Gobind Ram vs The State of Himachal Pradesh etc.

R.S. Pathak, C.J.—The Petitioner prays for the quashing of an order discharging him from service.

The Petitioner is a Forest Guard. He was confirmed as such in October, 1966.

It appears that he was absent from duty for several months. During the period of his absence he informed the authorities that he had fallen ill and he furnished medical certificates in support of his application for leave. He was required to present himself before the Medical Officer, Solan, but he did not do so. The Divisional Forest Officer, Solan, framed two charges against the Petitioner (1) wilful absence from duty and (2) disobedience of the order. An enquiry was commenced upon those charges and the enquiring officer found the Petitioner guilty. The Petitioner was then served with a second notice in March, 1971 pointing out that he had been found guilty of the charge of wilful absence from duty and that he should show cause against "discharge from Government service". The Petitioner replied to the notice. On April 26, 1971, the Divisional Forest Officer made an order discharging him from service and directing that the period of absence from July 10, 1969 to December 20, 1970, be treated as leave without pay and allowances. The Petitioner appealed against that order. While the appeal was pending the Divisional Forest Officer made an order dated November 22, 1971, substituting the words "dismissed from service" for "discharged from service". The appeal filed by the Petitioner was dismissed and he was informed by letter dated December 1, 1971, of its dismissal.

A number of contentions on the merits have been raised by learned Counsel for the Petitioner. It seems to me that at this stage it will suffice to consider only one of them and that is that the order dated April 26, 1971, is invalid because no proper "show cause" notice against the punishment proposed was served on the Petitioner.

There is no dispute that the penalty sought to be imposed on the Petitioner was one of those specified in Rule 12 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965. A number of penalties have been set out in Rule 12, and among them are "removal from service" and "dismissal from service". The show cause notice of March 1971 merely referred to the proposal to discharge the Petitioner from Government service. That was wholly insufficient for indicating whether the Petitioner should show cause against removal from service or dismissal from service. The consequences of the two penalties differ. The removal from service as a penalty does not result in disqualifying the Government servant for future employment under the Government. The penalty of dismissal, however, disqualifies him for such employment. It is now settled law that a Government servant is entitled to an opportunity to show cause against the proposed punishment after he has been found guilty of the charges framed against him. The provisions of Article 311(2) were so construed by the Supreme Court as long ago as Khem Chand Vs. The Union of India (UOI )and Others,

The importance of the requirement that the penalty proposed should be clearly and specifically mentioned in the notice is apparent. If the notice indicates that it is proposed to remove the Government servant, the subsequent imposition of the penalty of dismissal will render the order of dismissal void. It is open to the punishing authority to impose a lesser penalty than the one proposed but there can be no dispute that it is not competent for that authority to impose a heavier penalty than the one indicated in the notice. The position becomes just as difficult where there is no indication at all whether the lesser or heavier penalty is proposed. It is, therefore, necessary that a show cause notice should clearly and specifically indicate the penalty which is proposed by the punishing authority. It is only then that a Government servant is able to assess the kind of case which he must set up in reply to the show cause notice. Vague expressions in such a notice can afford no indication of the severity of the penalty proposed to be visited on him.

Upon the aforesaid considerations, the impugned notice must be considered invalid. It is true that the Divisional Forest Officer subsequently substituted the expression "dismissed from service". But that substitution was effected long after. It was effected after a reply had already been filed to the show cause notice by the Petitioner and indeed after the impugned order of penalty had been made.

I am of opinion that on the aforesaid grounds the "show cause" notice and the impugned order dated April 26, 1971 are invalid and must be quashed. For the same reasons, the Appellate order is also liable to be quashed.

In the circumstances it is not necessary to express any opinion on the other questions raised by the Petitioner.

The petition is allowed. The show cause notice dated March 4, 1971, the order dated April 26, 1971 and the Appellate order are quashed. It will be open to the authority concerned to issue fresh notice to the Petitioner to show cause against the punishment proposed against him and to carry on the proceedings from that point. The Petitioner is entitled to his costs which I assess at Rs. 100/-.