Hiro Lilaram Chablani vs State of Hyderabad

This is an application under Art. 226 of the Constitution, by a dismissed civil servant of the State of Hyderabad, for the following reliefs:

(a) the order of dismissal, dated 6-6-1952 and the previous proceedings leading upto the said order be quashed by a Writ of Certiorari;

(b) Writ of Mandamus be issued to the respondent directing the re-instatement of the petitioner in the post which he held at the time of dismissal; and

(c) Such other directions or orders be issued to the respondent, as may be deemed fit and proper in the case.

The applicant, H. L. Chablani was in service of the State in the Jail Department from December 14, 1948 to June 6, 1952. He was first appointed as a Deputy Jailor at Jalna, and was on the date of his dismissal acting as an officiating Assistant Superintendent of Jails with effect from 7-4-1950.

In response to an advertisement by the State Public Service Commission, inviting applications from candidates for a few posts of Assistant Superintendents for Central Jails, Chablani sent an application on 19-2-1951 and stated in it that his date of birth was 25-2-1926. This was apparently also the date of his birth as recorded in his Service Book.

On the faith of the entries contained in his application, the Public Service Commission by its letter dated 2-4-1951, permitted the petitioner to sit for the competitive examination, which was to be held on 1-5-1951 and by a short postscript at the foot of the letter asked the applicant to submit his Matriculation and Degree Certificates. The Matriculation Certificate, unfortunately, showed the date of the applicant''s birth wrongly as 25-12-1924.

It was, however, sent to the Commission in due course as desired along with the other certificate and an explanation showing that the date entered in it was incorrect. The applicant''s case as stated there was and still is that at the time of his first application to the Public Service Commission he did not have with him the Matriculation Certificate and it was only on obtaining it from Rajkot on the requisition of the Commission that he discovered the error, that the mistake obviously occurred at the time of his admission in the School when a wrong date was given by the person who got him admitted and that apparently that initial mistake had continued in the School records and eventually crept into the Matriculation Certificate.

The applicant reiterated that the correct date of his birth is that which he gave in his original application to the Public Service Commission and which is entered in his Service Book. The case for the Government is that the applicant on being questioned by the Commission had initially attempted to explain away the difference in the two dates by alleging that the Bombay University had transferred by mistake his brother''s age to him, that on enquiry by the Commission from the aforesaid University the date entered in his Certificate was confirmed; that these facts were communicated by the Public Service Commission to the Chief Secretary with an expression of opinion that the applicant deliberately attempted to commit a fraud and was thus ''prima facie'' unfit for State service and that Government after consideration of the petitioner''s case were convinced that he should not be retained in service any longer.

It is common ground that by a letter of 22-8-1951, from the Home Secretary, the applicant was asked to show cause within three days why he should not be dismissed for making false declarations as to his date of birth to the Government, and also to the Public Service Commission and that in the explanation which the applicant submitted on 30-8-1951, in response to the notice, he insisted that his correct date of birth was 25-2-1926 and the date shown in the Matriculation Certificate was wrongly entered.

In support of his case he filed :

(a) a photostat of his original horoscope which showed the Hindi date of his birth which is equivalent to 24/25th February, 1926;

(b) (i) an affidavit of the family priest, Pandit Shanker Lal Sharma, who had prepared the above horoscope;

(ii) an affidavit by a living elder member of the family;

(iii) an affidavit of a classmate; and

(iv) an affidavit of a former School Principal.

(c) a Medical Certificate by Dr. G. B. Ramayya, the Civil Surgeon of Nanded; showing that the applicant''s present age conforms to the age shown in the certificate.

It is not denied by the Government, opposite party that the findings of the enquiring authority on these facts and the punishment proposed on such findings were not communicated to the applicant at any time. On the other hand, it is admitted that on 26-9-1951, the Secretary, Home Department, communicated to the Inspector-General of Prisons, that the applicant was dismissed from service with effect from 30-9-1951.

The operation of the order was no doubt stayed till 18-12-1951, as the Chief Minister desired to reconsider this matter in view of a representation submitted by the applicant on his own initiative. Later, however, since in his opinion there was no ground for taking a different view, the Chief Minister allowed the dismissal order to take its course. On this occasion also, the Government did not supply to the applicant a copy of the Chief Minister''s order or disclose the reasons for rejection of the applicant''s representation.

In spite of this, the petitioner who was still unaware of the evidence or the circumstances on which the Government were acting made further representation to the Inspector-General of Prisons and in order to strengthen his previous plea that the date of birth entered by him in the application to the Public Service Commission was the correct date, sent him a certified copy of an extract from the Birth Register of the Municipality of Hyderabad (Sind) showing that the date of his birth entered in it tallied with the date given by him in his application, viz., 24-2-1926. A copy of this certificate was, it would seem, not available to him in spite of his best efforts at the time when he was first called upon to show cause against his dismissal.

On this fresh representation, the dismissal was postponed again and on 12-4-1952, apparently the Government accepted the applicant''s submission as the Chief Secretary wrote to the Secretary, Public Service Commission on behalf of the Government, saying that in furnishing the so-called wrong date of birth the applicant apparently did not act ''mala fide'' and had no ulterior motives. The reason given by the Chief Secretary was that even if the applicant was born two years earlier on 25-12-1924, he would neither have been over-aged nor precluded from promotion as he would have been entitled to the concession normally granted to persons who were already in Government service.

The Public Service Commission, however, refused to accept the horoscope as conclusive or to agree with the reasoning of the Chief Secretary. According to the view taken by it, the applicant had intended to make it appear that he was two years younger in order to secure for himself two additional years of Government service after the attainment of the retiring age. It would seem that this conclusion was ultimately accepted and a Notification was accordingly published on 6-6-1952, dismissing the applicant once again from service on the ground of his making a false declaration of his age to the Public Service Commission.

It is not denied that on this occasion also, the petitioner was neither furnished with a copy of the findings nor was he given any notice to show cause why he should not be dismissed. The petitioner moved the Raj Pramukh by way of appeal and as he failed to get redress, he has now come to this Court under Art. 225 of the Constitution for issue of an appropriate Writ.

The principal grounds upon which the applicant founds his case for the issue of a Writ under Art. 223 are contained in paragraph 11 of the application. They may be grouped under the following heads :

(1) that the Government did not communicate to the applicant the charges or the allegations on which such charges were based and they also failed to apprise the applicant of the circumstances on which the action was proposed to be taken or to give a reasonable opportunity to the applicant to defend himself as he was entitled to do under Art. 311 of the Constitution;

(2) that the enquiry was not held in the presence of the applicant and" he was not asked whether he desired to be heard in person. Besides the report of the Enquiring Officer was not communicated and no reasonable opportunity of showing cause against the action proposed to be taken in regard to him was given at any stage;

(3) that the dismissal order is wrong and it is based apparently on the date mentioned in the Matriculation Certificate, which is incorrect in view of the extract from the Birth Register submitted by the applicant and that at any rate the punishment meted out is out of all proportions to the alleged false representation;

(4) that the rejection of the appeal without consulting the Public Service Commission is in contravention of Art. 323 of the Constitution.

So far as the third ground mentioned above is concerned, we may say at once that the merits of the Government''s decision about the applicant having misrepresented his age to the Public Service Commission cannot be reassessed in these proceedings since this Court in exercise of its powers under Art. 223 of the Constitution does not sit as an appellate authority over such decisions. Whatever be our conclusions on the facts of the case, they cannot be substituted for those which the State Government under the Constitution are authorised to take.

The Constitution, however, empowers the High Court to enforce constitutional guarantees by issuing appropriate Writs or orders and such guarantees are not confined to Part III of the Constitution.

The fourth ground also though it raises a constitutional issue, has no substance since Art. 323 has no relevancy to the matter before us and in any case the Public Service Commission was consulted and it was in fact the opinion of the Commission which was allowed to prevail notwithstanding the views which the Government entertained in the matter. We propose, therefore, to address ourselves only to the first and the second of the grounds mentioned above.

The gist of these grounds is that being employed in civil capacity by the State he was not given before his dismissal a reasonable opportunity of defending himself or showing cause against the action proposed to be taken against him. In other words, he complains that in removing him from service the mandatory provisions of Art. 311(2) of the Constitution were violated.

The scope of the words ''reasonable opportunity of showing cause'' in Article 311(2) is well-defined by judicial pronouncements and we are constrained to say that in the present case scant attention was paid by the dismissing authorities to the constitutional rights of the applicant.

It has been held that a person employed in a civil capacity by a State must have two opportunities of showing cause before an order of dismissal can be allowed to become effective. The first is when the charges are enquired into. At that stage he must have a reasonable opportunity to enter into his defence in order to disprove the allegations. The second stage is reached when the enquiring authority has arrived at definite conclusions on the charges and a punishment is proposed.

In other words when a tentative conclusion is arrived at in this behalf a further notice has to be given to the Civil servant to show cause against the projected punishment. The necessity for this second notice arises because the words ''action proposed to be taken'' occurring in Art. 311(2) indicate that if an adverse finding is given by authority concerned after considering the defence a punishment has to be proposed before final orders are passed. Failure to inform the dismissed servant of the result of the enquiry on which the punishment is proposed and to afford him an opportunity to show cause against the proposed order is, it has been repeatedly laid down, constitutionally fatal to the order of the dismissal.

The first authority to which reference may be made in this connection is the case of -- AIR 1945 47 (Federal Court) where similar words in S. 240(3), Government of India Act, 1935, came up for construction.

The respondent in that case was a member of the Indian Civil Service, and his alleged misconduct was enquired into at first by one, Mr. J. D. Anderson, Commissioner of Rawalpindi Division & next by Mr. Byayne Lall was not given the copies of the reports of the enquiring officers, & was forthwith dismissed from service. He sued for the declaration that the order of removal from the office was illegal and that he was still a member of the Indian Civil Service. The High Court granted the declaration and the Federal Court on appeal virtually confirmed the order holding that the plaintiff had been wrongfully dismissed.

Spens, C. J., delivering the majority judgment in the case observed at page 50:

It does however seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the Civil Service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow.

This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real paint of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank.

The case was taken upto the Privy Council by the High Commissioner for India who filed an appeal and the pronouncement of their Lordships is reported in -- AIR 1948 121 (Privy Council) . The recommendations of the Board were virtually to the same effect though the Judicial Committee somewhat varied the declaration so as to say that the purported dismissal of the respondent was void and inoperative and the respondent continued to be a member of the service at the date of the institution of the suit.

The observations of Lord Thankerton at page 126 of the report may be reproduced here with advantage :

Their Lordships agree with the view taken by the majority of the Federal Court. In their opinion, sub-s. (3) of S. 240 was not intended to be, and was not, a reproduction of R. 55 which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed "of the grounds on which it is proposed to take action", and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to statutory provision of the opportunity of showing cause against the action proposed to be taken in regard to him. In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on.

Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which sub-s. (3) makes provision. Their Lordships would only add that they see no difficulty on the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under R. 55 it would not be reasonable that he should ask for a repetition of that stage, if duly carried out but that would not exhaust his statutory right, and ''he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry''.

This interpretation by the Privy Council of S. 240(3), Government of India, Act, 1935 has since been applied by the several High Courts to cases arising under Art. 311(2) of the Constitution where similar words have been used.

In -- Ajit Kumar Mukherji and Others Vs. Chief Operating Superintendent, East Indian Railway, the services of the applicant, a clerk in the office of the Divisional Superintendent of Transportation at Dhanbad, were terminated, and he filed an application under Art. 226 of the Constitution.

Ramaswami, J., while dismissing the application on the ground that it was not a case of dismissal, or removal or reduction in rank and so not covered by Art. 311, observed at page 94 :

Merely because the civil servant had notice of the main proceedings, that circumstance did not in itself exhaust his statutory right and he was still entitled to a notice from the authorities concerned in order to enable him to make a representation against the punishment proposed as a result of the findings of the first enquiry. The argument of Mr. B. C. Ghosh would be well founded if Art. 311(2) applies to this case. AIR 1948 121 (Privy Council) it is manifest that the petitioners should be entitled not only to a notice of the charges or the allegations made by Department against them but also a subsequent notice requiring them to show cause why the proposed punishment should not be meted out. But the assumption upon which the argument of the petitioner rests is not correct. From the facts disclosed in the affidavit, it is clear that the present case is not a case of dismissal or removal or reduction in rank....

Again, in -- ''Gopal Rao v. State Govt. M. P.'', AIR 1954 Nag 90 (D), the learned Judges say at page 92 :

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

Judged on this principle, it cannot be held in the instant case that the requirements of Art. 311(2) were duly complied with. The petitioner was only supplied with a report of the enquiry in which the considerations that led respondent 2 to inflict a higher punishment were never adverted to and it was even proposed that he should be reinstated and posted to the new districts of the Chhattisgarh division. As the petitioner was not afforded access to the record of his service and was not given a reasonable time to show cause against the adverse remarks contained therein, the requirements of Art. 311(2) were not fulfilled and consequently the orders terminating his services cannot be maintained.

Similarly in -- Lakshmi Narain Gupta Vs. A.N. Puri and Another, though the application was dismissed on the ground that the petitioner in the case had not been employed by a valid contract in the form required by the Government of India Act, it was held on the authority of ''Lall''s case (B)'', that a servant of the Government has a right to represent against the punishment proposed as a result of the findings of the enquiry and the omission to give notice to show cause in the case against the provisional proposal amounted to a denial of the opportunity contemplated by the then R. 55-A or, in other words, the present Art. 311(2) of the Constitution.

In -- The State of Bihar Vs. Abdul Majid, their Lordships of the Supreme Court have distinguished ''Lal''s case (B)'', on the ground that the right to get damages wag not involved in the case. They held that the rule of English law regarding a civil servant''s liability to maintain a suit against the Crown for the recovery of arrears of salary does not prevail in this country as it has been negatived by the provisions of the Statute Law.

His Lordship the Chief Justice of India then proceeded to observe at page 250 :

This rule of English law has not been fully adopted in S. 240. Section 240 itself placed restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court.

Thus the rule enunciated in the earlier decisions which were governed by Art. 240(3), Government of India Act, 1935, as stated above, applied with equal force to Art. 311(2) of the Constitution and it must at this date be taken to be well established that under that Article, a civil servant has a constitutional right to show cause against the proposed punishment after an adverse finding regarding the charges is arrived at.

It may be that on the date the applicant was first asked to show cause within 3 days no administrative rules were framed by the Government relating to the procedure to be applied in enquiries into an alleged misconduct of public servant but this circumstance is of little avail since in their absence the principles of natural justice would apply and the person charged with misconduct would still have to be given an opportunity to enter on his defence. Omission to comply with administrative rules where they exist or to act on principles of natural justice where they have not been framed is not the same thing as the omission to discharge an obligation mandatorily imposed upon the state by the Constitution which had already come into force when action was taken against the applicant. On the facts we are clear that the applicant was not afforded a proper opportunity for defending himself or for showing cause against the proposed punishment.

The reply of the Government to the petition before us shows that the letter of the Home Department asking the applicant to file the written statement within three days was not accompanied by a gist of the opinion of the Public Service Commission on which the letter was issued. It is also clear from the aforesaid written statement that prior to the earlier order of dismissal and in between the first order and the last Notification neither any copy nor a gist of the findings of the enquiry with punishment proposed thereon was furnished to the applicant.

The stay orders issued in order to enable the Chief Minister to reconsider the matter and the consultation with the Public Service Commission on a further representation do not avail the Government in absence of any communication to the applicant of a gist of the findings reached against him. And if the decision of the Public Service Commission after the reference made to it by the Government letter, dated 12-4-1952, is to be deemed to be the final determination of the charges against the applicant after reconsideration of the case, the respondent is faced with the same difficulty because a copy of those conclusions was also not supplied before the final Notification dismissing him from service was issued.

The failure is not a mere technical defect. We say so because the Public Service Commission does not appear to have taken into consideration the certified copy of the Birth Register of Hyderabad (Sind) and had a copy of the Government''s letter dated 12-4-1952, been furnished to him, the applicant would have had the opportunity of urging that the most important piece of evidence adduced by him to disprove the alleged fraudulent representation at least deserved consideration. That it was not or at least appears not to have been, taken into consideration in reaching the conclusion against him is reasonably clear. We hold that there has been in this case a failure, as in Lall''s case, to furnish copies of findings on which the punishment of dismissal was proposed and the constitutional provisions as contained in Art. 311(2) have not been complied with.

It was urged on behalf of the State that where adequate opportunities are once afforded to a civil servant to put forward his defence, the failure to supply him with reasons for the findings or to communicate the proposed punishment is not fatal to the order. The contention raised cannot be supported either on principle or on authority. The observations of the Federal Court as well as of the Privy Council in Lall''s case are a complete answer to it. We may add that if infringements of constitutional injunctions are ignored by the Courts of law on the ground that they are mere technicalities, such guarantees in course of time are likely to become, as an American Judge put it, ''a mere rope of sand''.

It was then argued that we should not in exercise of our powers under Art. 226 interfere with the order of dismissal as the applicant has a right of suit under the ordinary law. The rule invoked by the respondents in this behalf is by no means inflexible. Instances are not wanting where Writs in such cases have been issued by the High Courts under Art. 226 : See in this connection, -- Kartik Chandra Vs. Jadumani Behera and Others, -- C. Sambandam Vs. The General Manager, South Indian Railway, Tiruchirapalli, and in -- Suresh Chandra Vs. Himangshu Kumar Roy and Others,

The matter was authoritatively adverted to in the recent pronouncement of the Supreme Court in -- Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, where it was had that the principle under which an aggrieved party is denied the benefit of a prerogative Writ when an adequate alternative remedy is available does not apply where a party comes with an allegation about the infringement of his fundamental right or where the remedy provided is of such a burdensome character that it can hardly amount to an adequate alternative remedy. It has also been laid in -- Wazir Chand Vs. The State of Himachal Pradesh, that where the seizure of goods from the possession of the petitioner amounted to an infringement of his fundamental right, relief should be granted to him under Art. 226. We are clear that the applicant''s right of riling a suit, in the circumstances of the present case, is not an adequate nor a sufficiently speedy or efficacious remedy and it does not disentitle him to obtain redress by recourse to Article 226.

We hold that the order of dismissal passed against the applicant was made in violation of the constitutional guarantees contained in Art. 311 (2), and is on that ground void and ineffective. We, therefore, allow this application, and direct that the applicant be forthwith reinstated in his service and that the order of dismissal shall not constitute as a break in his service. The applicant will be entitled to get from the respondent his costs of this application which we assess at Rs. 50/-.