S. Murtaza Fazl Ali, J.
1. This is an application by the petitioner for quashing an order of respondent discharging the petitioner from service.
2. The petition arises in the following circumstances. The petitioner was appointed as Assistant Police Prosecutor in the afternoon of 31 March 1961 on probation for a period of three years. After his appointment the petitioner was sent to the Police Training School at Phillaur where he completed the period of his practical training. Thereafter, It Is alleged by the petitioner that he was recommended for being examined by the board before being confirmed. In the meantime on 15 August 1963, one Mool Kaur filed an application against the petitioner before the Superintendent of Police making allegations of misconduct against the petitioner. As a result of this application, an enquiry was held by the Superintendent of Police which subsequently was dropped at the Instance of the complainant and the matter was referred to the Mahant of Nangal as both the parties agreed to abide by his decision. Subsequently, however, Mool Kaur renewed her complaint by giving a fresh application on 20/24 December 1963 as a result of which a fresh enquiry was started against the petitioner.
3. In this enquiry, the enquiring officer examined a number of witnesses and documents and thereafter he filed a report against the petitioner. The report was considered by the Deputy Inspector-General of Police and then by the respondent who gave a notice to the petitioner to show cause why he should not be discharged from service. After hearing him and receiving his representation he passed the order dated 22 March 1865 discharging the petitioner from service. It is this order which has been assailed in this petition.
4. Appearing for the petitioner, Sri Sharma raised two contentions before me. In the first place, he submitted that as the period of probation of the petitioner was over and no order discharging him from service was passed within three months after the expiry of the period of probation, the petitioner must be presumed to have satisfactorily completed his period of probation ; and thus any enquiry which was to be instituted against him should be held in accordance with Rule 33 of the Jammu and Kashmir Civil Services Rules. Secondly, the learned Counsel for the petitioner submitted that, at any rate, In the departmental enquiry which was held by the Superintendent of Police, the petitioner was not given an opportunity to examine his defence witnesses and thereby there was a serious violation of the rules of natural justice. I would take up the first contention. There appears to be a great deal of controversy between the parties on the question as to whether or not the petitioner was a probationer and continued to be so when the order of discharge against him was passed. It la, however, not necessary for me to go into this controversy, because assuming that the petitioner completed his period of probation by virtue of the statutory presumptions contained in Rule 22 (1)(c) of the Jammu and Kashmir Civil Services Rules as no specific order confirming the petitioner has yet been made, his status could not be that of a permanent Government servant but only that of a temporary Government servant. For tie application of Rule 33, two conditions are necessary:
(i) That the person concerned must be a member of the civil service.
(ii) That he was being dismissed, removed or reduced rank.
5. Rule 30 which contains the various punishments which can be inflicted on a Government servant excludes the termination of the employment of a probationer as also of a temporary Government servant from the ambit of the words 'removed or dismissed' appearing in Rule 33. It would thus appear that even if the petitioner having completed the period of probation was a temporary Government servant, he was not entitled to the benefit of the provisions of Rule 33 if an enquiry was held against his conduct. In this connexion, the contention raised by Sri Sharma was that Rule 33 requires, to begin with, that the ground on which action is proposed to be taken against the incumbent has to be reduced into the form of a definite charge and which shall then be communicated to the person charged, together with a statement of the allegations on which the charge is based. It is common ground that this requirement was not followed in the case of the petitioner. The argument of the Advocate-General is that this procedure was not followed because the petitioner, being only a temporary servant, was not governed by Rule 33, and the enquiring officer was not, therefore, bound to follow the procedure laid down in Rule 33. As already pointed out by me above, Rule 33 excludes from its ambit, by virtue of Rule 30, Expln. (1)(b), the case of a temporary servant and so the petitioner cannot complain that the provisions of Rule 33 were not complied with. Nevertheless, there can be, no doubt, that as the respondent had discharged the petitioner on the ground of serious misconduct, the order of discharge involved a serious stigma on the career of the petitioner and would therefore be a punishment so as to attract the operation of Section 126 of the State Constitution, For this purpose, therefore, it was necessary that the petitioner should have been given a reasonable opportunity of defending himself not only after the tentative decision was taken by the respondent but even in the course of the departmental enquiry. On this point the only difference between the parties Is that according to the petitioner he was not given a reasonable opportunity of producing his defence. On the other hand, the respondent contends that the enquiry was held In the presence of the petitioner and he was given fall opportunity to cross-examine the witnesses. The petitioner did not ask for leading any defence evidence and, therefore, the question of giving such an opportunity to him did not arise. These facts are not controverted by the learned Counsel for the petitioner. The learned Counsel, however, submitted that after the evidence against the petitioner was closed, it was the bounden duty of the enquiring officer to have put a specific question to the petitioner as to whether or not he would like to examine witnesses in support of his defence and sinoe no question was put to him, it must be held that the petitioner was not given a reasonable opportunity of defending himself before the enquiring officer. I am, however, unable to agree with this somewhat broad proposition. The rules of natural justice merely require that a person should be given a real opportunity to defend himself by the enquiry being conducted in his presence and by the fact that the petitioner is given an opportunity to cross-examine the witnesses.
6. Furthermore, the rules of natural justice require that if the employee wants to adduce defence evidence, every facility in this regard should be given to him. In this case, It appears from the original file of the enquiring officer that after the evidence against the petitioner was recorded, he was asked whether he wanted to say anything and the petitioner rest content with only expressing a desire to file his written statement. This opportunity was given to him and the petitioner filed his written statement on 7 July 1964. In this written statement also, while the petitioner has criticized the evidence led against him and pointed out the infirmities therein, he has not made any request for adducing evidence; nor has he made any grievance that he was not afforded any opportunity to examine the witnesses in support of his defence. In the last paragraph of his explanation the petitioner submits thus:
That I honestly by swear of God submit that I am quite innocent in this matter and since it is such a time that false propaganda has got a great value, so I have been tried to be entangled falsely and I am sure that I can prove myself quite innocent by the grace of the Almighty. With these submissions I pray your good-self to very kindly drop the proceedings against me. Thanking you.
Sri Sharma submitted that when the petitioner expresses a desire to prove himself innocent, it contained an implied prayer for giving him a fresh opportunity to adduce evidence in support of his defence. I however cannot construe the averments in Para. 15 above, as a request for an opportunity to adduce defence evidence. Moreover, in the prayer, quoted above, it will be seen that the petitioner has merely asked for the dropping of the proceedings and nothing beyond that. If the intention of the petitioner was to make any grievance against the fact that no opportunity was given to him for adducing his defence evidence, he would have undoubtedly made a positive and categorical prayer to that effect, which however he has not done.
7. From the record of the departmental proceedings, it is manifest that there was no violation of the rules of natural justice inasmuch as the enquiry was conducted in the presence of the petitioner and the petitioner was given a right to cross-examine the witnesses and a right to file his written statement criticizing the evidence led against him. As no prayer was made by the petitioner for adducing defence evidence, it cannot be said that as the enquiring officer did not voluntarily give him an opportunity to produce his witnesses in defence it would amount to a violation of the principles of natural justice. Sri Sharma relied on Nand kishore Jugalkishore v. Commissioner, Jabalpur Division : AIR1962MP15 , and particularly on the following observations:
The further grievance that the petitioner was not afforded an opportunity to rebut the evidence of the Collector, who was examined after the dose of the enquiry, Is equally well-founded. It may be that a request for such opportunity was not made Immediately after the evidence of the Collector was recorded. But the petitioner brought this matter to the notice of the Commissioner In the reply to the show-cause notice issued by him. It is not correct that if such a request is made at that stage, it cannot be considered.
The facts of that case, however, are quits different from the facts of the present case. In that case no opportunity to cross-examine the witnesses was ever given to the employee and that was the main ground on which the Court held that the rules of natural justice had been violated. Secondly, there was no question of the denying of an opportunity to lead evidence in defence in that case, because what happened was that after the enquiry was completed the enquiring officer took the evidence of the Collector and did not give any chance to the petitioner to rebut that evidence. This is, however, not the case here. In my opinion, therefore, the case cited by the learned Counsel for the petitioner is not of any assistance to him. Similarly reliance was placed by the learned Counsel for the petitioner on State of Uttar Pradesh v. Akbar Ali Khan 1963--1 L.L.J. 466 which is also clearly distinguishable from the facts and circumstances of the present case. Undoubtedly, if the enquiring officer would have denied an opportunity to lead defence evidence despite a request made by the petitioner in this regard, the matter would have been completely different. I am, therefore, satisfied that the departmental enquiry against the petitioner was not materially defective.
8. Lastly, it was submitted by Sri Sharma that even the respondent in his order discharging the petitioner from service has not considered the grievance of the petitioner that no opportunity to adduce defence evidence had been afforded to him. It is true that the respondent has not expressed this fact in so many words. He has, however, clearly indicated that the petitioner was given a chance to explain his position. It is not for the Courts to go behind the findings of fact arrived at by the respondent. What Courts have to see Is as to whether or not reasonable opportunity was given to the petitioner to defend himself against the action proposed to be taken against him. No grievance has been made by the petitioner that after the enquiry a fair opportunity was not given to him to make a representation to the respondent. His grievance was only regarding the departmental enquiry being materially defective which has been shown by me to be of no substance.
9. In these circumstances, the order discharging the petitioner from service does not involve any error of law apparent on the face of the record.
10. For the reasons given above, the application is dismissed but, in the circumstances, without any order as to costs.