GOPI KISHORE PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this case, the petitioner Gopi Kishore Prasad has moved the High Court for the issue of a writ in the nature of certiorari to quash an order of the Government of Bihar dated 23-7-1953 discharging the petitioner from Government service as Probationary Sub-Deputy Collector.

(2.) The petitioner Gopi Kishore Prasad was appointed as a temporary Sub-Deputy Collector in the year 1944 and in 1946 the petitioner was vested with the powers of a first class Magistrate. On 8-12-1947 the petitioner was appointed to a Substantive post in the Bihar Subordinate Civil Service and was placed on probation. On 4-11-1952 the Government of Bihar issued a notice to the petitioner asking him to show cause why his services should not be terminated. The notice is annexure 'A' to the application. In this notice the Government say that the petitioner had earned notoriety as a corrupt officer while he was posted at Jamshedpore, and that his judicial work was carefully scrutinized by the Government and in eight criminal cases the orders of acquittal passed by the petitioner were found to be perverse. The notice further states that from May 1949 to March 1951 the petitioner was posted at Nawada and there also his reputation was bad. The petitioner was transferred later on to Gaya and his work at Gaya was also found unsatisfactory. The petitioner made a representation to the Government in response to the notice. The petitioner denied the charges of corruption and bribery and requested the permission of the Government to inspect the records of the cases which he had decided at Jamshedpore. The petitioner also prayed for an opportunity to cross-examine the Collector and the Commissioner who had sent adverse reports against him. The petitioner further submitted that he should be given a copy of the confidential reports of the Collector and the Commissioner upon which the notice of the Government was based. But the Government of Bihar permitted the petitioner only to examine the records of the criminal cases which he had tried at Jamshedpore. The Government did not permit the petitioner to inspect the confidential reports sent by the Collector and the Commissioner and the Government also declined the request of the petitioner that he should be permitted to lead evidence or to cross-examine the Collector and the Commissioner upon whose report the Government had taken action. On 23-7-1953 the Government of Bihar passed an order terminating the services of the petitioner as a Probationary Sub-Deputy Collector. It was alleged on behalf of the petitioner that the Government of Bihar had no justification for withholding the confidential reports from being shown to the petitioner during the proceedings. It is further alleged that the procedure contemplated by Article 311(2) of the Constitution was not followed by the Government and the petitioner was entitled to a second notice in terms of the language employed in that article. It was also submitted that the petitioner should have been allowed to examine witnesses on his behalf and also to cross-examine the Collector and the Commissioner upon whose confidential reports the notice of discharge was based. It was stated on petitioner's behalf that Rule 55 of the Civil Services (Classification, Control and Appeal) Rules applied to his case and the full procedure contemplated by that article should have been followed. It was therefore argued that the order of discharge passed by the Government dated the 23rd July 1953 was illegal and ultra vires on the ground of all these irregularities of procedure. (3) The first submission made on petitioner's behalf is that the procedure contemplated by Rule 55 has not been followed and the order of discharge passed by the Government was therefore illegal and void. In support of his argument Mr. Baldeva Sahai referred to Rule 55 which states--

(3.) The next submission made by the learned counsel for the petitioner is that in any event the confidential reports upon which the notice of discharge was made should have been given to the petitioner. It was contended that the petitioner should have been given a fair opportunity of meeting the allegations before the government decided to pass the orders of discharge. It was argued that there was a violation of natural justice in this case and the order of discharge must therefore be quashed by a writ of certiorari. In my opinion the argument addressed by the counsel is correct It appears from Annexure "A" of the application that the notice of discharge was based upon certain reports received by the Government while the petitioner was employed as Sub-Deputy Collector at Jamshedpur. Annexure "C" also states that "confidential enquiries were made and it was found that while employed at Jamshedpur Mr. Gopi Kishore Prasad had the reputation of being a corrupt officer". It was argued by the Government Pleader on behalf of the respondent that the annual confidential reports for the years 1949 to 1952 were communicated to the petitioner and in support of his contention the Government Pleader referred to annexure 'D'. It may be true to say that the annual confidential reports were communicated to the petitioner bat the notice of discharge dated 4-11-1952 is not based merely on the annual confidential Deports but also on certain inquiries made at Jamshedpur and the confidential reports submitted by the officers making these inquiries. The complaint of the learned counsel for the petitioner is that these special confidential reports were not made available to the petitioner before he was asked to show cause against the notice of discharge. The Government Pleader produced during the hearing of this case the original record of the proceedings in the Secretariat. It appears from these proceedings that the order of discharge was passed by the Government not merely upon the annual confidential reports of the Collector and the Commissioner but also upon two special reports made by the Commissioner of Chotanagpur Division dated 31-5-1952 and by the Deputy Inspector General, Criminal Investigation Department, dated 16-6-1951. These two special reports contain matters which are highly relevant and prejudicial to the petitioner and in my opinion, these reports should have been shown to the petitioner or their contents communicated to him before he was asked to show cause against the notice of discharge. It is a matter of general principle that a person should not be condemned on ex parte statements and no order of removal or discharge should be passed against a Government servant unless he has been given a real and effective opportunity of refuting the statements upon which his notice of discharge is based. This follows from the principle of law embodied in the maxim 'audi alteram partem'. It is true that the final order of discharge of a probationer is an administrative act but the proceedings leading to that final order are quasi judicial in character, and the principle embodied in the maxim 'audi alteram partem' therefore applies to such proceedings. This view is borne out by the judgment of Lord Loreburn in -- 'Board of Education v. Rice', (1911) AC 179 (A).