STATE OF MAHARASHTRA Vs. GAJANAN MAHADEV BADLEY

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff for a declaration that an order passed by the state of Bombay, which was the defendant, on 24-6-1949, reducing the plaintiff from the rank of an Inspector in the Rationing Department to a clerk, was illegal and void, that he still continues to hold the office of an Inspector, and also for a decree for a certain amount for arrears of salary. The suit was heard by Mr. Hathi, the learned Judge, City Civil Court, and he gave the declaration to the plaintiff which he sought and also passed a decree in his favour for arrears of salary. The State of Bombay has now come in appeal, and the first question that we have to consider is whether the order of 24-6-1949, which is challenged was a legal and valid order.

(2.) ON 18-1-1949, the plaintiff, who was then an Inspector in the Rationing Office, was served with a notice by the Controller of Rationing, Bombay, and in this notice it was stated that on 20-11-1948, the plaintiff called at the A Ward Rationing Office and requested the Rationing Inspector, one Rajmane, to effect suitable alterations in the statement of one P. D. Fernandes in connection with the absentee withdrawal of ration on the individual ration cards held by P. D. Fernandes with a view to weaken the whole case. A copy of Rajmane's statement was attached and the plaintiff was given seven days' time to show cause why no action should be taken against him for exercising his official position to influence the case under reference, and also to state whether he desired to be heard in person. It will be clear from this that the plaintiff was being charged with having seen Rajmane on, 20-11-1943, and to have asked him to make suitable alterations in some statement which Fernanda had made in respect of a case that was pending against him, and what the plaintiff wanted Rajmane to do was to try and weaken the case against Fernandes by making these suitable alterations. In the statement of Rajmane which was annexed to this notice, Rajmane says that the plaintiff asked him about the case of Fernandes. The plaintiff asked Rajmane where the case stood, what statement was recorded, and if Rajmane could do something in that case. Rajmane says that he flatly refused to do so, but asked him to see some other officials. It is pertinent to note that in this statement Rajmane does not say that the plaintiff asked him to alter the statement of Fernandes with a view to weaken the whole case. On 15-2-1949, the plaintiff sent a reply to this notice. He says that the allegations made by Rajmane were false, that he was introduced to Rajmane by another Inspector by the name of Shah, and that he wanted to know about the case against Fernandes out of curiosity, and he had made it clear to Rajmane that he did not wish to influence him to make any change in the statement made by Fernandes. He says that he was innocent and that he was prepared to appear in person if the foregoing lines failed to convince the Controller of Rationing about the honest intentions of the plaintiff. On 17-2-1949, the plaintiff was informed that he should appear before the Assistant Controller of Rationing on March 10 when a departmental inquiry would be held. A departmental inquiry was duly held and at that inquiry all that happened was that the officer who held the inquiry, one Mr. Velloz, put certain questions to the plaintiff and the plaintiff was asked to cross-examine Rajmane who was present and the plaintiff asked certain questions to Rajmane. On 30-3-1949, the plaintiff was served with another notice, which is the material notice in this case, and he was asked to show cause within seven days from the receipt thereof why he should not be reverted to his original post of a clerk. It was stated in this notice that the charge levelled against him as per the memorandum dated 18-1-1949, had been established. Therefore, it is clear that by this notice he was merely asked to show cause against the punishment which was proposed to be meted out against him. With regard to the findings, the Controller informed the plaintiff that the findings had already been accepted and nothing more could be done with regard to that because the notice expressly stated that the charge had been established. The plaintiff replied on the same day, asked for some time, and also asked the Controller of Rationing to furnish him with the relevant documents. On that the Controller on 1-4-1949, furnished to the plaintiff the findings of Mr. Velloz. In these findings Mr. Velloz has come to the conclusion that it was clear that the plaintiff had approached Rajmane in order to influence him. Velloz also refers to the fact that in a particular case the accused was discharged because the plaintiff was absent and could not give evidence, and because of his conduct in remaining absent he had received a warning from the authorities; and Mr. Velloz says that taking both these points into consideration, viz. . , the attempt at influencing Rajmane and his previous conduct in respect of which he had been warned, he recommended that the plaintiff may be reverted to his original Post of clerk. It may be pointed out that the plaintiff had joined the rationing department as a clerk on 1-1-1944, and was promoted as an Inspector on 22-1-1944. On 10-4-1949, the plaintiff sent a reply to this notice and it is perfectly true, as contended by the Advocate General, that in this reply the plaintiff has dealt with not only the question of the sentence which the authorities proposed to mete out, but also with regard to the merits of the findings, a copy of which had now been furnished to him. On 30-4-1949, the Controller of Rationing forwarded to the plaintiff a statement of Mr. Shah and a further statement of Rajmane. Mr. Shah's statement was taken down on 20-11-1948, and is not material because all that that statement says is that Mr. shah introduced Rajmane and request-ed Rajmane to see what the plaintiff wanted. But the statement of Rajmane, which bears the date 11-12-1948, is extremely material, and the statement is to the following effect; "in continuation of my statement dated 20-11-1948, I beg to state that Mr. Badley, Inspector ("who is the plaintiff) from 'c' Ward, asked me whether I can change the statement, of the party or mild the case (which means, we take it, weaken the case ). He did not tell me what way I should change. I refused to do either. When I reported this matter to my Dy. Chief Inspector Mr. Badley had left the office. " on 11-5-1949, the plaintiff replied to this letter of 30-4-1949, with its annextures and he makes a strong protest against the subsequent statement of Rajmane having been forwarded to him as late as 30-4-1949. He points out that it should have been either sent to him along with the letter of 18-1-1949, or it should have been made available to him during the actual conduct of the departmental inquiry held on 10-3-1949, or at least it should have been furnished to him along with the copy of the findings on 1-4-1949. He therefore, says that he will be justified in surmising that the subsequent statement of Rajmane is definitely an after-thought and has been ingeniously made out with a view to substantiate the charge levelled against him. The Controller of Rationing ultimately passed an order on 24-6-1949, which is the order challenged in the suit, ordering that the plaintiff should be reverted to his original post of a clerk with effect from 25-6-1949.

(3.) RULE 55 of the Bombay Civil Services Conduct, Discipline and Appeal Rules provides how an order of dismissal, removal or reduction should be passed, and the question was canvassed in the Court below as to whether this rule had been complied with. The learned Judge took the view that the rule was merely directory and not mandatory and that the State of Bombay was not bound to comply with this rule, and if the rule had not been complied with, the plaintiff could not make a grievance of that fact. Mr Vakharia who appears for the plaintiff wanted to argue before us that the learned judge was not right when he took the view that Rule 55 had no binding effect. In our opinion, it is unnecessary to consider that question, and for the purpose of this appeal we will assume that Rule 55 is merely directory in its character and is not binding upon the state of Bombay.