1. This is an appeal by the peti-tioner in O. P. No. 209 of 1959 against the (sic) missal of that petition. The petition was beard along with O. P. No. 205 of 1959. That petition was allowed.
2. The appellant was a Sub Divisional Officer in the Forest Department. The petitioner in O. P. No. 205 of 1959 was a Divisional Officer in that Department. There was an inquiry as against both of them and a Range Officer under the Tiavancors Public Servants (Inquiries) Act, 1122.
3. There were six articles of charge against the appellant. The Inquiry Coinmissioner (sic) him guilty under Articles 1 and 6 and not guilty as regards the other articles of charge. The judgment under appeal docs not endorse the conclusion as far as Article 6 is concerned.
4. By a common order, Ext. P-7 dated 1-2-1958, the Government directed the dismissal of all the three officers. The appellant and the Divisional Officer appealed to the Governor. The Governor modified the punishment to one of removal from service in all the three cases.
5. it is not possible to negative entirely the contention of the appellant that the common character of the proceedings has to some extent affected him to his detriment. It is also clear that the observation in the judgment under appeal that only one and not two of the articles of charge as found by the Inquiry Commissioner can realty be brought home to the appellant alters the position as it stood at the time when the notice regarding the punishment proposed was issued by the Government. It may he that if the appellant was guilty only of one of the six articles of charge, the. Government may have embodied in the notice a lesser form of punishment, and punished him on that basis.
6. in these circumstances we think we should quash the punishment inflicted on the appellant and leave the Government free, if they so desire, to issue a fresh notice directing the appellant to show cause against such punishment as they propose to inflict. We directed accordingly.
7. We make it clear that nothing stated in this judgment should be considered as an expression of opinion on the merits of the case.
8. There is an interesting article in the current issue of Public Law (Autumn 1062, Page 260) which discusses the law relating to the punishment of Civil Servants in this country, in Pakistan and in Malaya, in dealing with the inquiry as to punishment the writer, I. A. Sheridan, says (at p. 294) :
'In arguing against punishment, the civil servant may probably argue against guilt. He may,in other words, contend that the findings of theofficer inquiring as to his guilt,, or the subsequentconclusions of the disciplinary authority, are wrong. In State of Bombay, v, Raojibhai Motibhai Patel,AIR 1961 Guj 130, Mehta, J. said:
'The constitutional guarantee implies that the defendant should be given a reasonable opportunity to show cause against the punishment, which is proposed to be (sic) on him and further that this opportunity means, that the defendant is entitled then to show that he is not guilty of the charge as also to show that the punishment is too drastic or severe than what he merits.' '
The contrary opinion expressed by Nair J. In State of Jammu and Kashmir v. Mohd Shafi, AIR 1961 J and K 25 is probably wrong :
'The inquiry thus ordinarily comprises of two stages : One stage ends when the punishing authority comes to a definite conclusion on the charges and provisionally determines on the punishment to be imposed on the delinquent; the second stage begins when the punishment tentatively proposed is communicated to the delinquent and he is called upon to show cause against the imposition. of the punishment proposed. At the second stage also the delinquent has to be given a reasonable opportunity of showing cause against the penalty proposed to be inflicted on him.
In our judgment the true ambit of the second stage of the proceedings is only to show cause against the proposed punishment and not against the truth and validity of the charges on which conculsions have already been reached. If it were otherwise, there would be a repetition at the second stage of what had already transpired at the first stage. What is more, the proceedings at the second slage would partake of an appeal against the conclusions already reached on the charges against the delinquent, and such an appeal would be to the same authority who had already arrived at the conclusions. Such a position, in our opinion, is not contemplated by either the letter or the spirit of the constitutional provisions already referred to.
It is unquestionably right that at the inquiry as to punishment the delinquent is not entitled to a repetition of the inquiry as to guilt, unless there is fresh evidence or some material omission oc- curred at the earlier stage. But there is a difference between repeating a trial and challenging a conclusion. It is submitted that the delinquent is always entitled to dispute the findings of the inquiry officer and any subsequent step in the reasoning of the disciplinary authority, but that he is not normally entitled to have the evidence adduced all over again.'
We are not called upon to express our opinion in this case.
9. The appeal is allowed as above. Nocosts.