(1.)MAJOR U. R. Bhatt, who will hereinafter be referred to as the appellant was appointed Senior Inspector, (Fruit Products) in the Central Agricultural Marketing Department of the Government of India on 9/04/1946. The appellant was initially employed on probation for six months and his appointment was liable to be terminated without notice during probation and thereafter by notice of three months' duration on either side. The appellant continued to work as Senior Inspector till 17/03/1947. He was then served with a charge-sheet and called upon to show cause why he should not be dismissed or removed from service or otherwise punished. The appellant submitted his written statement on 22/03/1947. On Ma 25/03/1947, he appeared before the Joint Secretary of the Agricultural Department and he was heard in person. The Joint Secretary made a report recommending that the appellant's employment be terminated according to the terms of the contract by giving him notice. The Minister Incharge of the portfolio concerned, however, directed an enquiry after framing fresh charges against the appellant and that in the meanwhile, he be suspended. On 7/05/1947, another charge-sheet was served upon the appellant. By that charge-sheet, he was charged with irresponsibility and insubordination and accordingly unfit to hold the post of Senior Inspector. The appellant submitted a reply to the charges. The case was then posted for hearing on 9/06/1947, before the Joint Secretary Ministry of Agriculture, who was appointed the Enquiry Officer. On that day, Sardar Bahadur Lal Singh, the Fruit Development Adviser was present at the hearing and was examined. The appellant objected to the procedure adopted by the Enquiry Officer in using marginal notes made by Sardar Bahadur Lal Singh on the representation made by the appellant. The case then stood adjourned to 10/06/1947. On that day, the appellant met the Enquiry Officer and intimated that he (the appellant) would not take further part in the proceeding, and promised the Enquiry Officer to send a letter explaining his reasons for withdrawing from the proceeding. The proceeding was then adjourned till June 13. The promised letter of the appellant was received on the 11th of June. The Enquiry Officer then submitted his report holding that the charges incorporated in the charge-sheet were substantially proved by the evidence on the record. The Holding that the appellant was "irresponsible, insubordinate and unreliable, and as such unfit to be kept in the post of the Senior Inspector" the Enquiry Officer recommended that he be dismissed from service from the date on which he was placed under suspension. The Governor General of India accepted the report and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. The appellant made his representation on 10/11/1947. The Governor General by order dated 3/12/1947, discharged the appellant from service with effect from the date of suspension. The appellant then served the statutory notice of suit upon the Government of India and filed Suit No. 442 of 1948 in the court of the Senior Subordinate Judge at Delhi for a decree for a declaration that the order of discharge dated 3/12/1947, purporting to terminate the employment of the appellant was void and inoperative and that the appellant continued to remain in service. The appellant by his plaint challenged the validity of the order of discharge on the ground that enquiry on fresh charges against him was illegal, that he was not given adequate opportunity to show cause or to put in his defence at the enquiry, that his suspension was illegal, that the procedure prescribed by law was not followed and that the order of discharge was mala fide and therefore void. At the hearing of the suit, the appellant also contended that the Public Service Commission not having been consulted as enjoined by S. 266 of the Government of India Act, 1935, the order terminating his employment was invalid. The learned Subordinate Judge held that the appellant was not justified in refusing to take part in the enquiry before the Enquiry Officer and that even though he had not been afforded adequate opportunity of defending himself as required by R. 55 of the Civil Services (Classification, Control and Appeal) Rules non-compliance with the rules did not confer a right upon the appellant to claim that his discharge from service was void and inoperative because the provisions of S. 240, cl. (3) of the Government of India Act, 1935, had been substantially complied with. In the view of the Subordinate Judge, however, the order discharging the appellant from service was void, because the Public Service Commission was not consulted before an order imposing punishment by way of discharge from service was passed against the appellant.
(2.)AGAINST the order passed by the Subordinate Judge, an appeal was preferred to the District Court at Delhi. In appeal, the District Court set aside the decree of the trial court. The District Judge held that the provisions of S. 266 of the Government of India Act 1935, was only directory and not mandatory and failure to consult the Public Service Commission did not render the order passed by the Governor General illegal. In second appeal, the High Court of East Punjab confirmed the decree passed by the District Judge. The High Court held that failure to follow the procedure prescribed by R. 55 of Civil Services (Classification, Control and Appeal) Rules was directly attributable to the appellant's conduct and that it did not invalidate the order. The High Court also held that failure to consult the Public Service Commission did not invalidate the order, because S. 266 of the Government of India Act was only directory and the only statutory protection afforded to a Government servant was that under S. 240 of the Government of India Act, he had to be given a reasonable opportunity to show cause against the proposed punishment and the appellant was afforded that protection. The appellant has appealed to this court with special leave granted under Art. 136 of the Constitution.
The question whether the order dated 3/12/1947, discharging the appellant from service was void because of failure to consult the Public Service Commission is not now open to be canvassed in view of the decision of this court, and has, therefore, rightly not been raised by the counsel for the appellant. In the State of U. P. v. Manbodhan Lal Srivastava, 1958 SCR 533: AIR 1957 SC 912) this court held that Art. 320 (3) (c) of the Constitution of India (which is substantially the same as S. 266 of the Government of India Act) is not mandatory and that it does not confer any rights on the public servant, and the absence of consultation or any irregularity in consultation does not afford him a cause of action in a court of law. It was also held that Art. 311 of the Constitution is not controlled by Art. 320. The content of the protection afforded to civil servants under S. 240, cl. (3) of the Government of India Act was the same as afforded by Art. 311 of the Constitution, to civil servants.
(3.)COUNSEL for the appellant submitted that serious irregularities had occurred in the procedure followed by the Enquiry Officer, that Enquiry Officer had acted on materials which were not made available to the appellant and accordingly the appellant was deprived of a reasonable to the appellant and accordingly the appellant was deprived of a reasonable opportunity of making his defence. He also contended that the Governor General ought before passing an order of discharge to have held a fresh enquiry at which the witness for the State and for the appellant were examined, and after holding such an enquiry an order discharging the appellant form service could be passed. In our view, there is no substance in this contention of the appellant. The appellant declined to take part in the proceedings before the Enquiry Officer after 9/06/1947. It is true that on the representation made by the appellant the Fruit Development Adviser had made certain remarks and the appellant felt aggrieved because his representation was shown to the Fruit Development Adviser. But that did not justify the appellant in refusing to participate in the enquiry. The submission of the appellant that the Fruit Development Adviser was not examined on 9/06/1947, has no substance. It is clear from the order recorded on 10/06/1947, that the Fruit Development Adviser had been examined and cross-examined on 9/06/1947, and the enquiry was thereafter adjourned till the next day. There is contemporaneous record made by the Enquiry Officer to support that view. Even in the petition submitted by the appellant to the Governor General in reply to the notice dated 31/10/1947, in paragraph 2(h), the appellant stated that he had appeared before the Enquiry Officer on 9/06/1947, and the Enquiry Officer had on that day recorded the statement of the Fruit Development Adviser. It is true that the appellant in his examination before the trial court asserted that the Fruit Development Adviser had not been examined on 9/06/1947, and Sardar Bahadur Lal Singh, the Fruit Development Adviser in his evidence stated that he did not remember whether he had been examined on that day. The Enquiry Officer could not be examined at the trial because, as we are informed at the Bar, he had died before the suit was tried. The record maintained by the Enquiry Officer is however before the court. In his order, dated 10/06/1947, and his report submitted to the Minister concerned on 11/06/1947, in which he has categorically stated that the Fruit Development Adviser was examined on 9/06/1947, and it was thereafter that the appellant declined to take part in the proceedings. On 10/06/1947, two witnesses were specially kept present. As the appellant did not take part in the proceeding, the statements previously made by these witnesses were taken into consideration by the Enquiry Officer in making his report. The Enquiry Officer is not bound by the strict rules of the law of evidence and when the appellant declined to take part in the proceedings and failed to remain present it was open to the Enquiry officer to proceed on the materials which were placed before him. We are prepared to assume that the appellant had seen the statements made by these witnesses, which were tendered, but if the appellant's ignorance of their statements is the direct result of his own non-co-operation with the proceeding before the Enquiry Officer, we are unable to hold that the Enquiry Officer can be said to have proceeded on materials to which the appellant could not have access or that the Enquiry Officer did not give to the appellant a reasonable opportunity in show cause to establish that the charges against him were unfounded. Nor is there any substance in the contention of the appellant that the Governor General before passing the impugned order ought to have directed that witnesses be examined again in the presence of the appellant and that the appellant be afforded another opportunity to lead evidence.