JUDGMENT
Sinha, J.
1. This appeal is concluded by the authority in the — ‘High Commissioner for India v. I.M. Lall’, AIR 1948 PC 121 (A).
2. The question raised in this appeal is as to the effect of not affording reasonable opportunity to the plaintiff, an employee of the defendant-appellant, under Section 540, Sub-section (3), Government of India Act, 1935. It is necessary to give, in brief, the facts leading to the present appeal. The respondent was appointed a Jamadar in the Sanitation Department of the Adra Station Committee in 1929 by the Bengal Nagpur Railway authorities. On the 9-1-1946, it was alleged by the appellant that the plaintiff-respondent had set up one Kalipado Bauri in place of one Dolu, another employee of the railway, to
receive the letter’s pay although he had left service in December 1945. On the date in question Kalipado Bauri received the pay of Dolu in the name of Dolu and made over the money to the plaintiff who had advanced loan to Dolu. An inquiry was instituted by the department on the facts alleged and during the course of the inquiry the plaintiff gave his statement.
Thereupon, the inquiry report was submitted to the District Medical Officer who, on 29-1-1946, drew up a charge-sheet against the plaintiff on two counts-one was in regard to Kalipado having been set up by the plaintiff to personate for Dolu on the occasion of receiving his pay on the 9-1-1946, and the second charge was to the effect that the plaintiff had been carrying on money-lending business against the rules. On that date, namely, the 29-1-1946, the plaintiff was asked to show cause by the District Medical Officer. On 5-2-1946, the plaintiff filed a petition showing cause to the effect that the charges were false. Three days later, on the 8th of February, the District Medical Officer dismissed the plaintiff from service. Thereafter, the plaintiff made unsuccessful appeal to the General Manager against the order of the District Medical Officer. Then he made another representation before the General Manager which also was rejected.
On the 22-4-1947, the plaintiff instituted the suit against the appellant for a declaration that his dismissal was wrongful, and he prayed for a decree for arrears of his pay and for his re-in-statement. The defence was that the charges had been proved and that the District Medical Officer had full authority to dismiss the plaintiff. The first Court dismissed the suit. On appeal by the plaintiff, it has been held by the Court below that, as a reasonable opportunity as required by Section 240 (3), Government of India Act, 1935, had not been given to the plaintiff, before he was dismissed, the order of dismissal was wrong in law. In that view of the matter, the plaintiff was given a decree for the declaration that his dismissal was wrongful and that he continued to be in service on the date of the suit. It was further held that the plaintiff was not entitled to any decree for arrears of pay or damages against the Crown.
3. The defendant has come up in appeal to this Court, and there is no cross-objection or cross-appeal by the plaintiff. Mr. N.C. Ghosh, appearing on behalf of the appellant, has submitted that the judgment of the Court below is wrong in asmuch as reasonable opportunity was in fact, given to the plaintiff and he should have shown cause, if any, as to why he should not be dismissed. His further point is that the plaintiff made no grievance of the fact that no notice, as required by Section 240 (3), Government of India Act, 1935, had been served upon him, either in the plaint or in the notice under Section 80, Civil P. C. It is, therefore, contended that the Court below was wrong in going into that matter without the necessary averment in the plaint. Subsection (3) of Section 240. Government of India Act, 1935, runs as follows:
“No such person (that is, a person who is a member of civil service of the Crown In India,
or holds any civil post under the Crown in India) as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.”
The proviso of the sub-section is not relevant Mr. Ghosh attempted to submit that although the State had taken over the administration of the Bengal Nagpur Railway on 1-10-1944, the employees of that railway until the 1-10-1946. I have purposely refrained from giving other details in regard to whether the plaintiff remained an employee of the Bengal-Nagpur Railway or became an employee of the Crown because this matter was not at all seriously pressed in the Courts below. The first Court found that the plaintiff became a servant of the Crown and that the power of the Crown to dismiss its servants was controlled only by the statute and not by rules or regulations of service. The appellate-Court also held that
“It was an admitted ground before the learned Munsif that at the time of the dismissal the Bengal-Nagpur Railway had been taken over by the Government of India and consequently, the plaintiff was a Government servant”.
That finding is a finding of fact and it must be held, for the purposes of this appeal, that the plaintiff was a servant of the Crown on the date of his dismissal. The more important question is whether the plaintiff was given a reasonable opportunity to show cause ‘against the action proposed to be taken in regard to him.’ The relevant words have been underlined (herein ‘ ‘) by me. From a plain reading of the section, it appears that reasonable opportunity must be given of showing cause when the authority empowered to take action proposes to take a particular action. It is true, as Mr. Ghosh has submitted, that a departmental inquiry was made in regard to the charges against the plaintiff. It is also true that he did appear and take part in the inquiry.
But this inquiry was made only to enable the authority empowered to take action to make up its mind as to whether or not charges should be formally drawn up against the employee. After the report of the inquiry was submitted to the authority concerned (in this case, the District Medical Officer), the latter drew up two charges on the form prescribed and he asked the employee, namely, the plaintiff, to show cause against those charges. After reciting the two charges to which reference has already been made, the charge-sheet said, “Explanation to be submitted before 5-2-46”. It Will thus be seen that on 29-1-1946, when the two charges were delivered to the plaintiff, he was asked to submit his explanation before 5-2-1946.
It is obvious, therefore, that on that date, in the absence of any explanation from the plaintiff, the District Medical Officer was not in a position to hold that the charges had been proved or to decide as to what action should be taken against the plaintiff. The stage for giving a reasonable opportunity of showing cause, under Sub-section (3) of Section 240 of the Act, could only be reached when the authority was satisfied about the truth of the charges and it had made up its mind to
punish the employee in a particular manner. If the action proposed to be taken was dismissal or reduction in rank, then the provision of Sub-section (3), had to be complied with. The opportunity, if any, which the plaintiff had before the departmental inquiry to give his own version about the charges is not the opportunity contemplated in Sub-section (3) of Section 240. In the well known case of — ‘AIR 1948 PC 121 (A)’, their Lordships say as follows:
“In the opinion of their Lordships no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on ‘that stage being reached that the statute gives the civil servant the opportunity for which Sub-section (3), makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55 (Civil Service (Classification and Control) Rules ) it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry.”
4. Upon the finding arrived at by the Court below that no notice under Section 240 (3) was given it must be held that the statutory provisions have not been carried out. Mr. Ghosh referred to the judgment of Varadachariar J. when this very case was before the Federal Court — ‘Secretary of State v. I.M. Lall’, AIR 1945 PC 47 (B). The majority of the Judges of the Federal Court had held that
“in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank.”
Varadachariar J. was of the view that if the civil servant had an opportunity or explaining his conduct before the enquiry under Rule 55, Civil Service (Classification and Control) Rules, there was nothing in the language of Clause (3) to indicate that anything more or anything different was contemplated or to suggest that a further opportunity was to be given after the enquiry had been completed in the presence of the officer charged and the Enquiring Officer had made his report. The Privy Council did not accept the minority view and upheld the view taken by the majority of the Judges of the Federal Court. I would, therefore, hold that, after the District Medical Officer, upon perusal of the explanation given by the plaintiff on 5-2-1946, had made up his mind to dismiss the plaintiff, the plaintiff was entitled under Section 240 (3) to a further opportunity of showing cause as to why the proposed
punishment should not be meted out to him. That statutory provision not having been complied with, the dismissal of the plaintiff was rightly held to be wrongful by the Court below.
5. Mr. Ghosh also submitted that the plaintiff made no grievance about the failure of the authorities to give him notice or an opportunity to show cause, as envisaged by the provision of Section 240 (3), either in the plaint or in the notice under Section 80, Civil P. C. The plaintiff, in his, plaint, did state categorically the facts leading to his dismissal and that averment in the plaint showed that after the charge-sheet was drawn up on 29-1-1946 and after the plaintiff had given his explanation on 5-2-1946, no opportunity was given to the plaintiff to show cause against the proposed punishment, namely, his dismissal.
Even the defence did not suggest that that statutory provision contained in Section 240 (3), had been complied with. In that view of the matter, I hold that there is no substance in this contention. Pleadings in this country must not be too strictly construed. The plaintiff has as I have already mentioned, narrated all the facts necessary in his plaint, and if opportunity had, in fact, been given, as required by Section 240 (3), it was open to the defendant to have mentioned that fact and to show that that statutory provision had been complied with. There is no such averment in the written statement.
6. In the result, the appeal is dismissed with costs.
Banerji, J.
7. I agree.