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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