ivil Appeal No 353 of 1957
Appeal by special leave from the judgment and decree dated November 1 1955 of the Punjab High Court Circuit Bench at Delhi in Regular Second Appeal No 28 D of 1955 arising out of the judgment and decree dated December 31 1954 of the Court of the Senior Subordinate Judge at Delhi in Regular Civil Appeal No 685 of 1954 affirming the judgment and decree of Subordinate Judge Third Class Delhi in Suit No 273213 of 1953
Janardhan Sharma for the appellant
C K Daphtary Solicitor General of India R Gana pathy Iyer and R H Dhebar for the respondents
1082 1957
December 13
The following Judgment of the Court was delivered by DAS C J
This appeal by special leave granted by this Court to the plaintiff appellant is directed against the judgment and decree passed on November 1 1955 by a single Judge of the Punjab High Court sitting in the Circuit Bench at Delhi in regular second appeal No 28 D of 1955
The facts leading up to the present appeal are shortly as follows On April 6 1943 the appellant was appointed a sub inspector under the Delhi Audit Fund
In February 1947 he was transferred to the Co operative Societies Department and posted as subinspector in the Milk Scheme
On July 3 1947 the the appellant was confirmed by the then Deputy Commissioner of Delhi who was also the ex officio Registrar of Co operative Societies
On August 1 1948 the appellant was transferred to the Rehabilitation Department of the Co operative Societies and posted as sub inspector
On July 1 1949 the appellant was suspended by the then Deputy Commissioner Delhi
On July 9 1949 the appellant was served with a charge sheet under r 61 of the Rules which had been framed by the Chief Commissioner Delhi to provide for the appointment to the subordinate services under his administrative control and the discipline and rights of appeal of members of those services
After formulating eight several charges the document concluded as follows  You are therefore called upon to show cause why you should not be dismissed from the service
You should also state in your reply whether you wish to be heard in person or whether you will produce defence
The reply should reach the Asst
Registrar Co operative Societies Delhi within ten days from the receipt of this charge sheet
The chargesheet was signed by Shri Rameshwar Dayal who was at that time the Deputy Commissioner of Delhi and was admittedly the authority competent to dismiss the appellant
The appellant duly submitted his explanation in writing
One Shri Mahipal Singh Inspector Co 1083 operative Societies was appointed by the Deputy Commissioner Delhi the officer to hold the enquiry
The appellant attended two sittings before the Enquiry Officer and then applied to the Deputy Commissioner to entrust the enquiry to some Gazetted Officer under him
This request of the appellant was rejected and he was informed accordingly
Indeed the appellant was warned that the Enquiry Officer had been authorised to proceed with the enquiry ex parte if the appellant failed to attend the enquiry
The appellant however did not after October 20 1949 attend any further sittings before the Enquiry Officer
The Enquiry Officer thereupon framed four additional charges against the appellant namely 1 for his refusal to attend the enquiry 2 for his refusal to accept the service of the order of the Enquiry Officer 3 for his absence without permission and 4 for his misconduct in snatching away papers from one Mohd Ishaq and using unparliamentary and threatening language
It appears that at or about this time the appellant became involved in a criminal case on a charge under section 307 of the Indian Penal Code and on October 30 1949 he was actually arrested but was released on bail two or three days later
Eventually on May 20 1950 the appellant was discharged from the criminal charge
On November 14 1951 the appellant was served with a notice signed by one Shri Vasudev Taneja Superintendent
The notice was in the following terms Please note that you are to appear before Shri JB Tandon 1 A section Additional District Magis trateon the 24th November 1951 at 10 30 am in his court room in connection with the departmental enquiry pending against you
The language employed in the notice does lead some support to the conten tion that the Enquiry Officer Shri Mahipal Singh had not concluded the enquiry entrusted to him and that the departmental enquiry was still pending
Pursuant to the notice the appellant appeared before Shri J B Tandon and urged two points namely 1 138 1084 that the enquiry of the charges framed against him ought to have been held by a Gazetted Officer of the District Court and 2 that the enquiry should have been held in his presence
It will be noticed that both the points related to the enquiry before Shri Mahipal Singh
On December 13 1951 Shri J B Tandon made a report
After reciting the charge sheet containing the notice calling upon the appellant to show cause why he should not be dismissed from service and setting out the charges contained in the notice and summarising the explanation submitted by the appellant with regard to each of the charges and reciting the prayer of the appellant that the Enquiry Officer should be changed and the rejection thereof and the framing of additional charges and the appellant s absence from the enquiry with effect from October 20 1949 the report proceeded to set out the actual charges which Shri Mahipal Singh was appoint ed to enquire into
The report then stated that the enquiry with regard to the first two charges had been held in the presence of the appellant and the rest were enquired into ex parte as the appellant had absented himself from the enquiry
Then the report recited that twelve charges had been proved against the appellant and he was given the benefit of doubt in respect of charge No iii and that no charge sheet had been given with regard to charges Nos
xiii and xiv and that no enquiry had been held on those charges
Out of the twelve charges said to have been proved against the appellant Shri J B Tandon found that no charge had been actually framed in one case and therefore he reduced the number of proved charges to eleven and proceeded to base his recommendation on them
After stating that the charges of embezzlemient acceptance of illegal gratification and borrowing of money from societies were so serious that even one of them alone was sufficient to demand the appellant s dismissal and that the entries made in his character roll disclosed that his work and conduct had not been satisfactory and explaining that the enquiry had been held up by reason of the appellant having been challaned under section 307 Indian Penal Code Shri J B 1085 Tandon in his report formulated the following points for consideration namely 1 what penalty should be imposed on Shri Khem Chand for the eleven charges proved against him 2 Whether his gun licence should be cancelled and 3 whether the dues of societies which had been proved might be realised out of the security deposit furnished by him Then after stating that a personal hearing was given to the appellant who raised the two points mentioned above and holding that there was no substance in either of them paragraph 16 of the report ran as follows  The charges of embezzlement acceptance of illegal gratification making wrong statement misbehaviour at the time of enquiry and refusal to receive orders to attend enquiry which had been proved against him are so serious that I am sorry I cannot suggest lesser punishment than dismissal from service and he may be dismissed
 The report also recommended that the appellant s gun licence be cancelled and that he be directed to surrender his licence and deposit the gun in the district Malkhana and that the money which had been proved to have been taken by the appellant from various societies might also be recovered from the security deposit furnished by him
There is no positive and definite statement in Shri J B Tandon s report that Shri Mahipal Singh had concluded the enquiry or submitted a formal report
The general tenor of Shri J B Tandon s report however suggests that Shri Mahipal Singh did arrive at definite findings on twelve charges
The appellant s grievance is that he was not given a copy of the report of Shri Mahipal Singh if any had been made and no such report has been exhibited in this case
At the foot of Shri J B Tandon s report the following endorsement appears over the signature of the Deputy Commissioner Delhi under date December 14 1951  The report is approved
Action accordingly
 Thereupon on December 17 1951 a formal order was issued over the signature of the Deputy Commissioner Delhi
It was in the following terms 1086 I the undersigned do hereby dismiss Shri Khem Chand sub inspector Co operative Societies Delhi from the Government Service with effect from the date of this order
He has been found guilty of the charges of embezzlement acceptance of illegal gratification making wrong statementmisbehaviour at the time of the enquiry and refusal to receive order to attend the enquiry
I further order that money which has been proved to have been taken by Shri Khem Chand from various societies be recovered from the security deposit furnished by him
On March 15 1952 the appellant appealed to the Chief Commissioner but his appeal was dismissed on December 8 1952
Thereafter the appellant served a notice of suit on the respondents under section 80 of the Code of Civil Procedure and on May 21 1953 filed civil suit No 213 of 1953 complaining inter alia that article 3112 had not been complied with
The suit was decreed by the subordinate judge Delhi on May 31 1954 declaring that the plaintiff s dismissal was void and inoperative and that the plaintiff continued to be in the
service of the State of Delhi at the date of the institution of the suit and awarding costs to the plaintiff
The Union of India preferred an appeal against the judgment of the subordinate judge Delhi but the appeal was dismissed by the senior subordinate judge Delhi on December 21 1954 and the decree of the trial court was confirmed
A second appeal was taken by the defendants to the Punjab High Court
By his judgment dated November 1 1955 the Single Judge held that there had been a substantial compliance with the provisions of article 311 and accordingly accepted the appeal set aside the decree of the courts below and dismissed the plaintiff s suit
On September 6 1956 the plaintiff obtained special leave from this Court and has preferred this appeal against the order of the learned Single Judge
The appellant has also been allowed to prosecute the appeal in forma pauperis
In the courts below a point was raised as to whether the appellant was a member of any of the services 1087 referred to in article 311
But it was a conceded before the High Court and has also been admitted before us that the appellant was such a member and consequently that point does not arise
The only point that has been canvassed before us as it had been before the High Court is Was the appellant given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him  There is no dispute that the appellant was served with a charge sheet on July 9 1949 as required by r 6 of the Rules which had been framed by the Chief Commissioner Delhi and which governed the appellant s conditions of service
It is also conceded that the appellant actually appeared at two hearings before the Enquiry Officer Shri Mahipal Singh but that subsequently he wanted a transfer of the enquiry to some other officer and that that prayer having been refused he did not take any further part in the enquiry before that officer
There is no grievance that no opportunity had been given to him to defend himself against the charges levelled against him in that enquiry
It is also an admitted fact that some time after the appellant was discharged from the criminal case be received a notice on November 14 1951 requiring him to appear before Shri J B Tandon on November 25 1951 in connection with the pending enquiry
The appellant did appear on the appointed day bad been given a personal hearing and in fact raised two several objections against the enquiry held by Shri Mahipal Singh
His only grievance is that after Shri J B Tandon had made his report on December 13 1951 recommending the dismissal of the appellant and the Deputy Commissioner had on the very next day approved of the report and proposed to take action accordingly the appellant was not given an opportunity to show cause against the action so pro
posed to be taken in regard to him as he was entitled to under article 311 of the Constitution
In order to appreciate the arguments advanced by learned counsel for the parties it is necessary at this stage to set out the provisions of the Constitution qearing on them
The relevant portions of articles 310 1088 and 311 of the Constitution which substantially reproduce sub sections
1 2 and 3 of section 240 of the Government of India Act 1935 are as follows  3101 Except as expressly provided by this Constitution every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State
2         3111 No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds 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
2No 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 Provided         3 If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause 2 the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank as the case may be shall be final
 The answer to the question canvassed before us depends on a true construction of the aforesaid provisions and in particular on the view we take as to the meaning scope and ambit of article 3112
In Parshotam Lal Dhingra s case 1 it wag said that the word removed  was not in section 2403 but had been introduced in article 3112
It may be mentioned that although the word  removed  was not actually used in section 2403 the reference to dismissal according to section 277 included a reference to removal
1 Civil Appeal No 65 Of 1957 decided on November 1 1957
1089 Article 3101 no doubt provides that every person falling within it holds office during the pleasure of the President or the Governor as the case may be
The language of both cls
1 and 2 of article 311 are prohibitory in form and was held by the Judicial Committee in High Commissioner for India vs 1
M Lal 1 to be inconsistent with their being merely permissive and consequently those provisions have to be read as qualifications or provisos to article 3101 as has been held by the Judicial Committee in that case and recently by this Court in Parshotam Lal Dhingra vs The Union of India2 in a judgment pronounced on November 1 1957
The limitations thus imposed on the exercise of the pleasure of the President or the Governor in the matter of the dismissal removal or reduction in rank of government servants constitute the measure of the constitutional protection afforded to the government servants by article 3112
Clause 1 of article 311 is quite explicit and protects government servants of the kinds referred to therein by providing that they cannot be dismissed or re
moved or reduced in rank by a lesser authority than that which appointed them
Likewise cl
2 protects government servants against being dismissed removed or reduced in rank without being given a reasonable opportunity to show cause against the action proposed to be taken in regard to them
As has been explained by this Court in Parshotam Lal Dhingra s case 2 the expressions dismissed  removed  and reduced in rank  are technical words taken from the service rules where they are used to denote the three major categories of punishments
In exercise of powers conferred by section 96 B2 of the Government of India Act 1915 the Secretary of State in Council framed Civil Service Governors Provinces Classification Rules
Rules x and xiii of those rules provided that local government might for good and sufficient reasons inflict the several punishments therein mentioned on persons therein indicated
Rule xiv prescribed the procedure for all cases in which dismissal removal or reduction in rank of any officer was intended 1 LR 1948 75 IA 225 at P 241 1090 to be ordered
These rules were reproduced with some modifications in the Civil Services Classification Control and Appeal Rules which were on May 27 1930 promulgated by the Secretary of State in Council in exercise of the same powers under section 96 B of the Government of India Act 1915
Rule 49 of those rules specified seven different kinds of punishments which could for good and sufficient reasons be imposed upon the members of the services therein specified
Rule 55 reproduced old r xiv with greater details
It provided  Without prejudice to the provisions of the  no order of dismissal removal or reduction shall be passed on a member of a Service other than an order based on facts which have led to his conviction in a criminal court or by a Court Martial unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communi cated to the person charged together with a statement of the allegations on which each charge is based and of any other 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 to be heard in person
If he so desires or if the authority concerned so direct an oral inquiry shall be held
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 crossexamine 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 proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof
This rule shall not apply where the person concerned has absconded 1091 or where it is for other reasons impracticable to com municate with him
All or any of the provisions of the rule may in exceptional cases for special and sufficient reasons to be recorded in writing be waived where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged
 Similar rules were framed and are to be found in the Indian Railway Establishment Code which governs the railway servants
Rule 6 of the Rules framed by the Chief Commissioner Delhi referred to above is more or less on the same lines
In R Venkata Rao vs Secretary of State for India it was held with reference to the rules made under s96 B of the Government of India Act 1915 that while that section assured that the tenure of office though at pleasure would not be subject to capricious and arbitrary action but would be regulated by the rules it gave no right to the appellant enforceable by action to hold his office in accordance with those rules
It was held that section 96 B and the rules made thereunder only made provisions for the redress of grievances by administrative process
The position of the Government servant was therefore rather insecure for his office being held during the pleasure of the Crown under the Government of India Act 1915 the rules could not over ride or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself
The only protection that the Government servants had was that by virtue of section 96 B1 they could not be dismissed by an authority subordinate to that by which they were appointed
The position however improved to some extent under the 1935 Act which by section 2403 gave a further protection in addition to that provided in section 2402 which reproduced the protection of s 96 B1 of the Government of India Act 1915
We have therefore to determine the true meaning scope and ambit of this now protection given by section 2403 of 1 L R 1936 64 IA 55
139 1092 the Government of India Act 1935 which has been reproduced in article 3112
The majority of the Judges of the Federal Court Spens CJ and Zafarulla Khan J in I M Lall s case 1 took the view that in sub section
3 of section 240 there had been enacted provisions of a very limited scope in permanent statutory form as compared with the provisions under the rules considered in Venkata Rao s case 2
Further down after referring to the fact that prior to 1935 a sort of protection for the servants of the Crown provided by sub section
3 was merely to be found in the rules many and various and liable to change their Lordships proceeded to state that from those rules had been picked out and enacted in the section itself certain limited specific provisions only
The majority of the Federal Court at page 138 construed section 2403 as follows In our judgment the words against the action proposed to be taken in regard to him  require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon
It should be noted that the sub section does not require any inquiry any formulation of charges or any opportunity of defence against those charges
All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him
It is also significant that there is no indication as to the authority by whom the action is to be proposed
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 I  136
2 LR 1936 64 IA 55 1093 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 point 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 above passage indicates that in the view of the majority of the judges of the Federal Court section 2403 corresponding now to article 3112 does not  require any inquiry any formulation of charges or any opportunity to defend against those charges 
According to them  all that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him Their
Lordships added that as that opportunity had to be a reasonable opportunity the section must be taken to require not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be 1094 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 sit is proposed to be taken 
It is quite clear that the majority of the Federal Court put a somewhat narrow interpretation on the relevant provision in that they considered that the requirement of reasonable opportunity contemplated by it arose only at a later stage when the competent authority definitely proposed to take a particular action and that this opportunity did not cover the earlier stage where charges were formulated and enquired into
Varadachariar J in his dissenting judgment took much the same view on this point as did the High Court
The High Court observed as follows The plaintiff s contention is that this opportunity should have been afforded to him after the finding of the enquiring officer had been considered and the punishment decided upon
With this contention we are unable to agree
Eight charges were served on the plaintiff and at the end he was asked to show cause why he should not be dismissed removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce for breach of Government Rules and conduct unbecoming to the Indian Civil Service
He was aware from the very start of the enquiry against him that removal from service was one of the various actions that could have been taken against him in the event of some or all the charges being established and in this sense he was showing cause during the course of the inquiry against the action proposed
The plaintiff s contention that there should be two enquiries the first to establish that be had been guilty and the second to determine what should be the appropriate punishment and that in each stage he should have reasonable and independent opportunities to defend and show cause does not appear to be correct or intended by the Legislature 1
 In agreement with the High Court Varadachariar J held that the requirements of sub section
3 of section 240 1 Lah
325 347 348
1095 demanded nothing beyond what was required for compliance with the provisions of r 55 of the Civil Services Classification Control and Appeal Rules
His Lordship found nothing in the language of el
3 to indicate that anything more or anything different was contemplated or to suggest that a further opportunity was to be given after the enquiry had been completed in the presence of the officer charged and the enquiring officer had made his report
The learned Judge was unable to accept the suggestion that the words of the statute were appropriate only to the stage when the authorities would be in a position to indicate definitely what action they intended to take namely whether it was to be one of dismissal or one of reduction and that this could be predicated only after the Enquiring Officer had made his report
In our judgment neither of the two views can be accepted as a completely correct exposition of the intendment of the provisions of section 2403 of the Government of India Act 1935 now embodied in article 3112 of the Constitution
Indeed the learned Solicitor General does riot contend that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him
We think that the learned Solicitor General is entirely right in not pressing for such a limited construction of the provisions under consideration
It is true that the provision does not in terms refer to different stages at which opportunity is to be given to the officer concerned
All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
He must not only be given an opportunity but such opportunity must be a reasonable one
In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one it is quite obviously necessary that the government servant should have the opportunity to say if that be his case that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punish 1096 ment proposed to be given is much more drastic and severe than he deserves
Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment
If this is the correct meaning of the clause as we think it is what consequences follow  If it is open to the governmnet servant under this provision to contend if that be the fact that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established for it is only then that he will be able to put forward his defence
If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross examine the witnesses called against him and to examine himself or any other witness in support of his defence
All this appears to us to be implict in the language used in the clause but this does not exhaust his rights
In addition to showing that he has not been guilty of any misconduct so as to merit any punishment it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him
He may say for instance that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case
To summarise the reasonable opportunity envisaged by the provision under consideration includes a An opportunity to deny his guilt and establish his innocence which he can only do if he is told what 1097 the charges levelled against him are and the allegations on which such charges are based b an opportunity to defend himself by crossexamining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally c an opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant
In short the substance of the protection provided by rules like r 55 referred to above was bodily lifted out of the rules and together with an additional opportunity embodied in section 240 3 of the Government of India Act 1935 so as to give astatutory protection to the government servants and has now been incorporated in article 311 2 so as to convert the protection into a constitutional safeguard
We find support for our above mentioned conclusion in the judgment of the Judicial Committee in I M Lall s case 1
It is true that after quoting a portion of the passage from the judgment of the majority of the Federal Court set out above their Lordships at page 242 stated that they agreed with the view taken by the majority of the Federal Court but their Lordships did not stop there and went on to say  In their opinion sub section
3 of section 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 the statutory provision of  a reasonable opportunity of showing cause against the action proposed to be taken in regard to him 
In the 1 LR 1948 75 IA 225 at 241
1098 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
Before 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 section 3 makes provision
Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage
If the civil servant has been through an inquiry 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 inquiry
 The above passage quite clearly explains that the point on which their Lordships of the Judicial Committee agreed with the majority of the Federal Court is that a further opportunity is to be given to the government servant after the charges have been established against him and a particular punishment is proposed to be meted out to him
The opening sentence in the above passage namely that section 240 3 was not a reproduction of r 55 and that r 55 was left unaffected as an administrative rule does seem to suggest that section 240 3 is not at all concerned with the enquiry into the charges which comes at the earlier stage but a close reading of the rest of that passage will indicate that in their Lordships  view the substance of the protection of r 55 is also included in section 240 3 and to that is superadded by way of further protection the neces sity of giving yet another opportunity to the government servant at the stage where the charges are proved against him and a particular punishment is tentatively proposed to be inflicted on him
Their Lordships referred to  statutory opportunity being reasonably afforded at more than one stage  that is to say that the opportunities at more stages than one are comprised within the opportunity contemplated 1099 by the statute itself
Of course if the government servant has been through the enquiry under r 55 it would not be reasonable that he should ask for a repetition of that stage if duly carried out which implies that if no enquiry has been held under r 55 or any analogous rule applicable to the particular servant then it will be quite reasonable for him to ask for an enquiry
Therefore in a case where there is no rule like r 55 the necessity of an enquiry was implicit in section 240 3 and is so in article 3112 itself
Further their Lordships say that an enquiry under r 55  would not exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry 
This clearly proceeds on the basis that the right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his  statutory right  and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant
The learned Solicitor General appearing for the Union of India then contends that assuming that the government servant is entitled to have an opportunity not only to show cause against his guilt but also an opportunity to show cause against the punishment proposed to be inflicted on him the appellant in the present case has had both such opportunities for by the notice served on him on July 9 1949 the appellant was called upon to show cause against the charges as well as against the punishment of dismissal in case the charges were established
He points out that in I M Lall s case 1 the notice given to I M Lall did not specify dismissal as the only and particular punishment proposed to be imposed on him but called upon him to show cause why he should not be dismissed removed or reduced or subjected to such other disciplinary action as the competent authority might think fit to enforce whereas in the present case the notice referred to above clearly indicated that the punishment of dismissal alone was proposed to be inflicted
LR 1948 75 1
A 225
140 1100 The learned Solicitor General in support of his contention relies on the observations of the majority of the Federal Court quoted above and in particular on the passage where their Lordships stated  that in some cases it would be quite 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 in rank if all or any of the charges are proved dismissal or reduction in rank would follow and that this would be sufficient in some cases He also strongly relies on the circumstance that their Lordships of the Judicial Committee after quoting the above passage stated that they agreed with the view taken by the majority of the Federal Court
But as we have already explained the other observations of their Lordships of the Judicial Committee which follow immediately quite clearly indicate that what they agreed with was that a second opportunity was to be given to the government servant concerned after the charges had been brought home to him as a result of the enquiry
Their Lordships made it clear that no action could in their view be said to be proposed within the meaning of the section until a definite conclusion had been come to on the charges and the actual punishment to follow was provisionally determined on for before that stage the charges remained unproved and the suggested punishments were merely hypothetical and that it was on that stage being reached that the statute gave the civil servant the opportunity for which sub section
3 made provision
A close perusal of the Judgment of the Judicial Committee in I M Lall s case will however show that the decision in that case did not proceed on the ground that an opportunity had not been given to 1
M Lall against the proposed punishment merely because in the notice several punishments were included but the decision proceeded really on the ground that this opportunity should have been given after a stage had been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the 1101 proved charge tentatively and proposed a particular punishment
There is as the Solicitor General fairly concedes no practical difficulty in following this procedure of giving two notices at the two stages
This procedure also has the merit of giving some assurance to the officer concerned that the competent authority maintains an open mind with regard to him
If the competent authority were to determine before the charges were proved that a particular punishment would be meted out to the government servant concerned the latter may well feel that the competent authority had formed an opinion against him generally on the subject matter of the charge or at any rate as regards the punishment itself
Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done
It is on the facts quite clear that when Shri J B Tandon concluded his enquiry and definitely found the appellant guilty of practically all the charges he for the first time suggested that the punishment of dismissal should be the proper form of punishment in this case
Shri J B Tandon was not however the competent authority to dismiss the appellant and therefore he could only make a report to the Deputy Commissioner who was the person competent to dismiss the appellant
When the Deputy Commissioner accept ed the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant it was on that stage being reached that the appellant was entitled to have a further opportunity given to him to show cause why that particular punishment should not be inflicted on him
There is therefore no getting away from the fact that article 3112 has not been fully complied with and the appellant has not had the benefit of all the constitutional protection and accordingly his dismissal cannot be supported
We therefore accept this appeal and set  aside the order of the Single Judge and decree the appellant s suit by making a declaration that the order of dismissal passed by the Deputy Commissioner on 1102 December 171951 purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which this appeal has arisen
The appellant will get costs throughout in all courts
He must pay all court fees that may be due from him
Under order XIV Rule 7 of the Supreme Court Rules were direct that the appellants could be paid his fees which we assess at Rs 250
Appeal allowed


Summary:
 The Governor of Maharashtra by a notification dated 18th September 1987 issued under section 16 of the Representation of the People Act 1951  the Act  called upon six local authorities Constituencies in the State of Maharashtra to elect one member from each of the said constituencies to fill the vacancies in the Maharashtra Legislature Council
On the same day the Election Commission of India the appellant issued a notification under section 30 of the Act fixing the calendar of events for the purpose of holding the elections
Osmanabadcum Latur Beed Local Authorities constituency was one of the said six constituencies
Under the notification of the Election Commission the last date for the withdrawal of the candidatures was 28th September 1987 and the poll if necessary was to be taken on the 18th October 1987 and the entire election process was to be completed within 21st October 1987
Respondents 1 to 5 filed a writ petition in High Court challenging the validity of the notification issued by Election Commission on 18th September 1987 on the ground that the notification was invalid because the Zilla Parishad of Osmanabad and Latur districts which were within the constituency had not been constituted and the Administrators were appointed to run the said Zilla Parishads and therefore the members of the Zilla Parishads who were entitled to take part in the said elections had been deprived of their right to participate in the said election
Along with the writ petition an application was made praying for the postponement of the last date of withdrawal of the candidates from 28th September 1987 to 1st October 1987
A Single Judge of the High Court passed an order on September 26 1987 issuing notice on the writ petition and passing an interim order ex parte directing the postponement of last date of withdrawal of the candidatures from 28th September 1987 to October 1 1987
On October 1 1987
a Division Bench of 879 the High Court dismissed the writ petition
The High Court did not take any observation as to the effect of the interim order passed by it earlier on the election programme
18 Candidates withdrew their candidature by 1st October 1987 the last date for withdrawal of candidatures as per the interim order passed by the High Court
In the circumstances the Election Commission postponed the date of poll from 18th October 1987 as originally notified to 18th November 1987 in compliance with the spirit underlying section 30d of the Act which contemplated an interval of 20 days between the last date for withdrawal of candidatures and the date of poll and notified the change of the date of poll in the official Gazette
It also notified 4th November 1987 as the date before which the election had to be completed instead of 21st October 1987 originally fixed
On 16 l0 1987 the respondents 1 to 5 filed a review petition before the High Court seeking a direction that the election programme might be renotified on the ground that clear 20 days  interval was not there between the last date of withdrawal of candidatures and the date of poll originally fixed viz 18th October 1987
The High Court on 16th October 1987 passed an order adjourning the case to October 26 1987 and staying the election fixed for the 18th October 1987 till it passed further order on 26th October 1987 even though it was brought to the notice of the High Court that the Election Commission had on 16101987 already postponed the date of poll from 18th October 1987 to 1st November 1987
Aggrieved by the interim order in the writ petition postponing the last date of withdrawal of the candidatures from 28th September 1987 to October 1 1987 and by the interim order passed on October 16 1987 in the Review Petition the Election Commission appealed to this Court for relief by special leave
Allowing the appeal the Court  HELD A dispute regarding election to the Legislative Council of a State can be raised only under the provisions contained in Part VI of the Act
Section 80 A of the Act provides that the Court having jurisdiction to try on election petition shall be the High Court
In view of the non obstante clause contained in Article 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whetever grounds under Article 226 of the Constitution is taken away
If there was any ground relating to the non compliance with the provisions of the Act and the Constitution on which the validity of any election process could be questioned the person interested in question 880 ing the election has to wait till the election is over and institute a petition in accordance with section 81 of the Act calling in question the election of the successful candidate within forty five days from the date of election of the returned candidate but not earlier than the date of election
The High Court even though it had issued an interim order in the writ petition on 2691987 postponing the last date for withdrawal of the 13 candidatures to 1st October 1987 dismissed the petition by its judgment dated 1101987
Having dismissed the petition on 1101987 the High Court committed a serious error in entertaining a review petition in the very same writ petition on 16
101987 and passing an order staying the election which had been earlier fixed for 181087 till further orders looking to the mandatory provisions of section 30 of Representation of the People Act
 The High Court failed to recall to its mind that it was not its concern under Article 226 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election
If there was any such error committed in the course of the election process the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of the Constitution as decided in Mohinder Singh Gill  Anr
vs The Chief Election Commisioner New Delhi  Ors  and to see that the election process was completed in a fair manner
886A B G H 887E H In this case 75 of the total electorate including the number of members of the Zilla Parishads of Osmanabad and Latur districts who would have been voters had the said Zilla Parishads been constituted were entitled to vote
Since the existing position in the constituency satisfied the guideline prescribed by the Election Commission the election from the said constituency had been ordered
It was only on account of the interim order passed by the High Court on 2691987 postponing last date for withdrawal of the candidatures from 2891987 to 1101987 and not on account of any mistake committed by the Election Commission that the interval between the last date of withdrawal and the date of poll originally fixed as 18101987 fell short of the period of twenty days prescribed by clause d of section 30 of the Act
After the judgment of the High Court was pronounced dismissing the writ petition on 1101987 in order to ensure that there was an interval of 20 days between the last date for withdrawal of candidatures and the date of poll the Election Commission had on its own postponed the date of poll on 1111987 and published a notification in the official Gazette even before the Court passed another interim order on 16101987 in 881 the Review Petition
All these changes in the calendar of events of the election came about because of the earlier interim order of the High Court
It is not the law that every non compliance with the provisions of the Act or the Constitution will vitiate an election
It is only when it is shown that the result of the election was materially affected by such non compliance that the High Court would have the jurisdiction to set aside an election in accordance with section 1001div of the Act
888C G The High Court grievously erred in entertaining the review petition and passing an interim order on 16101987
Both the interim orders the one passed on 2691987 postponing the last date of withdrawal of the candidatures and the other passed on 16101987 were without jurisdiction
There was hardly any justification for entertaining the review petition in the circumstances of the case and issuing notice thereon particularly after the High Court itself had rejected the writ petition on the ground that it had no jurisdiction to interfere with the process of election at that stage in view of the provisions of Article 329b of the Constitution
The Review Petition before the High Court was liable to be dismissed
The entire proceedings in the High Court amounted to a clear abuse of the process of law
889B D OBSERVATION The success of democracy is dependent upon the cooperation of the Legislature the press the political parties and above all the citizenry and each of them discharging the duties assigned to it
Every member of the body politic should play his legitimate role for the success of the democracy
Some times the success of democracy also depends upon the observance of restraint on the part of the Constitutional functionaries
888H 889A B Inderjit Barua  Ors
vs Election Commission of India  Ors 1985 Supp
3 SCR 225 AIR 1984 SC 1911 NP Ponnuswami vs Returning officer Namakkal Constituency and Ors   Lakshmi Charan Sen  Ors
vs AKM Hassan Uzzaman  Ors
etc 1985 Supp 1 SCR 493 and Mohinder Singh Gill  Anr
vs The Chief Election Commissioner New Delhi  Ors
J  referred to