KRISHNA GOPAL MUKHERJI Vs. STATE

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioner who was holding the Gazetted post of Sub-Engineer of the Irrigation Department of the Government of Orissa has challenged the validity of an order of the Government of Orissa in the Works Department, No. 3 E-11E-7/51-21, dated 24-1-1952, removing him from service, on the ground that the provisions of Clause (2) of Article 311 were not complied with.

(2.) The material facts are as follows : On 19-12-1950, the then Chief Engineer- cum-Secretary to the Government of Orissa in the Public Works Department, Mr. J. Shaw, framed five charges against the petitioner and called upon him to submit his explanation to those charges, The charges dealt mainly with false measurement in the billing of earth-work in a portion of Kathjuri Embankment with a view to favour a contractor named Bhramarbar Behera. The petitioner submitted his explanation on 31-12-1950. Then, Mr. Shaw on 29-5-1951, issued the following notice to the petitioner : "Your letter of 3-12-1950 has been received giving your explanation on the various charges framed against you, in my letter No. 122-Res. Irrigation of 19-12-1950. It is regretted that your explanations on some of these charges in this departmental enquiry are not found acceptable as noted in the report below and yon are requested to show came within fourteen clays from the receipt of this notice, as to why you should not be dismissed, from Government service for false measurement and false representation and billing of work." This notice was issued, obviously, with a view to satisfy the requirements of Clause (2) of Article 311 of the Constitution. The petitioner submitted a further explanation to this notice, on 12-6-1951. The main point taken by him in that explanation was that some of the charges were technical in character and did not justify the passing of the extreme punishment of dismissal. He further submitted that remaining charges were the subject-matter of a criminal case that was then pending against him, and requested the Government to stay the passing of final orders in the departmental proceedings till the termination of that criminal case. His explanation was not found satisfactory and then, on 21-7-1951 his case was sent to the Public Service Commission for their views. The Commission, however suggested to Government in their letter No. 1504-P. S. C. dated 22-81951, that the petitioner should be given further opportunity for personal hearing by a P.W.D. Secretary other than Mr. Shaw who had made ihe preliminary investigation and on whose report the charges were mainly based. By that time the post of Chief Engineer-cum-Secretary, Works Department, had been split tip and Mr. Joneja, an I.A.S. Officer was holding the post of Secretary, Works Department. That Officer gave a personal hearing to the petitioner, took into consideration some other documents filed by the petitioner, and then submitted a report to the Public Service Commission to the effect that the charges were proved. Then, on 22-12-1951, the Public Service Commission, in their letter No. 2176 P.S.C. recommended the removal of the petitioner from service and Government accepted their recommendation and removed him from service, on 24-1-1952.

(3.) The main contention of Mr. R. K. Das in support of this application is that the explanation submitted by the petitioner on 31-12-1950, to Mr. Shaw was not placed before the Government, namely the Minister for Works, the Chief Minister, and the Governor, and that they did not come to a find- ing that the charges were proved. He further urged that the notice of Mr. Shaw dated 29-51951 (quoted above) was issued by him, on his own responsibility and was not issued after obtaining the appro- val of the Government. Mr. R. K. Das urged that the notice under Clause (2) of Article 311 should issue under the direction of the authority who is compe- tent to pass the proposed punishment on the deliniquent public servant and where such a notice has been issued by an authority subordinate to the competent authority, without the latter's direction, it would be invalid.