Jagdishprasad Saxena v. State — 1956 DIGILAW 18 (MP)

JUDGEMENT : NEWASKAR, J. This is a petition under Art. 226 of the Constitution of India, submitted by the petitioner Jagdish Prashad Saxena for the issue of a writ of certiorari or mandamus or any other kind of writ or direction in respect of the orders dated 3-12-1953 of his dismissal from service by the Government of Madhya Bharat contrary to the requirements of Art. 311(2) of the Constitution of India. 2. Petitioner was employed in the department of Customs and Excise of the Madhya Bharat Government as a Distillery Inspector and was posted at the material time at Barwah. The petitioner was getting Rs. 145 P.M. plus usual dearness allowance in the grade of 125-10-225 EB 300 and all the rules and regulations of the State Civil Service were applicable to him. At Barwah, there is a distillery and to it is attached a ware-house. According to the petitioner the ware-house clerk is solely responsible for the stock of liquor in the ware-house. According to the petitioner on 12-7-1951 when the petitioner was off duty the ware-house clerk who was on duty transferred some liquor from the receiver to the ware-house vat to make up the deficit occurring due to illegal issue of liquor to the contractor Nathu without the knowledge of the petitioner. 3. Thereafter, according to the petitioner, under the orders of the Superintendent of Customs and Excise he conducted the enquiry into the illegal issue of liquor referred to above whereupon the ware-house clerk one Mr. Kethulekar was suspended from 17-7-1951. Later under the orders of the Commissioner a fresh enquiry was made by the Deputy Commissioner of Excise and Customs whereby he found that the petitioner had no hand in the matter of illegal issue of liquor and he recommended that the petitioner be transferred from Barwah and that his promotion should be stopped for six months. The petitioner was then transferred to Indore on 6-9-1951. However after he was ordered to be suspended by the order dated 1-10-1951 which was to be effective from 2-10-1951. The petitioner was required to be present on 8-10-1951 at Barwah as certain complaints against the petitioner were to be enquired into there. 4. This enquiry was conducted. The petitioner was then transferred to Indore on 6-9-1951. However after he was ordered to be suspended by the order dated 1-10-1951 which was to be effective from 2-10-1951. The petitioner was required to be present on 8-10-1951 at Barwah as certain complaints against the petitioner were to be enquired into there. 4. This enquiry was conducted. The Deputy Commissioner, it is alleged, gave a charge-sheet dated 17-10-1951, to the petitioner regarding the complicity of the petitioner in the illegal issue of liquor on 12-7-1951 and consequent alterations in the records besides ether charges and required him to submit his explanation the same day. The petitioner does not say as to what happened regarding this charge-sheet. All that he avers is that he was required to submit his reply the same day. In the sworn return of the Deputy Commissioner it is averred that the petitioner gave the reply the same day. On 25-11-1952 a notice was given to the petitioner to show cause why he should not be removed from service. Petitioner complains that he had requested for inspection of record in order to enable him to show cause which was denied to him. The petitioner thereupon submitted a reply to the notice aforesaid dated 25-11-1952. The petitioner requested for a personal hearing which too was denied. 5. The petitioner was given no opportunity to cross-examine the witnesses after the charge-sheet was given to him even after the show cause notice was served upon him. 6. The petitioner was removed from service by the order dated 3-12-1953. 7. The petitioner contends that he was not given adequate opportunity for showing cause in respect of the grounds for his removal which amounted to his dismissal from service. It was also contended that there was no enquiry subsequent to the giving of charge-sheet to him. All the anterior enquiries according to him were in the nature of preliminary enquiries and every time petitioner was absolved from blame thereon. 8. According to the petitioner, the procedure prescribed for ordering the removal of a civil servant as provided by the rules framed by Rajpramukh under Art. 309 of the Constitution of India and any other procedure to comply with the statutory obligations of the Government under S. 311 (2) of the Constitution of India had not been complied with. 9. 8. According to the petitioner, the procedure prescribed for ordering the removal of a civil servant as provided by the rules framed by Rajpramukh under Art. 309 of the Constitution of India and any other procedure to comply with the statutory obligations of the Government under S. 311 (2) of the Constitution of India had not been complied with. 9. The petitioner, therefore, prays for quashing the order of removal of the petitioner from service and also for other consequential reliefs and prays for a direction for affording the petitioner reasonable opportunity to meet the case against him. 10. In a return submitted on behalf of the State by the Assistant Commissioner, Customs and Excise, it was contended that the ware-house as well as ware-house clerk in the Distillery at Barwah were under the direct supervision and control of the petitioner at the material time. As regards the circumstances attending on the illegal issue of liquors to the liquor contractor at Piplia it was contended that a pass had been issued to the said contractor in respect of one gallon of Narangi (of strength 25 V.P.) and 25 gallons of Rasi (of strength 60 V. P.) for which Rs. 180-6-0 had been paid by the contractor. But at the time of issue from the ware-house the contractor was given on 12-7-1951 one gallon of Narangi and 32 gallons of Dubara for which the duty was Rs. 305-10-0. It was further pointed out that this illegal issue of the excessive quantity of Dubara, as against the pass issued to the contractor referred to above, was made good by tapping the liquor from the receiver of the distillery on the same date. The persons, according to the Deputy commissioner, who were involved in this illegal issue were Mr. Kethulkar the distillery clerk who was in charge of the ware-house on the material date, distiller Mr. Narona and the petitioner. The petitioner handed over the keys of the receiver to Mr. Narona who in league with Kethulkar facilitated the tapping of the liquor from the receiver of the distillery. The Assistant Commissioner denied the petitioners-allegations that nothing incriminating or objectionable was found against the petitioner. According to him the reports of the Superintendent dated 13-7-1951 and 21-7-1951 clearly indicated that the petitioner was guilty of handing over the keys of the receiver to the contractors servant Narona. The Assistant Commissioner denied the petitioners-allegations that nothing incriminating or objectionable was found against the petitioner. According to him the reports of the Superintendent dated 13-7-1951 and 21-7-1951 clearly indicated that the petitioner was guilty of handing over the keys of the receiver to the contractors servant Narona. It is asserted that the Deputy Commissioner thereafter conducted the enquiry on the basis of the preliminary enquiry and report of the Superintendent. He continued the enquiry on the case of statements recorded by the Superintendent and gave the petitioner an opportunity to cross-examine the witnesses who had deposed against him. The petitioner availed himself of this opportunity and cross-examined the witnesses and also gave his own statement as well. The Deputy Commissioner on the basis of this evidence was of the view that the petitioner was negligent and slack in his duty. This view of petitioners conduct on the basis of materials on record was not accepted by the Commissioner. The petitioner was thereafter suspended under the orders of Government on being moved by the Commissioner who had recommended an inquiry as regards the complicity of the petitioner in the transaction. The Deputy Commissioner then under the orders of the Commissioner proceeded to inquire in the matter. The inquiry was conducted in the presence of the petitioner on 8th and 9th of October 1951 and the petitioner submitted written arguments on 16-10-1951. On 17-10-1951 he was ultimately given the charge-sheet and as the evidence had already been fully gone into, he submitted his reply the same day. The Deputy Commissioner then submitted his report on 20-10-1951. It was admitted that after the notices under Art. 311 (2) of the Constitution of India to the petitioner, for showing cause why he should not be removed from service the petitioner applied for inspection. It was, however, arrived that as the petitioner was under suspension, the matter was referred to the Appointment Department for advice but that before any reply could be received, the petitioner submitted his reply fully setting out his defence regarding the proposed action. The Government considered the same on merits and held that the grounds set out in the defence were not tenable and ordered his removal from service. There was, therefore, no prejudiced caused to the petitioner. The Government considered the same on merits and held that the grounds set out in the defence were not tenable and ordered his removal from service. There was, therefore, no prejudiced caused to the petitioner. On these facts, it was contended that the Petitioner had been given full opportunity at both the stages namely at the time of departmental enquiry as well as when show cause notice was given and he cannot have any lawful cause for complaint. It was pointed out that the petitioner in his final reply dated 11-12-1952 had clearly admitted that he had already produced evidence in the case. According to the Assistant Commissioner none of the petitioners right statutory or constitutional had been infringed and the petition is not maintainable. 11. On these respective contentions of parties, questions which arise for consideration are : Firstly, whether the petitioner had not been given adequate opportunity to meet charges against him at the time of the departmental enquiry. Secondly, whether the petitioner had not been given adequate opportunity of showing cause against the action of his removal proposed to be taken against him. 12. It is clear that if he was given opportunity at both these stages he cannot have a legitimate cause for complaint and none of his rights would be violated. The petition in that case would not be maintainable. 13. It is clear beyond dispute that after the charge-sheet was given to the petitioner there was no fresh enquiry. The evidence had been fully gone into at earlier stages before the charge-sheet was given. The petitioner had participated in that enquiry and he had availed himself of the opportunity to cross-examine the witnesses. The petitioners reply Ex. D/6 clearly indicates the fact that the receiver was tapped for the purpose of making up the deficit after 32 gallons of Dubara had been issued to the contractor as against his pass for two gallons of that variety. It is also admitted by the petitioner that he had handed over the keys of the receiver to the Distillery Inspector Mr. Narona. His plea is that Mr. Kethulkar the ware-house clerk was fully responsible for the illegal issue and that his complicity on the matter could not be inferred. It is also admitted by the petitioner that he had handed over the keys of the receiver to the Distillery Inspector Mr. Narona. His plea is that Mr. Kethulkar the ware-house clerk was fully responsible for the illegal issue and that his complicity on the matter could not be inferred. The handing over of the keys of the receiver according to him was a mistake on his part but this he had to do as there was no other person available but that he could have been held responsible only in case the tapping had taken place in his presence. He pleaded that he had already passed an order to the ware-house clerk to work over-time and as such it was distillery clerk who was the distillery inspector for the time being. It is perfectly clear from these admissions that both the material facts set out in the charge against him had been admitted by him. No question of fact was, therefore, involved either at the stage of departmental enquiry or when he was served with notice under Art. 311 (2) of the Constitution of India. His written submissions containing arguments as to why these facts should not be taken to be enough for holding him responsible for the illegal issue of 30 gallons of Dubara and the tapping of receiver of the distillery were considered. Had any material question of fact been involved on account of the petitioner not having admitted the illegal issue or the handing over of the keys of receiver to the distiller probably the question of opportunity to cross-examine the witnesses would have been material. But with these facts admitted, the only question remained as to what inference should be drawn from them. His reply was taken thus enabling him to show why the inference of his complicity should not be drawn. 14. Under these circumstances, failure to start enquiry by leading evidence after the charge-sheet was given or after the notice under Art. 311 (2) had been given cannot be taken to have prejudiced the defence of the petitioner. Nor can it be said that the petitioner had not been given adequate opportunity at either of these two stages. 15. 14. Under these circumstances, failure to start enquiry by leading evidence after the charge-sheet was given or after the notice under Art. 311 (2) had been given cannot be taken to have prejudiced the defence of the petitioner. Nor can it be said that the petitioner had not been given adequate opportunity at either of these two stages. 15. This Court in a petition under Art. 226 of the Constitution of India cannot act as an appellate Court by either reviewing and re-arriving evidence or testing the cogency of reasoning in respect of conclusions drawn. 16. Learned counsel for the petitioner cited authorities before us including - Joseph John v. State of Travancore-Cochin, (S) AIR 1955 SC 160 (A); - Hiro Lilaram Chablani v. State of Hyderabad, (S) AIR 1955 Hyd 48 (B); and Dattatraya Mahadev Kulkarni v. Union of India, AIR 1955 NUC (Bombay) 3843 (C). All that these cases lay down is that a civil servant before he is dismissed ought to be given two opportunities - one at the time when the charges are enquired into and the second when the enquiring officer has arrived at definite conclusion on the charges and the punishment in the form of his dismissal tentatively decided upon. 17. The object of both these opportunities is to enable the civil servant concerned to pursuade the authority dealing with matter to arrive at a conclusion different from the one to which he has tentatively arrived. 18. Where in a particular case the facts are proved or admitted and the only question is as regards the inference to be drawn from these facts the fact, that the petitioner submitted a written reply setting out the reasons why the inference drawn tentatively ought not to be drawn, should, in my opinion, be considered to be sufficient and it is not necessary in that case to make a rehearsal of recording entire evidence again. 19. On the facts of the present case it cannot be said that the petitioner was not given adequate opportunity at both these stages. 20. For these reasons, there is no force in this petition. It is accordingly dismissed. 21. The parties shall bear their costs. 22. DIXIT, J. :- I agree.