- (1.) These two cross-appeals on certificates granted by the High Court under Art. 132 (1) of the Constitution, arise out of a common judgment and order of a Division Bench of the High Court of Judicature at Allahabad, in two writ petitions Nos. 121 and 817 of 1953, dated January 8, 1954, allowing in part and dismissing in part, the two petitions under Art. 226 of the Constitution, by which the petitioner questioned the validity of the orders passed by the Government of Uttar Pradesh, reducing him in rank, and ordering his compulsory retirement from service. Civil appeal No. 27 has been preferred by the State of Uttar Pradesh and Civil appeal No. 28 by the petitioner in the Court below. For the sake of brevity, we shall refer to the State of Uttar Pradesh as the appellant and the petitioner in the High Court - Sri Manbodhan Lal Srivastava - as the respondent, in the course of this judgment which covers both the appeals.
(2.) It is necessary to state the following facts : In 1920, the respondent was employed in the education department of the State of Utter Pradesh, and in due course, was promoted to the United Provinces Education Service (Junior Scale). This took place in 1946. In the year 1948, the respondent was appointed an officer-on-special duty and managing editor of a quarterly journal issued by the education department, under the style 'Shiksha'. While holding the post of officer-on-special duty, the respondent was also appointed a member of the Book Selection Committee. He continued to function as such until 1951. The respondent's conduct as a member of that Committee, was not found to be satisfactory and above board; inasmuch as it was discovered that he had allowed his private interests to come in conflict with his public duties. He was found to have shown favours in the selection of books on approved list, in respect of certain books said to have been written by a nephew of his, aged only 14 years, and by another relation of his, as also to firm of publishers who had advanced certain sums of money to him on interest. In July, 1952, the respondent was transferred as Head-master of a certain High School, but he did not join his post and went on leave on medical grounds. While on leave, the respondent was suspended from service with effect from August 2, 1952. In September, the same year, the Director of Education issued orders, framing charges against the respondent and calling upon him to submit his written statement of defence and giving him an opportunity to call evidence in support of it. It is not necessary for the purposes of this case, to set out the charges framed against him except to state that the details of the books, said to have been written by his prodigy nephew and his other relation, were given, the gravamen of the charges being that he did not inform the Committee of his relationship with the alleged authors of the books, the selection of which was calculated to bring pecuniary benefit to those relations. Another charge related to his having benefited a certain firm of publishers whose books, about a dozen in number, had been selected by the Committee of which he was a member. The respondent submitted a lengthy written statement in his defence and did not insist on oral examination of witnesses, but enclosed with his explanation, certain affidavits in support of his case. The Director of Education, after a thorough inquiry into the charges framed against the respondent, submitted a report to the effect that the charges framed against him had been substantially proved. He recommended that the respondent be demoted to the Subordinate Education Service and be compulsorily retired. After considering the report aforesaid, the Government decided on November 7, 1952, to call upon the respondent, under Art. 311 (2) of the Constitution, to show cause why the punishment suggested in the departmental inquiry report, should not be imposed upon him. In pursuance of the show-cause-notice served upon the respondent on November 13, 1952, he put in a long written explanation on November 26, 1952, on the same lines as his written statement of defence submitted earlier as aforesaid, bearing on the merits of the findings as also objecting to the procedure adopted at the inquiry. He also showed cause against the proposed punishment. A Government notification dated January 9, 1958, was published showing the names of the officers of the education department, who would retire in due course on super-annuation, that is to say, at the age of 55, and the corresponding dates of super-annuation. The respondent is shown therein as one of those, and in the last column meant for showing the dates of retirement, September 15, 1953, is mentioned as against his name. On February 2, 1953, the respondent filed the first petition (Writ petition No. 121 of 1953) challenging the validity of the order of the Government suspending him and calling upon him to show cause why he should not be reduced in rank with effect from the date of suspension, and also compulsorily retired. In that petition, he also challenged the legality of the entire proceedings and prayed for a writ for mandamus directing the Government to pay his full salary during the period of suspension until he attained the age of superannuation as aforesaid. Perhaps, realising that the show-cause-notice served upon the respondent as aforesaid, in November, 1952, would not fully satisfy the requirements of a reasonable opportunity as contemplated by the Constitution, the Director of Education forwarded to the respondent, along with a covering letter dated June, 16, 1953, a copy of the report of the inquiry; and again called upon him to show cause why the proposed penalty of reduction in rank be not imposed upon him. The State Public Service Commission (which we shall, refer to as the Commission) was also consulted by the Government as to the punishment proposed to be imposed as a result of the inquiry. Presumably, the Commission was supplied with all the relevant material upto the date of the second show-cause-notice. The Commission was consulted but it appears from the findings of the High Court that the respondent's written explanation submitted on July 8,1953, was not before the Commission. The explanation submitted on July 3, 1953, was a much more elaborate on dealing not only with the three charges which had been made against him, but also with other irrelevant findings of the inquiry officer who had made several observations against the respondent's efficiency and conduct, which were not the subject-matter of the several heads of charge framed against the respondent, and, therefore, not called for. After considering the opinion of the Commission, the inquiry report and the several explanations submitted by the respondent, the State Government passed its final order dated September 12, 1953, reducing the respondent in rank from the U. P. Education Service (Junior Scale) to Subordinate Education Service, with effect from August 2, 1952, and compulsorily retiring him. The order of compulsory retirement was more or less superfluous as the respondent would have retired in the ordinary course with effect from September 15, 1953 as already indicated. During the pendency of the first writ petition, and after it had been heard by the High Court in part, the respondent filed the second writ application (being Writ Petition No. 817 of 1953) on September 23, 1953, practically covering the same grounds and praying for the same reliefs as aforesaid. A Division Bench of the High Court, presided over by the Chief Justice, by its judgment and order dated January 8, 1954, disposed of both the writ petitions holding that the orders impugned were invalid for the reason that the provision of Art. 320 (3) (c) of the Constitution had not been fully complied with because the last written explanation of the respondent submitted on July 3, 1953, had not been placed before the Commission. The High Court, therefore, quashed the orders of the Government reducing him in rank and reducing his emoluments with effect from the date of suspension as aforesaid. It did not pass any order in respect of the compulsory retirement because that had happened in due course before the judgment of the High Court. The appellant has filed appeal No. 27 from this part of the judgment and order of the High Court. The High Court refused the respondent's prayer in respect of the full salary for the period of suspension during which he had been deprived of it by the orders of the Government impugned by him. From this part of the judgment, the respondent has preferred appeal No. 28. It is manifest that if the State Government's appeal is well-founded and is allowed by this Court, the respondent's appeal must fail without any further consideration.
(3.) Before dealing with the merits of the controversy raised in these appeals, it is necessary to state that Mr. Mathur appearing on behalf of the appellant, proposed to place before his Court, at the time of the argument, the original records and certain affidavits to show that, that as a matter of fact, all the relevant facts relating to consultation between the State Government and the Commission has not been placed before the High Court and that if the additional evidence were taken at this stage, he would satisfy this Court that the Commission was consulted even after the submission of the respondent's explanation in answer to the second show-cause-notice. Without looking into the additional evidence proposed to be placed before us, we indicated that we would not permit additional evidence to be placed at this stage when there was sufficient opportunity for the State Government to place all the relevant matters before the High Court itself. We could not see any special reasons why additional evidence should be allowed to be adduced in this Court. It was not suggested that all that matter which was proposed to be placed before this Court was not available to the State Government during the time that the High Court considered the writ petition on two occasions. It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. In this case, therefore, we have proceeded on the assumption that though the Commission was consulted as to the guilt or otherwise of the respondent and the action proposed to be taken against him after he had submitted his explanation in answer to the first show-cause-notice, there was no consultation with the Commission after the respondent had submitted his more elaborate explanation in answer to the second show-cause-notice. ;