JUDGMENT
P.V. Dixit, J.
1. This is an appeal from a decision of the District Judge of Bhopal upholding the decree of the First Sub-Judge of Bhopal declaring that the suspension and removal of the plaintiff-respondent from the service of the former Bhopal State was illegal, ultra vires and inoperative and that the plaintiff-respondent still continued to be in service and in the post and cadre which he held at the time of his suspension.
2. The material facts are that the plaintiff entcred the service of the former Bhopal State in 1948. After working in various capacities, he was appointed as a Superintendent in the Home Department on 14-6-1952. In’ August 1952, the Bhopal Government received a report that the respondent Ladli Saran had misbehaved with one Miss Nirmala Kumari on 21-8-1952 at the Laxmi Talkies in ,Bhopal. On receipt of this report, the Chief Commissioner made an order on 24-9-1952 suspending Ladli Saran and directing that an inquiry be made into the conduct of Ladli Saran by the Chief Secretary in accordance with the provisions of the Civil Services (Classification, Control and Appeal) Rules. An enquiry was accordingly held. During the course of enquiry Ladli Saran cross-examined the witnesses produced to support the charge of misbehavior with Nirmal Kumari on 21st August 1952 and was also permitted to examine on his behalf such of the witnesses who were under the administrative control of the Bhopal Government and to produce other witnesses whom he wished to examine to rebut the charge. At the end of the enquiry, the Chief Secretary reported to the Government on 19th November 1952 that the charge against Ladli Saran that on 21st August 1952 he ‘indulged in conduct unworthy of a public servant and a gentleman” by molesting the modesty of one Kumari Nirmala, daughter of Shri Har Narain, was established. A copy of the findings was given to the respondent. The findings of the Chief Secretary were accepted by the Government and thereupon a notice was served on the respondent Ladli Saran on 8th December 1952 calling upon him to show cause why he should not be removed from service for his misbehaviour and attempt to commit a criminal assault on Kumari Nirmala at Laxmi Talkies on 21st August 1952 at 6 P.M. On receipt of the charge and a copy of the findings, Ladli Saran addressed a letter to the Chief Secretary on 8th December 1952 stating that copies of the statements of all the witnesses on which the findings were based be supplied to him. The statements which Ladli Saran demanded were, however not supplied to him. On 9th December, 1952, the respondent was informed that the Chief Secretary’s findings had been accepted by the Government and all that he was required now was to show cause against the proposed punishment. Thereafter on 12th December 1952, Ladli Saran presented an application before the Chief Secretary pleading that he had a large family to maintain, that the punishment of dismissal would be a hardship to him and his family, and that he might be forgiven for his. lapse. This plea was, however, rejected and on 24th April 1953 the Chief Commissioner, Bhopal, made an order removing Ladli Saran from service. Thereafter Ladli Saran moved the Chief Commissioner for a reconsideration of his cast. But this was also rejected. Ladli Saran then filed an application under Article 226 of the Constitution in the Court of the Judicial Commissioner, Bhopal, challenging the validity of his suspension and removal from service. This petition was rejected on the ground that the petitioner had the alternative remedy of a suit. Ladli Saran then instituted a suit in the Court of the First Sub-Judge, Bhopal, alleging that the order of removal from service passed against him by the Government of Bhopal was ultra vires inasmuch as before passing this order the mandatory requirements of Article 311 of the Constitution had not been complied with. He also averred that the order of suspension was also illegal inasmuch as it amounted to his reduction in rank; that he could not be suspended without complying with Article 311(2) of the Constitution; and that no departmental enquiry could be initiated against him unless he was prosecuted in a criminal Court for the alleged attempt to assault Nirmal Kumari.
3. The learned Sub-Judge declared the suspension and removal from service of the plaintiff illegal mainly on the grounds: (i) that though the order of suspension was not an order reducing the plaintiff in rank, it was illegal and ultra vires as it was made contrary to Rule 49 of the Civil Service (Classification, Control and Appeal) Rules without there being good and sufficient reasons for it; (ii) that the order of holding a departmental enquiry against the plaintiff for an act which constituted an offence under the Penal Code was illegal and ultra vires; and (iii) that the enquiry which was conducted against the plaintiff was in violation of the prescribed rules and principles of natural justice, Article 311(2) of the Constitution and Rule 55 of the Civil Service (Classification, Control and Appeal) Rules. An appeal was then preferred by the defendant’ state in the Court of the District Judge of Bhopal against the decision of the learned Sub-Judge.
The learned District Judge took the view that the order of suspension did not amount to the plaintiff’s reduction in rank and that it was not bad or illegal as it was made for a good and sufficient reason and it was not within the competence of any Court “to scrutinise into the goodness or sufficiency of the reason found by the Chief Commissioner”. He, however, held that the plaintiff could not be punished as a result of the departmental enquiry for an act which amounted to an offence under the Indian Penal Code; that he should have been first prosecuted in a criminal Court for the alleged assault against Nirmala Kumari.
While holding that the provisions of Rule 55 of the Civil Service (Classification,’ Control and Appeal) Rules were complied with in the departmental enquiry and that in that enquiry the plaintiff was supplied with a statement of allegations on which the charge against him was based, the learned District Judge rejected the contention of the plaintiff that he was not supplied with a statement of circumstances proposed to be taken into consideration in passing orders in the case. The learned District Judge held that “besides the circumstances mentioned in the charge and the allegations against the plaintiff, no other circumstances were proposed to be taken into consideration in passing orders against him and no such circumstances existed in the case.”
The learned District Judge also came to the conclusion that a copy of the findings of the Chief Secretary was not supplied to the plaintiff and as the enquiry held after the service of notice to the plaintiff to show cause why he should not be removed from service was limited to the extent of judging “the quantum of punishment” only, the provisions of Article 311(2) of the Constitution were violated and consequently the order of the plaintiff’s removal from service was illegal. On this view, the learned District Judge upheld the judgment and decree of the Sub-Judge of Bhopal.
4. Mr. Sharma, learned Government Advocate for the State, contended that on the principle of res judicata the plaintiff’s suit was barred as in his application under Article 226 of the Constitution filed by him in the Court of the Judicial Commissioner, Bhopal, challenging the legality of his suspension and removal from service, the learned Judicial Commissioner made observations that the order
removing the plaintiff from service was made after complying with Article 311(2) of the Constitution; that the fact that the plaintiff was not prosecuted in a criminal Court for his act of misbehaviour with Nirmala Kumari did not take away the jurisdiction of the Government to institute a departmental enquiry against him for that act and to remove him from service as a result of the findings of the enquiry; that at the end of the enquiry under the charge of misbehaviour against the plaintiff, a copy of the findings holding that the charge was established along with a notice calling upon the plaintiff to show cause why he should not be removed from service was given to the plaintiff, but the plaintiff in reply only begged to be forgiven pleading that the proposed punishment of removal would be harsh; and that, therefore, in these circumstances the plaintiff could not say that he was not given a reasonable opportunity of showing cause against the action of removal from service taken in regard to him.
5. There is no force in the contention that the decision of the Judicial Commissioner of Bhopal in proceedings under Article 226 of the Constitution initiated by the plaintiff barred the present suit.
That application was rejected mainly on the ground that the plaintiff had an alternative remedy by way of a suit and, therefore, his application under Article 226 of the Constitution could not be entertained. While rejecting the application under Article 226 of the Constitution, ‘the learned Judicial Commissioner no doubt at one place made some observations indicating that according to him the petitioner was given a reasonable opportunity to meet the charge against him and that there was no violation of Rule 55 of the Civil Service (Classification, Control and Appeal) Rules and Article 311(2) of the Constitution. But later on he stated: “It is also not advisable to examine the merits or defects of the enquiry for fear of prejudging the decision of the suit which appears to be still open to the petitioner”. It is thus plain that in the proceedings under Article 226 of the Constitution, the legality of the petitioner’s removal from service was not finally determined and was left open for determination in a regular suit. On the application of the general principle of res judicata, it cannot, therefore, be held that the plaintiff’s suit is barred.
6. The view taken by the Courts below that as the plaintiff’s alleged act of misbehaviour with Nirmala Kumari constituted an offence under the Penal Code, therefore, unless he was prosecuted and convicted under the Penal Code for that act, no departmental enquiry could be held against the plaintiff and he could not be removed from service as a result of the findings of such an enquiry, is altogether untenable. To say so. is to assume that where an act of a civil servant amounts to an offence also, he can be removed from service only if he is convicted by a criminal Court for that offence, that a departmental enquiry is nothing but an investigation of an offence punishable under the Penal Code, and that such an inquiry involves imposing the punishment prescribed by the Penal Code for the alleged act.
There is no warrant for such an assumption. There is nothing in Article 311 or in any other article of the Constitution or in any other law taking
away jurisdiction of the Government to enquire into the truth of a charge against a civil servant in a departmental enquiry if the charges can be enquired into by a criminal Court also. Nowhere is it laid down that a civil servant shall be dismissed or removed on certain specific grounds and no others. A civil servant can be dismissed or removed from service on grounds of inefficiency, insubordination, general reputation of corrupt conduct and on a reasonable suspicion that he has committed an offence.
Where the alleged misconduct of a civil servant constitutes an offence also under the Penal Code, it is at the discretion of the Government to prosecute him first in a criminal Court and then to start a departmental enquiry against him after the conclusion of the trial or to hold a departmental enquiry against him without initiating a criminal prosecution against him. It is well known that very often prosecutions fail for technical reasons. The acquittal in such cases is not one absolving completely the accused of all blame for the misconduct. The acquittal in such cases, if One may use the army expression, is not an ‘honourable acquittal”.
In such cases, in spite of the technical acquittal of the accused, there remains sufficient material and suspicion against him to indicate that he is not a person fit to be continued in Government service. That where a misconduct of a civil servant constitutes an offence, a departmental enquiry can be held and he can be dismissed or removed from service as result of the findings of the enquiry, is clear from proviso (a) to sub-clause (2) of Article 311 which says that Sub-clause (2) shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
This proviso shows that a departmental enquiry can be held against a civil servant and he can be dismissed or removed from service as a result of the findings of the enquiry without being prosecuted and convicted in a criminal Court; but that if he is Prosecuted and convicted in a criminal Court, then for his consequential dismissal, removal or reduction in rank it is not necessary to comply with the provisions of Article 311(2) of the Constitution. The lower Courts placed reliance on Bhugiram v. Superintendent of Police, Sibsagar AIR 1954 Assam .18 (A) in support of the conclusion that the order of holding a departmental enquiry against the plaintiff for his alleged act of misbehaviour with Nirmal Kumari, which constituted an offence, was illegal and ultra vires.
In the Assam case, a Sub-Inspector of Police was meted out the punishment of censure on a charge of illegal detention of a person and of demanding illegal gratification from him. The learned Judges of the Assam High Court observed that the charges related to offences under Section 29 of the Police Act read with Section 342/161 I. P. C.; that these offences were triable by a Magistrate; and that a departmental enquiry was not called for unless the petitioner had been duly tried and found guilty or otherwise in a Court of law. After making these observations, the learned Judges proceeded to consider the legality of the punishment of censure awarded to the Sub-Inspector on the assumption that the charges against him could be enquired into in a departmental enquiry.
The Assam case cannot, therefore, be regarded as one laying down that where a charge against a civil servant relates to an offence under the Penal Code, the Government has no jurisdiction to hold a departmental enquiry into the charges and to impose departmental punishment against the civil servant. In fact, in the Assam case, the learned Judges did not say that the departmental inquiry was illegal; all that they said was that it was not called for unless the Sub-Inspector had been duly tried and found guilty in a Court of law. The learned Judges, however, did not make it clear whether the opinion they expressed, namely, that the departmental enquiry was not called for unless the Sub-Inspector had been duly tried and found guilty in a criminal Court, was based on general principles or on any specific provision of any particular or local law. In mv opinion, it was within the competence of the appellant to hold a departmental enquiry against the plaintiff even though he had not been prosecuted for his alleged misbehaviour with Nirmal Kumari.
7. In regard to the contention of the learned Government Advocate that the plaintiff was given a reasonable opportunity of showing cause against the action intended to be taken in regard to him as a result of the enquiry, that must be rejected. The learned District Judge thought that Article 311(2) of the Constitution was not complied with inasmuch as the plaintiff was not supplied with a copy of the findings arrived at by the Chief Secretary as a result of the inquiry which was submitted by him to the Government and on the basis of which a notice was issued to the plaintiff to show cause why he should not be removed from service.
This is not correct. A copy of the findings was given to the plaintiff. On receipt of those findings and the notice calling upon him to show cause why he should not be removed from service, the plaintiff made an application to the Chief Secretary saying ‘that true copies of the statements of all the witness on which the findings were based should be supplied to him. The prayer was refused by the Chief Secretary and the plaintiff was told that the findings having been accepted by the Government all that he could now do was to show cause against the proposed punishment.
It was not receipt of this reply that the plaintiff entered a plea of mercy without making any attempt to challenge the correctness of the findings. The denial of reasonable opportunity to the plaintiff consisted in not giving him an opportunity to contest the findings. The legal position with regard to reasonable opportunity contemplated by Article 311(2) is now no longer in doubt. It has been held in several cases decided by this Court and by other High Courts and also recently by the Supreme Court (Khemchand v. Union of India, AIR 1958 SC 300 (B)) that the stage at which Article 311(2) of the Constitution prescribes a notice should issue to the officer to furnish an opportunity to show cause against the action proposed, is when the Government comes to a tentative conclusion as to the punishment which would be appropriate, and that at that stage the Government is bound to issue a notice and give the officer a reasonable opportunity of showing cause against the action proposed to be taken against him. When the civil servant receives such a notice, it is open to him to challenge the
correctness and propriety of the findings made by the enquiring officer against him as well as to say alternatively that the punishment intended to be awarded to him is unduly severe.
It may be that in some cases before the issue of a notice under Article 311(2) the Civil servant has had an opportunity to meet the charge framed against him and that there would be a repetition of the enquiry if after the receipt of the notice he is allowed to attack the findings on merits. But as was pointed out by the Privy Council in the High Commissioner for India v. I. M. Lall, AIR 1948 PC 121 (C), though a second enquiry may appear unreasonable, that cannot affect the statutory right of a civil servant to assail the report on the merits challenging the propriety of the findings made against him and on that-footing to contend that there is no case to take any action against him whatever. In AIR 1958 SC 300 (B), while explaining the scope of reasonable opportunity contemplated by Article 311(2), the Supreme Court has said in paragraph 18:
“In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is ‘quite obviously necessary that a Government servant .should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well he put forward in showing cause against the proposed punishment”.
The plaintiff was thus clearly entitled to show in reply to the notice, which was served upon him asking him to show cause against the proposed punishment, that the findings made by the Chief Secretary were erroneous and that no case had been made out against him at all and also to say in the alternative that in the matter of punishment he should be dealt with lightly. . That such an opportunity was not given to him is obvious from the reply which the Chief Secretary sent to the plaintiff on 9-12-1952 that the findings of the Chief Secretary having been accepted by the Government, the plaintiff could now be heard only with regard to the quantum of punishment that should be awarded to him. It was because of this reply of the Chief Secretary that the plaintiff only urged grounds to show that a severe punishment should not be meted out to him. The reply of the Government that the plaintiff would be heard only on the question of the quantum of punishment and nothing else, clearly limited the scope of the enquiry resulting from the issue of the notice, under Article V and the limitation was not consistent with requirements of Article 311(2) of the Constitution. In my judgment, on the authority of the decision on the Supreme Court in AIR 1958 SC 300 (B), it must be held that the plaintiff was not given a reasonable opportunity to show cause against the action proposed to be taken in regard to him when though entitled to assail the findings of the Chief Secretary he was told to confine his reply only to quantum of punishment. Therefore, in my opinion, the Courts below were right in holding that the order of the plaintiff’s removal from service not having been made in conformity with Article 311(2) of the Constitution-was ‘Ultra vires,’
8. The Courts below also expressed opinion on the legality of the plaintiff’s suspension. Both the Courts below took the view that the order of suspension did not amount to reduction in rank and that the suspension was imposed as a penalty on the plaintiff. The learned Sub-Judge held that under Rule 49 of the Civil Service (Classification, Control and Appeal) Rules, a civil servant could not be suspended pending enquiry. The Learned District Judge thought that the order of suspension was made for good and sufficient reasons and was within the four corners of Rule 49. In my opinion, it was wholly unnecessary for the Courts below to enter into a discussion about the legality of the suspension when the order of suspension was followed by an order of the plaintiff’s removal from service as result of the enquiry with the making of the order of removal from service, the order of suspension lapsed and it ceased to exist. It was, therefore, not necessary for the lower Courts to enter into a discussion of the legality or otherwise of tile suspension order.
9. The respondent raised an objection that in view of the provisions of Sections 31 and 32 of the Bliopal and Vindhya Pradesh (Courts) Act 1950, this second appeal was incompetent. There is no force in this contention. It is sufficient to say that these provisions taken together do not curtail the right of appeal conferred under the Code of Civil Procedure. Section 31 of the Act only enlarges the grounds which can be taken in a second appeal which arises out of a suit of the kind specified in that section.
10. For the foregoing reasons, I am of the opinion that the Courts below arrived at the right conclusion in holding that the order of removal passed by the Bhopal Government against the plaintiff was ultra vires and void and that the plaintiff still continued to be in service. The appeal is, therefore, dismissed with costs.
