G.R. Majithia, J.@mdashThis Regular Second Appeal is directed against the judgment and decree of the First Appellate Court, which on appeal
reversed that of the trial Court, dismissing the suit filed by the Plaintiff/, Appellant.
The Facts:
2. The Appellant (hereinafter referred to as the Plaintiff) was a constable in the 1st Battalion Haryana Armed Police. On the basis of allegations of
misconduct departmental enquiry was ordered. Enquiry Officer found him guilty of the charge levelled against him. The competent authority
ordered his dismissal from service,--vide order dated September 28, 1979. The Plaintiff challenged the order of dismissal in the civil suit on various
grounds including that the competent authority while passing the order of dismissal took into consideration the past record of his service where
some adverse remarks were recorded. The Plaintiff alleges that while imposing the punishment, he was not informed by the competent authority
that his past record would be taken into consideration for imposing the punishment. The suit was contested by the Respondent/Defendant and the
material allegations were denied.
3. The pleadings of the parties gave rise to the following issues:
(i) Whether the impugned order dated 22nd September, 1979 passed by the Commandant 1st Battalion H.A.P. Ambala City are illegal, null and
void as alleged ? OPP.
(ii) Whether the Plaintiff has no cause of action ? OPD.
(iii) Whether the suit is not maintainable ? OPD.
(iv) Relief.
4. The learned trial judge answered issue No. 1 in favour of the Plaintiff and issues No. 2 and 3 against the Defendants and decreed the suit. On
appeal, the learned Appellate Judge reversed the judgment of trial court under issue No. 1.
5. It is not necessary to refer in detail the various grounds on which the impugned order of dismissal was assailed. The order of dismissal from
service cannot be sustained for the simple reason that while imposing the punishment the appropriate authority took into consideration the various
adverse entries which were awarded to the Plaintiff and he had no opportunity at any point of time to render explanation against those adverse
entries. The show cause notice issued to the Plaintiff on the conclusion of the enquiry by the Deputy Superintendent of Police only stated that the
charges framed against the Plaintiff by the enquiry officer stood proved and that the competent authority was provisionally of the opinion that
penalty of dismissal from the force should be imposed. The charge which was framed against the Plaintiff reads thus:
Charge:
I, Bhagat Singh, Deputy Superintendent of Police, 1st Bn. HAP, Ambala City charge you Constable Ram Pal No. 1/155 under suspensions as
under:
That while posted in HAP 1st Bn. HAP Ambala City, your behaviour towards your superior officers was very much rude and indisciplined.
On 24th June, 1979 you were marked absent at the time off morning Roll Call at 7.30 A.M.,--vide DDE No. 41. At about 11.00 A.M. on the
same day you were found lying on a charpoy in Old Mess Barrack by Shri Harbans Singh R.I. and Shri Mulakh Raj S.I. /Lines Officer. R.I. asked
you to get your return from absence recorded in the D.D. but you refused to do so.
On 25th June, 1979 when the Lines Officer was taking the outdoor patient constables to the Hospital from the Parade Ground you appeared in
private clothes near the Chhapar-wali Barrack and said that his name may also be entered in the Outdoor patient Register. The Lines Officer Shri
Mulakh Raj replied that you were absent since yesterday, you should first get your return report entered in the D.D. and thereafter your name will
be recorded in the Outdoor Register. On this you became angry and misbehaved with the L.O. rudely and uttered filthy language and proceeded
towards the L.O. to snatch the register forcibly but could not snatch due to the timely arrival and intervention of Head Constable Jaipal Singli No.
1/55 with whom occurrence was witnessed by Const. Balbir Singh No. 1/366 and Const. Teja Singh No. 1/546 with whose intervention the
matter was pacified.
It is further alleged that you at the time of lodging your return in the D.D. register,--vide No. 2 dated 25th June, 1979 at 9.00 A.M. again mis-
behaved with HC Jaipal Singh No. 1/55 and Consts. Niranjan Singh No. 1/194 and Jarnail Singh No. 1/746 in the office of MHC of Battalion
Hdqrs and used filthy language as well.
Yours these acts amounts to grave misconduct and indiscipline unbecoming of a Police Officer.
The Enquiry Officer on evidence found that the charge stood proved. The dismissing authority after considering reply to the show cause notice also
found that the charge stood proved and the explanation deserved to be rejected. After so doing, he took into consideration the character rolls of
the Plaintiff where punishments were awarded to him for the years 1977, 1978 and 1979. After going through all these, the competent authority
held that the penalty of dismissal from service should be imposed upon the Plaintiff. As stated supra, the Plaintiff at no point of time was informed
that character rolls for the preceding years would be taken into consideration while imposing the punishment. The Government servant is entitled to
know of facts which would be taken, into consideration by the competent authority in inflicting punishment on him. It is not possible for him to
know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his
notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged
remarks or that his subsequent conduct to the remarks had been exemplary or at any rate approved by the higher officers. The courts do not
accept the doctrine of ""presumptive knowledge"" or that of ""purposeless enquiry"", as their acceptance will be subversive of the principle of
reasonable opportunity. Therefore, it is incumbent upon the authority to give the government servant at the second stage reasonable opportunity to
show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad
record, this should be included in the second notice so that he may be able to give an explanation.
6. The second show cause notice did not mention that the competent authority intended to take his previous punishments into consideration in
proposing to dismiss him from service. The second show cause notice contravenes the provisions of Article 311(2) of the Constitution of India. It
will be useful to refer to the following observations of the apex court in State of Mysore Vs. K. Manche Gowda, , where it was held thus:
Under Article 311(2) of the Constitution, as interpreted by this Court a Government servant must have a reasonable opportunity not only to prove
that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or
excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the
grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam and Another Vs. Bimal Kumar Pandit,
Civil Appeal No. 832 of 1962 D/12th February, 1963. If the grounds are not given in the notice, it would be well nigh impossible for him to
predicate what is operating on the mind of the authority concerned in proposing a particular punishment; he would not be in a position to explain
why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon
the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed
punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must
have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on
him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew
of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain
facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him.
Relying upon the decision in K. Manche Gowda''s case supra, a Division Bench of this Court in a judgment reported as I.G. Punjab v. Balbir Singh
1973 (2) S.L.R. 271 quashed the order of Inspector General of Police who while disposing of the mercy petition took into consideration the
chequered record of service of the official which did not form part of the charge sheet. Thus the order of dismissal from service cannot be
sustained. The learned trial court while dealing with this aspect of the case stated thus:
As shall be clear from a perusal of the impugned order dated 28th September, 1981, the Commandant H.A.P. noted in the course of his order that
he had perused the previous adverse record of the Plaintiff and also noted the complaints pending against the Plaintiff. The learned Government
pleader could not even allege that the commandant had at any time supplied the copies of the record to the Plaintiff.
The lower Appellate Court in para No. 16 of his judgment disposed of the conclusion of the learned trial judge with the following observations:
Certainly the competent authority can take into consideration the previous punishments which were awarded to the Plaintiff after due opportunity to
him and in these cases he was provided due opportunity at that time before inflicting the punishments and in the present case there was no need of
providing him any opportunity in the old punishments. Besides the competent authority before imposing the punishment of dismissal heard the
Plaintiff in person and the exact order on the file is as under:
The defaulter constable is present. Heard his view point. He says that he had never done any wrong in the past. His attention invited to various
commissions and omissions by him (he is referring to the previous punishments etc.). I have applied my mind again and have come to the
conclusion that punishment of dismissal is fully justified.
These observations are beyond the record. The order of dismissal dated September 25, 1979 does not indicate that the Plaintiff was asked to
render explanation for his past conduct. After the order of dismissal from service was recorded, there is a note to the effect that the defaulter
constable is present and he was explained the grounds on which the punishment has been imposed. He says that he had not done anything wrong in
the past. His attention was drawn to the past record containing various commissions and omissions. The perusal of the enquiry file reveals that this
note does not bear the signatures of the person who recorded it and this does not form part of the order of dismissal. It is not apparent from the file
at what point of time and who recorded this note on the file after the order of dismissal of service was passed against the Plaintiff. The learned
Appellate Judge is clearly in error in coming to the conclusion that the Plaintiff was afforded an opportunity to render explanation for his past
omissions and commissions before the authority took the same'' into consideration while imposing the punishment.
7. For the reasons aforementioned, the judgment and decree of the First Appellate Court is set aside and that of the trial court is restored only on
the grounds stated supra. The parties are left to bear their own costs.