Dixit, J.
1. In this case, the petitioner Ramchandra Gopalrao Munshi has moved this Court for a writ in the nature of certiorari to quash an order dated 30th July, 1954, passed by the Deputy Inspector General of Police., Madhya Bharat, dismissing him from service.
2. According to the petitioner, he was appointed as a Sub-Inspector of Police in the then Ratlam State by the Ruler of that State by Dar-bar Order No. 9494 dated 31st December, 1945, and was in the service of that State on the date when the Ratlam State merged in Madhya Bharat; that after the formation of Madhya Bharat and the merger therein of the Ratlam State, he was unpointed as a member of the Madhya Bharat Police-Force, as by virtue of Ordinance No. 30 of 1948, issued by the RajPramukh of Madhya Bharat, he was enlisted and enrolled as a Sub-Inspector and his name was included in the list of Sub-Inspectors prepared by the Inspector General of Police of Madhya Bharat and published in the Madhya Bharat Police Gazette dated 31st, August, 1950.
The applicant further states that in April, 1953, he proceeded from village Ghatia to Sutarkhedi village for making arrangements to prevent an apprehended breach of peace between one Doulatsingh and some other persons over a piece of land; that while he was at Sutarkhedi, three bullocks belonging to the said Doulatsingh were stolen on the night of 20th April, 1953; that on 2nd May 1953 Doulatsingh made an application to the Deputy Inspector General of Police complaining that he, 1. e., the petitioner, was not properly investigating into the theft, which he himself had instigated; that he made a similar application to the Superintendent of Police and also to the Anti-Corruption Officer, Ujjain, to the effect that the petitioner was demanding a bribe; that on 1st August, 1953, Doulatsingh again complained to the Superindendent of Police, this time alleging that the petitioner had taken a bribe from him; that on these complaints an enquiry was ordered by the Superintendent of Police; that an enquiry was then held by the Deputy Superintendent of Police, Ujjain, the charges being that the petitioner had- not carried on investigation according to law into the incident of theft which took place at the residence of Doulatsingh and that he had taken a bribe of Rs. 50 from Doulatsingh; that on the conclusion of the enquiry, the Deputy Superintendent of Police forwarded his report to the Superintendent of Police who without any further enquiry submitted his findings on the report of the Deputy Superintendent of Police to the Deputy Inspector General of Police; that the Deputy Inspector General of Police forwarded a copy of the findings to the petitioner asking him to show cause why he should not be dismissed; and that the petitioner accordingly filed his reply before the Deputy Inspector General of Police who merely perused it and later on passed the impugned order of dismissal.
3. The petitioner contends that the order passed by the Deputy Inspector General of Police dismissing him from service is without jurisdiction inasmuch as the Deputy Inspector General of Police was not competent to order his dismissal and that the petitioner was not given a reasonable opportunity to meet the charge as contemplated under Article 311 of the Constitution. The petitioner says that he was not given a reasonable opportunity to meet the charges because:--
1. The Deputy Superintendent of Police held the enquiry which he did without giving any notice to him and in his absence; that he, no doubt, cross-examined the witnesses whose evidence has been recorded in his absence, but he was not given any certified copies of the statements of those witnesses;
2. The notice which the Deputy Inspector General of Police issued to him was vague and did not specify any charge;
3. While making the order of dismissal the Deputy Inspector General of Police took into consideration certain matters against the petitioner which were never the subject-matter of any charge and of which the petitioner had no notice;
4. AH the papers of Anti-Corruption Department investigation, which was subsequently dropped, were not made available to him and that he was not supplied with copies of the relevant record;
5. The Deputy Inspector General of Police did not give him any opportunity to meet the charges and the proposed punishment.
4. In the return filed on behalf of the State by the Under-Secretary Home Department, Government of Madhya Bharat, it has been averred that the petitioner was not absorbed in the integrated Police Service of the State of Madhya Bharat as a permanent servant; that after the formation of Madhya Bharat his services were only on a temporary and provisional basis and as such he was not entitled to invoke Article 311 of the Constitution; that in the State of Madhya Bharat the appointing authority for Sub-Inspector was, besides the Inspector General of Police, the Deputy Inspector General of Police also and, therefore, the order of dismissal passed by him was valid.
It is further asserted in the return that the petitioner was given full opportunity of meeting the charges against him at the enquiry stage as well as after the issue of the notice to him by the Deputy Inspector General of Police; that, therefore, he could not insist on a second enquiry before the Deputy Inspector General of Police upon the issue of a notice calling upon him to show cause why he should not be dismissed; that the petitioner was given a notice of the enquiry held by the Deputy Superintendent of Police and directed to be present at the time of the enquiry but that he failed to appear when the witnesses were being examined in chief; that the petitioner later on did appear before the Deputy Superintendent of Police and cross-examined the witnesses but did not raise the objection that, their statements in examination-in-chief had been recorded in his absence.
It is further stated in the return that the petitioner was given copies of documents which he wanted and for which he had applied and that the Deputy Inspector General of Police did not take into consideration extrinsic evidence against the applicant and that when he referred to the entries in the service-roll of the petitioner and his previous record, it was only for the purpose of determining the appropriate punishment.'
5. On the petition and the return thereto, and the arguments addressed before us first question that arises for determination is whether the order made by the Deputy Inspector General of Police dismissing the petitioner from service is vitiated in view of the provisions of Article 311(1) of the Constitution of India. The argument put forward by Mr. Sanghi, learned counsel for the petitioner, on this point is that under that Article an order of dismissal or removal cannot be passed by an authority subordinate in rank to that by Which the civil servant in. question was appointed; that on the formation of Madhya Bharat there was a re-appointment of the petitioner as a Sub-Inspector of Police by virtue of Ordinance No. 30 of 1948 and by the Inspector General of Police as evidenced by the list published in the Madhya Bharat Police Gazette dated 31st August, 1950; that the petitioner having been appointed thus by the Inspector General of Police could not be dismissed by the Deputy Inspector General of ' Police, even though he might have been competent at the time of the petitioner's re-appointment or dismissal to appoint, remove or dismiss Sub-Inspectors.
In the alternative it was submitted that If there was no re-appointment of the petitioner after the formation of Madhya Bharat, he could not but be regarded as continuing in service under the original order of appointment, namely, that of the Ruler of the Ratlam State; that he could, therefore, be removed only by that authority in the new State of Madhya Bharat which was coordinate with the Ruler of Ratlam; that the Ruler of Ratlam exercised sovereign powers which vested in the Government and the Raj-Pramukh of the State of Madhya Bharat when the administration of the Ratlam State was taken over by the Madhya Bharat Government under Article VI of the Covenant relating to the formation of the Madhya Bharat Union ; and that, therefore, the petitioner could only be dismissed by an order of the Government and not by any other authority. Mr. Patel, learned Deputy Government Advocate, replied that there was never any re-appointment of the petitioner in Madhya Bharat; that the fact that the petitioner was appointed by the Ratlam Dar-bar was wholly immaterial; that the petitioner could be dismissed by an authority not subordinate to that which would have appointed him in Madhya Bharat if he had been absorbed in the integration of the Police Department; and that under the rules as the Deputy Inspector General of Police was also empowered to appoint and dismiss Sub-Inspectors, therefore, the order passed by the Deputy Inspector General of Police dismissing the petitioner was valid.
6. In our judgment, the contention of the learned counsel for the petitioner must be given-effect to. Article 311(1) of the Constitution is as follows :-
'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.'
As observed by the Supreme Court in Mahesh Prasad v. State of U. P. (S) AIR 1955 S.C. 70 (A), this Article cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior and that it is enough if the removing authority is of the same rank or grade. The subordination of the authority dismissing or removing a civil servant must be in respect of rank and not in respect of functions. This is clear also from the decisions of the Privy Council in R.T. Rangachari v. Secretary of State, AIR 1937 PC 27 (B), and North -West Frontier Province v Suraj Narain Anand, AIR 1949 PO 112 (C) which arose under the corresponding provisions of Section 240 of the Government of India Act, 1935, andSection 96-B(1) of the Government of India Act. 1619.
Both these cases of the Privy Council laid down that the authority making the appointment could not delegate the power of dismissal or removal so as to destroy the protection afforded by the provision, so that the dismissal of a civil servant by an authority subordinate to that by Which he was appointed would be unlawful and inoperative even if the subordinate authority was authorised under the rules to dismiss the civil servant. It is the rank of the person actually appointing the civil servant that is material and the subordination of the appointing and dismissing authorities must be decided with reference to their rank and not functions.
If the subordination is taken in regard to functions, then the safeguard afforded by Article 311 of the Constitution can at any time be wiped out and destroyed by a rule under Article 309 vesting the power of dismissal in a subordinate authority which is subordinate in rank to the authority which appointed the civil servant. These principles have been emphasized in Hiralal Chunnilal Sirish v. State of Madhya Pradesh AIR 1954 Nag 258 (D). Bearing this construction of Article 311(1) in mind, we have to see whether the Deputy Inspector General of Police, who dismissed the petitioner, was of the same, rank or grade as the authority which appointed the applicant.
It is not disputed that the petitioner Ram-chandra Gopalrao Munshi was appointed by the Ruler of Ratlam State as a Sub-Inspector of Police not temporarily but permanently in that State and that after the formation of Madhya Bharat he continued in service as a Sub-Inspector until he was dismissed. The controversy is as to whether his continuance after the formation of appointment by an authority of the State of Madhya Bharat was by virtue of a fresh order of Madhya Bharat or whether it was under the sanction of the original order of appointment read with Article XVI of the Covenant bringing into existence the Madhya Bharat Union.
The petitioner contends that after the formation of Madhya Bharat he was appointed as a Sub-Inspector of Police by the Inspector General of Police of Madhya Bharat. On the other hand, the State says that, in fact, he was never absorbed in the Madhya Bharat Police Service. If the petitioner was, in fact, appointed by the Inspector General of Police after the formation of Madhya Bharat, then it is plain enough that his dismissal by the Deputy Inspector General Of Police is unlawful and inoperative even though the Deputy Inspector General of Police was empowered at the time of the petitioner's appointment or subsequently to appoint and dismiss Sub-Inspectors. That the Deputy Inspector General of Police is subordinate to the Inspector General of Police is a matter on which there can be no room for any doubt. The petitioner has, it is true, not produced any order of the Inspector General of Police, Madhya Bharat, appointing him as a Sub-Inspector after the formation of Madhya Bharat, But the provisions of the Madhya Bharat Police Ordinance, Samvat 2005 (Ordinance No. 30 of 1948), the list published in the Madhya Bharat Police Gazette dated 31st August, 1950, and the absence in the return filed by the State of any denial of the petitioner's statement that he was formally enrolled and appointed as a Sub-Inspector of Police incline us to hold that he was appointed as a Sub-Inspector of Police after the formation of Madhya Bharat by the Inspector General of Police.
Ordinance No. 30 of 1948 was promulgated to provide for the unification and organisation of the Police Force of Madhya Bharat. Section 3 of that Ordinance provides that 'the entire Police establishment shall, for the purpose of this Ordinance, be deemed to be one Police Force, and shall be formally enrolled, shall consist of such numbed of officers and men, and shall be constituted in such manner, and the members of such force shall receive such pay; as shall, from time to time, be determined by the Government.'
Under Section 4, the administration of the Police Force was vested in the Inspector General, of Police and in such Deputy Inspector General and Assistant Inspector General as the Government thought it fit, Section 7 gave to the Inspector General of Police and to the Deputy Inspectors General of Police and Assistant Inspectors General of Police the power to appoint Police officers other than those mentioned in Section 6, that is, Inspectors, Sub-Inspectors and other subordinate Police officers. Section 8 of the Ordinance enjoined that every Police-officer appointed under Section 7 shall receive, on his appointment, a certificate of appointment in the prescribed form under the seal of such officer 'as has powers to appoint him.' In this list of Sub-Inspectors published in the Police Gazette dated 31st August 1950, the petitioner's name was included. This list was published under Ordinance No. 30 of 1948. It will thus be seen that after the formation of Madhya Bharat the petitioner was enrolled as a member of the Madhya Bharat police Force and appointed under Section 7 of the Ordinance. It is true that the Ordinance by itself does not give any idea as to the specific authority who appointed the petitioner. The certificate which the petitioner received on his appointment under the seal of the officer 'who has powers to appoint Sub-Inspectors under the Ordinance' cannot be held as conclusive of the petitioner's appointment by the Deputy Inspector General of Police whose signature and seal appear on the certificate. Under Section 8 of the Ordinance, the certificate has to bear the seal and the signature not of the officer who actually appointed him but of the officer who has powers to appoint that officer.
But there can be no reason for not accepting the statement of the petitioner that he was appointed by the Inspector General of Police when it has not been denied by the State in the return. The reply of the State on this statement of the petitioner is that he was not absorbed in the integration of the Police Department in the State of Madhya Bharat as a permanent servant. The fact that the petitioner was not absorbed in the integrated Police Service of the Madhya Bharat State does not at all mean that after the promulgation of Ordinance No. 30 of 1948 till the date of, his dismissal he was not appointed and enrolled as a Police Officer.
The appointment under the Ordinance was obviously for the purpose of vesting the petitioner with the powers, functions and privileges of a Police Officer. The appointment under the Ordinance read with Article XVI of the Covenant was no doubt provisional and subject to the petitioner's absorption in the integrated Police Service of Madhya Bharat. But that does not make the petitioner a temporary servant or alter the fact that the petitioner was appointed as a Sub-Inspector of Police after the formation of Madhya Bharat under the Ordinance.
The opponent State has also not placed on record any order of the Deputy Inspector General of Police appointing the petitioner as a Sub-Inspector after the aforesaid Ordinance came into force. As the petitioner was appointed by the Inspector General of Police after the formation of Madhya Bharat, his dismissal by the Deputy Inspector General of Police, an authority subordinate in rank to the appointing authority, was clearly illegal.
7. Even if the position taken by the State that the petitioner was not appointed in the Madhya Bharat Police Service after the formation of Madhya Bharat is accepted, the argument of the learned Deputy Government Advocate that the fact that the petitioner was appointed by the Ruler of Ratlam State was of no consequence and that the order of dismissal passed by the Deputy Inspector General of Police was legal for the reason that if the petitioner had been absorbed in Police Service after the formation of Madhya Bharat, he would have been appointed by the Deputy Inspector General of Police, cannot be acceded to.
The argument finds its origin in the decision of the Rajasthan High Court in Sobhagmal v. State, AIR 1954 Raj 207 (E). That was a case in which a person was appointed as Inspector of Customs and Excise by an order dated 16th October, 1956, of the Government of Jaipur State. After the formation of Rajasthan Union on 18th April, 1948, the petitioner in that case continued in service till 29th July, 1952, when he was removed from service by an order made by the Commissioner of Customs and Excise.
The aggrieved civil servant in the Rajasthan case was never appointed in the integrated set-up of the new State as he was suspended before the integration was completed. He then filed a petition under Article 226 of the Constitution of India challenging the validity of the order of dismissal contending that as he was appointed by the Government of the former State of Jaipur and as the co-ordinate authority to the Government of the former State of Jaipur was the Government of Rajasthan, therefore he could not be dismissed by the Commissioner of Customs and Excise because that authority was subordinate in rank to the Government. Repelling this contention the learned Judges of the Rajasthan High Court observed:
'We are of opinion that this argument though apparently attractive, is not sound. Article 311(1) contemplates that the authority appointing and the authority dismissing must be an authority of the same State. Where, however, as in the case of Rajasthan, there has been a merger of a number of former States to form the present State of Rajasthan, the position is different. In these circumstances, we have not to see what was the authority which appointed the applicant originally when he was appointed in a former State which has been merged in the State of Rajasthan.
What we have to see is the authority which appointed the applicant in the State of Rajasthan after it was created. It is common knowledge that after the creation of the State of Rajasthan, there was integretion of service, and servants of the former States, which merged in Rajasthan, were appointed in the integrated services of Rajasthan by various authorities. Therefore, the correct interpretation of Article 311(1) in the situation in which we are in Rajasthan is that the dismissal or removal cannot be made by an authority subordinate to that which appointed a civil servant on integration in the State of Rajasthan.
If for example, on integration, a person was appointed by the Government of Rajasthan, he should not be dismissed by any authority suborinate to the Government of Rajasthan. But if, on integration, a person was appointed by a Head of a Department or by a Head of an Office or even by a lower officer in the integrated State of Rajasthan, the dismissal could be by an authority coordinate to that which made the appointment in the integrated set up. It is, therefore, not the original appointing authority in the former merging State but the appointing authority in the State of Rajasthan, that hag to be seen, and the dismissal cannot be made by an authority subordinate in rank to such authority in Rajasthan.
In this case, it appears that the applicant was never appointed in the intergrated set-up for he was suspended before the integration was completed. In such a particular case, it seems to us that the proper way to look at it is to see who would have appointed the applicant in the State of Rajasthan if he had been brought into the integrated set up.'
8. With all due deference to the learned Judges of the Rajasthan High Court, we do not find ourselves in agreement with what they have said in regard to the mode of applicability of Article 311(1) to the facts and circumstances of the case before them, which were no different from those in the instant case. It is true that under Article 311(1) the subordination of the dismissing authority has to be determined with reference to the position in the new State of the authority which appointed the civil servant.
But from this it does not at all follow that as for the purpose of Article 311(1) the appointing authority and the dismissing authority must be of the one and the same State; therefore, in regard to these civil servants of a State, which has merged, united or absorbed in another State and Who have not been appointed afresh in the new State, the subordination of the dismissing authority in the new. State must be determined with reference to the authority which would have appointed them in the State if they had been absorbed in the service of the new State.
So to say would be to ignore the dicta laid down by the Privy Council in the decisions in AIR 1937 PC 27 (B) and AIR 1949 PC 112 (C) and by the Supreme Court in AIR 1955 SC 70 (A) and to stretch and strain the language of Article 311(1) of the Constitution upon a Procrustean bed in order to make it fit to a particular set of circumstances. Once it is appreciated that the removing or dismissing authority need not be the very same authority who made the appointment, and the subordination spoken of in Article 311(1) is of rank and not of function and is as between the removing or dismissing authority and the authority which appointed the civil servant concerned and not the authority which could or would have appointed him, then there can be no escape from the conclusion that, in the circumstances such as those existing in the Rajasthan case or here, the subordination of the dismissing authority must be determined with reference to that authority in the new State which is equivalent or co-ordinate to the authority which appointed the civil servant concerned an the old State.
If for the applicability of Article 311(1) of the Constitution to the civil servants appointed in one State and continued in service, without any fresh appointment, in a newly created State consisting of the State where they were originally appointed, a fiction has to be evolved, then having regard to the above-mentioned decisions, the rational fiction would be one of determining the subordination of the dismissing or removing authority in relation to that authority in the new State which is equivalent to the authority which appointed the civil servant concerned in the old State, and not that of determining the authority who would have appointed the civil servant in the new State.
It is easy to see that the observations of the Rajasthan High Court, if taken to their logical conclusion, would render Article 311(1) totally inapplicable to civil servants of a State which subsequently becomes a new State and in which no question or necessity of integration or fresh appointment of the personnel of the old State ever arose. For example, the State of Mysore acceded to the Dominion of India in 1947 and continued in that relationship until 26th January 1950, when it became a part B State under the Constitution. In that State there were no mergers or Unions and no problems of integration of services such as those which arose in Madhya Bharat and Rajasthan.
There was no question in Mysore of any civil servant being re-appointed when the State acceded to the Dominion of India or when it became a part B State. Yet, on the reasoning of the Rajasthan High Court, civil servants of that State cannot have the benefit of Article 311(1) as they werenot appointed in the new State; and as there was no question of integration, the fiction of the authority who would have appointed them in integration cannot be resorted to. In our opinion, in the circumstances of the case before us, the subordination of the dismissing authority must be determined with reference to that authority which is coordinate in the new State to the authority appointing the petitioner in the Ratlam State.
That authority under Article VI of the Covenant relating to the formation of the Madhya Bharat Union is clearly the Madhya Bharat Government. Article VI laid down that when the Ruler of a cove nanting State handed over the administration of the State to the Raj-Pramukh then all rights, authorities and jurisdiction belonging to the Ruler which appertain or are incidental to the Government of the covenanting state shall vest in the Madhya Bharat and that all duties and functions of this Ruler pertaining or incidental, to the Government of the State shall also devolve on the United Slate of Madhya Bharat. If in Madhya Bharat the authority equivalent to that which appointed the petitioner in Ratlam State is thus the Madhya Bharat Government, then the petitioner could not be dismissed by the Deputy Inspector General of Police an authority which is subordinate in rank to the Government. He could be removed by an order of the Madhya Bharat Government only.
9. In this connection we must notice the decisions in Mangalsingh v. State, 1936 Madh B LJ 561: (AIR 1956 Madh B 257) (F), and Abid Moham-mad Khan v. State, 1958 Madh-B LJ 292: (AIR 1956 Madh-B 259) (G), which, according to the learned Deputy Government Advocate, have adopted the reasoning of the Rajasthan High Court in AIR 1954 Raj 207 (E).
We do not discover therein any observation even to suggest that those cases accepted the reasoning of the Rajasthan High Court as to the mode of applicability of Article 311(1) to the case of a civil servant appointed by an authority in a covenanting State of a Union such as Madhya Bharat or Rajasthan who after the formation of the Union concerned was removed or dismissed from service before the making of any order with regard to his re-appointment in the integrated service of the Union.
In 1956 Madh-B LJ 561: AIR 1956 Madh-B 257 (P), the petitioner, who was a Head Constable, was appointed in the quondam Gwalior State by the Inspector General of Police of that State, Sometime after the formation of the State of Madhya Bharat, which included the Gwalior State, he was dismissed by an order passed by the Deputy Inspector General of Police of Madhya Bharat. It was contended on his behalf that as he had been appointed under the order of the Inspector General of Police of the former Gwalior State prior to the integration of that State into the State of Madhya Bharat, his dismissal by an order of the Deputy Inspector General of Police of Madhya Bharat was contrary to Article 311(1) of the Constitution.
This contention was rejected by the Madhya Bharat High Court by an observation that 'the first Question which arises for consideration is whether the Deputy Inspector General of Police Madhya Bharat is an authority subordinate in rank to that by which the petitioner was appointed as head-constable ..... The petitioner has made no averments as to whether the Deputy Inspector General of Police of Madhya Bharat can on any consideration be said to be an authority subordinate to the appointing authority, viz., Inspector General of Police, Gwalior.
Nor is it stated that on integration he was reappointed by the Inspector General of Police of Madhya Bharat, or any such authority. It is difficult under these circumstances to make any presumptions as regards the rank of an authority in the former merged State in comparison with that of any existing authority in the absence of definite materials with respect to the same. Nor is it possible to presume that in the intagrated setup authority of a particular rank appointed the petitioner and that the dismissing authority is subordinate to that authority.'
These observations go to show that the learned Judges of the Madhya Bharat High Court' thought that in the absence of any averment by the petitioner that he had been appointed in the integrated set-up in the State of Madhya Bharat, what had to be seen was the rank of the appointing authority in the 'former merged State' in comparison with some authority in Madhya Bha-rat for determining the subordination of the dismissing authority in Madhya Bharat.
The Rajasthan decision in AIR 1954 Raj 207 (E), was cited before the-learned Judges only in support of the proposition that if the petitioner was appointed in the integrated set up in the State of Madhya Bharat, then the subordination of the dismissing authority should be determined with reference to the authority appointing the civil servant in the new State. The only opinion the learned Judges expressed on this point was that the counsel raising the contention 'was unable to refer to any averment in the petition as to by whom the petitioner was, if at all, appointed in the integrated set up in the State of Madhya Bharat.''
It cannot therefore, be said that in 1956 Madh BLJ 561: (AIR 1956 Madh-B 257 (P), the reasoning of the Rajasthan High Court in AIR 1954 Raj 207 (E), was approved. In the other case viz., that of 1956 Madh-B LJ 292: (AIR 1956 Madh-B 259) (G), there is no doubt an observation that in Mangalsingh's case it was held that the provisions of Article 311 could not be invoked where the initial appointment was made prior to the Constitution by an authority of an Indian State and the dismissal was by an authority of a newly formed State after the Constitution.
It will be seen that 1956 Madh-B LJ 561: (AIR 1956 Madh-B 257) (P), did not lay down any such proposition and in fact in 1956 Madh-B LJ 292: (AIR 1956 Madh-B 259) (G). the question of the subordination of the dismissing authority in relation to authority making the initial appointment did not arise inasmuch as Abid Mohammad Khan who had been appointed in Indore State under Huzur Shri Shankar Order was after the merger of that State in Madhya Bharat re-appointed and absorbed in the integrated service of Madhya Bharat by the competent authority.
10. The next question to deal with is whether the applicant was given a reasonable oppor-tunitv of meeting the charges against him as con-templated under the Constitution. So far as the legal position is concerned, that is very clear from the decision in P. Joseph John v. State of Travancore-Cochin, (S) AIR 1955 SC 160 (H), which approved the decision in High Commissioner for India v. I.M. Lal, AIR 1948 PC 121 (I). According to these decisions, it is when a stage is reached when definite conclusions have been come to as the charges, and the actual punishment to follow is provisionally determined on, that the statute gives the civil servant an opportunity for which Article 311 makes provision, and at that stage a reasonable opportunity has to be afforded to the civil servant concerned and that there is no anomaly in the view that the statute contemplates a reasonable opportunity at more than one stage.
In AIR 1948 PC 121 (I), their Lordships of the Privy Council added that 'if the civil servant has been through an enquiry under Rule 65, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, for 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.'
If, therefore, a civil servant has had a reasonable and effective opportunity for showing cause after the charges are framed against him and are handed over to him and if an enquiry at that stage has been held in accordance with any existing rules for the purpose, or in consonance with 'the rules of natural justice, then the civil servant cannot demand that there should be another enquiry at the stage when he is called upon to show cause against the punishment proposed to be meted out to him. If, on the other hand, no such enquiry was held at the first stage, then the civil servant's request for a thorough enquiry into the charges against him at the stage when he is called upon to show cause against the proposed punishment cannot be refused.
11. Now the question whether a civil servant has or has not had a reasonable opportunity as contemplated by Article 311 is purely a question of fact depending on the facts and circumstances of each case. In the instant case, what happened was that when complaints were made by Doulatsingh against the petitioner to the Superintendent of Police and other authorities an enquiry was made by the Deputy Superintendent of Police, Ujjain, under the orders of the Superintendent of Police of the district.
The Deputy Superintendent of Police framed two charges against the petitioner, one for his failure to investigate promptly and properly into the incident of theft of three bullocks belonging to Doulatsingh, and the other relating to having obtained a bribe of Rs. 50/- from Doulatsingh in connection with this investigation. The petitioner was informed by the Deputy Superintendent of Police of the time and place of the enquiry into these charges, but, he absented himself when evidence in support of the charges was recorded by the Deputy Superintendent of Police. Thereafter the applicant participated in the enquiry and cross-examined the witnesses who gave evidence against him.
The Deputy Superintendent of Police then submitted a report of his enquiry to the Superintendent of Police. The Superintendent of Police then asked the applicant to say whether he had any objection to make to the enquiry conducted by the Deputy Superintendent of Police. The applicant was, however not supplied with any copy of the report which the Deputy Superintendent of Police submitted to the Superintendent of Police. In reply the applicant said before the Superintendent of Police that the record of the abortive proceedings initiated by the Anti-Corruption. Department on a complaint of Doulatsingh against him should also be perused.
The Superintendent of Police then gave his own report to the Deputy Inspector General Of Police recommending that the petitioner should be dismissed. The Deputy Inspector General of Police then forwarded a copy of the findings of the Superintendent of Police, Ujjain, to the applicant and asked him to file his reply within six days showing cause why he should not be dismiss ed. In the order of dismissal recorded by the Deputy Inspector General of Police a reference was made to the previous bad record of the applicant and to a complaint received against him in an opium case. The petitioner was also not given copies of the statements of witnesses who gave evidence against him before the Deputy Superintendent of Police.
12. From the above facts, it is plain that the petitioner was not given a reasonable opportunity to meet the charges against him. A person against whom a departmental enquiry is held is entitled to receive copies of depositions and reports of enquiry leading to the charges and failure to give such copies which are necessary for making a proper defence would vitiate an order of dismissal or removal of the civil servant. The applicant was entitled to receive a copy of the report which the Deputy Superintendent of Police gave to the Superintendent of Police.
Without that report he could not clearly state his objections to the enquiry held by and the conclusions arrived at by the Deputy Superintendent of Police. Again by merely forwarding the report of the Superintendent of Police and asking the applicant to show cause why he should not be dismissed, the applicant cannot be said to have been intimated the conclusions which the Deputy Inspector General of Police himself formed as to the charges against the applicant and the grounds on which the punishment of dismissal was provisionally determined by him. The present case is similar to the case of Krishnarao v. State, Misc. Petn. No. 56 of 1953. decided by this Court on 29th July, 1953 (J), where a civil servant was suspended from service and four departmental enquiries were started against him.
On completion of the enquiries by the Deputy Commissioner, the State Government forwarded to the civil servant the reports of the Deputy Commissioner calling upon him to show cause why he should not be dismissed from service. The notice did not make mention of the decision of the State Government on the different charges nor did it specify on which of the charges the action of dismissal was provisionally decided upon.
Ultimately the Government accepted the findings of the Deputy Commissioner and dismissed the petitioner from service. On these facts it was held by a Division Bench of this Court, presided over by Sinha C. J. (as he then was), that the findings of the Deputy Commissioner who made the enquiry and submitted report could not be considered to be decisions of the State Government; that unless the petitioner was made aware of the charges held to be proved and punishment on each of the charges indicated, he could not effectively put up his defence: that, therefore, the dismissal of the petitioner was contrary to Article 311(2) of the Constitution, Ramlakhman v. State of M.P.. 1954 Nag LJ (NRC) 28 (K).
There is no distinction between the present case and the case of Krishnarao and following the decision in Krishnarao's case it must be held that the petitioner was not given a reasonable opportunity of meeting the charges against him. The order of dismissal passed by the Deputy Inspector General of Police is vitiated also by the reference therein to the applicant's record of past service and to a complaint received against him in an opium case.
The applicant was never informed of the fact that the record of his past service and previous complaint against him would be taken into account at the time of considering the punishment to be imposed upon him. This should have been done in order to enable the applicant to take a proper defence against the proposed action of dismissal. No doubt competent authorities are entitled to take into consideration the record of the past service of civil servants in order to determine the appropriate punishment.
But before taking this into consideration the civil servant must be apprised of the record of his past service and of the fact that it would be taken into account to decide the question of punishment. In Gopalrao v. State Government of Madhya Pradesh, AIR 1954 Nag 90 (L), the question in what circumstances the record of a civil servant's past services can be taken into account at the time of determining the punishment consequential to the establishment of a charge against, him was considered end it was held:
'If the civil servant is not at all apprised of the record of his past service, nor is he informed that it will be taken into account in order to decide the question of punishment, he cannot be deemed to have been given a reasonable opportunity to show cause against the proposed action. Normally, the question of punishment is linked up with the gravity of the charge, and the penalty that is inflicted is proportionate to the guilt. Where the charge is trivial and prima facie merits only a minor penalty, a civil servant may not even care to defend himself in the belief that only such punishment as would be commensurate with his guilt will be visited on him.
In such a case, even if in the show-cause notice a more serious punishment is indicated than what the finding of guilt warrants, he cannot be left to guessing for himself what other possible reasons have impelled the proposed action. It is not, therefore, sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are supported by the record of service of the civil servant concerned. In a case where these factors do not form part of any specific charge and do not otherwise figure in the departmental enquiry, it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposed action.'
13. Taking into consideration all the features stated above of the enquiry held against the applicant, it is manifest to us that the petitioner was not given a reasonable opportunity to meet the charges against him and the order of dismissal made by the Deputy Inspector General of Police is bad on that ground also.
14. For all these reasons, we allow this application and direct the non-applicants not to give any effect to the order dated 31th July, 1.954, of the Deputy Inspector General of Police, Southern Range, Madhya Bharat dismissing the petitioner Ramchandra Gopalrao Munshi from service. The applicant shall get his costs from the opponents. Counsel's fee is fixed at Rs. 100.
Samvatsar, J.
15. I entirely agree with the view expressed by mv learned brother Dixit J. During the course of the argument a reference was made to the decision of the Madhya Bharat High Court in 1956 Madh-B LJ 561: (AIR 1956 Madh-B 257) (F) and 1956 Madh-B LJ 292: (AIR 1956 Madh-B 259) (G), in support of the contention that that High Court had followed the view expressed by the Rajasthan High Court in AIR 1954 Raj 207 (E). In none of these cases any definite opinion was expressed regarding the view taken by the Rajasthan HighCourt as the decisions in those cases turned on different points. In Abid Mohammad's case thereis an observation that in Mangalsingh's case it is held that the provisions of Article 311 of the Constitution cannot be invoked where the initial appointment was made prior to the Constitution bythe authority of an Indian State. This observation was not strictly warranted by the actual decision of that case and in none of these two cases there was any occasion to discuss the view expressed by the learned Judges of the Rajasthan High Court in Sobhagmal's case. In my opinionit cannot be said that the Madhya Bharat High Court had in Mangalsingh's case, agreed with theview expressed by the Rajasthan High Court in Sobhagmal's case (E).