of the present Constitution and Section 240 of the Act of 1935, relates expressly to persons in the civil 'service of the Crown in India.

The provision has no concern with -the defence services. The Act of 1935, again, deals with civil services in a chapter next following that which relates to defence services and Section 240 of the Act which, as I have said, is a successor to Section 96B of the Act of 1915-19 is again concerned with

'every person who is a member of a civil service of the Crown in India, or holds any civil postunder the Crown.'

Like its predecessor, it has no reference to the defence services. Similarly, Article 311 of the present Constitution is concerned with persons who are members of the civil service of the Union or an all-India service or a civil service of a State or hold civil posts under the Union. This Article also has no concern with members of deferee services.

It will thus appear that so far as members belonging to the defence services and holding military appointments are concerned, there can be no question at all that provisions relating to civil services under the Crown or under the Union have no application to their case. The question in the present case, however, is complicated by the fact that the appellant does not hold a military appointment, although he h'Ids an appointment in a service controlled by the Ministry of Defence, but nevertheless he holds what has been described as a civilian post.

14. As I have stated, not much assistance was given to the Court in arriving at a firm conclusion on this point by the respondents who might be expected to know what the laws governing the defence services were. We were informed that a reference had been made to higher authorities but the replies received were not such that on their basis learned counsel would make any clear case before the Court,

So far as one can see, it would appear that in the eye of the successive Constitutions, members of the defence services, whether military personnel strictly so called or whether persons occupying civil posts, attached to Defence and paid from the Defence Estimates, are in the same position. That would seem to be the clear import of Section 238 of the Government of India Act 1935. The Joint Parliamentary Committee defined members of Defence Services as a whole

'as comprising hot only the officers, non-commissioned officers and men of Defence Forces in India but also the corresponding grades of civil officials whose work lies within the sphere of defence and who are paid from the Defence estimates.'

If such be the composition of the Defence services, the appellant, like military personnel, strictly so called, would be outside the' purview of the provisions relating to the members of the civil services and would be governed by whatever laws or rules or orders might be applicable to defence services. As I have stated already, the contention of the respondents was that it was Army Instruction1 No. 212 which applied to the instant case.

Assuming it does, the next question at once arises as to whether having been framed in 1949. it has been continued in force and if it has been, by virtue of what provision? Mr. Das Gupta frankly conceded before us that he could not contend that the Army Instruction No, 212 would be taken to be a law within the meaning of Article 372(1) of the Constitution. He said, however, that Article 313 might apply and that he had been authoritatively advised that that was the Article where illumination was to be sought.

But Article 313 also is concerned with 'laws'' and if, as with respect to Article 392(1), Army Instructions No. 212 suffers from the handicap that it cannot be called a law, the same handicap exists with respect to Article 313 as well.

15. It appears to me that in' the present state of our knowledge which has certainly not been expanded by the efforts made by the respondents, it is not possible to say further than this that the defence services are quite distinct from the civil services and that any provisions which are expressly and specifically limited to civil services or persons holding civil posts in such services cannot be applicable to the defence services or persons holding civil posts in them.

Even this I would not finally lay down and the observation I have just made must be treated only as a tentative one. Sirxe the status and the interests of a very large class of important public servants depend upon the true interpretation of the relevant rules and laws applicable to defence services and the legislative provisions upon, which they are based, it would be wrong to record a final conclusion -in the absence of a proper argument.

16. I feel all the less-inclined to attempt to reach a final conclusion on the first point, because in my view, it is possible to decide the appeal on the second of the grounds given by Sinha, J., though on a slightly different basis. He seems to have thought, if I may say so, with respect, that the right of a civil servant to be provided with a copy of the report of the enquiring officer or body emanated from Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and that; therefore, if the Rule applied, the note added thereto would ap-'' ply as well. With great respect, it seems to me that the real question is not whether Rule 55 applies, but whether Section 240(3) of the Government of India Act of 1935 or Clause (2} of Article 311 of the present Constitution; applies. In ' neither the Federal Court, nor the Privy Council said that it was implicit in Rule 55 that the officer proceeded against should be furnished with a copy of the report of the enquiry committee or enquiring officer and the note to that Rule was not added by v-y of making explicit what was inmplicit in it.

In an illuminating and instructive analysis of Section 240 of the Act of 1935 and its predecessor, the Judicial Committee pointed out that the Act of 1915-19 contained no provision corresponding to Section 240(3) of the later Act of 1935. There was nothing in the earlier Constitution Act about providing -a reasonable opportunity to officers proceeded against for .showing cause against the action proposed to be taken against them.

That matter was left to Rule 55. When, how-. ever, the Act of 1935 came to be passed and Section 96B of the earlier Act to be re-enacted as Section 240, a new sub-section, numbly, Sub-section. (S), was added and it was for the first time provided in the Constitution Act itself that no person who was a member of a civil service of the Crowu in India, or held a civil post tinder the Crown

'shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause again it the action proposed to be taken in legard to him.'

As the Judicial Committee pointed out, the mutter no longer rested on rules alterable from time to time, but was now the subject-matter of a mandatory provision, qualifying the right of the Crown under sub-section (1) of Section 240, which was a right to keep persons in its service during its pleasure. Their Lordships added that the provisions of Sub-section (3) being prohibitory in form, could not be construed as merely permissive.

17. The question, therefore, is not whether Rule 55 applied to the appellant, but whether Section 240(3) or Article 311(2) of the Constitution did. As a matter of fact, Rule 55 is really no longer required as the Privy Council pointed out and as to the note to the Rule, it cannot, as a mere decision of Government, have the force of law in so far as it is not warranted by the Privy Council's construction ol Section 240(3) of the Constitution Act of 1935.

I can, however, think of an argument that whether or not the note has the force of law, since Government had framed it for application to officers to whom Rule 55 applied, they could not be allowed to discriminate against the appellant by withholding from him the privilege of the note, if Rule 55 applied to him. That argument was not advanced arid in the absence of any material as to how the note was followed in practice, we would reserve the important point for consideration, in a future case.

In the present case I would only assume that the appellant was entitled to such reasonable opportunity as is warranted by Article 311(2), What were his rights under that provision? .

18. The next question, therefore, is what is really meant when it is said that a person in the civil service of a State, before he is dismissed or reduced in rank, must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' The Judicial Committee examined that question at length. Their Lordships pointed out that there was a difference between Rule 55 and Section 240(3) of the Act of 1935 in that while the Rule spoke of affording an opportunity to the officer concerned of defending himself against the charges, the section spoke of an opportunity being given of showing cause against trie action proposed to be taken.

Passing on to explain when action could be said to be proposed to be taken, their Lordships observed that until a definite conclusion had been come to on the charges and the actual punishment to follow was provisionally determined on, it could not he said that any action was proposed within the meaning of the section. The import of that construction of the section is that what Section 240(3) contemplates, at least primarily. Is giving an opportunity for showing cause against a proposed punishment being inflicted.

As to the time when and the manner in which the opportunity is to be given, their Lordships agreed with the majority view of the Federal Court. The Federal Court had observed that each case would have to turn on its own facts and they had gone on to say as follows:

'**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 an which it is proposed to take such action -and must lie given a reasonable opportunity of showing cause why such punishment should not be imposed,'

Previously, the High Court and one of the Judges of the Federal Court had expressed the view that the Legislature could not be held to have intended that there should be two enquiries, one to establish the guilt of the officer and another lo determine what the appropriate punishment would be and that the officer should have reasonable and independent opportunities to defend himself on the two occasions.

The Judicial Committee pointed out that the defence of the officer concerned comprised not only his defence against the charges, but also his defence against the punishment proposed to be inflicted, and therefore their Lordships saw no difficulty in the statutory opportunity being reasonably afforded at more than one stage. That expression of opinion, however, does not involve that even after an officer has been given a full opportunity of 'defending himself against the charges as such, he should be given another opportunity for doing the same thing over again when he is asked to show cause against the proposed punishment & that, on the second, occasion, he will be entitled to show not only that, even assuming that the charges had been established, the proposed punishment should not be inflicted upon him, but also that the charges had not been established at all. The opinion of their Lordships on this question is expressed clearly in the following passage:

'If the civil servant has been through an inquiry under ft. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry.'

What their Lordships were saying therefore was that once an officer had been afforded an opportunity of meeting the charges, he could not] reasonably insist that he should be allowed to, make a second attempt to do the same thing but he would be entitled to say that his rights had not yet been exhausted and that he would still be entitled to show cause against the punishment proposed on the basis, however, that he had been1 guilty of the acts found against him.

19. It would, therefore, seem that when full opportunity has been given to meet the charges at an enquiry properly held, the second opportunity which the statute provides for and which is an opportunity to show cause against the proposed punishment, cannot comprise, an opportunity for refuting the charges once again. Some doubt on that view might appear to be thrown by' another passage in the judgment of the Federal Court of which also the Judicial Committee approved. Referring to the position of the officer concerned in that case, the Chief Justice of the Federal Court gave a summary of how he had been treated. That recital of facts ended with the following statement:

'At no time was he given an opportunity, before dismissal, of making representations against the accuracy of facts found by Mr. Anderson or Mr. Brayne in their reports or against the adverse deductions drawn against him, particularly 'by Mr. Brayne,'

The Judicial Committee said that the learned Chief Justice bad correctly stated the respondent's position.

20. The above, however, was only a description of the position of Mr. Lall and a statement of fact that fie had riot been given any opportunity to criticize the accuracy of the facts found by the enquiring officers and to make his submissions on the propriety of the inferences drawn by them. Neither the Federal Court; nor-the .Privy Council said that an opportunity for questioning the accuracy of the facts found by the enquiring officer as also the propriety of his deductions must be given in every case when the officer makes his second representation.

On the other hand, in a passage which I have 'already referred to, the Privy Council said in the [clearest possible terms that after a civil servant had been through the enquiry under Rule 55 and had been afforded a proper opportunity for refuting the charges, he could not include the same matter over again in the subsequent representations made against the punishment proposed. It is true that in Lall's case it was held that the officer was entitled to show cause against both the findings and the proposed punishment, but the reason for taking that view was that he had been asked to show cause against the infliction of all the various forms of punishment even at the time the charges were served upon him and before any of the charges had been investigated into, far less established.

It was in those circumstances that the Federal Court -held and the Privy Council approved of the finding that since the officer had been asked at the very inception of the enquiry to show cause against not only the charges, but also punishments and since no particular punishment had been proposed but all conceivable forms of punishment were crowded into the notice and the opportunity he had been given was a single opportunity, he was entitled in the special facts of that case to say that without a copy of the enquiring officer's report, he could not get a reasonable opportunity of making his representation.

Where the notices are not of that character but where the first chapter of an enquiry against the charges has been gone through in a proper manner, this part of the decision of Lall's case (A) would obviously not apply, as expressly stated by both the Federal Court and the Privy Council.

21. In the present case, the enquiry was actually held under Rule 6 of Army Instruction No. 212. That Rule is virtually a reproduction of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It is perfectly clear and it was not disputed that the appellant got the fullest opportunity of meeting the charges at the stage of the enquiry and he did avail himself of that opportunity. In the language of the' Privy Council, the civil servant had been through an enquiry under Rule 55 and an enquiry properly held.

Such being the facts, he was not, in my view, entitled to insist as a matter of right that irrespective of the circumstances of the case, he was entitled to make a second attempt to meet the charges and in order that he could do so more effectively, he was entitled to be furnished with a copy of the report of the Court of enquiry. I might add that, in fact, there is no report of the Court of enquiry in the present case. Rule 6 does not speak of any report, but speaks only of the proceedings of the enquiry.

The notice served upon the appellant by the Director-General of Ordnance Factories also stated that he had considered the proceedings of the enquiry. There being no report at all, there could be no point in the appellant's contending that he had been prejudiced by not being furnished with a copy of the report. As regards the proceedings, they presumably consisted only of the records of the depositions, but the appellant had been present at the enquiry throughout and had cross-examined the witnesses and, therefore, he certainly knew what the witnesses had said, whether against him or in his favour.

If, nevertheless, he felt some difficulty in framing his defence against the proposed punish ment by reason of not having a copy of the depositions, which is hardly possible since he could DO longer question the findings, he could well have. asked for the copy and if his request was refused he might conceivably have some cause (or eonft-plaint, Mr. Roy Choudhury did not say that any such demand was made and in fact admitted that there had been no such demand.

22. Our attention was drawn to the unreport-ed decision, of Das and Debabrata Mo~okerjee, JJ.t in the case of - 'Gadadhar Dhal v. Union of India', A. F. O. O. No. 252 of 1952 D/- 29-6-1953 (Cal) (B), Mr. Roy Choudhury contended that in that case the (Appeal Court refused to allow Government to make a case contrary to the case they had made in the trial Court, and that similarly we should refuse to allow the respondents in the present case to adopt the same course which they had been seeking to do.

This argument appears to me to be wholly pointless. In the present case the respondents were not trying to take any new point before us. It is true, as I have already said at some length, that the person chosen by them to swear affidavits on their behalf went on from blunder to blunder, but he succeeded in saying one thing which was that it was Army Instruction No. 212 which ajt-lied and not Rule 55.

Resides we arc not deciding this case on the footing that Army Instruction No. 212 applied, but on the footing that Article 311(2) of the Constitution and Rule 55, based thereon, applied as the appellant contended. There is thus no question of the respondents trying to make a new case, though certainly the respondents had no right to make any kind of case before us which they had not made before the trial Court.

As regards the case decided by Das and Debabrata Mookerjee, JJ,, far from refusing to allow the respondents to take the point that Rule 55 did not apply to defence personnel holding civilian posts hut paid for from the Defence Estimates, their Lordships remanded the case in order that the matter might be gone into more fully and gave leave to noth parties to file fresh affidavits.

23. For the reasons given above, the decision of Sinha, J-, must be upheld on the second of the grounds given by him, though I look at the matter from a slightly different angle. I desire to make it clear that I do not decide whether or not an officer to whom the privilege of the note to Rule 55 has been denied, may not raise- a question of discrimination even if the note may not have the force of law, since the point was not taken or argued.

24. The appeal is accordingly dismissed, but there will be no order for costs.

Lahiri, J.

25. I agree.


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