Pandey, J.
1. The petitioner, who was removed from service, has challenged the various orders passed in regard to him, on the following grounds :
(i) The order of suspension dated 24 Sep-tember 1954 operating retrospectively from 30 November 1950 is bad.
(ii) The penalty of removal from service is not one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, and could not be awarded.
(iii) Suspension is one of the punishment enumerated in Rule 12 of the Home Guards-Rules, 1947. The petitioner was in suspension from 30 November 1950 to 11 June 1956. Since the petitioner was already suspended as a measure of punishment, he could not be punished twice for the same fault by removing him from service.
(iv) The petitioner's appeal against removal from service was pending before the Governor of Madhya Pradesh on 1 November 1956 when the States were reorganised. Since the matter related to property belonging to the Home Guards Organisation at Nagpur and Kamptee now in the State of Bombay, only the Governor of that State was competent to hear and dispose of the petitioner's appeal.
(v) in the appeal filed by the petitioner, he specifically prayed that he should be given a personal hearing. This was denied to him.
(vi) The punishment awarded, being excessive and unreasonable, should be relieved against because the petitioner's suspension for over 5 years was not duly taken into account.
2. On the first two grounds, I agree with the opinion expressed by my learned brother Golvalker, J. in paragraphs 7 and 8 of the order proposed by him.
3. In regard to the third ground, I am of opinion that the petitioner has not been punished more than once. It is true that, on 30 November 1950, the General Officer Commanding, Home Guards, passed an order suspending the petitioner and directing his confinement to barracks but, as admitted by the petitioner himself, it was cancelled soon afterwards and thereupon, on the same day, he submitted his resignation which he subsequently withdrew.
Since this was not argued to be a punishment, nothing further need be said about it. It was, however, urged that the suspension from 30 November 1950 to 11 June 1956 should itself be regarded as a separate punishment within, the meaning of Rule 12 of the Home Guards Rules, 1947. By an order of the State Government dated 21 December 1950, the petitioner was suspended with effect from 30 November 1950 pending the result of the departmental enquiry ordered against him.
Again, when the earlier order of removal of the petitioner from service dated 26 June 1951 was set aside by the High Court on 31 August 1954, the State Government, by a fresh, order dated 24 September 1954, decided to continue him 'under suspension with effect from 30th November 1950 to enable them to hold a proper enquiry against him'. The order of suspension in this case was passed in order to enable a proper departmental enquiry to be held against the petitioner. It was not a substantive punishment inflicted after he was adjudged to be guilty of a fault. It was like the one in the Supreme Court case of Om Prakash Gupta v. State of Uttar Pradesh, 1955-2 SCR 391 : ((S) AIR 1955 SC 600) where their Lordships observed :
'The order of suspension made against the appellant was clearly one made pending an enquiry. It certainly was not a penalty imposed after an enquiry.'.
That, being so, the contention that the petitioner was punished twice for the same fault is without any basis.
4. The fourth ground is also clearly untenable. Assuming that the order of removal of the petitioner from service is liable to be quashed, he would, in the absence of any order of the Central Government finally allotting his services to the Bombay State under Sub-section (3) of Section 115 of the States Reorganisation Act, 1956 (37 of 1956), be deemed to be, under subsection (2) of that section, serving under the principal successor State, which admittedly is, in this case, the new State of Madhya Pradesh. In this view, the petitioner's application for review under Rule 13(2) of the Home Guards Rules 1947, was properly disposed of by the State Government.
5. The next ground is that the petitioner was not given a personal hearing before his application for review was dismissed. There is no provision in Rule 13(2) of the Home Guards Rules, 1947, for a personal hearing and the petitioner was disentitled to such a hearing in support of his review application.
6. The last ground is that the punishment awarded is excessive and unreasonable and should be relieved against. It is well settled that the jurisdiction of this Court, acting under Article 226 of the Constitution, does not enable it to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned or decide what the proper view to be taken is or what punishment may reasonably be awarded. That being so, there can be no interference with the order of removal from service on the ground that, in the circumstances of this case, it Was not merited.
7. In considering whether the constitutional requirements under Article 311(2) of the Constitution were fulfilled, my learned brother Golvalker, J. has taken into account two other matters appearing from the record, although these were neither raised in the answer to the show cause notice or in the application for review or even in the grounds of the petition before us. Reliance has been placed upon State of Bombay v. Gajanan Mahadeo, AIR 1954 Bom 351 for the view that where the protection available under Article 311(2) is in fact not given to a civil servant, the order passed will be struck down even. if he did not make a grievance of it before the authority making the enquiry or awarding the punishment.
The facts of that case are clearly distinguishable because there the civil servant had no opportunity to cross-examine the most material witness and the finding against the civil servant! was based on the ex parte statement of that witness. Secondly, a new charge was incorporated in the show cause notice when no enquiry had been held in respect of that charge. It is, therefore, obvious that it can have no application to the facts of the instant case. It is well settled that, although the provisions of Article 311(2) are mandatory, they are meant for the benefit of the civil servant and he is entitled to waive the protection thereby afforded. In Vellayan Chettiar v. Govt. of Province of Madras, AIR 1947 PC 197, Lord Simonds observed :
'There is no inconsistency between the propositions that the provisions of the section are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided.'
So where a civil servant, who had the right to continue in service till the age of 60 and who could not be retired except on the ground of inefficiency, waived that protection and retired at his own instance before attaining the age of superannuation, he cannot afterwards be heard to say that the protection afforded by Article 311(2) was denied to him : Jai Ram v. Union of India, AIR 1954 SC 584. Similarly, where a civil servant was afforded a reasonable opportunity at! the second stage but he failed to avail himself of it, it is not open to him to subsequently say that the requirements of Article 311(2) were not satisfied : Joseph John v. State of Travancore-Cochin, (S) AIR 1955 SC 160.
The question material in such cases is whether a civil servant, who has not waived the protection given him under Article 311(2) was given a reasonable opportunity to show cause in the sense contemplated by that provision and interpreted by the Supreme Court in Khem Chand v. Union of India, AIR 1958 SC 300, Here it is not disputed that the petitioner had an adequate opportunity of defending himself upto the stage when the enquiry officer submitted his report to the State Government.
8. It has been assumed perhaps on the basis of the show cause notice that the petitioner was not in fact heard before that notice was issued without considering whether the petitioner was denied such a hearing. In my opinion, these are questions of fact which, not having been raised in the petition, cannot be considered. Also, with all due respect, I cannot agree, On a wider ground, that a personal hearing of the petitioner before issuing the show cause notice was necessary.
There is nothing in AIR 1954 Bom 351 {cit. sup.), Jogarao v. State of Madras, (S) AIR 1957 Andh Pra 197 and The State of Andhra v. T. Ramayya Suri, AIR 1957 Andh Pra 370 to suggest that such personal hearing is contemplated by Article 311(2). Indeed, these cases themselves indicate that even where the authority competent to punish takes a view different from that of the enquiry officer on one or more of the charges, all that is required is that the view together with the reasons therefor should be set out in the show cause notice.
Perhaps it is conceived that since, in this case, the authority issuing the show cause notice was different from the one which held the enquiry, an opportunity should have been given to the petitioner to be heard even before accepting the findings provisionally. There is no principle or authority to support that view, which, in effect amounts to laying down that the petitioner should have been given an opportunity to show cause why a notice to show cause should not be issued. In Hukum Chand Malhotra v. Union of India, AIR 1959 SC 536, their Lordships of the Supreme Court discountenanced a suggestion, which implied a third show cause notice as being against the very purpose for which the second show cause notice was issued.
9. In the instant case, the relevant show cause notice is Annexure Q dated 23 November 1955 whereby the petitioner was intimated that the State Government were inclined to concur in the findings of the enquiry officer and bad provisionally reached the conclusion that both the charges were proved, that the charges were so serious that the retention of the petitioner in service was not in. the interests of Horne Guards Organisation and that they provisionally proposed to impose the punishment of dismissal from service.
The petitioner was also thereby called upon to show cause why the proposed punishment should not be inflicted upon him. This was the second opportunity under Article 311(2) as contemplated in the case of AIR 1958 SC 300. By availing of this opportunity, the petitioner was entitled not only to show cause against the proposed punishment but also to urge all that he had to say against the findings arrived at in the enquiry and provisionally accepted by the State Government.
To regard this statutory opportunity as inadequate on the ground that it could not have the same force which a personal hearing before the provisional conclusion of the punishing authority would have had is to lay down, as I have said before, the necessity of a notice to show cause why a notice to show cause should not be issued. I am clearly o opinion that this is not contemplated by Article 311(2). Indeed, a 'reasonable opportunity' contemplated by that provision does not include a personal hearing.
10. In the instant case, the enquiry officer found that both the charges levelled against the petitioner were proved. One of these related to his failure to maintain proper accounts. According to the second charge, he caused, by his culpable negligence in not taking proper care of the stores in his charge, loss of stores of the value of Rs. 3,975/11/6. The enquiry officer found the second charge proved on the basis of his facts admitted by the petitioner, namely, the stores received by him from the Headquarter Stores, and those that were issued by him.
On the basis of a receipt for Rs. 764/1/-dated 17 November 1949, the petitioner put forward an extenuating circumstance. The enquiry officer himself rejected it 'as a very suspicious document'. The only other extenuating cir-cumstance. so far as the second charge is concerned, was the evidence of two lascars; Harichand D. W. 2 and Hussaini D. W. 3, to the effect that the petitioner allowed them to handle and issue stores. A responsible officer in charge of valuable stores cannot explain away the shortage found in the stores entrusted to him by trying to show that he had allowed his subordinates to deal with the stores.
Even if he did so, he will still be responsible for culpable, that is to say, punishable neglect causing loss. That is why the enquiry officer referred to it only as an extenuating circumstance. In view of that opinion of the enquiry officer-it could not be said that he had really exonerated the petitioner of the charge of culpable neglect causing loss of property or that the State Gov-ernment, in accepting the finding and regarding that charge to be serious, took a different view of that charge.
That being so, it would not be right to spell out a difference between them in regard to that charge and make a grievance which is not to be found in the reply to the show cause notice or even in the grounds raised in support of the petition. As I have shown, there is no basis for it in the facts of the case. Indeed it was no part of the duty of the enquiry officer to make any recommendation about punishment or to point out circumstances in support thereof.
11. It is no doubt true that the State Government did not accept some of the extenuating circumstances, which found favour with the enquiry officer in regard to the failure of the petitioner to maintain proper accounts, and imposed upon him the penalty of removal from service. In my opinion, the action taken against the petitioner cannot be assailed on that ground. The reason is this. There is a distinction between the facts constituting the charge and extenuating circumstances.
Once the charges are established, the delinquent civil servant has to convince the punishing authority that there were extenuating circumstances which would not justify the punishment proposed by him. If that authority does not accept either wholly or in part the extenuating circumstances as it is undoubtedly entitled to do, it is not open to the civil servant to contend that he had no reasonable opportunity of showing that the punishment was not merited.
This is the more so when, as in this case, the petitioner was clearly intimated that the charges were serious and it was proposed to dismiss him from service. It is hardly necessary to stress that there is no denial of a reasonable opportunity to show cause within the meaning of Article 311(2) if the punishing authority, without considering any material outside the record, does not accept any extenuating circumstances urged in mitigation of the delinquency of the civil servant. In my opinion, Gopalrao v. State Govt. of Madhya Pradesh, AIR 1954 Nag 90 affords no assistance to the petitioner because his past record was not taken into consideration to award to him higher punishment.
12. The petitioner's reply to the show cause notice shows that he substantially accepted that the charges were proved and urged certain circumstances in mitigation 'for taking a sympathetic view in the exceptional circumstances referred to' by him. However strongly it may be felt that a different view of those circumstances should have been taken and the extreme penalty should not have been imposed, it cannot be overlooked that these questions relating to the merits of the case are not within the purview of the jurisdiction exercised by this Court under Article 226 of the Constitution.
13. Having regard to the view I have taken of this case, I would dismiss the petition with this exception that I would quash the order of suspension dated 24th September 1954 only in so far as it purported to operate retrospectively without affecting its prospective operation. In the special circumstances of this case, I would also direct that the parties shall bear their own costs and that the security deposited by the petitioner shall be refunded to him.
Golvalker, J.
14. This petition under under Article 226 of the Constitution is mainly directed against an order of the State Government dated 11th June 1956 whereby the petitioner, C. A. D'Souza, Quarter Master Home Guards, was removed from service. Since his application for a review of that order was dismissed on 2nd November 1957, he has also challenged the order passed in review. Previously he had been suspended on 30th November 1950 and later on removed from service by an order dated 26th June 1951. But that order of removal was quashed by this Court in Miscellaneous Petition No. 211 of 1954 decided on 31st August 1954. Even so, another order dated 24th September 1954 suspending him with retrospective effect from 30th November 1950 was again passed. The fresh suspension order, in so far as it was retro-active in operation, is also challenged in this petition.
15. There is no dispute about the main facts of the case which may be briefly stated. On 22nd September 1947, the petitioner was appointed as an Officer Instructor of Home Guards in the organisation formed under the Central Provinces and Berar Home Guards Act, 1947. He was given the rank of a Gazetted Officer and, sometime in May 1948, his designation was retrospectively changed to Quarter Master. It is not disputed that, when the petitioner was appointed, the Home Guards organisation was in the stage of infancy and he acquitted himself very well in the discharge of his duties which took him to different places where the training centres were situated. It is accepted that the petitioner was also in charge of stores of the tour training centres located at various places and he had to manage the work with inadequate staff. Till the middle of the year 1950, there was no complaint against him.
16. In the year 1950, irregularities and discrepancies in the accounts kept at the various training centres were brought to the notice of Government. With a view to finding out the person or persons responsible therefor, a Court of Enquiry was constituted. On the report of the said Court of Enquiry, the petitioner was suspended on. 30th November 1950 and was called upon to make good the loss of Rs. 3,012/11/6 suffered in the stores due to his alleged negligence which he did on the same day.
Even so, he was removed from service by an order dated 26th June 1951. However, as indicated earlier, that order was set aside by this Court on the ground that it offended against Article 311(2) of the Constitution (Annexure M). Thereafter, although the petitioner was reinstated from 26th June 1951, he was again suspended under a fresh order operating retrospectively from 30th November 1950 (Annexure N).
17. Shri P. C. Rai, General Officer Commanding, Home Guards, was appointed to hold a departmental enquiry on the charges framed against the petitioner who admittedly had an adequate opportunity of defending himself. The Enquiry Officer, while holding that the petitioner was responsible for the loss caused in the stores, found that it was not due to any misappropriation committed by the petitioner or any other act showing his moral turpitude. It was also observed that the work entrusted to the petitioner was-very heavy and onerous in a situation in which the staff provided to him was meagre and not ot much assistance to him.
The loss was attributed to the unsatisfactory state of accounts maintained in the training centres evidently because the whole organisation was not functioning in an organised and systematic manner. This state of affairs also prevailed in all the districts and the State Government had to condone, by a general order, the omission to maintain accounts in the proper form in the offices of the Company Commandants (Annexure P). In the view that he took of the 'matter, the Enquiry Officer recommended reduction of the petitioner in rank for a period of two years.
18. On receipt of report of the Enquiry Officer, the State Government referred the case of the petitioner to the Public Service Commission, who, while agreeing that the charges were fully established, recommended that, in the circumstances of the case, censure would be sufficient punishment.
19. Against the report of the Enquiry Offi-cer and the advice of the Public Service Commission, the State Government accepted the findings, took a serious view of the matter, provisionally decided that the petitioner should be dismissed from service and accordingly served upon him a notice to show cause against the proposed punishment. After the petitioner submitted his representation in answer to that notice, he was removed from service by an order of the State Government dated 11th June, 1956. His application for a review of that order was also dismissed on 2nd November, 1957 without giving to him, as requested, an opportunity to be heard in person. Hence this petition by which he has challenged the suspension order as also the order of his removal from service passed in. his ease.
20. In regard to the retroactive order of suspension passed on 24th September, 1954, it would appear from the order of this Court passed in Miscellaneous Petition No. 211 of 1954 dated 31st August, 1954 that only the final order of removal of the petitioner from service was set aside for the reason that it contravened Article 311(2) of the Constitution in that no reasonable opportunity was afforded to him to show cause against the action that was ultimately taken against him. That order did not have the effect of quashing the enquiry against the petitioner. If so, the order of suspension made pending the enquiry, to facilitate which it was passed, would appear to have continued. The matter is however concluded by the view taken by the Supreme Court in 1955-2 SCR 391 : ((S) AIR 1955 SC 600) where their Lordships laid down the law as follows :
'As a result of the enquiry an order of dismissal by way of penalty had been passed against the appellant. With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension, which then ceased to exist..... The subsequent declaration by a Civil Court that the order of dismissal was illegal did not revive an order of suspension which did not exist'.
The present case is also not one of mere revival of the suspension order. Here it was recognised that the earlier order of suspension ceased to exist so soon as the order of removal from service was passed and therefore a fresh order was passed suspending the petitioner with retrospective effect. I am clearly of opinion that the order, in so far as it was retrospective in operation, cannot be sustained and must be quashed.
21. I shall next consider whether the penalty of removal from service, which is- not one of the punishments enumerated in Rule 12 or the Home Guards Rules framed under the Home Guards Act, 1947 (XV of 1947) could be awarded to the petitioner. Although it is by no means clear whether the petitioner was an officer governed by those Rules, I would assume that the Rule applied to this case. Two of the punishments specified in Rule 12 ibid are reduction in rank and dismissal. These were the two punishments regarded as serious enough to merit statutory safeguards provided in Section 240 of the Government of India Act, 1935, because dismissal included removal from service.
The only distinction between dismissal proper and dismissal in the shape of removal from service was that the former ordinarily disqualified from future employment but the latter did not do so. In the pre-Constitution Home Guards Act of 1947, I think that the word dismissal is comprehensive enough to include removal from service : AIR 1958 SC 300. In this view, the State Government was competent to award to the petitioner the less serious penalty of removal from service.
22. Although the' State could award the lesser penalty of removal from service yet in the circumstances of the case that order in my view is not sustainable and is liable to be quashed as I will presently show hereafter.
23. It cannot be disputed that protection guaranteed under the Constitution to a Government servant casts a corresponding obligation upon the State to discharge that obligation irrespective of whether the protection is claimed or not claimed by the servant. If the material on record shows that reasonable opportunity was not given, the order of dismissal must be set aside and the Court cannot be influenced by the consideration that the dismissed servant did not ask for a reasonable opportunity at the proper time.
I am fortified in this view by die decision of the High Court of Bombay in the case of AIR 1954 Bom 351. The petitioner before us, it cannot be disputed, was not heard by the dismissing authority before issuing the show cause notice dated 23rd November, 1955 (Annexure Q). This, in my opinion, was absolutely necessary as the enquiry was held by an authority different from the dismissing authority and it was before the dismissing authority that the servant concerned should have been afforded an opportunity to show that the materials collected by the enquiring officer made out no case against him to find him guilty of the offence with which he was charged.
The enquiry officer was merely deputed to collect information on the subject matter of the enquiry and the dismissing authority alone was to consider the same and was to be satisfied one way or the other as to the conduct of the petitioner. The report of the enquiring officer was merely an opinion given to the dismissing authority and how that opinion was dealt with by the dismissing authority I shall consider hereafter. But before I proceed to deal with the said opinion I may usefully reproduce the allegations on the basis of which he was charged for having committed an offence within the meaning of Rule 11 (8) of the Home Guards Rules :
1(a) That he failed to maintain the vouchers and ledgers properly between November 1947 and January 1950 and the stock verification Board;
(b) that he further failed to keep proper account of the cost of clothing issued on credit to the officers specified below and did not effect recovery of the amounts due from them.
2. He caused loss of the following articles by culpable negligence in not taking proper care of the stores in his charge. As a result of his negligence the following articles were found deficient, the cost of which amounting to Rs. 3975/11/0 was however recovered from him;
and thereby committed an offence against the force under Rule 11 (8) of the C.P. and Berar Home Guards Rules 1947. The Sub-rule (8) reads as under :
'Wilfully injures or by culpable neglect causes loss or injury to any such property as is men-tioned in Clause (7)'.
The enquiring officer observed as under after the enquiry :
'I now examine the extenuating circumstances pleaded by the accused, and the evidence thereon. It is undoubtedly true that the accused was the first officer to take over the work of the Quarter Master at the Training Centre. It is also true that he was for a period of about 7 months from November, 1947 to June, 1948 looking after the stores of both the Headquarters and the training centre. Due weight is also to be given to the fact that this department was then in its infancy and the work was in a most unsettled state. The paucity of staff pleaded by the accused is also to a certain extent partly true. The Training Centre was also in the beginning scattered in three to four different centres (one of them being Kamptee) and the accused had undoubtedly to visit these places as Quarter Master and shoulder a very onerous task. Shri J. W. Rodrigues, Defence Witness 1 has corroborated this statement. Harichand Defence Witness 2 and Hussain Defence Witness 3 who were then lascars have also stated that many a time they were allowed to make issues themselves. Exhibit D-1 is a note written by Administrative Commandant of the Camp to the Commandant, Training Centre, pointing out the difficulties of the work of the 'Q' branch. He has even endorsed that the Office work mentioned in his note was not being carried out so far. Thus the 'Q' branch in the Training Centre was not functioning in an organised and systematic manner. Having experience of the Army, I can vouchsafe that the Quarter Master of a Unit has a very onerous job in setting up a new camp. Exhibit D-5 is a statement showing the staff position of the Quarter Masters Branch of the Training Centre. This would show that the assistance to the accused was rather meagre.
Shri J. W. Rodrigues, Defence Witness has also stated in his evidence that the amount of work that the accused was required to do was rather very heavy. The number of ceremonial parades held had also taken away a lot of the time of the accused. I am, therefore, inclined to take a lenient view on the state of affairs that existed and were responsible for the loss and the unsatisfactory state of accounts maintained. I ana guided in this fact that this was not only so in the Home Guards Training Centre but also in all the districts and the Government were ultimately pleased to condone the non-maintenance of accounts in proper form in the offices of the Company Commandants vide their memorandum No. 2889-2344-IV dated 4th May, 1953 (copy enclosed).
In conclusion I hold that the charges are fully proved but there are good extenuating circumstances for taking a lenient view especially in view of the fact that none of the charges relate to any act of misappropriation or show any moral turpitude on the part of the accused. The fact that the accused is under suspension from November 1950 is also to be given due weight. I feel that reduction of the accused from his post of Quarter Master to that of Company Commandant for a period of two years would serve the ends of justice and I recommend accordingly'.
What the enquiring officer called as extenuating circumstances were really the factors which conclusively negatived the offence contemplated by Sub-rule (8) and hence on the finding to mean that there was no mens rea on the part of the petitioner it could not be said that charges were established against Mm although the enquiring officer opined otherwise. It is just like a judge holding an accused guilty of murder without the evidence establishing the necessary ingredients to bring his act of killing within the definition of culpable homicide amounting to murder.
Although the dismissing authority to whom the report of the enquiry was forwarded felt inclined to concur in the findings of the enquiring officer yet the charges in its opinion were so serious that retention of the petitioner in service was not considered to be desirable and hence his dismissal was provisionally proposed and accordingly he was called upon to show cause against the proposed punishment. I am unable to understand how and in what manner the State Government (dismissing authority) had concurred in the said findings.
The enquiring officer never found the tacts any way serious at all. Therefore without stating its own reasons for viewing the facts seriously, mere observations to that effect in the 1st show cause notice were definitely misleading. The petitioner was at a loss to understand how the State felt inclined to concur with the findings. In my opinion it was all the more necessary that he should have been expressly and in unequivocal terms informed of the reasons which had impelled the State Government to view the facts seriously notwithstanding absence of 'mens rea' expressly found by the enquiring officer.
In order to afford a reasonable opportunity to the petitioner and not to render it merely illusory the State Government should have heard him after receipt of the report before forming any opinion one way or the other especially when a serious view quite contrary to that of the enquiring officer was taken. In the peculiar circumstances of the case the dismissing authority should have beard the petitioner over again while considering the materials collected by the enquiring officer and his own observations thereon and even before coming to any provisional decision.
I never mean to suggest that the whole process of the enquiry should have been repeated. Far, it is well settled that after undergoing through an enquiry duly held, the servant concerned is not entitled to repetition of that stages Over again when the enquiry report and the evidence collected is placed before the dismissing authority. But nevertheless where the dismissing authority is different from the enquiring authority and does not truly agree with the views of the enquiring officer but vitally differs trom him, it is incumbent on it to call upon the servant concerned to show cause why a different and adverse view of the evidence be not taken.
It was not so done and straightway a show cause notice (Annexure Q) was issued containing the bald observation that the matter was viewed very seriously. I am fortified in this by the view expressed in the pasc of AIR 1957 Andh. Pra 370 which in turn relies on (S) AIR 1957 Andh Pra 197 and AIR 1954 Bom 351. It is well settled that in reply to the notice to show cause against the proposed punishment, the servant is entitled to challenge the correctness and propriety of the findings recorded by the enquiry-ing officer against him and also urge alternatively that the punishment proposed is unduly severe.
In the instant case no opportunity to show why the matter could be viewed seriously was at all afforded to the petitioner. Since the State intended to differ from rather than concur with the enquiring officer such an opportunity was absolutely essential. It cannot be disputed that the enquiry right from the time charges are framed, enquired into, considered and deliberated upon and upto the date of final decision is one enquiry held in different stages and there would be cases where reasonable opportunity at more than one stage would be requisite and necessary.
Two important stages in the minimum where such an opportunity has to be afforded without fail, have been now finally laid down by the Supreme Court in its latest pronouncement in the case of AIR 1958 SC 300 and at the same time it has also accepted that reasonable opportunity at more than one stage so as to make it truly reasonable, may have to be afforded in certain cases.
24. If it were to be urged that the petitioner even if he had no such prior opportunity yet he could, in reply to the show cause notice, avail of that constitutional right to persuade the State Government to take the same view as that taken by the enquiring officer. But in my view, it would not have had the same force as it would have had prior to the State taking the decision to view the matter seriously differing from the enquiring officer.
The petitioner, it should be noted, had to satisfy ultimately the dismissing authority and he could do it even without taking any part in the fact finding enquiry. In the view I take of the peculiar situation it was a very serious omission on the part of the dismissing authority not to hear the petitioner before issuing the show cause notice. Not only that but there was a further infringement on its part while; considering the submissions of the petitioner in reply to the show cause notice. Altogether a new case against the petitioner was made out to reject his submissions as unworthy of any credit or any value.'
The enquiring officer had found that the irregularity in the maintenance of the accounts and the consequent loss of property was inevitable in the state of affairs then prevailing in the Home Guards Organisation, It was also so inevitable that even the Government had to come out as late as in 1953 with an order dated 4-5-1953 (Annexure P) condoning the same at the offices of the Company Commandants Home-Guards in general and in the office of the Company Commandant, Home Guards, Akola, in particular during the period from the very inception of the Home Guards Organisation upto the end of 1951-52. Nevertheless the State Government in its order dated 11-6-1956 (Annexure S) removing the petitioner from service observed that :
'his statement that he had to perform numerous duties and the Training Centre was understaffed has no force. There was never a complaint of such kind previously and the evidence on record does not support his statement. Due to his gross carelessness and negligence, a loss of articles worth Rs. 3,013/11/6, occurred. Even if for a moment the plea of excessive work is accepted, it was the duty of Shri D'Souza to bring the matter to the notice of his superiors so that adequate measures could be taken to prevent the serious state of affairs disclosed by the charges which have been proved against Shri D'Souza. As it is, the State Government have no doubt that the plea put forward is an afterthought designed to escape the consequences of negligence and carelessness which has been proved in the departmental enquiry'.
The petitioner did not appear to have questioned either in the enquiry or by the State Government as to why he had not timely brought that state of affairs to the notice of the higher authorities. It was on the face of it a very peculiar blame laid at his door as if it was his duty and not that of the Chief of the organisation to do so, fully aware of the same as he must have been.
His explanation or whatever he had to urge thereon should have been called before criticising his plea as afterthought. A reasonable opportunity to show cause against the action pro-posed to be taken includes an opportunity to challenge the correctness of the reasons for taking the proposed action and, hence it is very necessary for the authority to state in its order the reasons for coming to that conclusion (vide (S) AIR 1957 Andh Pra 197). In a similar situation a Division Bench of this Court, in the case of AIR 1954 Nag 90 has observed that :
'factors which 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'.
Then the State Government or the Chief Secretary who chose to append his signatures to the aforesaid order never cared to see for itself the fallacy of the reasoning therein. The defects in the organisation were, to the knowledge of the State Government, inherently so much beyond any remedy that the State Government itself had to come out as late as on 4-5-1953 with an order of condonation of those irregularities from the very inception of the organisation (Annexure P).
Not only that but the General Officer Commanding of the organisation (who himself was appointed to scrutinise and examine the conduct of the petitioner) was asked to issue comprehensive instructions to his subordinate offices in the matter of maintenance of accounts on correct lines and to see that recurrence of such irregularities are avoided in future. This conclusively, therefore, showed that the irregularities ana losses, now made much of to view them seriously as against the petitioner, were inevitable and no one could possibly be blamed for it.
If at all any one could be held guilty, they were the authorities at the helm of the organisation and not persons in the subordinate ranks like the petitioner. It cannot possibly be suggested that the General Officer Commanding was never aware of these defects and irregularities all those days. He must have been fully aware of them and must have also brought them to the notice of the higher authorities but in the state of affairs then prevailing as also the higher authorities must have found themselves helpless in the matter.
In my opinion, therefore, the rejection of the submissions of the petitioner on this new ground not put before him till that date but made use of to reinforce the provisional decision of his removal from service, amounted to denial of reasonable opportunity as contemplated and guaranteed under Article 311 of the Constitution. If the petitioner had been afforded that opportunity at the appropriate stage, I believe, the authorities would have realised that it was not an afterthought plea and that the acts of mere omission on his part did not amount to any offence under Rule 11 (8) of the C. P. and Berar Home Guards Rules, 1947.
25. It cannot be urged that it was a mere technical omission at that stage. In my view it was a very vital stage. If infringements of constitutional injunctions are ignored by Courts of law on the ground that they are mere technicalities, such guarantees in course of time are likely to become as an American Judge puts it, 'a mere rope of sand'. A perusal of the show cause notice in the instant case {Annexure Q) would show that the authority issued it mechanically as a matter of routine without genuinely applying its mind to the report of the enquiring officer.
It was just done to satisfy the procedural requirements of the constitutional guarantee and as a step prior to the issue of final order of removal. Not only that but it was too vague and without any data or materials therein to show why the facts found by the enquiring officer were being viewed so seriously. The subsequent final order of removal from service on the grounds never urged before, in my view, was nothing but a fraud on the constitutional guarantee and almost amounted to stabbing in tbe back of the petitioner and that too after a lapse of nearly six years from the date of his suspension and after fully recovering the loss from him without even raising any finger of protest against the authorities higher over him and equally guilty of negligence if at all there was any.
26. In the view, therefore, that I have taken, I feel no compunction in holding that the order of removal of the petitioner from service was bad and in contravention of the provisions of Article 311 of the Constitution. I, therefore, direct that the same be and hereby is quashed.
27. As I have quashed the order of removal of the petitioner from service the question regarding severity of punishment awarded to the petitioner requires no consideration. Even otherwise this Court cannot interfere with the same in exercise of its. powers under Article 226 of the Constitution. Nevertheless I cannot remain a silent spectator without recording even my disapproval. Even after recovering to the last pie, the value of the loss suffered on account of alleged negligence of the petitioner and having condoned similar such negligence and irregularities in other offices of the organisation, it is really beyond my comprehension why the State Government decided to treat the case ot the petitioner differently.
No material was placed before us to show that there were similar complaints against the petitioner in the past requiring this time a drastic action against him. It was really a mockery of justice in awarding punishment of removal from service instead of dismissal with a view to make a show of having reconsidered its original provisional decision of dismissal. I shall not be, therefore, far from truth if one has a feeling that the removal of the petitioner from service at any cast bad long been an accomplished decision and the enquiry and the show cause notice were merely a formal observance of constitutional requirements.
28. In my opinion this petition should be allowed and the order of retrospective suspension as also the order of removal of the petitioner from service be quashed.
Dixit, C.J.
29. In this case the petitioner prays for the issue of a writ of certiorari for quashing the order of the Government dated the 11th June, 1956 removing him from service.
30. The petition was originally heard by Pandey and Golvalker JJ. As the learned Judges were divided in opinion on the point whether the petitioner was given a reasonable opportunity contemplated by Article 311(2) of the Constitution for defending himself against the charges levelled at him, the matter has come to me for decision. As this is the only point to be decided by me, I shall confine myself to such facts as have an immediate bearing upon it.
31. The petitioner was a Quarter Master, Home Guards. In 1950 a Court of Enquiry was constituted under the provisions of the Home Guards Act, 1947, to enquire into the accounts of the stock of articles of the training centres which were under the charge of the applicant. The enquiry revealed that there was a loss of about Rs. 3013-11-6. The petitioner was asked to make good the loss. He was also suspended. Subsequently, on 26th June, 1951 an order was passed by the Government removing him from service.
That order was quashed by this Court on 31st August. 1954 in M.P. No. 211 of 1954. The Government then passed an order on 24th September, 1954 reinstating the petitioner in service as from 26th June, 1951 and at the same time again suspending him as from 30th November, 1950 to enable the Government to hold a proper enquiry. Shri Rai, General Officer Commanding, Home Guards, then held an enquiry against the petitioner On charges which related to the failure to maintain property vouchers and ledgers during the period from November 1947 to January 1950, and to keep proper account of the cost of clothing issued on credit to certain persons and the loss of certain articles by culpable negligence.
All these charges were found to be estab-lished by the Enquiry Officer. He submitted his report to the Government adding the observation that there were 'good extenuating circumstances for taking a lenient view especially in view of the fact that none of the charges relate to any act of misappropriation or show any moral turpitude on the part of the accused'. The Enquiry Officer felt that it would serve the ends of justice if the petitioner were to be reduced from the post of Quarter Master to that of Company Commandant for a period of two years.
The State Government concurred in the findings of the Enquiry Officer. They, however, took a serious view of the charges found to be proved against the applicant and came to the tentative conclusion that the petitioner should be dismissed from service. Accordingly a notice to show cause was issued to the applicant on 23rd November, 1955 calling upon him to show cause why he should not be dismissed from service on the charges which had been found to be established by the Enquiry Officer.
Along with the notice a copy of the report of the Enquiry Officer was also furnished to the applicant. He was also informed that any representation that he would like to make would be taken into consideration and the Public Service Commission would be consulted before the passing of the final orders. The applicant submitted his reply to the show cause notice on the 17th December, 1955. Therein, while not disputing the correctness of the findings of the Enquiry Officer, the petitioner laid stress on the opinion the Enquiry Officer had formed about a lenient view being taken of the matter.
He emphasized that the charges were all ot technical nature and did not involve 'any act of misappropriation or moral turpitude'. The petitioner concluded his reply by imploring the Government to take 'a sympathetic view in the exceptional circumstances' stated in his reply. On receipt of the reply of the applicant, the Government consulted the Public Service Commission in the matter. The Commission also found the charges established against the petitioner and gave the advice that it would be sufficient to censure the petitioner.
After considering the reply of the petitioner, the opinion of the Commission as regards punishment, and the nature of the charges found to be proved, the Government found itself unable to accept the advice of the Commission and formed the view that though the charges did not show any moral turpitude on the part of the applicant, it was clear that he was extremely careless and negligent in the performance of his duties; that due to this a loss of Rs. 3013-11-6 was caused to the Government; and that in these circumstances dismissal would have been an ap-propriate punishment but considering the absence of moral turpitude the petitioner should be removed from service. Accordingly, disagreeing with the recommendation of the Public Service Commission in the matter of punishment, the State Government passed the impugned order removing the applicant from service.
31A. The learned Judges of the Division Bench felt some doubt as to whether the petitioner was governed by the C. P. and Berar Home Guards Act, 1947, and the rules framed thereunder. But as the enquiry against the applicant was held under those provisions and as the Government issued to the petitioner a notice to show cause under rule 12 (6) of the C. P. and Berar Home Guards Rules read with Article 311(2) of the Constitution, and, further, as the applicant himself did not raise any objection about the applicability of the said Act and rules to him, the learned Judges decided the matter on the assumption that the petitioner was governed by the Act and the rules.
I also do so. Now, Rule 11 (8) says that a person governed by the Act and the rules commits an offence against the force if he 'wilfully injures or by culpable neglect loses or causes injury to any such property as is mentioned in Clause (7)'. Rule 12 mentions dismissal as one of the punishments that may be imposed on a person found 'guilty of an offence specified in rule 11.
32. It was with regard to the offence mentioned in Rule 11 (8) that Golvalker J. formed the opinion that the petitioner did not have a reasonable opportunity as contemplated by article 311(2) of the Constitution of defending himself against the charge before the authority removing from service viz. the Government. In arriving at this conclusion, his reasoning was thus : that the finding of the Enquiry Officer that the charges were fully established with the rider that there were good extenuating circumstances for taking a lenient view of the matter and that the charges did not relate to any act of misappropriation or show any moral turpitude in fact 'negatived the offence contemplated by Sub-rule (8)'; and that when the Government concurred in these findings of the Enquiry Officer and yet found the charges serious enough to justify the imposition of the proposed punishment of dismissal the Government really reversed the findings of the Enquiry Officer and was, therefore in duty bound to give the reasons which impelled them to come to a different conclusion on the evidence on record and to decide upon the provisional punishment of dismissal. The learned Judge was of the view that after the submission of the report of the Enquiry Officer the petitioner should have been heard by the Government before the issue of the show cause notice on 23rd November, 1955 : He observed :
'In order to afford a reasonable opportunity to the petitioner and not to render it merely illusory the State Government should have heard him after receipt of the report before forming any opinion one way or the other especially when a serious view quite contrary to that of the en-quiring officer was taken. In the peculiar circumstances of the case the dismissing authority should have heard the petitioner over again while considering the materials collected by the enquiring officer and his own observations thereon and even before coming to any provisional decision. I never mean to suggest that the whole process of the enquiry should have been repeated. For, it is well settled that after undergoing through an enquiry duly held, the servant concerned is not entitled to repetition of that stages over again when the enquiry report and the evidence collected is placed before the dismissing authority. But nevertheless where the dismissing authority is different from the enquiring authority and does not truly agree with the views of the enquiring officer but vitally differs from him, it is incumbent on it to call upon the servant concerned to' show cause why a different and adverse view of the evidence be not taken. Tt was not so done and straightway a show cause notice (Annexure Q) was issued containing the bald observation that the matter was viewed very seriously.'
Support for this view was found by the learned Judge in the decisions in AIR 1957 Andh Pra 370, (S) AIR 1957 Andh Pra 197, AIR 1954 Bom 351. Golvalker, J. went on to say that Article 311(2) cast an obligation upon the State to give to the civil servant concerned 'a reasonable opportunity of showing cause against the proposed action' irrespective of the fact whether the civil servant himself claimed the protection.
33. Pandey, J. took a contrary view. He emphasized the distinction between the facts constituting tbe charge and the extenuating circumstances which had a bearing only on the punishment to be imposed. According to him, the applicant was given a full opportunity in the enquiry held by Shri Rai of defending himself against the charges; that he never complained before the Enquiry Officer or in his reply to the show cause notice that he did not have a reasonable opportunity of defending himself in the enquiry held by the Enquiry Officer; that no such ground had been raised in tbe petition under Article 226 itself; and that there was no principle or authority to support the view that after an enquiry where a civil servant had an opportunity of showing cause against the action proposed to be taken he was entitled to be heard by the authority competent to impose punishment before that authority issued a show cause notice to him under Article 311(2),
Pandey. J. referred to AIR 1959 SC 536 as a decision where the Supreme Court discountenanced a suggestion implying a third show cause notice 'as being against the very purpose for which the second show cause notice was issued'. He further held that tbe applicant could not as of right claim a personal hearing before the Government either before or after the issue of a show cause notice under Article 311(2); that he could waive the benefit of the protection under Article 311(2); (and that when the petitioner had a full opportunity of meeting the charges before the Enquiry Officer against which he never complained and when he failed to avail himself or the opportunity offered to him up to the issue ot notice under Article 311(2) on 23rd November 1955, he could not subsequently say that the requirements of Article 311 had not been satisfied. In support of this view, the learned Judge placed reliance on AIR 1947 PC 197, AIR 1954 SC 584 and (S) AIR 1955 SC 160.
34. In my judgment, the view expressed by Pandey, J. is the correct exposition of the matter. It is not tbe petitioner's case that he was not given an adequate opportunity of showing cause against the charges framed against him, before the Enquiry Officer. In fact, before the Enquiry Officer he was told what the charges levelled against him were and the allegations on which they were based; he was also given an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and thus the applicant was given an opportunity to deny his guilt and establish his innocence.
The Enquiry Officer found the charges fully established. He, however, made the recommendation that in view of the fact that the charges did not relate to any-act of misappropriation or show any moral turpitude on the part of the accused, be should : be dealt with leniently in the matter of punishment and that he should be reduced from the post of Quarter Master to that of Company Commandant for a period of two years. I am unable to agree with the opinion of Golvalker, J. that the 'extenuating circumstances stated by the Enquiry Officer altogether negatived the findings reached by him on the charges themselves'.
Rule 11(8) of the Home Guards Rules, 1947, makes a person governed by the rules guilty it he 'by culpable neglect loses or causes injury to any such property as is mentioned in Clause (7)'. Now, 'culpable negligence' as pointed out by Holloway, J. in In re Nidamarti Nagabhusha-nam, 7 Mad HCR 119(1) means acting without the consciousness that illegal or mischievous effects will follow, but in circumstances which show that the person concerned has not exercised the caution incumbent on him, and that if he had he would have had the consciousness; the imputability arises from the neglect of the civil duty of circumspection.
Now, a bare perusal of the report of the Enquiry Officer is sufficient to show that while finding that the petitioner had failed to maintain properly vouchers, ledgers and allowed property, belonging to the force to be lost by not taking proper care, he was inclined to think that all this happened because the department was in its infancy and in an disorganised state and that there was paucity of staff and the work which the petitioner was required to do was heavy.
This is unmistakably a finding that the applicant did not exercise the care and caution that was incumbent on him. in the circumstances. The observation that the charges did not relate to any act of misappropriation or show any moral turpitude On the part of the accused only show that the applicant was acting without the consciousness that illegal or mischievous effects would follow. The 'extenuating circumstances', therefore, far from neutralising the finding of culpable negligence on the charges themselves fully reinforced it on die definition of 'culpable negligence' given by Holloway, J. The Enquiry Officer referred to the extenuating circumstances for the purpose of imposition of a light punishment on the petitioner.
34a. The Enquiry Officer no doubt made a recommendation about the award of a light punishment. But this recommendation or the advice tendered by the Public Service Commission was not binding on the Government. Indeed, it could not be so held. For, the Government, which was the competent authority to impose appropriate punishment on the charges found to be established could not abdicate its function of forming its own opinion on the charges and the proper punishment for them if found to be proved.
This is clear from the decision of the Supreme Court in Pradyat Kumar v. G. J. of Calcutta, (S) AIR 1956 SC 285. The Government accepted the findings of the Enquiry Officer on the charges. But they differed from the recommendation made by the Enquiry Officer and the advice given by the Public Service Commission as regards punishment. It is, therefore, altogether erroneous to think that the Government disagreed with the findings of the Enquiry Officer and consequently it was necessary for the Government to state in. the show cause notice the grounds which persuaded them to come to a different conclusion on the charges, to refer to the evidence in support of the charges, and to give all the grounds with particulars as regards the tentative punishment of dismissal decided upon by them.
There is no rule which makes incumbent on the Government to issue a notice to show cause why notice under Article 311(2) should not be issued to the Government servant against whom disciplinary action is proposed to be taken alter the holding of an enquiry such as the one in the present case and before issuing a show cause notice for the proposed action under Article 311(2). There is also no rule requiring the Government to issue a notice to the civil servant to give him an opportunity to comment on the advice given by the Public Service Commission, (see AIR 1959 SC 536 and Varadarajulu v. State of Madras, AIR 1960 Mad 393).
35. In fact, the contents of the show cause notice dated the 23rd November 1955 issued to the petitioner show that it could not have been more elaborate. The notice mentioned the charges, gave the particulars of the vouchers not properly kept and of the discrepancies in them and between the ledgers and corresponding vouchers. It also mentioned the details of the loss of the property and of the recoveries to be made. It specifically stated that the Government were inclined to concur in the findings of the General Officer Commanding, Home Guards, and that the Government regarded the charges as serious enough to warrant the punishment of dismissal. The petitioner was thus fully made aware of the Government's concurrence with the findings of the Enquiry Officer and of the serious view they took of the defaults of the petitioner. The applicant understood the meaning of the notice completely and took opportunity to deal with the whole matter in his reply dated 17th December 1955 to the show cause notice dated 23rd November 1955.
I am unable to agree with the view that the notice required a further mention of any grounds either for the concurrence of the Government in the findings of the Enquiry Officer or for the proposed punishment of dismissal. If the competent authority agrees with, the findings of the Enquiry Officer, then there is no need for that authority to discuss in the show cause notice the evidence or to give its reasons, (see Sreedharaiah v. District Superintendent of Police, AIR 1960 Andh Pra 473).
36. In regard to the cases relied on by Golvalker, J. in support of his opinion, the decision in AIR 1954 Born 351 does not lay down the proposition that after the receipt of the report of the enquiry officer the competent authority must call upon the civil servant to show cause why a notice to show cause should not be issued to him under Article 311(2) or as to why a view different from that taken by the Enquiry Officer should not be taken.
In that case Chagla, C. J. only reiterated the well settled law that it was not sufficient for the Government to inform the civil servant that it proposed to pass a particular punishment and to ask him to show cause against that punishment; and that the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against him.
The learned Chief Justice took care to point] out later in the judgment that it may not be necessary in every case to issue a notice calling upon the servant to show cause not only against the quantum of punishment but also against the grounds on which the proposed action is based; that even though the notice may be defective if in fact the servant has been given an opportunity and has availed himself of the Opportunity of showing cause against the grounds, then the mere fact that there is an irregularity about the notice may not lead to the Court holding that the Government servant did not have the reasonable opportunity contemplated under Section 240(3) of the Government of India Act, 1935.
In High Commissioner for India v. I. M. Lall, AIR 1948 PC 121 and AIR 1958 SC 300 also it has been explained that in the event of a departmental enquiry having taken place according to the rules of procedure, it would not be reasonable for the Government servant concerned to ask for a repetition of that enquiry at the stage of the show cause notice under Article 311(2). As I read these decisions and other decisions of the Supreme Court on the scope and meaning of Article 311(2), it seems to me that they mean that if in a departmental enquiry the civil servant has been given the 'reasonable opportunity' explained in AIR 1958 SC 300 (supra) and if it thus satisfies the provisions of Article 311(2), then after such an enquiry is held it is unnecessary to give a second opportunity to the civil servant for a fresh investigation into the facts so as to reagitate the conclusions reached on the charges in the departmental enquiry already held.
The decisions in (S) AIR 1957 Andh Pra 197 and AIR 1957 Andh Pra 370 are of no assistance to the petitioner, in the first case, it has been held that the authority competent to impose punishment should in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted but also the reasons for coming to that conclusion and that a civil servant can show by pleading that the Enquiry Officer's report is vitiated by gross irregularities committed by him or by violating the principles of natural justice such as preventing him. from examining his witnesses or from cross-examining the witnesses who deposed against him; and that if the finding of the Enquiry Offi-oer is the basis for the proposed action he can also attack the correctness of the finding by showing that it was not based on the evidence.
The same proposition was affirmed in AIR 1957 Andh Pra 370, (supra). The observations of the learned Judges in the two Andhra Pradesh cases cannot be read as implying that in cases where the competent authority agrees with the findings of the Enquiry Officer reasons tor the agreement should be stated in the notice. In a subsequent case of Andhra Pradesh viz., B. S. Prakasa Rao v. Govt. of Andhra Pradesh, AIR i960 Andh Pra 15 the earlier decisions of the Court in (S) AIR 1957 Andh Pra 197 and AIR 1957 Andh Pra 370 were not so read, and it was pointed out that it is not necessary for the Government to state reasons for its agreement with the findings of the Enquiry Officer.
37. Here the petitioner was given before the Enquiry Officer as full a reasonable opportunity as was possible to defend himself against the charges. He availed himself of that opportunity. The findings reached by the Enquiry Officer were accepted by the Government and this fact was specifically mentioned in the show cause notice which was given to the applicant on 23rd November 1955. In the show cause notice it was also stated clearly that the Government took a serious view of the charges found to be proved by the Enquiry Officer and thus it was made very clear that the Government did nob agree with the suggestion of the Enquiry Officer and the advice of the Public Service Commission that a light punishment should be awarded to the applicant.
In his reply to the show cause notice the applicant made no complaint whatsoever that he was not given a reasonable opportunity of meeting the charges before the Enquiry Officer and the opportunity which was given by the Covem- ment after the show cause notice was not adequate enough to enable him to show cause against the proposed punishment of dismissal or against the findings reached by the Enquiry Officer and concurred in by the Government. [n I these circumstances, there can be no justification for thinking that the applicant was not given a reasonable opportunity contemplated by article 311(2).
The decisions in AIR 1947 PC 197, AIR 1954 SC 584 and (S) AIR 1955 SC 160, which have been referred to by Pandey, J. point out that the provisions of article 311(2), which are mandatory, are meant for the benefit of the civil servant who can waive the protection afforded thereby; and that if a civil servant was offered a reasonable opportunity at the second stage and failed to avail himself of it. it is not open to him to say subsequently that the requirements of article 311(2) were not satisfied.
Here a reasonable opportunity was given to the applicant. He took full advantage of it and never made any complaint against it. What is obligatory under article 311(2) on the Government is to give the reasonable opportunity contemplated by that provision and explained by the Supreme Court in AIR 1958 SC 300. There is no obligation on the Government to compel a civil servant to take advantage of that opportunity if he chooses to take no part in the proceedings of the enquiry or otherwise does not avail himself of that opportunity.
The applicant was also not entitled as a matter of right to any personal hearing after the show cause notice of 23rd November 1955. The Home Guards Rules do not speak of any such personal hearing after the stage of show cause notice. There is also no rule of natural justice that at every stage a person is entitled to a personal hearing, (see F. N. Roy v. Collector of Customs, (S) AIR 1957 SC 648).
38. Golvalker, J. was also inclined to take the view that the petitioner should have been given a reasonable opportunity of replying to the grounds given in the order removing the applicant from service for rejecting his plea that he had to perform numerous duties, on that ground that it was an afterthought and that the applicant had never complained to the superior officers that his numerous duties prevented him from exercising adequate care and supervision,
The reasonable opportunity contemplated by article 311(2) does not clearly include an opportunity to contest the tenability of the view the competent authority formed on the explanation that may be furnished by the civil servant in response to the show cause notice. I do not think that it can be said with any degree of force that the rejection of the petitioner's explanation by the Government on the grounds that they did. was a new charge which never figured in the departmental enquiry and consequently the applicant had no opportunity of meeting it at all. The decision in AIR 1954 Nag 90 has no bearing on the present case.
39. It is not necessary for me to say anything on the points on which the learned Judges of the Division Bench were agreed.
40. For all these reasons, I agree with Pandey, J. that this petition should be dismissed with the declaration that the petitioner's suspension for the period anterior to 24th September 1954 was illegal. Accordingly the order of suspension dated the 24th September 1954 in so far as it purported to operate retrospectively Is quashed. The result is that this petition is dismissed. In the circumstances of the case the parties shall bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioner.