ORDER
K.L. Pandey, J.
1. This petition under Articles 226 and 227 of the Constitution is mainly directed against an order dated 27 February 1963 whereby the Registrar of Co-operative Societies, Madhya Pradesh, dismissed the petitioner from service.
2. The material facts of the case are these. In the year 1956, the petitioner was recruited as co-operative and panchayat inspector. Subsequently, he was required to work as a co-operative extension officer. At the material time, he was employed on that post in the Amarwnra Block of Ctihindwara district. By an order dated 17 February 1961, the Collector of Chhindwara suspended the petitioner and directed that a departmental enquiry be held against him. In due course, the chargesheet enumerating six charges (Annexure C) and the statement of allegations (Annexure D) were served on the petitioner and the enquiry was held by Sri S.H. Naidu, Assistant Registrar, Co-operative Societies, Chhindwara, who was appointed by the Collector to be the enquiry officer. During the pendency of this enquiry, the Collector found It necessary to serve upon the petitioner additional charge 1 (Annexure I) with a statement of allegations (Annexure J) on which that charge was based and required him, by a notice dated 24 October 1961, to submit his written statement in respect of that charge. Thus even that charge became the subject-matter of enquiry which admittedly was, except in two respects duly held. On 15 April 1962, the enquiry officer submitted his report to the Registrar of Co-operative Societies who, however, remanded the case for
(i) examining the petitioner afresh,
(ii) taking evidence about the death of some of the persons mentioned in the first charge, and
(iii) examining the Examiner of Questioned Documents about certain questioned documents.
The enquiry officer carried out the directions of the Registrar and submitted his additional report on 28 January 1963. Thereupon, agreeing with the conclusions of the enquiry officer, the Registrar issued to the petitioner a show-cause notice dated SO January 1963. After the petitioner submitted his detailed reply, the Registrar passed the final order dated 27 February 1963 holding that only charges 1 and 4 and the additional charges were proved against the petitioner and inflicting upon him a separate punishment for each fault. For the fault covered by the charge 1, he was removed from service. For that covered by the charge 4, he was permanently reduced by Rs. 5. For the delinquency specified in the additional charge, he was dismissed from service. Being aggrieved by that order, the petitioner preferred an appeal to the State Government, which referred the matter to the State Public Service Commission. The Commission held that while the charges 1 and 4 were not proved, the additional charge was duly established and the penalty of dismissal was, having regard to the nature of the delinquency, merited. As advised by the Public Service Commission, the State Government rejected the petitioner's appeal. He has called in question his dismissal from service upon the several grounds enumerated in Para. 18 of his petition. In their return, the respondents have traversed all those grounds and supported the action taken in regard to the petitioner.
One of the grounds urged before us is that, since the Registrar of Co-operative Societies, and not the Collector, was the appointing authority, the Collector could not suspend the petitioner, initiate any enquiry against him, frame charges for such enquiry or appoint any officer to conduct the enquiry. We are unable to accept this contention. What cannot be delegated is the ultimate responsibility to dismiss or remove a civil servant so as to destroy a protection like the one afforded by Article 311(2) of the Constitution-Rangachari v. Secretary of State for India A.I.R. 1937 P.C. 27 and Pradyat Kumar Bose v. Chief Justice of Calcutta High Court : [1955]2SCR1331 . Any other power, in regard to which there is no constitutional protection or mandatory provision of law or rule having the force of law, may be validly delegated. As pointed out by the Supreme Court in State of War Pradesh v. Jogendra Singh 1963-II L.L.J. 444, such matter is entirely in the discretion of the appointing authority. In the instant case, as would appear from the memorandum No. 22876/5577-5353/XXII/DIII/ Estt/59 reproduced below, the Collector had, in this matter, exercised certain powers, which had been delegated to him:
GOVERNMENT OF MADHYA PRADESH
Planning and Development Department,
Bhopal, dated 29 December 1959.
In supersession of this department memorandum No. 19240/6477/XXlI/DIII/Estt./59, dated 14 October 1959, the Government have been pleased to delegate the following powers to Collectors in respect of non-gazetted staff and extension officers working in the blocks of their districts:
(a) Power to take disciplinary action.
(b) Power to sanction departmental enquiry.
(c) Power to suspend an incumbent during the course of such departmental enquiry.
(d) Power to impose the following penalties:
(i) Censure.
(ii) Withholding of increments,
(iii) Fine (this would apply only to class IV employees of the former Madhya Bharat Unit only).
2. Whenever any action is taken by the Collector in exercise of the power delegated to him, he should immediately inform the head of the department to which the officer concerned belongs. In case when it is felt that more severe punishment should be inflicted the Collector should refer the case to the competent authority in accordance with the rules of the departments concerned and the instructions contained in general book circular I. 13.
(By order and in the name of the Government of Madhya Pradesh)
(Sd.) S.C. VERMA,
Deputy Secretary to Government,
Planning and Development Department
To all Commissioners.
Collectors.
In view of the powers which had been competently delegated to the Collector, there is no substance in the contention that he could not initiate the enquiry against the petitioner.
3. It is clear from what we have already stated, and it is also not disputed by the learned Government Advocate, that the State Government accepted the advice of the Public Service Commission to the effect that only the additional charge was established against the petitioner and that having regard to its serious nature, the penalty of dismissal was merited. The second ground pressed before us is that the petitioner was denied a reasonable opportunity of defending himself against that charge which alone survived against him and that, in any event, the conclusion that the charge was established is based on no evidence. As we would show in the sequel, this ground is well-founded and must be accepted.
4. The additional charge reads:
On 26 June 1961 at Chhindwara from the office of the Assistant Registrar, Cooperative Societies, Chhindwara, you have written a letter in your own handwriting and signature with a draft-news item or irregularities in the Amarwara Block for publication to Sri Sharma which was later on published in Hindi newspaper ' Kisan Raj' dated 2 July 1961. Thus you have acted in contravention of Rules 8(2) and 19 of the Madhya Pradesh Government Servants (Conduct) Rules, 1959.
The petitioner disputed that the original letter dated 26 June 1961, which was belatedly shown to him, was in his handwriting and requested the enquiry officer to permit him to engage a lawyer to cross-examine the handwriting expert, C. T. Sarwate, as provided in general book circular I-13 (15). Admittedly, the petitioner was not permitted to engage a lawyer for that purpose. It is, however, explained that, since a lawyer had not been engaged for the State, the matter was in the discretion of the enquiry officer and he exercised it properly because the petitioner himself was able to competently cross-examine the expert. It is true that a public servant has no absolute right to be represented by a lawyer in a departmental enquiry on charges levelled against himself but, as pointed out by the Calcutta High Court in Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal 1961-II L.L.J. 312 the denial of the assistance of a lawyer may in certain circumstances amount to denial of a reasonable opportunity within the meaning of Article 311(2) of the Constitution. In our opinion, the petitioner should have been allowed to be assisted by a lawyer for the purpose of cross-examining the handwriting expert. Even so, we do not consider that, in the circumstances of this case, the refusal of the request for the assistance of a lawyer amounts to a denial of a reasonable opportunity under Article 311(2).
5. Although the Registrar of Co-operative Societies, Madhya Pradesh, held that the additional charge was proved, this is what he stated in Para. 16 of his order dated 27 February 1963 (Annexure N):
It is true that there is no proof in this enquiry that the questioned document which has been introduced as Exs. P. 19 and P. 20 was in fact sent to the press or to Sri Sharma, by Sri Pathak. But it is to be appreciated that it would be very difficult to prove this point except in an indirect way. No press correspondent would normally care to reveal the source of his information. It is still mysterious how the Collector, Chhindwara. obtained the Exs. P. 19 and P. 20 and probably he would not have liked to disclose the source from which he obtained these documents.
We do not know what led the Registrar to presume that the press correspondent would not have disclosed the source of his information or the Collector of Chhindwara would not have liked to reveal the source from which he obtained the documents. The gist of the charge was that the petitioner communicated the offending information to the press and these were the main witnesses who could have established that charge. By not examining them, the enquiry officer denied to the petitioner a reasonable opportunity of defending himself. This, we may point out, was also the view taken by us in A.S. Naidu v. Superintendent of Post Offices Miscellaneous Petition No. 253 of 1961, dated 18 December 1961. We would also further like to say that difficulty of proof is no substitute for proof necessary to establish the charge and it cannot support an unfair conclusion grounded merely on suspicion. Since admittedly there is in this case no evidence to show that the petitioner communicated the offending information to the press, the conclusion that the additional charge was established and the punishment therefore awarded to the petitioner are liable to be quashed by certiorari, Vide Union of India v. H.C. Goel 1964-I L.L.J. 38.
6. Although no other ground was pressed before us, the infirmities we have noticed in the last paragraph are sufficient to vitiate the Registrar's order dated 27 February 1963 and the appellate order dated 30 January 1964.
7. The result is that the petition succeeds and is allowed. The orders dated 27 February 1963 and 30 January 1964 are quashed. The respondents shall bear their own costs and pay those incurred by the petitioner to whom the security amount shall also be refunded. Hearing fee Rs. 100.