The constitutional requirement of 'reasonable opportunity' under Article 311 (2) of the Constitution may not necessitate personal hearing at every stage, and the notice calling for cause to be shown may satisfy the requirement of 'reasonable opportunity'.

P. B. MUKHARJI, J.

( 1 ) THIS is an appeal from the judgment and order of Mr. Justice J. P. Mitter on a petition under Article 226 of the Constitution setting aside the order of removal of the petitioner and directing that the petitioner be given a personal hearing before the form of punishment is finally decided upon.

( 2 ) THE petitioner orders this case was Ram Gobinda known as Gopal Labourer, Ticket No. 264 of Belur Scrap Yard, a permanent employee of the Eastern Railway. The allegation against the petitioner was that he was detected on the 15th January, 1955 in illegal and planned removal of materials from lot No. 140 of South Yard, Belur Scrap Yard. He was placed under suspension with effect from the 15th January, 1955 afternoon. There was the formal charge sheet which stated -"on 15. 1. 55 you were seen keeping parts of scrap lead cells from lot No. 140 in the South Yard on Lorry No. WBLR (Cal) 9374 which was taking delivery of timber off-cuts from lot No. 239/syd. 2. The stack of timber pieces loaded on the lorry was unloaded and scrap cell parts were found in different depths of the stack on the above lorry. This is an illegal and planned theft of railway property for which you are solely responsible. "

( 3 ) THE charge sheet, dated 15. 1. 55 also stated that -"when the maximum penalty specified in item 6 and 7 you may, while giving you written explanation to the charge sheet, state whether you desire to be heard in person. "

( 4 ) IT was only shown there that item 6 and 7 meant either removal from service or dismissal from service. After certain preliminary investigation, the actual enquiry started on the 27th June, 1955. Witnesses were examined and cross-examined at the enquiry. The petitioner had to fullest opportunity to appear and to represent his case at the enquiry. The enquiry concluded on or about the 19th June, 1956.

( 5 ) AFTER considering the petitioner's written explanation dated the 21st January, 1955 in reply to the charge sheet dated the 15th January, 1955 and the finding of the departmental enquiry held on the 27th June, 1955 and on the 18th June, 1956, the District Collector of Store, Lilooah of the Eastern Railway came to the conclusion that the charges namely "you made an attempt in unauthorized removal of pieces of scrap lead cells from the lot which was not sold and were detected in the act of doing so and caught red-handed" had been proved against the petitioner and that he was guilty of the same. He gave the second notice to show cause stating that he had provisionally formed the opinion that he should be removed from service. In the second show cause notice it was stated as follows:"you are hereby given seven clear days' time from the receipt hereof to show cause why the proposed penalty should not be inflicted on you. Any representation that you may make in this connection will be taken into consideration before passing final orders. "

( 6 ) TO this the petitioner submitted a written explanation and asked for a personal hearing again along with a railway clerk. On the 29th April, 1957 the District Controller of Stores, Lilooah, Eastern Railway passed the order of the petitioner's removal from service stating as follows: -"after considering your explanation dated 10. 9. 56 to the show cause notice No. GS 149/6/1 of 6. 9. 56 and your application dated 3. 12. 56 I have decided that as you were guilty of attempting to remove pieces of scrap lead Battery cells in an unauthorized manner, you are hereby removed from service as a disciplinary measure in terms of service agreement and conditions of service and the same will take effect from the afternoon of 30. 4. 57 with a month's pay in lieu of notice. "

( 7 ) THE only point urged on behalf of the Government representing the Railways is that the learned Judge was wrong in setting aside the order of removal on the ground that no personal hearing was given to the petitioner after the second show cause notice. It is contended by Mr. Bose, the learne

Click Here to Read the rest of this document