- (1.) SHYAM Lal, applicant, was a member of the Indian Service of Engineers occupying the post of the Superintending Engineer, VI Circle in the Irrigation Department of the State ot Uttar pradesh. He was promoted to the rank of Superintending Engineer in August 1944 and was holding that post when the dispute in the case, that calls for decision, arose. The applicant passed his Civil Engineering Examination from the Thomason College, Roorkee, in 1922 standing first in his class. He was awarded the Council of India Prize of Rs. 1,000/- for being the best student of the year and a prize of Rs. 250/- for being the best Indian student of the year. He was also awarded the Cautley Gold Medal for the best Engineering design of the year. He was appointed in the Indian Service of Engineers in October 1923 by the Secretary of State for India in Council. At the time of his appointment the applicant was given a letter of appointment by the Secretary of State for India in Council which prescribed 'inter alia' the conditions governing the applicant's terms of appointment condition's of service, promotion, leave, pension etc. A copy of the letter has been annexed to the petition. After the attainment of Independence by India a fresh covenant was entered into between him, and the Governor of Uttar Pradesh and the Governor-General of india, by which the applicant's original conditions of service were confirmed. According to the applicant, he incurred the displeasure of certain colleagues in the service whose work he had the misfortune to criticise in connection with his routine duties as Superintending engineer, and those person's started making wrong reports against him. On January 4, 1950, the u. P. Government addressed a letter No. 43-B/xiii/277-B-1948 to the Chief Engineer, Irrigation branch, U. P. asking for the applicant's explanation in respect of certain charges. The charges related to certain alleged excess payments by him to certain contractors which, in the opinion of the Government, were unjustified. One of the charges, however, related to dishonest conduct,
(2.) THE applicant submitted his explanation to the charges to the Chief Engineer. It appears that thereafter the Chief Engineer sent his own note in reply to the applicant's explanation to the union Public Service Commission, which decided that the charge relating to dishonesty was not proved while the other charges were proved. On the arrival of this report, the President of India passed an order on the 17th of April 1953 compulsorily retiring the applicant from service with effect from the date of the handing over of the charge by the applicant. Before the order could be served on him, the applicant made an application to this Court under Article 226 of the constitution, praying that a writ of certiorari be issued quashing the President's order dated the 17th April, 1953, ordering the compulsory retirement of the petitioner. In this petition he alleged that the order had not yet been served on him and that it might be served on him at any time. He prayed for an 'ad interim' order directing the opposite parties, namely, the State of Uttar Pradesh and the Union of India to refrain from relieving the petitioner of his present post and from carrying into execution the aforesaid order. The grounds on which the petition was based was that the applicant was not given any reasonable opportunity to show cause against the action proposed to be taken against him, that he was merely asked to submit an explanation which he did but was not given an opportunity of controverting by evidence and argument the charges which were levelled against him or the remarks which were made against him by the Chief Engineer. When this application was presented to us, we considered that a 'prima facie' case had been made out and acceded to the request for the grant of an interim order, and directed that the order of 17th April 1953 be not carried into effect till the decision of this petition. Later, on the representation of the advocate-General on behalf of the State, the interim order was modified and we directed that the government may not if they like, take any work from the applicant but may pay him the salary till the decision of the application. We understand that the applicant has been drawing his salary during this time.
(3.) WE have now heard learned counsel on both sides and we have come to the conclusion that the applicant is not entitled to the relief claimed by him. The applicant relies upon Article 311 of the constitution. That Article provides "no person who is a member of a civil service of the Union or an all-India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2)No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. " There is a proviso to sub-article (2) which is not relevant for the purpose of the present case. In substance, Article 311 provides a twofold protection to an employee in the civil service of the union or of a State-- (a) that such an employee shall not be dismissed or removed by an authority subordinate to that by which he was appointed and (b) that such an employee shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The applicant's case is that he was 'removed' from service and, as such, he was entitled to a reasonable opportunity of showing cause against his removal, which he was not given.;