Jagdish Sahai, J.:— The petitioner was appointed on 11th October, 1935 as a rural development organiser. On 30th September, 1943 he was appointed as an agnail ture supervisor. On 30th July, 1948 the was working as incharge supervisor, Central Seed Store, Budaun, when he was suspended. On 23rd October, 1948 a charge sheet was served on him to which the petitioner submitted an explanation. On 25-11-1948 he was called by the Circle Accounts Officer at Bareilly and some enquiries were made from him on 29th and 30th November and 1st December, 1948. The Circle Accounts Officer reported the proceedings to the Deputy Director of Agriculture, Bareilly, who recommended to the Joint Director of Agriculture, Lucknow; that a bad entry be made in the character roll of the petitioner and the proceedings initiated by the charge sheet be withdrawn. The Joint Director of Agriculture ordered that the matter be referred to the District Magistrate, Budaun, for prosecution of the petitioner in a criminal court. A case was registered against the petitioner under Sec. 409/420, I.P.C, and investigation was made by the police. The police submitted a final report. The petitioner however received a notice dated February 8, 1950, calling upon him to show cause why he should not be removed from service to which he submitted an explanation on 10-2-1950. Thereafter he received orders terminating his services. The petitioner made an application for review of the order of termination of service which was rejected on 4-5-1950. Thereafter he submitted an appeal to the Secretary to Government, U.P, Agriculture Department. In the mean-time the petitioner was appointed in the land reforms department on 19-7-1952 as Zamindari Abolition Clerk in tehsil Sisauli. On 9-5-1953 the District Agriculture Officer again reported for police investigation against the petitioner and the police issued a warrant of arrest against the petitioner. The petitioner in compliance with the warrant surrendered in court. The police again submitted a final report. On 17-12-1954 the petitioner sought an interview with the Secretary to Government, Agriculture Department, U.P, and submitted an application saying that he had not received any orders for the last four years regarding his appeal. On 27-4-1955 the petitioner received an order dated 22-4-1955 by which he was reinstated with effect from the date of termination i.e, 1-3-1950. The petitioner was formally reinstated but was again put under suspension. A fresh charge sheet was served on the petitioner to which he submitted an explanation on 31-1-1956. On 9-8-1956 the petitioner was called for personal hearing but no evidence was recorded in his presence and he was not allowed to cross-examine any witness. In the third week of November 1956 the petitioner received a letter dated 7th November, 1956 calling upon him to show cause why he may not be removed from service to which he submitted an explanation on 31-12-1956. By an order dated 21-1-1957 the petitioner was removed from service by the Director Sri R.S Singh with effect from the date of his suspension i.e, 15-4-1948. Thereafter the present writ petition was filed in this Court.
2. The submission of the learned counsel for the petitioner is that he was not given a reasonable opportunity of showing cause against the action proposed. The argument is that Art. 311(2) of the Constitution of India envisages two stages at which the petitioner can show his innocence.
3. The first stage is the enquiry stage and after the enquiry is completed the second stage arrives after the authority who can take disciplinary proceedings against the petitioner has tentatively made up his mind to inflict a punishment and issues a notice to show cause why that punishment should not be inflicted. The view that I am taking with regard to the opportunity contemplated by Art. 311(2) of the Constitution of India is fully borne out by the observations of their Lordships of the Supreme Court in the case of Khem Chand v. Union of India,1.
4. A counter affidavit has been filed much beyond time. Ordinarily I would have rejected the counter affidavit but after having read it I do not think there are any allegations in it which are material for the decision of the present case and which Mr. Varma the learned counsel for the petitioner may like to controvert. I have therefore not given Mr. Varma any time for a rejoinder affidavit. The short point on which I am inclined to allow this petition is that there has been non-compliance with the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The said rule runs as follows:—
“Without prejudice to the provisions of the public Servants Inquiries Act, 1850, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court martial) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time-scale, or to a lower stage in a time-scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is a member of a Civil Service, or holds a Civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged government servant of the facts and circumstances against him. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the inquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the charged government servant.
“(2) This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the, rule and those requirements can in the opinion of the inquiring officer be waived without injustice to the person charged.
“(3) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary government servant, for any specific fault or on account of his unsuitability for the service. In such cases, the probationer or temporary government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority.”
5. It is clear that Rule 55 envisages that if the person charged so desires or if the officer conducting the inquiry so directs that an oral inquiry should be held, such oral evidence as the inquiring officer considers necessary shall be heard at such inquiry. It is therefore absolutely necessary that some evidence must be heard and the officer charged be given an opportunity of challenging that evidence by means of cross-examination. Annexure K to the petitioner's affidavit, which is the charge sheet against the petitioner, gives several charges and also gives the names of witnesses on whose testimony the prosecution wants to rely. Admittedly no enquiry was held under Rule 55 of the Civil Services (Classification Control and Appeal) Rules and no witnesses were examined against the petitioner with the result that the evidence on which the authorities have acted in removing him went totally unchallenged. Mr. Asthana the learned Junior Standing Counsel contends that it was necessary to examine witnesses and to allow the petitioner to cross-examine them and all that Rule 55 requires was that the officer charged should be given a summary of the evidence against him and the names of the witnesses on whose testimony the charges; against him are based and it is for the officer charged to say which of them he would like to cross-examine. In my opinion this argument is based on a misreading of Rule 55. Though it cannot be said that the procedure envisaged by Rule 55 is as elaborate as a criminal trial, all the same, the rule does require the examination of some witnesses and the offer of an opportunity to the officer charged to cross-examine those witnesses. Inasmuch as that was not done in the present case there has been a non-compliance with the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal Rules. In view of the fact that their Lordships of the Supreme Court have held that to an enquiry under Rule 55 also the expression “reasonable opportunity of showing cause” in Art. 311(2) of the Constitution of India applies, it must be held that there has been a non-compliance With the directive principles of that Article. In that view of the matter the petition must be allowed. I may also note that the petitioner, has been subjected to a long and protracted harassment. The enquiry against him started in 1948 and the matter was finally concluded in December 1956. During this time twice police investigations were ordered and both the times the report was that there was no evdence against the petitioner. He was charge-sheeted and removed once before, but his appeal was allowed. Considering all the circumstances of the case and especially the fact that the petitioner has been deprived of the opportunity given to him by Art. 311(2) of the Constitution of India, I allow the petition with costs, quash the order removing the petitioner from service and direct the respondents to treat the petitioner as in service.
6. Petition allowed.