LAWS(ALL)-1967-11-13

CHANDRA KISHORE Vs. ACCOUNTANT GENERAL UTTAR PRADESH ALLAHABAD

Decided On November 05, 1967
CHANDRA KISHORE Appellant
V/S
ACCOUNTANT-GENERAL, UTTAR PRADESH, ALLAHABAD, Respondents

JUDGEMENT

(1.) THE petitioner was a lower division clerk working in the office of the Accountant General, Uttar Pradesh, Allahabad. A chargesheet, dated February 13, 1963, was served upon him and he was required to submit his written statement to the charge. The charge levelled was in these words:

(2.) THE petitioner submitted his written statement and, after inquiry, the inquiry officer gave his findings on July 11, 1963. On 6 November 1963, the Accountant-General gave a show-cause notice to the petitioner stating that he was in full agreement with the findings of the inquiry officer and required the petitioner to show cause why the penalty of removal from service should not be inflicted upon him. The petitioner showed cause but, by order, dated January 25, 1964, the Accountant-General removed the petitioner from service with effect from the date of his order. Against the order of the Accountant-General, the petitioner preferred an appeal to the Comptroller and Auditor General of India, New Delhi. He was informed by a communication, dated May 21, 1966, that his appeal had been rejected. There upon he filed this writ petition. Two main contentions have been raised by the learned counsel for the petitioner: The first is that, on the charge as framed and on the finding on that charge, the petitioner has not contravened the provisions of rule 12. The second is that the inquiry officer having found to charge levelled to be disproved, the petitioner could not be punished on the basis of some other charge of which the petitioner had not been given any notice. The relevant portion of rule 12(1) of the Central Civil Services (Conduct) Rules, 1955 (here in after referred to as the rules), reads thus:

(3.) THE main charge that the petitioner was himself running the business was held not to be proved. The only fact which was found against him, was that he was assisting his father by regularly writing cash memoranda and occasionally signing them. The question which arises for consideration is whether, in doing so, the petitioner could be said to have been engaged directly or indirectly in any trade or business. I am clearly of the opinion that the petitioner was merely assisting his father and he could not be said to be engaged directly or indirectly in the trade or business. The work, which the petitioner was doing, was a work which an employee of the shop could have done. The utmost that could be said is that, on account of doing this work, the petitioner's father had not to keep an employee for this purpose. The enquiry officer has not found that the petitioner had invested any amount in the business or that he was indenting the medicines to be sold at the shop or that he was handling the sale-proceeds of the medicines. Nor has he found that the petitioner had a share in the profits of the shop. In fact, there is not finding that the petitioner was doing any such work as would indicate that he was himself engaged in the business. The finding is that he was not himself directly engaged in the business but was participating in it by writing cash memoranda. By writing cash memoranda, the petitioner may have been acting as an employee but the charge against him was not that he had undertaken any employment. Learned counsel for the petitioner has referred to several English decisions where the words similar to the words "engaged in any trade or business" have been considered. In Smith v. Hancock [(1894) 2 Ch.D. 377], Hancock had sold his business to Smith and the agreement provided that he shall not "carry on or be in anyway interested in" any similar business. He had helped his wife, who had started an identical business, in her business by introducing her to the bankers, by obtaining a lease of the shop in her name, by introducing her to wholesale merchants and by writing a circular inviting old customers to come to the shop. It was held that Hancock was not carrying on any business, A. L. Smith, L.J., observed: