Judgement

UMAMAHESWARAM, J. :- This appeal is brought by the State of Andhra as against the judgment and decree of the Subordinate Judge of Guntur in O. S. No. 40 of 1955 declaring that the order of compulsory retirement of the 1st respondent and the order reverting him from the rank of officiating District Superintendent of Police to the post of Deputy Superintendent of Police are void and illegal. The State of Madras was impleaded in the appeal as the 2nd respondent and a memorandum of cross-objections was filed by it contending that the suit ought to have been dismissed on the merits and that in any event, no decree could be passed against it by virtue of the Andhra State Act 30 of 1953.

2. The plaintiff (1st respondent herein) was recruited as an Inspector of Police in the year 1927. While he was serving as the Deputy Superintendent of Police at Jammalamadugu, he received an order dated 13th of August, 1947, that he was appointed to officiate as District Superintendent of Police, Chittoor and he accordingly took charge on 15th August, 1947. The plaintiff was thereafter reverted as Deputy Superintendent of Police by D. O. dated 1st October, 1947. While he was serving as Deputy Superintendent of Police at Guntur three charges were framed by the Special Officer, Departmental Enquiries and served on him. In the enquiry held by the Special Officer, it was found that he was guilty of all the charges.

The Special Officer recommended to the Government of Madras that he should be removed from service. The Government of Madras sent a notice, dated 10th November, 1948, enclosing a copy of the proceedings of the Special Officer directing him to show cause why he should not be dismissed from service. After hearing the objections filed by him and consulting the Public Service Commission, the Government of Madras passed an order, dated 19th October, 1948, that the plaintiff should be compulsorily retired from service with effect from 18th November, 1948. The plaintiff thereupon preferred an appeal to His Excellency the Governor and it was rejected on 17th February 1950.

On 24th January, 1953, the plaintiff issued the suit notice to the State of Madras and filed Civil Suit No. 239 of 1953 on the file of the High Court of Madras. After the High Court of Andhra was formed, the suit was transferred to the file of the Subordinate Judge, Chittoor, and from Chittoor it was later on transferred to the Subordinate Judges Court at Guntur. The Subordinate Judge accepted the contentions of the plaintiff and decreed the suit both as against the State of Andhra and the State of Madras. The appeal and the memorandum of cross-objections were filed respectively by the two State Governments as against the judgment and decree of the Subordinate Judge to the High Court of Andhra.

3. The two important questions that arise for determination in the appeal are (1) whether the plaintiff was not given a fair and reasonable opportunity to present his defence before the Special Officer; and there was no due and proper enquiry before him; and (2) whether the order of reversion was a reduction in rank and was null and void on the ground that no notice was given to him, and the order was passed by an authority who was subordinate to the appoting authority.

4. The Subordinate Judge found that there was no due enquiry as no proper opportunity was given to the plaintiff to file his written statement and to cross-examine some of the prosecution witnesses, that material defence evidence was shut out and that grave prejudice was caused thereby to the plaintiff in the conduct of his defence. It is, therefore, necessary to discuss the evidence bearing on this point and determine whether his conclusion on the facts is correct.

5. The proceedings of the Special Officer, dated 9th March, 1948, framing three charges with copies of statements of witnesses examined by him in the course of the preliminary enquiry were communicated to the plaintiff and he was called upon to file his written statement on or before 9th April, 1948. He was also directed to file a list of witnesses whom he desired to examine and a list of documents he intended to rely on. The plaintiff sent a petition on 2nd April, 1948, marked as Exhibit A-14 stating that he received the charges on or about 15th March, 1948, that he had to go on Court duty on casual leave on 17th March, 1948, that he returned to Guntur on 26th March, 1948, that the orders of transfer requiring him to hand over charge on 30th March, 1948, were cancelled on 31st March, 1948, by wireless message and that he required time for submitting his explanation till 2nd May, 1948. On 12th April, 1948, the Special Officer passed an order on his application for extension of time in the following terms :

"The time has elapsed. No further time could be given. The inquiry will go on without his statement."

But, before the order was communicated to him, he sent another petition marked as Exhibit B-26, on 14th April, 1948, inviting the attention of the Special Officer to his application for extension of time. He therein requested that he might be permitted to peruse the documents mentioned therein before offering his explanation. On the said application, the Special Officer passed an order that he would be permitted to see documents Nos. 1 to 5 but not No. 6. He further stated that those documents might be perused only at the time of the enquiry. In Exhibit A-16, dated 19th April, 1948, the Special Officer communicated to him that he was already informed in D. No. 1081, dated 14th April, 1948, that no further time for filing written statement would be given and that the inquiry would go on with out it.

In Paragraph 2, it was stated that he would be permitted to peruse documents Nos. 1 to 5 in his office on the date of the inquiry which was fixed for the 17th May, 1948. Exhibit A-17, dated 19th April, 1948, was the notice issued by the Special Officer that the inquiry would commence at 11 A. M. on 17th May, 1948. It was mentioned therein that the plaintiff should produce his defence witnesses on 19th May, 1948, and that if he required summonses to be issued for the production of documents or the examination of witnesses he should forthwith send the list. On 4th May, 1948, the plaintiff filed a statement with a list of documents and witnesses to be summoned for. He therein complained how copies of the documents referred to in support of the charges were not sent to him though the copies of the witnesses statements recorded by the X Branch were sent to him.

He further stated that proceedings D. No. 1081, dated 14th April, 1948, refusing time to submit his explanation were not received by him. He pointed out that no proper and satisfactory explanation could be filed by him without seeing the records of the X Branch inquiry. On 17th May, he filed a statement marked as Exhibit B-20 and also filed appearance through his Advocate Sri A. K. Pillai. The learned Subordinate Judge has discussed these documents in paragraphs 41 to 43 and found that the Special Officer erred in not giving a reasonable opportunity to the plaintiff to file his statement as required under R. 15 (b) of the Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as "the Rules", and I am inclined to agree with him.

The Special Officer ought to have taken into consideration the various reasons given in Exhibit A-14 by the plaintiff and extended the time to file the statement. The order passed by him on 12th April, 1948, that as the time fixed by him in the original notice had elapsed, no further time could be given for filing the statement and that the inquiry would be proceeded with without his statement is, in my opinion, not proper. Even assuming that in an ordinary case, a months time for filing a statement may be sufficient, the Special Officer failed to address his mind to the various circumstances set out in Exhibit A-14, which prevented the plaintiff from filing his explanation within the prescribed time.

It may also be noted that the request made by the plaintiff in Exhibit B-26 that he might be permitted to peruse the documents before filing his defence is very reasonable. For submitting his explanation the plaintiff requested permission to look into the documents. I am unable to understand from the order passed on Exhibit B-26 why the officer took the view that even the documents in respect of which permission was granted should not be looked into before filing the statement but only on the date of the inquiry. No reasons are stated as to why the plaintiff was not entitled to look into the original statements of the witnesses recorded by the officer during the preliminary enquiry.

6. The learned Government Pleader contended that inasmuch as the plaintiff had filed his statements Exhibits A-18 and B-20 and they form part of the record, there was no denial of opportunity to file the statement and no prejudice was caused to him. I am not inclined to accept this contention in view of the specific order made on Exhibit B-25 that the enquiry would go on without the statement and in view of the statements made by the officer in paragraph 3 of this order that as no written statement had been filed, the inquiry was posted to 17th May, 1948 and that there was no provision under the Rules for receiving a further written statement. In my view, the Officer ought to have permitted the plaintiff to look into the documents and given him reasonable time to file his explanation in regard to the charges.

From a perusal of his order, I am not in a position to say that even though the statements Exhibits A-18 and B-20 were not rejected but kept on his file, he took them into consideration in arriving at his conclusions. I am therefore inclined to the view that one of the conditions laid down in R. 15 (b) (i) that the plaintiff should be given reasonable time to put in a written statement of his defence is not satisfied by the officer.

7. The next complaint of the plaintiff is that he was not given a proper opportunity to cross-examine the prosecution witnesses P. Ws. 11 to 14. In order to appreciate this complaint, it is necessary to set out a few details regarding the course of the inquiry. Though, under the rules, the plaintiff was not entitled to appear through an advocate having regard to the important and difficult nature of the case, special permission was granted to Barrister A. K. Pillai to represent him in the inquiry. The inquiry which stood posted to 17th May, 1948, was adjourned to 19th May, 1948, as the prosecution witnesses did not turn up on that day. P. Ws. 1 to 10 were examined between 19th and 21st and the inquiry was adjourned to 2nd June. The plaintiff sent a medical certificate Exhibit A-21 dated 31st May, 1948, from an Honorary Assistant Surgeon of .the Headquarters Hospitals, Masulipatam, and an application for adjournment Exhibit A-22.

The Doctor certified that as he was suffering from neurolisis and palpitation of heart, he was not in a fit condition to proceed to Madras from Masulipatam for the inquiry. The Special Officer thereupon sent a telegram to the plaintiff asking him to appear before the District, Medical Officer and wrote to the Government to request the District Medical Officer to examine him. The District Medical Officer examined the plaintiff and gave a certificate Exhibit A-23 that he was in a bad state of health and that it was necessary that he should be granted two months leave. He set out in his report that the plaintiff had neuritis and low blood pressure, numbness of right half of the body, and shooting pain on the left side, that slight exertion was causing him exhaustion and that he had now and then attacks of palpitation. After the receipt of the report of the District Medical Officer, the inquiry was adjourned to 25th June.

In Exhibits A-25, the plaintiff was informed that the inquiry stood adjourned to 25th June, 1948, peremptorily and that if he did not appear on that day, the inquiry would be proceeded with in his absence. In spite of his illness, the Plaintiff appeared on 25th June and requested the Special Officer by his application Exhibit A-26 that an adjournment for three weeks might be granted to him. He also represented in that application that his Advocate A. K. Pillai had gone to Nagpur on professional work and that his services were therefore not available to him. The Special Officer refused to grant an adjournment and proceeded with the examination P. Ws. 11 to 14. The plaintiff, who was in a very weak state of health, had to personally proceed with the cross-examination of those witnesses.

It is really surprising that in spite of the illness the plaintiff was compelled to proceed with the cross-examination of the witnesses. It appears from the B Diary Exhibit B-39 that the inquiry was not completed on the 25th June but was adjourned to 30th and 31st of July, for the examination of the prosecution evidence. The facts narrated above clearly reveal that the officer was not at all considerate and did not take into consideration the serious nature of the illness from which the plaintiff was suffering as also the fact that he had not the services of the advocate whom he engaged. In paragraph 3 of the report, the Special Officer states that he had an uneasy feeling that the certificate of the Honorary Medical Officer stating that the plaintiff was ill was not correct and that his apprehension was in a way justified by the report of the District Medical Officer.

Having carefully perused the two certificates, I have no doubt that the plaintiff had heart trouble and that he required rest. The Special Officer ought to have been more humane and granted the application for adjournment on the ground of his illness. The rejection of the adjournment application of the 25th and the insistence upon the plaintiff to cross-examine P. Ws. 11 to 14 without the assistance of a lawyer amount, in my opinion, to denial of a fair opportunity to the plaintiff to substantiate his defence. I do not think that I can uphold the learned Government Pleaders contention that the plaintiff effectively cross-examined P. Ws. 11 to 14 even though he was ill and he was denied the assistance of his Advocate.

When the inquiry could not be completed on the 25th June, and had to be adjourned at the instance of the prosecution to 30th July, I fail to see how the granting of the adjournment would have in any way affected the disposal of the case. When the plaintiff, who was permitted to appear by an Advocate, represented that his Advocate was absent at Nagpur on professional work and was consequently not available, the Special Officer ought not to have insisted upon the plaintiff to proceed with the cross-examination of P. Ws. 11 to 14. I agree with the conclusion of the learned Subordinate Judge that having regard to the circumstances set out above, no proper opportunity was given to the plaintiff to cross-examine P. Ws. 11 to 14.

8. It is next contended that the plaintiff was denied a proper opportunity to make out his defence. This aspect of the case is dealt with by the Subordinate Judge in paragraphs 46 to 51 of the judgment. Having given my best consideration, I am inclined to agree with his conclusion and I shall proceed to set out my reasons hereunder.

9. Even before the conclusion of the prosecution evidence the plaintiff was called upon by the Officer to give a list of documents and the witnesses he required to examine in support of his defence. The plaintiff accordingly filed the list along with Exhibit A-18 in May, 1948. In July, the plaintiff was called upon to revise his list of witnesses and documents and he accordingly filed revised lists marked as Exhibits A-29 and A-30 on 15th July, 1948. He mentioned the names of 63 witnesses in Exhibit A-29 and specified 22 documents in Exhibit A-30. An order was passed on Exhibit A-29 in the following words :

"Nos. 1 to 6, 16 to 18, 24 to 31, 34 to 51, 55 to 57, 62 not relevant. They have no material bearing on the case. These witnesses will not be summoned. The others will be summoned."

The order does not bear any date. On Exhibit A-30, no order was passed rejecting or directing, the summoning of the documents specified therein. It appears that out of 22 witnesses summoned according to the order of the Officer, only 15 were examined on behalf of the plaintiff on 1st and 2nd September. According to the plaintiff. the inquiry was abruptly and arbitrarily closed, on the 2nd, and he had therefore to file three applications marked as Exhibits B-34, B-35 and B-36 requesting the Officer to summon at least a few important documents and witnesses and to permit Sri Seshagiri Rao Retired Deputy Collector, whom he had brought as a witness, to be examined. On Exhibit B-34, the following order was passed on 2nd September, 1948.

"This witness who is No. 34 in the list of D. Ws. filed on 20th July, 1948, was declared by me as not relevant, in my order passed on that petition. His evidence does not become relevant simply because the accused officer has chosen to bring him and the latter consented to come without summonses. I decline to have him examined."

Though Exhibits B-35 and B-36 were also filed on 2nd, no orders were passed oh that day. On 9th September, the Officer passed an order on Exhibit B-35 in the following terms :

"I see no justification to grant this request to summon these at this stage. The accused officer has been granted all reasonable time and facilities to have his witnesses summoned. This request is refused,"

The order passed on Ex. B-36 on, 11th September, 1948, is in the following terms :

"This was filed after the whole inquiry was closed. No. 2 is not available. As No. 7 serves the purpose of 4 and 5, it was brought and seen by the accused officer. No. 1 cannot be given. "Nos. 3, 6 and 7 were here and the officer saw them in the presence of the X Branch Inspector and under my orders."

It is strenuously contended by the learned Advocate for the 1st respondent that he was denied a reasonable opportunity to substantiate his defence by reason of the several orders passed on Exhibits A-28, B-34 to B-36 and the omission to summon the documents mentioned in Exhibit A-30. Rule 15 (b) (i) in so far as it is relevant runs as follows :

"He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and 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 special and sufficient reason to be recorded in writing, refuse to call a witness."

The order passed on Exhibit A-29 is extremely laconic. It does not contain any special or sufficient reasons for refusing to summon all the witnesses mentioned by the plaintiff. It was no doubt open to the officer to shut out the examination of irrelevant witnesses if the object of the plaintiff was to delay or procrastinate the proceedings. Except stating that some of the witnesses alone were relevant and the others had no material bearing on the case, the order does not specify any reasons as required under the rule. If the officer had thought that some of the witnesses were not relevant and were not required to be examined, he could have discussed the matter with the learned Advocate for the plaintiff or with the plaintiff himself and come to a decision whether they were irrelevant and had no material bearing on the case.

The contention that the Officer could decide by a mere perusal of the list which of the witnesses were relevant or not is, in my opinion, not quite convincing. The list no doubt contained Indications for what purposes the witnesses were required to be examined. If the Officer felt that some of them were irrelevant, he ought to have given an opportunity to the Advocate or the party for convincing him about the relevancy or otherwise. Moreover, as stated supra, even though he had issued summonses to 22 witnesses, only 15 witnesses were examined on behalf of the defence on 1st and 2nd September. According to the plaintiff, the other witnesses to whom summonses were issued did not turn up. If so the Officer ought to have granted further time for their examination.

I am inclined to take the view that the closure of the case on 2nd September without giving an opportunity to the plaintiff to examine at least the witnesses already summoned was not justified. When the plaintiff presented the application Exhibits B-35 and B-36 on the same day as Exhibit B-34. I fail to see why no orders were passed immediately on those applications but were reserved till 9th and 11th. According to the plaintiff, he did not know the orders passed on Exhibits B-35 and B-36 till he offered his explanation to the Government in pursuance of Exhibit A-30 and I accept his evidence. The procedure adopted by the Officer creates an impression in my mind that the plaintiff had not a fair deal before him. The omission to pass an order on Exhibit A-30 and to summon the documents specified in that list also confirmed my view on this aspect of the case.

10. The learned Government Pleader contended that inasmuch as the finding of the Special Officer on charge No. 1 was not accepted by the Government, I ought not to embark upon the question as to how far the plaintiff had a reasonable opportunity to proceed with the inquiry in respect of charge No. 1 but confine myself to the question whether he was denied a fair opportunity in putting forward his defence in respect of charges 2 and 3. It is no doubt true that the inquiry related to three charges and that the witnesses sought to be examined in respect of those charges were distinct and different. The most serious charge levelled against the plaintiff was charge No. 1, viz., that he had taken bribe of Rs. 4.800 from Abbi Reddi. In considering whether he had a reasonable opportunity or not at the inquiry it may not be safe or advisable to dissect or separate the charges and consider how reasonable opportunity was not afforded if respect of each of the charges.

11. But even assuming that the contention of the learned Government Pleader is sound and that I should confine myself to the question whether the plaintiff was handicapped at the inquiry in respect of charges 2 and 3, I am inclined to hold on the evidence on record that reasonable opportunity was denied to the plaintiff in respect of those charges and that he was also greatly prejudiced thereby. So far as charge No. 2 is concerned, the officer relied solely on the evidence of Bahadur and came to the conclusion that he supplied petrol to the car used by the plaintiff and that the plaintiff submitted a false travelling certificate. The case of the plaintiff was that Bahadur had not supplied the petrol as spoken to by him, but that he paid Rs. 15 into the hands of the driver Imam.

In the revised list submitted by the plaintiff marked as Exhibit A-29, he cited three witnesses R. Narasimha Beddi, Gurazala Konda Reddi and driver Imam Sahib for that purpose. The officer issued summonses to all three of them. Only two of the witnesses, i. e., Narasimha Beddi and Konda Reddi were examined as D. Ws. 14 and 15. The plaintiff was denied the opportunity to examine the other important witness, viz., Imam to make out his defence. In Exhibit A-34 the plaintiff pointedly stated that the Officer erred in not adjoining the inquiry for the absentee D. Ws. to whom summonses were issued and who sent their reports of inability to attend the inquiry for the reasons stated by them, The failure to give an opportunity to examine Imam is, in my opinion, a serious one.

The learned Government Pleader commented that no complaint was made by the plaintiff about the non-examination of Imam in the written statement Exhibit A-31 or in the plaint. But, as already pointed out the plaintiff had expressly referred to the non-examination of some of the witnesses summoned in Exhibit A-34. From the omission, it is not reasonable to conclude that the witness was neither material nor that the plaintiff gave up his examination. The complaint of the plaintiff as appears from the petitions filed by him on 2nd September, as also from his evidence in the suit is that the case was abruptly and arbitrarily closed on 2nd September. I am not inclined to agree with the learned Government Pleader and infer that he gave up the witness Imam.

There are no records produced by the Government to show that as a matter of fact the plaintiff gave up the examination of Imam. I would have sent for the summonses and examined the original records to find out why Imam did not appear on the date of hearing but for the fact that I was informed that, the records were destroyed on 17th February, 1953. It appears that the plaintiff gave the suit notice on 24th January, 1953 and it would have been advisable if the records had not been destroyed having regard to the notice of the threatened suit. But as stated above, I am not satisfied that there are any indications in the records that the plaintiff voluntarily gave up the examination of such a material witness like Imam.

12. The finding on charge No. 2 by the Officer is as already stated, based, on die uncorroborated testimony of Bahadur. The case of the plaintiff is that Bahadur bore him a grudge as he had recommended the suspension of his permit and took proceedings against him. It appears from Exhibit A-29 that he wanted to examine K. Hussain Sub. Khaja Mia, G. Krishnamurthi, (an advocate of Poddatur) and H. G. David. In the list filed by him, it is stated that K. Hussain Sab and Khaja Mia would speak about the action he personally took against the buses of Bahadur on their complaint.

Summonses were directed to be issued to Krishnamurthi, the advocate "to file his petition against buses of Bahadur and to speak to the personal action I (the plaintiff) took against Bahadur. The note made against H. G. David way, "to statethat he kept a special eye over Bahadur and Abbi Reddis activities under my (plaintiff) instructions." In paragraph 23 of the report, the Special Officer comments that there is no evidence on behalf of the plaintiff to show that he took action against Bahadur. The Officer stated that all that the plaintiff Mr. Kameswara Rao did was only to issue written instructions to his subordinates with regard to the bus services in general and that it might be that one or two of Bahadurs numerous buses had been dealt with by the Police. If the witnesses cited oh behalf of the plaintiff to prove that Bahadur was inimically disposed towards him by reason of the action taken by him, were not summoned for, how could the plaintiff prove that fact? The comment of the Officer is unjustified especially when he shut out the evidence of those relevant witnesses. I am inclined to hold that the laconic order passed by the Officer on Exhibit A-29 stating that those witnesses were irrelevant is erroneous and that the comment made by him that the plaintiff did not prove that he took action against Bahadur is equally unjustified. It was contended by the learned Government Pleader that the plaintiff was in no way Prejudiced by their non-examination. I am not inclined to agree with him as the Officer himself drew adverse inference against him for not producing rebuttal evidence.

It was next contended on behalf of the Government that omission to issue summonses to Krishnamurthi, the Adocate, was immaterial inasmuch as his petition was filed. It is no doubt true that the petition was filed and a report was called for by the plaintiff from the Circle Inspector. But the plaintiff had not the benefit of his oral evidence supporting his version. It was next urged that the evidence of these witnesses as regards the motive is not relevant in view of the terms of section 153 of the Indian Evidence Act. In the cross examination of Bahadur (Exhibit A-46), he stated that the Officer did not send for him and warn him. In order to prove that he was a partial witness and was actuated by motive, the plaintiff ought to have been permitted to examine those witnesses. Moreover, as pointed out by the learned Advocate for the plaintiff, the provisions of the Indian Evidence Act do not apply strictly to the Inquiries held under the rules and the Officer himself appears to have been of the view that evidence on such a question might be adduced; (vide paragraph 23 of his report).

By the non-issue of the summonses to those witnesses and their non-examination, I have no doubt that the plaintiff was denied a fair opportunity and was also prejudiced. In the list of documents (Exhibit A-30), the plaintiff stated that documents Nos. 1, 5 and 17 were material for establishing his defence in respect of charge No. 2. As already stated, no orders were passed by the officer on the application and the documents do not appear to have been called for. The plaintiff was therefore obliged to file another application after the inquiry was closed.

13. In Exhibit B-36, he requested that the Municipal Travellers Bungalow Register of Proddatur might be sent for as it would show that he did not stay in the Travellers Bungalow as spoken to by Bahadur. In the order passed on 11th September, 1948, it was stated that the plaintiff had already inspected the Municipal Travellers Bungalow Register in the presence of the X Branch Inspector and under his orders. The records do not show that any written orders were passed by the Officer permitting the plaintiff to inspect the Municipal Travellers Bungalow register. If really the plaintiff had inspected documents Nos. 3, 6 and 7, as mentioned in the order on Exhibit B-36, it is highly unlikely that the plaintiff would have filed a petition Exhibit B-36 stating that he wanted those documents to prove his case.

The X Branch Inspector would have stated immediately on the presentation of the application that the statement made in Exhibit B-36 were false and that he had already inspected the documents. The Officer himself would have passed an order to that effect on the 2nd. The plaintiff, who was examined in the suit, stated that Exhibits B-34 to B-36 were prepared under the instructions of his Advocate after the inquiry was abruptly closed and that he did not inspect documents Nos. 3, 6 and 7 mentioned in Exhibit B-36. The Subordinate Judge accepted his version, and I see no reason to differ from him and hold that after inspecting the documents the plaintiff made false statements in Exhibit B-36.

It was pointed by Sri Sankara Sastri that the Travellers Bungalow Register was not included in the May list but only included in Exhibit A-30, and it is therefore not likely that the document would have been brought by the X Branch when no orders were passed on that application. I agree that there is great force in this contention.

14. The Government Pleader next urged that the plaintiff, who had private copies of the D. O. and the Travellers Bungalow Register, should have produced them rather than make a complaint about their non-production. It appears from Exhibit A-34 that the plaintiff had private copies of those two documents. But those private copies are not admissible in evidence without production of the originals, and the explanation given by the plaintiffs learned advocate for not filing them appears to be quite sound.

15. The learned advocate for the 1st respondent contended that in respect of the third charge, witnesses Nos. 39 to 42 specified in Exhibit A-29, were relevant for the plaintiff and that he was prejudiced as a result of the Officer not summoning them and refusing to examine them. He also stated that documents Nos. 1, 5, 15 mentioned in Exhibit A-30 were required for substantiating his defence. Charge 3 framed against the plaintiff was that on the pretext of buying car M.S.C. 1139 from G. Ramakrishna Reddi the plaintiff took away the car without paying for it and used it for months and returned it to the owner in October, 1947, when he knew that an inquiry against him was in progress. It was stated that his conduct amounted to cheating and was unbecoming of an officer of his status.

The Officer discussed the evidence in paragraphs 25 to 27 of his report and found that the charge was proved. That the plaintiff was using the car was spoken to by P. W. 3, a Sub-Inspector of Police. As regards the purchase of the car from P.W. 2 for the benefit of the plaintiff, Ramakrishna Reddi was examined as P.W. 11. A statement was recorded from him in the course of the preliminary inquiry and it was marked as Exhibit A-48. The Officer took the view that in the course of the evidence P.W. 11 showed an inclination to help the plaintiff, and he therefore preferred to rely upon Exhibit B, a letter addressed to Gurumurthi P.W. 2 by Karim, the original owner, asking him to transfer the car in the name of the plaintiff.

He appears to have been influenced by the earlier statement recorded from P. W. 11 and marked as Exhibit A-48. According to the plaintiff pressure was brought to bear upon the several persons to state falsely against him and that the statement Exhibit A-48 recorded from P.W. 11 was similarly obtained. He cited witnesses Nos. 39 to 42 in Exhibit A-29 for the purpose of showing that they all refused to state falsely against him in spite of the pressure and propaganda from the X Branch. Document No. 1 mentioned in Exhibit A-30, was the anonymous petition sent against him in July, 1947 and which, according to him, was duly inquired into by the District Superintendent of Police, Cuddapah, who found that the allegations mentioned therein were all false.

Document No. 5 in Exhibit A-30 was his D.O., dated 20th October, 1947, addressed to the Inspector General of Police. The plaintiff contended that if those two documents were sent for he would have satisfied the Officer that no reliance should be placed upon the earlier statement obtained from P.W. 11. It was further contended that document No. 15 was a very important document which, if summoned by the Officer, would have demonstrated that the Sub-Inspector P.W. 3 deposed against him falsely as he was reprimanded on 21st February, 1947.

As stated supra, no orders were passed on Exhibit A-30. Document No. 15 is, in my opinion, a very relevant and material document, which if produced, would have proved that P.W. 3 had a strong motive for deposing on behalf of the prosecution. The learned Government Pleader argued that as P.W. 3 admitted that he was warned, the production of the document would not have in any way advanced the case of the plaintiff. As regards the non-examination of witnesses 39 to 42, he submitted that their evidence would not be relevant. He urged rightly that from the mere fact that some of the witnesses refused to give false statements, it does not follow that the statement recorded from P.W. 11 was false. The anonymous petition, according to him, was also irrelevant for the inquiry.

Even accepting his contention to this extent, I am not prepared to take the view that the non-summoning of documents Nos. 5 and 15 has not affected the plaintiffs case. In dealing with the question as to whether the plaintiff had a reasonable opportunity on charge No. 2, I held that the plaintiff could not rely on the private copy of the D. O. and that it was obligatory on the part of the officer to have summoned that document. In my opinion, the D.O. dated 20th October, 1947 as also the proceedings taken against P.W. 3 (document No. 15) are important and material documents, which the plaintiff was entitled to summon and mark on his behalf in the course of the inquiry.

The non-summoning of those documents would have certainly caused prejudice to the plaintiff. I may also mention in this connection that P.W. 11 was one of the important witnesses examined on behalf of the prosecution in respect of charge No. 3 and the plaintiff was compelled to proceed with his cross-examination in person and without the assistance of an advocate in spite of this serious illness.

16. It was strongly contended on behalf of the appellant that the violation of Rule 15 (b) (i) viz.. the omission to (1) extend time for filing the written statement; (2) to give a proper opportunity to cross-examine P.W. 11; (3) to examine Imam to whom summons was issued; (4) to issue summonses to witnesses Nos. 55 to 57 and 62 in Exhibit A-29; and (5) to summon documents Nos. 1, 5, 15 and 17 in Exhibit A-30, did not in any way prejudice the plaintiff as he has not explained now how they would materially advance his defence and prove his innocence. There is no substance in this contention. It is not for this Court to speculate how far, if evidence was permitted to be produced, or if the plaintiff was given a fair opportunity to effectively cross-examine the prosecution witnesses and file his statement he would have convinced the officer that he was not guilty of the charges framed against him.

It has been repeatedly laid down that the civil Court does not sit as a Court of Appeal and decide whether the conclusion of the officer in the inquiry is erroneous on facts or law. Similarly, it is not open to this Court to decide whether the additional evidence wrongly shut out as a result of not giving a proper opportunity would or would not have affected his decision. If this Court is satisfied on the particular facts that the terms of R. 15 (b) (i) have been violated and that a reasonable opportunity was not afforded, it should be declared that the order is null and void. If this Court is denied the right to examine the record and decide whether the report is correct or not, it would also not be proper for the Court to consider the effect of the excluded evidence.

The main question of fact to be decided in the circumstances is whether a fair and reasonable opportunity as required by rule (15) (b) (i) has been afforded to the Officer charged or not. If this Court comes to the conclusion that the inquiry is vitiated by a denial of a fair and reasonable opportunity, this Court ought not to sustain the report on the ground that even if the excluded evidence had been admitted or the statement received, the officer might or would have reached the same decision.

17. As stated supra, I am clearly of opinion that relevant and material evidence has been shut out. As pointed out by Rajamannar C. J., in Murugesan v. Collector of Tanjore, W.A. No. 131 of 1955 (Mad) (A) :

"If and how the appellant could have used the entries in the Disbursement Register, was not a matter for the Collector to decide nor is it for us. All that we can certainly say is that the Disbursement Register was surely relevant and material."

18. It was pointed out by the learned Chief Justice in an earlier passage that

"If the records asked for were really relevant and material for the purpose of the defence of the appellant, failure to provide the appellant with them would result in failure of justice, because the appellant would have been denied an opportunity to defend himself."

19. My view is also supported by the unreported decisions of Rajagopalan, J., in C. K. Ayya Goundar v. State of Madras, W. P. No. 739 of 1953 (Mad) (B), and of Rajagopala Iyengar J., in C. Subrahmaniam v. State of Madras, W. P. No. 114 of 1955 (Mad) (C). The learned Judges came to the conclusion that no fair and proper opportunity was given to the officers charged in those cases. The observations of Rajagopala Iyengar. J. :

"But, in the present case, if they had adequate reasons for disallowing the permission to examine items 11, 12 and 13 in the list filed on 12th April, 1952, it would not be fair on their part to have blamed the accused for the state of the evidence on this point"

apply ad idem to this case. Having refused to examine witnesses Nos. 55 to 57 in Exhibit A-29, the Officer commented that there was no evidence on behalf of the plaintiff to show that he had recommended the suspension of the permit and wanted his police subordinates to severely deal with the buses of Bahadur. The order passed on Exhibit A-29 is as bald and laconic as in W. P. No. 739 of of 1953 (Mad) (B), decided by Rajagopalan, J. The learned judge rightly laid emphasis on the words "special or sufficient" in the rule. I have therefore no hesitation on the facts of this case to confirm the finding of the Subordinate Judge that the plaintiff was not given a fair and reasonable opportunity as required by R. 15 (b) (i) and that the inquiry was consequently null and void.

20. Before concluding this part of the case, it is necessary to refer to the argument of Sri Sankara Sastri that he was prevented from producing certain relevant and important documents such as Exhibits A-41 and A-42 which support his defence. I am not prepared to accept his contention as he might have filed Exhibit A-42, a letter dated 26th August, 1947, received by him from Sri Krishnamurthi. Similarly, he might have applied for copies of Exhibit A-41, and filed them earlier. There is nothing on record to show that he ap plied for time to produce those documents and that an opportunity was denied to him. This contention is consequently overruled.

21. I shall now deal with the legal contentions raised by both the parties. Sri Sankara Sastri contended on behalf of the 1st respondent that the provisions of Art. 311 of the Constitution have been violated, and that as no reasonable opportunity of showing cause against the action proposed, namely, to compusorily retire him from service, was given to him, the order of compulsory retirement was null and void. Under clause (1) of art. 311, no person holding a Civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Clause (2) provides that 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.

According to clause (2), reasonable opportunity is required to be given only when the person holding the civil post is dismissed or removed or reduced in rank, but does not enact in express terms that reasonable opportunity should be given in the case of compulsory retirement. But it is contended that the word "removed" would cover a case of compulsory retirement as the officer by reason of his compulsory retirement is prevented from discharging the functions of his office.

22. In order to understand the scope and effect of the technical expressions employed in Art. 311 viz., "dismissed" or "removed" or "reduced in rank", it is necessary to compare the language of Art. 311 with the corresponding section of the Government of India Act of 1935, i.e., S. 240. Under S. 240 (3), reasonable notice was required to be given only to persons dismissed or reduced in rank. The word "removed" was newly introduced by the Constitution. The meaning to be attached to the said expression was elaborately discussed by the Supreme Court in Shyam Lal v State of U. P., 1954 Mad LJ 730 : (AIR 1954 SC 369) (D). The history and development of the rule embodied in Art 311 is discussed in detail. Citing High Commr. for India v. I. M. Lall, 75 Ind App 225 : (AIR 1948 PC 121) (E), it was held that "removal" is comprised with "dismissal". It was also stated that there is no distinction between a dismissal and a removal except that the former disqualifies for future employment while the latter does not. At page 737 (of Mad LJ) : (at p. 374 of AIR), Das J., (as he then was) lays down that :

"Removal like dismissal, no doubt brings about a termination of service but every termination of service does not amount to dismissal or removal,"

23. Reference was next made to the earlier decision of the Supreme Court in Satischandra Anand v. Union of India, 1953 SCJ 323 : (AIR 1953 SC 250) (F), that Art. 311 does not apply to all cases of termination of services. The question whether a termination of service brought about by compulsory retirement is tantamount to a dismissal or removal from service so as to attract the provisions of Art. 311 of the Constitution was next discussed. The answer to the 1st respondents contention is furnished by Das, J., (as he then was) in the following terms :

"But an officer who is compulsorily retired does not lose any part of the benefit that he has earned. On compulsory retirement he will be entitled to the pension, etc., that he has actually earned. There is no diminution of the accrued benefit. It is said that compulsory retirement, like dismissal or removal, deprives the officer of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to gel an enhanced pension and that it is certainly a punishment. It is true that in that wide sense the officer may consider himself punished but there is a clear distinction between the loss of benefit already earned and the loss of prospect of earning something more.

In the first case it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore, be regarded in the eye of the law as a punishment. The more important thing is to see whether by compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal." Following these observations, I have no hesitation in holding that compulsory retirement does not amount to dismissal or removal so as to attract the terms of Art. 311 of the Constitution or the corresponding section of the Government of India Act, 1935.

24. The learned advocate for the 1st respondent sought to distinguish the Supreme Court case on the facts of the case. He invited our attention to the passage at page 737 (of Mad LJ) : (at p. 374 of AIR) in 1954-1 Mad LJ 730 : (AIR 1954 SC 369) (D), wherein it is stated that it was made perfectly clear by the letter dated 4th January, 1950, that the Government was not holding any formal enquiry under R. 55 of the Civil Services (Classification, Control and Appeal) Rules and that the enquiry was made by the Government only to make up its mind as to whether it was in the public interests to dispense with his services and contended that the decision should be applied only to a case where there is no imputation or charge against the officer.

He urged that inasmuch as the order of compulsory retirement was passed by the Government, of Madras on the ground that charges 2 and 3 were proved against him, the case is not ad idem with the Supreme Court decision. There is no doubt some force in this contention as unlike ordinary cases of compulsory retirement there is a stigma attached by the acceptance of the findings on charges 2 and 3. But, I do not propose to accept this distinction as I am bound by a recent, decision of a Division Bench of this Court in Gnanamani v. State of Andhra, W. A. No. 69 of, 1956 (Andhra) (G), (to which one of us was a party). I consequently overrule this contention. 25. In passing, it may be mentioned that the same view has been taken by a Full Bench of the Nagpur High Court in Shankar Datta v. State of M.P., (S) AIR 1956 Nag 162 (H), the Punjab High Court in Dass Mal v. Union of India, AIR 1956 Punj 42 (I), and by the Calcutta High Court in Ramesh Chandra v. Director-General of Observatories AIR 1953 Cal 767 (J). The contrary view, which was taken by the Saurastra and Pepsu High Courts in Saubhagchand M. Doshi v. State of Saurastra, AIR 1954 Sau 146 (K), and Shambhu v. Patiala and East Punjab States Union, AIR 1952 Pepsu 152 (L), was prior to the decision of the Supreme Court in 1954-1 Mad LJ 730 : (AIR 1954 SC 369) (D), and those decisions can no longer be regarded as good law and be followed.

26. The learned advocate for the 1st respondent rightly relied upon the provisions of R. 15 (b) (i) of the rules and contended that inasmuch as the said provisions have been violated the order of compulsory retirement should be declared to be illegal and void. The rules have been framed in exercise of the powers conferred by Paragraph (b) of sub-s. (2) of S. 241 of the Government of India Act of 1935. Rule 8 sets out the several penalties

"that may for good and sufficient reasons and as hereinafter provided be imposed upon the members of the services specified in R. 5"

. Sub-clause (6) relates to the penalty of compulsory retirement. Rule 15 (b) (i) enacts that in every case where it is proposed to impose on a member of the service penalty No. 6, the procedure laid down therein should be followed.

The learned Government. Pleader contended that as the plaintiff holds his appointment at the pleasure of the Crown, his services can be terminated without assigning any reasons and that even if the provisions of R. 15 (b) are not followed the officer has no legal grievance. A similar contention was raised on behalf of the Government in T. Ramayya Suri v. State of Madras (now Andhra), W. P. No. 817 of 1952 (Andhra) (M), and was negatived by one of us. It was pointed out that the rules framed under S. 241 have statutory force and are binding on the State Government and that the Government is not entitled to act in violation of those rules. Reference was made to the observations of Rajagopala Iyengar, J., in Rajagopala Ayyar v. State of Madras, W. P. No. 844 of 1952 : ( (S) AIR 1955 Mad 182) (N), wherein the learned Judge took the same view.

It was urged by the learned Government Pleader that as the decision of Rajagopala Iyengar, J., was reversed in W. A. No. 111 of 1954 by a Bench of the Madras High Court reported in State of Madras v. Rajagopala Ayyar, 1956-2 Mad LJ 176 : ((S) AIR 1956 Mad 613) (O), the decision in W. P. No. 817 of 1952 (Andhra) (M), would require reconsideration. I am not impressed with this argument as the observations of Rajagopala Iyengar, J., that the rules framed under the Government of India Act have statutory force were in no way dissented from by the Bench. It was only on the question whether the proviso to the rule applied to the facts of the particular case, i.e., whether it was a case arising in the Judicial Department, that a different view was taken by the Bench.

Moreover, the view expressed in W P. No. 817 of 1952 (Andh) (M), has been taken by a recent Division Bench of the Andhra High Court to which one of us was a party) in W. A. No. 69 of 1956 (Andh) (G). Vide also my decision in M. Ramamoorthi v. State of Madras, AIR 1956 Andhra 203 (P-Q). In M. V. Joga Rao v. State of Madras (now Andhra), W. A. No. 4 of 1956 : ((S) AIR 1957 Andh Pra 197 (R), it was also observed that the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules and the Madras Civil Services (Classification, Control and Appeal) Rules are statutory rules and that they are as much binding upon the Government as upon the citizen. I have, therefore, no hesitation in holding that the State is bound by the rules framed under the Government of India Act and should follow the procedure laid down therein in regard to the inquiries.

27. It is next necessary to deal with the contentions raised by Sri Sankara Sastri on behalf of the 1st respondent, viz., that the order of compulsory retirement is vitiated by reason of the fact that the Public Service Commission was not consulted before the issue of the notice dated 10th November, 1948 marked as Exhibit B-52. There is no force in this contention. Article 320 (3) of the Constitution merely states that the State Public Service Commission shall be consulted on all disciplinary matters affecting a person serving under the Government of a state in a civil capacity including memorials or petitions relating to such matters unless the Government makes regulations specifying the matters in which either generally or in any particular class of cases or in any particular circumstances it shall not be necessary for a Public Service Commission to be consulted. The corresponding provision in the Government of India Act, viz., S. 266 (3) was to the same effect. Rule 16 of the Madras Public Service Commission Rules of Procedure, issued by the Government provides as follows :

"In any case in which the Commission is consulted under paragraph (c) of sub-s. (3) of S. 266 of the Government of India Act, 1935. on any disciplinary matter or on any memorial or petition relating to such matter, the record of the case shall be forwarded to the Commission and the opinion given by the Commission shall form part of the record."

The rule does not specify when or at what stage the Public Service Commission should be consulted. What is required is that the Public Service Commission should only be consulted before orders imposing penalty are passed by the Government. Regulations 20 to 22 of the Madras Public Service Commission Regulations of 1937 do not also specify when the consultation should be made. From what appears from the records, it is quite clear that the Public Service Commission was consulted, that the Public Service Commission examined the records and found that though charge No. 1 was not proved the penalty of compulsory retirement should be imposed on the view taken by it in regard to charges 2 and 3.

28. There is also no force in the contention of Sri Sankara Sastri that the notice dated 10th November, 1948 (Exhibit B-22) should have been issued only after the Public Service Commission was consulted and the Government had decided tentatively as to the nature of the punishment to be imposed upon the officer. The learned advocate has not invited our attention to any rule or regulation imposing such an obligation on the Government. What is laid down under the rules is that before the final order of punishment is passed, the opinion of the Public Service Commission should be obtained and taken into consideration. It is nowhere laid down that a further opportunity should be given to the petitioner after the Public Service Commission has been consulted and its opinion obtained. In Varadarajulu Chettiar v. State of Madras, 1956-2 Mad LJ 145 (S), Rajagopalan, J., repelled a similar argument in considering the scope of Art. 311 (2) read with Art. 320 (3) (c) and observed :

"That a further opportunity was not given to the petitioner after the Public Service Commission had been consulted and after it had given its opinion does not, in my judgment, vitiate the exercise of the jurisdiction."

The Government had to dismiss the person, and there was no violation of the guarantee provided by Art. 311 (2) of the Constitution.

29. The next contention of Sri Sankara Sastri that the Public Service Commission was not consulted when he presented the appeal to the Government is equally untenable. Regulation 20 (1) provides that :

"Subject to the provisions of regulation 21, it shall not be necessary for the Commission to be consulted on any disciplinary matter affecting a person serving in connection with the affairs of the Province, except

(a) where the Provincial Government propose to pass an order on an appeal or revision, or

(b) where the Provincial Government propose to pass an original order imposing any of the following penalties, namely :

* * * *

(iii) compulsory retirement before completion of 25 years qualifying service.

30. Regulation 20 (2) (f) is in the following terms :

"Nothing contained in clause (1) shall be deemed to make it necessary for the Provincial Government to consult the Commission in any case -

* * * *

(f) in which the Commission has, at any previous stage, given advice in regard to the order to be passed and no fresh question had thereafter arisen for determination".

31. It is clear from the records that the order in appeal was passed subsequent to the passing of the Constitution. The Governor of the State is not entitled to exercise his individual judgment and dispose of the appeal. The words "Provincial Government" in Regulations 20 (1) (a) and 20 (1) (b) should be given the same meaning and should not be construed differently. The Provincial Government should be read as the Governor acting in consultation with the Ministers. There can be no right of appeal after the Constitution against the order of the Provinvial Government, i. e., the Governor acting in consultation with his Ministers, to the Governor acting in his individual judgment. Therefore, R. 20 (1) (a) will now have no application whatsoever to an appeal preferred to the Governor exercising his individual judgment.

32. Even assuming that R. 20 (1) (a) applies to the case by reason of the definition contained in the General Clauses Act that "Provincial Government" shall mean, as respects anything done before the commencement of the Constitution the authority or persons authorised at the relevant date to administer executive Government in the Province in question", the terms of cl. (f) of R. 20 (2) would not be attracted. The Public Service Commission had been consulted, at a previous stage and had given its advice in regard to the order passed, viz., that the order of compulsory retirement would meet the ends of justice.

No fresh question had thereafter arisen for determination so as to compel the Governor exercising appellate powers to consult the Public Service Commission over again. The argument is that as the appellant had presented his memorandum of appeal giving reasons as to how the penalty of compulsory retirement was excessive and not called for in the circumstances of the case, it should be regarded as a fresh question arising for determination within the meaning of cl. (f). When a similar contention was raised in a review petition before the Supreme Court in Joseph John v State of Travancore-Cochin, 1955 SCJ 221 : ( (S) AIR 1955 SC 160) (T), Mahajan C. J., observed as follows :

"In this case the Public Service Commission was in fact consulted in the matter of the action proposed against the petitioner by removing him. The Public Service Commission agreed to the Proposed action. This consultation and the agreement was before the petitioner was asked to show cause why he should not be removed from service. The complaint of the petitioner is that the consultation with the Public Service Commission should have been after he was asked to show cause but the petitioner did not show cause and that being so no question arose of consulting the Public Service Commission over again.

It was contended that the Public Service Commission should have been consulted on the review petition. To accede to this argument will mean that the State will have to consult the Public Service Commission as many times as he may choose to file review petitions. In our opinion, the consultation envisaged by Art. 320 does not extend so far."

33. Applying those observations, I am inclined to take the view that it was not necessary for the Governor on appeal to consult the public Service Commission over again (even assuming that he was entitled to hear the appeal).

34. The next contention of the learned Advocate for the 1st respondent is that the terms of R. 16 of the Madras Public Service Commission Rules of Procedure viz., that a copy of the opinion of the Public Service Commission or a portion of that opinion which relates to the Public Officer should be communicated to him, have not been complied with and that consequently the order of compulsory retirement is invalid. The rule in so far as it is relevant runs as follows :

"A copy of such opinion, or of the portion of the opinion which relates to a particular officer or officers shall, unless the order passed on the case is one of acquittal or unless the Governor otherwise directs, be communicated to the officer or officers concerned along with a copy of the orders of the authority empowered to pass orders on the case."

35. It is common ground that the order of the Public Service Commission has not been communicated. The Government Order, Exhibit A-13, communicated to him sets out in brief the opinion given by the Public Service Commission. I am not prepared to agree with the Government Pleader that a copy of the opinion must be deemed to have been served on him by the communication of the order of the Government referring to the opinion given by the Public Service Commission. But, I am not, at the same time, prepared to hold that the order of compulsory retirement is vitiated by the non-compliance of the terms of R. 16. While the Madras Public Service Commission Regulations of 1937 are specifically stated to have been made in exercise of the powers conferred by sub-s. (2) of S. 265 and sub-s. (3) of S. 266 of the Government of India Act, 1935, the Madras Public Service Commission Rules of Procedure seem to have been framed by Governor of Madras.

The rules consequently do not seem to have any statutory force and the infringement thereof does not, in my opinion, vitiate the proceedings. I, however, agree with the learned Advocate for the 1st respondent that a copy of the opinion ought to have been served on the plaintiff in order to enable him to prefer an appeal to the Governor as provided under the rules. As I am of opinion that by reason of the passing of the Constitution the appeal to the Governor in his individual judgment could not be heard, the discussion as to the effect of the omission to supply the opinion of the Public Service Commission becomes academic and immaterial.

36. Under R. 20 (c) of the Civil Services (Classification, Control and Appeal) Rules, a member of a subordinate service shall be entitled to appeal from an order imposing on him any of the penalties specified in R. 8,

"if such an order was passed by the Provincial Government, to His Excellency the Governor of Madras exercising his individual judgment."

The plaintiff accordingly preferred an appeal to the Governor. By the time, the appeal came on for hearing the Constitution had been passed. Under Art. 163 (1) of the Constitution

"There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion."

37. Article 163 (2) provides that :

"If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final ..........

38. There is no provision in the Constitution entitling the Governor to act in his individual judgment. S. 52 (1) (c) of the Government of India Act, 1935, which conferred a special responsibility on the Governor, that is to say : Clause (c)

"The securing to, and to the dependants of persons who are or have been members of the public services of any rights provided or preserved for them by or under this Act, and the safeguarding of their legitimate interests;"

is not re-enacted in the Constitution and the Governor is therefore not entitled after the Constitution has come into force to dispose of any appeal preferred to him under R. 20 (c) of the Rules. No doubt, Art. 313 enacts that until other provisions are made under the Constitution, all the laws in force immediately before the commencement of the Constitution and applicable to any public service or any post which continues to exist after the commencement of the Constitution, as an All-India Service or a service or post under the Union or a State shall continue in force so far as consistent with the provisions of the Constitution.

The Civil Services (Classification, Control and Appeal) Rules no doubt continue in force by reason of the provisions of Art 313, but as there is no provision under the Constitution for the Governor to exercise his individual judgment the appeal filed before the Constitution can no longer be heard by him. The words "so far as consistent with the provisions of the Constitution" in Art. 313 are very significant and as pointed out already, as there is no provision in the Constitution entitling the Governor to exercise his indidual judgment, the right of appeal provided under R. 20 (c) is no longer capable of being exercised. The rules consequently require to be revised.

The order passed on appeal in G. O. Ms. No. 641 dated 17th February, 1950, marked as Exhibit A-36 is therefore not a valid order not being consistent with the provisions of the Constitution as discussed supra. The grievance of the plaintiff that he was prejudiced in his appeal as a result of the report of the Public Service Commission not being supplied is illusory. As I am of opinion that the appeal could not be heard by the Governor in his individual judgment after the Constitution had come into force, the omission to supply him with a report of the Public Service Commission for the purposes of the appeal does not in any way affect the order of compulsory retirement passed against him.

39. I shall now proceed to consider the last question whether the order of reversion is void as held by the Subordinate Judge. It is necessary to refer to a few documents in this connection. On 12th August, 1947. the Inspector-General of Police passed an order marked as Exhibit A-1, that the plaintiff was promoted as District Superintendent of Police. In paragraph 2 it was stated that

"He will on relief assume charge of the post of District Superintendent of Police from Deputy Superintendent of Police, Madanapalli holding additional charge."

The order passed by the Government on 13th August, 1947, is marked as Exhibit A-2 and paragraph 2 of the order recites that the plaintiff was appointed to officiate as District Superintendent of Police, Chittor vice Sri M. Krishna Menon.

In paragraph 3, it is clearly stated that the action of the Inspector-General of Police in having ordered the officers concerned to hand over or take over charge in anticipation of orders of Government was approved. On 17th September, 1947, a communication was sent from the office of the Inspector-General of Police that his promotion to the District Superintendents rank was only provisional and subject to revision by the Government after a consideration of the claims of all eligible officers. Exhibit B-37, dated 17th September, 1947, is also to the same effect. The plaintiff who was thus appointed to officiate as District Superintendent of Police was later on reverted as Deputy Superintendent of Police.

Though there is no specific order of reversion, it is not disputed by the Government that the plaintiff was not continued as officiating District Superintendent of Police but was posted as Deputy Superintendent of Police, The question that arises for consideration is whether the order reverting the plaintiff from officiating as District Superintendent of Police to Deputy Superintendent of Police is a reduction in rank and whether the order is liable to be challenged on the ground (1) that no notice and consequently no reasonable opportunity to explain was given to him and (2) that the order was not passed by the appointing authority. Having carefully heard the arguments on both sides, I am clearly of opinion that there was no reduction in rank and that consequently the order of reversion is not open to attack on the grounds urged by the 1st respondent. The rules that applied to the appointment of District Superintendents of Police were the rules made by the Secretary of State for India and marked as Exhibit B-49. The rule in so far as it is material to the facts of this case is contained in R. 4 of the "Reserved Posts; Indian Police" Rules, 1938, and is as follows :

"(i) Notwithstanding the foregoing provisions the Governor-General or the Governor, as the case may be, may, if the exigencies of the public service so require, appoint a Police Officer in the Civil Service of the Crown in India, but not being a member of the Indian Police to any reserved post other than the post of Inspector-General or Deputy-Inspector-General, or Commissioner of Police or of Commandant of a Military Police Battalion.

(ii) Every such appointment shall be provisional only and, if the person so appointed is intended to hold the appointment for a period exceeding three months, shall forthwith be reported to the Secretary of State with the reasons for making it, and if the Secretary of State so directs, the Governor-General or Governor as the case may be shall thereupon cancel the appointment."

Rule 5 (ii) provides that if the Secretary of State directs that the post shall be filled, the Governor-General or the Governor as the case may be, shall appoint a person to fill it in accordance with the provisions of these rules. The schedule to Exhi bit B-49 sets out that for Madras 23 District Superintendents of Police might be appointed. The plaintiff, who was a Police Officer in the Civil Service of the Crown in India but not a member of the Indian Police was promoted as an Officiating District Superintendent of Police by the Governor under R. 4 (i) and his appointment according to R. 4 (ii) was only provisional. It cannot therefore be contended that he has ac quired any lien to the officiating appointment and that he cannot be reverted to the former post.

In this connection, I might incidentally refer to Exhibit B-55 wherein it is stated that the Secretary of State had directed that no further appointment of Provincial Service Officers to listed posts to the Indian Police Service should be made and that the posts should be held in abeyance as they became vacant. As a result of the passing of the Indian Independence Act of 1947 and a number of European Officers leaving the country provisional arrangements had to be made. The appointment of the plaintiff as an officiating District Superintendent of Police was one of such appointments. I am unable to accept the contention of Sri Sankara Sastri based on the words "promoted" or "officiating." The officiating appointment having been made under the "Reserved Posts; Indian Police" Rules, 1938, was only provisional and it was open to the Government to revert the plaintiff according to their pleasure.

As already stated, Exhibits B-37 and A-5 make it abundantly clear that the promotion to District Superintendents rank was only provisional. The argument of the learned Advocate based on the provisions of the Madras Provincial and Subordinate Service Rules do not apply to the facts of the present case as the office to which he was promoted, i. e., the post of District Superintendent of Police is only governed by the Reserved Posts "Indian Police" Rules of 1938.

40. But, if the Madras Provincial and Subordinate Service Rules apply to the facts of the case, I have no doubt that the reversion of the plaintiff was contrary to those rules. Rule 7 prescribes the mode of discharge and re-appointment of probationers and approved probationers. rule 7 (a) (i) provides that probationers and approved probationers shall be discharged for want of vacancies in the following order :

"First the probationers in order of juniority, and second, the approved probationers in order of Juniority."

Rule 26 relied on by the 1st respondent is as follows :

"Appointment as full member, discharge and re-appointment of members who are not probationers or approved probationers - In regard to persons appointed to any class or category of a service by promotion, in respect of whom the special rules of the service do not prescribe a period of probation in the class or category to which they have been promoted, Rr. 6, 7 and 25 in this part shall be construed as if probation and probationer or approved probationer meant officiating service and person officiating respectively."

41. If R. 26 governs the case, the discharge should be in accordance with the terms of R. 7. As the persons officiating were not discharged in order of juniority, the provisions of R. 7 would be violated and the order of reversion would be invalid.

42. In the view taken by me that it is only the Rules of 1938 marked as Exhibit B-49 that apply to the case, it is unnecessary for me to deal with the meaning of the word "officiating" or refer to other rules such as the Fundamental Rules of the Government of Madras wherein the word "officiating" is used. I also do not wish to refer to the cases wherein the rights of officiating persons are discussed as they turn upon the language of the particular rules. I also do not think it necessary to consider the question whether the order of reversion should be regarded as penalty and consequently notice should have been given to the officer charged as the order of reversion does not purport to be imposed as a penalty.

Statements made by the Government long subsequent to the order of reversion, viz., that as charges were framed against the plaintiff he was reverted, cannot be relied on or regarded as forming the basis of the order of reversion.

43. My conclusions are therefore as follows : (1) that the order of compulsory retirement is invalid as no fair and reasonable opportunity was given to the plaintiff and (2) that the order of reversion is valid and binding. I therefore confirm the decree passed by the Subordinate Judge in so far as he declared the order of compulsory retirement as being invalid but set aside the decree declaring that the order of reversion was null and void.

44. Before concluding the judgment, I wish to record the statement made by the Government Pleader of Andhra that as a result of the arrangement entered into between the Government of Madras and the Government of Andhra, the liability in the case is to be entirely borne by the Government of Andhra.

45. I shall now deal with the memorandum of cross-objections filed by the State of Madras. A preliminary objection was raised by the learned Advocate for the 1st respondent that the memorandum of cross-objections filed by the Madras Government is not maintainable as it is only directed against him, i. e., co-respondent Even on the footing that his contention is tenable, I am inclined to exercise the special power conferred under O. 41, R. 33, Civil Procedure Code, as I am of opinion that the order of reversion passed by the Madras Government is perfectly justified. In the interests of justice, I have no doubt that the proper order to pass in the appeal is to hold that the order of reversion passed by the Government of Madras is valid and binding upon the plaintiff and to set aside the decree passed by the Subordinate Judge as against both the States of Madras and Andhra declaring that the order of reversion was null and void.

46. In the result, the appeal is allowed in part and the decree of the lower Court is modified to the extent mentioned above. As each party has succeeded in part, I make no order as to costs in the appeal as also in the memorandum of cross-objections.

BHIMASANKARAM, J. :-

47. The conclusion I have reached on the two principal points for determination in this appeal are at variance with those of the learned Subordinate Judge and on one of them with the conclusion of my learned brother. I agree that the declaration in the decree passed by the learned Subordinate Judge

"that the order of reversion against the plaintiff reverting him from the rank of an officiating District Superintendent of Police to his original post of Deputy Superintendent of Police is void and illegal; and that therefore he should be deemed to hold and continue the said post of Officiating District Superintendent of Police"

? should be set aside. I also hold that the second declaration therein that the order of compulsory retirement is void and illegal must go.

48. In my opinion, the order of compulsory retirement passed against the plaintiff by the Government of Composite State of Madras is not open to attack. I have reached this conclusion with regret that I am differing from my learned brother but without any hesitation.

49. It is unnecessary for me to set out the facts leading up to this appeal as my learned brothers judgment has narrated them in detail.

50. I shall start by demurring to the form of the first question formulated by my learned brother as arising for consideration. I cannot agree that we are called upon to decide whether the plaintiff was not given a fair and reasonable opportunity to present his defence before the Special Officer and whether there was no due and proper enquiry before him. It is true that the learned Subordinate Judge found that the plaintiff was not given a reasonable opportunity to show cause against the order retiring him compulsorily. But, he proceeded upon the view that compulsory retirement of a Civil servant fell within the scope of the sub-s. (3) of S. 240 of the Government of India Act, 1935, corresponding to Art. 311 (2) of the Constitution. In this, he was clearly in error.

I have previously expressed the view in my judgment in W. P. No. 69 of 1956 (G) and my learned brother is not inclined to dissent from it that compulsory retirement is neither removal nor dismissal within the meaning of Art. 311 (2) of the Constitution. Now, S. 240 (3) of the Government of India Act, 1935, does not contain the word "removal." The plausible contention, therefore, that complsory retirement may be comprehended under the word "removal" would not be available in construing that section. Sub-section (3) of S. 240 cannot be invoked to challenge an order of compulsory retirement. That being so, while the learned Subordinate Judge was right from his point of view in addressing himself to the question whether the plaintiff had or had not fair and reasonable opportunity to make out his defence, we must deal from our point of view with a different question. Otherwise, we should be practically applying while theoretically denying the applicability of sub-s. (3) of S. 240 of the Government of India Act to a case of compulsory retirement.

51. Punishments such as compulsory retirement are dealt with by rules as to the conditions of service made by the appropriate authority under S. 241 of the Government of India Act. As pointed out by the Supreme Court in 1954-1 Mad LJ 730 : (AIR 1954 SC 369) (D), although S. 96-B (1) of the Government of India Act, 1919 (substantially corresponding to S. 240 (1) of the Government of India Act, 1935, and to Art. 311 (1) of the Constitution) contained the words "subject to the provisions of this Act and the rules made thereunder", the Judicial Committee held in Rangachari v. Secretary of State, ILR 1937 Mad 517 : (AIR 1957 PC 27) (U) in Venkatarao v. Secretary of State, ILR (1937) Mad 532 : (AIR 1937 PC 31) (V), that those opening words "did not qualify the unfettered discretion of the Crown to dismiss a servant at pleasure and that the remedy of the servant for the violation of the rules was not by a law-suit but by an appeal of an official or political kind."

In that view, it may possibly be open to question whether the violation of the rules framed under S. 241, which, it as common ground, govern the present case, can be held to give rise to a cause of action in a Court of law in favour of a Civil servant, I do not, however, propose to dwell at length on this point, because these rules are soon likely to be absolute and because also I have come to the conclusion that in the present case, the rules have been substantially complied with.

52. In my opinion, therefore, the question for consideration as regards the order of compulsory retirement is whether in passing it, there has not been a substantial compliance by the authorities with the statutory rules applicable textile case. I use the word "Substantial" because mere irregularities in the observance of the rules could afford no ground of complaint.

53. Now, the principal rule relevant to the present discussion is R. 15 of the Madras Civil Services (Classification, Control and Appeal) Rules. Sub-rules (i) and (ii) of cl. (b) of that rule which are directly in point read thus :

"Without prejudice to the provisions of the Public Servants Act, 1850, in every case where it is proposed to impose on a member of service any of the penalties mentioned in cls. (iv), (vi), (vii) and (viii) of R. 8, the grounds on which it is proposed to take action shall, except where such action is proposed to be taken on facts which have led to his conviction in a criminal Court or by a military Court-martial, be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any circumstances which it is proposed to take into consideration in passing orders on the case.

He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. An oral enquiry shall be held if such an enquiry is desired by the person charged or is directed by the authority concerned. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and 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 enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness.

(ii) After the inquiry has been completed, the person charged shall be entitled to put in, if he so desires, any further written statement of his defence. If no oral enquiry is held and if he had desired to be heard in person, a personal hearing shall be given to him. The proceedings shall contain a sufficient record of the evidence and a statement of findings and the grounds thereof."

The penalty of compulsory retirement is one mentioned in cl. (vi) of R. 8.

54. The main complaints of the plaintiff before the lower Court and repeated before us are (1) that sufficient time was not given to him to file his written statement; (2) that he was not given a proper opportunity to cross-examine some of the witnesses who deposed against him and (3) that material evidence on his side was shut out. Before I consider these points, it is necessary to mention that so far as the grave charge of bribery (which is charge No. 1) is concerned, he was ultimately exonerated. It is also necessary to bear in mind that although the Special Officer found that charge No. 3 was proved which attributed to him "conduct amounting to cheating and unbecoming of an officer of the plaintiffs status" the final finding on this charge against the plaintiff was only that "his conduct was not that of a strict and conscientious officer and that he had behaved in a manner unbecoming of a gazetted officer."

We need therefore consider only the question whether the alleged infringement of the rules (imputed by these complaints) in the conduct of the enquiry have effected the ultimate findings on the basis of which the plaintiff was punished. He cannot be said to have suffered any prejudice in respect of charges of which he has been acquitted.

55. Now, dealing with the plaintiffs first complaint, I am not persuaded that there is any substance in it. In the first place, the time of one month granted to him seems to me quite reasonable. Then again, the plaintiffs request in Exhibit A-15 even before he received the Special Officers order on Exhibit A-14, for the perusal of certain documents before offering his explanation unsustainable as it clearly was, because the rule does not enable him to ask for it - arouses ones suspicions as to whether he was not on the look out for other plausible grounds to get time extended. Further, as it now turns out, he did not have any very elaborate positive case to set up in regard to the first two charges except merely to deny them. In regard to the third charge, the explanation now offered such as it is, so simple that he could have offered it at once.

Even if the reasons stated in Exhibit A-14 on which he sought the extension of time were sound, as there was no need in the circumstances of the case to collect any considerable material or complicated details requiring research or much effort of memory, the plaintiff could have, if he chose, easily tendered his explanation within the the granted. Furthermore, as pointed out by the learned Government Pleader the plaintiff did put in two elaborate written statements, Exhibit B-19 dated 5th May, 1948 and Exhibit B-20 dated 17th May, 1948, which were actually taken on file and presumably considered by the Special Officer. Apart from all these considerations, I fail to see what disadvantage the plaintiff really suffered in not being allowed to file a written statement.

He claimed an oral enquiry and was enabled. I am assuming this for the present purpose, to examine witnesses in support of his defence. The fact that he did not file a written statement setting out his defence, could by no means, have operated to his detriment. It could not have handicapped him in making out his decree through the witnesses he called at the hearing. The object of a written statement of this kind, it seems to me is to enable the authority concerned to see whether the accused-officer could not be exonerated straight away on the basis of his explanation if it was satisfactory or, of there was to bean enquiry, to limit its scope to the defence actually set up. When a person has been given an opportunity to lead evidence in support of his defence, I cannot see how he could reasonably complain that he had been denied an opportunity earlier to state his defence.

It may even be an advantage to the accused officer that he did not file such a statement, because he would then have more time to think out his defence. I am, therefore, far from convinced that the plaintiff was prejudiced in any manner by the refusal of the Special Officer to extend the time after filing his written statement. In any case, I can see no breach of any rule in such refusal. I may point out that the learned Subordinate Judge has not found in what manner or to what extent the plaintiff was prejudiced by his not being allowed to file the written statement.

56. Now, I shall deal with the second question as to whether the plaintiff did not have a proper opportunity to cross-examine the prosecution witnesses, who were examined on the 26th June, 1948, and whether such lack of opportunity prejudiced him. It is true that the plaintiff does not seem to have been in the best of health at the time and that he had earlier asked that the enquiry should be adjourned for four weeks from the 15th of June. I shall not go into details as regards the exact state of the plaintiffs health. But, I am unable to hold that the plaintiffs physical and mental condition was such that he could not properly cross-examine the prosecution witnesses P. Ws. 11 to 14.

It is to be noted that the evidence of P. Ws. 12 to 14 related only to the first charge and their non-cross-examination cannot, in my opinion, avail to impugn the said order of compulsory retirement not passed upon the finding on that charge. P. W. 11 was the only witness who deposed on charge No. 3 one of the two charges now relevant. The learned Subordinate Judge remarks that having himself permitted the plaintiff to engage the services of a counsel, the learned Special Officer should have awaited the return of the counsel whose absence from Madras was due to his other professional engagements and more so, when the plaintiff was admittedly ill and could not go on without the help of the counsel.

He has however, not found on what lines the particular witnesses could have been cross-examined and were not. The plaintiffs main defence is that they were all untrustworthy witnesses. Even now, he has not told us by putting what other questions he could have established their unveracity. The learned Subordinate Judge has not found anywhere in the course of his long judgment how the plaintiffs defence was materially prejudiced by lack of professional assistance in the cross-examination of these witnesses. One must note that at the time, when the enquiry was conducted, the accused officer had no right to engage a counsel. He could do so only with the permission of the Special Officer. The Special Officer, no doubt, granted such permission to the plaintiff but the conduct of a Departmental enquiry once started cannot be made subject to the exigencies of the professional work of the counsel engaged.

Apart from that, it was not as if the counsel would be returning in a day or two. On the 25th of June, 1948, the plaintiff asked by Exhibit A-26 for a postponement of the hearing by three weeks to enable his counsel to attend it. An enquiry of this character cannot go on with the pace to which one is accustomed of a heavy original suit in a Civil Court. Even assuming that the plaintiff was prejudiced by non-cross-examination by counsel of P.Ws. 12 to 14, that cannot be a cause of complaint, as I have already pointed out, he has been ultimately acquitted of the charge in regard to which they gave evidence. It is necessary therefore only to consider for our present purposes whether any prejudice was caused to the plaintiff by the fact that his counsel was not available to cross-examine P.W. 11.

It is also observed in this context that the Special Officer has not acted upon the evidence now given by P.W. 1 at the enquiry. In fact, he observes that the witnesses indicated an inclination to help the accused officer and he preferred to act upon the documentary evidence afforded by Exhibit B. (Vide paragraph 25 at page 13 of Exhibit A-32). The ultimate finding recorded by the Public Service Commission in respect of charge No. 3 as already pointed out was not that he was guilty of it but that his conduct was not above reproach. It is not denied even now by the plaintiff that he used a car belonging to another.

His defence is that he wanted to buy it, only after testing whether it was in a working condition and that he used it for sometime in order to test it. He has not stated anywhere in the course of his statements or his memorandum of appeal or his memorial to the Governor how long he used the car. A person who wants to go in for a secondhand car may take of course, a reasonable time in testing it. But the plaintiff has not told us even now how long he used this car. It is therefore legitimate to suppose that he kept the car certainly for a longer time than reasonable. Learned counsel appearing for the plaintiff was asked categorically whether there was any material on which we could come to a conclusion as to the length of time that the plaintiff used the car. He has not been able to point out any.

The conclusion, therefore, must reasonably follow that the finding of the Public Service Commission above referred to which the Government acted upon (and which does not go the whole length entitled to cross-examine the witnesses and it cancism. The fact, therefore, that the evidence of P.W. 11 might have been demolished by expert cross-examination cannot help the plaintiff. I cannot agree with the view of the learned Subordinate Judge that the plaintiff was unable properly to cross-examine the prosecution witnesses. In any case, I cannot see how the terms of the rule above quoted can be said to have been infringed. The rule only says that the person charged shall be entitled to cross-examine the witnesses and it cannot he said that that right has been negatived in this case.

57. The third and the last complaint of the plaintiff is that he was not given a proper opportunity to adduce all the oral and the documentary evidence he wanted and that the enquiry was abruptly closed on the 2nd of August, 1948, without giving it to him. I shall first deal with the objection that some material witnesses were not examined. The plaintiff asked at first in Exhibit A-18 for the summoning of 24 documents and 60 witnesses. He later on put in two revised lists, Exhibits A-29 and A-30, in which he asked that 63 witnesses should be examined and 22 documents called for.

In his undated order Exhibit B-32 upon the revised list of witnesses, the Special Officer ruled that only 22 witnesses out of the 63 mentioned in the list were "relevant" and he directed that they should be summoned. Only 15 witnesses, however were ultimately examined for the defence. The plaintiffs complaint is that some of the witnesses not summoned were improperly ruled out and that the non-examination of some of the witnesses summoned was equally improper. It is necessary to remember in this connection that the plaintiff can now make no grievance of the non-examination of the witnesses in support of his defence to the first charge. We need, therefore, only deal with the witnesses who could have deposed in support of the defence on the second and the third charges. It is urged that witnesses listed as Nos. 39 to 42, and 54 to 57 and 62 should have been examined in connection with the second charge and that witnesses 39 to 42, and 48 and 49 could have thrown light on the third charge.

58. So far as witnesses 39 to 42 who were not even summoned by the Special Officer are concerned, it is stated against their names in Exhibit A-29 that they "are cited to show that they refused to state falsely against me in spite of the pressure and propaganda from the X branch. I cannot see how the Special Officer could be said to have gone wrong in declining to examine these witnesses. In the first place, it must be remarked that the object of the plaintiff in citing these witnesses 39 to 42 is to counter-attack the prosecution rather than to establish his defence, a procedure not warranted even in a criminal trial and certainly not available to an accused officer under the terms of the rule.

According to him, some of the members of the X branch of the C.I.D., were inmically disposed towards him, that they trumped up these charges against him and that they were endeavouring to induce some persons in the locality to depose falsely against him in support of these charges. I cannot see how such evidence could be relevant. It would be open to him to impeach the impartiality of any witness appearing against him and if he denied any facts touching upon his impartiality, to adduce evidence contradicting the witness.

Even under the Evidence Act, evidence merely to prove that the prosecution endeavoured to obtain false evidence - not that the prosecution witnesses were bribed or had accepted the offer of a bribe or had received any corrupt inducement to give evidence, in terms of section 155(2) of the Evidence Act - would not be relevant; that is to say, even if a man were facing a murder charge, he could not claim a right to let in any such evidence. Where the Evidence Act does not apply, the position cannot be better. So, the non-examination of these witnesses cannot be said to have prejudiced the plaintiffs defence in support of either of the charges 2 and 3.

There cannot, in my opinion, be a better reason for excluding the testimony of a witness than that it would be irrelevant. It is clearly a "special and sufficient reason." As regards the other witnesses in connection with charge No. 2, I shall first dispose of witnesses 55 to 57. Witnesses 55 and 56 were expected to speak about the action the plaintiff personally took against the buses of Bahadur on their complaint. Both of them are described as jutka-drivers.

Now, under section 153 of the Indian Evidence Act, this kind of evidence would be admissible only if Bahadur had been asked whether the plaintiff personally did not take any such action on the report of these jutka-drivers, and had denied the fact. It is admitted that no such question was put to Bahadur. Therefore, such evidence would not be admissible even if the Evidence Act applies; more so, in a case like the present one. It is true that the Special Officer stated in his report that there was nothing to show that the plaintiff had taken any action against Bahadur.

But it seems to me that there is neither here nor there. The specific action suggested as having been taken against him in his cross-examination was admitted by Bahadur. The point really, it seems to me is whether Bahadur knew of the specific action suggested as having been taken and then pretended that it was not so in order to pose as an impartial witness. No details of the action were put to him and whatever instructions the plaintiff might have given to his subordinate cannot be relevant unless it can be said that they were known to the witness.

I cannot also help remarking that the best evidence that could establish "the personal action taken by the plaintiff" was the plaintiff himself and he has avoided the witness-box. If he had chosen to give evidence (and the choice was entirely his) and it is not pretended that at the time when the defence evidence was adduced, he was not in normal health - he could have thrown light on several aspects of the case.

For reasons best known to himself, he, how ever, did not give evidence - a circumstance from which an adverse inference could be drawn and was presumably drawn by the authorities to whom he complained against the Special Officers procedure.

59. As regards witness No. 57 he was merely cited in the words used in Exhibit A-29 "to file his petition against buses of Bahadur and the personal action I took against Bahadur." Now, it appears from the list headed "Documents for defence" appended to the proceedings of the Special Officer that the petition referred to was filed as item 21 and the action taken by the plaintiff is evidenced by item 22 which is described as "Instructions given by the Deputy Superintendent of Police with reference to the petition." If this advocate was intended to be summoned only to produce these documents, the plaintiff was not really prejudiced because they were available to the plaintiff and to the Special Officer,

60. Then again, when Bahadur was asked in cross-examination whether action was not taken against him by the plaintiff, he did not deny that it was. Evidence merely to reinforce what he did not deny would not be relevant. Now, before I deal with witness No, 54, I shall dispose of witness No. 62 against whose name it was stated in the list that

"He (the plaintiff) kept a special eye over Bahadur and Abbireddis activities under my (plaintiffs) instructions."

So far as this relates to Abbireddis activities, we may ignore it because they have relation only to the first charge and even in regard to Bahadur, as already noted, that witness did not deny that the officer took action against him. The ruling out of the testimony of this witness was, in my opinion, justified.

The other witness - the non-examination of whom the learned counsel for the plaintiff made a special grievance, is witness No. 54 described as "driver Imam Shaheb, Proddattur". It is not denied that he was summoned by the Special Officer but presumably he was not present on the two dates when the defence witnesses were examined and there is nothing on record to show why he was not actually examined. It is argued that the plaintiffs case was that he paid the money for the petrol to Imam Saheb and that this case could not be established without examining him. The plaintiff, however, has not clearly stated in any of the statements filed by him that the money for the petrol was paid to the driver. This is not mentioned in Exhibit A-29, where, with reference to witness Nos. 52 and 54, the entry is as follows :

"These witnesses all speak to the fact that the car used by me on 12th June, 1947, belongs to late Obulareddi which I was bargaining to possess and that I paid the cost of petrol when I used it on the above date."

There is no whisper in this that driver Imam Saheb drove the particular car or that the cost of petrol was paid into his hands. Even the plaintiffs statement, dated the 22nd of September, 1948, Exhibit A-31, does not make it clear whether his case was that he paid the money to the driver Imam. Of the defence witnesses examined, only D.W. 15 has stated that the money was paid to the driver Imam. It is true that in his explanation to the Government, Exhibit A-34, he stated that his case was that he paid the money to the driver Imam. But, as against this, it must be noticed that when the enquiry was closed abruptly and arbitrarily, as the plaintiff would have it, and when he filed Exhibit B-35 which is a petition to issue summonses to whom he considered indispensable witnesses, he did not mention the name of the driver Imam. The plaintiff states in his evidence now that his counsel prepared the petition though he did not sign it. If his counsel had prepared it he could not have ignored the importance of the driver if really the plaintiff was confident that the driver would depose in his favour.

61. Then again, neither on the plaint nor in the witness-box does not the plaintiff say that Imam would have given material evidence. Even in Exhibit A-34 where the explanation was that he paid the money to the driver, he does not make a grievance of Imams non-examination. If his whole case hinged on the fact of his payment of the money to the driver, I have no doubt that he would have complained at the earliest opportunity and would have gone on repeating his complaint. I cannot think that the non-mention of Imams name in the plaint is an act of omission on the part of the counsel who prepared it. I do not, for a moment say that it is necessary that the plaintiff should have mentioned his name. But, he has mentioned the names of the other witnesses who, according to him must have been examined and whose non-examination prejudiced his defence.

The fact therefore that Imam was not mentioned in the plaint seems to me of considerable significance. What is more, even in his evidence where one would expect details, there is no mention, as I have already remarked of Imams name. It appears to me that the plaintiff was not really aggrieved by the non-examination of this witness but that he is seeking only to make a grievance of it. I must also remark that if the plaintiffs clear case was that he paid the money into the drivers hands, he would have mentioned that fact prominently in the list Exhibit A-29. I am, therefore, of the opinion that the non-summoning or the non-examination of any of these witnesses has in no manner prejudiced the plaintiff.

62. Before I refer to the complaint about the exclusion of the relevant documents, I shall dispose of the plaintiffs complaint about the non-examination of some witnesses in relation to charge No. 3. I have already disposed of witnesses 39 to 42 who were intended to be cited in connection with all the charges. The other two witnesses mentioned in the list are Nos. 48 and 49 in Exhibit A-29. The entry against Mr. Manikya Mudaliar who is No. 48 is as follows :-

"To speak that he pressed the Deputy Superintendent of Police, Krishna Ayyangar, to raid Abbireddis Village and book him as he was indulging in the above activities after he made a statement against me by running a black taxi to facilitate his operations. The District Superintendent of Police will file the correspondence between him and the Deputy Superintendent of Police Mr. Krishna Ayyangar."

Abbireddi is the person connected with the first charge and from whom the plaintiff is supposed to have received a bribe. This witness clearly was not intended to speak to anything in relation to charge No. 3. The plaintiff cannot complain that his defence in regard to charge No. 3 was handicapped by this witness not having been summoned. As regards the other witness Mr. Krishna Ayyangar, Deputy Superintendent of Police, Narasaraopet, Exhibit A-29 stated the purpose of examining him as follows :

"He will file his report to the District Superintendent of Police Mr. Brown, District Superintendent of Police, Cuddapah, and his correspondence with Manikyam Mudaliar about Abbireddis activities and his raid in January 1948 and the connivance of the Proddattur Inspector and X-Branch Inspector Narayanaswami, with Abbireddi as a result of conspiracy against me. He will also file the report which he made to the Inspector-General and Deputy Inspector-General, describing his difficulties and insult at the hands of the Inspector and Abbireddi because of his action taken against Abbireddi. He will speak to the startling details of his experience at the hands of these people and the stinking reputation of Proddattur Police through their association with Abbireddi.

It could be seen how the X-Branch officers are patronising Abbireddi and Proddattur Inspector and they are misinterpreting important issue. This witness has not sent the reports in order to help me at all as the Special Officer was made to think. He took action against Abbireddi under the great pressure given by the Deputy Superintendent of Police as certain documents would disclose. In order to justify their conduct and protect Abbireddi and the Circle Inspector, Proddattur, petition from Abbireddi was taken against this officer and statements from Gomatham Subbanna who is a witness against me and some similar orders were taken against him."

It is not easy to make out the import of this violent verbal attack, but one thing is perfectly clear that this witness was not expected to support the plaintiffs defence in regard to charge No. 3. The plaintiff is no more aggrieved by the non-examition of this witness than by the non-examination of witness No. 48. There is no force in this objection.

63. Now, I shall discuss the plaintiffs attack about the non-summoning of certain documents which he wanted to use in support of his defence. Before I do so, however, I should like to point that R. 15 (b) (i) of the Madras Civil Services (Classification Control and Appeal) Rules does not contemplate the filing of documents - a point which now assumes importance because I am proceeding on the footing that S. 240 (3) does not apply to the case, but only to the rule in question. If we are only bound by the rule, it can be no objection that the Special Officer did not allow the plaintiff to do what the rule does not compel him or enable him to do. I do not propose, however, to content myself with rejecting his complaint on what may be regarded as a purely technical ground. I propose, therefore, to examine whether he has suffered any injustice as a result of such exclusion.

64. In regard to both the charges 2 and 3, it is stated that item 5 (Exhibit A-30) in the list of documents was a document which should have been exhibited. A copy of this document is now filed as Exhibit A-12 in the suit. This purports to be a confidential letter, dated the 20th of October, 1947, written by the plaintiff to the Inspector-General of Police, Madras. It contains a report about "the illegal activities" of Abbireddi Bahadur.

Bahadur it may be stated, is one of the witnesses on whose evidence charges Nos. 2 and 3 have been held to have been proved by the Special Officer. This letter is intended to show that Bahadur had a motive to depose against him. Learned counsel for the respondent-plaintiff has been unable to persuade me how this is relevant. It is not suggested that Bahadur was aware of the contents of this letter. Bahadur did not in his evidence disguise the act that the plaintiff took action against him and the plaintiff. In any case, it cannot constitute material upon which the Special Officer could have come to any conclusion in regard to the charges against the plaintiff. Further, it is to be noticed that a copy of this D.O. was forwarded by the plaintiff as one of the enclosures to his explanation submitted to the Government, Exhibit A-34 and it must have necessarily been part of the material examined by the Public Service Commission before it arrived at its findings and by the Government before it acted on them.

It is not to be forgotten that the enquiry before the Special Officer is only one stage of the proceedings which terminated in the order directing the compulsory retirement of the plaintiff. The Special Officers report, the plaintiffs explanation and the whole of the record must have been available to the Public Service Commission and who therefore must be presumed to have applied their minds to the consideration of every point that could be urged in favour of the plaintiff. Even if this document was not available to the Special Officer, it was surely available to the Public Service Commission and the Government and the ultimate action taken against the plaintiff cannot be said to have been taken without reference to this document. If the Commission or the Government doubted the contents, they could have called for the original.

These remarks apply also to other documents which accompanied as enclosures, the explanation submitted by the plaintiff to the Government. Another document, the exclusion of which is complained of is Item No. 17 in the list Exhibit A-30. It is true that this has not been marked as an exhibit (if that is necessary) before the Special Officer. But in regard to this and two other documents, the Special Officers remarked that they were available with him and that the plaintiff saw them in the presence of the X-Branch Inspector under his orders. On 2nd September, 1948, after the enquiry was over, the plaintiff filed along with Exhibit B-35 which was already mentioned, two other petitions Exhibit A-34 to examine a retired Deputy Collector and Exhibit A-36 to cause certain records to be produced. This item was mentioned in Exhibit A-36 as Item 6. On Exhibit B-36, there is an endorsement of the Special Officer, dated 11th September, 1948, the relevant portion of which is as follows :

"Nos. 3, 6 and 7 were here and the officer saw them in the presence of the X Branch Inspector and under my orders."

This order of his is extracted by the officer in the preliminary portion of his report. Though it is true that the plaintiff complained both in his explanation to the Special Officer as well as to the Government - that is in Exhibits A-31 and A-34 - that the Travellers Bungalow book was not available, he never stated that the Special Officers remarks that it was available was wrong. Now, it is to be observed that the description of this item in Exhibit B-36, shows that the object of summoning it was to demonstrate "that the versions of Abbireddi and Bahadur and the uncle of Abbireddi were untrue." What exactly the plaintiff intended by this kind of description, it is difficult to see. It is explained now that object of the plaintiff in summoning the book was to show that Bahadur, the material witness who deposed against him under this charge, was not speaking the truth when he said that the plaintiff was "staying" at the Travellers bungalow when the car was taken to him.

It is true that the word "staying" is used in Bahadurs evidence. But an examination of his deposition does not show that he intended to say that the plaintiff was putting up there. Now, the relative entry in the Travellers book shows that one portion of the bungalow was occupied by the District Superintendent of Police and the other portion by another officer, not the plaintiff. Bahadurs statement may well be right even if the plaintiff was not lodging at the bungalow, because he may very well have been there without lodging in it as his superior officer was putting up in a portion and Bahadurs statement that he took the car to the Travellers bungalow where the plaintiff was may well be true. It seems to me that nothing turns on this kind of evidence. Apart from that it appears from the enclosures sent by the plaintiff to the Government that he had taken a copy of the relevant sheet in this Travellers bungalow book as early as 4th September, 1948. He also filed a copy (Exhibit A-40 in the suit) which was taken by him on 7th April, 1949. The date 4th September, 1948, is tell-tale. That seems to support the statement of the Special Officer in Ms report that the plaintiff "examined all the documents" on 4th September, 1948.

Apparently, this earlier copy despatched to the Government was taken on 4th September, 1948, when the plaintiff examined those documents. He must have taken a copy but he did not care to use it before the Special Officer. Apparently he meant only to use its non-availability as a grievance. It is also to be observed that Exhibit B-36 is not a petition filed by the advocate which was presented on 2nd September, 1948. Any way, this petition Exhibit B-36 which was filed on 2nd September, 1948, cannot make us doubt the statement of the Special Officer that the plaintiff examined this document on 4th September, 1948, i.e., two days subsequently. I must, therefore, hold that the plaintiff was not, in any way, prejudiced by the Special Officer not having marked this as an exhibit. Further, what I have already said about item 6 about its being available to the Government and the Public Service Commission applies equally to this.

65. Now, as regards charge No. 3, the complaint is that document listed as 1, 5 and 15 in Exhibit A-30 were excluded Item 1 is an anonymous petition sent up against the plaintiff in July, 1947, the allegations in which were enquired into by the District Superintendent of Police, Cuddapah and which were found to be not true. It is stated that the object of filing the anonymous petition was to show that the X Branch was prejudiced against him and "that was setting up his enemies behind his back". I cannot see how, in any view, this could have any bearing upon the plaintiffs answer to charge No. 3.

The respondents advocate explains that it was intended to show apart from the things mentioned in Exhibit A-30 that there were then no complaints made against the plaintiff of matters now comprised in charges Nos. 2 and 3. That cannot avail, in my opinion, to make it relevant. Item 5 is the D.O. already referred to of which the plaintiff had a copy and which he submitted as an enclosure along with his explanation to the Government, Item 15 is described as follows : (Exhibit A-30).

"C. No. 155/P.R./47 against Sub-Inspector Ramayya Chetti of Cuddapah District and the P.R. in which he was reprimanded on 21st February, 1947. These are required to show his motive to speak against me as he was punished at my instance"

.

This Sub-Inspector Ramayya Chetti was examined as one of the witnesses for the prosecution in the enquiry and when he was asked, in order to attack his impartiality, whether he had not been warned by the plaintiff, he said that he was. If he had not admitted it, possibly this document might avail to contradict him; but, when he had admitted it, this document would not be relevant. I must also remark that this document was not asked for in Exhibit B-36 the last-minute application which the plaintiff filed at the time when the enquiry was closed. I, therefore, cannot see any substance in this complaint of the plaintiff either.

66. Finally, I should like to make this general observation. It is not as if the enquiry before the Special Officer is conclusive and final. The plaintiff had an opportunity of filing his written statement after the enquiry and tendering his explanation to the Government. The grievances that he mentioned in his explanation, the enclosures which accompanied it as well as the whole material upon which the Special Officer acted must have been examined by the Public Service Commission and subsequently by the Government. The plaintiff has therefore had an opportunity of complaining against the conduct of the enquiry by the Special Officer and presumbly it is in the light of his complaint that he was exonerated on charge No. 1 and that under charge No. 3, a different finding was recorded.

The whole of this procedure formed part of the opportunity which he had to make out his defence. Even if the plaintiff could be said to have suffered any prejudice by the manner in which the enquiry was conducted by the Special Officer, one must remember that the Special Officers word was not final, either on the facts or on the punishment, to be inflicted. There was the Public Service Commission to examine the findings and the Government to impose the punishments. The plaintiff had a full and fair opportunity to take up his complaints to both of them. It was their duty to consider the plaintiffs grievances and they could have set aside all the findings of the Special Officer just as, in fact, they set aside some of them. One must presume that they saw no substance in these complaints against the Special Officer.

It is not the plaintiffs case that the Public Service Commission and the Government violated any of the Rules. The final order of the Government cannot be said, in my opinion, to have been vitiated by the errors or illegalities attributed to the Special Officer. The findings on which the plaintiff was compulsorily retired are in fact and in law of those Public Service Commission and of the Government. I, therefore hold that there has been no material violation of any of the Rules relating to a departmental enquiry into the conduct of a public servant. This does not mean, however, that I fail to see that the Special Officer could have been more considerate and less arbitrary.

67. It has been urged before us that having found the accused-officer guilty of bribe-taking, he might have unconsciously carried the bias engendered thereby in his mind into his consideration of the evidence on the other two charges. But in my judgment, it is not open to us even if it is possible, to probe into the workings of his mind in an attempt first to discover whether his finding on the first charge has not vitiated his findings on the others and then to set aside those findings, if we find them so vitiated.

It was his plain duty to consider each of the charges separately with reference to the particular evidence bearing thereon and I am unable to find any material placed before us which would incline us to hold that he did not discharge that duty. However, that may be, it is not the concern of this Court to sit in judgment over his findings or the subsequent conclusions reached by the Public Service Commission. The plaintiff can, if at all, only complain that the proper procedure was not followed in reaching the result. He cannot, in my opinion, attack the propriety or the reasonableness either of the findings on the basis of facts or the punishment that followed upon them.

68. I agree with my learned brother that the plaintiffs complaint that he was not given a copy of the opinion of the Public Service Commission is academic and immaterial having regard to the fact that by the time the plaintiffs appeal to the Governor came up for consideration, the Constitution of India came into force with the result that the appeal could not be dealt with by the Governor in his individual judgment. The non-availability of that opinion to the plaintiff cannot be said to have affected in any way his right of appeal.

I also agree that the Rules as they stand now need revision, in the light of the present constitutional position of the Governor. I further agree that there was no need to consult the Public Service Commission again after the Government had accepted the penalties suggested by them. I may also state that I am in agreement with the view of my learned brother that there has been no reduction in rank in violation of the terms of S. 240 (3) of the Government of India Act, 1935.

69. For all the foregoing reasons, I am of opinion that the learned Subordinate Judge was wrong and that the order of the Government directing the compulsory retirement of the plaintiff cannot be successfully impeached in a Court of law and that the terms of S. 240 (3) of the Government of India Act, 1935. were not violated, when the plaintiff was reverted as Deputy Superintendent of Police.

70. In my opinion, therefore, the appeal of the Government must succeed in its entirety. Such-success would, in my opinion entail the setting aside the order of the lower Court as against the State of Madras also under O. 41, R. 33, Civil Procedure Code. I would, therefore, allow the appeal, set aside the decree of the lower Court with costs payable by the plaintiff to the State of Andhra both here and in the Court below. In the circumstances, the State of Madras, in my opinion, would not be entitled to costs.

(In view of the difference of opinion, the question as to whether the order of compulsory retirement passed against the plaintiff is invalid, is referred to a third Judge (Manohar Persad, J.).

The reference was answered as follows by :

MANOHAR PERSHAD, J. :-

71. The suit No. 239 of 1953, out of which this Appeal No. 87 of 1956 preferred by the State of Andhra arises was instituted by Sri S. Kameswara Rao, the present respondent No. 1 in the High Court of Madras. After the High Court of Andhra was formed, the said suit was transferred to the Subordinate Judge, Chittoor and from there it was later on transferred to the Subordinate Judges Court at Guntur. The State of Madras which is now respondent No. 2 has also been impleaded. The suit of respondent No. 1 was decreed by the Subordinate Judge both as against the State of Andhra and the State of Madras. Hence this appeal by the State of Andhra and the memorandum of cross-objection by the Madras Government.

72. The facts in brief are : Respondent No. 1 was recruited as Inspector of Police in the year 1927. While he was serving as Deputy Superintendent of Police at Jammala Madugu, he received Exhibit A-2, Police Note No. 56, dated 13th August, 1947, appointing him to officiate as District Superintendent of Police. Chittoor. He took charge on 15th August, 1947. By D.O., R.C. No. 1716/G.A. No. 47, Exhibit A-4, dated 19th September, 1947, received from the Inspector Generals Office, his promotion was altered into a provisional one and he was reverted as Deputy Superintendent of Police by D.O. dated 1st October 1947. While he was serving as Deputy Superintendent of Police at Guntur, 3 charges were framed by the Special Officer. Departmental Enquiries and notice was served on him calling upon him to file his written statement, and directing him to file a list of witnesses and documents.

In the enquiry held by the Special Officer, he was found guilty of all the charges and the Special Officer recommended to the Government of Madras that he should be removed from service. The Government of Madras sent a notice to him, which is, dated 10th November, 1948, enclosing a copy of the proceeding of the Special Officer directing him to show cause why he should not be dismissed from service. The Government of Madras then after hearing the objections filed by him and consulting the Public Service Commission passed an order on 19th October, 1948, that he should be compulsorily retired from service with effect from 18th November, 1948. He thereupon preferred an appeal to His Excellency the Governor which was rejected on 17th February, 1950.

On 24th January, 1953, he issued the suit notice and hence the suit and the appeal. The appeal initially came up for hearing before a Bench of this Court consisting of my learned brothers Umamaheswaram and Bhimasankaram, JJ. and cwing to a difference of opinion between the Judges constituting the Bench, Umamaheswaram, J., holding that the order of compulsory retirement was invalid as no fair and reasonable opportunity was given to the plaintiff and Bhimasankaram, J., holding that there was no violation of R. 15, the appeal has come up before me.

73. Sri Vepa P. Sarathy the learned counsel for the State of Andhra contended that it was not correct to say that the plaintiff-respondent was not given fair and reasonable opportunity to file his written statement and arrange for his defence and that the trial Court as well as Justice Umamaheswaram have erred in holding that the order of compulsory retirement was invalid. He urged that the material on record was sufficient to come to the conclusion that respondent No. 1 was given every facility and that the enquiry before the Special Officer was fair and reasonable. He further urged that it would not help the respondent to merely allege that no fair and reasonable opportunity was given unless he shows that he has been prejudiced.

The second argument advanced was that the Special Officers report was not final and when the Government after consulting the Public Service Commission and considering the record and the explanation of the respondent came to the conclusion that the charges were proved, the plea of the respondent that he was not given a fair and reasonable opportunity is not tenable. The third argument advanced was that the provisions of R. 15 (i) (b) were fully complied with and that even if the said provisions were not complied with, the respondent can have no legal grievance as he holds his office at the pleasure of the Crown and his services could be terminated without assigning any reason. Reliance was placed on the cases of Secretary of State v I M. Lall, AIR 1945 FC 47 (W) ILR (1937) Mad 532 : (AIR 1937 PC 31) (V) and 1956 Andhra LT 979 : ((S) AIR 1957 Andhra Pra 197) (R).

74. Sri Sankara Sastri, the learned counsel for the respondent, argued first that the fact that the Special Officer did not accept the written statement, did not allow the production of the documents and that he shut out oral evidence, all go to show that the respondent was not given a fair and reasonable opportunity and that this was sufficient to declare the order of compulsory retirement invalid. Conceding that the Special Officers report was not final, it is contended on behalf of the respondent that when the Government accepted the report of the Special Officer and relying on it has held charges 2 and 3 as proved, it cannot be said that no grievance can be made against the report of the Special Officer.

With regard to the objection relating to the compliance with the provisions of R. 15 (i) (b), Sri Sankara Sastri, the learned counsel for the respondent very strenuously contended that the Special Officer has not at all complied with the said provisions and that this Court was entitled to see and review whether the documents and witnesses were relevant or not. Lastly, it was contended that it was not correct to say that the respondent could have no legal grievance against the State when the provisions of R. 15 (i) (b) were not complied with.

75. Two important questions arise for determination in the appeal as has been observed by my learned brother Umamaheswaram J.

1. Whether the plaintiff was not given a fair and reasonable opportunity to present his defence before the Special Officer and there was no due and proper enquiry before him; and

2. Whether the order of reversion was a reduction in rank and was null and void on the ground that no notice was given to him and the order was passed by an authority who was subordinate to the appointing authority.

In so far as the second question is concerned, both the Judges constituting the Bench have held that the order of revision is valid and binding. I need not therefore go into that question.

76. The only point that remains for determination before me is the first one. The Subordinate Judge held that reasonable opportunity was not given to the plaintiff to defend himself, that opportunity was not given for filing his written statement, that no proper opportunity was given to cross-examine some prosecution witnesses, that material evidence was shut out and that grave prejudice was caused thereby to the plaintiff-respondent. My learned brother, Umamaheswaram J., has agreed with the view of the Subordinate Judge, whereas my other learned brother Bhimasankaram J., has taken a contrary view.

77. The rule relevant to the point under consideration is R. 15 of the Madras Civil Service (Classification, Control and Appeal) Rules :

78. Sub-rules (i) and (ii) of cl. (b) of R. 15 run thus :

"Without prejudice to the provisions of Public Servants Inquiries Act, 1850, in every case where it is proposed to impose on a member of a service any of the penalties mentioned in cls (iv), (vi), (vii) and (viii) of R. 8, the grounds of which it is proposed to take action shall except where such action is proposed to be taken on facts which have led to his conviction in a criminal Court or by a military Court-martial, be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any circumstances which it is proposed to take into consideration in passing orders on the case.

He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. An oral inquiry shall be held if such an enquiry is desired by the person charged or is directed by authority concerned. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and 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 enquiry, may, for special and sufficient reason to be recorded in writing, refuse to call a witness.

(ii) After the inquiry has been completed, the person charged shall be entitled to put in, if he so desires any further written statement of his defence. If no oral enquiry is held and if he had desired to be heard in person, a personal hearing shall be given to him. The proceedings shall contain a sufficient record of the evidence and a statement of findings and the grounds thereof."

It is therefore necessary to see whether the said provisions have been complied with and whether the plaintiff-respondent was given a fair and reasonable opportunity to present his defence before the Special Officer. At this stage I should like to point out, that it is not for this Court to consider how far if the excluded evidence had been permitted to be produced, or if the respondent had been given a fair opportunity to cross-examine the prosecution witnesses and file his written statement, the finding of the Special Officer would have been affected thereby.

The Civil Court does not sit as a Court of Appeal and decide whether the conclusion of the officer in the inquiry is erroneous on facts or law, neither is it open to this Court to decide whether additional evidence wrongly shut out would or would not have affected the decision of the Special Officer. What has to be decided is whether the terms of R. 15 (i) (b) have been complied with. If this Court comes to the conclusion that there has been a violation of the said Rules, the enquiry would be vitiated on the ground of denial of fair and reasonable opportunity. It is, therefore, necessary to discuss the evidence bearing on this point.

79. The respondent alleges that he was not given a reasonable opportunity to present his defence inasmuch as

1. time was not excluded for filing the written statement;

2. proper opportunity was not given to cross-examine the prosecution witnesses ;

3. the evidence of defence witnesses Nos. 39 to 42, 48, 49, 54, 55 to 57 and 62 was shut out and documents 1, 5, 10, 15 and 17 were not summoned.

I would first take up the allegation which relates to the finding of the written statement. On 9th March, 1948, the Special Officer after framing 3 charges against the respondent issued notice Exhibit B-18 with copies of the statements of witnesses examined by him in the course of the preliminary enquiry calling upon the respondent to file his written statement on or before 9th April, 1948, with a further direction that he should file the list of witnesses whom he wished to examine, and a list of documents he intended to rely on.

The respondent sent a petition on 2nd April, 1948, marked Exhibit A-14 requesting for adjournment till 2nd May. 1948, for submitting his explanation on the ground that he received the charges on 15th March, 1948, that he had to go on Court duty on casual leave on 17th March, 1948, that he returned to Guntur on 26th March, 1948, and that the order of transfer requiring him to hand over charge on 30th March, 1948, was cancelled on 31st March, 1948, by wireless message. The Special Officer passed the following order on the petition of 2nd April, 1948 :

"The time has elapsed. No further time could be given, the inquiry will go on without his statement."

But before the said order was communicated to the respondent, he sent another petition on 14th April, 1948 marked Exhibit B-26 inviting the attention of the Special Officer to his application elated 2nd April, 1948, for extension of time and also for permission to peruse the following documents :

1. Petition C.N. 230/Petn. and the connected file ;

2. Memos. dated 12th May, 1947 and 25th May, 1947 ;

3. Remarks in C, D. dated 1st June, 1947;

4. History sheet of Abbi Reddy;

5. T. A. Bill for June, 1947 ;

6. Statements of witnesses in original;

80. He further stated that on perusal of those documents he would be in a position to offer his explanation. On this application the Special Officer passed the following order :

"permitted to see Nos. 1 to 5, but not 6. All but 6 - but all this only before the enquiry and not now."

The enquiry was posted to 17th May, 1948 and 18th May, 1948 and notice was sent to the respondent on 19th April 1948, marked Exhibit A-17, asking him to produce the defence witnesses on 17th May, 1948, with a further direction that if he considered that if any of the witnesses would not attend when summoned, the respondent should forthwith send a list of such witnesses with their full address stating the purpose for which he proposed to examine them so as to enable the Enquiry Officer to decide whether or not they should be summoned. The respondent was further asked to submit a list of such documents as he wished to send for.

81. On 4th August, 1948, the respondent filed a statement marked Exhibit A-18 with a list of documents and witnesses to be summoned remonstrating that copies of the documents referred to in support of the charges were not sent to him, also that proceedings D. No. 1081, dated 14th April, 1948, refusing him time to submit his explanation were not received by him, and that without seeing the records of the X Branch enquiry he would not be in a position to file any proper and satisfactory explanation.

82. On 17th May, 1948, the plaintiff-respondent filed his first formal statement in explanation of the charges marked Exhibit B-20. On 19th May, 1948 and 21st May, 1948, prosecution witnesses 1 to 10 were examined. There is nothing on record to show that the written statement or the explanation filed by the respondent was ever accepted by the Special Officer. On my questioning, the learned counsel for the appellant whether the written statements were accepted by the Court, he very candidly conceded that there is no express order of the Court accepting the written statements, but contended that the very fact that those statements formed part of the record and have not been returned to the plaintiff-respondent shows that the Special Officer accepted and considered them.

I am very reluctant to accept this contention, The Special Officer in paragraph 3 at page 2 of his report, Exhibit 32, has clearly stated that as no written statement was filed the enquiry was posted to 17th May, 1948 and 18th May, 1948. This clearly shows that the Special Officer was not even prepared to treat Exhibit A-18 as a written statement. It also appears that the written statement filed on 17th May, 1948, also was not accepted by the Special Officer, for, in paragraph 3, at page 2, of his report he remarks that the respondent has sent his written statement without obtaining his permission for extension of the time and without applying for the condonation of the delay.

It may, therefore, be presumed that the Special Officer had refused to accept the written statements, although he had received them and put them on record, characterising Exhibit B-20, as being one for which there was no provision. Again, on Exhibit A-14, he had endorsed that no further time could be given and that the enquiry would proceed without the written statement, he could not have treated Exhibit A-18, as written statement and given due consideration to it.

83. Now it was contended on behalf of the appellant that the object of a written statement was only to find out whether the accused officer admitted the charges or not, and that when the respondent had filed two elaborate written statements which form part of the record and when it is not alleged that certain allegations made therein had not been considered, it cannot be said that the respondent was denied the opportunity to file a written statement, thereby causing prejudice to him. It was next argued that the fact that the respondent did not make any complaint in Exhibit A-31, his final statement, or in his representation to the Government that he was not given opportunity to file the written statement, goes to show that he has not been prejudiced.

84. I do not agree with the contention of the learned counsel for the appellant that the object of filing a written statement is only to find out whether the charges framed were admitted or denied. In my view, this is only one of the objects. Another is to give him an opportunity to state the line of his defence; and yet another in the words of my learned brother Bhimasankaram J., is

"to enable the authority concerned to see whether the accused officer could not be exonerated straightway on the basis of his explanation if it was satisfactory, or if there was to be an enquiry, to limit its scope to the defence actually set up."

85. Furthermore, it was not possible in the Instant case for the accused officer to file his written statement without perusing the documents and without having access to the original statements. No doubt, the. accused officer did file two written statements one on the 5th May, 1948, Exhibit A-18, and the other on 17th May, 1948. Exhibit B-20, but as I have already observed they could not have received the consideration they Should have. In both these statements, however, he has made complaints that he was not permitted to peruse the original statements of the witnesses and had no access to all the records and reports of the X Branch relied upon and that therefore he was not in a position to give a complete explanation and set up his defence.

It seems to me that the accused officer may have filed the written statements being afraid that if he did not give whatever explanation he possibly could, the Special Officer might be prejudiced against him or might infer that he had no explanation to give. In the first formal statement Exhibit B-20 of 17th May, 1948, the accused officer had mentioned certain facts with regard to Abbireddy and Bahadur. If as is contended by the learned counsel for the State, the Special Officer had considered these explanations, then it is not unreasonable to assume that he would have discussed them in connection with charge No. 2. But I fail to find any such discussion to the report of the officer.

Then again, in connection with charge No. 3 the accused officer had stated certain facts in his written statement, which also I find have not been considered. It is true that one months time was given to the accused officer to file his written statement, but the question whether this was reasonable would depend on the circumstances of the case. The accused officer in Exhibit A-14, had given reasons for not filing his written statement within time, but I find that no consideration at all was given to them. If the reasons given by the respondent had been taken into account, the Special Officer would have extended the time to file the statement. On the other hand, I find that the Special Officer instead of extending the time, endorsed that no further time could be given.

86. Further, the request made by the respondent in Exhibit B-26, that he might be permitted to peruse the documents before filing his defence was, in my opinion, very reasonable. I am unable to understand why the officer took the view that when the documents in respect of which permission had been granted should not be looked into before filing the written statements, but only on the date of the enquiry. No reasons are given as to why the respondent was not entitled to look into the original statements of the witnesses recorded by the officer during the preliminary enquiry. The fact that the accused officer filed the written statement shows that he was anxious to give an, explanation, and at the same time anxious to have all the details and the documents for perusal relating to the allegations against him.

In these circumstances, it is unjust to say that the accused officer was not prepared to give any explanation or that he was avoiding it. Nor do I find any force in the argument of the learned counsel for the appellant that as the respondent had not complained of this in his final written statement and in his representation to the Government, it could not be said that he had been prejudiced. So far as the final written statement is concerned, it consists only of complaints of denial of facilities after the enquiry began, but its omission should not be given undue importance especially in view of the fact that in the representation to the Government, Exhibit A-34, the accused officer has complained of this and he has been complaining of it throughout.

87. I next proceed to deal with the second complaint of the respondent, viz., that he did not have a proper opportunity to cross-examine the prosecution witnesses P. Ws. 11 to 14. The point to be determined is whether such lack of opportunity prejudiced him. For this purpose, it is necessary to set out a few details regarding the enquiry. The enquiry which stood posted to 17th April, 1948, could not however commence on that day because the prosecution witnesses did not turn up. It commenced on the 19th May, and continued till the 21st May, 1948. The plaintiff-respondent was represented by Sri A.K. Pillai. P. Ws 1 to 10 were examined between 19th and 21st May, 1948, and some more prosecution witnesses remained to be examined, and therefore the enquiry was adjourned to 2nd June, 1948. Prior to the said date, the respondent sent a petition Exhibit A-22 accompanied by a certificate of a Civil Surgeon marked Exhibit A-21, requesting the Special Officer to adjourn the enquiry.

I may here mention that the doctor certified that the plaintiff-respondent was suffering from neurolisis and palpitation of heart and was not in a fit condition to proceed to Madras from Masulipatnam. The Special Officer thereupon sent a telegram to the respondent directing him to appear before the District Medical Officer and wrote to the Government to request the District Medical Officer to examine him. The District Medical Officer examined the respondent and gave a certificate marked Exhibit A-23 to the effect that the respondent was in a bad state of health, and that he may be granted 2 months leave. Sri A.K. Pillai, counsel for the plaintiff-respondent, also applied for an adjournment on this very ground on 2nd June, 1948 (see Exhibit B-30). The Special Officer adjourned the enquiry to 15th June, 1948. On 14th June, 1948, the respondent sent a telegram for further adjournment.

The Special Officer after receipt of the report of the Medical Officer and the telegram of the respondent, adjourned the enquiry to 25th June, 1948, that is for a period of ten days only, and informed the plaintiff-respondent of the same through Exhibit A-25. It appears that in spite of the illness, the plaintiff-respondent appeared on 25th June and requested the Special Officer by an application marked Exhibit A-26, that an adjournment for 3 weeks be granted to him. He also represented in his application that his counsel had gone to Nagpur on professional work and would not be available. The Special Officer refused to grant an adjournment, and proceeded with the examination of P. Ws. 11 to 14. The respondent who was in a very weak state of health was forced personally to cross-examine those witnesses.

Exhibit B-38, (B Diary) shows that the enquiry was not completed on 25th June, 1948, but was adjourned to 30th and 31st July, for the examination of the remaining prosecution witnesses. When the enquiry was not completed on the 25th June, 1948, the Special Officer ought to have adjourned the case having regard to the illness of the plaintiff-respondent and the absence of his counsel, and not insisted on proceeding with the examination of the witnesses. In paragraph 3 of the report, the Special Officer states that he had an uneasy feeling that the certificate of the Honorary Medical Officer was not correct and that his apprehension in a way was justified by the report of the District Medical Officer.

I fail to appreciate this remark of the Special Officer since the certificate of the District Medical Officer and the Civil Surgeons certificate are in similar terms indicating that the plaintiff-respondent required rest. The rejection of the adjournment application and the insistence upon the plaintiff-respondents cross-examining P. Ws. 11 to 14 without the assistance of a lawyer would, in my opinion, amount to a denial of a fair opportunity to the respondent to substantiate his defence.

88. It is true that the accused officer had no right to engage a counsel without the permission of the Special Officer, but when once he was permitted the assistance of a lawyer it would not be proper to insist on proceeding with the case without such assistance on the ground that there was no possibility of the counsel returning early or that the enquiry once started could not be delayed, especially when as a matter of fact the enquiry was adjourned for the prosecution witnesses. The argument that when P. W. 11 had deposed in favour of the respondent, there was no need for any further cross-examination is also equally untenable as I find that the Special Officer did not rely on this deposition but was influenced by this witness previous deposition, so that if the respondent had the assistance of a lawyer, the contradictions between the two depositions could have been dealt with by means of skilful cross-examination, which would have helped the Special Officer himself in discovering the truth.

89. It is contended on behalf of the appellant that as the evidence of P. Ws. 12 to 14 relate to charge No. 1 and as the finding of the Special Officer on this point of the case was not accepted by the Government, I need not go into the question as to how far the respondent had reasonable opportunity of disproving this particular charge and confine myself to the question as to whether he was denied a fair opportunity to meet charges Nos. 2 and 3. It is true that the enquiry related to 3 charges and that the witnesses sought to be examined in respect of those charges were distinct and different, but in considering whether the respondent was given a reasonable opportunity at the time of the enquiry, it would not be safe to separate the charges and enquiry in respect of each whether such opportunity was in fact given.

It is also true that ultimately the respondent was acquitted of the charge in regard to which P. Ws. 12 to 14 had given evidence, but the (complaint about the denial of a reasonable opportunity is against the Special Officer who had not acquitted him but found him guilty.

90. Now, even assuming that the contention of the appellant that I should confine myself to charges 2 and 3 is correct, I am not inclined to agree with him that no prejudice has been caused by the absence of the lawyer because I find that P. W. 11 was one of the principal witnesses on charge No. 2. It is contended on behalf of the appellant that the Special Officer has not taken into account his statement on the ground that he was inclined to speak in favour of the accused and that when he has not been influenced by the statement of P. W. 11, the respondent can have no grievance. No doubt, the Special Officer ignored the statement on that ground and accepted his earlier statement before the X branch to be true but there is no note of the Special Officer to the effect that the witness was inclined to speak in favour of the accused. If the respondent had the advantage to cross-examine the witnesses with the help of a lawyer, he would have asked questions about his earlier statement.

91. It is next contended that R. 15 (b) only provides that the person charged would be entitled to cross-examine the witness and that when the respondent cross-examined P. W. 11, the fact that effective cross-examination was not possible without the help of the lawyer does not amount to an infringement of the rule. I cannot accept this argument either. The complaint is not that he was not permitted to cross-examine, but that reasonable opportunity was not given. When the respondent was denied the assistance of his lawyer, that was denial of fair opportunity to cross-examine. There is no force in the contention of the learned counsel for the appellant that inasmuch as the respondent has not complained of this in his final written statement or in the representation to the Government, there cannot be any question of prejudice.

92. The next complaint of the respondent is that he was denied a fair opportunity to make out his defence. His case is that even before the conclusion of the prosecution evidence he was called upon by the Special Officer to give a list of the documents he wanted to rely on and a list of the witnesses he wanted to examine in support of his defence and he further complains that the enquiry was abruptly closed on 2nd September, which prevented him from calling other material witnesses and filing other relevant documents, It may be pointed out that in his so-called written statement Exhibit A-18, the respondent had submitted a list of 26 documents and 60 witnesses to be summoned stating against each the purpose for which he was being summoned.

In July, the respondent was asked to revise the list and accordingly he filed two separate revised lists marked Exhibits A-29 and A-30. A-29 contains a list of 63 witnesses and A-30 pertains to the summoning of 22 documents. On A-29 the Special Officer passed an order to the following effect :

"Nos. 1 to 6, 16 to 18, 24 to 31, 34 to 51, 55 to 57 and 62 not relevant. They have no bearing on the case. These witnesses will not be summoned. The others will be summoned."

93. The aforesaid order does not bear any date and there is no order on Exhibit A-30. Out of the 22 witnesses summoned 15 were examined, and nothing is known as to what happened to the remaining 7 witnesses. One of them, however, was Imam, another important witness on charge No. 2. He was summoned along with R. Narsimha Reddy and Gursalkunda Reddy. These two were examined, but the respondent was denied the opportunity of examining Imam. It is contended on behalf of the appellant that the respondent did not make any complaint about non-examination of Imam in his plaint, or in the suit notice or in his written statement, or in his representation to the Government, or in his final written statement, in the petitions B-34 and B-35 or in his deposition, which goes to prove either that the witness was not material or that the respondent gave him up thinking that the witness was not disposed to speak in his favour. I do not agree with this contention.

It is true that neither in the plaint, nor in the suit notice, nor in Exhibit A-37, nor in his statement and petitions Exhibits B-34 to B-36, there is any reference to Imam, but this omission would not prove that the respondent was not aggrieved by the non-examination or that he gave him up when in B-20 i.e., the formal statement, it is mentioned that money was paid to the driver, Imam being admittedly the driver. In Exhibit A-29 his name appears in item 54 and again in the representation to the Government, Exhibit A-34, there is not only a reference to Imam as their driver to whom money was paid, but the respondent has complained that the officer erred in not adjourning the enquiry for the absentee defence witnesses to whom summons had been issued, and Imam was one of those witnesses.

This was an important witness so far as charge No. 2 was concerned. The Special Officer relying on the solitary statement of Bahadur has come to the conclusion that he supplied petrol to the car used by the respondent and that the respondent submitted a false travelling certificate. The respondent in his written statement and his explanation has clearly stated that Bahadur did not supply petrol but that he paid Rs. 15 to the driver Imam. In view of all this, I find that the respondent was denied the opportunity to examine this witness and make out his defence and that it cannot be said that the respondent did not complain of his non-examination or that he did not think him to be an important and material witness and gave him up.

There is nothing on the record to show that he gave him up. On my asking, the learned counsel for the appellant about this, he expressed his inability to account stating that records had been destroyed on 17th February, 1953. If the respondent had given up Imam there would have been an endorsement somewhere to that effect by the Special Officer and a statement to that effect in his report. Again, it is not clear from the endorsement of the Special Officer on Exhibit A-29 whether the respondent or his counsel was consulted in the matter of summoning the witnesses, nor are there any reasons assigned as to why the witnesses were not relevant and had no material bearing on the case. Exhibit B-39 extract of the B Diary also does not throw any light upon this question.

The learned counsel for the State argued that inasmuch as the list furnished by the respondent contained a gist of the purpose for which they were to be summoned as against each witness or document, the learned Special Officer took that into consideration for deciding the relevancy of any particular witness or document, and that therefore there was no further need to give any special or sufficient reason in writing. This contention of the earned counsel cannot be accepted, having regard to the clear provisions of R. 15 (i) (b). It may be noted that Exhibits A-29 and A-30 were filed at a time when the prosecution evidence was in progress. The respondent had to file this list for fear that if he did not comply with the orders, the Special Officer might be prejudiced against him.

It is only after the prosecution evidence was closed that the respondent could know as to what he had to prove by way of defence. The statement of the purpose against the names of each witness and document could only be tentative and therefore the Special Officer could not rely upon this and decide as to which of the witnesses should be summoned. The Special Officer in my opinion, ought to have given the respondent an opportunity to explain the relevancy of the witnesses and documents. It was argued by Shri Sankara Sastri that A-29 contained a list of some very material witnesses pertaining to both the charges for instance items 34, 39 to 42, 48, 49, 54, 55 to 57 and 62 and non-summoning of these witnesses has greatly prejudiced the respondent. From a perusal of A-29 I find that against each item the respondent had made a note as to what those witnesses were going to speak to.

94. Furthermore, the Special Officer should at least have given another adjournment for examining the remaining 7 witnesses who were among those he himself had selected to be summoned as relevant. There can be no doubt therefore that the closure of the defence evidence on 2nd September was abrupt. Finding that the Special Officer closed the enquiry abruptly, the respondent was forced to file 3 petitions marked Exhibits B-34 to 36. All the three petitions are dated 2nd September. Exhibit B-34 contains the request that one Shri Seshagiri Rao, retired Deputy Collector who was a very important witness present in Court might be examined.

On this petition the Special Officer endorsed that he had already declared Shri Seshagiri Rao to be not a relevant witnesses and that he could not become relevant, simply because the respondent chose to bring him or because he consented to come without summons. Exhibit B-35 was to summon at least 10 witnesses mentioned therein. On this petition, the Special Officer on 9th September, 1948, passed an order to the effect that he did not see any reason to grant the request at that stage, and that the accused officer had been granted all reasonable time and facilities to have his witnesses summoned. He accordingly rejected that petition. Through Exhibit B-36, the respondent made a request for summoning at least 7 documents mentioned in it. On this the Special Officer, on 11th September, 1948, made the following order :

This was filed after the whole enquiry was closed. No. 2 is not available. As No. 7 serves purpose of 4 and 5, it was brought and seen by the accused officer. No. 1 cannot be given. "Nos. 3, 6 and 7 were here and the officer saw them in the presence of the X Branch Inspector and under my orders."

Although the order upon Exhibit B-34 was passed on 2nd September, 1948, on which date all the 3 petitions were filed, I fail to understand why the order upon Exhibit B-35 was passed on 9th September, 1948 and on Exhibit B-36 on the 11th September, 1948. Shri Sankara Sastri, the learned counsel for the respondent argued that if the witnesses had been summoned and the documents sent for they would have a very material bearing upon charges 2 and 3 and that their non-examination or non-production amounts to denial of a reasonable opportunity to be heard in defence. He relied upon 3 unreported cases W. A. No. 131 of 1955 (Mad) (A), W. P. No. 114 of 1955 (Mad) (C) and W. P. No. 739 of 1953 (Mad) (B) and the case of Keshab Deo v. Emperor, 81 Ind Cas 715 : (AIR 1924 All 320) (X-Y), Yusuf v. Buni Lal Mandal, 51 Ind Cas 847 : (AIR 1919 Pat 565) (Z), Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51 (Z-1) and Choudhury A R. S v. Union of India, (S) AIR 1956 Cal 662 (Z-2).

I find sufficient force in the contention advanced by the learned counsel. So far as charge No. 2 is concerned, there is only the solitary statement of Bahadur. The respondent in his explanations before the enquiry had alleged that Bahadur was inimically disposed towards him and had a grudge, as he had recommended suspension of his permit and taken action against him as Dy. S. P. of Jammalamadugu. The respondent therefore wanted to establish this fact by summoning certain witnesses and sending for certain documents. It appears from Exhibit A-29, that he wanted to examine K. Hussain Sab, Khaja Mian, G. Krishnamurthy, an Advocate of Proddattur and H.C. David.

In the list filed, he had stated that K. Hussain Sab and Khaja Mian would speak to the action he personally took against the buses of Bahadur on their complaint. Against Krishnamurthys name, the respondent had stated that this witness would speak to the personal action the respondent took against Bahadur and also file the petition. The note against David says :

"to state that he kept a special eye over Bahadur and Abbi Reddis activities under the plaintiff (respondent) instructions."

95. The Special Officer in paragraph 23 of the report comments :

"Mr. Kameswara Rao attacks the evidence of Bahadur as untrustworthy because Bahadur bore him a grudge as Mr. Kameswara Rao had recommended suspension of his permit and wanted his police subordinates to squarely deal with the buses of Bahadur. I must say there is no evidence on this point. All that Mr. Kameswara Rao did was only to issue routine instructions to his subordinates with regard to bus service in general."

The comment of the Special Officer is noteworthy. When the respondent wants to prove that Bahadur bore him a grudge by summoning certain witnesses and sending for certain documents, the Special Officer shuts out that part of the evidence and proceeds to comment that there is no evidence on this point. It was contended by the learned counsel for the State that if the object of the respondent was to establish motive that fact was admitted by Bahadur himself. I am reluctant to accept this argument. First of all, Bahadur has not admitted that his permit was cancelled or that the officer sent for him and warned him against his buses stopping near the hospital. Secondly, I find that the Special Officer himself has drawn adverse inference against the respondent for not producing rebuttal evidence.

It was next contended on behalf of the appellant that omission to issue summons to Sri Krishnamurthy, Advocate, was immaterial inasmuch as his petition was filed. I am not inclined to accept this argument either. It is true that this petition was filed, but the respondent was deprived of the benefit of his oral evidence to prove his version in its entirety. In my view these four witnesses were material witnesses and the respondents ought to have been permitted to summon and examine them.

96. I next proceed to consider the effect of non-summoning of the remaining witnesses i.e., 39 to 42, 48 and 49 permitting to charge No. 2. In Exhibit A-29 against witnesses 39 to 42, the respondent had stated that these witnesses would depose that they refused to state falsely against him in spite of pressure and propaganda from the X Branch. The learned counsel for the State argued first that the provisions of the evidence act do not apply to departmental enquiries. He next contended that even if the said provisions applied to the above enquiries, the evidence of the witnesses 39 to 42 would not be relevant under S. 155 (2) of the Evidence Act as the object of summoning the witnesses was to counteract the prosecution rather than to establish defence. In this connection he drew my attention to the observations of Bhimasankaram J.,

The learned counsel for the respondent on the other hand relying on the cases of Shukul v. Emperor, AIR 1933 All 314 (Z-3), Man Singh v. Emperor, AIR 1933 All 401 (Z-4), Asmathullah v. Emperor, AIR 1933 All 896 (Z-5), Inja Vengala Reddy v. The State, 1955 Andhra LT 285 : (AIR 1956 Andhra 26) (Z-6), Amin Chand v. The Crown, 48 Cri LJ 522 (Lah) (Z-7), Abdul Sattar v. Emperor, AIR 1936 Lah 278 (Z-8). contended that the object of summoning these witnesses was not to counteract the prosecution but to establish his defence by showing that the X Branch was taking interest to make out a false case against him. This contention I would have accepted if any witnesses representing the X Branch had been examined. In that case it would have been open to the respondent to impeach the impartiality of any such witness if he had been exe mined and had denied any facts showing his par tiality, by adducing evidence contradicting that witness.

But as both the learned counsel concede that the provisions of the Indian Evidence Act are not applicable to the enquiry, I do not wish to go into a dotailed discussion as to whether the statement of P. Ws. 39 to 42 are admissible under S. 155 (2) or exception 2 to S. 153, Evidence Act, and discuss the authorities cited by the learned counsel for the respondent. However justice would have been done if the respondent had been given an opportunity to call these witnesses.

97. The other two witnesses mentioned are Nos. 48 and 49 in Exhibit A-29. The entry against 48 is as follows :

"To speak that he pressed the Dy. S. P., Krishna Iyengar to raid Abbireddis village and book him as he was indulging in the above activities after he made a statement against me by running a black taxi to facilitate his operations; the D.S.P. will file the correspondence between him and Dy. S. P., Mr. Krishna Iyengar."

From this note, it would appear that this witness was summoned in connection with charge No. 1. Against witness 49, it was stated

"that he would file his report to the D.S.P. Mr. Briwn, D.S.P. Cuddapah and his correspondence with Manikyam Mudaliar about Abbireddis activities and his raid in January, 1948 and the connivance of the Proddattur Inspector and X Branch Inspector Narayanaswamy with Abbireddi as a result of conspiracy against him and that he would also file the report which he made to the I. G. and D. I. G. describing his difficulties and insult at the hands of the Inspector and Abbireddi because of his action taken against Abbireddi and that he would speak to the startling details of his experiences at the hands of these people and the stinking reputation of Proddattur Police through their association with Abbireddi."

On behalf of the appellant, it is seriously contended that Item 48 relates to charge No. 1 and as the respondent has been acquitted of the charge no grievance can be made of this. With regard to item 49 it is contended that the Special Officer rightly held that the statements of these witnesses are irrelevant. It is true that item 48 relates to charge No. 1 but item 49, is connected with charge 2. The object of the respondent in summoning these witnesses was to show that the X Branch was taking interest to make out a false case against him. This, in my opinion, was relevant and material. By non-issue of summons to those witnesses and non-examination, I have no doubt that the respondent was denied a fair opportunity and was also prejudiced.

In the list of documents Exhibit A-30 the respondent has stated that the documents Nos. 1, 5 and 17 were material in so far as charge No. 2 was concerned. As stated above no orders were passed by the Special Officer on this application and documents do not appear to have been called for. Item 1 mentioned in A-30 was the anonymous petition sent against the respondent in July, 1947. Document 5 was his D. O. dated 20th October, 1947, addressed to the Inspector of Police and Item 17 is the T. B. Register. The object of the respondent in sending for document 1 along with the report of the D. S. P. and D. I G. Police, Bellary, was to show that the D. S. P., Guddapah, enquired into the matter and found the allegations mentioned therein to be false. He further wanted to show that in that document, there was no reference to charges 2 and 3.

The object of calling for document 5 was to show that P. W. 3 had a strong motive against him. By document 17 he wanted to contradict the statement of Bahadur. On behalf of the State, it was contended that according to R. 15(i) (b) only oral evidence was permissible and if the Special Officer did not send for the documents there was no violation of any of the provisions. I am unable to accept this contention also. Technically there is force in the argument because R. 15 (1) (b) (i) as it stood then did not contemplate the filing of documents and it is only through G. O. Ms. 25 of 29th November, 1954, the documentary evidence is permitted and that the said rule has been amended. But I find that the Special Officer did not refuse to send for the documents on this ground. If he had that in mind he should have rejected all the documents and not made selection therefrom. The next argument is that the respondent has the copies of D. O. and the T. B. register which he could have filed and that therefore he cannot have any grievance.

With regard to the anonymous petition it was contended on behalf of the appellant that it was not a relevant document and both the learned Judges constituting the Bench have also held it so, I am very reluctant to accept the argument of the learned counsel for the State. In my opinion all the documents were material and if produced would have proved that Bahadur had a strong motive for deposing on behalf of the prosecution and that no reliance could be placed upon the earlier statement of P. W. 11.

It is true that the respondent had the copies of items 5 and 17 and he could have filed them but to say that not having filed he could not have a grievance would not be correct. What I have to see is whether the non-production of the documents is a denial of fair and reasonable opportunity or not. I have no hesitation therefore in holding that non-production of the above documents is denial of fair and reasonable opportunity to the respondent. Item 10 in A-30 was also a material piece of evidence. Though it related mostly to Abbireddis activities, it had some bearing on charge No. 2 also. The respondent through his petition, dated 2nd September, 1948, marked Exhibit B-36 complained of this fact and prayed that at least documents mentioned in that petition be summoned. I may here mention that in this petition, there is a special reference to the Municipal Travellers bungalow register of Proddattur.

The object of the respondent in summoning this document was to show that what Bahadur had stated that he stayed in the Travellers Bungalow was not correct. In the order passed on this petition it was stated that the respondent had already inspected the municipal travellers bungalow register in the presence of the X Branch Inspector and under his orders. Shri Shankara Sastri, the learned counsel for the respondent, argued that the respondent had applied for summoning document item No. 17 for the first time on 15th July, 1948, through Exhibit A-30, after the statement of Bahadur, and it was not included in the list filed by the respondent in the month of May and that when no orders were passed on that application, it was not possible for the Special Officer to get this document and permit the respondent to peruse the same.

I find sufficient force in this contention. In the May list there is no mention of this document. It is only in Exhibit A-30 that there is a mention of this document. The learned counsel for the appellant drew my attention to two paras in the report of the Special Officer wherein there is a reference to the perusal of the documents and argued that that proves that the respondent had seen the documents on 4th September, 1948. He further contended that the respondent himself had attached a copy of the Travellers Bungalow register bearing the date of 4th September, 1948, along with his final statement Exhibit A-31 which also proves that he saw the same on that date. In the first para the Special Officer states :

"On 17th May, 1948, the accused officer appeared with his counsel who discussed at length with him about the very large number of documents which the accused Officer wanted to peruse .............Both the accused Officer and his Advocate perused all the available documents. On 18th May, 1948, that is, after the perusal of the documents, he filed a further written statement."

A perusal of the documents mentioned in this para, cannot possibly refer to Item 17 as it was not included in that list. In another para of the report the Officer has stated that copies of all the depositions were given to him promptly on 4th September, 1948, and again he examined all the documents in the office. The reference to perusal of documents in this para could only relate to those documents on which exhibits were marked. The learned counsel for the State contended that it refers to other documents also on which exhibits were not marked, but which were part of the record. I am not inclined to accept this argument. In the documents on which exhibits are marked there is no mention of item 17.

In the absence of any written order of the Special Officer for summoning item 17 and the fact of the document not being included in the list of documents on which exhibits were marked, I fail to understand how this can be said to be part of the record. It is argued on behalf of the appellant that when the Officer says that these documents were there, it must be presumed to be true. Ordinarily with regard to official proceedings there is such a presumption, but as item 17 is not mentioned in Exhibit B-39 extract of the B diary it cannot be considered to be part of the record. It can therefore be said as is argued by the learned counsel for the respondent that what the Special Officer has said in his report is only to justify his action.

The respondent could only see this document after 15th July, 1948, and as item 17 was not part of the record he could not have possibly seen it before 2nd September, 1948. If the said document was summoned and was part of the record before 2nd September, 1948, the respondent would not have stated in B-36 that he wanted this document to prove his case and the X Branch Inspector would have immediately objected and stated that the respondent had already seen the document, and the Officer would have passed an order to that effect on that very day. The respondent could not have possibly seen the document on 4th September, 1948 either. No doubt, the copy attached to A-31 bears the date 4th September, 1948, but it does not follow that on that date the document was inspected and copy was obtained. If the document was in the custody of the Special Officer it was not possible for the respondent to get uncertified copy.

The respondent who was examined in the suit has stated that Exhibits B-34 to 36 were prepared under the instructions of his Advocate after the enquiry was abruptly closed and that he did not inspect documents 3, 6 and 7 mentioned in Exhibit B-36. This statement of the respondent has been accepted by the Subordinate Judge. My learned brother Umamaheswaram J., also has agreed with his view and I do not see any reason to differ. It was contended on behalf of the appellant that the respondent had private copies of the D. O. and the Travellers bungalow register and he could have produced them rather than make a complaint about their non-production. It appears that the respondent had these copies and he would have filed them but he did not do so thinking that they were private copies and would not be accepted without the production of the original. To me also this appears to be true.

98. With reference to the third charge, it was argued on behalf of the respondent that witnesses 39 to 42, 48 and 49 specified in Exhibit A-29 and documents 1, 5 and 15 mentioned in Exhibit A-30 were relevant for substantiating his defence. Charge 3 was that on the pretext of buying car MSC 1139 from G. Ramakrishna Reddy the respondent took away the car without buying it and used for 4 months and returned it to the owner in October, 1947, when he knew that an enquiry against him was in progress. The fact that the respondent was using the car was spoken to by P. W. 3, Sub-Inspector of Police. Ramakrishna Reddy, P. W. 11 was examined to prove the purchase of car for the respondent.

The Special Officer took the view that P.W. 11 was inclined to speak in favour of the respondent and preferred to rely on Exhibit 3, letter addressed by Gurumurthy, P. W. 2 to Karim, the original owner, asking him to transfer the car in the name of the respondent. This Karim was not produced. The Special Officer was influenced by the earlier statement of P. W. 11 marked Exhibit A-48. The respondents complaint was that pressure was brought upon several persons to state falsely against him and that P. W. 11s previous statement Exhibit A-48 was similarly obtained. He had therefore applied to summon witnesses 39 to 42 in Exhibit A-29 to show that they all refused to state falsely against him in spite of the pressure from the X Branch.

It was also contended that documents 1, 5 and 15 were summoned to falsify the statement of P. W. 11 and the Sub-Inspector of Police. Document No. 1 forming part of A-30 was the anonymous petition sent against the respondent in July 1947, and which according to him was duly enquired into by the District Superintendent of Police, Cuddapah who had found the allegations to be false. Document No. 5 in Exhibit A-30 was his D. O., dated 20th October, 1947, addressed to the Inspector-General of Police, I have said earlier that in the interests of justice, witnesses 39 to 42 should have been summoned. So far as the documents are concerned I am of opinion that the anonymous petition, the D. O. and document No. 15 were important and material documents which the respondent was entitled to summon and their non-production would result in failure of justice and denial of fair opportunity to defend.

It is not denied that the Court is entitled to examine the record to find out whether the documents and witnesses excluded by the Officer were relevant or not, and it is only with this purpose that I have to go into the record. A similar point was raised in the case of W. A. No. 131 of1955 (Mad) (A), unreported judgment of the Madras High Court. In that case also the Complaint was that the enquiry officer had not given the complainant adequate opportunity to make out his defence. Rajamannar C. J., held :

"If the records asked for were really relevant and material for the purpose of defence of the appellant, failure to provide the appellant with them would result in failure of justice, because the appellant would have been denied an opportunity to defend himself. It was further observed :

"If and how the appellant could have used the entries in the disbursement register was not a matter for the Collector to decide nor is it for us. All that we can certainly say is that the disbursement register was surely relevant and material."

Identical questions had arisen in 2 other unreported judgments of the Madras High Court in the cases of W. P. No. 739 of 1953 (Mad) (B) and W. P. No 114 of 1955 (Mad) (O). The learned Judges were of the view that fair and reasonable opportunity was not given to the Officers charged in those cases. The other cases relied upon by the learned counsel for the respondent i.e., 81 Ind Cas 715 : (AIR 1924 All 320) (X-Y), 51 Ind Cas 847 : (AIR 1919 Pat 565) (Z) and AIR 1954 SC 51 (Z-1), all relate to defence facilities to be given to the accused in criminal trials. Though the enquiry before the Special Officer is not judicial but quasi-judicial in nature, still the principles of natural justice have to be applied.

99. It was further contended on behalf of the appellant that even if the provisions of R. 15 (i) (b) are not followed, the respondent can have no legal grievance as he holds office at the pleasure of the Crown and his services can be terminated without assigning any reasons. Reliance was placed on the cases of AIR 1937 PC 31 (V), 1956 Andh LT 979 : ((S) AIR 1957 Andhra Pra 197) (R) and the case of AIR 1945 FC 47 (W). Shri Sankara Sastri, the learned counsel, very rightly contended that inasmuch as the provisions of R. 15 (b) (i) have been violated the order of compulsory retirement should be declared to be illegal and void. The rules have been framed in exercise of the powers conferred by paragraph (b) of sub-s. (2) of S. 241 of the Government of India Act, 1935.

Rule 8 sets out the various penalties. Sub-clause (6) of R. 8 relates to the penalty of compulsory retirement. Rule 15 (b) (i) enjoins that in every case where it is proposed to impose on a member of service any of the penalties mentioned in cls. 4, 6, 7 and 8 of R. 8 the procedure laid down therein should be followed. It is a well-established principle of law that except where it is otherwise provided by a Statute, officers and servants of the Crown hold their appointments at the pleasure of the Crown. Their services can be terminated without assigning any reasons. But restrictions that have been imposed upon the unfettered right of the Government to dismiss its servants at its pleasure by S. 240 of the Government of India Act or by Art. 311 of the Constiution are that no servant could be dismissed or removed without giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

Reasonable opportunity to show cause against the action proposed to be taken includes an opportunity to canvass the correctness of the reasons for taking the proposed action. What is reasonable opportunity has not been defined in the Constitution or in the General Clauses Act. The words have a legal meaning. It cannot be left to the vagaries of each individual. It must therefore mean reasonable according to the rules of natural justice, which are rules of law. As to the rules of natural justice some principles have been laid down which are widely accepted. Two of these are generally applicable to all departmental enquiries, viz., (a) a person must be told clearly and specifically of the offences with which he is charged; (b) he must not be condemned unheard, although strict rules of the law of evidence are not applicable to such an enquiry.

100. Now, in order to enable the Government to determine provisionally the punishment which should be imposed upon the public servant, the Madras Civil Service (Disciplinary Proceedings Tribunal) Rules of 1948 were framed in exercise of the powers conferred by S. 241 (1) (b) and (2) (b) of the Government of India Act, 1935, having been reproduced in Art. 311 of the Consticution the conditions of service and tenure of service which were affirmed by the Federal Court in the case of AIR 1945 PC 47 (W), are applicable to a Government servant after the coming into force of the Constitution of India.

Article 313 of the Constitution enacts that till other provision is made under the Constitution all the laws in force immediately before the commencement of the Constitution and applicable to any public servant under the State shall continue in force so far as they are consistent with the provisions of the Constitution. The result is that the rules framed under the Government of India Act, 1935 continue to be in force. The contention on behalf of the appellant is that the rules have no statutory force and that the Government is entitled to act in violation of those rules. A similar contention was raised on behalf of the State in W. P. No. 817 of 1952 (Andhra) (M) (Now Andhra) (Unreported Judgment of the Andhra High Court) but was negatived by Umamaheswaram J., relying on the judgment of Madras High Court in W. P. No. 844 of 1952 : ((S) AIR 1955 Mad 182) (N), holding that the rules framed under S. 241 of the Government of India Act have statutory force and are binding on the State Government, and that the Government is not entitled to act in violation of those rules.

The learned counsel for the State relying on the case of State of Madras v. P. S. Kuppuswamy, contended that the decision of Rajagopala Iyengar J., in P.S. Kuppuswamy v. State of Madras 1956-2 Mad LJ 352 (Z-9), was reversed by the said Bench decision holding that the rules framed had no statutory force and were not binding on the State Government. I do not wish to go into the question whether the observations of Rajagopala Iyengar J., have been dissented from by the Bench for in the recent judgments of this Court In the case of 1956 Andh LT 979 : ((S) AIR 1957 Andhra Pra 197) (R), and in the unreported case of W. A. No. 69 of 1956 (Andhra) (G), this matter has been set at rest. These rules have been held to be statutory rules and as much binding upon the Government as upon the citizen.

101. I have therefore no hesitation on the facts of the case discussed above to come to the conclusion that the order of compulsory retirement was invalid as the respondent was not given a fair and reasonable opportunity as required by R. 15 (b) (1) which are statutory rules and binding on the Government.

102. In the result, I agree with my learned brother Umamaheswaram J., The appeal to be disposed of accordingly.

Appeal No. 87 of 1956.

On receipt of the answer by the third Judge, the order of the Court was made by

UMAMAHESWARAM, J. :

103. Following the opinion of Manohar Pershad J., the order of compulsory retirement is declared invalid and the decree passed by the Subordinate Judge is confirmed to that extent. In so far as the order of reversion is concerned, the decree of the Court below is set aside. So far as the costs of trial Court are concerned, we award half costs to the plaintiff-respondent. There will be no order as to costs in the appeal including order of reference.

Appeal partly allowed.

Government of India Act, 1935