Patna High Court
Champra Oraon vs State Of Bihar And Ors. on 1 April, 1959
Equivalent citations: AIR1959PAT382, AIR 1959 PATNA 382
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT R.K. Choudhary, J.
1. This is an application tinder Article 226 of the Constitution. The petitioner was a permanent Lower Division Clerk of the Registration Depart-
ment and was attached to the Sub Registry Office at Gumla, in the district of RancM. He was confirmed in the post on the 3rd of November, 1948. On the 16th of November, 1954, the petitioner took Re. I/- from respondents 4 and 5 when they had gone in the Registration Office for registration of certain document. On the 21st of November, 1954, the District Registrar (Deputy Commissioner) Ranchi, respondent No. 2, alone with the Sub-divisional Officer, Ranchi, respondent No. 3, had visited village Semra Bartoli, where respondents 4 and 5 resided, in connection with an inspection tour in Chainpore police station.
It appears that respondents 4 and 5 reported to them there that the petitioner had taken Re. 1/-from them by way of illegal gratification. The Dis-trict Registrar forwarded these two persons the next day to the Sub-divisional Officer, Gumla for recording their statements. Accordingly, on 22-11-1954, the Sub-divisional Officer took their statements without any notice to the petitioner, and, on the basis of their statements, the District Registrar, respondent No. 2, issued notice, which is annexure A to the petition, calling upon the petitioner to show cause within a week as to why he should not be dismissed for having realised Re. 1/- as illegal gratification from respondents 4 and 5.
This notice was served on the petitioner on 23-11-1954, and he filed a written petition showing cause. It appears that the Additional Publicity Officer, Gumla, gave to the Sub Registrar, Gumla, some fifteen 'tokens', valued at Re. 1/- each, for sale to the registrant public in his office in aid of Goshala during the "Go Samvardhan Week", which was being celebrated at the instance of the Government of Bihar. In the show cause petition, the petitioner stated that the Sub Registrar did not like to sell the tokens personally and he entrusted the petitioner, who was the only assisting hand find the only clerk available to the Sub Registrar in his Office on 16-11-1954, with the job of selling the tokens.
It was also stated that the Sub Registrar told him that it was a part of Government work and he should join and co-operate in raising such funds by persuading the people to purchase the tokens voluntarily. The petitioner further stated that, as most of the persons refused point blank to oblige the Sub Registrar in the matter of purchase of the tokens, he gave the petitioner instructions and indications to approach some of the persons and to talk to them privately and generally out of his office and out of his Sight also to persuade them to purchase the tokens, and, accordingly, the petitioner had to go out of the office-room to persuade the registrant public to purchase the tokens voluntarily.
His case is that, in connection with the purchase of the said tokens, he realised Re. 1/- from respondents 4 and 5, not by way of any illegal gratification, but by sale of one of the tokens to them. On receiving this show-cause petition, the Subdivi-sional Officer called for a report from the Sub Registrar, who submitted his report on 30-11-1954 denying to have asked the petitioner to sell the tokens, and he stated that the tokens were sold by him to some of the registrants and that tokens, if ever sold under his instructions to the registrants, were sold before him. This report appeared to the Sub-divisional Officer to be vague, and he called for a further report from the Sub Registrar.
The Sub Registrar then submitted his second report on 3-12-1954. In that report, again, he denied to have asked the petitioner to sell the tokens independently of him. The petitioner had no knowledge of the order of the Sub-divisional Officer calling for reports from the Sub Registrar or of the two reports submitted by him by way of explanation, and all these things were done behind the back of the petitioner. After receiving the findings from the Sub-divisional Officer, the District Registrar, respondent No. 2, passed an order which runs as follows :
"Perused record and the findings of the S. D. O. I agree with the findings of the S. D. O. The charger has been established. It is a serious charge and I am of opinion that he should be dismissed. Let him show cause within a week of receipt of my order as to why he should not be dismissed".
Then, on 13-10-1955, the petitioner filed his show-cause petition for the second time making the same-allegations as in his first show-cause petition and complaining against taking of the statements of the-Sub Registrar behind his back. On 23-11-1955, respondent No. 2, passed final order discharging the petitioner from service. That Older runs as follows :
"Perused the second show cause against dismissal. I am not prepared to accept the plea put forth by Sri Ghamra Oraon. I am inclined to hold that he-is trying to aloud the issue by bringing in the question of sale of tokens. It is of course improper on the part of the Sub Registrar to arrange for sale of tokens for which I am going to call upon him to explain separately, but in this particular instance I am inclined to hold that Sri Chamra Oraon is putting up a false plea. If he was only selling tokens which were given to him by the Sub Registrar then there was no necessity of his coining out of the office and quietly realising Re. 1/-. He could have as well as realised the amount in the office in the presence of the Sub Registrar. Secondly those from whom the money was realised have not stated anywhere-that this amount was realised in lieu of tokens. Their allegation in that case would have been that some tokens were forced on them but that is not the allegation. The allegation is clear that Re. 1/- was realised from them which the clerk had no business to do.
The charge has been proved and I do not consider the explanation furnished by Sri Chamra Oraon satisfactory. As however the amount is small I am giving him the consideration of discharging him from service instead of dismissing him. He is discharged from service with immediate effect. Orders should be conveyed to him immediately." This order was communicated to the petitioner on 26-11-1955. Hence, he has filed this application for issue of a writ in the nature of certiorari quashing the order of discharge passed against him.
2. Notice was issued by this Court on the respondents to show cause as to why the above order of discharge should not be quashed, and cause has-been shown by respondent No. 2, the District Registrar (Deputy Commissioner), Ranchi by filing a counter-affidavit sworn by one Sachchidanand Sinha, an employee in the office of the Deputy Commissioner. In that counter-affidavit, it has been stated that at no stage of the proceedings did the petitioner ever ask for any opportunity either to be heard in person or to cross-examine the witnesses examined or for having such witnesses called for, as he might wish but it has not been denied that the statements of the above persons were taken behind the back of the petitioner without giving him any opportunity to cross-examine them.
3. In support of the petition, Counsel for the petitioner has submitted that no opportunity was given to the- petitioner, as required by law, to test the correctness of the statements of respondents 4 and 5 and the Sub Registrar by cross-examining them, and, as such, the order of discharge is void and ought to be quashed.
4. In support of the contention, reliance has been placed on Rule 1, set out in appendix II, at p. 327 of the Bihar Registration Manual, 1946, Volume II. This rule runs as follows.
"Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of the subordinate service unless he has been informed in writing of the grounds on which it is proposed to 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 the 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 order 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 de-
sires to be heard in person. If he so desires or if the authority concerned so directs, an oral inquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not ad-mitted 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 inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness".
It is manifest from the above rule that the petitioner had to be required to put in a written statement of his defence and to state whether he desired to be heard in person, and at the enquiry he was entitled to cross-examine the witnesses on whose statements the charge levelled against him was to be established. It is not known as to under what authority the above rule was made Paragraph 72 of the Instructions and Orders issued for the guidance of the Registration Department states that the Government rules regarding the dismissal or reduction of salary of Government servants, printed in Appendix II shall be followed by all registering officers, and in the very beginning of those Instructions and Orders it is stated that the word 'Rule' wherever used means a rule framed under Section 69 of the Indian Registration Act (XVI of 1908).
Thus the above rule appears to have been fram-
ed under Section 69 of the Indian Registration Act. Moreover, under the proviso to Article 309 of the Consti-
tution, the Governor of a State has been empowered to make rules regulating the recruitment and the conditions of service of persons appointed to posts in connection with the affairs of the State until provision in that behalf is made by or under an Act of the appropriate Legislature under that article, and any rules so made shall have effect subject to the provisions of any such Act. In exercise of the power conferred by the above proviso, the Governor of Bihar, by notification no. 3555-3L-27./50-A, dated 15-4-1950, published in the Bihar Gazette dated 26-4- 1950, made the following rule, namely :
"All enactments, rules and orders, whether made under any enactment or otherwise, which re-
gulated the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs which are now the affairs of the State of Bihar and which were in force immediate-ly before 26-1-1950, shall until provision is made by or under an Act of the State Legislature to regulate such recruitment and conditions of service, be in force as if they had been made by virtue of the powers under the said proviso", There is no doubt, therefore, that the rule referred to above has a statutory force, and the petitioner was entitled to be given an opportunity to cross-examine ' the witnesses on" whose evidence the order of his dis-
charge was based. It may be noted that a part of the case of the petitioner is admitted by the Sub-Registrar as regards his having been asked by the Additional Publicity Officer to sell the tokens. The only question that remained for consideration by the authority was whether the petitioner was entrusted by the Sub Registrar to sell them or not. The petitioner should have been given an opportunity to cross-examine the Sub Registrar in order to establish his case that he was entrusted by the Sub Registrar to sell the tokens and that he realised Re. 1/- from respondents 4 and 5 by sale of one of the tokens to them and not by way of illegal gratification. As that was not done, the order of discharge must be held to have been passed in contravention of the statutory provision as contained in the above rule, and, therefore, to be void.
5. A similar view was taken by a bench of the Orissa High Court in Shyam Sunder Misra v. State of Orissa, AIR 1957 Orissa 222. Rule 4 of Madras Government Order No. 3600, L and M dated 8-9-1932, gave three distinct rights to public servants viz. (1) right to be heard in person if he so desired, (2) right to cross-examine the witnesses in respect of those allegations which were not admitted in his explanation and (3) right to adduce rebutting evidence on his behalf. In that case, the petitioner had waived his right to be heard in person, but no opportunity was given to him to cross-examine the witnesses on whose statements charges were levelled against him, and it was held that the order of punishment passed against the petitioner was in contravention of law and the principles of natural justice. In an earlier Bench decision of this Court in Copi Ki-shore Prasad v. State of Bihar AIR 1955 Pat 372, the view taken is that a person should not be condemned on ex parte statements and no order of removal or discharge should be passed against a Government servant unless he had been given a real and effective opportunity of refuting the statements upon which his notice of discharge was based.
6. For the reasons given above, it is manifest that the order of discharge passed in this case against the petitioner is void and must be quashed.
7. The application is, accordingly, allowed with costs and a writ in the nature of certiorari is issued quashing the order of discharge passed against the petitioner. Hearing fee Rs. 150/-.
V. Ramaswami, C. J.
8. I agree.