VASANT PANDURANG DEVAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is an appeal by an Ex-Government servant who had at the material time occupied the position of a clerk of the Court-cum-Nazir in the Court of the Judicial Magistrate and Civil Judge (Junior Division) at Saswad in the District of Poona. On 26th July 1954, this Government servant, who will hereafter be referred to as the plaintiff, was transferred to Poona, where he had to work in the Court of the Civil Judge (Senior Division). On the next day he joined his service at Poona. On 2nd August 1954, the Judicial Magistrate at Saswad, Mr. Behere, who had taken up a dacoity case for inquiry on 29th July 1954, reported to the District Judge, Poona, that 54 currency notes of the value of Rs. 10 each, which were a part of the Muddemal in the case, were missing from the Court. On 3rd August 1954, the plaintiff on being informed about the report made by Mr. Behere to the District Judge, went back to Saswad, made inquiries for the missing currency notes in the room in which Muddemal used to be kept, and found them, according to the plaintiff, mixed up with certain other property lying in that room. Those notes were thereafter produced before the Court, whereupon Mr. Behere informed the District Judge that the notes were traced and produced before him. On 4th August 1954, the District Judge sent one of his clerks to Saswad to record the statement of the plaintiff's successor-in-office, Mr. Yedke. This clerk, it seems, did record the statement of Yedke at Saswad and he also recorded the statement of the plaintiff on the same day at Poona. On 5th August 1954, the District Judge suspended the plaintiff from his service and a charge-sheet was furnished to him with a notice calling upon him to answer the charges mentioned in the charge-sheet. On 9th August 1954, the plaintiff filed his reply and also made a separate application stating that he did not wish any oral inquiry nor did he want to lead any evidence. Yet by the same application he had asked for permission to engage a pleader, which permission was, however, refused. On 16th August 1954, the plaintiff submitted another statement to the District Judge. On 18th August 1954, the District Judge held the inquiry into the charges levelled against the plaintiff and at that inquiry the evidence both of the plaintiff's successor-in-office at Saswad and the Judicial Magistrate Mr. Behere was recorded. The plaintiff's own statement was also recorded by the District Judge. No complaint was made by the plaintiff in course of the inquiry at any time nor was any complaint made in the present proceedings that he was not allowed to cross-examine any of those witnesses or that he had not been afforded full opportunity to answer the charges levelled against him. After the inquiry was closed, the District Judge on the same day passed an order of dismissal against the plaintiff. On 24th August 1954, the order of dismissal was formally communicated to the plaintiff. Thereafter, on 17th September 1954, the plaintiff appealed to the High Court on its Administrative side against the order of dismissal passed by the District Judge. On 13th October 1954, the High Court addressed a letter to the District Judge pointing out that the order of dismissal that he had passed was in contravention of Article 311 of the Constitution, and directed the District Judge by that letter to proceed with the inquiry from the stage at which it was left before passing the order of dismissal. In pursuance of that direction, the District Judge passed an order striking out the order of dismissal from his judgment and on 30th November 1954, a notice was issued to the plaintiff to show cause as to why punishment by way of dismissal from service should not be imposed upon him. A copy of his judgment as amended in pursuance of the High Court direction was sent along with this notice to the plaintiff. On 11th December 1954, the plaintiff gave his statement in reply, by which he sought to challenge the finding of the District Judge in respect of the charges levelled against him and also the propriety and quantum of the proposed punishment. On 20th December 1954, the District Judge, after considering that statement passed an order of dismissal against the plaintiff. The plaintiff then filed an appeal to the High Court on its Administrative side against that order. The High Court dismissed that appeal and the plaintiff was informed about it by a letter dated 1st February, 1955. It appears from the plaint that the order of the High Court dismissing the appeal was confirmed by the State Government in due course. After the plaintiff thus failed in the proceedings before the High Court and the State Government, he instituted the present suit on. 28th June 1955 for a declaration that the order of dismissal from service passed against him by the District Judge and ultimately confirmed, by the State Government was void and inoperative in law, since he was not afforded adequate opportunity of representing his case against the charges levelled against him. As a consequential relief, he also asked for a declaration that the order of dismissal being bad, he continued to be in service as if he was never dismissed. In addition, he prayed a decree for his salary for the short period between 1st August 1954 and end of February 1955, on the ground that the first order of dismissal passed by the District Judge having been set aside by the High Court, he was entitled to the salary until the second order of dismissal was confirmed by the High Court by its letter dated 1st February, 1955. The State Government by its written, statement denied the plaintiff's claim and contended that adequate opportunity to defend himself was afforded to the plaintiff both at the inquiry as well as at the lime of imposition of the sentence. It also denied the plaintiff's claim for salary for the short period as claimed by him in the plaint. The learned trial Judge was of the view that no adequate opportunity was given to the plaintiff for showing cause against the penalty proposed to be inflicted upon him, on account of the fact that the District Judge had refused to consider the propriety of his finding on the charge in question as a result of the inquiry held in that behalf. The plaintiff's suit was accordingly decreed by that Court. The State went in appeal to the District Court and the learned District Judge set aside the decree of the trial Court and dismissed the plaintiff's suit holding that the District Judge who had held the inquiry was right in his view that no useful purpose would be served by hearing the plaintiff over again on the facts and evidence in the case in answer to the notice served upon him to show cause as to why the proposed penalty should not be imposed upon him. The plaintiff has now come to this Court in Second Appeal against the order of the learned District Judge.

(2.) In support of this appeal, it was urged by Mr. Gadgil that the order of dismissal was vitiated on account of the fact that the District Judge had refused to hear the plaintiff on the merits of the case and the charge against him at the hearing of the notice to show cause as to why the proposed penalty should not be imposed upon him. According to him, it was not enough that an opportunity to defend himself should have been given to the plaintiff at the time when the charge framed against him was inquired into. He urged that even after the inquiry was over and the Officer having an authority to impose punishment made up his mind to impose a certain penalty and gave a notice to show cause as to why that penalty should not be imposed, it was incumbent upon the Officer to permit the Government servant to challenge his finding as a result of the inquiry and contend that his finding was wrong and that, therefore, there was no question of imposing any penalty upon him. 2a. In support of this contention Mr. Gadgil relied upon the following observations of Chagla C. J., in State of Bombay v. Gajanan Mahadev Badley, 56 Bom LR 172: (AIR 1934 Bom 351):

(3.) A reference in this connection may usefully be made to the decision of the Supreme Court in Khemchand v. Union of India, AIR 1958 SC 300. In paragraph 19 of the judgment Their Lordships observed as follows: