# 1!JfJ1 Jagannath B~litra nnd Otliers v. Raja Harihar Singh Mardaraj BAramarbaro Ro - **Citation:** [1958] 1 S.C.R. 1080 - **Court:** Supreme Court of India - **Decided:** 1957-11-01 - **Case number:** Civil Appeal No. 65 of 1957 - **Bench:** S. R. Das C. J, Venkatarama A.Iyar, S. K. Das, A K. Sarkar, Vivian Bose Jj - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-jfj1-jagannath-b-litra-nnd-otliers-v-raja-harihar-singh-mardaraj-baramarbaro-1395 - **Pages:** 23 ## Headnote Constitution, InterpTetation of-'Reasonable opportunity of shoiving cause', Meaning of-Punishment of dismissai on Government Servant-Constitutional Protection-Procedure-Constitution of India, Art. 311(2). 'Reasonable opportunity to show cause' in Art. 311(2) of the Constitution contemplates not merely the opportunity to do so at the enquiry stage but also when the competent authority, as a result of the enquiry, proposes to inflict one of the three punishments mentioned in the Article on the delinquent servant. Such reasonable opportunity must, therefore, include,- (1) opportunity to deny his guilt and establish his innocence, which means that he must be told what the charges S.C.R. SUPREME COURT REPORTS 1081 against him are and the allegations on which such charges are based; (2) oppcrtunity to cross-examine the witnesses produced against him and examine himself or other w~tnesses on his behalf and. (3) opportunity to show that the proposed punishment would not be the proper punishment to inflict, which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him. High Commissioner for India v. I.M. Lall, L.R. (1948) 75 I.A. 225, explained and relied on. Secretary of State for India v. I. M. Lall, (1945) F.C.R. 103, not followed. Parshotam Lal Dhingra v. The Union of India, Civil Appeal No. 65 of 1957, decided on November 1, 1957. and R. Venkata Rao v. Secretary of State for India, L.R. (1936) 64 I.A. 5, referred to. The procedure followed in such cases must, therefore, include the giving of two notices to the servant, one at the enquiry stage and the other when the competent authority, as a result of the enquiry, tentatively determines to inflict a parti· cular punishment on him. Consequently, in a case where the Government Servant sought to be proceeded against for misconduct was served w~th a charge-sheet and appeared before two officers conducting the enquiry, one after the other, l:ut no notice waii served upon him when the competent authority accepted the report and confirmed the opinion ·that the punishment of dismissal should be inflicted on him, and no cause could. therefore. be shown by him, the provision of Art. 311(2) had not been fully complied with and the order of dismissal passed against him must be declared void and inoperative. CIVIL APPELLATE JuR1sorcnoN: Civil Appeal No. 353 of 1957. Appeal by special leave from the judgment and decree dated November l, 1955, of the Punjab High Court (Circuit Bench) at Delhi in Regular Second Appeal No. 28-D of 1955, arising out of the judgment and decree dated December 31, I 954, of the Court of the Senior Subordinate Judge at Delhi in Regular Civil Appeal No. 685 of 1954, affirming the judgment and decree of Subordinatet Judge Third Class Delhi in Suit No. 273/213 of 1953. Janardhan Sharma, for the appellant. C. K. Daphtary, Solicitor-General of India, R. Ga11apathy Iyer and R. fl. Dl1ebar, for the respondents, J,/P(D)3SCI--4 195'! Khem O/wnt>. v. 'l'lle Union of India and Other. • 1082 SUPREME COURT REPORTS [1958 19ii1 Khem 0Mnd 1957. December 13. The following Judgment of the Court was delivered by v. 'l'Ac Union of India and Otliers Dai 0 J. DAS C. J.-This appeal by special leave granted by this Comt to the plaintiff-appellant is directed against the judgment and decree passed on November I, 1955, by a single Judge of the Punjab High Court sitting in the Circuit Bench at Delhi in regular second appeal No. 28-D of 1955. The facts leading up to the present appeal are shortly as • follows: On April 6, 1943, the appellant was appointed a sub-inspector under the Delhi Audit Fund. In February 1947, he was transferred to the Co-operative Societies Department and posted as sub-inspector in the Milk Scheme. On July 3, 1947, the appellant was confirmed by the then Deputy Commissioner of Delhi who was also the ex-officio Registrar of Co-operative Societies. On August 1, 1948, the appellant was transferred ## Text _Characters 0–39,887 of 51,042. This is a partial read: ask again with offset=39887 for what follows._ 1!JfJ1 Jagannath B~litra nnd Otliers v. Raja Harihar Singh Mardaraj BAramarbaro Ro, .1Ihtv,;umt1 J. 19.il Doc•mlw J.j 1080 SUPRE.ME UOURT REPORTS [1958] Act which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties. This contention of the respondent also therefore fails. We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside. We accordingly allow the appeal, set aside the order made by the High Court, and restore the orders passed by the Revenue Officer in the O.T.P. Act Cases Nos. 21 to 25 of 1952, 26 to 28 of 1952, 29 to 32 of 1952 and 33 to 41 to 1952. The respondent will pay the appellants' costs of this appeal as also of the writ petition in the High Court. The State of Orissa will, of course. bear and pay its own costs. Appeal allowed. KHEMCHAND v. THE UNION OF INDIA AND OTHERS (S. R. DAS C. J., VENKATARAMA A.IYAR, S. K. DAS, A K. SARKAR and VIVIAN BOSE JJ .) Constitution, InterpTetation of-'Reasonable opportunity of shoiving cause', Meaning of-Punishment of dismissai on Government Servant-Constitutional Protection-Procedure-Constitution of India, Art. 311(2). 'Reasonable opportunity to show cause' in Art. 311(2) of the Constitution contemplates not merely the opportunity to do so at the enquiry stage but also when the competent authority, as a result of the enquiry, proposes to inflict one of the three punishments mentioned in the Article on the delinquent servant. Such reasonable opportunity must, therefore, include,- (1) opportunity to deny his guilt and establish his innocence, which means that he must be told what the charges S.C.R. SUPREME COURT REPORTS 1081 against him are and the allegations on which such charges are based; (2) oppcrtunity to cross-examine the witnesses produced against him and examine himself or other w~tnesses on his behalf and. (3) opportunity to show that the proposed punishment would not be the proper punishment to inflict, which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him. High Commissioner for India v. I.M. Lall, L.R. (1948) 75 I.A. 225, explained and relied on. Secretary of State for India v. I. M. Lall, (1945) F.C.R. 103, not followed. Parshotam Lal Dhingra v. The Union of India, Civil Appeal No. 65 of 1957, decided on November 1, 1957. and R. Venkata Rao v. Secretary of State for India, L.R. (1936) 64 I.A. 5, referred to. The procedure followed in such cases must, therefore, include the giving of two notices to the servant, one at the enquiry stage and the other when the competent authority, as a result of the enquiry, tentatively determines to inflict a parti· cular punishment on him. Consequently, in a case where the Government Servant sought to be proceeded against for misconduct was served w~th a charge-sheet and appeared before two officers conducting the enquiry, one after the other, l:ut no notice waii served upon him when the competent authority accepted the report and confirmed the opinion ·that the punishment of dismissal should be inflicted on him, and no cause could. therefore. be shown by him, the provision of Art. 311(2) had not been fully complied with and the order of dismissal passed against him must be declared void and inoperative. CIVIL APPELLATE JuR1sorcnoN: Civil Appeal No. 353 of 1957. Appeal by special leave from the judgment and decree dated November l, 1955, of the Punjab High Court (Circuit Bench) at Delhi in Regular Second Appeal No. 28-D of 1955, arising out of the judgment and decree dated December 31, I 954, of the Court of the Senior Subordinate Judge at Delhi in Regular Civil Appeal No. 685 of 1954, affirming the judgment and decree of Subordinatet Judge Third Class Delhi in Suit No. 273/213 of 1953. Janardhan Sharma, for the appellant. C. K. Daphtary, Solicitor-General of India, R. Ga11apathy Iyer and R. fl. Dl1ebar, for the respondents, J,/P(D)3SCI--4 195'! Khem O/wnt>. v. 'l'lle Union of India and Other. • 1082 SUPREME COURT REPORTS [1958 19ii1 Khem 0Mnd 1957. December 13. The following Judgment of the Court was delivered by v. 'l'Ac Union of India and Otliers Dai 0 J. DAS C. J.-This appeal by special leave granted by this Comt to the plaintiff-appellant is directed against the judgment and decree passed on November I, 1955, by a single Judge of the Punjab High Court sitting in the Circuit Bench at Delhi in regular second appeal No. 28-D of 1955. The facts leading up to the present appeal are shortly as • follows: On April 6, 1943, the appellant was appointed a sub-inspector under the Delhi Audit Fund. In February 1947, he was transferred to the Co-operative Societies Department and posted as sub-inspector in the Milk Scheme. On July 3, 1947, the appellant was confirmed by the then Deputy Commissioner of Delhi who was also the ex-officio Registrar of Co-operative Societies. On August 1, 1948, the appellant was transferred to the Rehabilitation Department of the Co-operative Societies and posted as sub-inspector. On July I, 1949. the appellant was suspended by the then Deputy Commissioner, Delhi. On July 9, 1949, the appellant was served with a charge sheet under r. 6(1) of the Rules which had been framed by the Chief Cmmuissioner, Delhi to provide for the appointment to the subordinate services under his administrative control and the discipline and rights of appeal of members of those services. After formulating eight several charge> the document concluded as follows: "You are, therefore, called upon to show cause why you should not be dismissed from the service. You should also state in your reply whether you wish to be heard in person or whether you will produce defence. The reply should reach the Asst. Registrar, Co-operative Societies, Delhi. within ten days from the receipt of this charge sheet". The charge sheet was signed· by Shri Rameshwar Dayal who was at that time. the Deputy Commissioner of Delhi and was admittedly the authority competent lo dismiss the appellant. The appellant duly submitted his explanation in writiog. One Shri Mahipal Singh, Inspector, Co-operative Sockties S.C.R. . SUPREME COURT REPORTS 1083 was appointed by the Deputy Commissioner, Delhi the officer to hold the enquiry. The appellant attended two sittings before the Enquiry Officer and then applied to the Deputy Commissioner to entrust the enquiry to some Gazetted Officer under him. This request of the appellant was rejected and he was informed accordingly. Indeed, the appellant was warned that the Enquiry Officer had been authorised to proceed with the enquiry ex parte if the appellant failed to attend the enquiry. The appellant, however, did not, after October 20, 1949, attend any further sittings before the Enquiry Officer. The Enquiry Officer thereupon framed four additional charges against the appellant, namely, (1) for his refusal to attend the enquiry, (2) for his refusal to accept the service of the order of the Enquiry Officer, (3) for his absence without permission and (4) for his misconduct in snatching away papers from one Mohd. Ishaq and using unparliamentary and threatening language. It appears that at or about this time the appellant became involved in li criminal case Oil a charge under S. 307 of the Indian Penal Code and on October 30, 1949, he was actually arrested but was released on bail two or three days later. Eventually on May 20, 1950. the appellant was discharged from the criminal charge. On November 14, 1951, the appellant was served with a notice signed by one Shri Vasudev. Taneja, Superintendent. The notice was in the following terms : "Please note that you are to appear before Shri J. B. Tandon, I.A.S., Additional District Magistrate, on the 24th November, 1951, at 10-30 a.m .. in his court room in connection with the departmental enquiry pending against you". The language employed in the notice does lend some support to the contention that the Enquiry Officer, Shri Mahipal Singh. had not concluded the enquiry entrusted to him and that the departmental enquiry was still pending. Pursuant to the notice the appellant appeared before Shri J. B. Tandon and urged two points, namely, (1) that the LiP(D)~SCI-4(a) 1957 KhemOhand. v. The. Union of India aml Others DasO.J. 19!:J1 Ki..m Chand Y. The Union of I mli11 and OtJierR Da• o. J. 1084 SUPREME COURT REPORTS. [1958] enquiry of the t·harger. framed against him ought to have been held by a Gazetted Officer of the District Court and (2) that the crn-1uiry should have been held in his presence. It will be noticed that both the points related to the enquiry before Shri Mahipal Singh. On December 13, 1951, Shri J. B. Tandon made a report. After reciting the charge sheet containing the notice calling upon the appellant to show cau'c why lie should not be dismissed from service and setting out the charges contained in the 11otice and summarising the explanation submitted by the appellant with regard to each of the charges and reciting the prayer of the appellant that the Enquiry Officer should be changed· and the rejection thereof and the framing of additional charges and the appellant's «hsence from the enquiry with effect from October 20, 1949, the report proceeded to set out the actual charges which Shri Mahipal Singh was appointed to enquire into. The report then stated that the enquiry with regard to the first two charges had been held in the presence of the appellant and the rest were enquired into ex parte as •he appellant had absented· himself from the enquiry. Then the report recited that twelve charges had been proved against the appellant and he was given the benefit of doubt in respect of charge No. (iii) and that no charge sheet had been given with regard to charges Nos. (xiii) and (xivi and that no enquiry had been held on those charges. Out of the twelve charges said to have been proved a~ainst the appellant. Shri J. B. Tandon found that no charce had been actually framed in one case and, therefore, he reduced the number of proud charges to eleven and proceeded to base his recommendation on them. After stating that the charges of embezzlement. acceptance of illegal gratification and borrowing of money frnrn societies were so serious that even one of them alone was sufficient to demand the appellant's dismissal and that the entries made in his character roll disclosed tliat his work and conduct had not been satisfactory and explaining that the enquiry had been held up by reason of the appellant having been challaned under s. 307, Indian Penal Code, Shri J. B. Tan- S.C.R. SUPREME COURT REPORTS 1085 don, in his report, formulated the, following points for con· 1967 sideration: namely, (l) what penalty should be imposed on Kliem Okand Shri Khem Chand for the eleven charges proved against him? The Un~~ of India (2) Whether his gun licence should be cancelled and (3) wheand Olhera ther the dues of societies, which had been proved, might be v;;;o. J. realised: out of the security deposit furnished by him? Then, after stating that a personal hearing was given to the appellant who raised the two points mentioned above and holding that there was no substance in either of them, paragraph 16 of the report ran as follows: "The charges of embezzlement, acceptance of illegal gratification, making wrong statement, misbehaviour at the time of enquiry and refusal to receive orders to attend enquiry which had been proved against him are so serious that, I am sorry, I cannot suggest lesser punishment than dismissal from service and he may be dismissed." The report also recommended that the appellant's gun licence be cancelled and that he be directed to surrender his licence and deposit the gun in the district Malkhana and that the money, which had been proved to have been taken by the appellant from various societies, might also be recovered from the security deposit furnished by him. There is no positive and definite statement in Shri J. B. Tandon's report that Shri Mahipal Singh had concluded the enquiry or submitted a formal report. The general tenor of Shri J. B. Tandon's report, however· suggests that Shri Mahipal Singh did arrive at definite findings on twelve charges. The appellant's grievance is that he was not given a copy of the report of Shri Mahipal Singh, if any had been made, and no such report has been exhibited in this case. · At the foot of Shri J. B. Tandon's report the following endorsement appears over the signature of the Deputy Commissioner, Delhi under date December 14, 1951: "The report is approved. Action accordingly." Thereupon on December 17, 1951, a formal order was issued over the signature of the Deputy Commissioner, Delhi. It was in the following tenns:- ' 1086 SUPRE;\Il<: COUR'r RE:PORTS [1958] 19/j7 KMrn Chand v. The Union of l1ulia and Otherr. "l, the undersigned, do hereby dismiss Shri Khem Chand, sub-inspector, Co-operative Societies Delhi, from the Government Service with effect from the date of this order. He has been found guilty of the charges of embezzlement. acceptance of illegal gratification, making wrong statement, misbehaviour at the time of the enquiry and refusal to receive order to attend the enquiry. I further order that money whjch has been proved to have been taken by Shri Khem Chand from various societies be recovered from the security deposit furnished by him." IJG3 c. J. On March 15, 1952, the appellant appealed to the Chief Commissioner, but his appeal was dismissed on December 8. 1952. Thereafter the appellant served a notice of suit on the respondents under s. 80 of the Code of Civil Procedure and on May 21, 1953, filed civil suit No. 213 of 1953 complaining, inter alia, that Art. 311(2) had not been complied with. The suit was decreed by the subordinate judge, Delhi on May :31, 1954, declaring that the plaintiff's dismissal was void and inoperative and that the plaintiff continued to be in the service of the State of Delhi at the date of the institution of the suit and awarding costs to the plaintiff. The Union of India preferred an appeal against the judgment of the subordinate judge, Delhi but the appeal was dismissed by the senior subordinate judge, Delhi on December 21, 1954, and the decree of the trial court was confirmed. A second appeal was taken by the defendants to the Punjab High Court. By his judgment dated November 1, 1955, the Single Judge held that there had been a substantial compliance with the provisions of Art. 311 and accordingly accepted the appeal, set aside the decree of the courts below and· dismissed the plaintiff's suit. On September 6, 1956, the plaintiff obtained special leave from this Court and has preferred this appeal against the order of the learned Single Judge. The appellant has also been allowed to prosecute the appeal in forma pauperis. In the courts below a point was raised as to whether the appellant was a member of any of the services referred S.C.R.. SUPREME COURT REPORTS 1087 to in Art. 311. But it was conceded before the High Court 1967 and has also been admitted before us that the appellant was Kkem Ohant such a member and consequently that point does not arise. -The Uni:,. of India The only point that has been canvassed before us, as it had and Othirs been before the High Court, is: Was the appellant given a Daso. J. reasonable opportunity of showing cause against the action · proposed to be taken in regard to him? There is no dispute that the appellant was served with a charge sheet on July 9, 1949, as required by r. 6 of the Rules which had been· framed by the C_hief Commissioner, Delhi and which governed the appellant's conditions of service. It is also conceded that the appellant actually appeared at two hearings before the Enquiry Officer, Shri MahipaI Singh, but that subsequently he wanted a transfer of the enquiry to some other officer and that that th.e prayer having been refused he did not take any further part in the enquiry before that officer. There is no grievance that no opportunity had been given to him to defend himself against the charges levelled against him in that enquiry. It is also an admitted fact that some time after the appellant was discharged from the criminal case, he received a notice on November 14, 1951, requiring him to appear before Shri J. B. Tandon on November 25, 1951 in connection with the pending enquiry. The appellant did appear on the appointed day, had been given a personal hearing and in fact raised two several objections against the enquiry held by Shri Mahipal Singh. His only grievance is that, after Shri J. B. Tandon had made his report on December 13, 1951, recommending the dismissal of the appellant and the Deputy Commissioner had on the very next day approved of the report and proposed to take action accordingly, the appellant was not given an opportunity to show cause against the action so proposed to be taken in regard to him, as he was entitled to under Art. 311 of the Constitution. In order to appreciate the arguments advanced by learned counsel for the parties, it is necessary at this stage to set out the provisions of the Constitution bearing on them. The relevant portions of Arts. 310 and 311 of the Constitution, Khem Chand v. 1088 SUPREME COUR'l' REPOR'l'S (1908) which substantially reproduce sub-ss. (I), (2) and (3) of s. 240 of the Government of India Act, 1935, are as follow:- 'l'At Union of India anrl OthtrB "310(1) Except as expressly provided by this Constitution, every person who is a member of a dmence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post un• der the Union, holds oftfe during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. Dai a. J. (2) .................................................................. . 311 (!) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State sball be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him : Provided ......................................................... . (3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be shall be final." The answer to the question canvassed b@fore us depends on a true construction of the aforesaid provisions and in particular on the view we take as to the meaning, scope and ambit of Art 311(2). In Par9hotam Lal Dhingra's case(') it was said that the word "removed" was not in s. 240(3) but had been introduced in Art. 311(2). It may be mentioned that although the word "removed" was not actually used in s. 240(3), the reference to dismissal, according to s. 277, included a reference to removal. (') Civil Appeal, No. 65 of 1957, decided on November 1, 1957. S.C.R. SUPREME COURT REPORTS 1089 • Article 310(1) no doubt provides that every person falling 11m within it holds office during the pleasure of the President or Kliem OluJna the Governor, as the case may be. The language of both els. T' u "!· ·,, 1 ,. . • 11e n1on oJ nu.sa (l) and (2) of Art. 3 ll are prohibitory in form and was held and 011ier. by the Judicial Committee in High Commissioner for India v. D 0 J aa • , I. M. Lal(') to be inconsistent with their being merely pen'nis· sive and consequently those provisions ha,ve to be read as qualifications or provisos to Art. 310(1) as has· been held by the Judicial Committee in that case and recently by this Court in Parshotam Lal Dhingra v. The Union of India(') in a judgment pronounced on November I, 1957. The limitations thus imposed on the exercise of the pleasure of the President or the Governor in the matter of the dismissal, removal or reduction in rank of government servants constitute the measure of the constitutional protection afforded to the gov· ernment servants by Art. 311(2). Clause (1) of Art. 311 is quite explicit and protects government servants of the kinds referred to therein by pro· viding that they cannot be dismissed, or removed or reduced in rank by a lesser authority than that which appointed them. Like-wise cl. (2) protects government servants against being dismissed, removed or reduced in rank without being given a reasonable opportunity to show· cause against the action proposed to be taken in regard to them. As has been explain· ed by this Court in Parshotam Lal Dhingra's case('), the ex· pressions 'dismissed,' 'removed' and 'reduced in rank' a.re technical words taken from the service rules where they are used to denote the three major categories of punishments. In exercise of powers conferred by s. 96-B(2) of the Government of India Ac14 1915, the Secretary of State in Council framed Civil Service (Governors Provinces Classifi· cation) Rules. Rules (x) and (xiii) of those rules provided that local government might, for good and sufficient reasoqs, inflict the several punishments therein mentioned on persons therein indica.ted. Rule (xiv) prescribed the procedure for all cases in which dismissal, removal or reduction in rank of any offi· (') L.R. (1948) 75 I.A. 225 at p. 241. (')Civil Appeal No. 65 of 1957, decided on November 1, 1957. 1961 Khem Chand v. The Utiion of India and Others Da• G.J. .. 1090 SUPREME COURT REPORTS [1958] cer, was intended to be ordered. These rules were reproduced with some modifications in the Civil Services (Classification, Control and Appeal) Rules which were, on May 27, 1930, promulgated by the Secretary of State in Council in exercise of the same powers under s. 96-B of the Government of India Act, 1915. Rule 49 of those rules specified seven different kinds of punishments which could, for good and sufficient reasons, be imposed upon the members of the services therein specified. Rule 55 reproduced old r. (xiv) with greater details. It provided : ·"Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court Martial) unless he has been informed .in writing of the groun~s on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, t3gether with a statement of the allegations on which each charge is based and-of my other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of bis defence and to state whether he desires to be heared in person. If he so desires. or if the authority concern~d so direct, ~n oral inquiry shall be held. At that inquiry oral evidence shall be beard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provide\! that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person s.c.n. SUPREME COURT REPORTS 1091 concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exa.ctly the requirements of the rule and those requirements can be waived with· out injustice to the person charged." Similar rules were framed and are to be found in the Indian Railway Establishment Code which governs the railway servants. Rule 6 of the Rules framed by the Chief Commissioner, Delhi, referred to above, is more or Jess on the same lines. In R. Venkata Rao v. Secretary of State for India(') it was held, with reference to the rules made under s. 96-B of the Government of India Act, 1915, that while that section assured that the tenure of office, though at pleasure, would not be subject to capricious and arbitrary action. but would oe regulated by the rules, it gave no right to the appellant, enforceable by action, to hold his office in accordance with those rules. It was held thats. 96-B and the rules made thereunder only made provisions for the redress of grievances by administrative process. The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of the Crown under the Government of India Act, 1915, the rules could not over-ride or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself. The only protection that the Government servants had was that, by virtue of s. 96-B(l), they could not be dismissed by an authority subordinate ·to tha.t by which they were appointed. The position, however, improved to some extent .under the 1935 Act which, by s. 240(3); gave a further protection, in addition to that provided in s. 240(2) which reproduced the protection of s. 96-B(I) of the Government of India Ad, 1915. We have, therefore, t'? determine the true meaning, scope and ambit of (1) L.R. (1936) 64 I.A. 55, 19ii1 Khem G/1<111d , .. Tiu Union of India '""' 011i .... Da.t o. J. 1092 SUPREME COURT REPORTS [1958) 1957 this new protection given by s. 240(3) of the Government of Khem Ohond India Act, 1935, which has been reproduced in Art. 311 (2). v. TJe Union o/ Imli• The majority of the Judges of the Federal Court (Spens, and Oiiier. C.J., and Zafarulla Khan, J.) in /. M. Lall's case(') took the 1Ja30,J. view that in sub-s. (3) of s. 240 there had been enacted provisions of a very limited scope in permanent statutory form as compared with the provisions under the rules considered in Venkata Rao's case('). Further down, after referring to the fact !hat prior to 1935 a sort of protection for the servants of the Crown provided by sub-s. (3) was merely to be found in the rules, many and various and liable to change, their Lordships proceeded to state that from those rules had been picked out and enacted in the section itself certain limited specific provisions only. The majority of the Federal Court at page 138 construed s. 240(3) as follows: "In our judgment the words "against the action proposed to be taken in regard to him" require that there should be a. definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon. It should be noted that the sub-section does not require any inquiry, any formula.lion of charges, or any opportunity of defence against those charges. All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him. It is also significant that there is no indication as to the authority by whom the action is to be proposed. It docs, however. seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so to~d and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section rc