B. John Bunyan vs State of Andhra Pradesh and another

Jaganmohan Reddy, J.—This is a petition under Art. 226 of the Constitution for the issue of a Writ of (sic)iorari any other direction quashing the order of dismissal of the petitioner dated 12-1-1956. The petitioner was a Supervisor in the service of the City Improvement Board which is under the Local Self-Government Department of the Government of Hyderabad. He has to his credit a service of twenty years. In the discharge of his duties as a Supervisor it was found that there had been certain irregularities and shortage in materials cement etc. regarding which charges were framed by the Superintending Engineer on 20-5-1953. The petitioner submitted his reply to the Executive Engineer who on 2-7-1953 recommended the case to be closed.

The petitioner alleges that the case was closed and later after a lapse of one year, the same charges were repeated by the same Executive Engineer on 21-4-1954, an oral enquiry was held and in spite of the fact that the petitioner asked, for the assistance of one Swaminathan, Assistant Accountant, that request was denied and no reasonable opportunity to defend was given under Art. 311 (2) of the Constitution of India.

He further alleged that the Superintending Engineer and the Executive Engineer both took upon themselves as enquiry officers to individually call upon the petitioner for an oral enquiry; that the Secretary of the Local Self Government also took upon himself to be a third enquiry officer and under the circumstances the entire proceedings were illegal. The petitioner also alleged that he was suspended by an order of the Secretary of the Local Self Government under R. 16 of the Civil Services (Classification, Control and Appeal) Rules 1955 and was kept under suspension for two years before the final disposal of the case, which is also alleged to be illegal and mala vide.

The Government in its counter stated detail that on December 22, 1952 the Executive Engineer, C. I. B., inspected the section of the petitioner and found that he has neither maintained the Muster Rolls for the year 1952-53, nor maintained the stock register of aw materials such as and, lime, gum, jute, etc., that through his memo dated 20-12-1952 sought the permission for disbursement to labour of Rs. 2,420/-, but when the actual disbursement was made by the Executive Engineer the total amount came to only O.S. Rs. 785/-; and mat a number of bogus entries were also found.

The Executive Engineer consequently through his letter No. 5736 dated 24-12-1952 ailed for the explanation of the petitioner. The Superintending Engineer consequent upon report published in the Iqdam News Pager dated 21-3-1953 alleging that the petitioner has disappropriated thousands of rupees in connection with the alterations of Special Quarters Agapura and had earned about Rs. 40,000/- etc. called for a report from the Executive Engineer.

The Secretary, Local Self Government also had written to the Superintending Engineer to submit his report in the matter. The petitioner submitted a reply to the letter of the Executive Engineer referred to above on 30-4-1953. He also submitted another application to the Superintending Engineer on 6-5-1953 enclosing a copy of the reply submitted to the Executive Engineer on 30-4-1953.

After receiving this explanation a detailed charge sheet was served on the petitioner through the Executive Engineer, Hyderabad Municipality where the petitioner had been transferred on 22-5-1953. Thereafter the petitioner requested for time on 25-5-1953 for 15 days in order to submit his reply which request was granted. On 8-6-1953 the petitioner submitted his reply to the Executive Engineer and the same day it was forwarded by him to the Superintending Engineer C. I. B.

The Executive Engineer C. I. B. was asked by the Superintending. Engineer to offer his comments thereon and he recommended the case to be closed on 2-7-1953 which recommendation was accordingly made by the Superintending Engineer on 2-11-1953 to the Secretary, Local Self Government Department, but the Secretary by his letter dated 5-12-1953 wrote and directed that the allegations made in the Iqdam Newspaper should be replied item by item.

The Superintending Engineer was again asked on 11-1-1954 to report on certain items of works such as fixing expanded metal frames in the Special Class. Houses at Agapura, who in turn called upon the Executive Engineer to obtain the explanation of the petitioner, frame charges and submit a detailed report by 20-3-1954. In compliance with this direction, the Executive Engineer wrote to the petitioner on 1-4-1954 to present himself in his office the next day, but the petitioner on the plea of his being ill asked for a questionnaire.

A regular charge-sheet was accordingly handed over to him and the petitioner by his application dated 22-4-1954 requested the Superintending Engineer to instruct the Executive Engineer to furnish him with the concerned records and also give him the assistance of the Asst. Accountant, Swaminathan who was concerned with the accounts as the petitioner was unable to take note of the records personally. The Superintending Engineer accordingly directed the Executive Engineer to permit a clerk to assist the petitioner.

Due information of the same was given by the Executive Engineer to the petitioner through his letter dated 30-4-1954. The petitioner submitted his replies on 5-5-1954 and the Executive Engineer forwarded the same to the Superintending Engineer with his remarks, and the Superintending Engineer in his turn forwarded the same to the then Secretary, Local Self Government Department on 4th June 1954.

Thereafter the Superintending Engineer recorded the statement of the petitioner also and he was afforded a chance of oral explanation; but the petitioner adopted a recalcitrant attitude and even refused to sign his statement whereupon it was attested by two witnesses in whose presence it was recorded and was then forwarded by the Superintending Engineer to the Secretary, Local Self, Government Department.

After these proceedings the Secretary, issued a notice on 23-5-1955 to show cause within a period of one month from the date of the receipt of the notice as to why he should not be dismissed from, service and as to why a sum of Rs. 10,354/- be not recovered from him. The petitioner thereupon asked for details of the said sum and the same were furnished to him through a letter dated 19-8-1955.

The petitioner submitted a detailed explanation on 15th September 1955 and after due consideration the Government passed orders of dismissal and for recovery of Rs. 10,354/-on 12-1-1956. An appeal was presented by the petitioner before the Chief Minister on 22-6-1956 which was forwarded to the Minister, Local Self-Government for disposal, but inasmuch as he had been dismissed under the orders of the Minister himself no appeal lay to the Minister or the Chief Minister and the petitioner was duly informed of this through a letter dated 25-8-1956.

The counter further stated that the enquiry was conducted by the Superintending Engineer under the orders of the Secretary, Local Self-Government and the Executive Engineer being a subordinate of the Superintending Engineer, simply did what he was ordered to do by the Superintending Engineer in the matter and no action was taken by the Executive Engineer by himself; that the suspension orders were issued by the proper authority, namely, the Secretary, Local Self-Government; that the petitioner was given full opportunity for his defense; that he never requested for an oral enquiry and on that account he cannot question the validity of the proceedings.

It was further stated that the petitioner having already served a notice on the Government under S. 80, C. P. C. the proper remedy for him was to institute a regular suit especially in view of the fact that the case involves disputed questions of fact; and that the petitioner having applied on 30-1-1953 on the basis of a medical certificate for six months privilege leave preparatory retirement, there is no question of considering the petitioner as in service.

The facts as alleged in the counter are fully substantiated by the correspondence and documents filed by the petitioner himself. It is true that the Executive Engineer in his letter No. 4432 dated 2-7-1953 recommended the case to be closed after going through the replies given, by the petitioner and though he admitted that there were certain irregularities committed by him, the Executive Engineer thought that they had been committed by him due to heavy work, largeness of area entrusted to him and worries as stated by him.

It was also stated that the petitioner was not in a position to produce proper record of account at the time of the inspection and due to these irregularities he was transferred to the Chikkadpalli section as a punishment and was subsequently transferred to the Hyderabad Municipal Corporation Re-assessment Section. The petitioner by his letter dated 30-12-1952 stated with reference to the letters of the Executive Engineer calling on him to explain that due to worries he must have made mistakes in marking the muster rolls which were found by the Executive Engineer on 24-12-1952.

He therefore asked to be excused and promised that such things will never happen again. The Superintending Engineer by his letter No. 7163 dated 2-11-1953 referring to the report of the Executive Engineer sent by him on 13-8-1953 also recommended that '''' Since the irregularities were of minor character and in consideration of his long service of 20 years in the C. I. B. and his nice behavior and good work in the past" his case be closed.

This recommendation was, however, not accepted as will be seen from the letter No. 526/C dated 5-12-1953 of the Secretary, Local Self-Government with reference to the letter of the Superintending Engineer dated 2-11-1953. The Secretary stated that the allegations appearing in the Iqdam have not been clarified and contradicted item by item and consequently he requested him to send a report dealing item by item.

Prior to that the Superintending Engineer on 20-5-1953 had served a charge-sheet on the petitioner through the Executive Engineer to submit his replies so as to reach his office no later than 26th instant and it was specifically stated therein that this charge sheet was again served upon him as the petitioner had mentioned in his letter dated 6-5-1953, that under his instructions the petitioner had given short statement in reply which, according to the Superintending Engineer was entirely false.

The petitioner asked for time and it was given to him and thereafter he sent his replies which were forwarded to the Superintending Engineer on 8-6-1953. It was upon this that the Superintending Engineer by his letter dated 2-11-1953 recommended the case to be closed which was not accepted by the Government. The Secretary Local Self Government Shri Mirza Najaf Ali Khan in his D. O. N. 17/C dated 11-1-1954 called upon the Superintending Engineer to expedite his report fixing the responsibility with regard to certain item such as fixing of wooden lattices, paint in them, roof repairs and fixing of expand metal frames in the special class houses Agapura.

A report was thereupon called by this Superintending Engineer by his letter No. 109, dated 8-3-1954 after calling for the explanation of the petitioner and after framing charge against him. Charges were again framed the Superintending Engineer and the petitioner''s explanation was called for by the Executive Engineer. The petitioner by his letter dated 1-4-1954 in reply to the Executive Engineer''s letter of the same date asked for a questionnaire as he was sick.

A questionnaire was personally handed over to the petitioner as is evident from his letter dated 22-4-1954 in which he asked for the assistance of Swaminathan, an Assistant Accountant who was concerned with the accounts. The petitioner was informed in reply to this request by the Executive Engineer on 26-4-1954 that the Asst. Accountant, Swaminathan, has shown his inability to assist him in his case; as such he was requested to bring some other person to give assistance to him in the case.

The petitioner makes a grievance of this refusal, but it is clear from the record that Swaminathan was not concerned with these accounts and in any case it cannot be said that he petitioner was not given an opportunity to examine the records. In fact he was specifically told that he can bring any one, he likes to examine the records.

Learned Advocate for the petitioner contends that (1) under the Civil Services Classification, Control and Appeal) Rules which were enforced on 1st of December 1955, he enquiry and dismissal should have been lade by the Superintending Engineer and not the Government in the Local Self Government Department; (2) that the affect of dismissal by the Government is to deny him the right of appeal; and (3) that there is mala fides on the part of the enquiring officers as the petitioner has made allegations against them and consequently it was contrary to the principles natural justice that they should have made the enquiry; and (4) that the order of suspension is bad.

The contention based upon the Civil Services Classification, Control and Appeal) Rules, 1955 is untenable in, that the rules were forced as from 1st December 1955, while in (sic) the enquiry was held under the Rules of 52 which came into force on 3rd April, 1962. NO doubt under Schedule III of the 55 Rules, the Superintending Engineer is not (sic)y the appointing authority, but also the authority empowered to impose all the penalties specified in R. 12 on Supervisors working under the Superintending Engineer, C. I. B.

The appellate authority is the Government, however, in the rules of 1952 the appointing authority and the authority empowered to im(sic)e penalties with respect to such supervisors is not been mentioned and under proviso to 14 in cases of posts not included in col. I of (sic)s III and IV, the authority having power make first appointments may impose any (sic)alty specified in R. 9 upon the holder or (sic)ers of such posts.

Learned advocate for the petitioner con(sic)is that these posts have been shown in Sch. III under the Public Works Department, where the appointing authority is the Chief Engineer, and the authority empowered to impose all the penalties under R. 9 is also the Chief-Engineer. The appellate authority is the Secretary to Government in the Public-Works Department.

It is seen that the Supervisors specified in Sch. III under the Public Works Department are the Supervisors, Roads, Buildings, and Irrigation, but the petitioner was not a supervisor working in the Roads, Buildings and Irrigation Section of the P. W. D. It is clear from the delegation of powers sanctioned by the Chief Minister as communicated to the Accountant-General of Hyderabad State by letter No. 788/ K dated 2-12-1950, that the Superintending Engineer, Local Govt. and the Secretary, Local Government, were given power to appoint on posts carrying a maximum salary of Rs. 225, while the Minister for Local Government was given power to appoint on posts in the non-gazetted cadre carrying a maximum of Rs. 400 as well as to appoint officers in junior scale II through the Public Service Commission.

It will be seen from notification No. 74/63/ E-CFD/52 dated 12-7-1952 that the Supervisors'' grade I was O. S. Rs. 175-5-205-E.B.-71/2-250.EB-10-360 and the revised grade was I.G. 140-300. In these circumstances the appointing authority of the Supervisor under the Superintending Engineer, in which category the petitioner actually has been placed is the Minister, Local Government. The enquiry was ordered by the Minister, Local Government, whose, orders were communicated by the Secretary, Local Government. There is no merit in the contention of the learned advocate for the petitioner that it was the Secretary who was the enquiring officer or the Superintending Engineer. The Minister had appointed the Superintending Engineer as the enquiring officer to assist him in the enquiry and upon whose report he has acted.

The Rules of 1952 do not require that the appointing authority should itself make the enquiry. This is not a case of a Judicial Tribunal prevented from delegating its function unless it is enabled expressly to do so or by necessary implication. The power to appoint or dismiss an officer is not the exercise of a Judicial Power, but is of an administrative one. Their Lordships of the Supreme Court in the case of Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, observed at p. 266 (of SCJ): (at p. 291 of AIR):

...As pointed out by the House of Lords in Board of Education v. Rice, (1911) AC 179 at p. 182 (B), a functionary who has to decide an administrative matter, of the nature involved in this case, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party has a fair opportunity to correct or contradict any relevant and prejudicial material.

After setting out the speech of Lord Chancellor in the case of Local Government Board v. Arlidge, 1915 AC 120 at p. 133 (C), their Lordships observed that in view of the above clear statement of law the objection to the validity of the dismissal on the ground that the delegation of the enquiry amounts to the delegation of the power itself is without any substance and must be rejected.

The essential requirement under Art. 311(2) is that the member of a service should be given a reasonable opportunity to show cause against any action proposed, that is, he must be told what the charge or charges against him are and the materials upon which the charge has been framed and given him an opportunity to answer those charges after which he must be asked to show cause against the proposed action to be taken against him.

In this case charges have been framed, full opportunity has been given as has already been seen and on considering the report a notice was given to show because why the petitioner should not be dismissed. The enquiry was a fair one, the petitioner having been given the fullest opportunity at every stage to adduce such evidence in his favour as he desired.

The fact that the Government itself held the enquiry under the Civil Services (Classification, Control and Appeal) Rules, 1952, no doubt has the effect of depriving the petitioner of appeal, but he cannot claim it as a matter of right unless rules so provided. The Government having taken the action as a punishing authority there can be no appeal against it. That does not, however, vitiate the proceedings, nor has it been shown which provisions of the Rules have not been complied with.

With respect to the third point of imputing mala fides to the enquiring officer, it is contended that the petitioner made certain allegations against the Executive Engineer by a confidential note alleged to have been handed over to the Superintending Engineer by the petitioner on 8-6-1953, in which he tried to give an account of the various short-falls in materials which according to him were supplied to several high placed officers under the verbal orders of the Executive Engineer including some materials sent to the Executive Engineer himself.

Nothing has been stated in the affidavit of the petitioner with respect to this matter and consequently the Government was not in a position to say anything in its counter. We have, however, seen the records from which we find that the Executive Engineer who made the enquiry was not the same Executive Engineer and in any case the Government seems to have made certain enquiries and obtained their explanations etc.

We are not, however, concerned with this matter. There is no substance in the allegation that because he made these charges, the Executive Engineer and the Superintending Engineer have, in order to cover themselves, recommended the closing of the case. The petitioner in our view has merely raised this bogey as a last arrow in the quiver.

With respect to the last point, namely, that the suspension is bad, this also is without force, because R. 16(1) clearly authorises the appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place a Government servant under suspension where, (a) an enquiry into his conduct is contemplated, or is pending, or (b) a complaint against him or any criminal offence is under investigation or trial.

Sub-rule (5) of R. 16 further states that where a Government servant has been suspended by an authority other than Government and final orders in the enquiry pending against him have not been passed within a period on six months from the date of order of suspension, the case shall be reported to Government for such orders as it may deem fit. In this case the appointing authority being the Government, the petitioner was suspended by the Government itself and sub-r. (5) does not therefore, apply to him. The order of suspension is, in our view, valid.

In the result this petition fails and is dismissed with costs. Advocate''s fee Rs. 100.