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TMI Blog1965 (2) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged by the respondent by filing a suit in the Court of the first Additional District Judge at Nagpur. In his plaint, the respondent alleged that the impugned order whereby he was compulsorily retired, was invalid and he claimed a declaration that it was ultra vires and inoperative. He also asked for a declaration that he was entitled to be restored to the post which he held on July 6, 1950, and that he should be given all pay, allowances. increments and promotions to which he would have been entitled if he had been permitted to continue in service. In the result, the respondent asked for a decree for ₹ 62,237 with interest at 6 per cent per annum from the date of the suit till realisation. This claim was resisted by the appellant on several grounds. The principal ground on which the appellant challenged the respondent's claim, however, was that he had been given a reasonable opportunity to defend himself, and so, the impugned order was perfectly valid, and legal. Several other pleas were also raised by the appellant. On these pleas, the learned trial Judge framed appropriate issues. The issue with which we are concerned in the present appeal, however, centered round ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court. In the result, the High Court allowed the appeal and passed a money decree for ₹ 37,237 in favour of the respondent in terms of prayer (A) of paragraph 31 of the plaint. The appellant then applied for and obtained a certificate from the High Court and it is with the said certificate that it has brought the present appeal before this Court. That is how the main question which falls for our decision is whether the constitutional provision prescribed by Art. 311 has been complied with by the appellant before it passed the impugned order. At this stage, it may be relevant to refer to some material facts. The respondent was appointed as Extra Assistant Commissioner in 1926 and since then he had been holding various offices in the State service of the then Madhya Pradesh Government. In 1950, he was holding the post of a Treasury Officer at Nagpur. It appears that privilege leave for over a year was due to him and he had applied for four months' privilege leave. On June 12, 1950, Government informed him that his request for leave was rejected and he was told that no further application for leave would be entertained in future. On July 7, 1950, the respondent proceeded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed to hold the. enquiry. On November 29, 1950, Mr. Mehta wrote to the respondent that Government had directed him to conduct the departmental enquiry, and called upon the respondent to attend his office on December 7, 1950, at 11.00 a.m. The respondent, however. did not appear before him and wrote to Mr. Mehta that owing to his illness, he was unable to appear before him. He again pleaded that he was seriously ill. On January 15, 1951, Mr. Mehta served the respondent with a charge-sheet. Three charges were framed against him. The first charge was that he had deliberately disobeyed the orders of Government when he was asked to get himself admitted in the Mayo Hospital for observation and investigation. The second charge was that he had failed to report for duty even though no leave was sanctioned to him by Government and he was specifically ordered by Government to report for duty. The third charge was that he had persistently disobeyed the orders of Government and he had thereby shown himself unfit to continue as a member of the State Civil Service. Material allegations on which reliance was placed against the respondent in support of these charges were also specified und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 20, 1951, and when the respondent did not appear on the said date, Mr. Mehta proceeded to examine the documentary evidence showing the failure of the respondent to comply with the orders issued by Government and made his report on November 24, 1951. He found that the three charges framed against the respondent were proved. In his report, Mr. Mehta observed that the conduct of the respondent and the language used by him from time to time in his communications .discloses an attitude of disobedience and insubordination which no Government can tolerate from its subordinate officers . We may incidentally observe that the comment thus made by Mr. Mehta in regard to the communications addressed by the respondent to him appears to us to be fully justified but, in our opinion, this aspect of the matter cannot have any material bearing on the question with which we are concerned. The validity of the impugned order must be judged objectively without considering the impropriety of the language used by the respondent or the reluctance shown by him to appear before Mr. Mehta. In his report, Mr. Mehta has also observed that when the respondent met him, he explained to him that the case did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l evidence cannot be treated as a mere subterfuge to prolong the enquiry. It is true that the respondent did not give a list of his witnesses; but he had named his doctors in his communications to Mr. Mehta, and in fact Mr. Mehta never fixed any date for taking the evidence of the witnesses whom the respondent wanted to examine. If Mr. Mehta had told the respondent that he would take the evidence of has witnesses on a specified date and the respondent had failed to appear on the said date with his witnesses, it would have been an entirely different matter. Therefore, the position is that Mr. Mehta did net hold an oral enquiry and did not give an opportunity to the respondent to examine his witnesses and so, the question which arises for our decision is: does the failure of Mr. Mehta to hold an oral enquiry amount to a failure to give a reasonable opportunity to the respondent within the meaning of Art. 311. The requirements of Art. 311(2) have been considered by this Court on several occasions. At the relevant time, Art. 311(2) provided that no person to whom Art. 311 applies shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take action, and. has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each. charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called. as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing. refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. It appears that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regulated by him in his discretion. If the charge-sheeted officer starts cross- examining the departmental witnesses in an irrelevant manner, such cross-examination can be checked and controlled. If the officer desires to examine witnesses whose evidence may appear to the enquiry officer to be thoroughly irrelevant, the enquiry officer may refuse to examine such witnesses; but in doing so, he will have to record his special and sufficient reasons. In other words, the right given to the charges heated officer to cross- examine the departmental witnesses or examine his own witnesses can be legitimately examined and controlled by the enquiry officer; he would be justified in conducting the enquiry in such a way that its proceedings are not allowed to be unduly or deliberately prolonged. But, in our opinion it would be impossible to accept the argument that if the charge-sheeted officer wants to lead oral evidence, the enquiry officer can say that having regard to the charges framed against the officer. he would not hold any oral enquiry. In the present case, the witnesse whom the respondent wanted-to examine; would undoubtedly have given relevant evidence. If the doctors who treat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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