JUDGMENT
Uday Sinha, J.
1. By this application under Articles 226 and 227 of the Constitution the petitioner prays (i) that the entire departmental proceeding against him; and (ii) the order of suspension dated 29-10-1971 should be quashed and the respondents be directed to forbear, from proceeding any further against him on the basis of the enquiry held by the Commissioner, Departmental Enquiries. The petition is founded on the facts hereinafter stated.
2. The petitioner is a member of
the Bihar State Police Force having been appointed as a Deputy Superintendent of Police, on probation. For some reasons or the other, into which it is not necessary for me to delve, the petitioner was not confirmed in his office till the 7th of March, 1958. As a consequence of the petitioners delayed confirmation, his promotion to the higher ranks was also held up. The petitioner avers that he filed an application before this Court which was numbered as C. W. J. C. No. 691 of 1971 = (reported in 1973 Lab IC 1015) (Pat) in which the following prayers had been made-
“(a) to confirm the petitioner with effect from the due date i. e. 7-3-1958;
(b) to fix the pay of the petitioner after permitting him to cross the efficiency bar in terms of his confirmation with effect from the date or, alternatively in terms of the Accountant General’s letter contained in Annexure 3 and to pass all
other consequential orders in respect of arrears etc.;
(c) to consider the case of petitioner and to promote him as Superintendent of Police/Additional Superintendent of Police and to accord to him seniority in terms of his place in the gradation list of the Deputy Superintendent of Police.” In the said application the prayer at (a) was refused and the prayer at (c) was not pressed. This Court while hearing the application was pleased to allow the application in regard to prayer (b) by judgment dated the 19th of May, 1972. The decision of this Court proceeded upon the footing that the State Government must treat the petitioner as if he had crossed the first efficiency bar on the 7th of March, 1958 on his confirmation and, therefore, all other consequential reliefs following the reliefs must follow expeditiously. The main point urged and accepted in that writ application reported in 1972 Pat LJR 548 = (1973 Lab IC 1015) was that the State Government was not entitled to take into account the adverse remarks against the petitioner for the period subsequent to 1958 when he was due to cross the efficiency bar, in ordinary course, as a matter of right. The petitioner contends that the State Government took this defeat in the High Court in the said writ application to heart and acted with vengeance in initiating the present departmental proceeding against the petitioner. Thus according to learned counsel for the petitioner, the disciplinary proceeding was tainted with mala fide and, therefore, the entire subsequent acts of the State Government must be struck down as suffering from the venial sin of mala fides.
3. On the other hand, the stand
of the respondents to this application is that it was not correct to say that the departmental proceeding had been initiated against the petitioner, as the State Government was annoyed with the conduct of the petitioner in filing the writ application. It has been stated in paragraphs 3, 4 and 5 of the counter-affidavit filed on behalf of the respondents that the allegations which formed the basis of the charges against the petitioner were being investigated by the Vigilance Department and the Inspector-General of Police and after investigation the decision was taken to place him under suspension and to start departmental proceeding against him. According to the State, the proceeding could not be started prior to October, 1971, but the charges related to the years 1963, 1964
and 1965. The allegations of facts took the final shape of charges in the year 1971 although the formalities leading to the framing of the charges against the petitioner was initiated much prior to 1971 and, therefore, it was contended by learned Government Advocate for the State that the proceeding could not be said to be mala fide by any stretch of imagination.
4. In order to appreciate the contention of the learned counsel for the petitioner, it is necessary to take note of certain incidents. In ordinary course the petitioner would have crossed his first efficiency bar in 1958, but as he had not been confirmed till then, no order for crossing the efficiency bar was passed, The Government, seemed to be of the view that since there were serious allegations against the petitioner, no order for crossing the first efficiency bar could be passed despite the fact that those allegations saw the light of the day in 1964 and under that mistaken view of the law. Government did not consider it proper that the petitioner should be permitted to cross the efficiency bar. In that state of affairs the petitioner was forced to file an application for issue of a writ of mandamus in 1971, The application was filed before this Court on 19-5-1971 and it was admitted on the 5th of July, 1971. During the pendency of the aforesaid writ application the State filed a counter-affidavit on 8-9-1971 in which the stand of the State Government was set forth as stated above. On 6-10-1971 charges were framed against the petitioner. Those charges were served on him on 29-10-1971 and he was put under suspension from that very date. On the 30th of November 1971 the petitioner filed a written defence before his employer. Not being satisfied with his explanation the State Government appointed Shri R. Nath, I. A. S. as the Commissioner of Enquiries and on 29-12-1971 the charges were again served on the petitioner by the Commissioner of Enquiries. These charges are contained in Annexure 1 to finis application and they were identical in all respects to the charges served on the petitioner on 29-10-1971. On 19-5-1972 the previous writ application (C. W. J. C No. 691 of 1971) = (reported in 1973 Lab IC 1015) (Pat) was allowed, as stated earlier. Consequent upon the decision of this Court the then Inspector-General of Police, Shri R. N. Roy recommended to the State Government for withdrawal of the suspension of the petitioner. But it
appears that his recommendation was not accepted by the State Government and the petitioner continued to remain under suspension. The Commissioner for Enquiries took evidence of two witnesses. On 24-4-1973 he heard arguments on behalf of the parties. The petitioner also filed a written defence before Shri R. Nath, I. A. S., after arguments had been heard. On 15-5-1974 the Commissioner for Enquiries gave his findings on the charges framed against the petitioner. The findings of the Enquiring Officer have not been filed by the petitioner, but they have been annexed as Annexure B to the counter-affidavit filed on behalf of the respondents. According to the Enquiring Officer, charges 1 (Ka) and Kiha had not been established at all. Charges 1 (Ga), Gha, Angaya ¼M+½ and 2 (Kha) had been fully established. Charges 2 (Ka) and (Ga) had been partially established against the petitioner. After the report of the Enquiring Officer the State Government accepted the report in its entirety and issued notice upon the petitioner to show cause why he should not be dismissed from service. The notice in terms of Article 311 (2) along with a copy of the findings of the Enquiring Officer were served on the petitioner on 15-5-1972. This notice has been annexed and marked as Annexure A to the counter-affidavit. This notice is the focal point of attack by learned counsel for the petitioner in this application although no prayer has been made in categorical terms and the real point which hurts the petitioner lay in the web of other reliefs claimed in this application. In the background of these facts the contentions raised on behalf of the petitioner will have to be considered.
5. The point most vehemently urged by learned counsel for the petitioner was that the departmental proceeding against the petitioner was tainted with mala fides. The mala fides of the State Government, it is alleged, consist in initiating a disciplinary proceeding merely because the petitioner had the hardihood to move the High Court against the actions of the State Government. Before considering whether the petitioner has discharged his obligations of proving mala fides on the part of State Government, it is useful to remember that the burden of establishing mala fides is very heavy on the person who alleges it. The observations of Bhagwati, J. in this connection may be quoted with profit in E. P Royappa v. State of Tamil Nadu, (AIR 1974 SC 555), in paragraph 92:–
“Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary end unusual occurrence and if these charges ere true, they are bound to shake the confidence, of the people in the political custodians of power in the State, and therefore the anxiety of the Court should be all the greater to insist on e high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against Ministers and other High authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up–these considerations are wholly irrelevant in judicial approach–but because otherwise, functioning effectively would become difficult in a democracy. It is from, this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.”
The allegation of mala fides has been made in paragraphs 6, 12, 15 and 16 of the petition. The allegation of mala fides in initiating the departmental proceeding has been vehemently controverted in the counter-affidavit filed on behalf of the respondents. Specific mention in this connection may be made of paragraphs 3, 4, 5 and 16 of the counter-affidavit. Upon the materials placed by the petitioner before this Court, and applying the standard of proof laid down by the Supreme Court referred to above, the allegation of mala fides is absolutely unfounded. The only
basis for sustaining the charge of mala fides is that the petitioner was suspended and charges framed against him while the writ application (C. W. J. C. No. 691 of 1971) was pending before this Court. This, in my view, is too slender a basis for the petitioner to bank upon. The principle contained in the maxim Adhoc Procter Ergo Procter is not a correct basis to proceed upon. It is true that the charge was served on the petitioner and, he was suspended after the admission of the writ application but it is difficult to accept that the filing of the writ application was the cause for the disciplinary action taken against the petitioner. There should be no difficulty in appreciating that a charge cannot be trumped up over night specially against a gazetted servant of the State. Certain formalities have got to be gone through and, therefore, the fact that the charges were framed and served on the petitioner in October, 1971 shows that it must have been preceded by long drawn action of the Slate Government in coming to a decision as to whether any action and/or what action should be taken against him. It will require a great degree of naivete to accept that just because the petitioner had moved this Court by a writ application the State Government should have forborne from initiating any departmental proceeding even if there was substantial foundation for it. The materials placed by learned counsel for the petitioner were so inadequate that the submissions urged by him were not worthy of any consideration, but in order to satisfy our conscience, learned Government Advocate was requested to get the file relating to the disciplinary proceeding against the petitioner. We have looked into the file shown to us by Government Advocate and I am satisfied that the submissions urged by Mr. Ghosh are absolutely unfounded. The enquiry into the allegations of facts against the petitioner had commenced in August, 1963. Draft charges in regard to the lapses of the petitioner were framed in December, 1968. It is well known that official machinery is a slow process and thus the matter dragged on until 1-9-1971 when the then Chief Minister Shri Bhola Paswan Shastri approved the suspension of the petitioner and the drawing up of disciplinary proceeding against him. The undue delay on the part of Government in finalization of drawing up of departmental proceeding in respect of matters appertaining to 1964 and 1965, has perhaps prompted the petitioner in alleging mala fides. I am satisfied that the charges levelled against the
petitioner were not the result of any mala fide intention on the part of the State authorities on account of the petitioner having filed the writ application before this Court. This is one of those type of cases in relation to which the Supreme Court observed that the allegations of mala fides are much, easily made than proved.
6. The file relating to the petitioner’s case must have passed through several hands in the Secretariat and, therefore, a more explicit averment was required of the petitioner about the person or persons whose ire was piqued because, of the petitioner’s attitude of filing a writ application before this Court. The petitioner cannot for a moment level the charge of mala fide act due to annoyance on the then Inspector-General of Police since the latter had recommended the withdrawal of the order of suspension against the petitioner. The final decision to initiate the departmental proceeding was taken by the Chief Minister himself. In the absence of even a whisper against the then Chief Minister, it is not possible to hold that the Chief Minister was annoyed by the conduct of the petitioner in filing the writ application specially as he had assumed office shortly before the order in question was passed. Nor, can any charge be levelled at the door of the then Chief Secretary, and, therefore, the allegation that the proceeding initiated against the petitioner was a mala fide one has just to be stated to be rejected. It is needless to point out that there is no question of attracting the docrtine of malice in law in the present case and the allegation of malice in fact, has no legs to stand upon. In that view of the matter and for the reasons stated above, I see no substance in the submission of learned counsel for the petitioner.
7. The next submission of learned counsel for the petitioner was that the findings recorded against the petitioner were vitiated because he was not given reasonable opportunity to defend himself. In this connection learned counsel for the petitioner specifically referred to two lapses of the inquiring officer which amounted to denial of a reasonable opportunity of defending himself. It was contended by Mr. Ghosh that the case diary in regard to Mohiuddin Nagar Police Station case not having been received in spite of several reminders and in spite of the fact that the inquiring officer had observed that he would be forced to draw an adverse inference against the department if the case diary was not received, it was wrong on the part of the inquiring officer to hold the petitioner guilty of the charges levelled against him.
8. The submission has relation only to charge No. 2 (Ka). So far as this charge is concerned, the inquiring officer has dealt with the matter in paragraph 13 of his report. This charge has been only partially accepted. The inquiring officer has held that the allegation of animosity had not been established, but has held that there was no justification for ordering the arrest of the persons mentioned in the charge. It is true that the case diary of the connected case was not produced before the inquiring officer, as it had been destroyed earlier, but he had taken note of the contention of the petitioner before him that he did order the arrest of the accused. The petitioner had accepted before Shri R. Nath that he had ordered the arrest on the basis of an anonymous letter. Something can certainly be said in regard to the finding in relation to this charge in favour of the petitioner, but I would refrain from giving any finding as to whether the finding of the Inquiring Commissioner in this behalf was justified or not because my observations may prejudice the authorities in coming to an independent conclusion. The petitioner has been asked to show cause why he should not be dismissed. The petitioner is entitled, in response to the notice, to show that the charges had not been established in addition to showing that the punishment proposed to be imposed upon him was unwarranted. In that situation, the State Government will undoubtedly take into account the charges against the petitioner, the evidence in relation to it and the findings of the inquiring officer and to come to its own conclusion whether the charge had been established or not Even if I were to hold that charge 2 (Ka) had not been established and that the findings of the inquiring officer were unjustified, the entire inquiry conducted by the inquiring officer, Shri R. Nath cannot be held to be vitiated because of the infirmity relied upon by learned counsel for the petitioner in this behalf.
9. It was also contended on behalf of the petitioner that no departmental inquiry in terms of Article 311 (2) of the Constitution had been held in the instant case. Reliance was placed upon the case of Khem Chand v. Union of India, (AIR 1958 SC 300). Having given my deepest consideration to submission made on behalf of the petitioner, I have failed to appreciate the infirmity in the proceeding against the petitioner. Since reliance has been placed on the case referred to above, it is useful to quote the observation made in paragraph 19 of the judgment of S. R. Das, C. J. which runs as follows:–
“To summarise: the reasonable opportunity envisaged by the provision under consideration includes;
(a) An opportunity to deny this guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or anv other witnesses in support of his defence; and finally
(c) an opportunity to make hie representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.”
I shall, therefore, proceed to examine whether the tests laid down above have been fulfilled in the present case or not. There can be no doubt that prior to the initiation of the proceeding against the petitioner he was asked to explain what he had to say in regard to the allegations against him. These charges were served on the petitioner on the 29th of October, 1971 and in reply thereto he gave his explanation, obviously denying those charges. The State Government not being satisfied with his explanation appointed a Commissioner for inquiry who again served the charges framed against the petitioner. It may be mentioned that the charges in the departmental proceeding (Annexure 1) were exactly the same as those served on the 29th of October, 1971 on the petitioner. After the charges had been framed in the departmental proceeding which were served on him, the petitioner showed cause before Shri R. Nath. Every bit of paper relied upon by the department as well as those required by the petitioner were served on him. The only paper not supplied to the petitioner was the copy of the case diary of Mohiuddin Nagar Police Station case. Two witnesses were examined in support of the proceeding and they were cross-examined on behalf of the petitioner. The petitioner had
the opportunity of examining his witnesses or examining himself, but he did not choose to do so. There is no allegation by the petitioner that he was not permitted to make his submission after the closure of the evidence. In that state of affairs, the conclusion is irresistible that the first condition laid down by S. R. Das, C. J. in Khem Chand’s case had been fully complied. At one stage of the arguments it was submitted by Mr. Ghosh for the petitioner that no defence witness was examined. Nothing has been shown to this Court to come to the conclusion that the petitioner wanted to examine any defence witness, but was prevented by the inquiring officer from examining any witness. The allegation in that behalf has not been substantiated before us. It was open to the petitioner to either examine himself or to examine any defence witness. If he did not choose to do so, the inquiry cannot be said to be vitiated on that score. Thus condition (b) also laid down in Khem Chand’s case cannot be said to have been contravened. Learned counsel for the petitioner also placed reliance upon the case of State of Madhya Pradesh v. Chintaman Sadashiva, (AIR 1961 SC 1623). With great respect I have failed to understand in what manner this case helps the petitioner. All the tests laid down in that case for ascertaining if an officer had been given reasonable opportunity or not are fully complied in the instant case. The entire evidence was adduced in his presence. He (had the opportunity of cross-examining the witnesses as well as the opportunity to examine his own witnesses or to examine himself. The only lacuna pointed out before us, if it can be said to be one, was that the case diary of Mohiuddin Nagar Police Station case could not be made available to the petitioner. I have dealt with this matter earlier and I do not intend to dilate upon it any further. Even if the objection of the petitioner on this score is justified that would affect only one of the charges and not the entire inquiry, but I must make it absolutely clear that in other respects the rules of natural justice have been fully complied in the instant case.
10. Learned counsel for the petitioner also placed reliance upon the case of R. v. Thames Magistrate’s Court Ex Parte Polemis, (1974 (2) All ER 1219) in support of his contention that failure to provide reasonable opportunity of defending oneself militates against the principle of audi alteram partem. On the peculiar facts and circumstances of that case, it was held by their Lordships that there
had been a denial of reasonable opportunity to defend. In the circumstances set out in that case, there could be no doubt
that the accused had been denied the opportunity to defend himself. But that decision does not help the petitioner in this case in any manner. Learned counsel for the petitioner also placed reliance upon the case of Md. Sarfuddin v. State of Bihar, (1974 BBCLJ 738) where their Lordships struck down the dismissal of a Government servant on the ground that the principles of natural justice had been violated by not providing an opportunity to delinquent officer to adduce evidence in defence of his case. There can be no quarrel with the principles enunciated and decided by their Lordships in that case, but there can be no question of denial of natural justice to the petitioner in the instant case, as I have already discussed above.
11. It was then contended on behalf of the petitioner that the notice (Annexure ‘A’) issued on the petitioner should be quashed, as there was no evidence to sustain the charges. It was contended that only two witnesses had been examined in the proceeding, namely, Jugal Kishore Singh and Gopal Karamkar and since their evidence did not prove the charges, the findings of the inquiring officer were based on no evidence and, therefore, the notice (Annexure ‘A’) issued in pursuance thereof was without any basis and fit to be quashed. Learned counsel for the petitioner placed reliance upon the case of Union of India v. H. C. Goel, (AIR 1964 SC 364). The position in law cannot be doubted as laid down in the authority relied upon by learned counsel for the petitioner that the High Court in its writ jurisdiction can examine whether there is any evidence to sustain the charges levelled against a delinquent officer and if there is no evidence to sustain them, the High Court may quash the charges or the order of dismissal. But if there is evidence to support the charges, the sufficiency or adequacy thereof is not a matter into which the High Court can pry. Learned counsel for the State as well has not disputed the position in law in this regard. It is, therefore, necessary to consider whether there was any material in support of any of the charges.
12. Learned counsel for the petitioner has contended that only two witnesses were examined in the case, namely, Jugal Kishore Singh and Gopal Karamkar. The evidence of Gopal Karamkar
was relevant only in relation to charge 2 (Ka) and Jugal Kishore Singh was the Deputy Superintendent of Police attached to the Vigilance Department, who had enquired into the allegations against the petitioner. Mr. Ghosh for the petitioner contended that the evidence of Gopal Karamkar did not prove any of the charges and Jugal Kishore Singh by himself did not prove the correctness of any of the charges and, therefore, there was no evidence to substantiate any of the charges framed against the petitioner. I regret, I am unable to accept this submission of learned counsel for the petitioner. The evidence of Gopal Karamkar, as stated earlier, was relevant only in regard to charge 2 (Ka). This charge has been held by the inquiring officer to have been not proved. But the charges which have been held to have been proved are charges for which no oral evidence was required. The findings are based on ad-missions by the petitioner himself. Those admissions are contained in the cause shown by the petitioner and in his written argument. In that view of the matter, if no oral evidence was taken, the inquiry and the findings arrived therein cannot be said to be based on no evidence. To substantiate what I am saying the position in regard to charge 1 (Ga) may be considered. This is one of the charges established against the petitioner. This charge sets forth that he ignored the order of the Superintendent of Police dated 18-7-1968 to remove a section of the armed police from the guest house to the police station. In his explanation the petitioner has accepted that he did not carry out the orders of the Superintendent of Police, but tried to justify the retention of the armed police at the guest house. Whether the petitioners’ decision was correct or incorrect is not the point, but the grievance of the charge is that he did not carry out the order of his superior officer, the Superintendent of Police. If the stand of the petitioner during the inquiry had been that he did carry out the directions of the Superintendent of Police or that no such direction had been given to him, taking any evidence on those aspects would have been essential, but since the petitioner did not dispute the fact that the Superintendent of Police had passed orders for removal of the armed police and since it was not denied that he did not carry out the order, there was no question of taking any evidence. The finding has been arrived at by the inquiring officer on the basis of the charge levelled against
him and his explanation thereto. In that view of the matter, the finding in regard to charge 1 (Ga) cannot be said to be without any basis. Similarly in relation to charge 2 (Gha) the stand taken by the petitioner during the inquiry was that it was not possible for a Sub-Divisional Officer to know whether a constable was residing in a rented house or at any other place unless the officer-in-charge of a police station or an Inspector of Police brought it to his knowledge. Whether the stand taken by the petitioner was correct or not is again not the point. But in order to find out whether the charge had been established or not no evidence was required to be adduced to find out whether it had been proved or not. The charge levelled was that he did not know the state of affairs to be existing at the police station. The answer was that it was not possible for him to know. Therefore, it was admitted that he did not know where the constables were residing. The finding arrived at on the basis of the charge and the admission of the petitioner cannot be said to be without any basis. There is no rule or law either in any statute or in the concept of natural justice that evidence must be recorded in regard to every charge. Departmental proceedings are disposed of on the basis of materials brought on record and not upon evidence as understood under the Indian Evidence Act. There can be no doubt about the position that if the allegations of fact are accepted, whatever may be the implications thereof, there is no necessity of adducing either oral or documentary evidence. These two charges, therefore, cannot be said to be without any evidence. If I may say so, the admission of the petitioner itself was a material upon which the inquiring officer could base his findings.
13. Charge 2-Angaya ¼M+½ stated that he had not supervised Seraikela P. S. Case No. 1 (7) 63 properly and that his supervision note was found perfunctory. In relation to this charge the inquiring officer has based his findings upon the supervision note of the petitioner and the supervision note of the Superintendent of Police dated 18-7-1963. The explanation of the petitioner itself shows that his supervision was found to be perfunctory by the Inspector General of Police as well. The petitioner had been supplied copies of all relevant documents on which the inquiring officer had placed reliance. There is nothing to show that the petitioner had asked for any particular document in support of this charge. Thus in this case as well there was no occasion for recording any evidence in regard to this charge.
14. In charge No. 2 (Kha). it was stated that the petitioner had failed to supervise a case under Section 396 of the Indian Penal Code. The charge of failure to supervise was not denied by the petitioner. He only tried to justify his conduct in not supervising. The justification given by him was that since the case had been supervised by the Additional Superintendent of Police, there was no point in his supervising the case again. The case was under Section 396 of the Indian Penal Code and the Additional Superintendent of Police had supervised the case eight days after the occurrence. The point for consideration before the inquiring officer was whether the charge was correct or not. I dare say, a case under Section 396 of the Indian Penal Code is quite a serious case and the police officer incharge of a Sub-Division would be well advised to look into such cases as soon as possible. But the point remains that there was no oral evidence worth adducing on this charge and the finding on this charge as well proceeded upon the admission made by the petitioner himself.
15. From the above discussion, it is obvious that the charges which had been held to have been fully proved against the petitioner proceeded upon the admitted, position between the prosecutor and the delinquent officer. In that view of the matter, I am unable to hold that there was no material before the inquiring officer to come to the conclusions mentioned in his report, since it is absolutely proper to base a finding safely upon the admissions of a delinquent officer. If any authority is needed reference may be made to State of U. P. v. Om Prakash Gupta, (AIR 1970 SC 679) in which such a course was approved. The submission of learned counsel for the petitioner, therefore, in that behalf is unfounded and must be rejected. Learned counsel for the petitioner in continuation of the same point urged that in the absence of any evidence to support any of the charges, the notice (Annexure ‘A’) issued upon the petitioner was without jurisdiction. In my view, this submission also is unsustainable because, I have shown above, there was adequate material before the inquiring officer to come to the findings to which he arrived.
16. It was then submitted by Mr. Ghosh on behalf of the petitioner that the State Government while issuing the notice (Annexure ‘A’) had not stated which finding it had accepted in the report of Shri R. Nath. Commissioner of Enquiries and, therefore, the petitioner was not in a position to show cause against his dismissal. The same proposition was put by Mr. Ghosh in other words by saying that the State Government not having indicated which finding it had accepted and which it had not, while calling upon the petitioner to show cause against dismissal it was not possible for the petitioner to submit his explanation in terms of Annexure ‘A’. A perusal of Annexure ‘A’ gives a clear idea that the State Government had accepted the report of Shri R. Nath as a whole. It shows clearly that the State Government ‘had accepted the findings on charges on which the petitioner had been exonerated as well the findings on charges for which the petitioner had been held to be guilty. It is also obvious that the State Government had not disagreed with those findings which were in favour of the petitioner. Thus there can be no doubt that the petitioner was called upon to explain only in regard to charges for which he had been held guilty. In my view, the fact that Annexure ‘A’ does not specify which of the findings had been accepted by the State Government is not such an infirmity as to render it as one contrary to Article 311 (2) of the Constitution. The point raised by Mr. Ghosh was specifically considered and rejected by the Supreme Court in AIR 1963 SC 1612, (State of Assam v. Bimal Kumar) where their Lordships stated as follows:–
“The argument is that unless this course is adopted, it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusions both in regard to the guilt of the public officer and the punishment which his misconduct deserved. It may be conceded that it is desirable that the dismissing authority should indicate in the second notice its concurrence with the conclusions of the enquiring officer before it issues the said notice under Article 311 (2). But the question which calls for our decision is if the dismissing authority does not expressly say that it has accepted the findings of the enquiring officer against the delinquent officer, does that introduce such an infirmity in the proceedings as to make the final order Invalid ? We are not prepared to answer this question in the affirmative. It seems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authority as to the
punishment that should be imposed on him, obviously and clearly implies that the findings recorded against him by the
enquiring officer have been accepted by the dismissing authority, otherwise there would be no sense and no purpose in issuing the notice under Article 311 (2).”
The observations of the Supreme Court fully and squarely meet the submissions of Mr. Ghosh in this behalf and no further discussion is called for.
17. Learned counsel for the petitioner then contended that among the charges framed against the petitioner he has been exonerated of the most serious ones and, therefore, the punishment of dismissal from service was not warranted. He contended that it was open to this Court to look into the seriousness of the allegations and to adjudicate whether the proposed punishment was commensurate with the allegations proved against him. I regret, I am unable to accede to this contention for two reasons. Firstly, the stage of imposition of punishment hag not reached as yet. The State Government has only issued notice upon the petitioner to show cause why he should not be dismissed. Upon considering the cause, if any, that may be shown by the petitioner, the State Government may not decide to, dismiss him and, therefore, it is premature for this Court to give a verdict whether the petitioner can be visited with the punishment of dismissal or not. Secondly, the question of punishment which should be imposed upon a delinquent officer is foreign to this Court in its writ jurisdiction at any rate at this stage. If a particular punishment can be legally imposed for the delinquency which has been proved against a delinquent officer, the jurisdiction of the High Court is ousted because that is within the exclusive domain of the punishing authority. If any authority is required for this proposition reference may be made to the case of State of Orissa v. Bidyabhushan Moha-patra, (AIR 1963 SC 779) where it was observed that if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant This position in law was approved by the Supreme Court in Union of India v Sardar Bahadur. (1972 UJ (SC) 126 at p. 131) = (1972 Lab IC 627 at p. 631). It was also approved by the Supreme Court in State of U. P. v. Om Prakash, (AIR 1970
SC 679). Thus upon the basis of the authorities mentioned above. I (have no doubt in my mind that it is not for this Court to determine what should be the punishment that should be imposed upon the petitioner.
18. Learned counsel for the petitioner attempted to wriggle out of the difficulty created in his way by the Supreme Court decision in AIR 1963 SC 779, (Supra) by contending that it puts two limitations upon the High Court, namely, the punishment must be capable of being legally imposed and secondly that the misdemeanour must be of substantial character. There can be no doubt that the punishment proposed to be imposed upon the petitioner can be lawfully imposed and thus condition No. (1) is fully satisfied. So far as the second limitation is concerned, I regret, I am unable to agree with the contention that it is open to this Court to adjudicate and to come to a conclusion whether the misdemeanour is substantial or insubstantial. But even if I were to agree to accede to the submission of learned counsel for the petitioner, I would refrain from doing so in the instant case in the interest of the petitioner, since any verdict by this Court regarding the gravity of the misdemeanour might adversely prejudice the petitioner. We were invited by learned counsel for the petitioner to examine and hold that there was no substantial misdemeanour involved in any of the charges against the petitioner to merit his dismissal, but for the reason stated above, I consider it inadvisable to go into that aspect of the matter. Although the State Government has issued notice calling upon the petitioner to show cause why he should not be dismissed, it will be open to it to impose whatever punishment it considers proper taking in view the gravity of the charges established against the petitioner.
19. It was then contended that in 1964 the then Inspector General of Police Shri S. P. Verma had ordered that in view of the allegations contained in Charges 1 (Ga), 1 (Gha) and 1-Angeya ¼M½Government’s displeasure may be communicated to the petitioner and, therefore, the drawing up of the proceeding thereafter was an indication of the mala fide character of the proceeding drawn up against the petitioner. This submission ignores that on the 20th of August. 1963 itself the same Shri S. P. Verma had ordered that “if there is any truth in the allegation, Dy. Superintendent of Police should be suspended and dismissed. I cannot think of any place where he could be fixed up without running the risk of his indulging in any serious mal-practice, if he is in fact, an officer of this type”. Thus the submission made on behalf of the petitioner has no substance and the proceeding cannot be said to be tainted with mala fide.
20. Mr. Ghosh for the petitioner contended that in 1972 Shri R. N. Roy, the then Inspector General of Police had recommended that the suspension of the petitioner from service should be terminated. He, therefore, contended that the suspension order having been withdrawn, the proceeding against the petitioner must be deemed to have lapsed with the suspension. Therefore, the entire subsequent actions in the proceeding must be quashed. This submission has only got to be stated to be rejected for various reasons. Firstly, that the suspension of the petitioner from service was never withdrawn. The then Inspector General of Police had only recommended withdrawal of the suspension, but no such order withdrawing the suspension was passed by the State Government presumably because the State Government did not accept the recommendations of the then Inspector General of Police. Secondly, even if the suspension order had been withdrawn, I see no reason why the entire depart-mental proceeding should have lapsed with the withdrawal of suspension. It is not necessary that whenever a Government servant is proceeded against in a departmental proceeding, he must be suspended. A delinquent officer may be proceeded against without putting him under suspension. In support of his proposition learned counsel for the petitioner placed reliance upon the case of Tarak Nath Ghosh v. Union of India, (C. W. J, C. No. 1326 of 1969 — disposed of on 26-6-1973). But I am afraid, this decision is absolutely contrary to the contention of Mr. Ghosh. It was observed therein by S. P. Singh, J. as follows:–
“It has also to be held that the order of suspension passed against him ipso facto came to an end on the date the petitioner superannuated. However, it is not possible to accept the second part of his contention under consideration that the departmental proceeding also must be held to have terminated along with superannuation of the petitioner on 1st of October, 1972. The departmental proceeding will continue and should be terminated in accordance with and as requir-ed by Rule 6 of 1958 Rules.”
Therefore, there is no substance in this contention of learned counsel for the petitioner as well.
21. No other submission having been made on behalf of the petitioner and the contentions raised being devoid of any substance, I find no merit in this application and it is accordingly dismissed, but in the circumstances of the case, I shall make no order as to costs.
K.B.N. Singh, J.
I agree.