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

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2017 of 1952
Judge
Reported inAIR1953Cal763
ActsCivil Services (Classification, Control and Appeal) Rules, 1930 - Rule 55; ;Constitution of India - Article 311(2)
AppellantAtindra Nath Mukherjee
RespondentG.F. Gillett and ors.
Appellant AdvocatePriti Bhusan Barman and ;H.N. Rai Chaudhury, Advs.
Respondent AdvocateHemendra Kumar Das and ;Smriti Kumar Rai Chaudhury, Advs.
DispositionApplication dismissed
Cases ReferredIndia & Pakistan v. I.M. Lall
Excerpt:
- .....the effect that the remaining six charges were unproven and there should be a further and fuller enquiry.this report was not disclosed to mr. lall but one mr. brayne was deputed to complete the enquiry. he did so and made a report. mr. lall, was then served with notice to show cause why he should not be dismissed, removed or reduced in rank or subjected to such disciplinary action as the competent authority might think fit to enforce. it was held that mr. lall had not had a 'reasonable opportunity' of showing cause as he was entitled to have under section 240 of the government of indian act 1935. the judicial committee agreed with the following observation of the federal court:'it seems to us that the section requires not only notification of the action proposed but of the grounds on.....
Judgment:
ORDER

Sinha, J.

1. The petitioner in this case was employed in the Indian Ordnance Factories, Metal & Steel Factory, Ishapore, which, is run under the Ministry of Defence, Government of India. On or about 2-4-1940 he was holding a civilian post under the Army Department as a godown keeper, senior grade in the pattern shop. It is not denied that this is a service coming under the description 'subordinate services' as dealt with in Part IX of the Civil Services (Classification, Control and Appeal) Rules. It appears from the affidavits that in or about that time, information reached the security staff of the factory that various irregularities were taking place in the belting section and that unauthorised works were being carried out. Mr. Dugal of the security staff is stated to have received certain definite information on 29-8-1951 and paid a surprise visit to the belting section. He found that one Sabdar Hossain, Beltman, was preparing a pair of new leather Sandals from material belonging to the Government but without any authority to do so and without the knowledge of his superior officers.

Upon being questioned the workman said that it was a pair of chappals belonging to Atin Babu, the petitioner. Thereafter the petitioner was served with a charge-sheet dated 6-9-1951. The charges were two in number & are set out in Para, 2 of the petition. The first charge was that a wrongful order was given by the petitioner to the workmanto prepare a pair of new leather Sandals and the second charge was that materials belonging to the Government were supplied for the purpose of preparing the Sandals on a false plea that it was required against a certain requisition made by the Power House. The petitioner was given 7 days' time to answer the charge-sheet which he did on 11-9-1961 denying the charges. Thereupon, a Court of enquiry was formed, which called upon the petitioner to answer the charges. Upon the petitioner's application, the Court caused the official records to be produced before it.

Witnesses were examined and the petitioner was given the fullest opportunity of cross-examining witnesses deposing against him. The report of the Court of enquiry was however not disclosed to the petitioner, nor was he given a copy of such report. On or about 9-3-1952, an order dated 29th February4th March 1952 passed by the Director General, Ordnance Factory, was served upon the petitioner, stating that the Director General had carefully examined the proceedings of the Court of enquiry and had come to the conclusion that both the charges had been established as true and the petitioner was asked to show cause why he should not be removed from service. The petitioner thereupon duly submitted his explanation. On or about 12-6-1952 an order was served upon the petitioner removing him from service. On or about 22-7-1952 the present Rule was issued.

2. The case of the petitioner is based on Rule 55, C.S. (C.C.A.) Rules. It is said that this Rule has not been complied with because the copy of the report of the Court of enquiry was not made available to the petitioner before he was asked to show cause why he should not be removed from service. The Rule as it appears in the Fundamental Rules does not say or lay down that any copy of such report should be supplied, but it appears from the notes appearing at the bottom of the Rule that there exists some kind of an executive instruction to the effect that the Government servant concerned should be supplied with a copy of the report of the enquiring authority before he was called upon to show cause. The reason for this is to be found in the case of -- 'High Commrs. for India & Pakistan v. I.M. Lall', . The facts of that case are shortly as follows:

3. I.M. Lall was a member of the Indian Civil Service. It, appears that Government decided at some point of time to hold a departmental enquiry under Rule 55, C.S. (C. C. A.) rules against him and eight charges were framed. He put in his written statement in answer to the charges and one Mr. J.D. Anderson, Commissioner, Rawalpindi Division, was appointed to hold the departmental enquiry. Mr. Anderson examined Mr. Lall when he pleaded guilty to the first two charges and denied the rest. Mr. Anderson did not examine any witnesses but made his report to the effect that the remaining six charges were unproven and there should be a further and fuller enquiry.

This report was not disclosed to Mr. Lall but one Mr. Brayne was deputed to complete the enquiry. He did so and made a report. Mr. Lall, was then served with notice to show cause why he Should not be dismissed, removed or reduced in rank or subjected to such disciplinary action as the competent authority might think fit to enforce. It was held that Mr. Lall had not had a 'reasonable opportunity' of showing cause as he was entitled to have under Section 240 of the Government of Indian Act 1935. The Judicial Committee agreed with the following observation of the Federal Court:

'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 a reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. 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 what 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 reasonable opportunity of showing cause why such punishment should not be imposed.'

It was held that Mr. Lall was entitled to receive a copy of the report of the Court of enquiry before he was called upon to submit his explanation. It was pursuant to this decision of the Federal Court that the Government issued an executive instruction directing a copy of the report of the Court of enquiry to be furnished to a Government servant before he was called upon to furnish his explanation. It will be observed that in 'Lall's case, (A)', a variety of alternative penalties were proposed to be imposed and he did not know what was the penalty to which he would be subjected to and the particular offence connected with it.

Coming to the facts of the present case, it is firstly argued that the petitioner is not governed by Rule 55 of the C.S. (C.C.A.) Rules but by rules based on the Army Instructions (India) No. 212 which was promulgated by Government on 25-6-1949. I have been informed that these Rules were framed in respect of civilians paid from the Defence Services estimate. So far as the conduct of the enquiry in this particular case is concerned, the Rules contained in the Army Instruction have been followed and no other Rules. According to the Army instructions it is unnecessary to serve the public servant concerned with a copy of the report of the Court of enquiry. It is argued that there was no reason why Rule 55 of C. S. (C.C.A) Rules should not apply as the petitioner holds a civilian post. But it must not be overlooked that the petitioner does not hold a civilian post 'simpliciter' but a civilian post which is paid out of the army estimate.

4. By virtue of a resolution No. 2228 in the military department, published in the Gazette of India dated 22-12-1917, the decisions of the Governor-General in Council on matters affecting the Army as a whole were issued in a form designated ss 'Army Instructions (India)' over the signature of the Secretary to the Government of India. The present Army Instruction (India) No. 212 dated 25-6-1949 was issued by the Government of India over the signature of the Secretary to the Government of India (Ministry of Defence) on the strength of the said resolution framing a set of rules regarding discipline in respect of civilians paid from Defence Services estimates. The Ordnance Factories in India are under the control of and are administered by a Directorate General in the Ministry of Defence.

In pursuance of power delegated under Rule 44Civil Services (Classification, Control and Appeal) Rules 1930 the Government of India in the Ministry of Defence has framed rules by adopting the provisions of the said Army Instructions and has made it applicable to civilians paid from the Defence Services Estimates under the control of the Directorate-General Ordnance Factories. It appears that the decision of the Government was conveyed by an office memorandum dated 8-7-49 to the Director General, Ordnance Factories by the Under Secretary, Ministry of Defence who was empowered to sign the orders. The petitioner before his removal was an employee in the Metal Steel Factory under the Control of the Director General of Ordnance Factories and was a civilian paid from Defence Services Estimates, and as such: is governed by the rules adopted from the Army Instructions (India) No. 212; Rule 55, C. S. (C. C. A) Rules does not apply in his case. These rules (based on the Army Instructions) continue to apply even after the Constitution came into operation, until specific provisions are made (See Article 313 of the Constitution) barring their operation.

5. But even if the petitioner is to be considered as holding a purely civilian post, what is the position in law? Both under Section 240 of the Government of India Act 1935 and Article 311 of the Constitution, the government servant concerned must have a 'reasonable opportunity' of defending himself and explaining his own conduct. I have already pointed out that Rule 65, C.S. (C. C. A) Rules, by itself does not contain any provision that a copy of the report of the Court of inquiry should be supplied. In -- 'Lall's case, (A)', (ibid) it was held that on the particular facts disclosed therein, it could not be said that a reasonable opportunity (as required by Section 240 of the Government of India Act) was given, without making available a copy of the report of the Court of inquiry. The Federal Court was careful to say that the matter must depend upon the facts of each particular case.

As I have pointed out above, Mr. Lall was called upon to show cause why he should not be subjected to a variety of penalties upon a variety of charges. Without getting a copy of the report of the Court of inquiry, he was not in a position to know which penalty was going to be imposed and to which charge it related. In the present case however the facts are entirely different. The charge is fairly simple and consists of the allegation that the petitioner was getting a pair of Sandals made for himself by a Government employee and with government materials. The penalty which was proposed to be imposed was his removal from service. The Court of inquiry gave every possible opportunity to the petitioner to prove his case. A large number of witnesses were examined. The petitioner was granted the opportunity of cross-examining them and he fully availed himself of it. All the official records were produced. How then can it be said that he had no 'reasonable opportunity' of defending himself? On the facts of this case I do not see why he was prevented from explaining why he should not be removed from service because he did not receive the report of the Court of inquiry. In my opinion, the petitioner has had every reasonable opportunity of defending himself and justice has been done.

6. The application must therefore be dismissed.

The rule is discharged. I make no order as tocosts.


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