Sudhakar C. Dave vs Saurashtra State

Shah, C.J.—This is a petition under Article 226 of the Constitution fort a writ of certiorari for quashing, the of discharge of the Petitioner

from service and for other appropriate writs. The Petitioner was appointed as information assistant in the Department: of Information and Publicity

of the Saurashtra Government with effect from 9-3-1951 and he was serving in that capacity at the date of his discharge from service on 16-11-

1953.

He was not confirmed and was a probationer at the date of the discharge. The Petitioner avers that despite his frequent request the Director of

Information was deliberately not giving him sufficient work in order that no may not get proper experience, but this allegation has been definitely

denied on behalf of the opponent.

Whatever that might be, it does appear that the Petitioner had come into conflict: with the Director of Information. He had sent a letter to the

Secretary, Home Department, on 22-7-1953 complaining of insufficiency of world given to him by lire Director of Information, and his case is''

that this offended the'' Director of Information who started sending him memo after memo, all of which were unwarranted and unjustified and that

this was done with a view to getting him into trouble.

It is unnecessary for the present torpors- to enquire into the merits of these allegations, but the ''fact, remains that several memos had been issued

to the Petitioner between 25-7-1953 and 13-8-1953 complaining of his -insubordination, neglect of work, disobedience of superiors orders etc.

Then on 14-9-1953 the petitioner was served with the following notice

Immediate Goverment of Saturastra

To

Shri Sudhakar C. Dave,

Information Assistant on probation.

Directorate of Information & Publicity,

Government of Saurashtra, Rajkot.

Government have before them evidence to show that of late you are not attending to your duties in a proper manner and that you are responsible

for breach of conduct and discipline required of a responsible Government servant. The following are only illustrations which ate proved beyond

doubt:

You incited Shri. Suresh Jivrajani, proof reader in the Directorate of Information to approach higher authorities and even to the Press in order to

rectify what you thought to be an injustice when he had to pay demurrages for which he himself, was responsible. This1 matter also appeared in the

Bombay Weekly Nav Vidhan.

You did not attend to the work of comparing die administrative report with corrected script given to you by the Director of Information, even

though you were told that it was of immediate nature and even though you were not doing other work on the day this work was given to you, and

you failed to give any explanation which was asked for.

You neglected the work of checking up exhibition articles to be taken to Mehsana for Railway Centenary Exhibition Train, with the list given to

you by senior Clerk Shri. D.P. Trivedi and that you now orally say that the(c) hits were never given to you.

When you were told on 10-8-53 that the work of taking the exhibits and checking with, the lists was'' given to you, you told the Director of

Information that it was a lie, and that even after being given an opportunity to make amends by withdrawing the words, you did not retrace the

insult that you had hurled.

On 11-8-53 you came to the office at 1 15 p.m. and yet you made a false entry in the muster roll to the effect that you came at 11-00 a.m. On

being asked to make a correction if you had made the entry by mistake you did not do so. You did not submit an explanation even though you

were asked to do so.

You have, grossly neglected important memos issued to you - by the Director of Information and Publicity and you have refused to reply them

even though often reminded.

In para 5 of your application elated 22-7-53 to the Home Secretary, you have made an unsubstantiated and false accusation against the head or

your .office; and before this accusation was communicated to the Homo Secretary this and other motors land appeared1 in the Bombay Wookly

Nav Vidhan.

Government are convinced:

That often you neglect or failed in doing -satisfactorily whatever work is given to you.

That you wrongly complained that the Director of Information gives you work which according to you is not legitimately yours and that you also

complain that the Director of Information gives you insufficient or no work.

That you instigate some members of the stall'' against office and some of its members, in connection with matters with, which you are not

concerned and

That of late your conduct in relation to the Director of Information and soma Ors. in your Department, has been quite unsatisfactory and you

have been intriguing even over small matters slighting office discipline and generally Italia irresponsibly.

Government, therefore, consider that you are not a fit person to be continued on the responsible post of Information Assistant and you are

hereby asked to show cause in writing to be delivered to the undersigned or to Assistant Secretary Shri. R.A. Dave latest on 18-9-1953 before

close of office hours, why you should not be discharged from service.

Sd/- R. A. Dave,

For Secretary Home Department,

Government of Saurashtra.

In reply the Petitioner sent a lengthy explanation on 21-9-1953, LA. 15, lie was also given an interview by the. Deputy Secretary, Homo

Department on 9-10-1953, On 10-10-1953 he sent copies of Borne more memos issued to him by the Director of Information between 8.12-

1952 and 2-7-1953.

After considering the charge sheet and the Petitioner''s explanation and the papers of the case the Deputy Secretary, Homr) Department, .passed

order on 16-11-1953 discharging the petitioner from service on the ground that his conduct and behavior was not satisfactory and his continuance

in service was no longer in the interest of Government.

This Order is now challenged by'' the petitioner as contravening the provisions of Article 311(2) of the Constitution and Rule 55. Bombay Civil

Service Conduct, Discipline and Appeal Rules, which are made applicable to Saurashtra.

It is not disputed by die petitioner that he was a probationer at the ""time of his discharge, though ho alleges that he deserved to'' be confirmed

and should have been confirmed long before. It is equally not disputed by the learned Advocate General that doughy the petitioner was a

probationer, he was nevertheless a civil servant and therefore entitled to the benefit of Article 311(2) of the Constitution.

Under sub-clause (2) of Article 311 no civil servant shall be dismissed or removed or reduced in rank until he has been given a reasonable

opportunity of showing cause against the action proposed to be taken in regard to him. The words ""a reasonable opportunity .of showing cause

against the action proposed to be taken"" have been construed and interpreted by the Federal Court in � ''Secretary of State v. I. M. Inil AIR

RT45 FC 47 (A). That was a loans governed by to provisions of Section 240. Government of India Act, 1935, Sub-section (3) whereof

contained substantially the same provisions, ns Clause (2) of Article fill of the Constitution excepting that the word ""removed"" has been added in

Article 311(2).

The view taken by the majority of the Federal Court on the construction of the above quoted phase is expressed in. the following terms :

It does however seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or reduce in rank a iv

ember of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that

opportunity has to be a reasonable opportunity,, it seems to us that the section requires not only not flatiron of tine 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 representation 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 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 being dismissed or reduced, if all or the charges are. proved, dismiss 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 foe certain acts or omission on his part and'' must be told

the grounds on which it "" proposed to lake such action and must be given a reasonable opportunity of showing cause why such punishment should

not be imposed.

The case went in appeal to the Privy Council in - AIR 1948 121 (Privy Council) , and in agreement with the above view of the majority of the

Federal Court, Their Lordships of the Privy Counsel themselves expressed the position in law as follows:

In their opinion, Sub-section (3) of Section 240 was not intended to be, and was not a reproduction of Rule 55 which was left unaffected as an

administrative rule. Rule 35 is concerned that the civil servant shall be informed ""of the ground on which it is proposed to lake action"", and to afford

him an adequate opportunity of defending himself against charges which have to be reduced to writing.

This is in marked contrast to the statutory provision of a reasonable opportunity of showing cause against the action proposed to be taken in

regard to him. In the opinion of their Lordships, no action is proposed within the sub-section until a definite conclusion has been come to on the

charges and the actual punishment to follow is provisionally determined on.

Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage, being reached that the

statute gives the civil servant the opportunity for which sub-section (3) makes provisions. Their Lordships would only add that they see no difficulty

in the statutory opportunity being reasonably afforded at more than one stage.

If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage if duly

carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed- as the result

of the findings of the enquiry.

No doubt'' the Privy Council was construing Section 240 (3), Government of India Act, 1935 but Article 311(2) of the Constitution is

substantially in the same terms as S. 240 (3) and ii- mould therefore bear the same construction as the latter.

The above observations of Their Lordships clearly indicate that the proceedings of this nature contemplate two stages, the first being when the

charges ore -enquired into and that is the stage at which the person required to answer the charges is to be given a reasonable opportunity of

defending himself.

The second stage is when the enquiring authority has come to a definite conclusion on the charges and the actual punishment to follow has been

provisionally determined on. It is at that: ago too that an opportunity is to be given to the person of showing cause against the proposed

punishment. It'' follows therefore that the person is entitled 1:0 a reasonable opportunity of showing cause at both the stages before the order of

daily etc., is passed.

This position in law has not been disputed by the learned Advocate General, but the learned Advocate General contends that this does not hold

good in die case of a probationer and that in his case it will be sufficient if a reasonable opportunity is given to him to show cause why he should

not be discharged from service and that this opportunity need be given only once.

He refers to Explanation 2 of Rule 49 of the Bombay Civil Services Conduct; Discipline and Appeal Rules, slue says that the discharge of a

probationer, whether during, or at the end of the period of probation, for some specific fault or on account of his unsuitability for the service,

amounts to removal or dismissal within the meaning of this rule, and ho relies on para 3 of Rule 55.

Now the Vast paragraph of the said Rule prescribes a certain procedure or enquiry and it provides that the person concerned is to be informed in

writing of die grounds on which it is proposed to take action and he is to be afforded an adequate opportunity of defending himself. The said

grounds are to be reduced to the form of a definite charge charges and these are to be communicated to the person charged together with a

statement of tin; allegations on which each charge is based and of any order circumstances which it is proposed to take into consideration in

passing, orders.

The person is to be required, within a reasonable time,, to put in a written statement of his defence and to state whether he desires to be heard in

person. If he so desires or the authority concerned so directs an oral enquiry to be held and at that enquiry oral evidence is to be heard-as to such

allegations as are not admitted and the person charged is entitled to cross-examine the witnesses, to give evidence in person and to call his own

witnesses.

The proceedings are to contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. Paragraph 3 of llu Fc 55

says that the full procedure in this rule, meaning in the first paragraph of the rule, need no I: be followed in the case of a probationer, discharged in

the circumstances described in Explanation 2 under Rule 49 and that in such cases it will be sufficient if the probationer is given an opportunity to

show cause in writing against the discharged after being apprised of the grounds on which ft is proposed to discharge him and his re-ply duly

considered before orders are passed.

It will be seen that the material words in the paragraph of Rule 55 are ""unless has been if the grounds on which it is proposed to take action"",

whereas the material fords in para 3 are ""Given an opportunity to show writing against the discharge."" The word ""discharge"" occurs in para 3

obviously because Explanation 2 under Rule 40 refers to discharge but that docs not alter the basic position envisaged by (ho first paragraph of

Rule 55.

In both ewes (he person is to be given an opportunity to show cause after being informed of the grounds on which it is proposed to take action,

and in our opinion the opportunity to be given to the person concerned should lie the nanio in both-the cases. We do not think there is any

substantial difference between para 1 and para 2 of Rule 55 in so far as it concerns the giving of the opportunity to the person.

What para 3 only says is that in the east ''of ii probationer the full procedure proscribed in the lirit paragraph of the rule need not be followed. That

rather implies that in so far as it relates to tin giving of the opportunity to show cause, the probationer is to be treated on the same forting as a

confirmed civil servant.

But even if this was not no, th0 probationer being a civil servant has the right, which was a statutory right u/s 240(3), Government of India Act,

1935, and which is now conferred by Article 311(2) of the Constitution to a reasonable opportunity of showing cause against the action proposed

to be taken in regard to him, and k. view of the construction put on these words by the Privy Council in AIR 1948 121 (Privy Council) , dial; right

is to have die opportunity to show cause a'': both the stages: referred to in paragraph 3 of thin judgment.

We arc therefore unable to accept the contention of the learned Advocate General that iii die case of a probationer he need not be given an

opportunity at, Lot the stages, and that ) will be sufficient if ho is given an opportunity only once.

What has hampered in the present case is that the notice Ex. 14 is th0 only opportunity given to the Petitioner to show cause. It says, inter aria,

that ""tire following are only illustrations which are proved beyond doubt"", and para 3 of the notice says diet the Government consider that he is not

a fit person to continue on the responsible post of Information Assistant and he is called upon to show cause why he should not be discharged from

service.

This notice gives the impression that the Government had made up its mind already tint the charges had been proved against the Petitioner and that

what was now required was that he was to show cause why the order of discharge should, not be passed. Subject to his contention that the

Petitioner being a probationer- was not entitled to an opportunity twice, the learned Advocate General contends that the notice conform"" to the

second. Stage and he concedes that the first stage had not been gone through.

That is also the Petitioner''s interpretation of Ex. 14 and in our opinion that interpretation is correct. If diat is so dien obviously the first slaga has not

been gone through arid unless a reasonable opportunity of showing cause against th0 charge made against the Petitioner is given to him and to is

heard the enquiring authority could not have come to a definite conclusion weedier die charges were proved or not. The enquiring authority cannot

proceed on the assumption that the charges have been duly proved and to give a notice to show cause only against the punishment itself.

But assuming for the sake of discussion than Ex, 14 is the notice; to show cause at- the first stage for the purpose of holding whether the charges

were proved or not, then the notice required at the .second stage has not been given and die Petitioner has not been given an opportunity to

represent against the punishment proposed as a result of the findings of the enquiry.

It may be he may be able to show a good caus0 against die proposed punishment which'' may appeal to the enquiring authority and as a result

thereof (li0 said authority may not inflict that punishment. In either view therefore (lie requisite opportunity has not been given to the Petitioner.

Since we hold that die Petitioner entitled to tin opportunity to show cause at both the stages and since such opportunity has not bum given to him

the order of his discharge is invalid and unsustainable. Accordingly we allow this petition and grant a wet of certiorari to quash tho order of

discharge passed against the Petitioner and We further direct that he be rein/stated in service. The opponent to pay the Petitioner''s costs and to

bear its own.

Baxi, J

I agree.