SHAHABUDDIN Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal is from the order of Chandrasekhara Sastri, J., whereby the learned Judge refused to quash the order of the Government directing compulsory retirement of the appellant from service.

(2.) The appellant herein was appointed as Sub-Inspector of Excise on 14th December, 1947, by the Commissioner of Excise, Hyderabad. He was working as Sub-Inspector of Chevedla, Hyderabad district in the year 1958 when he was charge-sheeted for his alleged connivance at and failure to report the illicit tapping in the villages of Yerlapalli, Venkapalli and Goudlapalli and for making false entries as to particulars of his tour in his diary for 9th, 10th and 11th of December, 1958. This was done after the flying squad on their visit had detected the offences and the Excise Superintendent, Hyderabad North had made preliminary enquiry into the events. In his explanation before the said Superintendent, it is said the appellant had admitted his mistake in not booking the cases in time but had at the same time stated that he persuaded the contractors for crediting the tree tax and haq-e-malikana relating to the alleged trees. As a result of the preliminary enquiry by the said Excise Department the Deputy Commissioner framed charges against the appellant and called upon him to submit his written statement in relation to the said charges. The appellant was required to state whether he desired oral enquiry or to be heard in person. He was also asked to specify the witnesses he wished to examine. The statement of facts on which the charges were based was contained in the charge memo dated 26th February, 1959, given to the appellant. The appellant did not claim oral enquiry in the statement submitted by him on 16th March, 1959. He however, pleaded for mercy stating that he has a large family to support and that it was his first mistake in the course of his service and will be the last and that during the course of the enquiry the Superintendent also was satisfied with his explanation that the appellant was not actuated by any mercenary motive or criminal intention in the mistake that he committed. The Deputy Commissioner of Excise, on the basis of this, submitted his report to the Revenue Board finding the appellant guilty of the charges against him. The Board of Revenue, on a perusal of the report and the record, came to the conclusion that the petitioner (appellant) was guilty of the alleged charges and issued a show cause notice dated 25th May, 1959, why he (the appellant) should not be dismissed from service. The appellant was directed to submit his final representation within 7 days from the date of receipt of the said notice and it was made clear that any representation in that behalf submitted by him will be duly taken into consideration and that if his final representation was not received within the specified time, the charges will be disposed of on prima facie merits of the case. This notice issued on 25th May, 1959, was actually served on the appellant on 17th June, 1959. On 22nd June, 1959, the appellant sent his application to the Board of Revenue through proper channel i.e., through the Deputy Commissioner of Excise requesting the Board to grant one month's time for submission of his representation. He requested further therein for pormission to go through the connected records and for grant of copies of (1) the panchanamas prepared by the Flying Squad of the Deputy Commissioner's Office; (2) the enquiry report of the Superintendent of Excise, District Hyderabad North and (3) the copies of the evidence of the witnesses recorded by the Enquiry Officer. This application which was received by the Deputy Comm'ssioner's Officer on the same day was not forthwith transmitted to the Revenue Board and in fact was never brought to the notice of the Board of Revenue at all. Similar was the fate of the various subsequent applications sent thereafter by the appellant by way of reminders with the same request. The second application sent on I2th August, 1959, was received by the office of the Deputy Commissioner on 19th August, 1959, and the third application sent on I5th September, 1959, was received on the same day. These were not transmitted in time with the result that they could not come to the notice of the Board of Revenue till the final orders were passed on 29th September, 1959. There was also a fourth application sent on 1st October, 1959. All the while the appellant was making his earnest appeal for grant of copies and time and again was referring to the fact that he had made request that copies of certain connected records might be made available to him so as to enable him to file his defence on material grounds but that unfortunately his request had not been fulfilled so far. When his case came up finally before the Board of Revenue on 29th September, 1959 the Board observed that even though the provisional finding was served on the appellant on 17th May, 1959, he had neither submitted his further re presentation nor had applied for extension of time. The Board attributed this long silence to the fact that he had no representation to make but was interested only in delaying the matter. The Board then on the material on record held that the charges were establishd and the appellant, therefore, was liable to be dismissed from service. After the appellant come to know of the result, he moved the Government. In the appeal he filed he complained of denial of reasonable opportunity to him by the Board and contended that the charges could not be held to be established on the basis of his statement which, in fact, is far from being a confession and even if it were so was neither true nor voluntary and at any rate could not form the basis of the order of dismissal. He alleged that the Superintendent, Excise, Hyderabad North who conducted the preliminary enquiry resorted to coercive methods and the so-called confession was an induced one. He further alleged that in the preliminary enquiry there was no observance of principles of natural justice and that after the notice was served on him to show cause against the proposed action all his entreaties for requisite material available with the department to enable him to make effective representation went unnoticed. Not even a reply was given from any quarter with the result that the appellant could not make his due representation and the matter was disposed of without the same. There was thus candid breach of the provisions of Article 311 of the Constitution and Rule 22 (7) of the Hyderabad Civil Services (Classification, Control and Appeal) Rules. In view of the above grounds taken in appeal, the Government asked for the comments of the Revenue Board. The Board of Revenue sent its report on 2nd April, 1960 and. stated therein that the appellant was given due notice and no representation was made nor any application was received for extension of time or for perusal of records, between the date of communication of the preliminary report and the date of the final orders passed by the Board. The Board at that stage, on a perusal of their records, happened to notice that the appellant had made an application dated 22nd June, 1959, asking for inspection of records and furnishing the copies. Of course, this application was not there when they passed their orders. The Government eventually dismissed the appeal; but later, on the review petition they varied the order of dismissal to an order of compulsory retirement. Aggrieved by this order, the appellant has come up to this Court invoking its extraordinary jurisdiction. Several grounds were taken in the petition and the main ground, which we find is not without much substance, is that the crder of dismissal passed by the Revenue Board is vitiated inasmuch as the appellant was not given reasonable opportunity to make his representation against the proposed action which was an essential pre-requisite for exercising powers of dismissing a. a civil servant.

(3.) The arguments of Mr. P. A. Chowdary, the learned Counsel for the petitioner are manifold. But, as already pointed out, the main ground which appeals to us consists in negation of constitutional safeguard by denying reasonable opportunity to the appellant before the order of dismissal was passed.