S. Murtaza Fazl Ali, J.
1. This is an application by the petitioner for an appropriate writ in order to quash an order of the respondent dated 3 October 1962 discharging the petitioner from service.
2. The petitioner was appointed by the respondent as an assistant traffic inspector on 8 January 1960, against a permanent post. On 7 August 1962, the petitioner was posted at Handwara an assistant traffic inspector when a Government transport vehicle No. 697A was Involved In an accident, which, It is alleged, the petitioner himself was driving. Thereupon a chargesheet was submitted against the petitioner by the Deputy Transport Commissioner on 10 August 1962 and the petitioner was asked to explain the charges mentioned in the chargesheet. In the meantime a prosecution was also launched against the petitioner for the very incident which was the subject-matter of the departmental chargesheet. The petitioner pleaded illness hi the first Instance and subsequently he submitted an explanation dated 20 August 1962 praying that the departmental enquiry be stayed during the pendency of the criminal case which was regarding an identical incident lest it may prejudice the case of the petitioner before the criminal Court.
3. No action appears to have been taken on the explanation of the petitioner, nor any notice was sent to him intimating to him that the departmental enquiry was not going to be stayed but Instead on 24 September 1962, the respondent served an order on the petitioner to show cause why he should not be discharged from service inasmuch as the respondent was satisfied from the enquiry report that he had been guilty of rash and negligent driving. This notice is annexure V and it is common ground that the enquiry report on the basis of which this notice was given to the petitioner was not sent to the petitioner at all. Thereafter the petitioner submitted his explanation, which not being accepted, he was discharged from service.
4. Appearing for the petitioner, Sri Tikku has submitted three main points before me.
5. In the first place, he has contended that Section 126 of the State Constitution envisages two opportunities to be given to a Government servant before be can be discharged from service. The first opportunity is the one which is given to him to enable him to defend himself before the departmental enquiry and the second opportunity is after a tentative opinion is formed by the authority about the punishment to be proposed. That this is so, cannot be disputed as it has now been settled by a long course of decisions of the Supreme Court and other High Courts. Sri Padroo, however, submitted that in fact two notices were actually issued to the petitioner. In the first place, there was the notice giving the petitioner the chargesheet and secondly the notice dated 24 September 1962 after the respondent had come to a conclusion on the basis of the enquiry report. It was, however, conceded before me that the enquiry which was held against the petitioner was held behind his back and he did not participate in that enquiry. As already Indicated above, after the prayer of the petitioner to stay the departmental enquiry he was not given any Intimation as to whether or not his prayer was accepted or rejected, nor he was informed about any particular date when the departmental enquiry was to be held. Thus the first opportunity which is envisaged by Section 126 of the State Constitution was completely denied to the petitioner. The petitioner was thus unable to make out his defence before the enquiring officer. Another serious infirmity from which the proceedings suffer is the fact that even when the notice dated 24 September 1962 was sent to the petitioner, he was not given the report of the enquiry on the basis of which he was asked to show cause against the tentative decision of the respondent. It is well-settled that unless the petitioner is supplied with the materials on the basis of which the appointing authority has formed his opinion, a bare notice to show cause is meaningless and does not amount to a real opportunity to show cause. Furthermore, Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, reads thus:
After the inquiry against a Government servant has been completed, and after the authority competent to impose penalty has arrived at provisional conclusions in regard to the penalty to be imposed, the Government servant charged shall, if the penalty proposed Is dismissal, removal or reduction in rank, be supplied with a copy of the proceedings prepared under Rule 33 excluding the recommendations, if any, in regard to punishment made by the officer conducting the inquiry and asked to show cause by a particular date which affords him reasonable time, why the proposed penalty should not be imposed on him.
6. This rule makes it obligatory on the authority concerned to supply a copy of the proceedings of enquiry to the employee concerned. In the instant case, this rule was also clearly violated and no copy of the Inquiry report was given to the petitioner so as to enable him to make an effective show cause against the order proposed to be made against him. Thus it would appear that the provisions of Section 126 of the State Constitution as also those of Rule 34 of the Jammu and Kashmir Civil Services Rules have been clearly violated in this case and these two infirmities are sufficient to vitiate the order passed by the respondent.
7. It was next contended by Sri Tikku that the respondent had no jurisdiction to hold the departmental inquiry once a prosecution had been started against the petitioner. Sri Padroo submitted that the respondent was not bound to wait for the result of the criminal case In order to institute departmental inquiry against the petitioner. In support of his contention, the learned Counsel has relied on a decision of a single Bench of Madhya Pradesh in 1959--1 L.L.J. 41. This, authority when clearly analysed, does not support the proposition adumbrated by the learned Counsel for the respondent. Dixit, J., Observed as follows:
There is no warrant for such an assumption. There is nothing in Article 311 or in any other article of the Constitution or in any, other law taking away Jurisdiction of the Government to enquire into the truth of a charge against a civil servant in a departmental enquiry if the charges can be enquired into by a criminal Court also. Nowhere is it laid down that a civil servant shall be dismissed or removed on certain specific grounds and no other. A civil servant can be dismissed or removed for service on grounds of inefficiency, insubordination, general reputation of corrupt conduct and on a reasonable suspicion that he has committed an offence.
Where the alleged misconduct of a civil servant constitutes an offence also under the Penal Code, it is at the discretion of the Government to prosecute him first in a criminal Court and then to start a departmental inquiry against him after the conclusion of the trial or to hold a departmental enquiry against him without Initiating a criminal prosecution against him. It is well-known that very often prosecutions fail for technical reasons. The acquittal in such cases is not one absolving completely the accused of all blame for the misconduct. The acquittal in such oases, if one may use the army expression, is not an honorable acquittal. In such cases, in spite of the technical acquittal of the accused, there remains sufficient material and suspicion against him to indicate that he is not a person fit to be continued in Government service. That where a misconduct of a civil servant constitutes an offence, a departmental enquiry can be held end he can be dismissed or removed from service as a result of the findings of the enquiry, is clear from proviso (a) to Sub-Clause (2) of Article 311 which says that Sub-clause (2) shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
It would thus appear that -while the department is not debarred from holding departmental enquiry, It has to exercise its discretion in the following manner. If no criminal prosecution is launched against the petitioner, it can certainly go ahead with the departmental enquiry against the petitioner. If, however, a criminal prosecution is launched against the petitioner, then the department can hold the departmental enquiry only after the conclusion of the trial of the case. The fact that the petitioner is acquitted in the criminal case will not be any bar to the holding of departmental enquiry or to the head of department coming to a conclusion contrary to the one arrived at In the criminal Court. The observations quoted above, however, do not lay down that there la no warrant for the proposition that even though a criminal case has been launched against an employee, yet a departmental enquiry on the same allegations can proceed pari passu. On the other hand, in A.I.R. 1957 Orissa 51 and A.I.R. 1954 Assam 18 the Impropriety of holding of departmental enquiry with respect to the very subject-matter which is pending In a Court has been clearly stressed. In these circumstances, therefore, when the petitioner made a prayer to the respondent for staying the departmental enquiry, it cannot be said that the prayer was an unreasonable one and the respondent ought to have stayed the departmental enquiry pending conclusion of the criminal case.
8. It is not necessary for me to dilate on this point further, because as I have already pointed above, that the, order of the respondent is vitiated by non-compliance of the provisions of Section 126 of the State Constitution end Rule 34 of the Jammu and Kashmir Civil Services Rules.
9. For these reasons, therefore, the application is allowed and the order of the respondent dated 3 October 1962 discharging the petitioner from service is quashed.
10. It will, however, be open to the respondent if he deems proper to institute fresh deparmental enquiry against the petitioner in accordance with law after the conclusion of the criminal trial irrespective of the fact that the petitioner may be acquitted therein.
11. In these circumstances of the case, there will be no order as to costs.