V.Bhargava, J. - (1.) Rama Shanker Srivastava who has filed this petition under Article 226 of the Constitution was an employee in the Northern Railway. He was originally selected for appointment by the East Indian and Oudh and Trihut Railway Joint Service Commission for the post of a ticket collector and was then appointed as such on 29-8-1949. According to the opposite party, the Divisional Superintendent, Northern Railway, Allahabad, the actual date of appointment was 6-9-1949. The exact date of appointment being immaterial, it is not necessary to express any view as to which of the two dates is correct. On 20th of July 1950, a charge sheet was served on the petitioner by the Assistant Superintendent Commercial specifying seven forms of punishment and calling upon the petitioner to show cause why the penalty of dismissal or any lesser penalty be not imposed on him on the grounds mentioned in the charge sheet. The petitioner was allowed seven clear days from the date of the receipt of the notice to give his explanation and was told that any representation which he made in that connection would be taken into consideration by the competent authority before passing orders. It was also stated in the charge sheet that since the maximum penalty specified included removal from service and dismissal from service, he should state, while giving his written explanation to the charge sheet, whether he desired to be heard in person. The petitioner submitted his explanation. There is no information on the record whether he expressed any desire to be heard in person. His explanation was considered and by the letter dated 14/16-9-1950, intimation was sent to the petitioner that the Assistant Superintendent Commercial considered that the petitioner was thoroughly unreliable and not fit for service and that in the circumstances he had passed an order removing the Petitioner from service after giving him pay in lieu of notice under the agreement with him. The petitioner filed an appeal before the Divisional Superintendent, the dismissal of which was communicated to him by the letter dated 23/28-11-1950. Then a period of about four years elapsed, whereafter the petitioner was ordered to be restored to duty." This order was communicated to the petitioner by the letter dated 10-4-1954. Subsequent to his restoration on 23-4-1954, the petitioner was again suspended and the order of suspension specified that he would be allowed subsistence allowance and other admissible allowances during the period of suspension. On 14-6-1954, the petitioner filed an appeal to the Divisional Superintendent against this order of suspension and according to the petitioner no orders were passed on it. On 9-2-1955, the petitioner received by post a letter dated 8-2-1955, under the signature of the Divisional Commercial Superintendent that the latter had, after considering the explanation of the petitioner to the charge sheet dated 12-7-1950, formed provisionally the opinion that he should be removed from service on account of certain charges specified in the letter. The petitioner in that letter was given seven clear days' time from the receipt of it to show cause why the proposed penalty should not be inflicted on him. He was also told that any representation that he might make in this connection would be taken into consideration before passing final orders. The petitioner on 15-2-1955, replied to this letter and claimed that he was entitled to a full enquiry according to the amend-ed Rule 1709 of the Railway Establishment Code. Thereupon an order was passed against the petitioner which was communicated to him by letter dated 4-3-1955. The order was to the effect that the petitioner be removed from service with effect from 7-3-1955. Thereupon this petition was filed by the petitioner on 11-4-1955.
(2.) The main ground on which the petitioner filed this petition was that at the time when the notice contained in the letter dated 8-2-1955, was served on him no enquiry was held though he desired such an enquiry and consequently his dismissal was wrongful. It appears to be clear from the facts given above that this notice contained in the letter dated 8-2-1955, was sent for the purpose of complying with the provisions of Article 311 of the Constitution under which no punishment of dismissal or removal can be awarded unless the person against whom such action is sought to be taken Is given an opportunity to show cause why such action should not be taken against him. The question is whether at this stage the petitioner was entitled to claim an enquiry by which the petitioner obviously meant that he should be given an opportunity to disprove the charges against him by adducing his evidence in that behalf. The petitioner of course claimed that the enquiry should be held in accordance with Rule 1707 of the Discipline and Appeal Rules contained in the Railway Establishment Code. That the petitioner has a right to claim an enquiry even at the stage when a notice is served on him for the purpose of complying with the provisions of Article 311 of the Constitution can no longer be doubted. Article 311 of the Constitution lays down for cases such as the case of the petitioner that no such person 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. The expression "reasonable opportunity of showing cause" was interpreted by a Division Bench of this Court in the case of -- 'Ravi Pratap Narain Singh v. State of Uttar Pradesh', AIR 1952 All 99 (A), in which the view expressed in an earlier Bench Case -- 'Avadhesh Pratap Singh v. State of Uttar Pradesh', AIR 1952 All 63 (B), was follow-ed and approved. The expression "showing cause" was held to connote" an opportunity of leading evidence in support of one's allegation and in controverting such allegations as are made against one." It is obvious that it cannot be said that an opportunity of showing cause was granted when the petitioner was only called upon to submit a written explanation was not clearly told what the entire evidence against him was and was not afforded an opportunity to controvert the charges by adducing his own evidence.
(3.) In the -- 'High Commissioner for India v. I. M. Lail', AIR 1948 PC 121 (C), their Lordships of the Privy Council also had occasion to deal with the question whether a civil servant had a right of enquiry at the stage when a notice is served on him under Section 240, Sub-section (3), Government of India Act, 1935, which was to the same effect as Clause (2) of Article 311 of the Constitution. Their Lordships held as follows ; "Their Lordships agree with the view taken by the majority of the Federal Court. In their opinion Sub-section (3) of Section 240 was not intended to be, and was not, a reproduction of Rule 55 which was left unaffected as an administrative rule. Rule 55 is concerned that the Civil Servant shall be informed "of the grounds on which it is proposed to take action", and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of 'a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined on prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-section (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry 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 enquiry." Their Lordships have, therefore, definitely laid down that at the stage when notice under Sub-section (3) of Section 240, Government of India Act, 1935, was served, the civil servant" had the right of a statutory opportunity being reasonably afforded to him even though an earlier opportunity had already been afforded under Rule 55 of the Civil Service Classification and Control Rules. The contention of learned counsel for the opposite party in this petition that the petitioner has no such statutory right must, therefore, be rejected.;