A. N. D'silva Vs. Union of India
[1961] INSC 347 (6 December 1961)
SHAH, J.C.
WANCHOO, K.N.
CITATION: 1962 AIR 1130 1962 SCR Supl. (1)
968
CITATOR INFO :
RF 1963 SC1612 (9) RF 1964 SC 364 (17) R 1984
SC1850 (12) RF 1988 SC1000 (4)
ACT:
Government Servant-Disciplinary proceedings-
Punishment-Proposal by enquiry officer, if binding on the punishing
authority-Powers of President- Union Public Service Commission-Whether an
appellate authority over Enquiry Officer-Advice, if binding on
President-Constitution of India, Arts. 311, 320:
HEADNOTE:
D, a Divisional Engineer of Posts and
Telegraphs was suspended from service for irregularities in the matter of
allotment of telephones. The charges were firstly, that irregularities were
committed by him with a view to secure illegal gratification for himself and
others and secondly, that he was a party to the commission of irregularities
having thereby facilitated acceptance of illegal gratification by his
subordinates. The enquiry officer found him guilty of misdemeanour by
disobeying orders expressly issued. The report of the Enquiry officer was sent
by the President to the Union Public Service Commission for their
recommendations. In the meantime was informed that the Government of India had
decided to dismiss him subject to the advice of the Union 969 Public Service
Commission, and that he should show cause why he should not be dismissed. The
Public Service Commission agreed with the view of the Enquiry Officer that
there was contravention of the specific orders issued by granting "casual
connections" from time to time, but the Commission was of the opinion that
this may amount to neglect to open defiance of the order of his superior and
the be suspicion, there was nothing on the record to connect D with receiving
illegal gratification, and advised that D `be retired compulsorily'. The
appellant was informed that the President had come to the conclusion that he
was guilty of gross negligence and disobedience of orders, and though the Union
Public Service Commission had advised that he be retired compulsorily as it was
not a permissible punishment under the rules, the President had decided that D
should be removed from service with immediate effect. The appellants writ
petition to the High Court of the Punjab for mandamus and certiorari was
dismissed and thereafter he came up by special leave to this Court.
Held, that the Civil Service Rules merely
prescribe diverse punishments which may be imposed upon a delinquent public
servant; the rules do not provide for specific punishments for different
misdemeanours. The Rules leave it to the discretion of the punishing authority
to select the appropriate punishment having regard to the gravity of the
misdemeanour. It is not for the enquiry authority to propose punishment.
The power of the President to impose
punishment for misdemeanour found proved against a delinquent public servant,
is unrestricted and is not circumscribed by the proposal about punishment by
the enquiry officer which the latter was incompetent to make. It was for the
President to arrive at a tentative conclusion as to the guilt of the delinquent
public servant and to propose the appropriate punishment. The Constitution
merely guarantees the protection of a reasonable opportunity of showing cause
against the action proposed; it does not guarantee that the punishment shall
not be more severe than a prescribed punishment.
The President is by Art. 320 of the
Constitution required to consult the Union Public Service Commission in disciplinary
matters but the President is not bound by the advice of the Commission. The
Union Public Service Commission is not an appellate authority over an Enquiry
Officer.
In the present case, in imposing punishment
of removal from service the President did not violate the guarantee of
reasonable opportunity to show cause against the action proposed to be taken
against the appellant.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 322 of 1959.
Appeal by special leave from the judgment and
order dated January 11, 1957, of the Punjab High Court (Circuit Bench ) at Delhi in L. P. A. No. 22-D of 1955.
B. C. Misra, for the appellant.
S. P. Varma and T. M. Sen, for the
respondent.
1961. December, 6. The Judgment of the Court
was delivered by SHAH, J.-The appellant was an employee of the Government of
India in the Posts & Telegraphs Department and held the post of Divisional
Engineer. Telegraphs at Agra in 1947. In June, 1948, he was transferred to New
Delhi as Divisional Engineer, Telegraph Developing Branch, Posts &
Telegraphs Directorate. On September 18, 1948, the appellant was suspended from
service and a chargesheet containing the following two charges was delivered to
him :- "(i) That he, with a view to secure illegal gratification for himself
and/or for others, committed serious irregularities in the matter of allotment
of Telephones in Agra during the period he was Divisional Engineer, Telegraphs,
Agra, and (ii) That by being a party to commission of gross irregularities in
the matter of allotment of telephones in Agra, he facilitated acceptance of
illegal gratification by his subordinates." An appendix setting out the
allegations on the basis of which the charges had been framed was also
enclosed, and the appellant was called upon to submit his defence to the
charges to the Enquiry Officer named therein. The appellant was further 971
asked to show cause why, in the event of charge (i) being proved, he should not
be dismissed from Government Service and, in the event of charge (ii) being
proved, he should not be permanently degraded to the rank of the Electrical
Supervisor or awarded any other lesser penalty. The appendix consisted of three
heads which are as follows:- "(1) Contrary to the order contained in
letter No. Eng. P.768 of 7th February, 1948 from the Post Master General,
Lucknow, that no connection, not even a casual connection, should be given out
of turn, the following casual connections were opened and in some cases
extended and even made permanent:- (Then were set out 11 instances (a) to (k)
of such casual connections given by the appellant.) (2) Transfers of telephones
virtually amounted to allotment of telephones out of turn was allowed in the
following cases:- (a) ... ... ... ... ...
(b) ... ... ... ... ...
(3) Statements given in writing by Khiali Ram
and Shyam Lal relating to illegal gratification given to Mr. Ghambir and Kanaya
Lal Sharma respectively." The appellant submitted his explanation relating
to these charges. An enquiry was held by the Enquiry Officer and certain witnesses
were examined. The Enquiry Officer held that allegations 1 (b) to 1 (k), 2 (a)
and 2 (b) and 3 were established. He observed that the proof in respect of
allegation (3) was not such as would be acceptable in a court of law, but there
was sufficient evidence to show that the appellant suddenly changed his
attitude towards one Khiali Ram and went so far as to argue the case on his
behalf and favoured him with a permanent connection and in the case of Shyam
Lal he 972 sanctioned an out-of-turn extension. He accordingly made a report
that charges (i) and (ii) in the chargesheet were proved. The report together
with the record of the Enquiry Officer was sent by the President of India to
the Union Public Service Commission under Art. 320 (3) (c) of the Constitution
for their recommendations. The Commission agreed with the view of the Enquiry
Officer that the appellant had contravened specific orders issued by the
Postmaster General by granting "casual connections" from time to time
as shown in the report of the Enquiry Officer. But in the view of the
Commission this was at the most either neglect on the part of the appellant in
complying with the orders of his superiors, or open defiance as he was not
prepared to accept the instructions issued by his superiors. The Commission,
however, observed that "The crux of charges against Mr. D' Silva was,
however, not that he allowed these connections in defiance of these orders but
that he had a motive in doing so.
The only evidence that has been given relates
to connection No. 283 for Messrs. Khiali Ram Amolak Chand. There may be ground
for suspicion but there is noting on the record to connect Mr. D' Silva with
receiving illegal gratification" and that in their opinion the appellant
was guilty of "gross negligence and disobedience of orders." They
accordingly advised that the appellant "be retired compulsorily."
Notice had already been issued to the appellant informing him that the
Government of India had subject to the advice of the Union Public Service Commission
provisionally come to the conclusion that the appropriate punishment on the
charges is dismissal and that he was required to show cause within 15 days of
the papers received by him as to why he should not be dismissed from Government
service. The appellant submitted his explanation to the notice. By order dated
January 25, 1951, the appellant was informed that:
973 "........ after careful
consideration of the record of the case the explanation submitted by Mr.
D'Silva and the opinion of the Union Public Service Commission, the President
has come to the conclusion that the officer is guilty of gross negligence and
disobedience of orders. Although the Commission have advised that Mr. D'Silva
should be retired compulsorily, it is not possible to do so as compulsory retirement
is not a permissible punishment under the rules.
The President has accordingly decided that
Mr. D'Silva should be removed from service with immediate effect......."
The appellant then moved the High Court of Judicature for Punjab for a writ of
certiorari or mandamus and directions, order or writs in the nature of mandamus
and certiorari or other appropriate orders setting aside the order passed on
November 18, 1948, suspending the appellant from service and the order passed
on January 25, 1951, removing him from service and for an order directing the
Union of India to reinstate him to the post which he was holding at the time of
suspension, with all rights, privileges and emoluments pertaining to the said
post. The application was dismissed by G. D. Khosla J., and the order was
confirmed in appeal by a Division Bench. With special leave the appellant has
appealed to this Court against the order of the High Court.
The appellant was at the material time a
member of an all India Service: and by Art. 310 of the Constitution he held
office during the pleasure of the President. But by Art. 311 the tenure of his
office was protected by certain guarantees. By cl.(1) of Art. 311 the appellant
was not liable to be dismissed or removed by an authority subordinate to that
by which he was appointed, and by cl. (2) he could not be dismissed or removed
or reduced in rank until he had been given a reasonable opportunity of showing
cause against the action 974 proposed to be taken in regard to him. The
appellant was removed from service by the President and no question of breach
of the constitutional guarantee under cl.(1) of Art. 311 therefore arises. But
counsel for the appellant contended that there was a breach of the guarantee
under cl.(2) in that (1) the President had imposed punishment of removal for
"gross negligence and disobedience of orders", when the appellant had
not been charged in the enquiry held by the Enquiry Officer with misdemeanour
of that character; (2) that the punishment proposed in the charge sheet was not
removal for the charge for which he had in truth been found guilty and
therefore the order of punishment amounted to imposing a punishment different
from the one which it was originally contemplated to pass against him; and (3)
that the statement of Mr. Bhashyam- Post master General, Lucknow Division-was
recorded by the Union Public Service Commission in the absence of the appellant
and without giving him an opportunity to cross-examine that witness and the
President took that statement into consideration, in imposing the penalty of
removal from service.
By adopting this procedure the constitutional
guarantee of affording a reasonable opportunity to the appellant of showing
cause was violated.
In our view, there is no substance in any of
the three contentions. The Civil Services Rules merely prescribe the diverse
punishments which may be imposed upon delinquent public servants; the rules do
not provide for specific punishments for different misdemeanours. The rules
leave it to the discretion of the punishing authority to select the appropriate
punishment having regard to the gravity of the misdemeanour. The power of the
President to impose any punishment for any misdemeanour found proved against a
delinquent public servant is unrestricted. The Constitution merely guarantees
the protection of a reasonable opportunity 975 of showing cause against the
action proposed it does not guarantee that the punishment shall not be more
severe than a prescribed punishment. The charge against the appellant fell under
two heads, but each head charged the appellant with irregularities in the
matter of allotment of telephones. Under the first head the charge was that
irregularities were committed by him with a view to secure illegal
gratification for himself or for others. The second charge was in respect of a
comparatively less serious misdemeanour, namely, that the appellant was a party
to the commission of irregularities having thereby facilitated acceptance of
illegal gratifications by his subordinates. Counsel for the appellant submitted
that under the first head of the charge the appellant was, in substance,
charged with having received illegal gratification for himself or for others,
and invited our attention to the letter of the Enquiry Officer dated December 31,
1948, in which it was stated "that two specific allegations relating to
illegal gratification given to your subordinates have already been mentioned in
the annexure to the charge sheet. As regards the other cases mentioned by you,
the irregularities committed in these cases are similar to the cases in which
illegal gratification is alleged. It is for you to prove that though the
irregularities are similar no illegal gratification has taken place in these
cases." This letter expressly states that telephone connections were
granted to Khiali Ram and Shyam Lal after receiving illegal gratification and
that other instances referred to in the appendix were similar to those cases in
which illegal gratification was alleged. This letter, in our judgment, does not
justify the inference that the Enquiry Officer regarded the charges as
primarily of illegal gratification or corruption: nor is it possible to accept
the submission that the charges were so framed that the appellant was misled
into believing that the charges primarily were of obtaining illegal
gratification.
976 As already observed, the charges were of
irregularities committed by the appellant, the first being with the object of
securing illegal gratification and the second substantially of negligence and
thereby acting so as to enable his subordinates to receive illegal
gratification. It is also clear from the Appendix which sets out the
allegations and especially heads (1) and (2) that the charges against the
appellant were that he had committed irregularities by granting, contrary to
the orders passed by the Postmaster General, telephone connections out-of-turn
to certain applicants. The Enquiry Officer found ten out of the eleven
instances set out in head No. 1 and both the instances under head No. 2 proved.
The Union Public Service Commission agreed with that view. The charge of
irregularities was therefore established against the appellant. In the view of
the Enquiry Officer the motive for granting irregular connections was also
established, but the Union Public Service Commission expressed a different
view. By Art. 320(3) of the Constitution it is provided that the Union Public
Service Commission shall be consulted in all disciplinary matters affecting a
person serving under the Government of India in a civil capacity, but the Union
Public Service Commission is not an appellate authority over the Enquiry
Officer. It is unnecessary for the purpose of this case to consider whether in
making their recommendations or tendering their advice the Union Public Service
Commission may express a conclusion on the merits of the case as to the
misdemeanour alleged to have been committed by a public servant different from
the conclusion of the Enquiry Officer.
The President had before him the Enquiry
Officer's report, the record of the case, the explanation submitted by the
appellant and the opinion of the Union Public Service Commission. On a
consideration of all these materials the President came to the 977 conclusion
that the appellant was guilty of gross negligence and disobedience of orders.
It is true that there is no record of the President having come to a conclusion
whether in committing irregularities the object of the appellant was to receive
illegal gratification for himself or for others within the meaning of the first
charge. It is also true that the President has, in recording his conclusion,
used the same phraseology as was used by the Public Service Commission in
making its recommendation but on that ground we are unable to hold that the
President has accepted the conclusion of the Union Public Service Commission
that the irregularities were not proved to have been committed with a view to
secure illegal gratification for himself or for others. The President is by
Art. 320 of the Constitution required to consult the Public Service Commission
(except in certain cases, which are not material) but the President is not
bound by the advice of the Commission. The President found the appellant guilty
of disobedience of orders and also of gross negligence. The charge against the
appellant was disobedience of orders and that is the charge of which the
Enquiry Officer held him guilty. The Union Public Service Commission also
agreed with this view. It cannot therefore be said that the misdemeanour of
which the appellant was charged was different from the misdemeanour for
commission of which he had been found guilty. The misdemeanour charged
consisted of commission of irregularities by disobeying orders expressly issued
and that is the misdemeanour of which the appellant has been found guilty.
In the communication addressed by the Enquiry
Officer the punishment proposed to be imposed upon the appellant if he was
found guilty of the charges could not properly be set out. The question of
imposing punishment can only arise after enquiry is made and the report of the
Enquiry Officer is received. It is for the punishing authority to 978 propose
the punishment and not for the enquiring authority. The latter has, when so
required, to appraise the evidence, to record its conclusion and if it thinks
proper to suggest the appropriate punishment. But neither the conclusion on the
evidence nor the punishment which the enquiring authority may regard as
appropriate is binding upon the punishing authority. In the present case after
the report of the Enquiry Officer was received the appellant was called upon to
show cause against his proposed dismissal from service.
After considering the representation made by
the appellant the President came to the conclusion that not dismissal but removal
from service was the appropriate punishment. In imposing punishment of removal
the President did not violate the guarantee of reasonable opportunity to show
cause against the action proposed to be taken against the appellant. The
appellant was told about the action proposed to be taken and he was afforded an
opportunity to make his defence. Thereafter a lighter punishment was imposed.
There is nothing on the record to show that the President found the appellant
guilty of the second charge and imposed punishment proposed by the Enquiry
Officer for the first charge.
The contention that the evidence of Mr. Bhashyam,
Postmaster General Lucknow Range was recorded in the absence of the appellant
and that the same was utilised by the President in coming to the conclusion
that the appellant be removed from service has no warrant. It appears that the
Postmaster General by his letter dated February 7, 1948, directed the appellant
not to issue telephone connections out-of-turn even if the connection was
casual. This letter was produced before the Enquiry Officer. The contention of
the appellant before the Enquiry Officer was that he had made a representation
to the Postmaster General that it was "impracticable to put persons 979
asking for 'casual connections' in the same list as those that were asking for
permanent connections" and that thereafter he had received a telephonic
message from Mr. Bhashyam asking him to proceed according to rules, and
accordingly he continued to follow the prevailing practice of maintaining two
separate lists, one of regular connections and the other for casual
connections.
In the view of the Enquiry Officer this
defence was not established. It appears, however, that the Union Public Service
Commission ascertained from Mr. Bhashyam his version in regard to the alleged
instructions given by him to the appellant about restoring the original
practice and the Postmaster General denied the telephonic conversation. The
appellant submitted that Mr. Bhashyam was not examined in his presence and he
was not permitted to cross-examine Mr. Bhashyam on the alleged denial of
telephonic instructions. It is admitted that Mr. Bhashyam was not examined
before the Enquiry Officer. The Commission, it appears, obtained information
from Mr. Bhashyam. But as we may again observe the Union Public Service
Commission is not constituted an appellate authority over an Enquiry Officer.
The Commission is required to be consulted by the Constitution in disciplinary
matters. The action of the Commission may be irregular but there is nothing to
show that the President took into consideration the statement of Mr. Bhashyam
which is referred to by the Commission in their report and relying upon that
statement imposed the punishment upon the appellant which is impugned. The mere
fact that the same phraseology has been used by the President in imposing the
punishment does not justify the inference that the President took into
consideration the alleged denial of Mr. Bhashyam.
We are of the view, therefore, that there has
been no breach of the constitutional guarantee under Art. 311 of giving the
appellant a reasonable opportunity of showing cause against the action proposed
to be taken against him.
980 One more argument raised on behalf of the
appellant may be referred to. It is urged that the President having accepted
the advice of the Commission could not remove the appellant from service but
could only impose the punishment which was proposed in the charge served by the
Enquiry Officer in respect of the second head. There is nothing, however, in
the impugned order to show that the President accepted the advice of the
Commission in its entirety. As we have already observed the proposed punishment
could not be properly incorporated in the charge served upon the appellant by
the Enquiry Officer. The notice served by the Secretary to the Government of
India on November 3, 1949, required the appellant to show cause why the
punishment which the Government regarded as appropriate, namely, dismissal
should not be imposed. Action proposed to be taken by President is clearly set
out in that notice. There is no provision which compels the President to impose
only the sentence proposed by the Enquiry Officer. It was for the President to
arrive at a tentative conclusion as to the guilt of the appellant and to
propose the appropriate punishment. This the President did; and in imposing the
punishment having regard to the gravity of the misdemeanour found proved, the
powers, of the President were not circumscribed by the proposal as to punishment
by the Enquiry Officer which the latter was incompetent to make.
The appeal therefore fails and is dismissed
with costs.
Appeal dismissed.
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