V.V Kameswar Rao v. State Of Orissa Opposite Party.

P.V.B Rao, J.:— This is an application filed by the petitioner to issue a writ in the nature of certiorari or to Pass such other order quashing the orders of the Collector of Ganjam dated 1-7-52 dismissing the petitioner from service and to quash the order No. 5018/46 dated 29-8-43 reducing the petitioner from his upper division rank to lower division and to declare that the petitioner continued in service from 26-10-51 till the date of his suspension and that the petitioner is entitled to his salary of upper division clerk from 1-12-49 to 25-10-51 with the usual increments thereupon.

2. The petitioner was appointed as a lower division clerk in the Ganjam Collectorate on 6-8-37 and was subsequently promoted to upper division clerk in the revised scale of 70-2-80-4-100 and was confirmed in that post in Collector's Despatch No. 5203/46 dated 5-7-46. The petitioner worked for three years as an upper division clerk, but his confirmation as an upper division clerk was cancelled by the Collector of Ganjam by his order dated 29-8-49. Aggrieved by the said order, the petitioner preferred an appeal to the Revenue Commissioner, and he was informed by the Collector that the previous order of confirmation passed by the Collector was cancelled by the Government order 6-1-51. Subsequently the petitioners was transferred to Phulbani and was working there till June, 1950. The petitioner on account of small-pox in his house applied for quarantine leave on 15-5-50 and as subsequently there was another case of small-pox in his house, he applied again for leave for two months with a medical certificate.

3. The petitioner was transferred to Baudh, but the petitioner alleged that he left Phulbani for Chatrapur intimating the fact to the Deputy Commissioner and made representations to the authorities to adjust him in Ganjam. By another letter dated 9-11-50 the Deputy Commissioner of Phulbani suspended the petitioner for absenting himself from the headquarters without permission and for not joining the new station.

4. The petitioner made representations to the Collector of Ganjam and the Revenue Commissioner to withdraw the suspension order and the petitioner was adjusted in Ganjam by the order dated 5-1-51 of the Collector; but the Collector stopped his increment for two years and barred his promotion on the ground that the petitioner had disobeyed the orders of the Deputy Commissioner by not joining at Baudh, without giving an opportunity to the petitioner to explain his case.

5. The petitioner aggrieved by this order of stoppage of increment preferred an appeal dated 1-9-51 to the Board of Revenue through proper channel. On 26-10-51, the Collector suspended the petitioner by his proceedings dated 26-10-51 on the ground that the petitioner brought irrelevant facts into his appeal petition and intentionally used disrespectful, improper and objectionable language and called upon him to show cause why he should not be dismissed or otherwise punished.

6. The petitioner asked for certain particulars of the objectionable portions of his appeal petition which were furnished to him accordingly. The petitioner gave his explanation on 9-11-51 stating that the Collector under Rr. 9 and 10 of Appendix XIV of Board's Standing Orders, Vol. IV, and R. 9 of Appendix E of the Bihar and Orissa Board Misc. Rules and also under Rr. 63 and 64 of Civil Service Classification control Orders had to return back the appeal Memo, if it contained disrespectful and improper and object able language and that he would prove the fact by documentary evidence if he is given an opportunity by the Collector. The Collector by his Proceedings No. 7025/51 dated 12-12-51 dismissed the petitioner without giving him any opportunity as desired in his application.

7. The petitioner preferred an appeal against this order on 22-1-52 to the Board of Revenue which allowed the appeal and remanded the case on the ground that the mandatory provision of law was not followed and that the petitioner might be given a further opportunity to show cause and that the Collector had failed to comply with the rule that before dismissal an officer under proceeding should be asked to show cause, under Article 311 of the Constitution, as to why the proposed punishment should not be inflicted upon him.

8. The petitioner then received a notice on 10-4-52 from the Collector to show cause why he should not be dismissed from service for the charges of gross indiscipline and misconduct brought against him and he was given an opportunity to appear before the Collector for a personal hearing on 3-5-52.

9. The petitioner submitted his explanation on, 1-5-52 stating that the Collector had no jurisdiction to frame charges and punish the petitioner for using disrespectful language in the appeal-petition to be forwarded by the Collector and also stating that he was prepared to withdraw the alleged objectionable portions of his explanation, and that the punishment of dismissal was disproportionate to the gravity of the alleged offence committed by him; but the Collector by his order dated 1-7-52 dismissed the petitioner.

10. The petitioner preferred an appeal on 2-8-52 to the Board of Revenue which was rejected. Then the petitioner submitted an appeal to the Government on 2-1-54 and a memorial to His Excellency the Governor of Orissa on 1-3-54 which were also rejected. Consequently he filed the present application.

11. Though the petitioner has stated in his application various grounds about the illegality of cancelling his appointment as an upper division clerk, and his suspension and stoppage of increment and promotion consequent on his coming away from Phulbani without the permission of the Deputy Commissioner, these questions arise for consideration if the order for dismissal is found to be illegal and unconstitutional.

12. The first question, therefore, for us to consider is whether the dismissal of the petitioner by the order of the Collector dated 1-7-52 is constitutional and according to law.

13. The State of Orissa opposed this application and in support of its contention filed an affidavit of Mr. S.M.H Burney, I.A.S, Collector of Ganjam. In the said affidavit the Collector stated that the confirmation of the petitioner on 5-7-46 immediately following his promotion on 1-7-46 was cancelled by the Collector according to the orders of the Revenue Commissioner and that the said cancellation was according to the rules as by his promotion many senior clerks qualified according to rules were superseded and the confirmation of the petitioner as an upper division clerk was irregular and contrary to the rules.

14. The Collector also made various statements with regard to the legality of the prior action taken against the petitioner with which we are not at present concerned. With regard to the allegation of illegal dismissal, the Collector submitted that the petitioner was given statutory notice under Article 311 and was given sufficient opportunity also to be heard both in person and through his explanations and that the Collector after going through the entire material on record and representations made by the petitioner and after giving him a personal hearing dismissed the petitioner from service for the charges of gross indiscipline and misconduct.

15. He further submitted that no statutory rules of the provision of Article 311 had been violated and the petitioner was given full opportunity to show cause against the proposed order of dismissal and that the order of dismissal was proportionate to the gravity of the charges levelled against him.

16. Mr. Ramdas, learned counsel for the petitioner, contended in the first instance that the ground for dismissal being certain objectionable allegations in an appeal-petition to the Board of Revenue, should not have been made a ground for dismissal.

17. He contends that the Collector had no jurisdiction to punish the petitioner for language used in the appeal against his order. In support of his contention that the Collector has no jurisdiction to take action for the language used by the petitioner in his appeal-petition, he relies upon Rr. 9, 10 and 11 of the Orissa Service Code, Vol. II. Rule 9 says:

“Every appeal preferred under these rules shall contain all material statements and arguments relied upon by the appellant, shall contain no disrespectful or improper language, and shall be complete in itself. Every such appeal shall be submitted through the Head of the office to which the appellant belongs or belonged and through the authority from whose order to appeal is preferred and shall accompany a copy of the order appealed against.”

18. Rule 10 says:

“An appeal may be withheld by the authority against whose order it is preferred; if (1) it is an appeal in a case in which no appeal lies under these rules, or (2) it does not comply with the provisions of rule 9, or

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Provided that in every case in which an appeal is withheld, the appellant shall be informed of the fact and the reason for it.

Provided also that an appeal withheld on account only of a failure to comply with the provisions of R. 9, may be re-submitted at any time within one month of the date on which the appellant has been Informed of the withholding of the appeal, and such appeal shall not be withheld, if it is re-submitted in a form which complies with these provisions.”

19. Rule 11 says:

“No appeal shall lie against the withholding of an appeal by a competent authority. The authority withholding the appeal, however, shall report the fact to the superior authority together with the reasons for withholding the same.”

20. On the strength of these three rules, learned counsel for the petitioner contends that if the appeal petition of the Petitioner contained disrespectful or improper language, the Collector is only entitled to withhold sending up of the appeal which may be re-submitted by the petitioner after removing the objectionable language and that the Collector in case of withholding of the appeal-petition on account of improper or disrespectful language has power only to report the fact to the superior authority together with the reasons for withholding the same.

21. His contention, therefore, is that if the appeal-petition contained any objectionable language the only power in the Collector is to withhold its being sent up to the proper authority and to report the same to the appellate authority, and that he has no jurisdiction to take action for the language used in the appeal-petition and dismiss the petitioner on that ground.

22. I do not think that Rr. 9, 10 and 11 of the Orissa Service Code relied upon by the learned counsel support this contention. These sections only deal with the provisions relating to the procedure in filing or sending appeals to the proper appellate authority.

23. They do not in any way concern with the authority of the Collector to take action for any indiscipline or misconduct evidenced by the language used in the appeal-petition by a clerk who is still in service. The petitioner, at the time when he sent the appeal petition, was a lower division clerk in the Ganjam Collectorate and continued to be a Government servant.

24. The Collector in his order, annexure ‘U’ to the petition quoted the objectionable sentences used by the petitioner in the appeal-petition which, according to him, were disrespectful, improper, and objectionable in respect of the Collector, Revenue Commissioner and the Government; and came to the conclusion that the language of the petitioner amounted to an act of gross indiscipline and betrayed gross misconduct. I quote the following from the same:

“From these it may be considered whether I disobeyed the orders of the Deputy Commissioner, who is not my controlling authority (the Collector is my controlling authority) or whether the Deputy Commissioner and the Collector disobeyed the Revenue Commissioner's orders.”

“This charge was not therefore proved against me, but against the Deputy Commissioner and partly against the Collector.”

“I must submit that the Collector has completely failed in his duty.”

“This time the Collector deliberately disobeyed the orders of the Revenue Commissioner, and the Revenue Commissioner did not, however, take any action against the Collector for disobeying the orders of the Revenue Commissioner. The Government to whose notice the matter was brought supported the Collector's action and vetoed Revenue Commissioner's decision.

“The Government ought to have taken severe action against the Collector for deliberately disobeying the orders of the Revenue Commissioner, his superior authority. Instead, they encouraged the Collector to disobey his superior. The Government while supporting the Collector not only encouraged the subordinates to disobey their superior authorities, but also went against their own decision”.

“The Revenue Commissioner was ignored by the Government and the Collector ignored even the Government. The Government who were responsible for disobeying the decision of the Revenue Commissioner by the Collector cannot question the Collector for not carrying out their own decision, as the Collector can do things as he likes, and as he is not required to obey his superior authorities”.

“When Government, the highest authority in the State, held that disobedience by a subordinate authority towards a superior authority is not an offence, how could the Collector, who could disobey the orders of his superiors and who was found by the Government to have not committed any offence, charge me for disobeying an illegal order of an officer, who was not also my superior, and inflict on me the punishment which he has inflicted. Presumably, the Collector thought that he could disobey the orders of his superiors and not others.”

25. These extracts from the appeal-petition filed by the petitioner and which were given as reasons for the dismissal of the petitioner clearly show that the petitioner, who was at that time a lower division clerk, and the appeal was against an order cancelling his promotion as an upper division clerk, could not be retained any longer as a clerk in the service of the Government, and the averment amounted clearly to indiscipline and misconduct.

26. But we are not concerned in this application with the merits or otherwise of the dismissal. The Collector has jurisdiction to take action against his subordinates for indiscipline and misconduct; and consequently I cannot accept the contention of the learned counsel for the petitioner that the Collector had no jurisdiction and the rules relied upon by him do not support that contention.

27. The second contention of the learned counsel is that the notice given under Article 311, cl. (2) of the Constitution is not a valid notice and consequently the dismissal consequent upon such notice is incompetent. The said notice, Annexure ‘Y’ is as follows:

“Sri V.V Kameswar Rao, Ex-Accountant, Collector's office, Chatrapur, is hereby directed to show cause on or before 3-5-52 why he should not be dismissed from service for the charges of gross indiscipline and misconduct brought against him in this office Ref. A. 6 No. 8019/51 dated 26-10-51.

He may, if he so desires, appear before the undersigned for personal hearing on 3-5-52 at Chatrapur at 10 a.m”

28. Learned counsel contends that this notice is not a valid notice contemplated under Article 311, cl. (2) of the Constitution. The said provision, is as follows:

“No such person as aforesaid shall be dismissed or removed 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”.

29. Learned counsel contends that the second notice contemplated under Article 311, Cl. (2) to show cause against the proposed punishment should contain the gist of the charges, the conclusion arrived at by the officer enquiring into the charges and then the proposed punishment should be stated.

30. In the notice as given, the charges as contained in the prior notice were simply referred to and the conclusion that the petitioner was guilty of the charges was not stated in the notice, and consequently, Mr. Ramdas contends that the said notice is not a valid notice and, therefore, there is no compliance with the provisions of Cl. (2) of Article 311 of the Constitution.

31. In support of his contention, he relies upon a decision of the Nagpur High Court, ‘Gopal Rao v. State Govt. of Madhya Pradesh, AIR 1954 Nag 90 (A)’. In that case the learned Judges observed as follows:

“Article 311(2) of the Constitution is in terms similar to Section 240(2) of the Government of India Act, 1935, except that it includes removal also within, its ambit. The above observations, therefor, apply with equal force to a case arising under the Constitution. In order, therefore, that the requirements of Article 311(2) should be deemed to be satisfied, it is not only necessary that the proposed action is intimated to the civil servant concerned but also that he should be duly informed of the grounds on which the action is proposed to be taken”.

32. The observations referred to above are taken, from a decision of the Judicial Committee of the Privy Council in the case of ‘High Commissioner for India v. I.M Lall, AIR 1948 P.C 121 (B)’, where their Lordships in construing Section 242 of the Government of India Act, 1935, observed:

“It does, however, seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service, he shall be so told, and he shall be given an opportunity of putting his case against the Proposed action and as that opportunity has to be considered reasonable opportunity, it seems to us that the section requires not only notification of the action proposed, but of the grounds on which the authority is proposing that the action should be taken, and that the person concerned must then be given a reasonable time to make his representation; against the proposed action and the grounds on which it is to be taken”.

33. In the case before the Nagpur High Court, the officer terminating the service of the petitioner therein took into consideration the Past record of the petitioner and passed the order to this effect, viz.,

“I feel, therefore, that though the charge of non-maintenance of diaries by itself may not justify an order of terminating his services, there is enough material as detailed above, to hold that Sri Dalai is not a fit person to be retained, I order, therefore, that the services of Sri Dalai should be terminated forthwith”.

34. And it is this order that was impugned before the Nagpur High Court as contrary to Article 311 of the Constitution. It is clear from this case that the ground for the termination of service was mainly the existence of enough material to the past record of the petitioner for terminating his services. The petitioner was not served with a copy of the past record and he had no opportunity to meet that.

35. It was on these considerations that the Nagpur High Court held that there was no compliance with the provisions of Article 311 of the Constitution, and the observations quoted above are mainly based with reference to that. In ‘AIR 1948 P.C 121 (B)’ the main contention was whether the respondent was entitled to two notices, viz., (1) the notice of charges, and (2) the notice of the proposed punishment. Their Lordships at pp. 126-127 observed 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. Before 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-s. (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 B. 55, it would not be reasonable that he should ask for 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 a result of the findings of the enquiry.

On this view of the proper construction of sub-s. (3) of S. 240, it is not disputed that the respondent has not been given the opportunity to which he is entitled thereunder and the purported removal of the respondent did not conform to the mandatory requirements of sub-s. (3) of S. 240 and was void and inoperative.”

36. In this case, therefore, it is clear that there was no second notice as contemplated under the then existing law.

37. The learned counsel also relies upon a decision of the Supreme Court, — ‘P. Joseph John v. State Of Travancore-Cochin ’, (S) AIR 1955 SC 160 (C), to show what the contents of a notice under Article 311(2) should be.

38. In that case in the notice which was quoted in the judgment of their Lordships, it was stated that the charges framed against the appellant therein were that he had misused his official position as Electrical Engineer to Government and showed undue favoritism at the expense of State revenue to private firms and that he was found guilty of insubordination towards the authority of the Government, and that the Government therefore proposed to remove him from service.

39. Relying upon these sentences as quoted in the judgment of the Supreme Court, the learned counsel contends that the notice should contain the gist of the charges of which the petitioner was found guilty, the conclusion that he was guilty and then the proposed punishment should follow.

40. The decision in the case does not say that the contents of the notice should be as stated by the learned counsel for the petitioner before us. On the other hand, the Supreme Court held with reference to Article 166 of the Constitution thus:

“In these circumstances, the contention of Mr. Thomas that as the notice was not expressed as required under Article 166 it was invalid, and therefore, the requirements of Article 311 were not satisfied, …. must be held to be devoid of force. We are satisfied that all the requirements of Article 311 have been fully complied with in this case.”

41. The judgment also observed with reference to Article 166 that

“the non-compliance with them does not result in the order being invalid and that in order to determine whether there is compliance with these provisions, all that is necessary to be seen is whether there has been substantial compliance with these requirements.”

42. In the case before us, it is clear that the enquiry was made by the Collector after, giving an opportunity to the petitioner. A copy of the order of the enquiry containing the conclusions arrived at by the Collector was also communicated to the petitioner, and the petitioner was also given notice a second time to show cause why the proposed punishment should not be awarded to him.

43. The punishment of dismissal was based on the conclusion arrived at that he was guilty of indiscipline and misconduct and no prior record of the petitioner was taken into account in awarding the punishment. In our opinion, there is a substantial compliance with the provisions of Article 311(2). It is after the enquiry was finished and the conclusions Were arrived at by the Collector that the second notice was given by him.

44. We are, therefore, of the opinion that? there is compliance with the rules and Article 311 of the Constitution in passing the order of dismissal against the petitioner. The order of dismissal is in accordance with law and the Constitution.

45. In view of this finding, the other questions of cancellation of the order appointing him as upper division clerk and the orders of suspension and stoppage of increment need not be considered.

46. The Petition is therefore dismissed but under the circumstances of the case there will be no order as to costs.

Panigrahi, C.J:— I agree. Mr. Ramdas pressed upon our attention the decision of the Supreme Court in. (S) AIR 1955 SC 160 (C), where the charges framed against the appellant were communicated by the Chief Secretary to the Government when he was called upon to show cause why he should not be removed from service. Mr. Ramdas therefore contended that it is obligatory that the charges should be served a second time on the petitioner before the punishment is inflicted. As I read Article 311, no such requirement is laid down either by the Constitution or by the rules in force. It may be noticed that in the case before the Supreme Court the enquiry was held by a Commissioner and his findings were accepted by Government. As there were several charges against the appellant some of which had been proved and some not, it was necessary to indicate in the second notice what charges had been established and accepted as proved by Government. No such question arises in the present case. The petitioner had been served with a copy of the notice and was called upon to reply to the charges framed by the Collector, and a copy of the findings had already been communicated by the Collector on 12-12-1951. The last sentence in the Collector's order: “I therefore dismiss the Clerk, Shri Kameswar Rao with effect from the date of suspension” was held to be irregular by the Board of Revenue as at that stage the petitioner was entitled to a fresh notice of the proposed punishment. I am satisfied that there has been no irregularity or infringement of the provisions of the Constitution.

D.R.R

47. Petition dismissed.