O.G. Kunhappa Nambiar vs The Collector of Nilgiris and others

Rajagopalan, J.—The petitioner was recruited as a Field Surveyor in 1926 in the Madras Survey and Land Records Subordinate Service.

He was promoted as a Town Surveyor in the same service in 1940, which post he held till 1949, when he was appointed by the Board of Revenue

on 24th August 1949 to act as a District Surveyor. He assumed charge of the office of the District Surveyor on 10th September 1949, and in the

usual course he should have completed probation prescribed by the rules on 10th September 1951. On 24th November 1951 the Collector of

Nilgiris called upon the petitioner to offer his explanation with reference to the two charges (1) loss of records and (2) writing up false diaries for

19th January 1951 and 20th January 1951. The petitioner offered his explanation, but the Collector, not satisfied with that explanation, initiated

disciplinary proceedings on 7th February 1952 by framing two charges against the petitioner. The Collector directed the Treasury Deputy

Collector of Nilgiris to enquire into these charges and send up a report to the Collector. The Treasury Deputy Collector, the Enquiring officer,

examined the witnesses who gave evidence in support of the charges on 9th December 1952 and 16th December 1952. The petitioner furnished

the Collector with a list of 17 witnesses whom the petitioner wanted to examine on his behalf. On 22nd December 1952 the Collector called upon

the petitioner to explain why he wanted each one of these 17 witnesses to be examined, and the petitioner offered his explanation on 31st

December 1952. The Collector ordered with reference to the two officers of the Survey Department, Mr. Ally and Mr. Sankunni Menon ""It is

unnecessary to summon these officers as they have nothing to do with the case."" With reference to the request of the petitioner to summon the

President of District Board, the order of the Collector was ""not necessary"". That was the same order ""not necessary"" which the Collector passed

with reference to the pattadars of the villages, whom the petitioner cited as his witnesses. The petitioner also cited some revenue subordinates, who

had undergone training in Nilgiris, some of whom were in Nilgiris District and others were in Malabar and Madurai districts. With reference to

these, the Collector''s order was: ""The petitioner can examine the revenue subordinates of this district.'''' There was yet another class of witnesses

with reference to whom alone the Collector''s order ran. ""Unless he mentions why they need not be examined."" None of the 17 witnesses was

summoned by the Collector. On 11th January 1953 the petitioner moved the Collector to reconsider his orders. But on 21st January 1953 the

Collector refused reconsideration, and his further direction was that the Collector would decline to summon any of the witnesses, and any of the

witnesses whose examination the Collector had permitted would be examined only if the petitioner himself produced them without being granted

any summons for their appearance. As I said, eventually none of the 17 persons cited by the petitioner was examined. On 25th March 1953 the

enquiring Officer, the Treasury Deputy Collector, submitted his report, recording the finding that both the charges had been proved. On 7th April

1953 the Collector issued a notice to the petitioner to show cause why he should not be dismissed from service. After considering the

representation the petitioner made in response to that notice, the Collector ordered on 17th June 1953 that the petitioner should be reduced in

rank to that of a Town Surveyor.

The petitioner appealed without success to the Board and then to the Government.

The petitioner challenged the validity of the order of the Collector, confirmed by the Board and by the Government, in this application under Art.

226 of the Constitution for the issue of a writ of certiorari.

Learned Counsel for the petitioner contended (1) that the Collector had no jurisdiction to punish the petitioner, because the petitioner was

appointed by the Board and (2) that the petitioner had not been given an effective opportunity of showing cause against the punishment actually

inflicted upon him. His defence evidence had been shut out.

At that enquiry oral evidence shalIndependently of this was the further contention, that the refusal to examine the witnesses cited by the petitioner,

which refusal was by the Collector, was in contravention of the provisions of S. 15 (b) (i) of the Madras Civil Services (Classification, Control and

Appeal) Rules as they stood on the relevant date. The relevant portion of R. 15 (b) (i) ran :

l be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give

evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and

sufficient reason to be recorded in writing, refuse to call a witness.

The petitioner in this case did wish to examine 17 persons. The list was furnished to the Collector, and it is not disputed that the enquiring

officer, the Treasury Deputy Collector, was aware of the expressed desire of the petitioner to examine 17 witnesses on his behalf. Under the rules,

it was for the enquiring officer, the Treasury Deputy Collector, to decide whether any of the witnesses cited by the petitioner need be summoned;

and if the enquiring officer decided against summoning these officers that could have been decided only after the enquiring officer had recorded

special and sufficient"" reasons under R. 15 (b) (i). In this case the enquiring officer, the Treasury Deputy Collector, passed no order at all with

reference to the petitioner''s request to examine witnesses for the defence. The Collector''s orders, whether they satisfied or not the requirements of

R. 15 (b) (i) as to ""special and sufficient reasons recorded in writing,'''' would not be a substitute for what the rule required that such reasons

should be recorded in writing by the enquiring officer. The contravention of R. 15 (b) (i) certainly prejudiced the conduct of the petitioner''s

defence before the enquiring officer and also affected materially the ultimate result of the disciplinary enquiry.

I set out earlier the orders passed by the Collector on 9th January 1933 with reference to the request of the petitioner to examine witnesses on

his behalf. It is not, of course, for this Court to determine the sufficiency or the adequacy of the reason''s given by the officer referred to in R. 15

(b) (i) to justify a refusal to summon any of the witnesses cited by the person against whom disciplinary proceedings are launched. But if the refusal

is based upon no reason at all, that would certainly be a violation of the mandatory provisions of R. 15 (b) (i). From the extract I have set out

earlier of the orders passed by the Collector, it should be clear that no reasons at all were given for the refusal to summon some at least of the

witnesses. Even had the Collector been the enquiring officer within the meaning of R. 15 (b) (i), a good portion of his order would have stood

vitiated. But then the Collector was not the enquiring officer. It was not the Collector''s failure to satisfy the requirements of R. 15 (b) (i) and to

record special and sufficient reasons for the refusal that vitiated the enquiry. It was the failure of the enquiring officer to consider the question at all

and to record any orders with reference to the witnesses cited for the defence that vitiates the enquiry. On that short ground alone the order

complained against will have to be set aside and the rule made absolute.

Another contention of the learned Counsel for the petitioner was that there was also a contravention of R. 15 (b) (ii). The relevant portion of that

rule ran:

After the enquiry referred to in Cl. (i), that is, R. 15 (b) (i) has been completed and after the authority competent to impose the penalty mentioned

in that clause has arrived at provisional conclusion in regard to the penalty to be imposed, the person charged shall be called upon to show cause

within reasonable time..... against the particular penalty proposed to be inflicted.

In this case, the penalty was actually imposed by the Collector. It was the Collector who issued the notice required by R. 15 (b) (i) to show

cause why the penalty of dismissal should not be imposed. Eventually it was only a penalty of reduction in rank that was imposed. The officer

competent to impose both the punishment of dismissal and reduction in rank in accordance with the schedule to the Madras Civil Services

(Classification, Control and Appeal) rule as they stood on the relevant date was the Collector. in the present case there was a complication

introduced by the fact, that the petitioner was appointed by the Board of Revenue. If Art. 311(1) were to apply-and it would apply to cases of

removal and dismissal-the Collector could nor have imposed either of these punishments in the case of the petitioner despite the specific provision

in the classification rules themselves. That was the contention of the learned Counsel for the petitioner. The further contention of the learned

Counsel was, since the Collector was not competent, in the case of the petitioner at any rate, to impose the penalty of dismissal, he was not the

person competent to issue the notice under R. 15 (b) (ii)to call upon the petitioner to show cause why a penalty of dismissal should not be imposed

upon him, and that lack of competence remained unaffected by the ultimate punishment actually imposed, reduction in rank, which was within the

competence of the Collector. It is really unnecessary for me to pronounce any opinion on the soundness or otherwise of these contentions,

because, as I have already pointed out, the order of the Collector which was confirmed by the Board and by the Government, was vitiated by the

procedural irregularity, contravention of R. 15 (b) (i) with reference to the failure to examine the witnesses. Apart from that there was also the fact,

that the petitioner really had no effective opportunity of meeting the charges against him. The witnesses whom he had cited were not examined at

all, and that is sufficient to dispose of the question at issue. It is unnecessary to go into the correctness of the other conditions raised by the learned

Counsel for the petitioner. The rule is made absolute. The petition is allowed. The order of the Collector and the confirmation of that order by the

Board and by the Government are set aside. No order as to costs.