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Judgment
Mr. A. Sambasiva Rao, J.—The scope and application of Rule 76 of the Village Offices Service Rules 1969 is the principal question that arises for determination in this Writ Petition. This writ petition relates to the village headman of Vemali village in Visakhapatnam District. He was a permanent incumbent having been appointed in the year 1968. As many as 12 charges were framed against him by the Sub-Collector, Visakhapatanam. After enquiry the Sub-Collector found that the serious charge of misappropriation was not made out and that the village officer was guilty of only certain irregularities. Therefore by her order dated 27-4-1977 the Sub-Collector imposed substantive punishment of suspension for one year. There was an appeal preferred to the District Revenue Officer of the District by a third party, on which that officer passed an order of removal against the village head-man on 24-3-1971. There was a second appeal to the Board of Revenue preferred by the village headman, whose removal was ordered by the District Revenue Officer, on 20-4-1978. Immediately after completion of one year period of suspension the Land Revenue Commissioner directed the village headman''s re-instatement on the basis of which he (village headman) took charge of the office on 21-5-1978. Thereafter the Land Revenue Commissioner considered the second appeal. One of the arguments advanced before him on behalf of the removed officer was that Rule 76 of the Village Offices Service Rules does not confer any jurisdiction on the District Revenue Officer to pass any order in the absence of any appeal filed before him. This found acceptance at the hands of the Land Revenue Commissioner, who held that invoking of Rule 76 was incorrect. In that view he set aside the District Revenue Officers'' order of removal. The order passed by the Commissioner of Land Revenue on 30 5-1978 further says that having set aside the order of removal passed by the District Revenue Officer, the Commissioner himself thought that the charges levelled against the village headman were serious and therefore he thought it fit to take up the matter. suo motu, in revision, invoking the power vested in him under Rule 75. Having come to this conclusion, so the order says, the Commissioner called upon the petitioner''s (village headmen''s) counsel to argue the case on merits. In fact the learned counsel was informed by the Commissioner that in case he (counse) wanted time, the matter would be adjourned to give him an opportunity to make his representation as to why punishment of removal or dismissal should not be awarded to the petitioner. The learned counsel however did not want time but argued the case on merits- Having heard the arguments, the Commissioner found that the conclusion of the Sub-Collector that there was no misappropriation was untenable. On examination of the evidence he found that the petitioner was guilty of charges framed against him. In view of the graveness of the charges, which were held to be proved, the Commissioner held that the punishment of suspension for one year was inadequate. He (''Commissioner) enhanced the punishment by ordering that the village headmen be dismissed from service.
In the present writ petition this order is challenged. Sri E. V. Bhagiratha Rao, learned counsel for the writ petitioner raises two contentions. Firstly he impugnes the procedure adopted by the commissioner for enhancing the punishment fromone of suspension to one of dissimissal without issuing notice to the effected village head man personally. In his submission, giving notice to the Advocate, who went to the Commissioner to argue the second appeal against the District Revenue Officer''s order of removal is not sufficient. He religes in support of this contention on the provisions of Rules 76. According to him Rule 76 is only a rider, which supplements rule 75 and other preceding provisions relating to appeals and second appeals. Rule 76 requires personal notice to the affected party against whom a punishment is sought to be enhanced to suspension, removal or dismissal. Since that was not done in this case the order of the Commissioner is liable to be set aside.
The second contention is that the Commissioner, when he exercises his suo motu powers of revision under Rule 75, can only satisfy himself as to the legality or propriety of the lower authority''s decision or regularity of such proceeding, but he cannot go into the evidence in detail and come to a different conclusion.
Sri N. Chandramouli, learned Govt. Pleader disputes the tenability of these two arguments. In respect of the first point, the learned Government Pleader maintains that Rule 76 is an independent provision and applies only to a limited number of cases, which do not come under Rule 75 or the preceding rules which deal with appeals. In his submission, since the commissioner invoked his powers under Rule 75 he has to follow the requirement of that rule alone and he is not required to adopt the procedure laid down by Rule 76. Since the Commissioner sought to invoke his suo motu powers of revision under rule 75, he gave a clear and unambiguous notice to the learned counsel, who appeared for the village headman. He even offered to adjourn the matter to enable the learned counsel to argue against the proposed enhancement of punishment from one of suspension toone of dismissal. Therefore the requirements of Rule 75 are satisfied and equally so the requirements of justice and fair play. On the Second question the learned Government Pleader''s stand is that when the Revisional Authority amines the legality propriety or regularity of any order or proceeding he can certainly examine the evidence in order to find out whether the conclusion reached by the lower authority was proper and justified.
Now taking up the second point first, we cannot accede to the arguments of Sri Bhagiratha Rao that the Commissioner was precluded from going into evidence. We cannot accede to this argument because in the process of satisfying himself as to the legality, propriety, or regularity of an order or proceeding the Commissioner should have a broad consectus of the entire proceeding and the material placed before the appropriate authority. Without having such consectus of the case and the material thereon, it would not be possible for the Commissioner or the Revisional Authority to find out whether the impugned order was vitiated by any illegality, impropriety or iregularity in its proceedings. In order to satisfy himself the commissioner is certainly entitled to consider the entire matter as well, Therefore we cannot uphold this objection to the manner in which the Commissioner has decided the case.
But we find considerable force in Sri Bhagiratha Rao''s contention that according to Rule 76, the Commissioner should have sent a notice to the village headman personally when he proposed to enhance the penalty of suspension to one of dismissal. He maintains that Rule 76, which applies to such cases, requires a notice to be sent to the village officer or village servant when a proposal is made to enhance punishment from to suspension removal or dismissal from service. According to the learned counsel Rule 76 is nothing but a rider to the preceding rules relating to appeals and revisions and it prescribes a particular procedure, in the case of appeal or revision when the appellate or revisional authority proposes to enhance the penalty to one of suspension, removal or dismissial.
If part VI of the rules, in which the provisions relating to the appeals, second appeals and revisions along with Rule 76 appear are read together the submission of Sri Bhagiratha Rao appears to be acceptable. Form rule 57, which is the first rule in Part VI upto Rule 74, provisions are made for appeals and second appeals and for certain matters relating to them. Then Rule 75 occurs under the heading ''revision''. We may as well read the entire provision of Rule 75: It says:
"75. Revision: (1) The Board may at any time, either suo motu, or on an application made to it, call for and examine the records relating to any decision or order passed or proceedings taken by any authority or officer subordinate to it for the purpose of satisfying itself as to the legality or propriety of such decision or order or the regularity of such proceeding and pass such order in reference thereto as it thinks fit;
Provided that the Board shall not pass any order prejudical to any person unless such person has had an opportunity of making representation.
(2) The Board may stay the execution of any such decision, order or proceeding pending the exercise of its power under sub-rule (1) in respect thereof.
Government have however decided that revision petitions entertained tilt the date of this order shall be disposed of at the Government level."
Immediately after these provisions relating to appeals, second appeals and revisions Rule 76 occurs. Its heading is ''Procedure to be followed before enhancing punishment''. Then the main rule says:-
"If the appellate or revisional authority under these rules proposes to enhance the penalty imposed on a village officer or village servant to one of suspensin, removal or dismissal from service and an enquiry under rule 55 has not already been held in the case, such appellate or revisional authority shall, subject to the provisions of that rule, hold such enquiry or direct that such enquiry be held and, thereafter on consideration of the proceedings of such enquiry and after givinge the village officer or village servant concerned an opportunity of making representation on the penalty proposed, pass such orders as it may deem fit."
Having regard to the connected provisions of part VI, which lays down the guidelines for preferring appeals, second appeals and revisions and also suomotu revision, the conclusions, that Rule 76 adds a rider in the matter of procedure to the preceding rules is inescapable. That meaning of the rule is manifest from the words with which the rule itself begins, i.e., "if the appellate or revisional authority under these rules proposes to enhance the penalty". These words leave no doubt that the procedure prescribed in Rule 7b applies to cases where the appellate or revisional authority proposes to enhance the penalty. Without reference to the preceding rules dealing with appeals, second appeals and revisions this rule becomes meaningless, since without the preceding rule in Part VI, there cannot be any appeals or revisions. Therefore Rule 76 must necessarily be understood as having relation to the exercise of appellate or revisional jurisdiction by the appropriate authority. But the procedure prescribed under Rule 76 is for specific and limited purpose of providing sufficient safeguard, when the appellate or revisional authority proposes to enhance the penalty to one of suspension, removal or dismissal from service. The procedure prescribed by Rule 76 applies only when the proposal is to enhance the punishment to the of suspension, removal or dismissal. If such a proposal is tentatively reached, then the procedure under Rule 76 must be followed. If an enquiry under Rule 55 bad not already been held, the appellate or the revisional authority itself can hold such an inquiry or in the alternative direct such an inquiry to be held by some other authority. After the enduiry under rule 55 is held, the appellate or revisional authority is required to consider the proceedings of the inquiry and after giving the village officer or village servant concerned an opportunity of making representation on the penalty proposed may pass such orders as it may deems fit. Thus there are two safe guards built into the rules when a penalty is proposed to be enhanced to suspension, removal or dismissal. Since what is contemplated involves serious consequences to the affected person rule 76 insists on the holding of an enquiry under Rule 55 and also on giving concerned village officer or servant an opportunity of making representation on the penalty proposed.
Now, these safeguards and the provisions of Rule 75 taken by themselves as an independent provision, do not make any self sufficient procedure. It does not by itself provide for preferring an appeal for revision. On the other hand it paostulates the pendency of an appeal, or second appeal or a revision petition, preferred by the aggrieved person or one taken no ice of suo motu. That is why it starts with the words "if the appellate or revisional authority under these rules proposes to enhance the the penalty''. If rule 76 refers to appellate or revisional authority, that must necessarily be the appellate or revisional authority prescribed under the preceding rules. This conclusion is made further clear by the use of the words ''under these rules'', in the very rule itself. Therefore we have no hesitation in coming to the conclusion that Rule 76 is only a rider or a proviso to the rule which immediately precede, whereby it prescribes a certain procedure when a serious action of enhancing the penalty to one of suspension, removal or dismissal is proposed. This conclusion is further re-inforced by the fact that it occurs in part VI and conies immediately after the provisions relating to appeals second appeals and revisions.
It is true that the Commissioner has sought to exercise his suo motu revisional power under Rule 75, When he invokes that power he will have to satisfy himself as to the legality, propriety of the decision of the Lower authority or the regularity of the proceeding and pass such order in reference thereto as he thinks fit. It is on these last words Sri Chandramouli, learned Government pleader lays great emphasis. According to him Rule 75 is a self contained code, empowering the revisional authority to examine the legality properiety or regularity of the proceeding and pass any order as it thinks fit. When these words are present in Rule 75 itself there is no point, according to Sri Chandramouli in searching for guidance in Rule 76. We cannot accept the learned Government Pleader''s interpretation of the rules.
Rule 75 empowers the Government or the Board to entertain a revision preferred by a party or suo motu. On examination of the matter it can pass such order as it thinks fit, just like the appellate authority or the second appellate authority can do in an appeal or second appeal. But if the appellate authority or the revisional authority proposes to enhance the penalty to one of suspension, removal or dismissal, Rule 76 requires that the inquiry under Rule 55 should have been held and that the concerned village officer or servant must be given an opportunity of making representation. All these rules must be read together. Rule 76 applies not merely to revisions under Rule 76 but also appeals and second appeals under the proceeding rules. Rule 76 is attracted if once the appellate or revisional authority proposes to enhance the penalty to one of suspension, removal or dismissal. Therefore, while the revisional authority is empowered to pass such order as it thinks fit, it must necessarily follow the procedure prescribed under Rule 76 before enhancing the punishment. Indeed that is the caption given to Rule 76. Therefore it follows that if there is no opportunity given to the concerned village officer or servant to make representation on the penalty proposed, then the enhancement of suspension, removal or dismissal would be illegal.
In this case it is common ground that there is no separate personal notice sent to the village officer or village servant. It is also common ground that the village headman, who is the petitioner before us, was represented by a learned counsel and that the commissioner gave him a clear notice that he proposed to enhance the penalty to dismissal and also offered to give him an adjournment to enable him to argue the point Sri Bhagiratha Rao contends that this is not sufficient compliance with the procedure under rule 76, while Sri Chandramouli maintains that the advocate was personally present and was given this notice and it is sufficient compliance with the requirement under Rule 76, even supposing that, that rule applies to the case.
We cannot accept Sri Chandramouli''s submission in this behalf. What is sought to be done is a serious matter of enhancing the penalty to one of dismissal. True, the village headman had engaged a counsel, who was present before the Commissioner and who was given due notice of the proposed enhancement of the penalty. But that could not be an adequate compliance with the requirement of giving an opportunity to the concerned village officer or servant, because if it was made known to him that the penalty was going to be enhanced to a much more serious one be (the village servant) might think of changing his counsel or making available to him (the Revisional Authority) more material. These are only a few but are not exhaustive possibilities. So when such serious consequences are proposed to be imposed on the village servant, it is incumbent, according to the requirement of Rule 76, that a notice should be given to him personally. That is why the Rule itself says that after giving the village officer or servant concerned an opportunity of making a representation on the penalty of enchancement and it does not refer to any counsel or agent. Therefore giving intimation of the proposed enhancement to the counsel is not sufficient compliance with the provisions of Rule 76.
Section 439 of Criminal Procedure Code, which deals with revisional powers of the High Courts, is similar to Rule 76 of these rules. Construing the provisions of Sec. 439 CrPC the Supreme Court in Jangal Prasad Vs. The State, held that the accused should be personally served with a notice. In that case the learned judges observed that there was nothing on record to show that the accused personally had any notice that the sentence of whipping was substituted by the sentence of imprisonment. A reading of the above judgment would indicate that the accused was represented by a counsel and still the Supreme Court held that the accused should have been personally served with a notice of the enhancement of the penalty. Though this decision is under 439 Cr.P.C. the principle laid down by the Supreme Court would apply with equal force to the procedure laid down by Rule 76. We are, therefore, inclined to uphold the first point raised by Sri Bhagiratha Rao, learned counsel for the petitioner. Since no notice was personally sent to the petitioner, the order of the Commissioner enhancing the sentence to dismissal is set aside. It is however open to the Commissioner to proceed further, after giving notice to the petitioner personally as required under Rule 76 and decide the matter as he deems fit.
The writ petition is thus allowed, but in the circumstances there will be no order as to costs.