Khem Chand Vs. The Union of India
& Ors [1957] INSC 113 (13 December 1957)
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA DAS, S.K.
SARKAR, A.K.
BOSE, VIVIAN
CITATION: 1958 AIR 300 1958 SCR 1080
ACT:
Constitution, Interpretation of-'Reasonable
opportunity of showing cause', Meaning of Punishment of dismissal on Government
Servant-Constitutional Protection-ProcedureConstitution of India, Art. 311(2).
HEADNOTE:
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 against him 1081 are and the
allegations on which such charges are based ;
(2)opportunity to cross-examine the witnesses
produced against him and examine himself or other witnesses 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. I03, not followed.
Parshotam Lal Dhingra v. The Union of India,
and Venkata Rao v. Secretary of State for India, L.R. (1936) 64 I.A. 55,
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 particular punishment on him.
Consequently, in a case where the Government
Servant sought to be proceeded against for misconduct was served with a
charge-sheet and appeared before two officers conducting the enquiry, one after
the other, but no notice was 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 JURISDICTION: Civil Appeal
No. 353 of 1957.
Appeal by special leave from the judgment and
decree dated November 1, 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, 1954, of the Court of the Senior Subordinate
Judge at Delhi in Regular Civil Appeal No. 685 of 1954, affirming the judgment
and decree of Subordinate Judge Third Class Delhi in Suit No. 273/213 of 1953.
Janardhan Sharma, for the appellant.
C. K. Daphtary, Solicitor-General of India,
R. Ganapathy Iyer and R. H. Dhebar, for the respondents.
1082 1957. December 13. The following
Judgment of the Court was delivered by DAS C. J.-This appeal by special leave
granted by this Court to the plaintiff-appellant is directed against the
judgment and decree passed on November 1, 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 Cooperative Societies and posted as
sub-inspector. On July 1, 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
Commissioner, 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 charges 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 to dismiss the appellant.
The appellant duly submitted his explanation
in writing.
One Shri Mahipal Singh, Inspector, Co. 1083
operative Societies 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 un parliamentary and threatening language.
It appears that at or about this time the
appellant became involved in a criminal case on 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, 1. 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 lead 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) 138 1084 that the
enquiry of the charges framed against him ought to have been held by a Gazetted
Officer of the District Court and (2) that the enquiry 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 cause why he should not be dismissed from service and setting
out the charges contained in the notice 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
absence 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 the 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 (xiv) and that no enquiry had been
held on those charges. Out of the twelve charges said to have been proved
against the appellant, Shri J. B. Tandon found that no charge had been actually
framed in one case and, therefore, he reduced the number of proved charges to
eleven and proceeded to base his recommendation on them. After stating that the
charges of embezzlemient, acceptance of illegal gratification and borrowing of
money from 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 that 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. 1085 Tandon, in his
report, formulated the following points for consideration: namely, (1) what
penalty should be imposed on Shri Khem Chand for the eleven charges proved
against him? (2) Whether his gun licence should be cancelled and (3) whether
the dues of societies, which had been proved, might be 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
terms: 1086 "I, 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 which has been proved to have been taken by Shri
Khem Chand from various societies be recovered from the security deposit
furnished by him.
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 1087 referred to in
Art. 311. But it was a conceded before the High Court and has also been
admitted before us that the appellant was such a member and consequently that
point does not arise. The only point that has been canvassed before us, as it had
been before the High Court, is: Was the appellant given a 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
Chief 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 Mahipal
Singh, but that subsequently he wanted a transfer of the enquiry to some other
officer and that that 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, be 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, bad 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 pro. posed 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 nearing on them.
The relevant portions of Arts. 310 1088 and
311 of the Constitution, which substantially reproduce sub-ss. (1), (2) and (3)
of s. 240 of the Government of India Act, 1935, are as follows:" 310(1)
Except as expressly provided by this Constitution, every person who is a member
of a defence 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 under the
Union, holds office 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.
(2)......................................................
311(1) 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 shall 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 removed 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 before us depends on a true
construction of the aforesaid pro,visions and in particular on the view we take
as to the meaning, scope and ambit of Art. 311(2). In Parshotam Lal Dhingra's
case (1) it wag 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.
(1) Civil Appeal No. 65 Of 1957, decided on
November 1, 1957.
1089 Article 310(1) no doubt provides that
every person falling within it holds office during the pleasure of the
President or the Governor, as the case may be. The language of both cls. (1)
and (2) of Art. 311 are prohibitory in form and was held by the Judicial
Committee in High Commissioner for India v. 1. M. Lal (1) to be inconsistent
with their being merely permissive and consequently those provisions have 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(2) in a judgment pronounced on November 1, 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 government servants by
Art. 311(2). Clause (1) of Art. 311 is quite explicit and protects government
servants of the kinds referred to therein by providing that they cannot be
dismissed, or re. moved or reduced in rank by a lesser authority than that
which appointed them. Likewise 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 explained by this Court in
Parshotam Lal Dhingra's case (2), the expressions 'dismissed', 'removed' and
,reduced in rank' are 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 Act, 1915, the Secretary of State in Council framed
Civil Service (Governors Provinces Classification) Rules. Rules (x) and (xiii)
of those rules provided that local government might, for good and ,sufficient
reasons, inflict the several punishments therein mentioned on persons therein
indicated. Rule (xiv) prescribed the procedure for all cases in which
dismissal, removal or reduction in rank of any officer was intended (1) L.R.
(1948) 75 I.A. 225 at P. 241.
1090 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 grounds 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, together with a statement of the allegations on which
each charge is based and of any 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 his defence and to
state whether he desires to be heard in person. If he so desires, or if the
authority concerned so direct, an oral inquiry shall be held. At that inquiry
oral evidence shall be heard 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,
provided 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
concerned has absconded, 1091 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 exactly the
requirements of the rule and those requirements can be waived without 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 less 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 be 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 that s. 96-B and the rules made there under 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.
96B(1), they could not be dismissed by an authority subordinate to that 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(1) of the
Government of India Act, 1915. We have, therefore, to determine the true
meaning, scope and ambit of this now protection given by s. 240(3) of (1) L. R.
(1936) 64 I.A. 55.
139 1092 the Government of India Act, 1935,
which has been reproduced in Art. 311(2).
The majority of the Judges of the Federal
Court (Spens, C.J., and Zafarulla Khan, J.) in I. M. Lall's case (1) took the
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 (2). Further down, after referring
to the fact that 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 formulation 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 does,
however, seem to us that the subsection 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 told 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 requires not only notification of
the action proposed but of the grounds on which the authority is proposing that
the (I) (1945) F.C.R. I03, 136.
(2) L.R. (1936) 64 I.A. 55 1093 action should
be taken, and that the person concerned must then be given reasonable time to
make his representations against the proposed action and the grounds on which
it is proposed to be taken. It is suggested that in some cases it will be
sufficient to indicate the charges, the evidence on which those charges are put
forward and to make it clear that unless the person can on that information
show good cause against being dismissed or reduced if all or any of the charges
are proved, dismissal or reduction in rank will follow. This may indeed be
sufficient in some cases. In our judgment each case will have to turn on its
own facts, but the real point of the sub-section is in our judgment that the
person who is to be dismissed or reduced must know that that punishment is
proposed as the punishment for certain acts or omissions on his part and must
be told the grounds on which it is proposed to take such action and must be
given a reasonable opportunity of showing cause why such punishment should not
be imposed. That in our judgment involves in all cases where there is an
enquiry and as a result thereof some authority definitely proposes dismissal or
reduction in rank, that the person concerned shall be told in full, or
adequately summarised form, the results of that enquiry, and the findings of
the enquiring officer and be given an opportunity of showing cause with that
information why he should not suffer the proposed dismissal or reduction of
rank. " The above passage indicates that in the view of the majority of
the judges of the Federal Court s. 240(3) corresponding now to art. 311(2) does
not " require any inquiry, any formulation of charges or any opportunity
to defend against those charges ". According to them " 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 ".Their Lordships added that
as that opportunity had to be a reasonable opportunity the section must be
taken to require "not only notification of the action proposed but of the
grounds on which the authority is proposing that the action should be 1094
taken and that the person concerned must then be given reasonable time to -make
his representations against the proposed action and the grounds on which sit is
proposed to be taken ". It is quite clear that the majority of the Federal
Court put a somewhat narrow interpretation on the relevant provision in that
they considered that the requirement of reasonable opportunity contemplated by
it arose only at a later stage when the competent authority definitely proposed
to take a particular action and that this opportunity did not cover the earlier
stage where charges were formulated and enquired into.
Varadachariar, J... in his dissenting
judgment took much the same view on this point as did the High Court. The High
Court observed as follows:
"The plaintiff's contention is that this
opportunity should have been afforded to him after the finding of the enquiring
officer had been considered and the punishment decided upon. With this
contention we are unable to agree.
Eight charges were served on the plaintiff
and at the end he was asked to show cause why he should 'not be dismissed,
removed or reduced or subjected to such other disciplinary action as the
competent authority may think fit to enforce for breach of Government Rules and
conduct unbecoming to the Indian Civil Service. He was aware 'from the very
start of the enquiry against him that removal from service was one of the
various actions that could have been taken against him in the event of some or
all the charges being established, and in this sense he was showing cause
during the course of the inquiry against the action proposed. The plaintiff's
contention that there should be two enquiries the first to establish that be
had been guilty and the second to determine what should be the appropriate
punishment, and that in each stage he should have reasonable and independent
opportunities to defend and show cause does not appear to be correct or
intended by the Legislature (1). " In agreement with the High Court
Varadachariar J. held that the requirements of sub-s. (3) of s. 240 (1) (1944)
I. L. R. 25 Lah. 325, 347, 348.
1095 demanded nothing beyond what was
required for compliance with the provisions of r. 55 of the Civil Services
(Classification, Control and Appeal) Rules. His Lordship found nothing in the
language of el. (3) to indicate that anything more or anything different was
contemplated or to suggest that a further opportunity was to be given after the
enquiry had been completed in the presence of the officer charged and the
enquiring officer had made his report. The learned Judge was unable to accept
the suggestion that the words of the statute were appropriate only to the stage
when the authorities would be in a position to indicate definitely what action
they intended to take, namely, whether it was to be one of dismissal or one of
reduction and that this could be predicated only after the Enquiring Officer
had made his report.
In our judgment neither of the two views can
be accepted as a completely correct exposition of the intendment of the
provisions of s. 240(3) of the Government of India Act, 1935, now embodied in
Art. 311(2) of the Constitution.
Indeed the learned Solicitor-General does
riot contend that this provision is confined to guaranteeing to the government
servant an opportunity to be given to him only at the later stage of showing
cause against the punishment proposed to be imposed on him. We think that the
learned Solicitor General is entirely right in not pressing for such a limited
construction of the provisions under consideration. It is true that the
provision does not, in terms, refer to different stages at which opportunity is
to be given to the officer concerned. All that it says is that the government
servant must be given a reasonable opportunity of showing cause against the
action proposed to be taken in regard to him. He must not only be given an
opportunity but such opportunity must be a reasonable one. In order that the
opportunity to show cause against the proposed action may be regarded as a
reasonable one, it is quite obviously necessary that the government servant
should have the opportunity, to say, if that be his case, that he has not been
guilty of any misconduct to merit any punishment at all and also that the
particular punish1096 ment proposed to be given is much more drastic and severe
than he deserves. Both these pleas have a direct bearing on the question of
punishment and may well be put forward in showing cause against the proposed
punishment. If this is the correct meaning of the clause, as we think it is,
what consequences follow ? If it is open to the government servant under this
provision to contend, if that be the fact, that he is not guilty of any
misconduct then how can he take that plea unless he is told what misconduct is
alleged against him? If the opportunity to show cause is to be a reasonable one
it is clear that he should be informed about the charge or charges levelled
against him and the evidence by which it is sought to be established, for it is
only then that he will be able to put forward his defence.
If the purpose of this provision is to give
the government servant an opportunity to exonerate himself from the charge and
if this opportunity is to be a reasonable one he should be allowed to show that
the evidence against him is not worthy of credence or consideration and that he
can only do if he is given a chance to cross-examine the witnesses called
against him and to examine himself or any other witness in support of his
defence. All this appears to us to be implict in the language used in the
clause, but this does not exhaust his rights. In addition to showing that he
has not been guilty of any misconduct so as to merit any punishment, it is
reasonable that he should also have an opportunity to contend that the charges
proved against him do not necessarily require the particular punishment
proposed to be meted out to him. He may say, for instance, that although he has
been guilty of some misconduct it is not of such a character as to merit the
extreme punishment of dismissal or even of removal or reduction in rank and
that any of the lesser punishments ought to be sufficient in his case.
To summarise: the reasonable opportunity
envisaged by the provision under consideration includes(a) An opportunity to
deny his guilt and establish his innocence, which he can only do if he is told
what 1097 the charges levelled against him are and the allegations on which
such charges are based;
(b) an opportunity to defend himself by cross
examining the witnesses produced against him and by examining himself or any
other witnesses in support of his defence; and finally (c) an opportunity to
make his representation as to why the proposed punishment should not be
inflicted on him, which he can only do if the competent authority, after the
enquiry is over and after applying his mind to the gravity or otherwise of the
charges proved against the government servant tentatively proposes to inflict
one of the three punishments and communicates the same to the government
servant. In short the substance of the protection provided by rules, like r. 55
referred to above, was bodily lifted out of the rules and together with an
additional opportunity embodied in s. 240 (3) of the Government of India Act,
1935 so as to give a statutory protection to the government servants and has
now been incorporated in Art. 311 (2) so as to convert the protection into a
constitutional safeguard.
We find support for our above mentioned
conclusion in the judgment of the Judicial Committee in I. M. Lall's case (1).
It is true that after quoting a portion of
the passage from the judgment of the majority of the Federal Court set out
above their Lordships at page 242 stated that they agreed with the view taken
by the majority of the Federal Court, but their Lordships did not stop there
and went on to say:
" In their opinion, sub-s. 3 of s. 240
was not intended to be, and was not, a reproduction of r. 55, which was left
unaffected as an administrative rule. , Rule 55 is concerned that the civil
servant shall be informed " of the grounds on which it is proposed to take
action ", and to afford him an adequate opportunity of defending himself
against charges which have to be reduced to writing; this is in marked contrast
to the statutory provision of " a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him ". In the (1)
L.R. (1948) 75 I.A. 225 at 241.
1098 opinion of their Lordships, no action is
proposed within the meaning of the sub-section until a definite conclusion has
been come to on the charges, and the actual punishment to follow is
provisionally determined on. Before that stage, the charges are unproved and
the suggested punishments are merely hypothetical. It is on that stage being
reached that the statute gives the civil servant the opportunity for which
sub-s. 3 makes provision. Their Lordships would only add that they see no
difficulty in the statutory opportunity being reasonably afforded at more than
one stage. If the civil servant has been through an inquiry under r. 55, it
would not be reasonable that he should ask for a repetition of that stage, if
duly carried out, but that would not exhaust his statutory right, and he would
still be entitled to represent against the punishment proposed as the result of
the findings of the inquiry." The above passage quite clearly explains
that the point on which their Lordships of the Judicial Committee agreed with
the majority of the Federal Court is that a further opportunity is to be given
to the government servant after the charges have been established against him
and a, particular punishment is proposed to be meted out to him.
The opening sentence in the above passage,
namely, that s. 240 (3) was not a reproduction of r. 55 and that r. 55 was left
unaffected as an administrative rule does seem to suggest that s. 240 (3) is
not at all concerned with the enquiry into the charges which comes at the
earlier stage, but a close reading of the rest of that passage will indicate
that in their Lordships' view the substance of the protection of r. 55 is also
included in s. 240 (3) and to that is superadded, by way of further protection,
the necessity of giving yet another opportunity to the government servant at
the stage where the charges are proved against him and a particular punishment
is tentatively proposed to be inflicted on him. Their Lordships referred to
" statutory opportunity being reasonably afforded at more than one stage
", that is to say, that the opportunities at more stages than one are
comprised within the opportunity contemplated 1099 by the statute itself. Of
course if the government servant has been through the enquiry under r. 55, it
would not be reasonable that he should ask for a repetition of that stage, if
duly carried out, which implies that if no enquiry has been held under r. 55 or
any analogous rule applicable to the particular servant then it will be quite
reasonable for him to ask for an enquiry. Therefore, in a case where there is
no rule like r. 55 the necessity of an enquiry was implicit in s. 240 (3) and
is so in Art. 311(2) itself.
Further their Lordships say that an enquiry
under r. 55 " would not exhaust his statutory right and he would still be
entitled to make a representation against the punishment proposed as the result
of the findings of the enquiry ".
This clearly proceeds on the basis that the
right to defend himself in the enquiry and the right to make representation
against the proposed punishment are all parts of his " statutory right
" and are implicit in the reasonable opportunity provided by the statute
itself for the protection of the government servant.
The learned Solicitor General appearing for
the Union of India, then, contends that assuming that the government servant is
entitled to have an opportunity not only to show cause against his guilt but
also an opportunity to show cause against the punishment proposed to be
inflicted on him, the appellant in the present case has had both such
opportunities, for by the notice served on him on July 9, 1949, the appellant
was called upon to show cause against the charges as well as against the
punishment of dismissal in case the charges were established. He points out
that in I. M. Lall's case (1) the notice given to I. M. Lall did not specify
dismissal as the only and particular punishment proposed to be imposed on him,
but called upon him to show cause why he should not be dismissed, removed or
reduced or subjected to such other disciplinary action as the competent
authority, might think fit to enforce, whereas in the present case the notice
referred to above clearly indicated that the punishment of dismissal alone was
proposed to be inflicted.
L.R. (1948) 75 1. A. 225.
140 1100 The learned Solicitor General in
support of his contention relies on the observations of the majority of the
Federal Court quoted above and in particular on the passage where their
Lordships stated " that in some cases it would be quite sufficient to
indicate the charges, the evidence on which those charges are put forward and
to make it clear that unless the person can on that information show good cause
against being dismissed or reduced in rank if all or any of the charges are
proved, dismissal or reduction in rank would follow and that this would be sufficient
in some cases." He also strongly relies on the circumstance that their
Lordships of the Judicial Committee, after quoting the above passage, stated
that they agreed with the view taken by the majority of the Federal Court. But
as we have already explained, the other observations of their Lordships of the
Judicial Committee, which follow immediately, quite clearly indicate that what
they agreed with was that a second opportunity was to be given to the
government servant concerned after the charges had been brought home to him as
a result of the enquiry. Their Lordships made it clear that no action could, in
their view, be said to be proposed within the meaning of the section until a
definite conclusion had been come to on the charges and the actual punishment
to follow was provisionally determined on, for before that stage the charges
remained unproved and the suggested punishments were merely hypothetical and
that it was on that stage being reached that the statute gave the civil servant
the opportunity for which sub-s. (3) made provision. A close perusal of the
Judgment of the Judicial Committee in I. M. Lall's case will, however, show
that the decision in that case did not proceed on the ground that an
opportunity had not been given to 1. M. Lall against the proposed punishment
merely because in the notice several punishments were included, but the
decision proceeded really on the ground that this opportunity should have been
given after a stage had been reached where the charges had been established and
the competent authority had applied its mind to the gravity or otherwise of the
1101 proved charge tentatively and proposed a particular punishment. There is
as the Solicitor-General fairly concedes, no practical difficulty in following
this procedure of giving two notices at the two stages. This procedure also has
the merit of giving some assurance to the officer concerned that the competent
authority maintains an open mind with regard to him. If the competent authority
were to determine, before the charges were proved, that a particular punishment
would be meted out to the government servant concerned, the latter may well
feel that the competent authority had formed an opinion against him, generally
on the subject matter of the charge or, at any rate, as regards the punishment
itself. Considered from this aspect also the construction adopted by us appears
to be consonant with the fundamental principle of jurisprudence that justice
must not only be done but must also be seen to have been done.
It is on the facts quite clear that, when
Shri J. B. Tandon concluded his enquiry and definitely found the appellant
guilty of practically all the charges he for the first time suggested that the
punishment of dismissal should be the proper form of punishment in this case.
Shri J. B. Tandon was not, however, the competent authority to dismiss the
appellant and, therefore, he could only make a report to the Deputy
Commissioner who was the person competent to dismiss the appellant. When the
Deputy Commissioner accepted the report and confirmed the opinion that the
punishment of dismissal should be inflicted on the appellant, it was on that
stage being reached that the appellant was entitled to have a further
opportunity given to him to show cause why that particular punishment should
not be inflicted on him.
There is, therefore, no getting away from the
fact that Art.
311(2) has not been fully complied with and
the appellant has not had the benefit of all the constitutional protection and
accordingly his dismissal cannot be supported. We, therefore, accept this
appeal and set' aside the order of the Single Judge and decree the appellant's
suit by making a declaration that the order of dismissal passed by the Deputy
Commissioner on 1102 December 17,1951, purporting to dismiss the appellant from
service was inoperative and that the appellant was a member of the service at
the date of the institution of the suit out of which this appeal has arisen.
The appellant will get costs throughout in all courts. He must pay all court
fees that may be due from him. Under order XIV, Rule 7 of the Supreme Court
Rules were direct that the appellants could be paid his fees which we assess at
Rs. 250.
Appeal allowed.
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