Jatindra Nath Mukherjee Vs. Government of the Union of India (Uoi) and anr. - Court Judgment

Chakravartti, C.J.

1. The appellant, Sri Jatindra Nath Mukherjee, entered Government service on 1 November 1934 as an appraiser under the Collector of Customs, Calcutta. He was confirmed in that post in 1935 and continued to serve in it till 6 November 1942, when his services were lent to the Foreign Trade Control Department of the Import Trade Control Organization which was then located in the Customs House. His rise in the Borrowing Department appears to have been rapid. There he began as an Enquiry Officer, but in 1951, when the proceedings out of which the present appeal has arisen were commenced against him, he was occupying the office of a Controller of Exports.

2. Of the various posts held by the appellant from time to time during the intervening period, particular reference to only one, on which some argument turned, is necessary. He was appointed an. Executive Officer with effect from 1 December 1943 and by a subsequent notification he was declared to have been appointed to that post in substantive capacity with effect from the date of his original appointment.

3. In 1950, some information about the appellant appears to have reached the Special Police. He was interrogated by them on 14 June 1950, when he made a statement in answer to their questions. Subsequently, by an order of the President, dated 3 April 1951 he was placed on suspension with effect from the date of the order. Thereafter, by a letter dated 3 May 1951 apparently despatched on 11 May 1951, the Secretary to the Government of India in the Ministry of Commerce and Industry informed the appellant that under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, the President had directed an enquiry to be held against him in respect of certain charges and one Sri L.K. Jha had been appointed Enquiry Officer. A copy of the charges was annexed to the letter and the appellant was asked to submit his explanation in writing to Sri L.K. Jha within a fortnight, to furnish a list of the witnesses he wished to call and the documents he wished to rely on, if he desired to lead evidence and also to say whether he wanted to be heard in person.

4. The charges were two in number and each set out the allegations on which it was based. The first charge was that the appellant had accumulated certain credits in his various bank accounts and acquired other property to an extent disproportionate to his known sources of income. It was based on five allegations, namely, allegations of certain credits' in banking accounts of the appellant and his wife, a purchase of a plot of land in New Alipore, purchase of another plot of land at village Sibalaya, purchase of a motor car and purchase of certain shares of the Calcutta Electric Supply Corporation. The second charge was that, on his own showing, in explanation of the facts stated in the first charge, the appellant had made a profit of about Rs. 20,000 by speculation on the Stock Exchange and that therefore he had been guilty of a breach of the Government Servants' Conduct Rules. This charge was based on the statement alleged to have been made by the appellant on 14 June 1950.

5. After obtaining some extension of time, the appellant sent his explanation by a letter addressed to Sri L.K. Jha and did not say that he desired to be heard in person. He admitted the bank credits as also the acquisition of the other properties but said that the money for the bank deposits and the other properties had come from seven different sources. Those were personal savings from his salary, money belonging to his wife, the dowry he had received, investments, money which his mother had brought from Pakistan, moneys which his friends had deposited with him and moneys which he had advanced to friends and relatives and which had subsequently been returned by them. With regard to the second charge, the appellant admitted that he had made an income of a sum between Rs. 18,000 and Rs. 20,000 from shares, but claimed that he had made it from bona fide investments and not by speculation.

6. I should state here that the appellant never produced before the Court any copy of the explanation which he had submitted to Sri L.K. Jha. The substance of his explanation which I have given above appears in the order of dismissal passed against him and its accuracy was not questioned before us.

7. On receipt of the appellant's explanation, the Enquiry Officer called for some further particulars by a letter, dated 3 July 1951 to which the appellant replied on 11 July following. The Enquiry Officer made his report on 16 August 1951, by which he held that both the charges had been proved. 1 shall have occasion to refer later to the form of the finding regarding the second charge.

8. By a communication, dated 17 September 1951, the Secretary to the Government of India in the Ministry of Commerce and Industry forwarded a copy of the report to the appellant and asked him to show cause, with-in fifteen days of the receipt of the communication, why he should not be dismissed from service and debarred from future employment under Government. The appellant replied to that letter on 28 September and asked to be supplied with a copy of the police report in order to enable him to make a representation against the action proposed to be taken against him. He was told in reply that the police report was a confidential document and no copy of it could be supplied. Next on 15 October 1951, a solicitor, acting for the appellant, addressed a letter to the Secretary to the Government of India and asked for a copy of the police report as also copy of the allegations on which the charges had been framed and the Government had taken action. Apparently, Government took that letter as asking for a copy of only the police report, because their next letter, dated 25 October 1951, is limited to that document and repeats the reasons for not supplying a copy of it. Then followed two letters, both dated 30 October 1951, one from the Solicitor then acting for the appellant and one from the appellant himself by which the claim for copies of the police report and 'the other documents' asked for by the letter of the 15 October 1951, was repeated. It was said that copies of those documents were vitally necessary and without them the appellant was unable to show cause against the proposed action.

9. In the meantime, the Secretary to the Government of India, by each of his letters, had gone on extending the time for showing cause. Cause was never shown by the appellant. Thereafter, the papers appear to have been submitted to the Central Public Service Commission which made a, report to the Government on 13 June 1952. The Commission took note of the appellant's complaint that he had not been supplied with a copy of the police report, but held that since the facts set out in the police report had all been included in the statement of facts accompanying the charges and those facts had all been admitted by the appellant, he had not been placed at any disadvantage by no copy of the police report being supplied to him. The Commission also took note of the fact that the appellant had not yet submitted any reply to the notice issued to him under Article 311(2) of the Constitution and advised that he might be given one more chance to submit his explanation. The Commission then proceeded to give its view on the materials before it and expressed its complete agreement with the findings of the Enquiry Officer. It recommended that the appellant should be either dismissed from service or removed from service with a rider that he should not be re-employed by Government in any capacity, though it realized that there was practically no difference between the two forms of punishment proposed.

10. The report submitted by the Commission calls for one remark. If the Commission thought that the appellant should be given a further opportunity to submit his explanation, it would have been more logical for the Commission to wait before it expressed its views, till such notice was given and the appellant either submitted or failed to submit an explanation. Be that as it may, the opinion expressed by the Commission was obviously on the materials then available. Since the appellant never submitted any explanation, although a further chance to do so was given to him, as advised by the Commission, there is no reason to think that there were circumstances in the case in which the report of the Commission might have been otherwise.

11. Thereafter, by an order, dated 22 August 1952, signed by the Deputy Secretary to the Government of India in the Ministry of Commerce and Industry, the services of the appellant were replaced at the disposal of the Collector of Customs, Calcutta, with immediate effect. The papers were then sent to the Collector of Customs who considered them and by an order, dated 6 November 1952, he held both the charges to have been proved, as found by the Enquiry Officer. On that finding, the Collector of Customs directed that the appellant be removed from service from the date of his order and that he be debarred from employment under Government in any capacity in future.

12. The appellant next moved this Court under Article 226 of the Constitution and obtained a rule on the Central Government and the Collector of Customs, directing them to show; cause why they should not be ordered by a' writ of mandamus to rescind the orders of 22 August and 6 November 1952, or why the Collector of Customs should not be ordered by a writ of certiorari to produce before the Court the records relating to the order of 6 November 1952, in order that it might be quashed. At the final hearing of the rule, Sinha, J., who had issued the rule, himself discharged it.

13. The points urged before Sinha, J., and those urged before us were the same, except that one of them was slightly expanded in the course of the submission before us. The points were that by the order of 22 August 1952, the appellant had been reduced in rank and since he had been given no opportunity to show cause against such reduction, the order was void. If it was void, and this was the second point taken, the appellant had continued to remain a Controller of Exports, and, therefore, his purported dismissal by the Collector of Customs was a dismissal by an authority subordinate to the authority which had appointed him, namely, the President. Thirdly, it was contended that the appellant had not been given reasonable opportunity to show cause against the action proposed to be taken against him, inasmuch as he had not been supplied with a copy of the police report. Before us the last contention was slightly enlarged so as to comprise a complaint that Government had failed to supply a copy of the appellant's statement to the Special Police, made on 14 June 1950.

14. Sinha, J., repelled all the three contentions advanced before him. He held that reduction in rank, as contemplated by Article 311(2) of the Constitution, meant reduction by way of imposing a penalty, but there was nothing to show that the appellant had been reverted to his permanent substantive post of an appraiser, because Government wanted to punish him by such reversion. If he had been properly reverted, as the learned Judge held he had been, the appellant had not been dismissed by an authority subordinate to the authority who had appointed him. Nor was the appellant's complaint that he had not been given a reasonable opportunity to show cause against the proposed action well founded, because the appellant had not even tried to show, and it was not a fact, that either the Enquiry Officer or the dismissing authority had been influenced in any manner by the police report or taken It into account in any manner by the police report or taken it into account in coming to his decision. Before us it was contended that the view taken by the learned Judge on each of the three points was erroneous.

15. It will be convenient at this stage to say a word regarding the nature and object of the order by which the appellant is said to have been reduced in rank. The order is contained in a notification, dated 22 August 1952, which was after the Public Service Commission had made its report and after the period fixed by the fourth and the last notice issued to the appellant to show cause against the action proposed to be taken against him had expired. The notification was signed, as I have already stated, by the Deputy Secretary to the Government of India in the Ministry of Commerce and Industry and read as follows:

The services of Mr. J.N. Mukherjee, Controller of Exports in the office of the Joint Chief Controller of Imports and Exports, Calcutta, at present under suspension, are replaced at the disposal of the Collector of Customs, Calcutta, with immediate effect.

16. Before the learned trial Judge, the reason why the appellant was reverted to his substantive post of an appraiser does not seem to have been explained. The affidavit of the Collector of Customs affirmed on 23 November 1953 did say in Para. 6 that the action had been taken in accordance with the Home Department notification No. F9/2/32-Ests., dated 9 January 1934, in order to enable him to take such further action in the matter as he might deem fit to take. The notification, however, does not seem to have been placed before the learned Judge, nor does it appear that the order of reversion was sought to be explained by reference to its terms. We caused the notification to be traced out and placed before us and, upon examining It, Mr. Kar, who appears for the respondents, contended that the explanation of the order of 22 August 1952 was to be found there. By the notification of 1934, so far as it is material for our present purpose, power to impose the penalties specified in the fourth column on members of services and holders of posts specified in column 1, is delegated to the authorities specified in column 3. But the delegation is subject to the condition that where the officer to be punished has been lent to the punishing authority, the power to remove or dismiss him shall not be deemed to have been delegated to and shall not be exercised by any authority other than the lending authority. Where, in such a case, the borrowing authority considers that the officer concerned has been guilty of misconduct which calls for the penalty of dismissal or removal from service, the notification requires that he should complete the enquiry and then revert the officer to the lending authority for such action as that authority may consider necessary. Mr. Kar contended that the substantive permanent post held by the appellant was that of an appraiser and his services had been lent to the Export and Import Trade Control Organization under the Ministry of Commerce and Industry by the Collector of Customs. It was clear from the notice of 17 September 1951 that the Ministry of Commerce and Industry was of opinion that the appellant should be dismissed from service and it was therefore that the appellant had to be reverted as in fact he was, to his substantive post under the lending authority, that is to say, the Collector of Customs, as required by the notification of 1934.

17. If the appellant could be shown to be covered by the notification of 1934, as it stood in 1952, It would furnish a complete explanation of the order made for his reversion. It does not, however, seem that the appellant is covered by the notification. As an appraiser, he is covered, because the entry 'Appraisers' is to be found in the first column of the notification under the sub-heading 'Customs Department.' He is, however, not covered as a Controller of Exports. Mr. Kar referred to the entry 'Department of Commerce' in the first column of the notification, but that entry appears under a heading and a sub-heading-the heading being 'Secretariat (including attached offices) and posts ' and the sub-heading being ' Imperial Secretariat Service, Class II.' The entry 'Department of Commerce,' read with the heading and the sub-heading under which it occurs, can only mean that, by it, Class II Officers of the Imperial Secretariat Service, attached to the Department of Commerce, are indicated. Whether the office of a Controller of Exports can be said to be an office in the Secretariat Service, I am not too sure, but, in any event, the office belongs to a Class I and not a Class II Service. Mr. Kar then referred to an amendment of the notification made in 1960, by which an entry was added at the end of the first column of the schedule. But that entry relates only to Assistant Controllers of Imports and does not cover Controllers of Exports. It is clear from the language of the notification that in order that condition (ii) (A) may apply, there should not only be a punishing authority in the lending department, specified in the notification, but there must also be a punishing authority similarly specified, in respect of the officer, as occupying his deputation post in the Borrowing Department. That such is the true intent of the notification appears even more clearly from condition (ii) (6). The conclusion is thus inescapable that the notification does not apply to the case of the appellant, because the post of Controller of Exports held by him at the time of his reversion is not mentioned in it and, secondly, in the absence of any delegation of the power to Impose penalties on him as a Controller of Exports, the power remained with the President who, obviously, cannot be regarded as the 'punishing authority,' as contemplated by the notification.

18. Indeed, it is not necessary to subject; the notification to a close analysis in order to make out that the appellant was not within its terms. The facts of the present case themselves prove that ha was not. The order of suspension passed against him, and the notice issued to him informing him that it had been decided to hold an enquiry against him inrespect of certain charges, were issued by and in the name of the President, acting through the Secretary to the Government of India in the Ministry of Commerce and Industry. The notice to show cause against the proposed action of dismissal was also issued by that Secretary. Had there been a delegation of the power to impose penalties upon the appellant to some other authority, the steps taken in the course of the disciplinary action launched against him would have been taken by that authority and not by and in the name of the President. It must, therefore, be held that the notification of 1934 does not furnish an explanation of the order of the appellant's reversion made on 22 August 1952.

19. It is, however, not necessary for the purpose of this case as rightly thought by the learned trial Judge to decide under what provision or authority the order of 22 August 1952 was made. The contention of the appellant with regard to the order has merely been that it reduced him in rank and, therefore, he was entitled to have an opportunity for showing cause against it which had not been given to him. It was never contended that the order was bad, because it was passed without jurisdiction. On the other hand, the contention has been that so far as the jurisdiction to make the order was concerned, the order was made with jurisdiction, but it was a bad and ineffective order because, in making it in the manner in which it had been made, the provisions of the Constitution had been violated. Had the appellant taken the point that the order was bad, not only for the reason that no opportunity for showing cause against it had been given to him, but also for the reason that it had been passed without jurisdiction or authority, the respondents might have produced the appropriate provisions, wherever contained in accordance with which the order had been made. But no question as to the validity of the order, except the question of the alleged disregard of the Constitution was ever raised. It also appears to me to be clear that whatever might have been the provision or power under which the order was made, it was made with the object of replacing the appellant under the authority who, it was thought, could deal with him best, since the appellant's substantive permanent post was held under him.

20. Turning now to the first of the points taken in the appeal, I am in entire agreement with the learned trial Judge that by the order of 22 August 1952 there had been no reduction in rank of the appellant within the meaning of Article 311(2) of the Constitution. Sitting with Lahiri. J., I had occasion to consider in the case of Rabindra Nath Das v. General Manager, Eastern Railway 1956-I.L.L.J. 563,what the words 'reduced in rank' in Article 311(2) meant and I heard nothing from Mr. Deb to induce me to alter the view which I then expressed. I held that in order that there might be reduction in rank within the meaning of the article, it was not only necessary that the officer concerned should be sent down or put back to a lower post from a higher one which he was occupying, but also that such demotion or reversion should be by way of a penalty. That conclusion I reached from the natural implication of the word ' reduced,' from its use in the article in juxtaposition with the words 'dismissed or removed ' and the obviousconnation of the words ' dismissed or removed or reduced in rank ' with the same words used in Rule 49 of the Civil Services (Classification, Control and Appeal) Rules and other similar rules to designate categories of penalty. It is not necessary for me to repeat at length the various steps of reasoning by which I arrived at the conclusion.

21. Mr. Deb, however, contended that the view taken of Article 311(2) in the earlier case was not correct. He pointed out that the expression 'dismissed or removed or reduced in rank' occurred not in a legislative Act, but in the Constitution, and a Constitution, he contended, must be so read as to provide for all possible contingencies. It was, according to Mr. Deb, a possible contingency that an officer would have the highest opinion of the integrity and abilities of a subordinate and yet became minded either to remove him from service or to reduce him in rank either for no reason at all or for the satisfaction of a mere whim. Mr. Deb's argument was that if such a case was held to be not covered by Article 311(2), the officer dealt with in the manner assumed by him in his hypothetical case would be without any constitutional protection at all.

22. To my mind, there are several answers to this contention. In the first place, it is legitimate to assume that the framers of the Constitution proceeded on their experience of normal behaviour and their anticipation of conduct or events which experience had shown to occur in life. The Constitution is not just a theoretician's exercise in the framing of a scheme of administration in the abstract. It is related to realities and it will, in my view, be legitimate to hold that the framers of the Constitution applied themselves to providing for contingencies which, judging by common experience, were reasonably credible and that they did not feel called upon to take notice of imaginary eccentricities. In the second place, all that Article 311(2) provides for is that a reasonable opportunity for showing cause against the proposed action must be given to the officer proceeded against. If any officer finds himself treated in the manner assumed by Mr. Deb, I think he will find ample ground for challenging the superior officer's action in the rules and conditions of service applicable to him, because, so far as I am aware, there are no rules or conditions of service which empower a superior authority to dismiss or reduce in rank an officer subordinate to him except by way of imposing a penalty and except on a finding of good cause. If a superior officer proceeded otherwise than by way of imposing a penalty and otherwise than for good cause, the subordinate officer would, I conceive, have a higher protection under the general law of the country and would be able to challenge the action of the superior officer as mala fide or without jurisdiction. He would not require thereby the procedural protection of Article 311(2) at all. In the third place, Article 311(2) must be taken and applied as limited to what it says. It says that certain varieties of action shall not be taken against any person 'until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' The fact that the article provides for cause to be shown against the action proposed to be taken, suggests unmistakably that the action is proposed to be taken, for some cause personal to the officer proceeded against and that it is proposed to be taken on a basis of circumstances which the officer concerned may possibly remove by establishing their non-existence or which he may possibly be able to explain in a manner that will clear him of all blame. In other words, the article suggests that the basis of the action proposed is some conduct of the officer proceeded against which is being regarded as having taken place on his part and as being misconduct; otherwise, there can be no point in requiring him to show cause against it. The forms of action mentioned in Article 311(2) are thus forms of action directed against lapse, delinquency or it may even be deficiency and taken by way of imposing penalties. Lastly, the question whether the forms of action contemplated by the article include even action which satisfies only the physical test of the termination of an officer's service or his posting from a higher office to apower or whether they are limited to action taken by way of penalty seems to be settled by two decisions of the Supreme Court, namely, Shyam Lal v. the State of Uttar Pradesh and the Union of India 1954-II L.L.J. 139 and Satish Chandra Anand v. the Union of India 1953 S.C.A. 293 : 1953 S.C.R. 655. In both of these decisions it has been held that the words ' dismissed or removed' have been used in Article 311(2) in the same sense as in Rule 49 of the Civil Services (Classification, Control and Appeal) Rules. There cannot be a different decision with regard to the words ' reduced in rank.' It is quite obvious that Article 310 first states in general terms that every member of a civil service or a civil post holds his office during the pleasure of the President or the Governor, as the case may be, and then, as held by the Judicial Committee in Lall case L.R. 75 I.A. 225 in explaining Section 240 of the Government of India Act of 1935. Article 311 proceeds to qualify the exercise of that pleasure by laying down certain limitations. The limitations refer and are related to some of the graver forms of disciplinary action provided for by the various service rules and it is against the background of those rules that Article 311 must be read as set.

23. There is nothing to show in the present case and it is not contended that the order of 22 August 1952 was passed against the appellant by way of punishing him. He may have been reduced in rank in the physical sense,-but since his reversion to his substantive post was not ordered by way of imposing a penalty on him, there was no reduction in rank in the sense contemplated by Article 311(2).

24. Mr. Deb made some reference to the appellant's appointment in the temporary post of an Executive Officer in a substantive capacity. He did so with a view to establishing that the appellant had been reduced in rank in a physical sense, because although he had held higher posts it might be held that there could be no reduction in rank from a post in which a person was only officiating. In my view, for the particular purpose for which he referred to it, Mr. Deb did not require the appellant's appointment as an Executive Officer and indeed could derive no assistance from it. The whole of the Import and Export Trade Control Organization was a temporary establishment and it would appear from the orders exhibited by the Administrator that, in 1952, the office of the Executive Officer was no longer surviving. The appellant could not therefore have been reduced from that post. On the other hand, although his office as a Controller of Exports was a temporary one, it does not appear from the terms of the appointment that the appellant was appointed to it in an officiating capacity. Besides, in the case to which I have already referred, a Division Bench of which I was a member accepted the view that there could be reduction in rank even from an officiating post. The appellant has thus proved that he was reduced in rank in the physical sense, but for reasons I have already given, there was still no reduction in rank within the meaning of Article 311(2).

25. It seems to me that there is also a further consideration for which it must be held that the order of 22 August 1952 did not attract the operation of Article 311(2) of the Constitution. Quite apart from what the words 'reduced in rank ' in the article mean, it seems to be clear that the reduction contemplated is a reduction by a substantive order, made for its own sake and an order which is, as it were an end itself. In the present case, the appellant's reversion appears to have been ordered not for its own sake, but by way of a step taken in the course of carrying out the process of disciplinary action launched against him with a view to his dismissal from service. The appellant was undoubtedly entitled to an opportunity for showing cause against the proposed dismissal which was the ultimate end of the proceedings, but I am altogether unconvinced that he was also entitled to an opportunity for showing cause against every subsidiary or the ancillary step taken in the course of the proceedings, launched against him before it was taken. As I read Article 311(2), the words ' reduced in rank,' occurring there, seem to me to contemplate a reduction in rank which is made for its own sake and is in that sense a final action and not a reduction which is in itself of a neutral character and is only made for administrative reasons by way of taking an intermediate step in furtherance of some other and graver action.

26. The reversion of the appellant to his substantive post as an appraiser did not thus amount to reduction in rank within the meaning of Article 311(2). The first point taken by Mr. Deb must, therefore, fail. It was conceded that if the first point failed the second point would fail along with it, because if the appellant was rightly reverted, he could not claim that he had remained a Controller of Exports and therefore was not liable to be dismissed by the Collector of Customs.

27. There remains the third point about the denial of a reasonable opportunity for showing cause against the proposed action. From the language in which it was formulated in the petition, the complaint would seem to be that no chance to show cause against the proposed action had been given in fact. In the course of the argument before the learned trial Judge, however, the point was put forward in the form that the opportunity given was not a reasonable opportunity inasmuch as no copy of the police report which the appellant required for showing cause had been supplied to him. The argument before the learned Judge was limited to the police report and so were the grounds of appeal and even the summary of facts supplied to us. In the course of the argument before us, however, Mr. Deb submitted that he would also argue that the failure of Government to supply hid client with a copy of the statement made by him on 14 June 1950 also amounted to denying him a reasonable opportunity and that it was solely because he himself had failed to see the distinction between the police report and the statement made to the police that the latter document had not been specifically mentioned. We shall accept that explanation of Mr. Deb.

28. I am clearly of opinion that the point about the denial of a reasonable opportunity is wholly without substance. As the learned Judge has pointed out, the appellant would not be entitled to a copy of the police report, which was a confidential document and unrelated to the departmental proceedings, unless he could show that either the Enquiry Officer or the Collector of Customs or both had taken the police report into account and had been influenced in arriving at their decision by something contained in it. It is a remarkable circumstance that at the time of furnishing his explanation in answer to the charges, the appellant did not ask for a copy of the police report and furnished his explanation, apparently without being inconvenienced in any way by his not having a copy of the document. It was only after he had been asked to show cause against the proposed action that he asked for a copy of the police report. It is obvious from the language of the letter dated 28 September 1951, by which he first asked for it, that he wanted it not because he thought it had been taken into consideration in arriving at the findings against him, but because he hoped that there might be something in it in his favour which he might utilize in his defence. As regards his statement to the police, he asked it by the name of ' allegations on which the charges had been based,' after he had contacted a solicitor. Mr. Deb explained that, as a layman, he might not have appreciated the importance of the statement before he received the advice of a lawyer. That may well have been so. but how the statement or even the police report could be useful to the appellant at the stage of showing cause against the proposed action, if the need for them had not been felt at the stage of showing cause against the charges, it is difficult to see. Mr. Deb, contended that even when showing cause against the proposed action, his client would be entitled to show cause against the grounds for that action, which meant that he would be entitled to show cause against the findings on the charges. That contention appears to me to be wholly negatived by what the Judicial Committee said in the case of High Commissioner for India and the High Commissioner for Pakistan v. I.M. Lall L.R. 75 I.A. 225, while explaining the corresponding provision of the Government of India Act of 1935, expressed in identical language. Their lordships were concerned with the proper construction of the phrase 'a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' They pointed out that the scheme for showing cause under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and that under Section 240 of the Government of India Act of 1935 were markedly different. While the rule provided that the civil servant should be first informed of ' the grounds on which it is proposed to take action' and afforded an opportunity for defending himself against the charges, the Statute only spoke of 'showing cause against the action proposed to be taken.' Earlier in the judgment, their lordships expressed their approval of the view taken by the majority of the Federal Court that after some action has been tentatively decided on,

the person concerned must then be given a reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken.

29. This would seem to cover cause against the proposed penalty as well as cause against findings as a result of which the penalty has been proposed. But their lordships then proceeded to examine the position where the procedure prescribed by Rule 55 is followed and the officer concerned is first served with a copy of the charges in writing and given an opportunity for showing cause against them before he is called upon by a second notice to show cause against the action proposed to be taken. Dealing with that position, their lordships observed as follows:

If the civil servant has been through an inquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry.

30. It is thus clear that, in their lordships' view, if the officer concerned has had an opportunity for showing cause against the charges, he will not have a second opportunity for doing so, when called upon to show cause against the action proposed to be taken, but will then be limited to showing cause against the punishment proposed as a result of the findings-the findings being no longer challengeable.

31. But even assuming that the appellant was entitled, when called upon to show cause against the action proposed to be taken, to show cause against the findings as well, I am unable to see how it could be said that by not being supplied with a copy of either the police report or his statement to the police, a reasonable opportunity for showing cause had been denied to him. As the learned Judge has pointed out, he did not even attempt to show that either the Enquiry Officer or the dismissing authority had taken the police report into account and had been influenced by anything contained in it. Indeed, so far as the Enquiry Officer is concerned, the appellant was supplied with a copy of his report which he never brought to the notice of the Court. As the learned Judge very pertinently points out, it would not be unreasonable to infer that if the report did contain anything to show that the Enquiry Officer had been influenced by the police report, the appellant would not have failed to draw attention to it. In fact, no copy of the Enquiry Officer's report was produced by the appellant before the learned Judge, although he had a copy in his possession, nor was any argument addressed to the Court with regard to it. The only reference to the police report he ever made was in the course of the correspondence and it is contained id the letter of his solicitor, dated 15 October 1951, addressed to the Secretary to the Government of India, Ministry of Commerce and Industry, where the following sentence occurs:

You will note that the so-called report of the Enquiry Officer Sri L.K. Jha, I.C. S., amply beards references to the police enquiry and interrogation.

32. If it did bear such references of the nature of acceptances of the police view, it is surprising to a degree that having bad a copy of the report supplied to him, the appellant did not produce it before the learned Judge, nor built any argument upon it. As regards the dismissing authority, his order appears in the paper book and it does not contain any reference of any kind to the police report, except a reference to the appellant's complaint that he had been prejudiced by not having been supplied with a copy of it and the opinion of the Public Service Commission that no prejudice had been caused. Mr. Deb contended that, according to the Collector of Customs, he had gone ' through ' the records of the case and the records would include the police report. I am unable to see why the records of departmental proceedings should contain the police report which would be a report made by the police to their own superior officer. In any event, the order deals with the various charges, in extenso gives the reasons of the Enquiry Officer for his finding's with regard to them, gives the dismissing authority's reason for agreeing with the Enquiry Officer and nowhere refers to anything said by the police in their report.

33. Indeed, it seems to me that what the appellant was asked to explain was perfectly clear. Certain items of wealth had been discovered and he was asked to say how he had come by that wealth. The Public Service Commission points out that all the items of wealth referred to in the police report were set out in the charge. The appellant admitted the acquisition of each one of the items of wealth and that being so the only thing that was left for him to do was to explain wherefrom he had obtained the means for acquiring them. He was not asked to explain anything else, nor was his explanation rejected by reason of anything contained in the police report. It was rejected on grounds given by the officers on their own account and stated by them in the report and the order. I am altogether unable to see how the police report could have any relevancy at all or could be of any use to him in furnishing his explanation for the admitted items of wealth, or how he would have been prejudiced by not having a copy of the report.

34. There remains the statement 'made to the Special Police on 14 June 1950. It has a bearing only on the second charge which reads as follows:-

'It Is charged, on your own showing, in explanation of the facts stated in charge 1 above, that you made a profit of about Rs. 20,000 by speculations on the stock exchange and as such you are guilty of a breach of the Government Servants' Conduct Rules.

Allegations on which the charge is based

Your statement dated 14 June 1950.

35. It seems to me, on reading this charge, that what the statement of 14 June 1950 contains is set out in the charge itself. The charge says what the appellant had done on his own showing and the 'own showing' is said to have been contained in the statement made to the police. The appellant's answer to the charge was, as appears from Para. 12 of the order of the dismissing authority, that he had indeed made an income of Rs. 18,000 to Rs. 20,000 from shares, but it had been made Dot by speculation but by bona fide investment. Of the allegations contained in the charges, the making of an income of about Rs. 20,000 from shares is thus admitted and, therefore, so far as the fact of making an income from shares and the amount of that income are concerned, no reference to the statement of 14 June 1950 was required. The only other part of the charge which remains is that the appellant had stated to the police that he had made the income by speculation, The finding of the Enquiry Officer on this charge which was agreed in by the dismissing authority was that if the appellant

did indeed make a profit of Rs. 18,000 to Rs. 20,000 by buying and selling shares, as admitted by him, then, in the absence of any evidence to refute the assumption, he obviously was speculating in contravention of the Government Servants' Conduct Rules.

36. It will be noticed that the finding is not that since the appellant had admitted in his statement to the police that he had made money by speculation, he could not be heard now to say that he had not done so and, therefore the finding must be that the money had been made by speculation. The finding that the money had been made by speculation is a finding of the Enquiry Officer, based not on any statement of the appellant, but on his appreciation of the facts of the case.

37. Even as a finding it is only a finding of a hypothetical or contingent character, as the Enquiry Officer obvioualy did not believe that any money had been made by the appellant from the buying and selling of shares. It should be recalled that in explaining the wealth referred to in the first charge, the appellant had mentioned investment income as one of the sources from which the necessary funds had come. The statement made by him to the police is also said to have been in explanation of the wealth referred to in the first charge. The claim that the appellant had made some money from investments was examined by the Enquiry Officer and the dismissing authority in relation to first charge and it was held that since the appellant had failed to supply anything like broker's notes or any evidence whatever of his investments in shares, the claim could not be accepted as true. It was thus held that the appellant had not made any money from investments, as claimed by him. After that finding had been arrived at, the question as to whether he had made Rs. 18,000 or Rs. 20,000 or any sum from shares and whether he made it by speculation or by investment did not really arise and a finding with regard to the second charge might well not have been made. But the finding as it is, is of a contingent character and in fact no finding at all. It does not say that the appellant did make a large sum from transactions in shares, but says that if he at all did so, as claimed by him, then he must have done so by speculation and not by bona fide investment. As I have already pointed out, if the finding had been based on an alleged admission by the appellant in his statement to the police that he had made the money by speculation, a copy of that statement might be relevant. I am unable to see, however, how it is relevant, in view of the facts which I have already recited in some detail.

38. For the reasons given above, it appears to me that the failure of the Government to supply the appellant with a copy of the police report or a copy of his statement made to the police on 14 June 1950 did not make the opportunity given to him to show cause against the proposed action less than a reasonable opportunity and that, therefore, the provisions of Article 311(2) were not violated.

39. All the points urged by Mr. Deb accordingly fail. The appeal is accordingly dismissed with costs, so far as this Court is concerned.

Das Gupta, J.

40. I agree.