Lakshmi Narain Gupta v. A.N Puri And Another Opposite Party.

1. This is an application under Article 226 of the Constitution for an appropriate writ for quashing of certain departmental proceeding taken against the petitioner and the report dated 25-10-1951 and findings made therein and also for quashing of a notice to show cause dated 10-4-1952 calling upon the petitioner to show cause why disciplinary action of the nature mentioned therein should not be taken against him. The case of the petitioner is that he is a Bachelor of Science of the Calcutta University and had special training in metallurgy and fuel technology and in agricultural engineering. He was appointed as Preventive Officer in the Customs Department of the Government of India in 1941. In 1944 he was entrusted with the work of an Examining Officer. In 1946 he appeared at a departmental examination and stood first in order of merit. In March 1946 he was posted as Postal Export Appraiser. In 1949 he passed the Appraiser's departmental examination and continued to act es Appraiser. In June 1949 the petitioner was offered in recognition of his past meritorious service the gazetted appointment of Superintendent of Central Excise at Delhi by the Central Board of Revenue, but the petitioner did not accept the post and preferred to continue in the Customs Department at Calcutta.

2. On or about 9-5-1940 one Mr. Meyer, an Assistant Collector visited the Garden Reach jetty where the petitioner was on duty in his capacity as Appraiser, accompanied by Mr. Symes the principal Appraiser (Jetties) and found on enquiry that the petitioner had passed certain consignments without physical examination of the goods. On 11-5-1950 a complaint was made by Mr. Meyer against the petitioner to the effect that the latter was in the habit of passing goods without examining them, and also that the petitioner had been guilty of discourteous and insubordinate behaviour. Upon receipt of that complaint the then Collector appointed one Mr. B. De, Assistant Collector, as the Enquiring Officer, in spite of objections made by the petitioner to the effect that Mr. De, who was a friend and colleague of Mr. Meyer, was not well disposed towards the petitioner.

3. It is alleged that the said Enquiring Officer made an ex parte report against the petitioner without; giving him any hearing or the assistance of a lawyer and without taking any evidence whatsoever in respect of the matter. Thereafter acting on the said findings of Mr. De, the Collector passed an order on 26-7-1950 reverting the petitioner permanently to the post of Preventive Officer with effect from 27-7-1950. The petitioner thereupon preferred an appeal against the order of the Collector on or about 4-8-1950 to the Union Public Service Commission, New Delhi, who upon considering the appeal on or about 30-5-1951 directed the reversion to be limited to a period of two years from the date of his actual reversion.

4. It is alleged that owing to the said proceedings taken against the petitioner since May 1950, he had not been keeping good health and as he was suffering from nervous shock and disorder he had to take leave on medical grounds from 26-7-1950 to 3-10-1950 and although he applied for further leave on medical ground, the same was not granted and so he was compelled to join office from 4-10-1950 and immediately on his resuming duties he was posted on duty for long and continuous Periods without any break or recess, between 4-10-1950 and 20-12-1950. Particulars of such postings have been set out in para. 7 of the petition.

5. On 21-12-1950 one Mr. Gill an Assistant Inspector of Customs complained of incivility against the petitioner, to the Collector of Customs and the petitioner was thereupon suspended by an order of suspension passed by the Collector with effect from 21-12-1950. On 22-12-1950 the petitioner applied for leave for one month on medical advice and left for Madhupur but as the place did not suit him the petitioner returned from Madhupur on or about 6-1-1951. On 11-1-1951 the petitioner received a memorandum from the Collector, which referred to a charge-sheet dated 30-12-1950. On the same day the petitioner asked for an opportunity to answer the charges.

6. Thereafter the petitioner was supplied with a fresh copy of the charge-sheet which was received by him on or about 16-1-1951. The charges against the petitioner were of gross insubordination and indiscipline. As the petitioner was called upon to file his written statement within ten days he submitted his written statement on or about 25-1-1951. It is alleged that the charge-sheet was not accompanied by the allegations or complaints of persons on the basis of which the charges were drawn up, but it was after the written statement was submitted that the complaints of Mr. Gill and of one Mr. Jasjit Singh were supplied to the petitioner on or about 30-1-1951.

7. On 6-3-1951 the Enquiring Officer, Mr. Pillai wrote to the petitioner enquiring whether he wished to examine or cross-examine witnesses and pointing out that the provisions of the Public Servants (Enquiries) Act 1850 had no application to the case of the petitioner. On 17-3-1951 the petitioner replied to the letter of the Enquiring Officer stating certain grounds challenging the validity of the departmental enquiry and the suspension order and the petitioner again requested that he might be represented by a lawyer in the enquiry.

8. Thereafter some correspondence followed in which the petitioner repeated his request to have the assistance of a lawyer put such request was not acceded to by the Collector of Customs. On 3-8-1951 the petitioner wrote a letter in reply to a memorandum of the Enquiry Officer dated 26-7-1951 that it would not be possible for him to appear before the officer for being heard in person or to produce any witness or witnesses for reasons already brought to his notice but he reserved the right to mention the names of witnesses and also the names of persons whom he desired to cross-examine when he got the assistance of a lawyer.

9. On 20-10-1951 Mr. Pillai signed his report (wrongly dated as 25-10-1951) in respect of the Enquiry, and it is stated therein that inasmuch as the petitioner had definitely declined the opportunity of being heard in person or of producing any witnesses he recorded his findings on the basis of the charge-sheet and on reports of the Inspector Mr. Gill and the Superintendent, Preventive Service and upon Mr. Gupta's written explanation to the charge-sheet. The Enquiry Officer came to the conclusion in such report that the petitioner had displayed gross negligence of duty and misconduct. It appears that Mr. Pillai had relinquished charge of his Calcutta office on transfer to Bombay, on 20-10-1951.

10. In December 1951 the Secretary of Customs Preventive Association appears to have carried on some negotiations on behalf of the petitioner and some other officers with Mr. Raja Ram Rao who had by that time become the Member of the Central Board of Revenue, and from a letter of the Secretary to the petitioner dated 10-12-1951 the petitioner got the impression that his case was being under consideration and was pending. Although the report of the Enquiry Officer, Mr. Pillai, was signed in October 1951 the petitioner was not given any intimation about the enquiry being concluded and the report being signed for a few months thereafter.

11. On 12-4-1952 the petitioner received a notice dated 10-4-1952 issued by the Collector stating that the Enquiring Officer had submitted his findings and the Collector agreed with such findings and the petitioner was called upon to show cause within a period of ten days why disciplinary action such as reduction in rank, withholding of increments etc. should not be taken against the petitioner. A copy of the report signed on the 20th October but wrongly stated as bearing date 25-10-1951 (as appears from the original records produced at the hearing) was supplied to the petitioner along with this notice. On 27-4-1952 the petitioner moved this application under Article 223 and obtained the rule nisi.

12. Mr. B.C Mitra, the learned Counsel for the petitioner, has submitted that as no date or place for any hearing was fixed by the Enquiring Officer nor was any hearing given to the petitioner, there was violation of the principles of natural justice & as such the entire departmental proceeding & the findings & Report made therein by the Enquiring Officer on 20-10-1951 were without jurisdiction and should be quashed.

13. It is however clear from the correspondence that passed between the petitioner and the Customs authorities between 11-1-1951 and 3-8-1951 that in spite of it being repeatedly pointed out that the petitioner was not entitled to the assistance of a lawyer for conducting the enquiry he persisted in his demand for such a lawyer and made it clear to the Customs authorities in course of such correspondence (See letter dated 17-3-51 from petitioner) that he did not desire to be heard in person if he was not allowed the services of a lawyer, but if he was allowed an opportunity to be represented by a lawyer then he would submit the names of the persons whom he desired to cross-examine. The last letter where he maintained the same attitude was the letter of 3-8-1951.

14. Being convinced of the fact that the petitioner did not want a hearing unless he was allowed to be represented by a lawyer and further as the authorities were not satisfied about the justice of the petitioner's demand for a lawyer and moreover finding that considerable time had elapsed in carrying on correspondence which did not produce any satisfactory result, the Enquiring Officer after consideration of the charge-sheet, the reports of Mr. Gill and Mr. Jasjit Singh, and the petitioner's written explanation, came to the conclusion that the charges against the petitioner had been established and he recorded his findings accordingly. As the petitioner flatly declined to be heard unless he got a lawyer to assist him, the Enquiring Officer had no other alternative but to proceed ex parte. No special, facts or circumstances have been established to show that the petitioner's demand for a lawyer, had been unreasonably refused nor is it shown that the petitioner's case was of such an extraordinary nature that the services of a lawyer should have been allowed to him as a special case. I am unable to hold that the principles of natural justice had been violated or that the Enquiry and the Report are without jurisdiction.

15. It was also contended by Mr. Mitra that as the reports of Mr. Gill and Mr. Jasjit Singh were not supplied to the petitioner along with the charge sheet, there was violation of Rule 55 of the Civil Services Classification (Control & Appeal) Rules and so the departmental proceeding is bad. It is true that the allegations or reports were not supplied to the petitioner along with the charge sheet but they were supplied after the petitioner had submitted his explanation to the charges and the petitioner was given an opportunity to submit further explanation, if he so desired, in view of the allegations or reports being supplied to him on 30-1-1951 (See Memorandum dated 6-3-1951 from the Enquiry Officer) and by his letter dated 17-3-1951 the petitioner replied to the memorandum dated 6-3-1951.

16. In the letter of 17-3-1951 the petitioner pointed out that the two reports were contradictory but he did not actually point out the contradictions. At the hearing Mr. Mitra pointed out the discrepancy which is to the effect that Mr. Gill says that the petitioner was wearing “American Khaki blouse” whereas Jasjit Singh states the petitioner was wearing a “light Khaki shirt”. Mr. Mitra also pointed out that there was discrepancy between the charge sheet and the reports. But these discrepancies are so minor that no serious notice can be taken of such discrepancies. The allegations and the facts stated in the charge sheet are substantially the same.

17. Mr. Mitra also pointed out that copies of the reports supplied to him do not contain some concluding paragraphs of the reports as disclosed by the copies annexed to the affidavit in opposition of Mr. Mathur. It appears however that the relevant and material paragraphs are in the copies which had been supplied to the petitioner. It appears to me that the petitioner has not suffered any prejudice by reason of the discrepancies complained of or by reason of the allegations being supplied to the petitioner after he had submitted his explanation to the charge sheet. The infringements are not of such a nature as to call for interference under Article 226 of the Constitution.

18. It was also contended by Mr. Mitra that paragraph 5(2) of the Circular of the Central Board of Revenue dated 29-4-1940 has been contravened in the present case and so the departmental enquiry and the findings made therein are null and void. It is submitted that the Enquiry Officer Mr. Pillai who was an Assistant Collector of Customs was subordinate to the Collector of Customs who had already expressed a definite opinion on the points at issue when the order of suspension dated 22-12-1950 was passed. Consequently as the enquiry was entrusted to Mr. Pillai there was violation of this para. 5(2) of the Circular and the Enquiry is therefore bad. It appears to me that this contention of Mr. Mitra is also without any real substance.

19. When the Collector stated in his Order of 22-12-1950 that the petitioner was placed under suspension for disobedience and insolent behaviour towards his superior officer he was not expressing a definite or final opinion but only a provisional opinion. The very facts that almost simultaneously with the making of the order of suspension the Collector had directed an enquiry to be held by Mr. Pillai, who was an independent and disinterested officer, and after the enquiry was concluded, he has again served a Notice to show cause why certain departmental punishments should not be inflicted upon the petitioner, show that the Collector cannot be said to have formed a definite opinion about the guilt of the petitioner when he passed the order of suspension on 22-12-1950. For the purpose of the investigation it was thought necessary to place the petitioner under; suspension and so a tentative opinion had to be formed on the materials then available, for placing the petitioner under suspension (Paragraph: 13 of the affidavit of Mr. Mathur). I am of the view that there has been no infrigement of paragraph 5(2) of the Circular. It may be noted further that the Circular has no statutory force.

20. It was further contended by Mr. Mitra that the Notice to show cause dated 10-4-1952 issued by the Collector is bad as it does not definitely or precisely state the particular punishment or punishments which is or are proposed to be inflicted upon him and in respect of which the petitioner is to show cause. It appears to me that this contention of Mr. Mitra is not without substance.

21. The Notice calls upon the petitioner to show cause why disciplinary action such as reduction in rank, withholding of increments etc. should not be taken against him. Rule 49 of the Civil Services (Classification, Control and Appeal) Rules shows that there are seven items of penalties which can be imppsed upon a member of the service. It may be reduction in rank or withholding of increments or promotion or removal from service or dismissal from service or the other penalties specified in the Rule. If the petitioner is threatened with dismissal or removal, he may state facts showing cause which may not be necessary to be stated if the action proposed to be taken against him is merely withholding of increments, or reduction in rank. The words “ct cetera” are as vague as they can be and may include any of the penalties specified in the seven items of Rule 49.

22. Rule 55A of the C.S (C.C.A) Rules and Article 311(2) of the Constitution require that adequate or reasonable opportunity has to be afforded for showing cause against the action proposed to be taken. The Judicial Committee has pointed out in the case of — ‘High Commr. of India v. I.M Lair, AIR 1948 P.C 121 (A), that a servant of the Government has a right to represent against the punishment proposed as a result of the findings of the Inquiry. In my view the Notice to show cause does not afford the petitioner the opportunity contemplated by Rule 55A of the C.S (C.C.A) Rules or by Article 311(2) of the Constitution and must be held to be bad.

23. On behalf of the respondents a point has also been raised that as the petitioner has not been employed by a valid contract entered into in accordance with the requirements of Section 175(3) of the Government of India Act, 1935 or Article 299(1) of the Constitution of India, he has no rights which he can enforce in a Court of law. In answer to this contention Mr. B.C Mitra, the learned Counsel for the petitioner has referred to the earlier Government of India Acts for showing that the formalities required to be observed in making a valid and binding contract between the Government & any other party have no reference to contracts of service. Mr. Mitra has drawn my attention to 21 & 22 Vict. Ch. 106 (Sections 39 and 40) 22 & 23 Vict. Ch. 41 (Sections 1, 2, 4 and 5) 32 and 33 Vict. Ch. 29 (Section 1) and 33 & 34 Vict. Ch. 59 (Preamble & Sections 1 and 2), and also to Section 30(2) of the Government of India Act 1915 and Section 175(3) of the G.I Act, 1935 and the Headings of the Parts and Chapters in which Section 30(2) and Section 175(3) find place.

24. It is submitted by him that the services under the Crown or Civil Services are dealt with in a separate part and chapter and the provisions with regard to vesting of properties and making of contracts and assurances are dealt with in a different chapter or part and under a different heading, and group, accordingly it should be held that the group of sections dealt with under the heading of Civil Services (Part 10 Chap. II of the G.I Act 1935) and the group of Articles dealt with under the heading of “Services under the Union and the States” (Part 14 of the Constitution) are not controlled by Section 175(3) of the G.I Act 1935 or Article 299(1) of the Constitution.

25. Mr. Mitra has also pointed out with reference to Section 30(2) and Sections 19, 95 and 96B of the G.I Act, 1915 that if it was intended that Section 30(2) would govern contracts of service then there was no necessity of framing rules relating to appointment of civil servants pursuant to Section 96-B of the G.I Act 1915.

26. Mr. Mitra has also referred to a large number of cases in support of the proposition that in construing a particular section of a Statute it is perfectly legitimate to take into consideration the legislative history of that Section and to see in what sense the section was used in the original Act, for ascertaining what the section under consideration means. There cannot be any doubt as to the soundness of this proposition and so it is not necessary to deal with the cases cited by Mr. Mitra on this point, in any detail.

27. The argument of Mr. Mitra that inasmuch as the provision relating to making of contracts finds place in a group of sections dealt with under a separate heading and chapter, it has no reference to contracts of services under the Government because such services are dealt with in a separate chapter and under a different heading, does not appear to me to have much force. Division of Statute into parts or chapters is a mere matter of convenience. The object of such division is not that each part or chapter should be read independently of each other or as a complete code by itself. It is a fundamental principle of interpretation that a Statute must be read and construed as a whole, notwithstanding that every section in a Statute is a substantive enactment in itself.

28. Chapter 3 of Part 7 of the Government of India Act 1935 which has the heading of “Property, Contracts, Liabilities and Suits” deals with various matters in the different sections which are grouped together under this heading. Section 175(1) and (3) deals inter aha with the making of contracts and the requirements as to the form of such contracts. In fact this is the only section in the Government of India Act 1935 which deals with the requirements as to the form of the contracts made in exercise of the executive authority of the Central Government or the Provincial Government (See Section 3, Clause (14a) of the General Clauses Act (10 of 1897) which defines ‘Crown Contracts’). Section 185 of the G.I Act 1935 deals with question of enforceability of contracts against Federal Railway Authority.

29. In my view Section 175 applied to all Crown or Government contracts including contracts of service made by the Crown and I fail to see how the contracts of service can be said to be exempted from the operation of Section 175(3) of the G.I Act 1935. The Bombay High Court in — ‘Krishnaji Nilkant Pitkar…Plaintiff v. Secretary Of State….’, AIR 1937 Bom 449 (B) has held that the corresponding Section 30(2) of the G.I Act 1915 applied to contracts of service and I have also held in the case of — ‘Subodh Ranjan v. Major N.A O'Callaghan’, AIR 1953 Cal 319 (C), that Section 175(3) applies to contracts of service as it applies to all other contracts. I adhere to the view expressed in the Subodh Ranjan Ghosh's case and hold that the petitioner not having been employed by a valid contract in the form required by Section 175(3) of the G.I Act 1935 he has no right in relation to his alleged employment as a servant of the Government, which he can enforce in a Court of law. It is unfortunate that this petition fails on this highly technical and unmeritorious point. I have no doubt however that the authorities concerned will, in view of the very efficient services rendered by the petitioner in the past, deal with the case of the petitioner in proper spirit and with the leniency it deserves. The Rule is discharged. I make no order as to costs.

A/H.G.P

30. Rule discharged.