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Cites 4 docs
Article 311(2) in The Constitution Of India 1949
Article 311 in The Constitution Of India 1949
The Indian Penal Code
Article 226 in The Constitution Of India 1949
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K.A. Kannappa Chetti vs State Of Tamil Nadu And Ors. on 19 April, 1973
Union Of India vs Sudhansu Mazumdar & Ors on 29 March, 1971

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Allahabad High Court
Saghir Ahmad Molvi Hazir Ahmad vs State Of Uttar Pradesh And Ors. on 12 March, 1959
Equivalent citations: AIR 1960 All 270
Author: S Dhavan
Bench: S Dhavan

ORDER S.S. Dhavan, J.

1. This is a petition under Article 226 of the Constitution impugning the legality of an order dated 30-4-1958 passed by Mr. R. N. Dey, I.C.S., Commissioner, Rohilkhand Division, dismissing the petitioner from service under the State of Uttar Pradesh as Supervisor Kanungo. The petitioner has filed a long and rambling affidavit containing the entire history of his case from the year 1947 when he first got into trouble uptill the date of his dismissal in 1958. After looking into the entire record (which consisted of several hundreds of foolscap typed pages) I feel that it is not necessary for me to consider any of the arguments advanced on behalf of the petitioner as I am of the opinion that they have no force, but I have also come to the conclusion that the order of dismissal is vitiated by failure-to comply with the mandatory provisions of Article 311 of the Constitution and must therefore be quashed. It is necessary to give, very briefly the facts which form the background of this case.

2. The petitioner states in the affidavit that he was appointed a Supernumerary Kanungo by the Director of Land Records, U. P. on 25-2-1925. In October, 1927, he was confirmed as Supervisor Kanungo and in 1945 promoted as a second grade Supervisor Kanungo. In 1947, however, his troubles and misfortunes began.

3. The petitioner was prosecuted under Section 161, I.P.C. for the offence of taking illegal gratification, According to the petitioner the proceedings were a frame-up against him caused by the prejudice and hostility of certain local officials. He was convicted on 19-8-1950, and appealed against his conviction. Without waiting for the result of the appeal, the authority concerned passed an order of dismissal against the petitioner on 19-1-1951. But on 7-3-1951, his appeal was allowed by the learned Sessions Judge of Bareilly on the technical ground that the prosecution of the petitioner was without sanction and therefore without jurisdiction. On 11-11-1952, he was served with a charge sheet in respect of the same offences which were the foundation of the criminal proceedings ending in his acquittal.

On 17-1-1953, he was served with a notice to show cause why he should not be dismissed from service. In his reply he contended that the charge was without jurisdiction. He must have been dismissed subsequently, for when he filed a writ petition in this Court (Writ Petition No. 7507 of 1951) a statement was made on behalf of the Government on 23-11-1953, that the order, of dismissal had been withdrawn. The petition having become infructuous was dismissed by a Division Bench of this Court, but the State was ordered to pay the costs of the petitioner. On 6-3-1954, the petitioner made his first representation for the implementation of the decision of the Government -- that is to say, he demanded reinstatement. Subsequently he made numerous representations which again landed him into trouble.

On 5-1-1955, he was served with a second charge sheet accusing him of having used language in his representations which was highly objectionable. Quotations from his various representations were included in the charge sheet, which is Annexure VIII of the counter affidavit filed on behalf of the State. This was duly followed by a notice asking him to show cause why he should not be dismissed. In reply to this the petitioner contended that the notice was without jurisdiction. It appears that he also made representations to the then Chief Minister and to several Ministers. His wife appears to have approached the then Governor of the State (the late Shrimati Sarojini Naidu). His efforts eventually were successful, for an order was passed on 25-7-1956, reinstating him in service. This is annexure 'F' of the petitioner's affidavit. The relevant paragraph is No. 2 which runs as follows :

"On the dismissal of Shri Saghir Ahmad Supervisor Kanungo district Pilibhit Shri Abdul Qayum a Supernumerary Kanungo was confirmed by the Collector, Pilibhit in that vacancy. Shri Saghir Ah-mad has since been reinstated with effect from the date of dismissal.

The orders for confirmation of Shri Abdul Qayum in that vacancy have therefore become infructuous. Shri Abdul Qayum should in supersession of the previous orders now be confirmed with effect from 22-1-1951 in the vacancy caused by the dismissal of Shri Abdul Rahman Khan Supervisor Kanungo district Moradabad. He should be informed accordingly through the collector under whom he may be serving at present.

Sd. R.N. Dubey, I.C.S.

Commissioner,         Rohilkhand Division. Bareilly.

No: 1703/9/VII-36 (54-55) dated July 25, 1956.

Copy forwarded to all the Collectors in the division for information and necessary action immediately.

An uptodate copy of the gradation list fin triplicate) of supervisor Kanungos in such district after the above confirmations may please be sent to me immediately.

Sd. Permeshwari Sahaf Head Assistant   for Commissioner No. 1710/VII-36-(54-55) of date.

Copy forwarded to the Land Reforms Commissioner, U. P, Section 4 Lucknow for information.

Sd. Permeshwari Sahai Head Assistant for     Commissioner."  

4. It is necessary to pause at this stage and consider the legal effect of this order of reinstatement. The petitioner had been charged with certain offences on two occasions. On the first, he was dismissed but the order of dismissal was withdrawn. But perhaps the statement made to the High Court was not implemented and, though the dismissal was formally revoked, the petitioner in fact remained: outside his service. His representations were considered objectionable and he was again served with a charge sheet. While the proceedings were still pending, the order of reinstatement dated 25-7-1956, was passed. The language of this order shows that the petitioner's reinstatement was absolute and unqualified. This is shown by the fact that the official who was given the appointment created by his dismissal had to give it up in favour of the petitioner. It is also shown by directions for the amendment of the Gradation list and bringing it uptodate in the light of the petitioner's reinstatement.

5. The petitioner, however, was not satisfied with his position. It appears that he was given no post even after the passing of the reinstatement order, nor was he paid his salary with effect from the date of his dismissal apart from the subsistence allowance which he had been receiving during the period of his suspension. On 24-5-1957, he served a notice on the Governor of the State which bears the title "Notice to launch Satyagrah by starting to fast unto death at the western gate of the Government House Lucknow on 10-6-1957 at 10.30 A.M." The notice was sent by registered post and was marked 'Immediate'. In it the petitioner complained of what he called "10 years wrongful suspension. 10 years prosecution (obviously meaning persecution)." After narrating his version of the events of the preceding decade and giving a catalogue of his grievances he ended the letter with a prayer backed with a threat. The prayer is in these terms:

"It is, therefore, prayed (1) That in terms of judgment of High Court D/- 23-11-53 orders for payment of my salary arrears from 20-11-47 to-date and for reinstatement be issued.

"(2) That orders for amendment of invalid rules in terms of judgment of Judge Bareilly 17-12-51 be issued.

(3) My case be withdrawn from Revenue Department and be entrusted to the General Administration department in charge of Chief Minister.

(4) The undertakings given to me by Smt. Sarojini Naidu to pay lavishly for my wrongful prosecution and to post me as Tahsildar be fulfilled.

(5) I be suitably compensated for the loot of "my house.

(6) A commission headed either by a Judge of High Court or Minister of Justice be appointed to look into the serious crimes committed by superior officials of the Government.

For the grant of my above requests I shall be grateful."

6. The threat was in these words "If however my requests are not granted by 9-1-1957, I shall begin my fast unto death at Government House Lucknow on 10-6-57 at 10.30 A.M."

7. A copy of this notice was forwarded to the Chief Minister of Uttar Pradesh, Dr. Sampuwanand "for favour of looking into the matter personally and save a high family from disaster and wrongful prosecution."

8. It is not at all surprising that the Government took serious objection to this kind of notice and the petitioner was again in serious trouble. On 11-7-1957, a charge sheet was issued against him in which he was accused of having sent the notice to the Governor "in utter disregard of official discipline" and of having given a "threat to Government to redress your grievances according to your own choice." As this charge sheet is the foundation of the impugned order of dismissal, it is necessary to quote its text verbatim :

"Under Regd. With Acknowledgment.

Office of the District Officer, Pilibhit No D/- 11-7-1957.

Sri Saghir Ahmad, Supervisor Kanungo (under Suspension) Pilibhit, Mohalla Garhi Gate, Bareilly. You are hereby charged as follows : 1. That you sent a notice dated 24-5-57, addressed to the Rajyapal of Uttar Pradesh threatening to start hunger, strike at the Western Gate of Government House on 10-6-1957 at 10-30 A.M. in case your grievances were not redressed by 9-6-1957, through Sri Charan Singh, Revenue Minister, Uttar Pradesh, and thereby committed a breach of orders contained in para 2 of Appointment (A) Department G. O. No. 3551/11-161 1012/47 dated 31-10-1947 by approaching the members of Government direct.

You are thus guilty of utter disregard of official discipline and giving threat to Government to re-dress your grievances according to your choice.

Evidence which it is proposed to consider in support of the above charge :

(1) Notice dated 24-5-57 of Sri Saghir Ahmad, Supervisor Kanungo, Pilibhit (under suspension) addressed to the Governor of U. P. through Sri Charan Singh, Revenue Minister.

You are hereby required on or before 27-7-1957 to put in a written statement of your defence in reply to the above charges. Your are warned that if no such statement is received from you by the undersigned within the time allowed, it will be presumed that you have none to furnish and orders will be passed in your case accordingly.

You are further simultaneously to inform the undersigned in writing whether you desire to be heard in person and in case you wish to examine or cross examine any witnesses to submit along with your written statement their names and addresses together with a brief indication of the evidence which each such witness will be expected to give.

July 11, 1957 Sd. G. S. Sial I.A.S.

Collector, Pilibhit."         

9. It is noteworthy that the only offence imputed to the petitioner in this charge sheet is his alleged misconduct in having served the notice dated 24-5-1957, on the Governor. There is no reference whatsoever to the earlier offences accepting illegal gratification and using offensive language which were the subject matter in earlier proceedings against him. The petitioner was called upon to defend himself against this charge and nothing else.

10. An enquiry was instituted and the report of the Enquiry Officer, Mr. A. S. Arif Ali Shah, dated 25-12-1957, is attached as Annexure XIII to the counter affidavit of the State. This Officer held that the charge was proved against the petitioner. On the basis of this finding the Commissioner Rohilkhand Division Mr. R. N. Dey served a notice on the petitioner to show cause why the order of dismissal in regard to him "should not be confirmed". It is somewhat difficult to understand what the Commissioner meant by the phrase "why these orders should not be confirmed?", Under the law no order of dismissal could be passed unless and until the accused official had shown cause and his explanation had been considered by the dismissing authority. Probably Mr. Dey referred to the request of the Collector of Pilibhit for the Commissioner's concurrence in the proposal to dismiss the petitioner (see para 5 of Mr. Dey's order); the Commissioner merely used wrong terminology which however did not of itself prejudice the petitioner.

11. But in his order requiring the petitioner to show why the punishment or dismissal should not be imposed on him, the Commissioner took into consideration certain acts of the petitioner which were not included in the charge sheet dated 11-7-1957, and which were the foundation of earlier charge sheets in 1952 and 1955 respectively. For example, in para 7 of his order he considered the charge sheet served on the petitioner in 1952, in which he was accused of accepting illegal gratification. He also considered the charge sheet of 1955 in which the petitioner was accused of using offensive language in his representations. He also considered the latest charge sheet dated 11-7-1957, by which the petitioner was accused of having threatened the Governor with a hunger strike unless his grievance was redressed by a certain date. On the basis of these three offences the Commissioner came to the following conclusion:

"I therefore propose to dismiss Shri Saghir Ahmad ........ from service."

12. It appears that the petitioner did not give any satisfactory explanation beyond challenging the jurisdiction of the authorities to reopen the matter after his reinstatement. The Commissioner thereupon held, and in my opinion rightly, that the petitioner had been given an opportunity to submit what-ever explanation he wanted and proceeded to pass the final order of dismissal against him.

13. Unfortunately, however, this order is also vitiated by the fact that Mr. R. N. Dey took into consideration not only the petitioner's misconduct as expounded in the charge sheet dated 11-7-1957, -- which alone he was entitled to consider -- but also the earlier acts of alleged misconduct which find no place in that charge sheet. For example, in para 27 of his order, the Commissioner wrote "There is no doubt whatsoever from the evidence which was produced in the criminal trial ...... that he accepted illegal gratification from Kanauji Lal on the strength of recommending his application for supply of wood from the Government Forest." In para 28 he wrote "An official who accepts illegal gratification in the most blatant manner and then tries to save himself from the punishment that he has merited by writing to his superior officers in language so offensive and unbalanced, certainly merits dismissal."

14. Taking into consideration these three acts of misconduct alleged to have been committed by the petitioner, Mr. R. N. Dey passed the following order:

"I now dismiss him from service, the dismissal to take effect from 12-11-52."

15. A perusal of both the orders passed by Mr. R. N. Dey -- the one containing the show cause notice and the other directing the petitioner's dismissal -- clearly shows that Mr. R. N. Dey was chiefly Influenced by the petitioner's conduct in having accepted illegal gratification, in or about 1947. In fact, the offence with which the petitioner was actually charged in the charge-sheet dated 11-7-1957, was hardly considered by him at all. There is 3 passing reference to it, but of perfunctory nature. Mr. Dey's decision to dismiss the petitioner is really based on the alleged offence of having taken illegal gratification.

16. The Commissioner was clearly not entitled in the impugned proceedings to consider any act of the petitioner except the one in respect of which he was called upon to defend himself. The proceedings started with a charge that the petitioner had been guilty of having threatened the Governor to go on strike and ended with his conviction on the charge of having accepted illegal gratification and used offensive language. Thus there has been a clear violation of the mandatory provisions of Article 311(2) of the Constitution, which enjoins that "no person .... shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."

The petitioner is entitled to complain that if Mr. R. N. Dey had confined himself to the offence of threatening the Governor with a hunger strike ho might not have taken such a serious view of the petitioner's misconduct. But that act together with the other offence of accepting illegal gratification must have turned the scales against him and impelled the Commissioner to take the view that an official who was guilty of taking a bribe should not be allowed to remain in service. If a Government servant is charged with specified acts of misconduct, it is not open to the dismissing authority to consider any other acts of misconduct with which he may have been charged in any earlier proceedings which, however, were subsequently dropped and ended in his unconditional reinstatement, If he is punished for these earlier acts which are not included in the latest charge, he will be deemed not to have been given a reasonable opportunity to show cause against the action proposed against him. I, therefore, hold that the order dismissing the petitioner was made without complying with the provisions of Article 311(2) of the Constitution and is illegal. I, therefore, quash the order of the Commissioner of Rohilkhand Division dated 30-4-1958, dismissing the petitioner from service.

17. It must be clearly understood that the order of dismissal is being quashed on the technical ground that it was passed without complying with the statutory safeguards of Article 311. But I am constrained to observe that the petitioner does not appear to be a person temperamentally fit to be retained in Government service. I have read some of his representations which contain the following epithets or adjectives against Government : 'tyrannical' 'barbaric' and 'sheer callousness'. On one occasion he wrote to Government, "Such an attitude does not fit in with the tall talk of secularism and 'social justice' by the Hon'ble Minister of the U. P. State and Hon'ble Ministers of the Union of India."

To the Collector of Pilibhit he once wrote, "It is deplorable 'that you have put in cold storage my complaints against Sri G.B. Singh'. All these offensive words and phrases were used by the petitioner several years after the partition of India when there was no occasion or excuse for such utterances.

His crowning act of indiscipline was a notice to launch Satyagraha at the gate of the Government House. All these facts prove that the petitioner has no sense of discipline or decorum whatsoever, Though the order of dismissal has been quashed by the Court, it will be open to the Government if they so desire, to issue a fresh show-cause notice on the basis of the inquiry initiated by the charge sheet tinted 11-7-1957. In the circumstances of this case, the parties shall bear their own costs.