UNION OF INDIA Vs. ABDUL KADAR BALASAHEB SOUDAGAR

JUDGEMENT

(1.) The Union of India has filed this Appeal against the Judgment and decree passed by the learned Extra Assistant Judge, Poona setting aside order of dismissal passed by the Senior Superintendent of Post Offices on January 6, 1967, and the order of compulsory retirement passed in appeal on July 18, 1967, by the Director of Postal Services on the ground that the said orders were illegal and void as they were passed without giving a reasonable opportunity to the plaintiff of being heard. The plaintiff, who was working as an Assistant Counter Clerk for National Defence Certificates at Poona Head Post Office, was charge-sheeted on the ground that while functioning as a counter clerk, in or about December 1963, he failed to maintain absolute integrity and devotion to duty; that he committed misconduct in the discharge of his duties as a public servant, inasmuch as he illegally diverted the transaction for the purchase of National Defence Certificates offered to him directly at the counter. There were two similar instances against the plaintiff and in respect of both these instances, a separate charge was levelled against him in March 1965. So far as the first charge was concerned, initially an order of dismissal was passed and in appeal the order of dismissal was set aside by the Director of Postal Services and de novo trial was directed to be held. So far as the second charge was concerned, the hearing started on February 10, 1966. On that day, he requested the Inquiry Officer to allow him to have the assistance of a Government employee with a view to present his case and asked for adjournment. That request was rejected and the Enquiry Officer conducted the inquiry and submitted his report on February 21, 1966, holding the plaintiff guilty of the charge. The Senior Superintendent, who was the disciplinary authority gave a show cause notice to the plaintiff inter alia informing him that he concurred with the findings of the enquiry officer and called upon him to show cause why he should not be dismissed from service. On March 24, 1966 the plaintiff presented a representation to the Senior Superintendent enclosing therewith a petition to the President of India, inter alia requesting that the further proceedings may be stayed and that he should be given the assistance of one Mr. Bhave in the enquiry proceedings. No further action was taken on that petition and it was not forwarded to the President. By an order dated January 6, 1967, the plaintiff was dismissed. On an appeal preferred by the plaintiff, the Director of Postal Services passed an order on July 18, 1967, modifying the punishment as compulsory retirement from dismissal. The plaintiff has challenged these orders in this suit. The trial court rejected the contention of the plaintiff that he was not given a reasonable opportunity to show cause and dismissed the suit. In an appeal preferred by the plaintiff, the learned Extra Assistant Judge, Poona, held that the plaintiff was not given a reasonable opportunity of being heard and that the principles of natural justice and rules were not followed. He accordingly set aside the order of compulsory retirement and it is against this order passed by the learned Judge, that the present appeal is filed by the Union of India.

(2.) Mr. Kotwal on behalf of the appellant contended that even though in the charge-sheet furnished to the plaintiff, his attention was drawn to the fact whether he wanted to have the assistance of any officer in the course of the enquiry proceedings. He did make an application only at the last stage i. e. on the date when the enquiry commenced and such an application was made only with a view to delay the enquiry. Secondly he submitted that a mere failure to allow a Government servant to have the assistance of another servant in defending his case will not vitiate the enquiry and the order will be liable to be set aside only if it is shown that prejudice has been caused to the plaintiff by reason of the assistance of another Government servant being not made available to him. He submitted that as in this case no evidence is led to show that prejudice is caused to him, the order passed by the Director is not open to challenge.

(3.) In exercise of the power conferred by Art. 309 of the Constitution of India, the Ministry of Home Affairs have framed Central Civil Services (Classification, Control and Appeal) Rules, 1957. These Rules provide inter alia for a departmental enquiry and for imposition of the penalties, which are enumerated in R. 13 of these Rules. One of the penalties which could be imposed on a Government servant for good and sufficient reasons is that of compulsory retirement. The procedure to be followed when a major penalty (which inter alia includes that of compulsory retirement) is to be imposed is laid down in R. 15 sub-r. (5) is as under: