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1961 Supreme(Ori) 26
HIGH COURT OF ORISSA
R. L. Narasimham, C. J. And R. K. Das, J.
NITYA RANJAN BOHIDAR - Appellant
Versus
STATE - Respondent
O. J. C. 202 Of 1960
Decided On : April 10, 1961
G.K.Mishra, S.K.Misra
A public servant is entitled to a reasonable opportunity to defend himself in a departmental enquiry, which includes the right to legal assistance in appropriate cases.
Headnote:
ARTICLE 311(2) - DISMISSAL FROM SERVICE - REASONABLE OPPORTUNITY - LEGAL ASSISTANCE - DENIAL - PREJUDICE - ARTICLE 14 - DISCRIMINATION - QUASHING OF PROCEEDINGS.
Fact of the Case:
The petitioner, an Assistant Conservator of Forests, was dismissed from service by the Government of Orissa after a departmental enquiry conducted by the Member, Administrative Tribunal. The petitioner challenged the dismissal order on the grounds that he was denied a reasonable opportunity to show cause against the proposed punishment, that he was denied legal assistance in the departmental enquiry, and that there was unfair discrimination against him as the prosecution was conducted by an experienced Police Officer while he was denied legal assistance.
Finding of the Court:
The Court held that the petitioner was denied a reasonable opportunity to show cause against the proposed punishment as the Government did not give him sufficient time to submit his explanation after the second notice was issued under Article 311(2) of the Constitution. The Court also held that the petitioner was denied legal assistance in the departmental enquiry, which amounted to a denial of a reasonable opportunity to defend himself, considering the complexity of the case and the mass of evidence that had to be sifted and arranged. The Court further held that there was no unfair discrimination against the petitioner as the prosecution was conducted by an experienced Police Officer, as the petitioner was not entitled to legal assistance as a matter of right in a departmental enquiry.
Issues: 1. Whether the petitioner was denied a reasonable opportunity to show cause against the proposed punishment? 2. Whether the petitioner was denied legal assistance in the departmental enquiry? 3. Whether there was unfair discrimination against the petitioner as the prosecution was conducted by an experienced Police Officer while he was denied legal assistance?
Ratio Decidendi: 1. The Court held that the petitioner was denied a reasonable opportunity to show cause against the proposed punishment as the Government did not give him sufficient time to submit his explanation after the second notice was issued under Article 311(2) of the Constitution. The Court relied on the fact that the petitioner was given only six months to submit his explanation, which was not a reasonable time considering the complexity of the case. 2. The Court held that the petitioner was denied legal assistance in the departmental enquiry, which amounted to a denial of a reasonable opportunity to defend himself, considering the complexity of the case and the mass of evidence that had to be sifted and arranged. The Court relied on the fact that the petitioner was a layman with no experience in legal matters, and that the charges against him were complex and involved criminal breach of trust, falsification of accounts, and forgery. 3. The Court held that there was no unfair discrimination against the petitioner as the prosecution was conducted by an experienced Police Officer, as the petitioner was not entitled to legal assistance as a matter of right in a departmental enquiry.
Final Decision: The Court allowed the petition, quashed the entire proceedings against the petitioner before the Tribunal, and the final order of government dismissing him from service.
NARASIMHAM, C. J.
( 1 ) THIS is an application under Art. 226 of the Constitution, challenging the validity of the order of dismissal from the Government service passed against the petitioner by the Government of Orissa in the Political and Services Department, by their order No. 309/t dated the 17th August, 1960.
( 2 ) THE petitioner was appointed as an Assist-, ant Conservator of Forests in 1951 and was posted as Divisional Forest Officer at Parlakhimedi from August 1953 till october 1955. Subsequently he was transferred to Angul as Assistant Conservator of Forests and suspended from Government service on the 31st August 1957 pending departmental enquiry against him regarding various acts of misconduct said to have been committed by him while serving as Divisional Forest Officer at parlakhimedi. His case was, in due course, referred to the Member, Administrative tribunal, Orissa (Sri V. S. Tilak, I. A. S.), who on the 2nd December. 1957 forwarded to the petitioner a copy of the charges framed against him. There were in all 21 charges dealing with criminal breach of trust and temporary misappropriation of Government money, falsification of vouchers and Government records with a view to conceal misconduct, and allied offences. The petitioner submitted has explanation on the 15th September, 1958. The enquiry was held on several days--from 24th November, 1958 to 21st March, 1959. The petitioner's written statement, which consists of 25 volumes, was filed before the Member on the 31st August 1959 and he also examined some witnesses on his own behalf. In all 77 witnesses were examined against the petitioner, 10 were examined on his behalf and 4 were examined at the instance of the Tribunal. The total number of documents exhibited was 150. On the 19th November 1959 the Member, administrative Tribunal, in a very lengthy order running into 139 type-written pages gave his findings on all the charges. He completely exonerated the petitioner of charges Nos. 1, 3, 4, 5. 19 and 20 partially exonerated him in respect of charges 2, 6, 9, 10, 13 and 21 and held him guilty in respect of the remaining charges. He recommended the petitioner's dismissal from Government service and government, while accepting the proposed punishment tentatively, issued a second notice as required by Article 311 (2) of the Constitution, on the 8th december 1959. calling upon the petitioner to show cause why he may not be dismissed. The petitioner did not show cause on receipt of this notice, but asked for time on several occasions on various grounds, such as illness, difficulty in securing the necessary papers etc. Some further time was granted to him but untimately he was informed on the 8th April 1960 that no further time would be granted and that he must submit his explanation by the 8th June 1960. Eventually, after rejecting the petitioner's prayers for adjournments, Government passed orders on 17th august, 1 1960, dismissing him from Government service.
( 3 ) ONE of the grounds taken by Mr. G. K. Misra On behalf of the petitioner that the petitioner's prayer for adjournments ougat to have been allowed and he should have been given a further opportunity to show cause against the proposed order of punishment viz. dismissal. I am not inclined to accept this argument. The notice under Article 311 (2) of the Constitution was issued to him on the 8th December, 1959 and along with that notice a copy of the findings of the Tribunal was also sent His repeated prayers for adjournment were granted from time to time and as a lust chance he was informed (vide Annexure P) that he should show cause by the 8th June 1960 at the latest-Thereafter he made further prayers for adjournments on the ground of illness but did not show cause against the proposed order of dismissal. The dismissal order was passed only on the 17th august 1960. Under Article 311 (2) of the Constitution the petitioner was entitled to a "reasonable opportunity" of showing cause against the proposed puni
