- (1.) This is an appeal by special leave and the only question for decision is if the order of the President dated October 1, 1954 removing the appellant from service with effect from that date is invalid, as claimed by the appellant, by reason of a contravention of the provisions of Art. 311 (2) of the Constitution.
(2.) The short facts are these. The appellant stated that he joined permanent Government service, on April 4, 1924. In 1947, before partition, he was employed as Assistant Secretary, Frontier Corps of Militia and Scouts in the then North -Western Frontier Province, under the administrative control of the External Affairs Department of the Government of India. The appellant stated that the post which he held then was a post in the Central Service, Class II. After partition, the appellant opted for service in India and was posted to an office under the Ministry of Commerce in the Government of India in October, 1947. In December, 1949 he was transferred to the office of the Chief Controller of Imports, New Delhi, to clear off certain arrears of work. In August 1951 he was posted as Deputy Chief Controller of Imports, Calcutta, and continued to work in that post till September, 1952. He then took four months' leave on average pay and on the expiry of his leave on January 24, 1953, he was transferred as Section Officer in the Development Wing of the Ministry of Commerce. The appellant thought that the order amounted to a reduction of his rank and he made certain representations. As these representations bore no fruit, he applied for leave preparatory to retirement on February 6, 1953. In that application the appellant stated: "Normally I am due to retire in April 1956 but I find it difficult to reconcile myself to the new conditions of service under which I am now placed to work. I find that I would not be wasting only myself but I would also not be doing full justice to the interest of my Government and country in my present environment. Under the circumstances, I pray that I may be permitted to retire from the 1st May 1953." On February 14, 1953, the appellant amended his leave application and said that he had been informed by the Administrative Branch of the Development Wing that the question of permission to retire was under consideration, because of some difficulty with regard to the inclusion in the service of the appellant the period during which he held the post of Assistant Secretary, Frontier Corps; therefore he said that he might be granted leave on full average pay for four months with effect from February 15, 1953, if the decision to give him permission to retire was likely to be postponed beyond May 1, 1953. He amended his leave application by making the following prayer: "Leave may be sanctioned for four months from the 15th February, 1953 or up to the date from which I am permitted to retire whichever may be earlier." On March 10, 1953, the appellant was informed that he could not be allowed to retire at that stage, but the Ministry had agreed to grant him leave from February 16, 1953 to April 30, 1953. The appellant then went on leave and on February 1953, he wrote to Government to say that he was contemplating to join the service of Messrs. Albert David and Co. Ltd., Calcutta, and for that purpose he was accepting a course of training in that Company for two months. In April, 1958, the appellant accepted service under Messrs. Albert David and Co. Ltd., and he wrote to Government to that effect on April 6, 1953. On June 16, 1958, the appellant was charged with having violated R. 15 of the Government Servants' Conduct Rules and Fundamental Rule 11. Rule 15 of the Government Servants' Conduct Rules states, inter alia, that a Government servant may not without the previous sanction of Government engage in any trade or undertake any employment other than his public duties. Fundamental Rule 11 says in effect that unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government which pays him. A. P. Mathur, Joint Chief Controller of Imports, was asked to hold an enquiry against the appellant on the charge mentioned above. The appellant submitted an explanation and an enquiry was held by A. P. Mathur in due course. The Enquiring Officer submitted his report on September 12, 1958, in which he found that the appellant had, contrary to the rules governing the conditions of his service, accepted private employment without previous sanction of Government during the period when he was still in Government service. On April 14, 1954, the appellant was asked to show cause in accordance with the provisions of Art. 311(2) of the Constitution. As the whole of the argument in this case centres round this show cause notice, it is necessary to set it out in full; "Sir, I am directed to say that the Enquiry Officer appointed to enquire into certain charges framed against you has submitted his report; a copy of the report is enclosed for your information. 2. On a careful consideration of the report, and in particular of the conclusions reached by the Enquiry Officer in respect of the charges framed against you the President is provisionally of opinion that a major penalty, viz., dismissal, removal or reduction should be enforced on you. Before he takes that action, he desires to give you an opportunity of showing cause against the action proposed to be taken. Any representation which you may make in that connection will be considered by him before taking the proposed action. Such representation, if any, should be made, in writing, and submitted so as to reach the undersigned not later than 14 days from the receipt of this letter by you. Please acknowledge receipt of this letter. Yours faithfully, Sd. S. Bhoothalingam, Joint Secretary to the Government of India." The appellant then showed cause and on October 1, 1954, the President passed an order in which it was stated that after taking into consideration the report of the Enquiring Officer and in consultation with the Public Service Commission, the President found that the charge had been proved against the appellant and the appellant was accordingly removed from service with effect from that date.
(3.) The appellant then moved the Punjab High Court by a petition under Art. 226 of the Constitution in which his main contentions were (a) that he had no opportunity of showing cause against the action proposed to be taken in regard to him within the meaning of Art. 311(2) of the Constitution and (b) that he had asked for leave preparatory to retirement and accepted service under Albert David and Co. Ltd., in the bona fide belief that Government had no objection to his accepting such private employment. Dulat J., who dealt with the petition in the first instance, held against the appellant on both points. He found that there was no contravention of the provisions of Art. 311(2) of the Constitution and on the second point, he held that on the facts admitted in the case there was no doubt that the appellant had accepted private employment in contravention of the rules governing the conditions of his service and there was little substance in the suggestion of the appellant that he had no sufficient opportunity to produce evidence.;