Madhi Ram Bansi Lal vs Divisional Forest Officer, Nabha and others

Chopra, J.—This is a petition under Art. 226 of the Constitution for a writ or other appropriate direction quashing the order of the dismissal passed against the petitioner by the Divisional Forest Officer (respondent No. 1). The facts that give rise to this petition are these: The petitioner was appointed as Chaukidar in the erstwhile Nabha State on 22-8-1987 Bk (7-12-1930) (AD).

On 4-4-2001 Bk. he was appointed a Forest Guard. On the formation of the Union-, he was integrated on a permanent and pension able civil post Class IV. On 11-8-1953, when the petitioner was posted as Forest Guard as Bir Bauran, one Thakar Das lodged a complaint that illicit grazing was going on in that Bir. The Divisional Forest Officer to whom the complaint was made accompanied Thakar Das to the Bir and found a number of cattle strayed in the Bir and grazing.

To him, the forest appeared to be heavily damaged, and this in his opinion was due to constant grazing for some days. Some of the cattle were seized at the spot. The statement of Umra, who was with the cattle, was recorded. Madhi Ram petitioner was not present when the cattle were seized or the statement of Umra was recorded. On his appearing on the scene a little later, he was asked to produce the damage-book.

The book was not with him at the time, nor could he produce it within the time allowed to him for the purpose. When the Divisional Forest Officer left the Bir the petitioner did not accompany him nor did he seek permission to stay behind.

It may be mentioned here that the Divisional Forest Officer did not make any note of his inspection that day. On 12th August, he directed, the Range Officer to call for an explanation of the Forest Guard as to why he was unable to produce the damage-book a]j the time of inspection.

On 13th August, Rattan Singh Daroga submitted a report that he had again found some cattle grazing in the Bir, two of which he was able to seize on the spot. On 14th August the petitioner was suspended and charge-sheeted. The charges delivered to him on 15th August were (1) that heavy illicit grazing was going on for several days in Bir Baurah and that the same could not have been possible without his connivance, and (2) that he could not produce the damage-book when demanded and also that at the time of the Divisional Forest Officer''s departure he neither cared to accompany or ask permission to stay back.

The petitioner was allowed five day''s time to submit his explanation. The reply was submitted as directed. The Divisional Forest Officer then called for a report from the Range-Officer. The report when submitted was considered unsatisfactory and he was again asked to make a detailed report. In the meantime the Divisional Forest Officer recorded the statements of Baggu son of Jawahar Singh, Baggu son of Gaman, Sadhu Singh and Thakar Das on 14th August and that of Mukand Singh Contractor on 19th August.

Thakar Das was the person who complained about the illicit grazing, Mukand Singh was the person in whose favour the grass of Bir Bauran was auctioned for one year in July 1953. The cattle were supposed to the grazing in the Bir on 11th August with his permission. The petitioner was not called to take part in the proceedings and was not present when these statements were recorded. In his presence the inquiry started on 8-10-1953 with an order to the following effect:

The evidence against you has been read out to you. You can be granted time if you want to recall any of the witnesses, or to produce any other witness, or to make any oral statement yourself.

In reply, the petitioner simply stated that he would produce his evidence on 12th October. On that day he submitted a list of four witnesses. Out of them, three were examined. The fourth did not appear when called. The Divisional Forest Officer thereupon made the following order:

Your defence has been recorded. For the offence you have committed you will be dismissed. You are allowed to make any statement or to produce any further evidence you desire.

To this the petitioner replied that he had nothing more to state nor did he want to produce any more evidence. As a result of this inquiry, the Divisional Forest Officer dismissed the petitioner, vide his order dated 17-12-1953. The petitioner referred an appeal to the Conservator of Forest. That was dismissed on 12-5-1954. The present petition was then presented on 2-6-1954.

The order of his dismissal is attacked by the petitioner on two grounds: (1) that he was not allowed reasonable opportunity of showing cause against the action proposed to be taken in regard to him as enjoined by the provisions of Art. 311 (2) of the Constitution, and (2) that the inquiry oh ended the principles of natural justice and the procedure laid down by the Rules inasmuch as none of the witnesses against him was examined in the petitioner''s presence.

On consideration of the facts of this case and after hearing counsel for the parties at some length I am inclined to think that the petitioner was not allured reasonable opportunity to show cause against the grounds on which the order of his dismissal was based. Article 311 (2) requires that before a person holding a civil post under the Government is dismissed or removed or reduced in rank he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

This does not merely mean that he should be heard for what he has to say as regards the quantum of penalty that is proposed to be awarded. The purpose of notice is to afford him an opportunity to satisfy his employer that the action pranced to be taken against him is not justified because of the reasons to be given and substantiated by him.

The explanation that he may offer is not confined to the quantum of punishment that may be imposed on the facts alleged against him, but extends to his showing that the allegations are baseless and that no action whatsoever is called for. Any other interpretation of the article will render the only safeguard against an unwarranted action of the Government with regard to the services of its employees ineffective and illusory.

In order to enable the public servant to show cause against the action the Government proposes to take in regard to him he should be informed of the allegations against him and the grounds which have led the Government to take the particular action. It is only then that he may be in a position to show that the allegations are baseless and the grounds unjustified.

It will not thus suffice to inform him of the action that the Government proposes to take and ask him if he has anything to say against it. Unless he is also told or can be shown to have known what imputations against him actually are, no purpose is served by giving him notice of the penalty that the Government proposes to inflict.

In AIR 1948 121 (Privy Council) , their Lordships of the Privy Council while interpreting the phrase the reasonable opportunity of showing cause against "the action proposed to be taken in regard to him" in S. 240 (3) of the Government of India Act, 1935., quoted the following observations of the learned Chief Justice of the Federal Court and expressed their agreement with the view taken therein.

It does however, seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the purposed action and as that opportunity has to be a reasonable opportunity, it seem 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 that 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 a reasonable opportunity of showing cause why such punishment should not be imposed.

In Shyam Lal Vs. State of U.P. and Another, Aggarwal J., on a reference to some of the earlier decisions of his Court on the question of reasonability of the show-cause-notice observed-

We respectfully agree with this view. In our opinion the expression ''showing cause'' as used in Art. 311 does not imply that a mere opportunity of submitting an explanation is enough. It implies that adequate opportunity of leading evidence in support of the contention of the persons concerned and controvert the contentions raised against him must be given, and where necessary opportunity of cross-examining witnesses of the other side and of addressing arguments should also be afforded.

It is with this background that I have to judge and decide whether the mandatory provisions of the article have been sufficiently complied with. The notice that the Divisional Forest Officer is said to have given on 12-10-1953 as already quoted, only informed the petitioner that he penalty to which he was liable was one of dismissal; he was allowed time to make a statement or lead any evidence he desired.

Learned Counsel for the petitioner contends that in fact no such notice was ever given and that the order of the Divisional Forest Officer dated 12-8-1953 is only an interpretation subsequently made after the present petition was presented. In the petition as well as in his affidavit the petitioner clearly averred that no such notice was ever given to him. The matter is not totally free from doubt.

The said, order appears at the bottom of the page containing the statement of a defence witness examined in the course of the inquiry that day. Overleaf there is the statement of the petitioner to the effect that he had nothing more to say and had closed his defence. A few lines comprising the order were thus sandwiched in the small space intervening the statement of the witness and that of the petitioner.

Normally, at the close of the enquiry the Divisional Forest Officer ought to have given his conclusions and stated the action that he proposed to take. The order, even if it was to be brief one, should have been written on or carried to the back page. The alignment, the spacing and ink of the writing do, to great extent, seem to support the inference that the order is an interpolation.

And again, no mention of the fact that any such notice was given to the petitioner is found in the final order of the Divisional Forest Officer. These facts make the very genuineness of the order doubtful. But the indications being not conclusive I would, for the purpose of this case, accept the order to be a genuine one.

The order only informed the petitioner about the quantum of punishment that could be awarded for the fault or faults that he had committed but did not tell him what those faults actually were. To ask him to make a statement and lead any evidence if he so desired, does not amount to giving him an opportunity to show that the allegation on the strength of which action was proposed to be taken against him, were unfounded.

If this was the only opportunity that was afforded, undoubtedly it is wholly unreasonable and insufficient.

The learned Assistant Advocate General, however, has taken me through the inquiry proceedings and contended that the petitioner very well knew and fully understood what the charges against him were and that had ample opportunity to meet the same. I am prepared to agree with the Learned Counsel that if that were so the whole thing need not have been repeated when the show-cause-notice was ultimately given to the petitioner.

In this connection I cannot do better than quote the following passage from the Judgment of ''Chagla C.J. in - State of Bombay Vs. Gajanan Mahadev Badley, , with which ''I am in respectful agreement:

It is perfectly true, as argued by the Advocate General, that it would depend upon the facts of each case whether a reasonable opportunity as contemplated by the Privy Council was or was not afforded to the dismissed servant. When an inquiry against a dismissed servant is, as it were, in two parts, where there is, first a departmental inquiry and then a notice to show cause is served upon him by the authority which proposes to dismiss him, the Court has got to look at both parts of the inquiry in order to come to the conclusion whether a reasonable opportunity was afforded to the servant to show cause against the action proposed to be against him.

It may not be necessary to duplicate what has already been done in the departmental inquiry. It may be said that if in fact the dismissed servant has been given a full and proper opportunity to show cause against the allegations made against him, then it may not be necessary again to require from him practically the same explanation.

It may also be said that it may not be necessary in every case to issue a notice in terms calling upon the servant to show cause not only against the quantum of punishment but also against the grounds on which the proposed action is based. Even though, as in this case, the notice may be defective, it in fact the servant has been given the opportunity and has availed himself of the opportunity of showing cause against the grounds, then the mere tact that there is an irregularity about the notice may not lead to the Court holding that the Government servant did not have the opportunity required under S. 240 (3).

But we think that there can be no doubt that the Court must be satisfied on a review of all the facts of a particular case that the statutory obligation cast upon the State has been properly discharged by the State and the statutory obligation is to afford reasonable opportunity to the dismissed servant.

In order to arrive at this satisfaction I have to review the proceedings of the inquiry. As already observed, the major part, if not the whole, of it was conducted behind the back of the petitioner. All the prosecution witnesses were examined in his absence; he had no occasion to hear them depose against him and to cross-examine them. He was called to appear for the first time on 8-10-1953.

He was then told that he could examine any witness he liked in defence. The order further states that the evidence that had been recorded in the petitioner''s absence, was read out to him. But it does not specify the evidence that was actually read out to the petitioner. Even the copies of the statements and reports against him were-not supplied. There is thus nothing on the record to indicate that the petitioner was in any way apprised of everything that was stated or reported against him.

Even if it is assumed that the entire evidence was actually read out to him, the petitioner could not have remembered and committed to memory the evidence thus read out. Moreover, the principles of natural justice, and so also the rules of procedure for Departmental inquiries, require that the evidence on the basis of which a public servant is proposed to be penalized must be given in his preserve. The witnesses may probably not have dared to make the statements which they did in his absence. The petitioner could not be called upon to rebut the evidence unless the same was examined in his presence.

It was for the prosecution to make out a prima facie case before he was required to examine evidence in defence. The procedure to allow him to call any of the witnesses, who had deposed against him in his absence, and examine them in his defence was indeed a novel one. This is all that took place on the first day the petitioner appeared before the inquiry officer. The proceedings were then adjourned to 12-10-1953. On this date his defence was examined and that was the end of the inquiry.

The first charge against the petitioner related to connivance at illicit grazing allegedly going on for several days. This was based upon (1) certain observations made by the Divisional Forest Officer himself on the spot, (2) report of Rattan Singh, Range Officer, and (3) the statement of Umra and seizure of cattle on 11th August. As regards the first, the Divisional Forest Officer did not make any notes of his observations.

In the order of dismissal passed by him several months after the inspection, he says-

The forest when inspected by me on 11th August, 1953 had unmistakable and abundant signs of having been heavily grazed and browsed for sometime past. Whole of the ground was covered with hoof marks of cattle in wet soil, the grass had been eaten up almost to the roots branches of trees and shrubs had been browsed and abundant quantities of cow dung in various stages of decay from absolutely fresh droppings to several weeks old was found everywhere.

Learned Counsel for the respondents concedes that except what is contained in this order, there is no note on the inquiry file to that effect. All this the Divisional Forest Officer kept to himself and retained in his memory. This being so, there was no occasion for the petitioner to submit any explanation to the first ground of the charge.

He never knew what was actually observed by the Divisional Forest Officer and what conclusions he had derived from his observations. This makes the Divisional Forest Officer himself the complainant or at least the principal witness; it is not desirable that he should also have been the judge and the final authority to decide the petitioner''s fate.

The petitioner in his defence inter alia pleaded that the cattle were let in the Bir by the contractor (Mukund Singh) under oral orders of the Divisional Forest Officer. The contractor also made some such statement. The story may or may not be true, but it did not implicate the Divisional Forest Officer and accuse him of the responsibility for illicit grazing.

Sense of propriety and justice demanded that the Divisional Forest Officer, on such plea having been taken, should have stayed his hands from proceeding with the inquiry or at legist have stopped short of pronouncing judgment on it. The Divisional Forest Officer dealt with this ground of defence in his final order and disposed it of toy saying-

This is indeed a very strange defence and this story is a unique example of effrontery and a shameless lie. It appears to have been concocted soon after the seizure of the cattle and the behavior of the Forest Guard in not accompanying the DFO and party after cattle had been seized even upto the boundary of the Forest or asking permission to stay back is a clear proof of his intentions.

Reverting to the subject again,�the Divisional Forest Officer says-

The Forest Guard has shown a most mischievous mentality in trying to accuse his Officer of having permitted grazing verbally instead of clearing his own position. He instigated the contractor to adopt a defiant attitude. Thus besides being guilty of permitting illicit grazing, he has deliberately tried to undermine discipline amongst the subordinates and the contractors.

I, therefore, find him guilty of corruption in having permitted illicit grazing in his beat and of manufacturing deliberate lies against his Officer.

The use of superlatives is not without significance.

Rattan Singh, the Range Officer, was never examined. Even the report of what he saw or did on 13th August was not supplied to the petitioner. Umra, as already observed, was not examined in the petitioners presence.

As regards the latter part of the second charge, the petitioner should have been told whether his failure to accompany the Divisional Forest Officer after his inspection or to obtain his permission to stay behind was a mere lack of ordinary courtesy or an infringement of any departmental rule. The matter does not appear to have been cleared in the charge or in any of the orders of the Divisional Forest Officer.

The above discussion makes it clear that the inquiry proceedings were anything but just and fair, and that the petitioner did not have a reasonable opportunity to explain his position and of showing cause against the proposed action. It is thus not merely a case of violation of some of the Rules relating to Departmental Inquiry.

The rules may only be directory and their violation, as contended by the learned Assistant Advocate General, may not furnish a cause of action to the petitioner to get the order of dismissal set aside. But it is a case where a mandatory constitutional provision safeguarding the rights of a public servant has been flouted.

In the result, the petition is accepted with costs; the order of petitioner''s dismissal date 17-12-1953 (with retrospective effect from 1-12-1953) is held to be illegal and ineffective and hence quashed. It is further directed that he shall be deemed to continue in service. Counsel fee shall be Rs. 50/-.