Judgement

HEGDE, J.:- This is an appeal by special leave. The appellant was a Peventive Officer, Grade II, Customs Office, Cochin from June 16, 1962 to January 31, 1963. In April, 1962, he applied to the Assistant Collector of Customs, seeking permission to allow his wife to run a taxi service. He was informed that no permission was necessary for his wife to operate a taxi service but he should not canvass any business for his wife. Thereafter, it is said that the appellant acting on behalf of his wife purchased some cars which were used as taxis. It appears that there were several complaints against the appellant to the effect that he was canvassing business for his wife. Those complaints were enquired into. Thereafter on March 25, 1963 the appellant was served with a memorandum stating that while functioning as Preventive Officer, Grade II, Cochin Customs House, during the period June 1962 to January 31, 1963 he had contravened the provisions of Rule 12 (1) of the Central Civil Services (Conduct) Rules, 1955. The factual allegation made against the appellant was that he canvassed business for his wife. He was told that an enquiry will be held against him on the basis of that charge.

2. Shri H. T. Soares, Assistant Collector, Customs House, Cochin was appointed as the enquiry Officer. During the pedency of the enquiry an additional ground in support of the charge was served on the appellant to the effect that he himself was running the taxi service. After enquiry, the Enquiry Officer came to the conclusion that the allegations made against the appellant were establsihed and consequently he was guilty of contravening Rule 12 (1) of the Central Civil Service (Conduct) Rules, 1955. The Enquiry Officer recommended appellant s removal from service. On the basis of that recommendation the Disciplinary Authority served on the appellant a notice to show cause why he should not be removed from service. The Appellant submitted his explanation. But the same was not accepted by the Disciplinary Authority. In the result the appellant was ordered to be removed from service.

3. The appellant challenged that order by means of a petition under Art. 226 of the Constitution before the High Court of Kerala. His writ petition was first heard by a single judge who dismissed the same and the order of the single Judge was affirmed by a Division Bench of that High Court. Hence this appeal.

4. The appellant personally argued his appeal. He challenged the validity of the order removing him from service on various grounds. As we are of the opinion that the appellant had not been afforded reasonable opportunity to present his case and consequently the impugned order has to be struck down, we do not think it necessary to examine other contentions advanced by the appellant.

5. The appellant who was a member of the Civil service of the Union of India was holding his office during the pleasure of the President; but in view of Article 311 of the Constitution, he could not have been removed from service except after enquiry in which he had been given a reasonable opportunity of being heard in respect of the charge levelled against him. This procedural guarantee is undoubtedly a valuable one. Breach of that guarantee vitiates the enquiry.

6. Removal from service is a major penalty. Procedure for imposing major penalties is prescribed in Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1967, a rule framed under Article 309 of the Constitution. Sub-rule (5) of that rule provides:

"The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the Inquiring Authority). The Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a lega