DEEP CHAND SAXENA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner was appointed on 11 October 1935 as a rural development organizer. On 30 September 1943 he was appointed as an agriculture supervisor. On 30 July 1948, he was working as incharge supervisor, Central Seed Store, Budaun, when he was suspended. On 23 October 1948, a chargesheet was served on him to which the petitioner submitted an explanation. On 25 November 1948 he was called by the Circle Accounts Officer at Bareilly and some enquiries were made from him on 29 and 30 November and 1 December 1948. The Circle Accounts Officer reported the proceedings to the Deputy Director of Agriculture, Bareilly, who recommended to the Joint Director of Agriculture, Lucknow, that a bad entry be made in the character roll of the petitioner and the proceedings initiated by the chargesheet be withdrawn. The Joint Director of Agriculture ordered that the matter be referred to the District Magistrate, Budaun, for prosecution of the petitioner in a criminal Court. A case was registered against the petitioner under Section 409/420, Indian Penal Code and investigation was made by the police. The police submitted a final report. The petitioner, however, received a notice, dated 8 February 1950, calling upon him to show cause why he should not be removed from service, to which he submitted an explanation on 10 February 1950. Thereafter, he received orders terminating his services. The petitioner made an application for review of the order of termination of service which was rejected on 4 May 1950. Thereafter, he submitted an appeal to the Secretary to Government, Uttar Pradesh, Agriculture Department. In the meantime the petitioner was appointed in the Land Reforms Department on 19 July. 1952 as zamindari abolition clerk in tehsil Sisauli. On 9 May 1953 the District Agriculture Officer again reported for police investigation against the petitioner and the police issued a warrant of arrest against the petitioner. The petitioner, in compliance with the warrant, surrendered in Court. The polios again submitted a final report. On 17 December 1954 the petitioner sought an interview with the Secretary to Government, Agriculture Department, Uttar Pradesh, and submitted an application saying that he had not received any orders for the last four years regarding his appeal. On 27 April 1955 the petitioner received an order, dated 22 April 1955, by which he was reinstated with effect from the date of termination, i.e., 1 March 1950. The petitioner was formally reinstated but was again put under suspension. A fresh chargesheet was served on the petitioner to which he submitted an explanation on 31 January 1956. On 9 August 1956, the petitioner was called for personal hearing but no evidence was recorded in his presence and he was not allowed to cross-examine any witness. In the third week of November 1956, the petitioner received a letter dated 7 November 1956, calling upon him to show cause why he may not be removed from service to which he submitted an explanation on 31 December 1958. By an order dated 21 January 1957 the petitioner was removed from service by the Director Sri R.S. Singh with effect from the date of his suspension, i.e., 15 April 1958: Thereafter, the present writ petition was filed in this Court.

(2.) The submission of the learned Counsel for the petitioner is that he was not given a reasonable opportunity of showing cause against the action proposed. The argument is that Article 311(2) of the Constitution of India envisages two stages at which the petitioner can show his innocence. The first stage is the enquiry stage and after the enquiry is completed, the second stage arrives after the authority who can take disciplinary proceedings against the petitioner, has tentatively made up his mind to inflict a punishment and issues a notice to show cause why that punishment should not be inflicted. The view that I am taking with regard to the opportunity contemplated by Article 311(2) of the Constitution of India is fully borne out by the observations of their lordships of the Supreme Court in the case of Khem Chand v. Union of India 1959-I L.L.J. 167.

(3.) A counter-affidavit has been filed much beyond time. Ordinarily, I would have rejected the counter-affidavit but after having read it, I do not think there are any allegations in it which are material for the decision of the present case and which Mr. Varma, the learned Counsel for the petitioner, may like to controvert. I have therefore not given Mr. Varma any time for a rejoinder affidavit. The short point on which I am inclined to allow this petition is that there has been non-compliance with the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The said rule runs as follows: