Sinha, J. - (1.) The petitioner in this case was employed in the Indian Ordnance Factories, Metal & Steel Factory, Ishapore, which, is run under the Ministry of Defence, Government of India. On or about 2-4-1940 he was holding a civilian post under the Army Department as a godown keeper, senior grade in the pattern shop. It is not denied that this is a service coming under the description 'subordinate services' as dealt with in Part IX of the Civil Services (Classification, Control and Appeal) Rules. It appears from the affidavits that in or about that time, information reached the security staff of the factory that various irregularities were taking place in the belting section and that unauthorised works were being carried out. Mr. Dugal of the security staff is stated to have received certain definite information on 29-8-1951 and paid a surprise visit to the belting section. He found that one Sabdar Hossain, Beltman, was preparing a pair of new leather Sandals from material belonging to the Government but without any authority to do so and without the knowledge of his superior officers. Upon being questioned the workman said that it was a pair of chappals belonging to Atin Babu, the petitioner. Thereafter the petitioner was served with a charge-sheet dated 6-9-1951. The charges were two in number & are set out in Para, 2 of the petition. The first charge was that a wrongful order was given by the petitioner to the workman to prepare a pair of new leather Sandals and the second charge was that materials belonging to the Government were supplied for the purpose of preparing the Sandals on a false plea that it was required against a certain requisition made by the Power House. The petitioner was given 7 days' time to answer the charge-sheet which he did on 11-9-1961 denying the charges. Thereupon, a Court of enquiry was formed, which called upon the petitioner to answer the charges. Upon the petitioner's application, the Court caused the official records to be produced before it. Witnesses were examined and the petitioner was given the fullest opportunity of cross-examining witnesses deposing against him. The report of the Court of enquiry was however not disclosed to the petitioner, nor was he given a copy of such report. On or about 9-3-1952, an order dated 29th February4th March 1952 passed by the Director General, Ordnance Factory, was served upon the petitioner, stating that the Director General had carefully examined the proceedings of the Court of enquiry and had come to the conclusion that both the charges had been established as true and the petitioner was asked to show cause why he should not be removed from service. The petitioner thereupon duly submitted his explanation. On or about 12-6-1952 an order was served upon the petitioner removing him from service. On or about 22-7-1952 the present Rule was issued.
(2.) The case of the petitioner is based on Rule 55, C.S. (C.C.A.) Rules. It is said that this Rule has not been complied with because the copy of the report of the Court of enquiry was not made available to the petitioner before he was asked to show cause why he should not be removed from service. The Rule as it appears in the Fundamental Rules does not say or lay down that any copy of such report should be supplied, but it appears from the notes appearing at the bottom of the Rule that there exists some kind of an executive instruction to the effect that the Government servant concerned should be supplied with a copy of the report of the enquiring authority before he was called upon to show cause. The reason for this is to be found in the case of 'High Commrs. for India & Pakistan v. I.M. Lall', AIR 1948 PC 121. The facts of that case are shortly as follows:
(3.) I.M. Lall was a member of the Indian Civil Service. It, appears that Government decided at some point of time to hold a departmental enquiry under Rule 55, C.S. (C. C. A.) rules against him and eight charges were framed. He put in his written statement in answer to the charges and one Mr. J.D. Anderson, Commissioner, Rawalpindi Division, was appointed to hold the departmental enquiry. Mr. Anderson examined Mr. Lall when he pleaded guilty to the first two charges and denied the rest. Mr. Anderson did not examine any witnesses but made his report to the effect that the remaining six charges were unproven and there should be a further and fuller enquiry. This report was not disclosed to Mr. Lall but one Mr. Brayne was deputed to complete the enquiry. He did so and made a report. Mr. Lall, was then served with notice to show cause why he Should not be dismissed, removed or reduced in rank or subjected to such disciplinary action as the competent authority might think fit to enforce. It was held that Mr. Lall had not had a "reasonable opportunity" of showing cause as he was entitled to have under Section 240 of the Government of Indian Act 1935. The Judicial Committee agreed with the following observation of the Federal Court: "It seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given a reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that what punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given reasonable opportunity of showing cause why such punishment should not be imposed." It was held that Mr. Lall was entitled to receive a copy of the report of the Court of enquiry before he was called upon to submit his explanation. It was pursuant to this decision of the Federal Court that the Government issued an executive instruction directing a copy of the report of the Court of enquiry to be furnished to a Government servant before he was called upon to furnish his explanation. It will be observed that in 'Lall's case, (A)', a variety of alternative penalties were proposed to be imposed and he did not know what was the penalty to which he would be subjected to and the particular offence connected with it. Coming to the facts of the present case, it is firstly argued that the petitioner is not governed by Rule 55 of the C.S. (C.C.A.) Rules but by rules based on the Army Instructions (India) No. 212 which was promulgated by Government on 25-6-1949. I have been informed that these Rules were framed in respect of civilians paid from the Defence Services estimate. So far as the conduct of the enquiry in this particular case is concerned, the Rules contained in the Army Instruction have been followed and no other Rules. According to the Army instructions it is unnecessary to serve the public servant concerned with a copy of the report of the Court of enquiry. It is argued that there was no reason why Rule 55 of C. S. (C.C.A) Rules should not apply as the petitioner holds a civilian post. But it must not be overlooked that the petitioner does not hold a civilian post 'simpliciter' but a civilian post which is paid out of the army estimate.;