# UTTAR PRADESH GOVERNMENT v. SABIR HUSSAIN

- **Citation:** [1975] Supp. 1 S.C.R. 354
- **Court:** Supreme Court of India
- **Decided:** 1975-04-30
- **Bench:** V. R Krishna )Yer, R. S. Sarkaria, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/uttar-pradesh-government-v-sabir-hussain-6524
- **Pages:** 7

## Headnote

Govern1nent of India Act, 1935-S. 240-lf covers n case of 'ren1oi:ul' also
-Reasonable opportunity-Test of-If obligatory to .r:ivc reasonable opportu11ity in the case of 'retnoval' froni service.
Section 240 of Government of India Act, 1935 states that no person shall
be dismissed or reduc~d in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to
him.
Article 311(2) of the Constitution (after the 15th 1\n1endment) 8tates that
no person shall be dismissed, removed or reduced in n1nk except <.\fter an enquiry in \vhich he has been informed of the charges against him :ind given
a reasonable o;pportunHy of b.cing heard in respect of those charges and
D where it is proposed, after such inquiry, to impose on him any such penalty,
until he has been given a reasonable opportunity of n1aking re.rre.sentation
on the penalty proposed but only on the basis of the evidence adduced during
such inquiry.
F
The respondent was dismissed from (iovernn1ent service in 1942. On re·
presentations, he was reinstated in 1948 but by the san1e order he vvas sus.
pended with retrospective effect from the date of disn1i"isal. After an inquiry,
he \vas removed from service in 1949. His suit for declaration that the order
of suspension and removal were illegal and ultra rires was dis1nissed and his
appenl wa<; also dismissed. The High Court allowed the appeal holding that
in the absence of furnishjng a copy of the report, of the inquiry officer, the
plaintiff had been denied a reasonable opportunity of showing cause against
his 'removal'.
On appeal by the State to this Court it \Vas contended that since the
removal was pre-Constitutional, no protection of Art. 311 (2) could be claimed
by the respondent. Section 240(3) of the Government of India Act. 1935,
it was contended, would not afford any protection because the \Vord 'removal'
did not find mention in that section.
Dismissing the appeal,
HELD : (1) The High Court was .right in holding that the respondent was
G not given a reasonable opportunity to sho\V cause against the action proposed
to be taken against him and that the non·supply of the copies of the material
documents had caused serious prejudice to him in m<tking a proper representation. There was disobedience of the mandate of s. 240(3) of the Govern.
mcnt of India Act, 1935 and the impugned order stood vitiated en that score
olone. [360 A-BJ
(2) A comparative study of s. 240(3) of the Government of India Act,
H
1935 and Art. 311(2) of the Constitution of India, 1950 \Vould show that the
protection afforded by these provisions, is in nature and extent substantinlly
the. same. The word 'removed' which appe;::.rs in Art. 311(2) does not find
mention in s. 240(3).
But this does not mean that s. 240(3) did not cover
a case of 'removal'. It is by now well settled that from the Constitutional stand1 point, 'removal' and 'dismissal' stand on the same footing except as to future
employment. In the context of s. 240(3) 'removal' and ''dismissal' from service, are synonymous terms, the former being only a species of the 1.:itter.
l\1oreover, according to the principle of interpretation laid dov. n in s. 277
'
,
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u. P. GOVT. v. SABIR HUSSIAN (Sarkaria, J.)
355
of the 1935 Act, the reference to dismissal in s. 240 would include a reference
A
to removal. [358 D-F]
Hir:F1 Cotnrnissioner of India v. 1. M. Lal [1948] 75 I.A. 225; Purshottan1 Lal
Dhi11g~a v. Union of India [1958] S.C.R. 825; Khen1 ·chand v. Union of India
[1958] S.C.R. 1080; Sh)'nm Lal v.
The State [1955] S.C.R. 25 referred to.
(3) Despite th~ non-m.cntion of the word 'removal' in s. 240(3) it
was
obligatory for the removing authority .as soon as it tentatively decided as a
B
result of the enquiry, to inflict the punish1nent of
1removal' to give to the employee a reasonable opportunity of sho'Wing cause against the nction proposed
to be taken in regard to him. [358-0]
(4) The broad test of "reasonable opportunity" is, w

## Text

354
A
UTTAR PRADESH GOVERNMENT
v.
SABIR HUSSAIN
April 30, 1975
B
[V. R KRISHNA )YER, R. S. SARKARIA AND A. C. GUPTA, JJ .]
Govern1nent of India Act, 1935-S. 240-lf covers n case of 'ren1oi:ul' also
-Reasonable opportunity-Test of-If obligatory to .r:ivc reasonable opportu11ity in the case of 'retnoval' froni service.
Section 240 of Government of India Act, 1935 states that no person shall
be dismissed or reduc~d in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to
him.
Article 311(2) of the Constitution (after the 15th 1\n1endment) 8tates that
no person shall be dismissed, removed or reduced in n1nk except <.\fter an enquiry in \vhich he has been informed of the charges against him :ind given
a reasonable o;pportunHy of b.cing heard in respect of those charges and
D where it is proposed, after such inquiry, to impose on him any such penalty,
until he has been given a reasonable opportunity of n1aking re.rre.sentation
on the penalty proposed but only on the basis of the evidence adduced during
such inquiry.
F
The respondent was dismissed from (iovernn1ent service in 1942. On re·
presentations, he was reinstated in 1948 but by the san1e order he vvas sus.
pended with retrospective effect from the date of disn1i"isal. After an inquiry,
he \vas removed from service in 1949. His suit for declaration that the order
of suspension and removal were illegal and ultra rires was dis1nissed and his
appenl wa<; also dismissed. The High Court allowed the appeal holding that
in the absence of furnishjng a copy of the report, of the inquiry officer, the
plaintiff had been denied a reasonable opportunity of showing cause against
his 'removal'.
On appeal by the State to this Court it \Vas contended that since the
removal was pre-Constitutional, no protection of Art. 311 (2) could be claimed
by the respondent. Section 240(3) of the Government of India Act. 1935,
it was contended, would not afford any protection because the \Vord 'removal'
did not find mention in that section.
Dismissing the appeal,
HELD : (1) The High Court was .right in holding that the respondent was
G not given a reasonable opportunity to sho\V cause against the action proposed
to be taken against him and that the non·supply of the copies of the material
documents had caused serious prejudice to him in m<tking a proper representation. There was disobedience of the mandate of s. 240(3) of the Govern.
mcnt of India Act, 1935 and the impugned order stood vitiated en that score
olone. [360 A-BJ
(2) A comparative study of s. 240(3) of the Government of India Act,
H
1935 and Art. 311(2) of the Constitution of India, 1950 \Vould show that the
protection afforded by these provisions, is in nature and extent substantinlly
the. same. The word 'removed' which appe;::.rs in Art. 311(2) does not find
mention in s. 240(3).
But this does not mean that s. 240(3) did not cover
a case of 'removal'. It is by now well settled that from the Constitutional stand1 point, 'removal' and 'dismissal' stand on the same footing except as to future
employment. In the context of s. 240(3) 'removal' and ''dismissal' from service, are synonymous terms, the former being only a species of the 1.:itter.
l\1oreover, according to the principle of interpretation laid dov. n in s. 277
'
,
-
•
••
u. P. GOVT. v. SABIR HUSSIAN (Sarkaria, J.)
355
of the 1935 Act, the reference to dismissal in s. 240 would include a reference
A
to removal. [358 D-F]
Hir:F1 Cotnrnissioner of India v. 1. M. Lal [1948] 75 I.A. 225; Purshottan1 Lal
Dhi11g~a v. Union of India [1958] S.C.R. 825; Khen1 ·chand v. Union of India
[1958] S.C.R. 1080; Sh)'nm Lal v.
The State [1955] S.C.R. 25 referred to.
(3) Despite th~ non-m.cntion of the word 'removal' in s. 240(3) it
was
obligatory for the removing authority .as soon as it tentatively decided as a
B
result of the enquiry, to inflict the punish1nent of
1removal' to give to the employee a reasonable opportunity of sho'Wing cause against the nction proposed
to be taken in regard to him. [358-0]
(4) The broad test of "reasonable opportunity" is, whether in the given
case,
1 the shO\\' cause notice issued to the delinquent servant contained or \Vas
nccornpanied by so much information as was necessary to enable h.im to clear
C
himself of the guilt. if possible. even at that stage,, or, in the alternative, to
show that the penalty proposed was much too harsh and disproportionate to
the nature of the charge estab1ished1 against him. [359 B-C]
CIVIL APPEHATE JURISDICTION: Civil Appeal No. 174 of 1968.
Appeal by Special Leave from the Judgment and Order dated the
D
17th August, 1967 of the Allahabad High Court (Lucknow Bench)
in Second Appeal No. 155 of 1959.
G. N. Dikshit and 0. P. Rana, for the appellant.
R. P. Agarwal, for the respondent.
The Judgment of the Court was delivered by.
SARKARIA J.-This appeal is directed against a judgment of the
High Court of Allahabad declaring that the orders, 'dated 15-8-1949
and 18-5-1951, of the respondent's removal from service were illegal.
The respondent was employed as Assistant Jailor at the Central
Prison, Benaras. Auditing of the accounts revealed certain shortages.
The respondent was charge-sheeted in respect of the same, and dismissed from the post on 4-7-1942. He made representations to the
authorities against his dismissal. Ultimately, the Government reinstated
him on 15-6-1948 but by the same order suspended him with retrospective effect from the date of his dismissal. On the basis of the
enquiry held earlier into the charges against him, he was removed from
service on August 15, 1949. The respondent then filed suit No. 144/
396 of 1952 in the Court of Munsif, Lucknow, claiming a declaration
that the suspension order, dated June 15, 1948, and the removal
order dated, 15-8-1949, and the Government Order, 'dated 18-5-1951,
upholding the removal in appeal, were illegal, ultra vires and contrary
to the rules. The plaintiff further stated that he would file a separate
suit for the recovery of the arrears of pay, to which he was entitled
in respect of the period from 4-7-42 to 10-8-1949.
The suit was resisted by the State on various groun<Is. The trial
court dismissed his suit. The First Appellate Court dismissed his
appeal.
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356
SUPREME COURT REPORTS
[1975] SUPP· s.c.R.
A
The plaintiff preferred a .second appeal in the High Court. Before
the learned .Judge .of the High Court, who heard the appeal, it was
contended, inter-a/ta that copies of the Enquiry Officer's report and
findings were not supplied to the plaintiff and therefore he was not
afforded a reasonable opportunity of showing cause in terms of Art.
311(2) of the Constitution. Jn substance, the learned Judrre seems to
}j have accepted this contention when he concluded that "in the absence
of furnishing a copy of the report, it could not be saiJ that the plaintiff had been afforded a reasonable opportunity to show cause". He,
however rested this conclusion also on the ground "that no cause
. could properly be shown without a copy of the proceedings beino
handed over as provided in Ruic 5-A of the Punishment & Appeal
Rules for Subordinate Services notified by the State Government under
C
Notification No. 2627 /Il-266 dated August 3, 1932", (hereinafter
referred to as the Appeal Rules). In the result, he a!lowed the appeal
and declared the impugned orders, dated 15-8-1949 and 18-9-1951
to be void. He did not think it necessary to record any finding with
respect to the suspension order, dated June 15, 1958, as the same had
merged in the removal orders. Hence this appeal by special lcme by
D the State.
The plaintiff-respondent has not appeared before us despite notice.
Mr. Aggarwal has assisted us as an?icus curiae.
Shri Dikshit, learned Counsel for the appellant contends that the
High Court was wrong in holding that the impugned order of removal
E violated the provisions of Ruic 5-A of the Appeal Rules. It is pointed
out that the application of Rule 5-A to the employees of Jail Department was expressly excluded by Ruic 6 of the Appeal Rules. It is
further submitted that since the removal in question was a pre-constitutional removal,· no protection of Art. 311 (2) of the C011'titution
could be claimed by the respondent. Even s. 240(1) of the GovernF
ment of India Act, 1935, according to the Counsel, would not afford
any protection because the word 'removal' did not find mention in that
section. 'Removal', says the Counsel, is something different from 'dismissal' and the authors of the Government of India Act were aware
of this difference when they did not include it in the protective provisions of s. 240. Since the impugned order, dated 10-8-1949, was only
an order of removal as distinguished from dismissal, s. 240(3) was
G not attracted and no opportunity to show cause against the intended
removal was required to be given to the servant. It is further_ submitted
that in any case, the respondent had no nght to be supplied with a
copy of the report and the findings of the. Enquiry Officer on the
ground that it was a requirement of natural .1ust1ce. In support of his
contentions ]earned counsel has cited ~",'urPsh R-oshy George V. The
University ~f Kerala and ors.( 1), Satish Chander Anand v. The Union
J-l of India(') and State of Uttar Pradesh v. Mohammad Nooh(').
On the other hand, Shri R. P. Aggarwala submits that even if
Rule 5-A of the Appeal Rules was not applicable, the respondent w~s
entitled to the protection of s. 240(3) of the Government of India
(1) [19691 SCR 317 (2) [!953] S.C.R. 655.
(3) [1958] S.C.R. 595.
•
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u. P. GOVT. I'. SABIR HUSSIAN (Sarkaria, J.)
AC!, 1935. According to
Counsel, the
word
'dis!lllssal' used m
s. 240 (3) was wide enough to cover a case of removal as a punishment. It is maintained that 'removal' and 'dismissal' in the context of
s. 240(3) were synonymous terms. The argument proceeds that since
the respondent was not furnished with a copy of the enquiry report
and the findings recorded therein, the opportunity, if any given, was
not a 'reasonable opportunity' as required by the mandatory provisions
of s. 240(3). Even after making the order of removal, it is stressed,
the authorities despite written requests made by the respondent, did
not supply a copy of those documents to enable him to file an effective
appeal/representation under the service rules to the appropriate authority. This infransigcnt attitude, says the learned amicus curiae, was also
violative of the procedure prescribed in Government circular No. 47 /
B8EC, dated 13-12-47, (Ex. PW 1/2) and the fundamental principles of natural justice embodied therein. Reliance in this behalf has
been placed on High Commissioner of India v. T. M. Lall('), Purshotam Lal Dhingra v. Union of India ( 2), Khem Chand v. Union of
lndia( 3), State of Gujarat v. R. G. Teradesai and mir. ( 4 ) Counsel
further distinguished
the decision in
Suresh Koshy Georg~'s case
(supra).
The first point to be considered is
whether the
safeguard in
s. 240(3) of the Government of India Act 1935, was available to a
civil servant in a case of 'removal' from service as a punishment? In
other words, was the protection afforded by s. 240(3) less extensive
357
A
B
c
D
than the one given by Art. 311 (2) of the Constitution?
E
Section 240(3) was in these terms :
"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 J:lim :
F
Provided that this sub-section shall not apply-
( a) where a person is dismissed or reduced in rank on
the ground of conduct which has led to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss a person
G
or reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is
not reasonably practicable to give to that person an
opportunity of showing cause."
Article 311 (2) (after the 15th Amendment) runs thus :
"No snch person as aforesaid shall be dismissed or re-
• moved or reduced in rank except after an enquiry in which
he has been informed of the charges against him and given
---
(I) [1948] 75!.A. 225. (2) [1958] S.C.R. 825.
(3) (1958] S.C.R. 1080. (4) (1969] 2 S.C.R. 157.
H
358
A
B
c
D
SUPREME COURT REPORTS
[1975] SUPP· s.c.R.
a reasonable opportunity of being heard in respect of those
charges and whc.rc it is proposed, after such enquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty
proposed, but only on the basis of the evidence adduced during such inquiry :
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced
in rank on the ground of conduct which has led to his
conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove
a person or to reduce him in rank is satisfied that for
some mason, to be recorded by that authority in writ··
ing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may
be. is satisfied that in the interest of the security of
the State it is not expedient to hold such inquiry."
A comparative study of s. 240(3) and Art. 311(2) would show
that the protection afforded by these provisions, is in nature and
extent, substantially the same. Of course, the word 'removed', which
appears in Art. 311 (2), does not find mention in s. 240(3). But this
E does not mean thats. 240(3) did not cover a case of 'removal'. It is
by now well settled that from the constitutional stand-point, 'removal'
and 'dismissal', stand on the same footing except as to future employment. Jn the context of s. 240(3), 'removal' and 'dismissal' from service, arc synonymous terms, the former being only a species of the
latter. Moreover, according to the principle of interpretation laid down
F
in s. 277 of the 1935 Act, the reference to dismissal in s. 240 would
include a rcferenc~ to removal (see High Commissioner of India v.
I. M. Lall) (supra); Shyam Lal v. The State('); Purshottam Lal
'Dhingra v. Union of India (supra), Khem Chand v. Union of India
(supra).
It is thus clear that despite the non-mention of the word 'removed'
in 's. 240(3), it was obligatory for the removing authority, as soon
G as it tentatively decided, as a result of the enquiry, to inflict the punishment of 'removal', to give to the employee a 'reasonable opportunity'
of showing cause against the action proposed to be taken in regard to
him".
It is to be noted that the section requires not only the giving of an
opportunity to show cause, but further enjoins that the opportunity
H should be "reasonable". What then is "reasonable opportunity" within
the contemplation of s. 240(3) ? How is it distinguished frorn an opportunity which is not reasonable? The question has to be answered
in the context of each case, keeping in view the object of this provision and the fundamental principle of natural justice subserved by it.
(I) [1955] SCR 26.
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u. P. GOVT. v. SABIR HUSSIAN (Sarkaria, J.)
359
~pointed ou~ by this Cou.rt in State of Gujarat v. Teredesai (supra),
the entrre Object of supplyu:~g a copy of the report of the enquiring
<Yffic:er is to enable the deimquent officer to satisfy the punishing
authority that he is innocent of the charges framed against him and
that ·even if the charges are held to have been proved the punishment
proposed to be inflicted is unduly severe. If the enquiry officer had also
made recommendations in the matter of punishment, that is likely to
affect the mind of the punishing authority even with regard to penalty
or punishment to be imposed on such officer. The requirement of reasonablc opportunity, tlierefore would not be satisfied unless the entire
report of the Enquiry Officer including his views in the matter of
punishment are disclosed to the delinquent servant". Thus the broad
test of "reasonable opportunity" is, whether in the given case, the show
cau~e notice issued to the delinquent servant contained or was accompanitd by so much information as was necessary to enable him to
clear himself of the guilt, if possible, even at that stage, or, in the
illternative, to show that the penalty proposed was much too harsh and
disproportionate to the nature of the charge established against him .
Now let us apply this test to the facts of the present case. The case
al the defendant-State in the written statement (as extracted by the
Miiisif in his judgment) was :
" ...... that the accounts of the Civil Prison Benaras
for the years 1939 to 1947 were audited by the Senior Departmental Auditor who detected heavy shortages whereupon
the matter was thoroughly investigated and the l.G. ordered
charge-sheets to be framed against the plaintiff which was
accordingly done and the Superintendent,
Central Prison,
Bcnaras submitted the proceedings of those charges along
with his comments and explanation of the plaintiff whereupon the I.G. of Prison found the plaintiff guilty of those
charges and ordered his removal."
A
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F
It is clearly discernible from what has been extractoo above that
the order of the removal in question proceeded on an acceptance of
the report of enquiry proceedings and "comments" of the Enquiry
Officer, (Superintendent). Evidently, the Inspector-General who made
the impugned order was influenced and guided both with regard to the
G
proof of charges and the prescribing of the type of punishment by the
report and "con1mcnts" (which term will cover "recommendations")
of the Enquiring Authority.
Further it is an uncontroverted fact found by the courts below
that no copy of the report, findings and "comments" of the E.n~uiring
Officer, was supplied to the delinquent servant. Another undisputed
H
fact is that no copy of tire enquiry report and alh~d documents was
given to him, even when he applied for the same m order to file an
appeal to the higher authorities against the order of_ removal .. The
servant was told that he was not entitled to those copies excepting a
copy of the impugned order of punishment, atid that too on payment
of Rs. 3 as copying charges.
·
JO SC/75-24
-1
360
SUPR.EME COURT REPORTS
[1975] SUPP· s.c.R.
A
In view. of_ these stark facts, the High Court was right in holding
that the plamtJff (respondent) was not given a reasonable opportunity
to show cause against the action proposed to be taken against him and
that the non-supply of the copies of the material documents had
caused serious prejudice to him in making a proper representation.
There was a disobedience of the mandate of s. 240 ( 3) of the GovB ernment of India Act, 1935 and the impugned order stood vitiated on
that score alone. Reference to Rule 5-A of the Appeal Rules, made
by the High Court in support of its conclusion, was unnecessary because application of that Rule to the employees ot the Jail Department
had been expressly excluded by Rule 6 of the Appeal Rules. Moreover, Rule 5-A was inserted in 1953, while we are dealing with a
C removal order made in 1949.
It was contended before us by Mr. R. P. Agarwala that the removal order, dated 18-5-1951, passed by the Government of the respondent's appeal was also invalid because in violation of the basic
principles of natural justice and fair play, copies of the proceedings,
report and findings of the Enquiring Officer were riot supplied to
D the plaintiff to enable him to file an effective appeal. There is undoubtedly force in this contention but we think it unnecessary to decide
this point as the order or removal, dated 15-8-1949, being void
ab
initio due to non-compliance with the requirements of s. 240(3), the
appellate impnnged order would automatically fall within it.
Before parting with this judgment, we place on record our appreE ciation of the valuable assistance rendered by the learned counsel on
both sides, particularly the amicus curiae, Shri Aggarwala.
The appeal fails and is dismissed without any order as to costs.
P.B.R.
Appeal dismissed.
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