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TMI Blog1963 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... e inclined to answer both the questions in the affirmative. Thus, the appellant, the Union of Union of India. succeeds on the first point, but fails on the second. At the hearing of this appeal, the learned Attorney-General told us that the appellant was fighting this appeal as a test case not so much to sustain the order of dismissal passed against the respondent is to obtain a decision from this Court on the two points of law raised by it in the present appeal. The above two points arise in this way. The respondent, H. C. Goel, joined the Central Public Works Department on the 26th November, 1941, and in due course, he was selected for appointment in Class I post in or about 1945-46. In January, 1956, he was posted as Surveyor of Works at Calcutta. It appears that he felt that his seniority had not been properly fixed and so, he had made a representation in that behalf to the Union Public Service Commission. He happened to go to Delhi about the middle of January, 1956. Then, he called on Mr. R. Rajagopalan, who was the Deputy Director of Administration, at his residence on the 19th January, 1956. His idea in seeing Mr. Rajagopalan was to acquaint him with the merits of his cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re him, and came to the conclusion that the charges framed against the respondent had not been satisfactorily proved. This report was made by the enquiry officer on the 10th April, 1956. The appellant considered the report submitted to it by Mr. Kapoor and provisionally came to the conclusion that the respondent should be dismissed from service, and accordingly issued a second notice against the respondent on the 14th June, 1956. The respondent submitted his explanation in response to this notice. At that stage, the respondent's case was referred to the Union Public Service Commission. By its report made on the 30th October, 1956, the Commission took the view that the first charge should be dropped; the second charge was hardly a matter justifying framing of a charge against the officer; the third charge had not been proved on the basis of the available evidence; and in view of the said conclusion, the Commission thought that the fourth charge failed automatically. The Commission accordingly advised the appellant that none of the penalties provided for in Rule 49 of the Civil Rules need be inflicted on the respondent. The appellant considered the matter afresh in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent steps taken by the appellant would be inconsistant with Art. 311 of the Constitution. On the other hand, if the competence of the appellant to differ from the conclusions of the enquiry officer cannot be seriously questioned, then the argument that the appellant contravened Art. 311 when it issued the second notice against the respondent cannot succeed. Article 311 consists of two sub-articles and their effect is no longer in doubt. The question about the safeguards provided to the public servants in the matter of their dismissal, removal or reduction in rank by the Constitutional provision contained in Art. 311, has been examined by this court on several occasions. It is now well-settled-that a public servant who is entitled to the protection of Art. 311 must get two opportunities to defend himself. He must have a clear notice of the charge which he is called upon to meet before the departmental enquiry commences, and after he gets such notice and is given the opportunity to offer his explanation, the enquiry must be conducted according to the rules and consistently with the requirements of natural justice. At the end of the enquiry, the enquiry officer appreciates the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l [1945] F.C.R. 103, High Commissioner for India and High Commissioner for Pakistan v. I. M. Lal 75, I.A. 225; and Khem Chand v. Union of India Ors. [1958] S.C.R. 1080. These reported decisions would show, that it has never been suggested that the findings recorded by the enquiry officer conclude the matter and that the Government which appoints the enquiry officers and directs the enquiry is bound by the said findings and must act on the basis that the said findings are final and cannot be reopened. The High Court has, however, held that there are certain observations made by the Federal Court in the case of I. M. Lal [1945] F.C.R. 103, and by this Court in the case of Khem Chand [1958] S.C.R. 1080 which support the respondent's contention that the appellant was bound by the findings recorded by the enquiry officer in his favour in the present enquiry proceedings Before referring to these observations, it is relevant to examine this contention on principle. It is obvious that the enquiry officer holds the enquiry against the respondent as a delegate of the appellant. That indeed is the character which the enquiry officer inevitably occupies when he holds a departmental enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the said notice must indicate to the public servant clearly the grounds on which the Government provisionally intends to act in imposing the proposed punishment specified in the notice. Besides, it would be apparent that if the respondent's argument is valid, then the second notice would serve very little purpose. If, at that stage, the Government is bound to accept the findings of the enquiry officer, the opportunity which is intended to be given to the public servant to show cause not only against the proposed punishment but also against the findings recorded against him, would be defeated, because on the respondent's case Government cannot alter the said findings. In our opinion, the contention raised by the respondent is patently unsound and must be rejected. In this connection, we may add that unless the statutory rule or the specific order under which an officer is appointed to hold an enquiry so requires, the enquiry officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if, however, the enquiry officer makes any recommendations, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government servant. It is obvious that when the learned Chief justice refers to the charges proved against the Government servant, it is not intended to be suggested that the findings made by the enquiry officer in that behalf arc final. The enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer and the report which he makes as a result of the said enquiry. Therefore, we have no hesitation in holding that the High Court was in error in coming to the conclusion that the appellant was not justified in differing from the findings recorded by the enquiry officer. As we have just indicated, if it is held that the report of the enquiry officer is not binding on the Government, then the Constitutional safeguard afforded by Art. 311(1) (2) cannot be said to have been contravened by the appellant and the grievance made by the respondent in that behalf must fail. This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it. The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorary will not issue without further proof of mala fides. That is why we are not prepared to accept the learned Attorney General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari' can be issued in favour of the respondent. That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney-General has stressed before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the respondent's version that he said so at the beginning of the interview is believed, particularly when it is supported by the complaint made by Mr. Rajagopalan, it may show that the stern disapproval expressed by Mr. Rajagopalan on hearing the said remark from the respondent must have acted as a warning to him. That, however is another Matter. Then, as to the hundred rupee note which according to Mr. Rajagopalan, was taken out by the respondent from his wallet, Mr. Rajagopalan has admitted that the said note was folded double. He says, that be noticed that its colour was blue and that its size was bigger than the usual ten rupee or five rupee note. Mr. Rajagopalan who appears to be a straightforward officer gave his evidence in a very honest way. He frankly told the enquiry officer that it could not be said that the hundred rupee note which he thought the respondent took out from his wallet had been offered to him by the respondent, but he thought that the whole thing had to be viewed in the context of the matter. He also admitted that his eye-sight was not perfect. The respondent, on the other hand, suggested that in reply to the questions which Mr. Rajagopalan pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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