W.M. Elley vs State of Patiala and others

Mehar Singh, J.—This is a petition under Art. 226 of the Constitution for appropriate writ, order or direction quashing the order, dated 16-4-1953, of the Inspector General of Police, Pepsu, dismissing the petitioner from Pepsu Police force, in which he held the post of an assistant sub-inspector of police, and declaring that he continues to be a member of the Pepsu police force and in the post of assistant sub-inspector of Police.

The petitioner was enlisted in the police department of the former Patiala State as art assistant sub-inspector of police on 13-5-1946. It appears that on the formation of Pepsu on 20-8-1943, he maintained that status. He was posted in 1952 in Mohindergarh district under Capt. S. Baboo Singh, the Superintendent of Police of that district. On 12-9-1952, the Superintendent of Police gave him a summary of allegations, which later on took the shape of definite charges, based on the confidential reports of three Superintendents o� Police under whom he had worked, charging him with having failed to reach a reasonable standard of efficiency. The petitioner while denying the charge stated in reply that the confidential reports were never shown to him and he was never given opportunity to meet and answer the adverse remarks against him In those reports.

The then Superintendent of Police recommended to the Inspector General of Police that the petitioner be required to resign from service, but the latter returned the papers to the Superintendent of Police pointing out to him that he was the paper authority to pass the necessary order. In the meantime there was a transfer of the Superintendent of Police, and the succeeding Superintendent of Police on going through the case came to the conclusion that, as the adverse remarks in the confidential reports had not been communicated to the petitioner and he had had no opportunity to represent against them, the confidential reports could not be the basis of any action against the petitioner. The Inspector General of Police reconsidered the case and did not agree with the Superintendent of Police. He, therefore, called upon the petitioner to show cause why he should not be punished and the material part of the notice served on the petitioner is this

�I, therefore, call upon the A.S.I. to show cause why I should not annul the order of the Superintendent of Police, Mohindargarh, and punish him on the charge framed against him.�

The petitioner in his reply again reiterated his stand that he had no opportunity to meet and represent against the adverse remarks in the confidential reports as the same were never communicate to him. Thereupon the Inspector General of Police dismissed him on 16-4-1953.

The petitioner avers that the order of the Inspector General of Police dismissing him is contrary to Art. 311(2) because, though he was given an opportunity of showing cause why he should not be punished, no specific punishment was proposed against which he was to show cause, and therefore the order of dismissal is illegal and ultra vires.

On behalf of the respondents, the State of Pepsu and the Inspector General of Police, the facts alleged by the petitioner are not controverted; but the reply is that the petitioner was given proper opportunity, in accordance with Art. 311(2) to show cause why he be not punished and that it was not necessary to state definitely the punishment that was ultimately to be awarded to him.

I have no difficulty at all in reaching the conclusion that the stand taken and the argument urged on behalf of the respondents is utterly untenable, because, in my opinion, the I punishment to be awarded must first be tentatively decided upon before a civil servant can be asked to show cause against the imposition of the punishment. It is not enough that he should show cause why he should not be punished. In such a case he would not know against what kind of punishment he is required to show cause. He cannot be left guessing what would be the ultimate punishment awarded by the authority after he has shown cause that he does not deserve to be punished. There can be cases in which the charge is not of a very serious nature and in the ordinary circumstances the punishment that ought to follow would reasonably be expected to be of a minor nature.

The civil servant in such a case cannot be expected to show cause why the extreme punishment be not awarded to him. So when he is required to show cause why he should not be punished, that is not proper opportunity under Art. 311(2) "of showing cause against the action proposed to be taken". Clause (2) of Art. 311 requires that "a reasonable opportunity of showing cause against the action proposed to be taken" must be given to civil servant before he can be removed or dismissed. The words "action proposed" cannot be read to mean that the civil servant be only asked why he should not be punished. What those words mean is that definite action tentatively proposed against him must be stated when he is called upon to show cause against such proposed action, in other words, specific punishment must be tentatively proposed before it can be said that he has had reasonable opportunity of showing cause against the proposed punishment.

When it is stated indefinitely and vaguely, without specifying the provisional punishment intended to be awarded, that he is to show cause why he should not be punished, that is not asking him to chow cause against a definite punishment tentatively proposed to be awarded to him. Therefore, where a civil servant is merely asked to show cause why he should not be punished that is no compliance with the mandatory provisions of Cl. (2) of Art. 311. This view is supported by the AIR 1948 121 (Privy Council) , in which their Lordships of the Privy Council observed:

�In the opinion of their Lordships, no action is proposed, within the meaning of the sub-section (sub-sec. 3 of S. 240 of the Government of India Act) until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on.�

In this view, it is abundantly clear that the petitioner was not given proper opportunity to show cause against the action proposed against him within the meaning of the mandatory provision of Cl. (2) of Art. 311 of the Constitution; and, it follows that the order dismissing the petitioner being contrary to those provisions is illegal and ultra vires.

In consequence, the order dismissing the petitioner is quashed and it is declared that he still continues to be an assistant sub-inspector of police in the Pepsu Police force. The costs of the petitioner will be borne by the respondents. Counsel fee Rs. 100/-.