TMI Blog1954 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... y a Covenant entered into between the rulers of the two States. By an order of the Government of the united State of Travancore-Cochin dated the 11th August 1949, he was appointed as the officiating Chief Engineer (Electricity) in the State. In or about September 1949 the Government of the united State received serious complaints about the conduct and dealings of some of their senior officers and allegations of corruption, communalism, etc. were made against them. In December 1949 the Council of Ministers decided to take action against the appellant on a number of charges indicated in the resolution. On the 22nd December 1949, immediately after this resolution was passed, the petitioner was informed that he was suspended from service pending enquiry and he was requested to hand over charge to Sri K. P. Sridharan Nair forthwith. The petitioner complied with this order and handed over charge as directed. On the 21st March 1950 the following notification was issued:- Whereas Government are of opinion that there are sufficient grounds for making a formal and public inquiry into the truth of the imputation of misconduct of the officers mentioned below: Government, under section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government on the 17th February 1951. Some of the-charges were held proved, while others were held not established. On the 5th July 1951 the following communication was sent to the petitioner by the Chief Secretary to Government:- I am to enclose here with a copy of the above report and to point out that the Government agree with the findings of the Inquiring Commissioner on the several charges against you. Government also agree with the Commissioner that the objections raised by you challenging the validity of the enquiry itself are not tenable. 2. As against the 26 charges framed against you, the nine charges noted in the margin have not been established and they are accordingly dropped. As regards Charge No. IX in view of the extenuating circumstances, the irregularity is condoned. 3. It is evident from the remaining charges, which have been established, that you have misused your official position as Electrical Engineer to Government and shown undue favouritism at the expense of State revenues, to private firms and issued materials from Government stores to private companies and individuals in violation of all rules (vide List A). It is also evident that departmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted the action which the Government proposed to take against the petitioner. On the 9th October 1951 the petitioner was removed from service with effect from the 26th December 1949. Two months after the order of his removal, the petitioner submitted an application for a reconsideration of the order removing him from service. This was rejected by an order dated the 25th January 1952. On these facts and in these circumstances an application was made before the High Court of Travancore-Cocliin at Ernakulam on the 2nd June 1952 praying that the court may be pleased to issue a writ in the nature of certiorari or any other writ, directions or orders calling for the records relating to the orders dated the 9th October 1951 and the 25th January 1952 and to quash the same and direct the respondent to restore the petitioner to the office which he was lawfully to hold. It was contended in the application that the applicant had no reasonable opportunity of showing cause against his removal and that he was entitled to show cause twice, once after he was found guilty and next after the punishment had been decided and that the denial of this right rendered the order of dismissal illegal and v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the action proposed to be taken in regard to him, the legal position in that respect and the nature of opportunity to be granted was stated by the Privy Council in the case of High Commissioner for India v. I. M. Lall([1948] F.C.R. 44. 131) and it was held that when a stage is reached when definite conclusions have been come to as to the charges, and the actual punishment to follow is provisionally determined on, that the statute gives the civil servant an opportunity for which subsection (3) of section 240 of the Government of India Act, 1935 (which corresponds to Article 311) makes provision, and that at that stage a reasonable opportunity has to be afforded to the civil servant concerned. It was also held that there was no anomaly in the view that the statute contemplates a reasonable opportunity at more than one stage. In our opinion, in the present case the petitioner had reasonable opportunity at both stages to enter upon his defence. He fully availed himself of the first opportunity and though a reasonable opportunity was also given to him at the second stage, he failed to avail himself of it and it is not open to him now to say that the requirements of clause (2) of Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and appointments at the Secretariat level in this State. This was in our opinion substantial compliance with the directory provisions of Article 166 of the Constitution. It was held by this court in Dattatreya Moreshwar Pangarkar v. The State of Bom. bay([1952] S.C.R. 612.) that clauses (1) and (2) of Article 166 are direc- tory only and noncompliance with them does not result in the order being invalid, and that in order to determine whether there is compliance with these provisions all that is necessary to be seen is whether there has been substantial compliance with those requirements. In the present case there can be no manner of doubt that the notice signed by the Chief Secretary of the State and expressed to be on behalf of the Government and giving opportunity to the petitioner to show cause against the action proposed to be taken against him was in substantial compliance with the provisions of the article. The petitioner accepted this notice and in pursuance of it applied for further time to put in his defence. He was twice granted this time. In these circumstances, the contention of Mr. Thomas that as the notice was not expressed as required under Article 166 it was inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and adopted in our Constitution that the Rajpramukh or the Governor as head of the State is in such matters merely a constitutional head and he is bound to accept the advice of his Ministers. In this situation it cannot be held that the order of the Government appointing the Enquiry Commissioner *as ultra vires and without jurisdiction. Another point taken by Mr. Thomas was that without the sanction of the Rajpramukh the proceedings could not be started against the petitioner and reliance for this contention was placed on Article 20 of the Covenant of the united State of Travancore and Cochin. This article is in these terms: Except with the previous sanction of the Rajpramukh, no proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of either Covenanting State before the appointed day . The High Court negatived this contention with the following observations: Article 20 refers to the institution of civil and criminal proceedings, two well-known expressions which are terms of art and clearly relate to civil and criminal proceedings before civil and criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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