LAKSHMI NARAIN GUPTA Vs. A N PURI

JUDGEMENT

(1.) This is an application under Article 326 of the Constitution for an appropriate writ for quashing of certain departmental proceeding taken against the petitioner and the report dated 25-10-1951 and findings made therein and also for quashing of a notice to show cause dated 10-4-1952 calling upon the petitioner to show cause why disciplinary action of the nature mentioned therein should not be taken against him.

(2.) The case of the petitioner is that he is a Bachelor of Science of the Calcutta University and had special training in metallurgy and fuel technology and in agricultural engineering. He was appointed as Preventive Officer in the Customs Department of the Government of India in 1941. In 1944 he was entrusted with the work of an Examining Officer. In 1946 he appeared at a departmental examination and stood first in order of merit. In March 1946 he was posted as Postal Export Appraiser. In 1949 he passed the Appraiser's departmental examination and continued to act sB Appraiser. In June 1949 the petitioner was offered in recognition of his past meritorious service the gazetted appointment of Superintendent of Central Excise at Delhi by the Central Board, of Revenue, but the petitioner did not accept the poet and preferred to continue in the Customs Department at Calcutta. On or about 9-5-1940 one Mr. Meyer, an Assistant Collector visited the Garden Beach jetty where the petitioner was on duty in his capacity as Appraiser, accompanied by Mr. Symes the principal Appraiser (Jetties) and found on enquiry that the petitioner had passed certain consignments without physical examination of the goods. On 11-5-1950 a complaint was made by Mr. Meyer against the petitioner to the effect that the latter was in the habit of passing goods without examining them, and also that the petitioner had been guilty of discourteous ana insubordinate behaviour. Upon receipt of that complaint the then Collector appointed one Mr. B. De, Assistant Collector, as the Enquiring Officer, in spite of objections made by the petitioner to the effect that Mr, De, who was a friend and colleague of Mr. Meyer, was not well disposed towards the petitioner It is alleged that the said Enquiring Officer made an ex parte report against the petitioner without giving him any hearing or the assistance of a lawyer and without taking any evidence whatsoever in respect of the matter. Thereafter acting on the said findings of Mr. De, the Collector passed an order on 26-7-1950 reverting the petitioner permanently to the post of Preventive Officer with effect from 27-7-1950. The petitioner thereupon preferred an appeal against the order of the Collector on or about 4-8-1950 to the Union Public Service Commission, New Delhi, who upon considering the appeal on or about 30-5-1951 directed the reversion to be limited to a period of two years from the date of his actual reversion. It is alleged that owing to the said proceedings taken against the petitioner since May 1950, he had not been keeping good health and as he was suffering from nervous shock and disorder he had to take leave on medical grounds from 26-7-1950 to 3-10-1950 and although he applied for further leave on medical ground, the same was not granted and so he was compelled to join office from 4-10-1950, and immediately on his resuming duties he was posted on duty for long and continuous periods without any break or recess, between 4-10-1950 and 20-12-1950. Particulars of such postings have been set out in para. 7 of the petition. On 21-12-1950 one Mr. Gill an Assistant Inspector of Customs complained of incivility against the petitioner, to the Collector of Customs an the petitioner was thereupon suspended by an order of suspension passed by the Collector with effect from 21-12-1950. On 22-12-1950 the petitioner applied for leave for one month on medical advice and left for Madhupur hut as the place did not suit him the petitioner returned from Madhupur on or about 6-1-1951. On 11-1-1951 the petitioner received a memorandum from the Collector, which referred to a charge-sheet dated 30-12-1950. On the same day the petitioner asked for an opportunity to answer the charges. Thereafter the petitioner was supplied with a fresh copy of the charge-sheet which was received by him on or about 16-1-1951. The charges against the petitioner were of gross insubordination and indiscipline. As the petitioner was called upon to file his written statement within ten days he submitted his written statement on or about 25-1-1951. It is alleged that the charge-sheet was not accompanied by the allegations or complaints of persons on the basis of which the charges were drawn up, but it was after the written statement was submitted that the complaints of Mr. Gill and of one Mr. Jasjit singh were supplied to the petitioner on or about 30-1-1951. On 6-3-1951 the Enquiring Officer, Mr. Pillai wrote to the petitioner enquiring whether he wished to examine or cross-examine witnesses and pointing out that the provisions of the Public Servants (Enquiries) Act 1850 had no application to the case of the petitioner. On 17-3-1951 the petitioner replied to the letter of the Enquiring Officer stating certain grounds challenging the validity of the departmental enquiry and the suspension order and the petitioner again requested that he might be represented by a lawyer in the enquiry. Thereafter some correspondence followed in which the petitioner repeated his request to have the assistance of a lawyer out such request was not acceded to by the Collector of Customs. On 3-8-1951 the petitioner wrote a letter in reply to a memorandum of the Enquiry Officer dated 28-7-1951 that it would not be possible for him to appear before the officer for being heard in person or to produce any witness or witnesses for reasons already brought to his notice but he reserved the right to mention the names of witnesses and also the names of persons whom he desired to cross-examine when he got the assistance of a lawyer. On 20-10-1951 Mr. Pillai signed his report (wrongly dated as 25-10-1951) in respect of the Enquiry, and it is stated therein that inasmuch as the petitioner had definitely declined the opportunity of being heard in person or of producing any witnesses he recorded his findings on the basis of the charge-sheet and on reports of the Inspector Mr. Gill and the Superintendent, Preventive Service and upon Mr. Gupta's written explanation to the charge-sheet. The Enquiry Officer came to the conclusion in such report that the petitioner had displayed gross negligence of duty and misconduct. It appears that Mr. Pillai had relinquished charge of his Calcutta office on transfer to Bombay, on 20-10-1951. In December 1951 the Secretary of Customs Preventive Association appears to have carried on some negotiations on behalf of the petitioner and some other officers with Mr. Raja Ram Rao who had by that time become the Member of the Central Board of Revenue, and from a letter of the Secretary to the petitioner dated 10-12-1951 the petitioner got the impression that his case was being under consideration and was pending. Although the report of the Enquiry Officer, Mr. Pillai, was signed in October 1951 the petitioner was not given any intimation about the enquiry being concluded and the report being signed for a lew months thereafter. On 12-4-1952 the petitioner received a notice dated 10-4-1952 issued by the Collector stating that the Enquiring Officer had submitted his findings and the Collector agreed with such findings and the petitioner was called upon to show cause within a period of ten days why disciplinary action such as reduction in rank, withholding of increments etc. should not be taken against the petitioner. A copy of the report signed on the 20th October but wrongly stated as bearing date 25-10-1951 (as appears from the original records produced at the hearing) was supplied to the petitioner along with this notice. On 27-4-1952 the petitioner moved this application under Article 226 and obtained the rule nisi.

(3.) Mr. B C, Mitra, the learned Counsel for the petitioner, has submitted that as no date or place for any hearing was fixed by the Enquiring Officer nor was any hearing given to the petitioner, there was violation of the principles of natural justice & as such the entire departmental proceeding & the findings & Report made therein by the Enquiring Officer on 20-10-1951 were without jurisdiction and should be quashed. It is however clear from the correspondence that passed between tne petitioner and the Customs authorities between 11-1-1951 and 3-8-1951 that in spite of it being repeatedly pointed out that the petitioner was not entitled to the assistance of a. lawyer lor conducting the enquiry he persisted in his demand for such a lawyer and made it clear to the Customs authorities in course of such correspondence (See letter dated 17-3-51 from petitioner) that he did not desire to be heard in person ii' he was not allowed the services of a lawyer, but if the was allowed an opportunity to be represented by a lawyer then he would submit the names of the persons whom he desired to cross-examine. The last letter where he maintained the same attitude was the letter of 3-8-1951. Being convinced of the fact, that the petitioner did not want a hearing unless he was allowed to be represented by a lawyer and further as the authorities were not satisfied about the justice of the petitioner's demand for a lawyer and moreover finding that considerable time had elapsed in carrying on correspondence which did not produce any satisfactory result, the Enquiring Officer after consideration of the charge-sheet, the reports of Mr, Gill and Mr. Jasjit Singh, and the petitioner's written explanation, came to the conclusion that the charges against the petitioner had been established and he recorded his findings accordingly. As the petitioner flatly declined to be heard unless he got a lawyer to assist him, the Enquiring Officer had no other alternative but to proceed ex parte. No special facts or circumstances have been established to show that the petitioner's demand for a lawyer, had been unreasonably refused nor is it shown that the petitioner's case was of such an extraordinary nature that the services of a lawyer should have been allowed to him as a special case. I am unable to hold that the principles of natural justice had been violated or that the Enquiry and the Report are without jurisdiction.