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PETITIONER: STATE OF BOMBAY (NOW MAHARASTRA)

       Vs.

RESPONDENT: NARUL LATIF KHAN

DATE OF JUDGMENT: 22/02/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) DAYAL, RAGHUBAR RAMASWAMI, V.

CITATION:  1966 AIR  269            1965 SCR  (3) 135

ACT:    Departmental Enquiry--Charge-sheeted officer desiring  to produce  oral evidence--Refusal to record such  evidence  on the  ground   that the case against the  officer  rested  on documents  alone--Such refusal whether amounts to denial  of reasonable  opportunity--Civil   Services   (Classification, Control & Appeal) Rules r. 55-- Constitution of India,  Art. 311(2).

HEADNOTE:    The  appellant  who  was  in  the  service  of  a   State Government   asked  for  long  leave  which   was   refused. Subsequently he asked for ten days’ leave which was granted. On  the expiry of the leave period he did not join  duty  on the ground that he was seriously ill. The Government refused to  accept  the plea and instituted a  departmental  inquiry against him. The respondent wanted to produce oral  evidence in support of his plea including the evidence of doctors who treated him, but the enquiry officer refused to record  oral evidence  on the ground that the case against the  appellant rested on documents alone and therefore no oral evidence was necessary.  On the report of the enquiry’ officer the  State Government   ordered  the  compulsory  retirement   of   the respondent.  The  latter filed a suit in  which  he  claimed inter alia that the constitutional provision in Art. 311 had been  contravened. The trial judge held against him but  the High  Court  decided  in his favour.  The  State  Government appealed to the Supreme Court with certificate.    The  narrow  question to which the COurt had  to  address itself was whether it was obligatory on the enquiry  officer to  give a reasonable opportunity to the respondent to  lead oral evidence and examine his doctors.     HELD:  (i) The Civil Services  (ClassifiCation,  Control and  Appeal)  Rules  provide in r. 55 that  if  the  charge- sheeted Officer so desires or if the authority concerned  so directs  an  oral enquiry shall be held. This  provision  is mandatory and is based on considerations of natural  justice and  fair play. Therefore when the respondent expressed  his desire  to  the  enquiry  officer that  he  wanted  to  lead evidence  in support of his plea, it was obligatory  on  the enquiry officer to have fixed a date for recording such oral

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evidence  and give due intimation to the respondent in  that behalf. [143 D-F]     (ii)  Though  an enquiry officer would be  justified  in conducting  the enquiry in such a way that  its  proceedings are  not allowed to be unduly or deliberately prolonged,  it would  be  impossible  to accept the argument  that  if  the charge-sheeted  officer  wants  to lead  oral  evidence  the enquiry  officer can say that having regard to  the  charges against the officer he would not  hold any oral enquiry [143 H]     (iii)  In  the  present  case  the  witnesses  whom  the respondent  wanted to examine would undoubtedly  have  given relevant evidence. He wanted to examine his doctors but  the enquiry officer failed to give him an opportunity to do  so. That  introduced a fatal infirmity in the whole  enquiry  as the  respondent had not been given a reasonable  opportunity to de.fend himself within the meeting of Art. 311 (2).     The  appeal of the State Government had therefore to  be dismissed. [144 A, C] 136

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.  1040/63.     C.K. Daphtary, Attorney General, M.S.K. Sastri and  R.H. Dhebar, for the appellant. C.B. Agarwala and A.G. Ratnaparkhi, for the respondent. The Judgment of the Court was delivered by-- Gajendragadkar, C.J. The short question of law which  arises in this appeal is whether the appellant, the State of Bombay (now  Maharashtra),  shows  that its  predecessor  State  of Madhya Pradesh (hereinafter called the Government) had given a  reasonable  opportunity to. the respondent,  Narul  Latif Khan, to defend himself before it passed the final order  on June 6, 1952 compulsorily retiring him under Article 353  of the Civil Service Regulations. By this order, the respondent was  compulsorily retired and in relaxation  of  Art.   353, the   Government  was  pleased  to  allow the respondent  to draw  a compassionate allowance equal to the  pension  which would have been admissible to him had he been invalidated.     This order was challenged by the respondent by filing  a suit in the Court of the first Additional District Judge  at Nagpur.  In  his  plaint, the respondent  alleged  that  the impugned  order  whereby he was  compulsorily  retired,  was invalid and he claimed a declaration that it was ultra vires and inoperative. He also asked for a declaration that he was entitled to be restored to the post which he held on July 6, 1950,  and  that  he should be given  all  pay,  allowances. increments  and  promotions  to which  he  would  have  been entitled if he had been permitted to continue in service. In the result, the respondent asked for a decree for Rs. 62,237 with  interest at 6 per cent per annum from the date of  the suit till realisation.     This  claim  was resisted by the appellant  on   several grounds.  The  principal  ground  on  which  the   appellant challenged the respondent’s claim, however, was that he  had been  given a reasonable opportunity to defend himself,  and so,  the  impugned  order was perfectly  valid,  and  legal. Several  other pleas were also raised by the  appellant.  On these  pleas,  the learned trial  Judge  framed  appropriate issues. The issue with which we are concerned in the present appeal,  however, centered round the question as to  whether the   Constitutional  provision  prescribed  by   Art.   311 affording protection to the respondent had been contravened.

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The  trial  Judge made a finding against the  respondent  on this  issue.  He  also recorded his findings  on  the  other issues  with  which  we are not directly  concerned  in  the present  appeal.  In regard to the money claim made  by  the respondent,  the learned trial Judge made a finding that  in case  he was held entitled to such relief, a decree for  Rs. 37,237  may have to be passed in his favour. In view of  his conclusion  that the impugned order was valid,  no  question arose 137 for  making such a decree in favour of the  respondent.  The respondent’s suit, therefore, failed and was dismissed.     The respondent then took the matter in appeal before the High Court of Judicature at Bombay, Nagpur Bench. The   High Court  has,  in  substance,  held  that  the  constitutional provisions  prescribed  by Art. 311 have not  been  complied with  by the appellant before it passed the  impugned  order against  the respondent. It has found that the  departmental enquiry which was held suffered from the serious   infirmity that  the enquiry officer did not hold an oral  enquiry  and did  not  allow an opportunity to the respondent   to   lead his   oral  evidence.  It  has  also  held  that the  second notice   served   by  the  appellant   on   the   respondent calling  upon him to show cause why the report made  by  the enquiry  officer  should  not be  accepted  and  appropriate punishment  should not be inflicted on him,  was  defective, and  that  also made the impugned order  invalid.  The  High Court appears to have taken the view that the impugned order does not show that the appellant had taken into account  the explanation  offered  by the respondent in response  to  the second notice issued by the appellant. As a result of  these findings, the High Court has reversed the conclusion of  the trial  Court  on the main question and has  found  that  the impugned order is invalid and inoperative. On that view, the High   Court  considered  the  money  claim  made   by   the respondent, and it confirmed the finding of the trial  Court that  the respondent would be entitled to a decree  for  Rs. 37,237.  In  fact, the alternative finding recorded  by  the trial Court in respect of the amount to which the respondent would  be entitled in case he succeeded in  challenging  the validity  of the impugned order, was not  questioned  before the  High Court.  In the result, the High Court allowed  the appeal  and passed a money decree for Rs. 37,237 in   favour of  the  respondent  in  terms  of prayer  (A)  of paragraph 31  of  the  plaint.  The appellant  then  applied  for  and obtained  a certificate from the High Court and  it is  with the said certificate that it has brought the present  appeal before this Court. That is how the main question which falls for  our  decision is whether the  constitutional  provision prescribed  by  Art.  311  has been  complied  with  by  the appellant before it passed the impugned order.     At  this  stage,  it may be relevant to  refer  to  some material  facts.  The  respondent  was  appointed  as  Extra Assistant  Commissioner in 1926 and since then he  had  been holding  various  offices in the State service of  the  then Madhya Pradesh Government.  In 1950, he was holding the post of  a Treasury Officer at Nagpur. It appears that  privilege leave  for over a year was due to  him  and he  had  applied for  four  months’  privilege  leave.  On  June  12,   1950, Government  informed  him  that his request  for  leave  was rejected  and  he was told that no further  application  for leave  would be entertained in future. On July 7, 1950,  the respondent proceeded 138 on casual leave for two days, and on July 8, 1950 he renewed

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his  application for four months’ leave on medical  grounds. This  application was accompanied by a certificate given  by Dr.  Dange. Government, therefore, decided to  constitute  a Medical   Board  for  examining  the  respondent  in   order to  .decide   whether  leave  on medical grounds  should  be granted to him. Accordingly, the respondent appeared  before a Special Medical Board on July 22, 1950. The Medical Board, however,  could  not come to a decision as  to  whether  the respondent  should be granted leave on medical  grounds  for four months.  It recommended that the respondent should  get himself   admitted  in  the  Mayo  Hospital,   Nagpur.   for observation  and  investigation. In   accordance  with  this report,  Government  asked  the respondent  to  get  himself admitted  in  the Mayo Hospital in time, so that  the  Board could examine him on August 8, 1950. The respondent  refused to,  go to the Mayo Hospital and pressed that he  should  be allowed  to go to Calcutta to receive medical treatment from experts.  It appears that on July 26, 1950,  the  respondent received  a telegram from Raipur stating that  his  daughter was  dangerously  ill  there. He,  therefore,  made  another application  on the same day requesting for ten days’  leave to  enable him to go to Raipur and see his ailing  daughter. On  July  31, 1950,  Government   granted  the  respondent’s request.  Accordingly, the respondent went to Raipur.   From Raipur he renewed his application for four months’ leave  on Medical grounds and produced certificates from Dr.  Bhalerao and   Dr.   Kashyap. That led to  a  lengthy  correspondence between  the respondent and the Government which shows  that Government  insisted  on his appearing  before  the  Medical Board  and the respondent was not prepared to go to.  Nagpur because  he alleged that he was seriously ill and could  not undertake  a journey to Nagpur. Ultimately, on September  9, 1950,  Government called upon the respondent to  resume  his duties within three days from the receipt of the said letter failing  which he was told that he would be suspended and  a departmental  enquiry  would  be  started  against  him.  On October  4,  1950, the respondent wrote  a  lengthily  reply setting  forth his contentions in detail. Since he  did  not resume  his  duties, Government decided to suspend  him  and start  a departmental enquiry against him. Mr.  S.N.  Mehta, I.C.S.,  was accordingly appointed to hold the. enquiry.  On November  29, 1950, Mr. Mehta wrote to the  respondent  that Government  had  directed him to  conduct  the  departmental enquiry, and called upon the respondent to attend his office on December 7, 1950, at 11.00 a.m. The respondent,  however. did not appear before him and wrote to Mr. Mehta that  owing to his illness, he was unable to appear before him. He again pleaded that he was seriously ill.     On  January  15, 1951, Mr. Mehta served  the  respondent with a charge-sheet. Three charges were framed against  him. The first charge was that he had deliberately disobeyed  the orders  of  Government  when he was  asked  to  get  himself admitted in the Mayo 139 Hospital  for  observation  and  investigation.  The  second charge was that he had failed to report for duty even though no  leave  was sanctioned to him by Government  and  he  was specifically  ordered by Government to report for duty.  The third  charge  was that he had  persistently  disobeyed  the orders of Government and he had thereby shown himself  unfit to continue as a member of the State Civil Service. Material allegations  on  which  reliance  was  placed  against   the respondent  in support of these charges were also  specified under the respective charges.     The  respondent  was, however, not  prepared  to  appear

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before   Mr.   Mehta  and  he   raised   several   technical contentions.  Ultimately, he sent his written statement  and denied  all the charges. His case appears to have been  that he  had not deliberately disobeyed any of the orders  issued by Government. In regard to his getting admitted in the Mayo Hospital,  he seems to have taken the plea that when he  was allowed to go on casual leave to see his ailing daughter  at Raipur,  it  was clear that he could not  have  got  himself admitted  in the Mayo Hospital so as to enable  the  Medical Board  to examine him on August 8, 1950. In respect  of  the charge  that he had persistently refused to obey the  orders of Government, his case was that he was dangerously ill  and that he genuinely apprehended that if he undertook a journey to resume his duty, he might even collapse. He requested the enquiry  officer to allow him to appear by a lawyer whom  he would  instruct  to  cross-examine the  witnesses  whom  the Government would examine against him. He also stated that he wanted to give evidence of his own doctors who would  depose to his ailing condition at the relevant time.     It  appears  that Mr. Mehta wanted  to  accommodate  the respondent  as much as he could and when he found  that  the respondent  was  not appearing in person before him,  he  in fact  fixed  a date for hearing at Raipur on  September  21, 1951  where  he happened to be camping. On  that  date,  the respondent  appeared before Mr. Mehta and Mr. Mehta  made  a note as to what transpired on that date. The note shows that "the whole case was discussed with the respondent. His  plea was  that he should be allowed to appear through a  counsel, but  it  was explained to him in detail that as far  as  the case  can be seen from Government side at present,  it  does not  involve the taking up oral evidence. He agreed that  he would  not press for this facility. He would, however,  like to  give  a  detailed answer to the  charge-sheet.  He  also undertook   to  appear  in  person  regularly  in   future". Thereafter,  Mr. Mehta required the respondent to  file  his detailed written statement. and in fact, the respondent  did file his detailed written statement containing the pleas  to which  we  have already referred. On November 8.  1951,  Mr. Mehta wrote to the respondent that he would be glad to  hear him in person in case he wished to make an oral statement on November 20, 1951, and when the respondent did not 140 appear on the said date, Mr. Mehta proceeded to examine  the documentary  evidence showing the failure of the  respondent to comply with the orders issued by Government and made  his report on November 24, 1951. He found that the three charges framed  against the  respondent were proved. In his  report, Mr.  Mehta observed that "the conduct of the respondent  and the  language  used  by  him  from  time  to  time  in   his communications  .discloses an attitude of  disobedience  and insubordination  which no Government can tolerate  from  its subordinate officers". We may incidentally observe that  the comment   thus   made  by  Mr.  Mehta  in  regard   to   the communications addressed by the respondent to him appears to us to be fully justified but, in our opinion, this aspect of the matter cannot have any material bearing on the  question with  which we are concerned. The validity of  the  impugned order  must  be judged objectively without  considering  the impropriety  of the  language used by the respondent or  the reluctance shown by him to appear before Mr. Mehta.     In his report, Mr. Mehta has also observed that when the respondent  met him, he explained to him that the  case  did not  involve recording of any oral evidence as it was  based on  documents  only. Mr. Mehta adds that  according  to  the impression he got at that time, the respondent was satisfied

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that  in the circumstances, the assistance of a counsel  was unnecessary. It is, however, plain from the several  letters written by the respondent to Mr. Mehta that he was insisting upon  an  oral  enquiry and that he wanted  to  examine  his doctors to show that he was so iII at the relevant time that he could not have resumed his duties. On March 2, 1951,  the respondent  wrote to Mr. Mehta stating, inter alia, that  he wished  to  put  in  the  witness-box  a  few   high-ranking Government  officers and the doctors whom he  had  consulted about  his  illness.  Earlier on January 20,  1951,  he  had written  to  Mr.  Mehta requesting him to  conduct  an  oral enquiry  as laid down in paragraph 8(iv) G.B.  Circular  13. Similarly,  on April 23, 1951, he again informed  Mr.  Mehta that  in  his opinion the institution  of  the  departmental enquiry after suspending him was illegal and had caused  him grave  injury,  and  he  added  that  oral  and  documentary evidence will be produced in defence.     It   does  appear  that  Mr.  Mehta  explained  to   the respondent   that  so far as Government  was  concerned,  it rested  its  case merely on documents and did not  think  it necessary  to  examine  any  witnesses,  and  thereupon  the respondent agreed that he need not have the facility of  the assistance  of  a lawyer. But it is clear from  the  remarks made by Mr. Mehta in the order sheet on September 21,  1951, and the observations made by him in his report that the only point on which the respondent agreed with Mr. Mehta was that he  need not be allowed the assistance of the lawyer in  the departmental enquiry. We have carefully examined the  record in 141 this case and we see no justification for assuming that  the respondent  at  any  time gave up his  demand  for  an  oral enquiry  in the sense that he should be given permission  to cite his doctors in support of his pica that his failure  to resume  his  duties was due to his  ill-health.  The  charge against  him  was  that he had  deliberately  disobeyed  the Government  orders, and it is conceivable that  this  charge could have been met by the respondent by showing that though he  disobeyed the orders, the disobedience was in  no  sense deliberate  because  his doctors had advised him to  lie  in bed;  and  thus  considered,  his  desire  to  lead  medical evidence  cannot be treated as a mere subterfuge to  prolong the  enquiry. It is true that the respondent did not give  a list  of his witnesses; but he had named his doctors in  his communications  to  Mr. Mehta, and in fact Mr.  Mehta  never fixed any date for taking the evidence of the witnesses whom the respondent wanted to examine. If Mr. Mehta had told  the respondent that he would take the evidence of has  witnesses on a specified date and the respondent had failed to  appear on  the said date with his witnesses, it would have been  an entirely  different matter. Therefore, the position is  that Mr.  Mehta did net hold an oral enquiry and did not give  an opportunity  to the respondent to examine his witnesses  and so, the question which arises for our decision is: does  the failure  of  Mr. Mehta to hold an oral enquiry amount  to  a failure  to give a reasonable opportunity to the  respondent within the meaning of Art. 311 ?     The requirements of Art. 311(2) have been considered  by this Court on several occasions. At the relevant time,  Art. 311(2)  provided  that no person to whom  Art.  311  applies 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 t9 him. It is  common  ground  that the impugned  order  of  compulsory retirement  attracts the provisions of Art. 311 (2).  If  it

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appears  that  the relevant statutory  rule  regulating  the departmental  enquiry which was held against the  respondent made  it obligatory on the enquiry officer to hold  an  oral enquiry  if the respondent so demanded. then there would  be no  doubt  that the failure of the enquiry officer  to  hold such an oral enquiry would introduce a serious infirmity  in the  enquiry and would plainly amount to the failure of  the appellant   to   give  a  reasonable  opportunity   to   the respondent.  This  position is not disputed by  the  learned Attorney-General and is indeed well-settled.  So, the narrow question  to which we must address ourselves is  whether  it was  obligatory  on Mr. Mehta to hold, an oral  enquiry  and give d reasonable opportunity to the respondent to lead oral evidence  and  examine his doctors. We will assume  for  the purpose  of  this appeal that in a  given  case,  Government would  be justified in placing its case against the  charge- sheeted  officer  only  on documents and  may  be  under  no obligation to examine any witnesses, 142 though we may incidentally Observe that even in such  cases, if  the  officer desires that the persons whose  reports  or orders  are being relied upon against him should be  offered for cross-examination, it may have to be considered  whether such  an opportunity ought not to be given to  the  officer; but  that aspect of the matter we will not consider  in  the present  appeal.  Therefore,  even if  it  is  assumed  that Government could dispense with the examination of  witnesses in  support  of the charges framed against  the  respondent, does  the  relevant rule make it obligatory on  the  Enquiry Officer  to hold an oral enquiry and give the  respondent  a chance to examine his witnesses or not?     This question falls to be considered on the construction of  rule 55 of the Civil Services  (Classification,  Control and Appeal) Rules. This rule reads thus:-                      "Without   prejudice to the  provisions               of the Public Servants Inquiries Act, 1850, no               order of dismissal, removal or reduction shall               be passed on a member of a service (other than               an order based on facts which have led to  the               conviction in a Criminal Court or by a  Court,               Martial)  unless  he  has  been  informed   in               writing of the grounds on which it is proposed               to  take  action, and. has  been  afforded  an               adequate opportunity of defending himself. The               grounds on which it is proposed to take action               shall  be  reduced to the form of  a  definite               charge or charges, which shall be communicated               to   the  person  charged  together   with   a               statement  of the allegations on  which  each.               charge is based and of any other circumstances               which   it   is   proposed   to   take    into               consideration  in passing orders on the  case.               He shall 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 if the  authority               concerned so direct, an oral enquiry shall  be               held.  At that enquiry oral evidence shall  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 enquiry  may,               for  special  and  sufficient  reason  to   be

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             recorded in writing. refuse to call a witness.               The  proceedings  shall contain  a  sufficient               record of the evidence and a statement of  the               findings and the grounds thereof." It appears that the Government of Madhya Pradesh had  issued a Circular explaining this Rule. The Circular contained Rule 8 which is relevant. It provides that "particular  attention is invited to the provisions regarding oral enquiry. In case the  person charged desires that an oral enquiry  should  be held, the authority holding the departmental enquiry has  no option to refuse it". The High 143 Court  seems to have based its conclusion substantially,  if not entirely, on this rule. We do not propose to adopt  that course.  The rule may be no more than a circular  issued  by Government and we do not propose to examine the question  as to  whether  it  has  the force of  a  statutory  rule.  Our decision  would, therefore, be based on the construction  of Rule 55 of the Civil Services Rules which admittedly applied and which admittedly is a statutory rule.     The  relevant  clause  in this Rule  provides  that  the officer charge-sheeted shall 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. This  clause has been complied with m the present proceedings. Mr.  Mehta gave notice to the respondent to appear before him in person on the 20th November, 1951 and the respondent did net appear on that date. It is the next clause on which the decision of the  present appeal depends. This clause lays down  that  if he,  that  is  to say  the  charge-sheeted      officer,  so desires  or if the authority concerned so directs,  an  oral enquiry shall be held. In our opinion, it is plain that the. requirement  that  an  oral enquiry shall  be  held  if  the authority  concerned  so directs. or if  the  charge-sheeted officer so desires is mandatory. Indeed. this requirement is plainly  based  upon considerations of natural  justice  and fairplay.  If the charge-sheeted officer wants to  lead  his own  evidence  in  support  of his  plea,  it  is  obviously essential  that  he should be given an opportunity  to  lead such   evidence.  Therefore.  we  feel  no   hesitation   in holding  .that once the respondent expressed his  desire  to Mr. Mehta that he wanted to lead evidence in support of  his plea that his alleged disobedience of the Government  orders was  not deliberate, it was obligatory on Mr. Mehta to  have fixed  a date for recording such oral evidence and give  due intimation to the respondent in that behalf.     It  is  true  that the oral enquiry  which  the  enquiry officer is bound to hold can well be regulated by him in his discretion.  If  the charge-sheeted  officer  starts  cross- examining  the  departmental  witnesses  in  an   irrelevant manner,   such   cross-examination  can   be   checked   and controlled.  If  the officer desires  to  examine  witnesses whose  evidence  may  appear to the enquiry  officer  to  be thoroughly  irrelevant,  the enquiry officer may  refuse  to examine  such  witnesses; but in doing so, he will  have  to record  his special and sufficient reasons. In other  words, the  right  given to the charges heated  officer  to  cross- examine the departmental witnesses or        examine his own witnesses can be legitimately examined and controlled by the enquiry  officer;  he would be justified in  conducting  the enquiry  in such a way that its proceedings are not  allowed to be unduly or deliberately prolonged. But, in our  opinion it  would     be impossible to accept the argument  that  if the charge-sheeted officer wants to lead oral evidence,  the enquiry  officer can say that having regard to  the  charges

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framed  against  the  officer. he would not  hold  any  oral enquiry. In the present case, the witnesse. 144 whom  the  respondent wanted-to examine;  would  undoubtedly have given relevant evidence. If the doctors who treated the respondent  had come and told the enquiry officer  that  the condition  of  the respondent was so bad that he  could  not resume work, that undoubtedly would have been a relevant and material  fact to consider in deciding whether  the  charges framed  against  the  respondent were  proved.  Even  if  we disapprove of the attitude adopted by the respondent in  the course of this enquiry and condemn him for using extravagant words   and   making   unreasonable   contentions   in   his communications  to  the  enquiry  officer,  the  fact  still remains that he wanted to examine his doctors, and though he intimated  to  Mr.  Mehta that he  desired  to  examine  his doctors,  Mr. Mehta failed to give him an opportunity to  do so.  That, in our opinion, introduces a fatal  infirmity  in the  whole enquiry which means that the respondent  has  not been given a reasonable opportunity to defend himself within the  meaning of Art. 311(2). On that view of the matter,  it is unnecessary to consider whether the High Court was  right in  its other conclusions that the second notice  served  by the  appellant on the respondent was defective and that  the final order was also defective inasmuch as it did not appear that the appellant had taken into account the representation made by respondent.     It is not disputed by the learned Attorney-General  that if  we  hold  that  the  enquiry  conducted  by  Mr.   Mehta contravened  the mandatory provision of r. 55, the  decision of   the   High   Court could be sustained  on  that  ground alone. In the result. the appeal fails and is dismissed with cost.                                        Appeal dismissed. 145