J.C. Shah, J.
1. Major U.R. Bhatt, who will hereinafter be referred to as the appellant was appointed Senior Inspector, (Fruit Products) in the Central Agricultural Marketing Department of the Government of India on April 9, 1946. The appellant was initially employed on probation for six months and his appointment was liable to be terminated without notice during probation and thereafter by notice of three months' duration on either side. The appellant continued to work as Senior Inspector till March 17, 1947. He was then served with a charge-sheet and called upon to show cause why he should not be dismissed or removed from service or otherwise punished. The appellant submitted his written statement on March 22, 1947. On March 25, 1947, he appeared before the Joint Secretary of the Agricultural Department and he was heard in person. The Joint Secretary made a report recommending that the appellant's employment be terminated according to the terms of the contract by giving him notice. The Minister Incharge of the portfolio concerned, however, directed an enquiry after framing fresh charges against the appellant and that in the meanwhile, he be suspended. On May 7, 1947, another charge-sheet was served upon the appellant. By that charge-sheet, he was charged with irresponsibility and insubordination and accordingly unfit to hold the post of Senior Inspector. The appellant submitted a reply to the charges. The case was then posted for hearing on June 9, 1947, before the Joint Secretary Ministry of Agriculture, who was appointed the Enquiry Officer. On that day, Sardar Bahadur Lal Singh, the Fruit Development Adviser was present at the hearing and was examined. The appellant objected to the procedure adopted by the Enquiry Officer in using marginal notes made by Sardar Bahadur Lal Singh on the representation made by the appellant. The case then stood adjourned to June 10, 1947. On that day, the appellant met the Enquiry Officer and intimated that he (the appellant) would not take further part in the proceeding, and promised the Enquiry Officer to send a letter explaining his reasons for withdrawing from the proceeding. The proceeding was then adjourned till June 13. The promised letter of the appellant was received on the 11th of June. The Enquiry Officer then submitted his report holding that the charges incorporated in the charge-sheet were substantially proved by the evidence on the record. The Holding that the appellant was "irresponsible, insubordinate and unreliable, and as such unfit to be kept in the post of the Senior Inspector" the Enquiry Officer recommended that he be dismissed from service from the date on which he was placed under suspension. The Governor General of India accepted the report and issued a notice to the appellant requiring _ him to show cause why he should not be dismissed from service. The appellant made his representation on November 10, 1947. The Governor General by order dated December 3, 1947, discharged the appellant from service with effect from the date of suspension. The appellant then served the statutory notice of suit upon the Government of India and filed Suit No. 442 of 1948 in the court of the Senior, Subordinate Judge at Delhi for a decree for a declaration that the order of discharge dated December 3, 1947, purporting to terminate the employment of the appellant was void and inoperative and that the appellant continued to remain in service. The appellant by his plaint challenged the validity of the order of discharge oil the ground that enquiry on fresh charges against him was illegal, that he was not given adequate opportunity to show cause or to put in his defence at the enquiry, that his suspension was illegal, that the procedure prescribed by law was not followed and that the order of discharge was mala fide and therefore void. At the hearing of the suit, the appellant also contended that the Public Service Commission not having been consulted as enjoined by Section 266 of the Government of India Act, 1935, the order terminating his employment was invalid. The learned Subordinate Judge held that the appellant was not justified in refusing to take part in the enquiry before the Enquiry Officer and that even though he had not been afforded adequate opportunity of defending himself as required byRule55 of the Civil Services (Classification, Control and Appeal) Rules, non-compliance with the rules did not confer a right upon the appellant to claim that his discharge from service was void and inoperative because the provisions of Section 240, Clause (3) of the Government of India Act 1935, had been substantially complied with. In the view of the Subordinate Judge, however, the Order discharging the appellant from service was void, because the Public Service Commission was not consulted before an order imposing punishment by way of discharge from service was passed against the appellant.
2. Against the order passed by the Subordinate Judge, an appeal was preferred to the District Court at Delhi. In appeal, the District Court set aside the decree of the trial court. The District Judge held that the provisions of Section 266 of the Government of India Act, 1935, was only directory and not mandatory and failure to consult the Public Service Commission did not render the order passed by the Governor General illegal. In second appeal, the High Court of East Punjab confirmed the decree passed, by the District Judge. The High Court held that failure to follow the procedure prescribed byRule55 of Civil Services (Classification, Control and Appeal) Rules was directly attributable to the appellants conduct and that it did not invalidate the order. The High Court also held that failure to consult the Public Service Commission did not invalidate die order because Section 266 of the Government of India Act was only directory and the only statutory protection afforded to a Government servant was that under Section 240 of the Government of India Act, he had to be given a reasonable opportunity to show cause against the proposed punishment and the appellant was afforded that protection. The appellant has appealed to this court with special leave granted under Article 136 of the Constitution.
3. The question whether the order dated December 3,1947, discharging the appellant from service was void because of failure to consult the Public Service Commission is not now open to be canvassed in view of the decisions of this court, and has, therefore, rightly not been raised by the counsel for the appellant. In the State of U. P. v. Manbodhan Lal Srivastava, this court held that
Article 320(3)(c) of the Constitution of India (which is substantially the same as Section 266 of the Government of India Act) is not mandatory and that it does not confer any rights on the public servant, and the absence of consultation or any irregularity in consultation does not afford him a cause of action in a court of law. It was also held that Article 311 of the Constitution is not controlled by Article
320. The content of the protection afforded to civil servants under Section 240, Clause (3) of the Government of India Act was the same as afforded by Article 311 of the Constitution, to civil servants.
4. Counsel for the appellant submitted that serious irregularities had occurred in the procedure followed by the Enquiry Officer, that Enquiry Officer had acted on materials which were not made available to the appellant and accordingly the appellant was deprived of a reasonable opportunity of making his defence. He also contended that the Governor General ought before passing an order of discharge to have held a fresh enquiry at which the witnesses for the State and for the appellant were examined, and after holding such an enquiry an order discharging the appellant from, service could be passed. In our view, there is no substance in this contention of the appellant. The appellant declined to take part in the proceedings before the Enquiry Officer after June 9, 1947. It is true that on the representation made by the appellant the Fruit Development Adviser had made certain remarks and the appellant felt aggrieved because his representation was shown to the Fruit Development Adviser. But that did not justify the appellant in refusing to participate in the enquiry. The submission of the appellant that the Fruit Development Adviser was not examined on June 9, 1947, has no substance. It is clear from the order recorded on June 10, 1947, that the Fruit Development Adviser had been examined and cross-examined on June 9, 1947, and the enquiry was thereafter adjourned till the next day. There is contemporaneous record made by the Enquiry Officer to support that view. Even in the petition Submitted by the appellant to the Governor General in reply to the notice dated October 31, 1947, in paragraph 2(h), the appellant stated that he had appeared before the Enquiry Officer on June 9, 1947, and the Enquiry Officer had on that day recorded the statement of the Fruit Development Adviser. It is true that the appellant in his examination before the trial court asserted that the Fruit Development Adviser had not been examined on June 9, l947 and Sardar Bahadur Lal Singh, the Fruit Development Adviser in his evidence stated that he did not remember whether he had been examined, on that day. The Enquiry Officer could not be examined at the trial because, as we are informed at the Bar, he had died before the suit was tried. The record maintained by the Enquiry Officer is however before the court. In His order, dated June 10, 1947, and his report submitted to the Minister concerned on June 11, 1947, in which he has categorically stated that the Fruit Development Adviser was examined on June 9, 1947, and it was thereafter that the appellant declined to take part in the proceedings. On June 10, 1947, two witnesses were specially kept present. As the appellant did not take part in the proceeding, the statements previously made by these witnesses were taken into consideration by the Enquiry Officer in making his report. The Enquiry Officer is not bound by the strict rules of the law of evidence and when the appellant declined to take part in the proceedings and failed to remain present, it was open to the Enquiry Officer to proceed on the materials which were placed before him. We are prepared to assume that the appellant had seen the statements made by these witnesses, which were tendered, but if the appellant's ignorance of their statements is the direct result of his own non-co-operation with the proceeding before the Enquiry Officer, we are unable to hold that the Enquiry Officer can be said to have proceeded on materials to which the appellant could not have access or that the Enquiry Officer did not give to the appellant a reasonable opportunity to show cause to establish that the charges against him were unfounded. Nor is there any substance in the contention of the appellant that the Governor General before passing the impugned order ought to have directed that witnesses be examined again in the presence of the appellant and that the appellant be afforded another opportunity to lead evidence.
5. As pointed out by this Court in Khem Chand v. Union of India, in dealing with what is contemplated by reasonable
opportunity to show cause in Article 311(2) of the Constitution.
"the reasonable opportunity envisaged by the provision under consideration includes: (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges leveled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant."
The content of the reasonable opportunity under Article 311 of the Constitution is the same as in Section 240(3) of the, Government of India Act.
6. Counsel for the appellant contends that the observations made by Chief Justice Das indicate that at both the stages, namely, first before the Enquiry Officer and secondly, before the authority competent to impose punishment, the public servant concerned should be afforded the three opportunities set out in the judgment in Khem Chand's case, . But this contention is, in our judgment, devoid of force. On page 1099 (of SCR) the learned Chief justice observed approving the view of the Privy Council in High Commissioner for India v. I.M. Lal that if the public servant has been
through the enquiry under Rule 55. It would not be reasonable that he should ask for a repetition at that stage if duly carried out, which implied that if no enquiry has been held under Rule 55 or any analogous rule applicable, then it will be quite reasonable for him to ask for an enquiry. It is evident that an opportunity to show cause is reasonable even if it does not contemplate a further opportunity to examine witnesses provided there has been a fair and full enquiry at an earlier stage before the Enquiry Officer. In the present case there was an inquiry held before the Enquiry Officer. The Enquiry Officer had afforded to the appellant an opportunity to remain present and to make his defence. It is true that all the witnesses of the State who could have been examined in support of their case were not examined | viva voice, but that was because of the conduct of the appellant who declined to participate in the enquiry. He declined to take part in the proceeding and the Enquiry Officer was, in our view, justified in proceeding to act upon the materials placed before him. Once the appellant expressed a desire not to take further part in the proceeding of the Enquiry Officer, that Officer was entitled to proceed exporter and to act upon the materials placed before him. The enquiry made by the Enquiry Officer cannot therefore be challenged either on the ground of unfairness or incompleteness, the appellant having been afforded the protection of the Constitution guaranteed under Section 240, Clause 3 of the Government of India Act. The order of discharge from service passed against him by order of the Governor General is not liable to be questioned on the ground that the materials may not have justified the passing of that order. It is not within the competence of the civil court to sit in judgment over the decision of the authority who is competent by law to dismiss a public servant provided he has been afforded an opportunity to defend himself consistently with the substance of the constitutional guarantee.
7. On that view, this appeal must fail and is dismissed. There will be no order as to costs.