(S.R. Das, C.J. and T.L. Venkatarama Ayyar, B.P. Sinha, J.L. Kapur and A.K. Sarkar, JJ.)
P. Krishnamurthy ___________________________________ Appellant;
v.
Union of India ____________________________________ Respondent.
Civil Appeal No. 97 of 1957, decided on September 12, 1957
The Judgment of the Court was delivered by
T.L. Venkatarama Ayyar, J.:—
1. The appellant entered service in the Excise Department of the Central Government as Inspector in 1947. Complaints having been received against him, the Collector of Central Excise, Hyderabad, who was the authority who had appointed him, sent a notice on 27-2-1953 setting out a number of charges, of corruption, harassment of licensees and so forth. Particulars of the charges were also given in the notice, and the appellant was required to state whether he desired an oral enquiry, in which case he was asked to submit a list of the witnesses, whom he wished to examine. The enquiry was delegated to the Assistant Collector, Vijayawada. On 20-5-1953 the appellant submitted a written explanation dealing with the charges in great detail, and concluded by stating that an open enquiry was unnecessary, as all the facts could be found in the records. On 2-7-1953 the Assistant Collector considered it desirable to have an open enquiry, and fixed it for 11-7-1953 and gave notice thereof to the appellant. The enquiry was held on that date, and concluded on 12-7-1953. On 18-7-1953 the appellant submitted a further written statement discussing the evidence which had been taken on the 11th and 12th, and praying that he might be exonerated from the charges. On 13-12-1953 the enquiring officer submitted his report to the Collector, and therein, he found most of the charges established, and recommended that the appellant might be dismissed from service.
2. Agreeing substantially with the conclusions of the Assistant Collector, the Collector issued on 22-4-1954 a notice to the appellant, enclosing a copy of the report and calling upon him to show cause why he should not be dismissed from service. On 28-5-1954 the appellant submitted his explanation to this notice, in which he again canvassed the correctness of the findings in the report, and contended that he was not guilty of any of the charges. He further requested that he should be given a personal hearing, and that he should be allowed to examine witnesses. On 30-7-1954 the Collector acceded to this request, and fixed 6-8-1954 as the date for personal hearing, and gave intimation thereof to the appellant. The appellant, however, applied for adjournment on the ground of illness, and produced a medical certificate. The Collector declined to adjourn the hearing and proceeded ex parte, and on 14-8-1954 passed an order dismissing him from service. Against this, the appellant preferred an appeal to the Central Board of Revenue, which passed an order on 17-6-1955 dismissing the appeal. He thereupon moved the High Court, Hyderabad for a writ of certiorari to quash the order dismissing him from service on the ground that he had not been given a reasonable opportunity to show cause against it. That application was dismissed on the ground of want of jurisdiction, and thereafter, the appellant applied to the High Court, Punjab under Article 226 for the same relief. This application was rejected by the learned Judges, and against their order, the present appeal by special leave has been preferred.
3. The sole point for determination in this appeal is whether the order of the Collector dated 14-8-1954 affirmed by the Central Board of Revenue on 17-6-1955 is illegal and void as contravening Article 311(2) of the Constitution.
4. In support of the appeal, it was argued by Mr Ram Reddy that there had been no proper hearing of the matter before the Assistant Collector, because on 11-7-1953 before the commencement of the hearing before him, the appellant had taken four witnesses with him and offered to examine them, but that the officer declined to take their evidence on the ground that a list of those witnesses had not been filed along with his statement dated 20-5-1953 as directed in the notice dated 27-2-1953. It was argued that the stand taken by the appellant in that statement was that there was no need for any oral enquiry but that the Assistant Collector having decided by his order dated 2-7-1953 that he would hold an oral enquiry, it thereafter became necessary for the appellant to examine his witnesses, and the refusal of the enquiring officer to take the evidence of these witnesses therefore amounted to a denial of a reasonable opportunity to present his case.
5. We are not satisfied that these allegations are well-founded. The appellant no doubt states that before the enquiry commenced, he applied in writing to examine his witnesses; but there is no such application in the record of these proceedings. In the written statement which the appellant filed on 18-7-1953 there is no allegation that he wanted to examine witnesses, and that his request had been refused; and the report of the Assistant Collector dated 13-12-1953 makes no mention of it. It was only in the explanation submitted by the appellant on 28-5-1954 in answer to the show-cause notice dated 22-4-1954 that he, for the first time, complained that his witnesses had not been examined on 11-7-1953. The Collector dealt with this objection at some length, and on a review of the facts stated above, came to the conclusion that it was not well-founded and was an afterthought. The complaint was repeated by the appellant in his appeal to the Central Board of Revenue, which also declined to interfere.
6. Before us, reliance was placed by the appellant on the affidavits of four persons, who, it is stated, were the witnesses whom he wanted to examine on 11-7-1953. These affidavits are dated 20-7-1955, and were filed in the writ application presented by the appellant in the High Court of Hyderabad. In these affidavits, it is stated that the deponents were taken to the enquiring officer, that the appellant produced a letter before that officer, and that later on, he informed them that the officer did not agree to examine them. These affidavits are belated and vague, and in view of the facts stated above, we are unable to attach any weight to them. Under the circumstances, the charge that there had been a refusal to examine the witnesses produced by the appellant must be rejected as unsubstantiated.
7. The question was also raised, and discussed at some length before us as to the precise scope of an enquiry to be held pursuant to a notice to show cause under Article 311(2). The counsel for the appellant contended that that enquiry could not be limited merely to the question of the punishment to be awarded on the basis of the findings come to by the enquiring officer, but that it should be open to the party to show that the enquiry was itself defective and opposed to rules of natural justice, and that the findings given on the basis of such an enquiry could not form the foundation for any punishment. And support for this position was sought in the observations of Lord Thankerton in High Commr. for India and High Commr. for Pakistan v. I.M. Lall1.
8. The learned Solicitor General accepts this position, and contends that such an opportunity having been afforded to the appellant when the Collector gave him notice of personal hearing on 6-8-1954, he cannot be heard to complain that no reasonable opportunity was given to him as required by Article 311(2). Mr Ram Reddy argues in reply that the failure of the appellant to appear at the hearing on 6-8-1954 was due to his illness, that he had sent a medical certificate asking for adjournment, and that, under the circumstances, the refusal to adjourn the hearing was improper and unjust. Whether there should be an adjournment of a hearing duly fixed is a matter for the enquiring officer, and the propriety of that order cannot be challenged in these proceedings. And in view of our finding that there had, in fact, been no refusal by the Assistant Collector to examine the witnesses of the appellant on 11-7-1953, the complaint that the refusal to adjourn the hearing on 6-8-1954 was not proper, is without substance. We must accordingly hold that the appellant had reasonable opportunity to make his representations against the order of dismissal which was proposed, and that the order dated 14-8-1954 affirmed by the Central Board of Revenue on 17-8-1955 does not contravene Article 311(2).
9. In the result, the appeal is dismissed, but without costs.
———
1 High Commr. for India and High Commr. for Pakistan v. I.M. Lall, (1947-48) 75 IA 225 at pp. 242, 243 : 1948 SCC OnLine PC 25
