UTTAR PRADESH GOVERNMENT versus SABIR HUSSAIN

Citation: [1975] SUPP. 1 S.C.R. 354 · Decided: 30-04-1975 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Dismissed
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Judgment (excerpt)

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 oppor-
tu11ity 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 oppor-
tunity 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 en-
quiry 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 represen-
tation. 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 stand-
1 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 ser-
vice, 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 em-
ployee 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
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