The denial of legal assistance to a delinquent public servant may amount to a denial of a reasonable opportunity to defend himself within the meaning of Article 311 of the Constitution, depending on the peculiar circumstances of the case.

NARASIMHAM, C. J.

( 1 ) THIS is an application by the State of Orissa for grant of leave to appeal to the supreme Court against a Division Bench decision o this Court in O. J. C. No. 202 of 1960 reported in ILR (1961) Cut 373; (AIR 1962 Orissa 78 ). The leave was asked for both under Article 132 and under Sub-clause (c) of Clause (1) of Article 133 of the Constitution.

( 2 ) THE respondent Nityananda Bohidar was formerly working as an Assistant conservator of Forests under the Government of Orissa. A departmental enquiry was held against him by the Member, Administrative Tribunal, 'orissa, in respect of various acts of misconduct said to have been committed by him while he was working as Divisional Forest Officer, Parlakhimedi. 21 charges were framed against him and the Tribunal fully exonerated him in respect of 5 charges and partially in respect of 6 charges, but held him guilty in respect of the remaining charges and recommended his dismissal from Government Service. Government accepted the recommendation and dismissed him from service on the 17th August 1960, and thereafter the respondent filed an application before this Court under Article 226 of the Constitution which was registered as O. J. C. No. 202 of 1960, and disposed of on the 10th April 1961.

( 3 ) THIS Court quashed the order of dismissal on the following two main grounds: (i) In view of the particular circumstances of the case, the complex nature of the facts alleged against the respondent, and the large volume of evidence that was adduced against him (91 witnesses and 166 documents), the respondent should have been permitted to defend himself with the help of a lawyer specially when the case against him was conducted by an experienced police officer who had adequate training in conducting cases as a Court Sub-Inspector and Prosecuting inspector. This Court accordingly held that the respondent did not get an adequate opportunity to defend himself by effectively cross examining the prosecution witnesses and there was thus contravention of the provisions of Article 311 (2) of the Constitution. (ii) In respect of four charges, namely charges 7, 8, 9 and 11, the tribunal, after completing the departmental enquiry, had telephonic talk with the Deputy Secretary to the Government of Orissa in the Supply department, obtained from him a secret D. O. letter, and utilised the information contained in that letter in coming to its findings.

The respondent was not given an opportunity to rebut the inferences arising out of the contents of that letter. Hence the findings of the Tribunal in respect of the aforesaid four charges were vitiated by its failure to observe the rules of natural justice.

( 4 ) THE important questions arise for consideration now:

(i) Is there any substantial question of law, as to the interpretation of the Constitution, so as to attract Article 132? (ii) Is this case otherwise a fit one for leave to appeal to the Supreme court on the ground that it involves some substantial question of law, apart from the interpretation of the Constitution, so as to attract Subclause (c) of Clause (1) of Article 133?

( 5 ) SO far as the first question is concerned, there can be no doubt that our judgment does not involve the interpretation of any particular Article or clause of the Constitution. Article 311 has been construed in innumerable decisions of the supreme Court including the well known case of Khem Chand v. Union of India, air 1958 SC 300 where it was held that the 'reasonable opportunity' envisaged in that Article includes an opportunity for the public servant concerned to defend himself by cross examining the witnesses produced against him and by examining himself or any other witness in support of his defence. The question as to whether in a particular case the delinquent public servant was given such a reasonable opportunity or not depends on the peculiar circumstances and facts of that case and if, after applying the principles laid down by their Lord