RAM CHANDRA SAXENA Vs. STATE OF U P

JUDGEMENT

(1.) V. K. Mehrotra J. This is a plaintiff's appeal who has failed in both the Courts below. Plaintiff Ram Chandra Saxena was working as an execution clerk in the office of Munsif, Fetehabad at Agra and in that capacity he was having custody over a number of execution files including the one in Execution case Doonger Singh v. Shankar, arising out of suit No. 595 of 1955. It appears that some files of the Civil Court, including the one aforesaid was recovered by the Police from the custody of one Iqbal Bahadur who was also an employee of the Civil Court on September, 12, 1961. On learning this, a report was submitted by Saxena to the effect that it appeared that the said file had been surreptitiously removed by Iqbal Bahadur from his desk while he obtained signatures of the Presid ing Officer. The District Judge, on receiving this report, directed the Civil Judge to make an enquiry, in the matter. Two charges were framed against Saxena by the Civil Judge. They were as follows : (1) That you have given the record of case number 595 of 1965 (Doongar Singh v. Shankar) pending in the Court of Munsif Fatehabad at Agra sometime before 13th September, 1961 to Shri Iqbal Bahadur, who was already under suspension and from whose possession the said record came to be recovered later by the police, for the purpose of issuing surreptitious copies and for improper gain and thereby you are guilty of negligence, dereliction of duty and misconduct.

(2.) THAT in the alternative the record of the aforesaid case No, 595 of 1955, later recovered from the possession of Shri Iqbal Bahadur by the police, was taken away by the already suspended clerk Shri Iqbal Bahadur, sometime before 13th September, 1961 from your possession and custody and with your knowledge and connivance for some improper gain and thus you are guilty of misconduct. The Enquiry Officer, after completion of the enquiry, submitted his report to the punishing authority namely, the District Judge. This report is Ext. 7 on the record. In substance the Enquiry Officer concluded that the first charge about handing over of the record of Shri Iqbal Bahadur by Shri Saxena was not established but the second charge framed against him in the alternative that the record was taken away by Iqbal Bahadur with the knowledge and connivance of Saxena for improper gain was fully established. The District Judge, on consideration of this report directed that a copy thereof be served upon Saxena to show cause within 15 days why he may not be dismissed from service. A copy of this order along with that of the report was served upon Saxena. Ext. 11 is a copy of the report which was submitted by Saxena to the show cause notice. The District Judge considered this reply and passed an order on February 28, 1962 (Ext, 9) holding that the guilt of Saxena was fully established and that the punishment of dismissal from service was being imposed, It may be noticed that in this order the District Judge concluded that it was abundantly clear that the file had been deliberately removed and given to Shri Iqbal Bahadur by Saxena for illegal gain and that Saxena was moving hands in glove with Shri Iqbal Bahadur. After unsuccessful efforts to get relief in departmental representations the suit, out of which the present appeal arises, was filed by Saxena after serving a notice under section 80 C. P. C. In the suit, the facts aforesaid were narrated and it was prayed that it be declared that the order of dismissal dated February 28, 1962 was mala fide, illegal, null and void and without jurisdiction and that the plaintiff be declared to be still in service. Further a decree for Rs. 6083 76 be granted in favour of the plaintiff towards arrears of his emoluments from September 20, 1961 till the date of the filing of the suit after deducting the amount which had been received by the plaintiff during the period of suspension as subsistence allowance. The averments made in paragraphs 12 and 13 of the plaint may now be read; "12. THAT thereafter on 28th February, 1962 the Learned District Judge gave his own conclusions and held as under : - "it is abundantly clear to me that the file had been deliberately removed and given to Shri Iqbal Bahadur for illegal gain. " This conclusion was quite contrary to the findings arrived at by the Enquiry Officer in his report dated 9- 12-1961 wherein he had clearly held that the giving of the file to Shri Iqbal Bahadur was not proved. Therefore, the basis of dis missal included a charge of which the plaintiff had been held to be not guilty by the Enquiry Officer and from which the Learned District Judge had not shown any point of disagreement when he issued show cause notice against the proposed punishment of dismissal. 13. THAT again, as is apparent from the order dated 28th February, 1962 of the Learned District Judge, Agra, the plaintiff was given the severe most punishment on the grounds that his character roll had been black. As a matter of fact this fact is absolutely incorrect and unfounded and in any case this ground for inflicting the punishment of dismissal should have been given in the show cause notice against the proposed punishment of dismissal to the plaintiff. " The suit was contested and the grounds upon which the plaintiff based his claim were traversed in the written statement filed on behalf of the first defen dant, namely, the State of U. P. through the Collector, Agra. The assertions made in paragraphs 12 and 13 were met in paragraphs, 2 and 13 of this written statement in which they were described as incorrect and denied. It was also added in paragraph 13 of the written statement that the plaintiff had himself referred to the character-roll. Various issues were framed by the Trial Court. Finding against the plain tiff on most of them, the Trial Court dismissed the suit. The plaintiff's appeal against that decree was dismissed by the District Judge. Hence, the present second appeal. After hearing Shri Jagdish Swarup for the appellant and the Learned Standing Counsel for the respondent, I am of opinion that, for the reasons herein after appearing, the decree of the Courts below cannot be upheld. As noticed earlier, the Enquiry Officer in his report had recorded a clear finding that the first charge against the plaintiff of having handed over the file in question to Shri Iqbal Bahadur was not made out. This finding had been recorded by the Enquiry Officer after noticing, inter alia, the fact that there was no direct evidence to establish that allegation. The punishing authority, with out indicating any particular reasons, passed an order an that report that a copy thereof may be served upon the plaintiff to show cause within 15 days why he may not be dismissed from service. The effect of this order clearly was that the punishing authority agreed with the conclusions of the Enquiry Officer contained in the report and desired that the plaintiff may show cause against what was held against him in the enquiry report of which a copy was served upon the plaintiff. The Enquiry Officer, as seen above, had found that the alternative charge alone had been found proved against the plaintiff. Obviously, therefore, the plaintiff was required to show cause against the proposed punish ment of dismissal of the footing that the allegations that the file in question been removed by Shri Iqbal Bahadur with his connivance and within his knowledge was the one on the basis whereof that punishment was proposed. He was not called upon, in view of the finding recorded by the Enquiry Officer, to show cause against the proposed punishment on the ground that he had handed over the relevant file to Iqbal Bahadur himself. The Punishing Authority in its order dated February 28, 1969 (Ext. 9) dis cussed the evidence on record and came to the conclusion, as mentioned already that the plaintiff was guilty of having handed over the file himself to Iqbal Bahadur. It did not advert to the alternative charge at all while arriving at its own conclusions. The result, therefore, that follows is that the conclusion of the Punishing Authority to award the punishment of dismissal to the plaintiff was founded solely on its view that the plaintiff had deliberately handed over the relevant file to Iqbal Bahadur for illegal gain. In Khem Chand v. Union of India (A. I. R. 1958 S. C, 300), it was laid down by the Supreme Court that at the stage of submitting a reply to the show cause, notice to which a delinquent Government servant was entitled under Article 311 (2) of the Constitution as it then stood, it was open to the delinquent Government servant also to show cause that the conclusion of guilt against him was not sustainable. It was observed (in Paragraph 18 of the Report); "it is true that the provision does not, in terms refer to different stages at which opportunity is to be given to the officer concerned. All that it says is that the government servant must be given a reasonable opportuni ty of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the government servant should have the oppor tunity to say, if that be his case, that he has not been guilty of any miscon duct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the porposed punishment. If this be the correct meaning of the clause as we think it is, what consequences follow. If it is open to the government servant under this provision to contend, if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him?. . . . . . . . . . . . . . . In addition to showing that he has not been guilty of any misconduct so as to merit any punish ment, it is reasonable that he should also have an opportunity to contend that the charges proved against him, do not necessarily require the parti cular punishment proposed to be meted out to him. " The observations aforesaid would indicate that the plaintiff was entitled even at the stage of second show cause notice to contend that on the material which had been brought on record during the enquiry, the conclusion of the Enquiry Officer that he was guilty of a particular mis-conduct, attributed to him, was unsustainable. The plaintiff could not be expected to put forward his view point in regard to the charge that he had handed over the file in question to Sri Iqbal Bahadur, while submitting his representation in reply to the show cause notice, unless it had been indicated either in the show cause notice itself or in the enquiry report accompanying it that prima facie he was found to be guilty of that misconduct. In the fact of the present case, it is clear that the plaintiff could possibly have no occasion whatsoever to have put forward a defence to the charge of having handed over the file to Sri Iqbal Bhahdur and to have pleaded that the proposed punishment should not be meted out to him on that basis. The decision to punish the plaintiff recorded by the District Judge was, as noticed above, founded solely upon the view of the District Judge that the plaintiff was guilty of having handed over the relevant file to Iqbal Bahadur. In these circumstances, the plaintiff was clearly not afforded reason able opportunity as was available to him under Article 311 (2) of the Constitu tion as it then stood. In State of Assam and another v. Bimal Kumar (A. I. R. 1963 S. C. 1612), it was observed (in paragraph 8 of the Report) as follows;- ". . . . . . . . . . . . . . . If the dismissing authority differs from the findings record ed in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue to notice under Art. 311 (2 ). In such a case, it would obviously be necess ary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. With out such an express statement in the notice it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on other issues. THAT is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter; but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusion should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based on only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing autho rity that the other charges not held proved by the enquiring officer are according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Art. 311 (2), it is essential that the conclusions provisionally reached by the dismiss ing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety it cannot be said that the dismissing authority must say that it has so accepted the report. " It is clear from these observations that unless the District Judge in the present case had indicated in the show cause notice issued to the plaintiff that he was provisionally of opinion that the plaintiff was also guilty for the first charge, namely, of handing over the file to Sri Iqbal Bahadur, he could not legitimately claim to be entitled to pass the order of punishment on that charge without being open to the criticism that adequate opportunity of defence had not been afforded by him to the plaintiff. Referring to the statement contained in paragraphs 5 and 10 of the plain tiff's reply (Ext. 11) to the show cause notice, it has been urged by the Learned Standing Counsel that on facts, the plaintiff had not been prejudiced at all by the omission of the punishing authority to indicate to him, at the stage of the second show cause notice that the plaintiff had been provisionally found guilty of the first charge as well by it and that all that the plaintiff could possibly have said in respect of that charge at the stage of the second show cause notice had been said by him. It is difficult, in the circumstances of the present case, to accept the submission. It is clear that the plaintiff was completely exonerated of the first charge by the Enquiry Officer. Various circumstances which have been noticed by the punishing authority in the order of punishment (Ext. 9) for coming to the conclusion that the plaintiff was guilty of the first charge were capable of explanation. It it another matter that the explanation may not have found favour with the punishing authority. How ever, merely because general statement was made in his reply to the show cause notice by the plaintiff, touching upon the first charge, it could not be said that the reasonable opportunity to which he was entitled was actually afforded to him. The submission of the learned Standing Counsel does not find support from the decision of the Supreme Court in Union of India v. H. C. Goel (1964 (9) F. L. R. 161 = A. I. R 1964 S. C. 364), upon which reliance has been placed by him. The question for determination in that case was whether it was open to the punishing authority to take a different view on the evidence adduced against the Government servant than the one taken by the Enquiry Officer and whether it was open to the punishing authority to proceed upon the basis that the conclusions of fact recorded by "the Enquiry Officer were unsound and erroneous. The Supreme Court held that it was open to the punishing authority to do so. THAT, however, is not the question in the instant case for it has not been contended on behalf of the plaintiff that it was not open to the District Judge to take a different view from the one taken by the Enquiry Officer in regard to the first charge. The conten tion on behalf of the plaintiff is that before doing so, the punishing authority ought to have indicated to him that it was prima facie of opinion that the first charge was proved against him and that in that respect it was taking a view different from the Enquiry Officer before calling upon him to have his say in the matter. The next decision of the Supreme Court upon which reliance has been placed by the learned Standing Counsel, namely, one in the case of Nand Kishore v. State of Bihar and others (A. I. R. 1978 S. C. 1277), also is of no assistance to the respondents in the present case. There too what was held by the Supreme Court was that the minimum requirement of natural justice was that the Tribunal should arrive at its conclusion on the basis of some evidence that is evidential material which, with some degree of definiteness, points to the guilt of delinquent officer of the charge against him and that suspicion cannot be allowed to take the place of proof even in domestic enquiry. Further, where the enquiry had been conducted fairly, the decision of the authority could not be interfered with in proceedings under Article 226 of the Constitution on the ground that it was based on evidence which would he insufficient for conviction of the delin quent officer on the same charge at a criminal trial. The decision, it is obvious, does not touch the controversy involved in the present case. Another ground upon which the order of punishment has been assailed is that in coming to the conclusion that the punishment of dismissal from service should be awarded to the plaintiff, the learned District Judge had placed reliance upon the plaintiff's past service record without ever disclosing to the plaintiff that it would be so considered. Reliance in this regard is placed on behalf of the plaintiff on the decision of the Supreme Court in State of Mysore v. K. M. Gowda (A. I. R. 1964 S. C. 506), wherein it was held that where the proposed punishment is mainly based upon previous record of a Government servant, the second notice to the Government servant must disclose the fact that the previous record would be taken into consideration. In his replies to the second show cause notice (Ext. 11), the plaintiff had said that "if at all lam not in a position to convince your Honour that I am not guilty, I throw myself at your Honour's mercy and very earnestly request to be pardoned taking in view my blotless past career. " The District Judge in the order of punishment observed, towards its end, as follows; "but for the police raid, the file had been successfully removed, and the mischief would have gone undetected. Sri Ram Chandra who has got a black character, with adverse entries of negligence, carelessness and failure to put up files before the presiding Officer, from 1951 does not, therefore, deserve any leniency. I have considered, and re-consider ed but find no room for leniency. He is dismissed from service with immediate effect. . . . . . . . . " From the aforesaid extract of the order of punishment, it is obvious that the past record of the plaintiff was referred to by the punishing authority only while dealing with the plaintiff's plea for lenient punishment in view of his blotless past career. The past record was not taken into consideration by the punishing authority in the sense that it came to the conclusion that the punish ment of dismissal alone would be appropriate because of the bad record of service of the plaintiff. The Courts below, in taking this view of the matter in regard to the plaintiff's grievance that the punishment of dismissal was passed on the basis of the plaintiff's past record without disclosing that fact to him, cannot be said to have committed any legal error. In the view that I have taken, it is clear that the plaintiff was not afford ed reasonable opportunity of defence to which he was entitled under Article 311 (2) of the Constitution as it stood at the relevant time. The order of punishment by which the plaintiff was dismissed from service was, in breach of the principles of natural justice and of the Constitution and was, thus, void. The Courts below erred in taking a view of the contrary. In paragraph 24 of the plaint the plaintiff had made a definite claim for a sum of Rs. 6083. 76 as arrears of salary due to him between September, 20, 1969 and the date of the filing of the suit after deducting a sum of Rs. 382. 90 received by him during the period of suspension at the rate of Rs. 71. 33 per month. A vague denial of this assertion is contained in paragraph 24 of the written statement. It is, thus, clear that the amount claimed by the plaintiff in this regard has remained unchallenged. In the result, the appeal deserves to be and is allowed. The decree of the Courts below dismissing the plaintiff's suit is set aside. The suit is decreed for a declaration that the order dated. February 28, 1962 (Ext. 9) dismissing the plaintiff from service was illegal and void. It is also decreed for recovery of a sum of Rs. 6083. 76 being the arrears of his salary from September 20, 1961 upto the date of the filing of the suit after deduction of a sum of Rs. 382. 90 received by the plaintiff during the period of his suspension at the rate of Rs. 71. 33 per month. The plaintiff shall also be entitled to his costs. The amount of Court fee payable by the plaintiff shall be realised by adjustment from the amount due to him under the decree passed today. .