Full Judgment Text
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PETITIONER:
UTTAR PRADESH GOVERNMENT
Vs.
RESPONDENT:
SABIR HUSSAIN
DATE OF JUDGMENT30/04/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1975 AIR 2045 1975 SCR 354
1975 SCC (4) 703
CITATOR INFO :
RF 1991 SC 471 (10)
ACT:
Government of India Act, 1935--S. 240--1f covers a case of
’removal’ also--Reasonable opportunity--Test of--If
obligatory to give reasonable opportunity in the case of
’removal’ from service.
HEADNOTE:
Section 240 of Government of India Act, 1935 states that no
person shall be dismissed 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.
Article 311(2) of the Constitution (after the 15th
Amendment) states that no person shall be dismissed, removed
or reduced in rank except after an enquiry in which he has
been informed of the charges against him given a reasonable
opportunity of being heard in respect of those changes and
where it is proposed, after such inquiry, to impose on him
’.my Such penalty, until he has been given a reasonable
opportunity of making representation on the penalty proposed
but only on the basis of the evidence adduced during such
inquiry.
The respondent was dismissed from Government service in
1942. On representations, he was reinstated in 1948 but by
the same order he was suspended with retrospective effect
from the date of dismissal. After an inquiry, he was
removed from service in 1949. His suit for declaration that
the order of suspension and removal were illegal and ultra
vires was dismissed and his appeal was also dismissed. The
High Court allowed the appeal holding that in the absence of
furnishing a copy of the report, of the inquiry officer,
the plaintiff had been denied a reasonable opportunity of
showing cause against his ’removal’.
On appeal by the State to this Court it was contended that
since the removal was pre-Constitutional, no protection of
Art. 311(2) could be claimed by the respondent. Section
240(3) of the Government of India Act, 1935, it was
contended, would not afford any protection because the word
removal’ did not find mention in that section.
Dismissing the appeal,
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HELD : (1) The High Court was right in holding that the
respondent was not given a reasonable opportunity to show
cause against the action proposed to be taken against him
and that the non-supply of the copies of the material
documents had caused serious prejudice to him in making a
proper representation. There was disobedience of the
mandate of s. 240(3) of the (Government of India Act, 1935
and the impugned order stood vitiated on score alone. [360
A-B]
(2) A comparative study of s. 240(3) of the Government of
India Act, 1935 and Art. 311(2) of the Constitution of
India, 1950 would show that the protection afforded by these
provisions, is in nature and extent substantially the same.
The word ’removed’ which appears in Art. 311(2) does not
find mention in s. 240(3 ). But this does not mean that s.
240(3) did not cover a case of ’removal’. It is by now well
settled that from the Constitutional standpoint, ’removal’
and ’dismissal’ stand on the same fooling except as to
future employment. In the context of s. 240(3) ’removal’
and ’dismissal’ from service, are synonymous terms, the
former being only a species of the latter. Moreover,
according to the principle of interpretation laid down in s.
277
355
of the 1935 Act, the reference to dismissal in s. 240 would
include a reference to removal. [358 D-F]
High Commissioner of India v. I. M. Lal [1948] 75 I.A. 225;
Purshottam Lal Dhingra v. Union of India [1958] S.C.R. 825;
Khem Chand v. Union of India [1958] S.C.R. 1080; Shyam Lal
v. The State [1955] S.C.R. 25 referred to.
(3) Despite tin non-mention of the word ’removal’ in s.
240(3) it was obligatory for the removing authority as soon
as it tentatively decided as a result of the enquiry, to
inflict the punishment of ’removal’ to give to the employee
a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him. [358-G]
(4) The broad test of "reasonable opportunity" is, whether
in the given case, the show cause notice issued to the
delinquent servant contained or was accompanied by so much
information as was necessary to enable him to clear himself
of the guilt, if possible, even at that stage, or, in the
alternative, to show that the penalty proposed was much too
harsh and disproportionate to the nature of the charge
established against him. [359 B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 174 of 1968.
Appeal by Special Leave from the Judgment and Order dated
the 17th August, 1967 of the Allahabad High Court (Lucknow
Bench) in Second Appeal No. 155 of 1959.
G. N. Dikshit and O. P. Rana, for the appellant.
R. P. Agarwal, for the respondent.
The Judgment of the Court was delivered by.
SARKARIA J.-This appeal is directed against a judgment of
the High Court of Allahabad declaring that the orders, dated
15-8-1949 and 18-5-1951, of the respondent’s removal from
service were illegal.
The respondent was employed as Assistant Jailor at the
Central Prison, Benaras. Auditing of the accounts revealed
certain shortages. The respondent was charge-sheeted in
respect of the same, and dismissed from the post on 4-7-
1942. He made representations to the authorities against
his dismissal. Ultimately, the Government reinstated him on
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15-6-1948 but by the same order suspended him with retros-
pective effect from the date of his dismissal. On the basis
of the enquiry held earlier into the charges against him, he
was removed from service on August 15, 1949. The respondent
then filed suit No. 144/ 396 of 1952 in the Court of Munsif,
Lucknow, claiming a declaration that the suspension order,
dated June 15, 1948, and the removal order dated, 15-8-1949,
and the Government Order, dated 18-5-1951, upholding the
removal in appeal, were illegal, ultra vires and contrary to
the rules. The plaintiff further stated that be would file
a separate suit for the recovery of the arrears of pay, to
which he was entitled in respect of the period from 4-7-42
to 10-8-1949.
The suit was resisted by the State on various grounds. The
trial court dismissed his suit. The First Appellate Court
dismissed his appeal.
356
The plaintiff preferred a second appeal in the High Court.
Before the learned Judge of the High Court, who heard the
appeal, it was contended, inter-alia that copies of the
Enquiry Officer’s report and findings were not supplied to
the plaintiff and therefore, he was not afforded a
reasonable opportunity of showing cause in terms of Art.
311(2) of the Constitution. In substance, the learned Judge
Seems to have accepted this contention when he concluded
that "in the absence of furnishing a copy of the report, it
could not be said that the plaintiff had been afforded a
reasonable opportunity to show cause". He, however rested
this conclusion also on the ground "that no cause could
properly be shown without a copy of the proceedings being
handed over as provided in Rule 5-A of the Punishment &
Appeal Rules for Subordinate Services notified by the State
Government under Notification No. 2627/11-266 dated August
3, 1932", (hereinafter referred to as the Appeal Rules). In
the result, he allowed the appeal and declared the impugned
orders, dated 15-8-1949 and 18-9-1951 to be void. He did
not think it necessary to record any finding with respect to
the suspension order, dated June 15, 1958, as the same had
merged in the removal orders. Hence this appeal by special
leave by the State.
The plaintiff-respondent has not appeared before us despite
notice. Mr. Aggarwal has assisted us as amicus curiae.
Shri Dikshit, learned Counsel for the appellant contends
that the High Court was wrong in holding that the impugned
order of removal violated the provisions of Rule 5-A of the
Appeal Rules. It is pointed out that the application of
Rule 5-A to the employees of Jail Department was expressly
excluded by Rule 6 of the Appeal Rules. It is further
submitted that since the removal in question was a pre-
constitutional removal, no protection of Art. 3 11 (2) of
the Constitution could be claimed by the respondent. Even
s. 240(1) of the Government of India Act, 1935, according to
the Counsel, would Dot afford any protection because the
word ’removal’ did not Find mention in that section.
’Removal’, says the Counsel, is something different from
’dismissal’ and the authors of the Government of India Act
were aware of this difference when they did not include it
in the protective provisions of s. 240. Since the impugned
order, dated 10-8-1949, was only an order of removal as
distinguished from dismissal, s. 240(3) was not attracted
and no opportunity to show cause against the intended
removal was required to be given to the servant. It is
further submitted that in any case, the respondent had no
right to be supplied with a copy of the report and the
findings of the Enquiry Officer on the ground that it was a
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requirement of natural justice. In support of his
contentions, learned counsel has cited Suresh Koshy Georqe
v. The University of Kerala and ors.(1), Satish Chander
Anand v. The Union of India(2) and State of Uttar Pradesh v.
Mohammad Nooh(3).
On the other hand, Shri R. P. Aggarwala submits that even if
Rule 5-A of the Appeal Rules was not applicable, the
respondent was entitled to the protection of S. 240(3) of
the Government of India
(1) [1969] S.C.R 317 (2) [1953]S.C.R. 655.
(3) [1958] S.C.R. 595.
357
Act, 1935. According to Counsel, the word ’dismissal’ used
in s. 240 (3) was wide enough to cover a case of removal as
a punishment. It is maintained that ’removal’ and
’dismissal’ in the context of s. 240(3) were synonymous
terms. The argument proceeds that since the respondent was
not furnished with a copy of the enquiry report and the
findings recorded therein, the opportunity, if any given,
was not a ’reasonable opportunity’ as required by the
mandatory provisions of s. 240(3). Even after making the
order of removal, it is stressed, the authorities despite
written requests made by the respondent, did not supply a
copy of those documents to enable him to file an effective
appeal/representation under the service rules to the
appropriate authority. This intransigent attitude, says the
learned amicus curiae, was also violative of the procedure
prescribed in Government circular No. 47/ B8EC, dated 13-12-
47, (Ex. PW 1/2) and the fundamental principles of natural
justice embodied therein. Reliance in this behalf has been
placed on High Commissioner of India v. I. M. Lall(1), Pur-
shotam Lal Dhingra v. Union of India (2), Khem Chand v.
Union of India(3), State of Gujarat v. R. G. Teradesai and
anr. (4) Counsel further distinguished the decision in
Suresh Koshy George’s case (supra).
The first point to be considered is whether the safeguard in
s. 240(3) of the Government of India Act 1935, was available
to a civil servant in a case of ’removal’ from service as a
punishment ? In other words, was the protection afforded by
s. 240(3) less extensive than the one given by Art. 311(2)
of the Constitution?
Section 240(3) was in these terms :
"No such person as aforesaid shall be
dismissed 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
Provided that this sub-section shall not
apply-
(a) where a person is dismissed or reduced
in rank on the -round of conduct which has led
to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss
a person Jr or reduce him in
rank is satisfied that for some reason to be
recorded by that authority in writing, it is
not reasonably practicable to give to that
person an opportunity of showing cause."
Article 311(2) (after the 15th Amendment) runs
thus
"No such person as aforesaid shall be
dismissed or removed or reduced in rank except
after an enquiry in which he has been informed
of the charges against him and given
(1) [1948] 75 I.A. 225. (2) [1958] S.C.R.
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825.
(3) [1958] S.C.R. 1080. (4) [1969] 2 S.C.R.
157.
358
a reasonable opportunity of being heard in
respect of those charges and where it is
proposed, after such enquiry, to impose on him
any such penalty, until he has been given a
reasonable opportunity of making
representation on the penalty proposed, but
only on the basis of the evidence adduced dur-
ing such inquiry :
Provided that this clause shall not apply-
(a) where a person is dismissed or removed
or reduced in rank on the ground of conduct
which has led to his conviction on a criminal
charge; or
(b) where the authority empowered to dismiss
or remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded
by that authority in writing, it is not
reasonably practicable to hold such inquiry;
or
(c) where the President or the Governor, as
the case may be, is satisfied that in the
interest of the security of the State it is
not expedient to hold such inquiry."
A comparative study of s. 240(3) and Art. 311(2) would show
that the protection afforded by these provisions, is in
nature and extent, substantially the same. Of course, the
word ’removed’, which appears in Art. 311(2), does not find
mention in s. 240(3). But this, does not mean that s.
240(3) did not cover a case of ’removal’. It is by now well
settled that from the constitutional stand-point, ’removal’
and ’dismissal’, stand on the same footing except as to
future employment. In the context of s. 240(3), ’removal’
and ’dismissal’ from service. are synonymous terms, the
former being only a species of the latter. Moreover,
according to the principle of interpretation laid down in s.
277 of the 1935 Act, the reference to dismissal in s. 240
would include a reference to removal (see High Commissioner
of India v. I. M. Lall) (supra); Shyam Lal v. The State(1);
Purshottam Lal Dhingra v. Union of India (supra), Khem Chand
v. Union of India (supra).
It is thus clear that despite the non-mention of the word
’removed’ in s. 240(3), it was obligatory for the removing
authority., as soon as it tentatively decided, as a result
of the enquiry, to inflict the punishment of ’removal’, to
give to the employee a ’reasonable opportunity’ of showing
cause against the action proposed to be taken in regard to
him".
It is to be noted that the section requires not only the
giving of an opportunity to show cause, but further enjoins
that the opportunity should be "reasonable". What then is
"reasonable opportunity" within the contemplation of s.
240(3) ? How is it distinguished from an opportunity which
is not reasonable ? The question has to be answered in the
context of each case, keeping in view the object of this
provision and the fundamental principle of natural justice
subserved by it.
(1) [1955] SCR 26.
359
As pointed out by this Court in State of Gujarat v.
Teredesai (supra), "the entire object of supplying a copy of
the report of the enquiring officer is to enable the
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delinquent officer to satisfy the punishing authority that
he is innocent of the charges framed against him and that
even if the charges are held to have been proved the
punishment proposed to be inflicted is unduly severe. If
the enquiry officer had also made recommendations in the
matter of punishment, that is likely to affect the mind of
the punishing authority even with regard to penalty or
punishment to be imposed on such officer. The requirement
of reasonable opportunity, therefore would not be satisfied
unless the entire report of the Enquiry Officer including
his views in the matter of punishment are disclosed to the
’delinquent servant". Thus the broad test of "reasonable
opportunity" is, whether in the given case, the show cause
notice issued to the delinquent servant contained or was
accompanied by so much information as was necessary to
enable him to clear himself of the guilt, if possible, even
at that stage, or, in the alternative, to show that the
penalty proposed was much too harsh and disproportionate to
the nature of the charge established against him.
Now let us apply this test to the facts of the present case.
The case of the defendant-State in the written statement (as
extracted by the Munsif in his judgment) was
"........ that the accounts of the Civil
Prison Benaras for the years 1939 to 1947 were
audited by the Senior Departmental Auditor who
detected heavy shortages whereupon the matter
was thoroughly investigated and the I.G.
ordered charge-sheets to be framed against the
plaintiff which was accordingly done and the
Superintendent, Central Prison, Benaras
submitted the proceedings of those charges
along with his comments and explanation of the
plaintiff whereupon the .G. of Prison found
the plaintiff guilty of those charges and
ordered his removal."
It is clearly discernible from what has been extracted above
that the order of the removal in question proceeded on an
acceptance of the report of enquiry proceedings and
"comments" of the Enquiry Officer, (Superintendent).
Evidently, the Inspector-General who made the impugned order
was influenced and guided both with regard to the proof of
charges and the prescribing of the type of punishment by the
report and "comments" (which term will cover
"recommendations.") of the Enquiring Authority.
Further, it is an uncontroverted fact found by the courts
below that no copy of the report, findings and "comments" of
the Enquiring Officer, was supplied to the delinquent
servant. Another undisputed fact is that no copy of the
enquiry report and allied documents was given to him, even
when he applied for the same in order to file an appeal to
the higher authorities against the order of removal. The
servant was told that he was not entitled to those copies
excepting a copy of the impugned order of punishment, and
that too on payment of Rs. 3 as copying charges.
10 SC/75-24
360
In view of these stark facts, the High Court was right in
holding that the plaintiff (respondent) was not given a
reasonable opportunity to show cause against the action
proposed to be taken against him and that the non-supply of
the copies of the material documents had caused serious
prejudice to him in making a proper representation. There
was a disobedience of the mandate of s. 240(3) of the Gov-
ernment of India Act, 1935 and the impugned order stood
vitiated on that score alone. Reference to Rule 5-A of the
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Appeal Rules, made by the High Court in support of its
conclusion, was unnecessary because application of that Rule
to the employees of the Jail Department had been expressly
excluded by Rule 6 of the Appeal Rules. More over, Rule 5-A
was inserted in 1953, while we are dealing with a removal
order made in 1949.
It was contended before us by Mr. R. P. Agarwala that the
removal order, dated 18-5-1951, passed by the Government of
the respondent’s appeal was also invalid because in
violation of the basic principles of natural justice and
fair play, copies of the proceedings, report and findings of
the Enquiring Officer were not supplied to the plaintiff to
enable him to file an effective appeal. There is undoubt-
edly force in this contention but we think it unnecessary to
decide this point as the order or removal, dated 15-8-1949,
being void ab initio due to non-compliance with the
requirements of s. 240(3), the appellate impunged order
would automatically fall within it.
Before parting with this judgment, we place on record our
appreciation of the valuable assistance rendered by the
learned counsel on both sides, particularly the amicus
curiae, Shri Aggarwala.
The appeal fails and is dismissed without any order as to
costs.
P.B.R.
Appeal dismissed.
361