State of Orissa Vs. Bidyabhujshan
Mohapatra [1962] INSC 292 (19 October 1962)
19/10/1962 SHAH, J.C.
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1963 AIR 779 1963 SCR Supl. (1) 648
CITATOR INFO :
R 1967 SC1353 (15) R 1969 SC 966 (8) R 1970
SC 679 (8) RF 1972 SC1975 (9) F 1974 SC1589 (12) RF 1976 SC 232 (18) RF 1977
SC2411 (19) F 1989 SC1185 (20,23,25) RF 1989 SC1854 (20)
ACT:
Public Servant-Disciplinary proceedings-Two
parallel procedures available-Right of appeal under one but not under the
other-If discriminatory-Punishment-If court can interfere with-Orissa
Discipilinary Proceeding (Administrative Tribunal) Rules, 1951-Civil Services
(Classification, Control and Appeal) Rules, 1930-Constitution of India, Arts. 14,
309, 311.
HEADNOTE:
The respondent, a non-gazetted permanent
employee of the State, was charged with (i) having received illegal gratification
on five occasions and (ii) being possession of property disproportionate to his
income. The Governor.
referred is case to the Administrative
Tribunal constituted under s. 4 (1) of the Disciplinary Proceeding,;
(Administrative Tribunal) Rules which had
been framed under Art. 309 of tile Constitution.. The Tribunal found four out
of the five heads under the first charge and the second charge proved and
recommended the dismissal of the respondent. The Governor, after giving the
respondent a reasonable opportunity. to ,how cause against the proposed
punishment, dismissed him. The respondent filed a writ petition before the High
Court challenging the order of dismissal on the ground that the Tribunal Rules
were discriminatory and that in holding the enquiry the Tribunal had violated
the rules of natural justice. Following a previous decision the High Court held
that the Tribunal Rules were discriminatory but since that decision was under
appeal before the Supreme Court, it proceeded to deal with the second ground.
It held that the second charge and only two head,, of the first charge were
established and directed the Governor to reconsider whether on the basis of
these charges the punishment of dismissal should be maintained.
Held, that the Tribunal Rules were not
discriminatory.
There were simultaneously in existence two
sets of parallel rules, viz. the Tribunal Rules and the Classification Rules
and proceedings could be taken against the respondent under either of the at
the discretion of the Governor. But in substance there 649 is no difference in
the procedures prescribed by the two sets of rules. Mere adoption of one
procedure in preference to another permissible procedure does not justify an
inference ;of unlawful discrimination. The fact that under the Classification
Rules there is a right of appeal from an order imposing a penalty whereas there
is no such right of appeal under the Tribunal Rules against the order passed by
the Governor was not a ground for sustaining the plea of unlawful
discrimination.
Sardar Kapur Singh v. Union of India, [1960]
2 S. C. R. 569 and Jagannath Prasad v. State of U. P., A. 1. R. 1961 S. C. 1245,
followed State of Orissa v. Dhirendranath Das, A. I. R. (1961) S. C. 1715,
distinguished.
Held, further that the High Court had no
power to direct the Governor to reconsider the question of punishment. The High
Court has only to see whether the constitutional guarantees have been violated;
but it is not concerned with the penalty imposed, provided it is justified by
the rules. The reasons which induce the punishing authority are not justiciable
nor is the penalty open to review by the Court. If the order can be supported
on any finding as 'to substantial misdemeanour for which the punishment can
lawfully be imposed it is not for the court to consider whether that ground
alone would have weighed with the authority dismissing the public servant.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 213 of 1962.
Appeal from the judgment and order dated
February 17, 1959, of the Orissa High Court, Cuttack in O.J. C. No. 216 of
1957.
R. Ganapathy lyer and P. D. Menon, for the
appellants.
G. B. Pai, B. Parthasarthy, J. B. Dadachanji
and O. C.
Mathur, for, the respondent.
1962. October 19. The judgment of the Court
was delivered by SHAH; J.-Bidyabhushan Mohapatra hereinafter called 'the
respondent'-was a permanent 650 non-gazetted employee of the State of Orissa in
the Registration Department and was posted at the material time as a
Sub-Registrar at Sambalpur. Information was received by the Government of the
State of Orissa that the respondent was habitually receiving illegal
gratification and that he was possessed of property totally disproportionate to
his income. The case of the respondent was referred by order of the Governor of
Orissa to the Administrative Tribunal constituted under r.4(1) of the
Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 framed in
exercise of the powers conferred by Art. 309 of the Constitution. The Tribunal
held an enquiry in the presence of the respondent on two charges (1) relating
to five specific heads charging the respondent with having received illegal
gratification and (2) relating to possession of means disproportionate to his
income as a Sub-Registrar. The Tribunal held that there was reliable evidence
to support four out of the five heads in the first charge 'of corruption' and
also the charge relating to possession of means disproportionate to the income
and recommended that the respondent be dismissed from service. The finding of
the Tribunal was tentatively approved by the Governor of Orissa and the
respondent was called upon to show cause why he should not be dismissed from
service as recommended. The respondent made a detailed submission in rejoinder
and contended, inter alia, that the Tribunal held the enquiry in a manner
contrary to rules of natural justice. After consulting the Public Service
Commission the Governor of Orissa by order dated September 26, 1957, directed
that the respondent be dismissed from service. The respondent then applied to
the High Court of Orissa by petition under Arts. 226 and 227 of the Constitution.
inter alia, for a writ quashing the "'entire proceedings before the
Tribunal beginning from the charges and culminating in the order of
dismissal" and directing the State of Orissa to forbear from giving effec
to the order of dismissal dated September 26, 1957, 651 and for a declaration
that he be deemed to have continued in his post as Sub-Registrar.
In support of his petition the respondent
submitted that the order of dismissal was void because the rules relating to
the holding of an enquiry against non-gezetted public servants, called the
Disciplinary Proceedings (Administrative Tribunal) Rules, 1951. were
discriminatory and that in holding the enquiry against him the Tribunal had
violated the rules of natural justice. Following their view in Dhirendranath
Das v. State of Orissa(1), the High Court held that the impugned rules were
discriminatory and on that account void, and that the respondent was entitled
to a writ declaring that the order of dismissal was inoperative. As, however,
the case of Dhirendranath Das(1) was carried in appeal to this Court, the High
Court proceeded to deal-with the second submission. The High Court held that
the findings of the Tribunal on charges 1(a) and 1 (e) were vitiated because it
had failed to "observe the rules of natural justice",, but they held
that the findings on charges 1(c), 1(d) and charge (2) were supported by
evidence and were not shown to be vitiated because of failure to observe the
rules of natural justice. The High Court accordingly directed that if this
Court disagreed with the Dhirendra nath Das's case(1), "the findings in
respect of charges 1(a) and 1(e) be set aside as being opposed to the rules of
natural justice but the findings in respect of charges 1(c) and 1(d) and Charge
(2) need not be disturbed", and "that it would then be left to the
Government to decide whether, on the basis of those charges, the punishment of
dismissal should be maintained or else whether a lesser punishment would
suffice".
"The State of Orissa has appealed to
this Court with certificate of fitness granted by the High Court under Art.
132 of the Constitution. The High Court in
Dhirendranath Das's case(1) had held that at the material time there were in
operation two sets of (1) I. L. R. (1958) Cuttack 11.
652 rules governing enquiries against
non-gazetted public servants : (i) the Disciplinary Proceedings (Administrative
Tribunal) Rules, 1951 (called the Tribunal Rules) and (ii) the Civil Services
(Classification, Control and Appeal) Rules, 1930 with the subsidiary rules
framed there under such as the Bihar and Orisa Subordinate Service Discipline
and Appeal Rules, 1935 (collectively called the Classification Rules), and
these two sets of rules provided for different punishments and justified
commencement of proceedings for different reasons, and whereas there was a
right of appeal against the order of a departmental head imposing punishment,
under the Classification Rules there was no.
right of appeal. against the order of the
Governor, imposing punishment, under the Tribunal Rules. The High Court
observed "'the main difference between the two sets of rules arises from
(1) the nature of the punishment proposed, and (2) the right of appeal. Under
the Tribunal Rules the findings of the Tribunal including the proposed punishment
are submitted to Government are in the nature of a recommendation which the
Government may or may not accept.
But the Government are bound to consult the
Public Service Commission before they pass final orders. Government have the
power to impose the penalty of compulsory retirement under sub-r. (2) of r. 8
of the Tribunal rules in addition to the other penalties, described in r. 49 of
the Classification rules. The right of appeal is expressly barred by sub-rule
(3) of r. 9. The Tribunal Rules do not say that every case against a Government
servant, whether gazetted or non-gazetted, in which the acts of misconduct
alleged are any of those described in sub-rule (1) of r. 4 of the said Rules,
should be invariably referred to the Tribunal. Thus, if there are two
non-gazetted Government servants both of whom have committed identical acts of
misconduct such as failure to discharge duties properly, it is left to the
unfettered discretion of the Government to refer the case of one of them to the
653 Tribunal for enquiry under the said rule-,, and to allow the enquiry
against the other public servant to be held departmentally by his superior
Officers under the provisions of the Classification Rules. The former public
servant will have no right of appeal, but he will leave the satisfaction of his
case being enquired into not by his immediate superiors, but by an independent
authority, namely, the Member, Administrative Tribunal, whose recommendation
will be subjected to further scrutiny by the Public Service Commission and the
final authority to pass any order of punishment will be the Government. The
latter public servant however, though denied the advantage of having his case
investigated by independent authorities, is given a statutory right of appeal.
The procedure laid down in the Classification Rules may be described as the
normal procedure for taking disciplinary action against the Government
servants, whether gazetted or non-gazetted; and the procedure laid down in the
Tribunal Rules may be described as a drastic procedure". The High Court
then observed after considering the arguments advanced at the Bar "that so
far as non-gazetted Government servants are concerned the provisions of the
Tribunal Rules are less advantageous and more drastic than those of the
Classification Rules and the conferment of an unfettered discretion on the
Executive to apply either of these rules for the purpose of taking disciplinary
action against a nongazetted Government servant would offend Art. 14 of the
Constitution". Accordingly the High Court quashed the order of dismissal
passed against the public servant concerned.
Against the order of the High Court, an
appeal was filed to this Court. In this Court counsel for the State of Orissa
in that appeal made no attempt to challenge the correctness of the decision of
the High Court, on the question of discrimination. The Tribunal Rules and the
Classification Rules were not even included in the Books prepared for the use
of this Court at the hearing. The only argument in support of the appeal 654
advanced by counsel for the State was that the Classification Rules, were not
in operation when enquiry was directed against the delinquent public servant
and the only rules under which the enquiry could be directed were the Tribunal
Rules and therefore by directing an enquiry against the delinquent public
servant the guarantee of the equal protection clause of the Constitution was
not violated.
This Court held that if two sets of rules
were simultaneously in operation at the material time, and by order of the
Governor, enquiry was directed against the respondent under the Tribunal Rules
which were "more drastic" and "Prejudicial to the interests of
the public servant", a clear case of discrimination arose, and the order
directing the enquiry against the public servant and the subsequent proceedings
were liable to be struck down as infringing Art. 14 of the Constitution. This
Court accordingly dismissed the appeal of the State. An application for review
of ,judgment was then filed by the State, and it was contended that as the
Bihar & Orissa Subordinate Services Discipline & Appeal Rules, 1935
were not statutory rules and they did not constitute "law", and that
there had been some misapprehension about "the submission made at the Bar
which had led to an apparent error on the face of the record". Even at
that stage it was not urged that the view taken by the High Court that the
Tribunal Rules were "more drastic and prejudicial to a public servant
against whom an enquiry was directed to be made" could not on a true
interpretation of the rules be sustained. This Court rejected the application
for review of judgment.
In this appeal copies of the Bihar &
Orissa Subordinate Services Discipline & Appeal Rules, 1935 and the
Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 are produced.
Under the latter rules which were referred to as the Tribunal Rules 'misconduct
in the discharge of official duties 655 is defined in Rule 2(c), "failure
to discharge duties properly' in Rule 2(d) and 'personal immorality' in Rule,
2(e). By Rule 3(4) the Tribunal constituted by the Governor is authorised
subject to the directions of the Governor to co-opt an Assessor to assist it,
such Assessor being a departmental officer higher in rank in the department to
the official charged. By Rule 4 the Governor is authorised to refer to the
Tribunal cases relating to public servants in respect of matters involving(a)
misconduct in the discharge of official duties;
(b) failure to discharge duties properly;
(c) irremediable general inefficiency in a
public servant of more than ten years' standing: and (d) personal immorality.
By Rule 7 the Tribunal is required to make
such enquiry as may be deemed appropriate and in conducting the enquiry the
Tribunal is to be guided by rules of equity and natural.
justice and not by formal rules relating to
procedure and evidence. Clause (3) of Rule 7 provides that before formulating
its recommendations the Tribunal shall give a summary of the charges against
the official and shall if he is not absconding or untraceable, give him an
opportunity orally or in writing, within the time to be specified by the
Tribunal to offer his explanation in respect of the charges.
Rule 8 provides that after completing its
proceedings the Tribunal shall make a record of the case in which it shall
state the charges, the explanation and its own findings, and it shall, where
satisfied, that punishment be imposed, also formulate its recommendations about
the punishment. Rule 9 provides that the Governor may, after considering the
recommendations of the Tribunal, pass such order of 656 punishment as he may
deem appropriate. By el. (3) of Rule 9 an appeal against the order of the
Governor is expressly prohibited. By el. (iii) of Rule 1. of the, Bihar and Orissa
Subordinate Services Discipline & Appeal Rules, 1935 it is provided that
the Rules shall apply to all members of Subordinate Services under the
administrative control of the Government of Bihar, and Orissa, except those for
whose appointments and conditions of employment special provision was made by
or under any-law for the time being in force.
By Rule 2 the penalties specified in the
order may be imposed "for good and sufficient reasons". The procedure
to be followed before an order of dismissal, removal or reduction is passed, is
the same as is set out in Rule 55 of the Civil Services (Classification,
Control and Appeal) Rules. It is further directed that in drawing up
proceedings and conducting departmental enquiries, the instructions contained in
rr. 172 to 178 of the Bihar and Orissa Board's Miscellaneous Rules, 1928, are
to be followed except where more detailed instructions have been framed by the
Department concerned. Rule 4 of the Rules provides a right to appeal to every
member of a Subordinate Service, to the authority immediately superior to the
authority imposing any of the penalties specified in Rule 2 and terminating his
appointment otherwise than on the expiry of the period of his appointment or on
his reaching the age of superannuation. Rule 55 of the Civil Services
(Classification, Control and Appeal) Rules which is referred to in the note to
Rule 2, in so far as it is material, provides for information being given in
writing of the grounds on which it is proposed to take action against the
public servant and to afford him an adequate opportunity of defending himself :
the grounds on which it is proposed to take
action are to be reduced to the form of a definite charge or charges, which
have to be communicated to the person charged together with a statement of any
allegation on which each charge is based and of any other circumstances 657
which it is proposed to take into consideration in passing orders on the case :
the public servant concerned has within a reasonable time, to put in his
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 directs, an oral
inquiry is to be held, at which inquiry oral evidence as to such of the
allegations as are not admitted is to be led and the person charged is entitled
to cross-examine the witnesses, to give evidence in person and to have such
witnesses called as he may desire, provided that the officer conducting the
inquiry may, for special and sufficient reasons to be recorded in writing,
refuse to call a witness. Rule 55 further provides that the proceedings shall
contain a sufficient record of the evidence and a statement of the findings and
the grounds thereof and that 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 difficulty in observing the requirements of
the rule and those requirements can be waived without injustice to the person
charged.
It is manifest that whereas detailed
provisions are made in the Tribunal Rules as to the grounds on which an enquiry
may be directed against a public servant for misconduct in the discharge of
official duties, failure to discharge duties properly, general inefficiency or
personal immorality, under the Classification Rules for "good and
sufficient reasons' penalties may be imposed. The expression used in the
Classification Rules is somewhat vague, but whatever other ground it may
include, it does in our judgment include charges described in Rule 4 of the
Tribunal Rules. The procedure to be followed in the enquiry under the Tribunal
Rules is not described in any detail. But it is clearly indicated, that the
public servant must be given a summary of the charges against him and he must
be given an opportunity to submit his explanation orally or in writing, in
respect 658 of the charges, and that the Tribunal must in holding the enquiry
be guided by rules of natural justice and equity, in the matter of procedure
and evidence. The procedure prescribed by Rule 55 of the Civil Services
(Classification, Control and Appeal) Rules which is assimilated by virtue of
the note under Rule 2 into the Classification Rules, is set out in greater
detail, but is in substance not different from the procedure under Rule 7 of
the Tribunal Rules.
It is true that the Tribunal Rules do not set
out the punishments which may be imposed whereas the Classification Rules set
out the various punishments such as-, censure, withholding of increments or promotion,
including stoppage at an efficiency bar, reduction to a lower post or timescale
or to a lower stage in a time-scale, recovery from pay of the whole or part of
any pecuniary loss caused to Government by negligence or breach of order, fine,
suspension, removal from the Civil Service, which does not disqualify from
future employment and dismissal from the Civil Service which ordinarily
disqualifies from future employment. But failure to enumerate the penalties
which may be imposed also does not indicate any variation between the Tribunal
Rules and the Classification Rules. Rule 2 of the Classification Rules merely
enumerates the diverse punishments which may be imposed. This list is
exhaustive, and no penalties other than those enumerated are ever imposed upon
delinquent public servants. Under the Tribunal Rules there is no enumeration of
penalties, but it is left to the Governor in his discretion, after considering
the report of the Tribunal to select the appropriate punishment having regard
to the gravity of the delinquency.
This Court in Sardar Kapur Singh v. The Union
of India(1) has held that even if the procedure prescribed under a particular
method adopted for enquiry is more detailed than that prescribed by Rule 55 of
the Civil Services (Classification, Control and (1) [1960] 2 S.C.R. 569.
659 Appeal) Rules, if in accordance with both
the sets of rules notice has to be given of charges and the materials on which
the charges are sought to be sustained and if the public servant so desires he
can demand an oral hearing and examination of witnesses, it cannot be said that
there is any discrimination. In Sardar Kapur Singh's case(1) it was contended
that an enquiry under the procedure prescribed by Public Servants (Inquiries)
Act, 1850 was void as discriminatory when an enquiry could have been made under
the procedure prescribed by rule 55 of the Civil Services Classification,
Control and Appeal) Rules. This Court held that the procedure under Rule 55 of
the Civil Services (Classification, Control and Appeal) Rules was described in
terms elastic, but the procedure under the Public Servants (Inquiries) Act,
1850 not being substantially different, an enquiry directed under the latter
procedure and not under Rule 55 of the Civil Services (Classification, Control
and Appeal) Rules did not result in any discrimination leading to the
invalidation of proceedings started against the public servant under the Public
Servants (Inquiries) Act, 1850. It was observed in that case that in the
absence of proof of any prejudice to the public servant concerned, mere
adoption of one procedure in preference to another permissible procedure will
not justify an inference of unlawful discrimination.
Under the Classification Rules there is a
right of appeal from an order imposing a penalty passed by a departmental head
to the latter's superior whereas there is no such right of appeal against the
order passed by the Governor imposing penalty upon a public servant. But this
also cannot be regarded as a ground sustaining a plea of unlawful
discrimination. In Jagannath Prasad v. State, _of U. P.(2), the question
whether an enquiry directed against a public servant under the Rules of the State
of Uttar Pradesh similar to the Orissa Tribunal Rules which provided no right
of appeal from the order of the Governor (1) [1960] 2 S. C. R. 569.
(2) [1962] 1 S.C. R. 151.
660 imposing punishment and not under Rules
similar to the Orissa Classification Rules which provided a right of appeal
against an order dismissing a public servant in the employment of the State of
Uttar Pradesh, was discriminatory fell to be considered, and it was held that
the enquiry under the Tribunal Rules was not discriminatory. The public servant
concerned in that case was a police officer against whom an enquiry was
commenced before the Constitution, which resulted after the commencement of the
Constitution in an order of dismissal. The enquiry against the public servant was
directed under the U. P. Disciplinary Proceedings (Administrative Tribunal)
Rules, 1947 by a Tribunal appointed by the Governor of Uttar Pradesh. At this
time there were in operation also the U. P. Police Regulations which were
framed under the Indian Police Act. which authorised the Governor to dismiss a
Police Officer employed in the State. The Tribunal Rules of the State of U. P.
were framed in exercise of the powers vested under s. 7 of the Police Act. The
Police Regulations framed by the Government of U. P. and Tribunal Rules in so
far as they were not inconsistent with the provisions of the Constitution
remained in operation by virtue of Art. 313 even after the commencement of the
Constitution. Therefore at the material time there were two sets of rules for
holding an enquiry against 'a police officer. The Police authorities could
direct an enquiry under the Police Regulations and the procedure in that behalf
was prescribed by Regulation 490;
it was also open to the Governor of the State
to direct an enquiry against a public servant under Rule 4 of the U. P. Disciplinary
Proceedings (Administrative Tribunal) Rules.
Relying on the existence of the two distinct
sets of rules simultaneously, and the power vested in the State authorities to
commence enquiry against the Police Officer under either of these two sets of
rules in respect of charges set out in Rule 4 of the Tribunal Rules, it was
urged that in commencing 661 an enquiry against the public servant concerned
under the Tribunal Rules discrimination was practised and he was deprived of
the guarantee of equal protection of laws. It was held that even after the
commencement of the Constitution, continuation of the enquiry against the
delinquent public servant under the U. P. Disciplinary Proceedings (Administrative
Tribunal) Rules, 1947 did not result in any unlawful discrimination infringing
the protection of Art. 14 of the Constitution. Under the Police Regulation an
appeal did lie from a subordinate police authority to a superior authority
whereas no appeal lay from the order passed by the Governor accepting the
recommendations of Tribunal. In considering the effect of the decision in State
of Orissa v. Dhirendranath Das(1) on which reliance was placed on behalf of the
appellant in that case, it was observed that the case was not an authority for
the proposition that where out of the two sets of rules in force it is open to
the authorities to resort to one for holding an enquiry against a public
servant charged with misdemeanor and if one of such set of rules does not
provide for a right of appeal against an order passed against the public
servant and the other set provides for a right of appeal, unlawful
discrimination results: the only point decided in state of Orissa v.
Dhirendranath Das case(1) was that at the material time there were in existence
two sets of rules simultaneously in operation, it being accepted that the
Tribunal Rules under which the enquiry was made against the public servant were
" more drastic" and "prejudicial to the public servant".
The Court then proceeded to hold that the procedure under the U. P.
Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 and the
procedure under the enquiry commenced under the U. P. Police Regulations were
substantially the same and the mere fact that there was a right of appeal
against the order of penalty imposed by a, subordinate police authority and
there was no such right against the order of the Governor accepting the
recommendations (1) A.I.R. (196) S.C. 1715.
662 of the Tribunal did not make any
discriminations justifying this Court in striking down the Tribunal Rules as
being discriminatory under Art. 14 of the Constitution. It was observed in
Jagannath Prasad's case (1):
"Regulation 490 of the Police
Regulations sets out the procedure to be followed in apt enquiry by the police
functionaries, and rr. 8 and 9 of the Tribunal Rules set out the procedure to
be followed by the Tribunal.
There is no substantial difference between
the procedure prescribed for the two forms of enquiry. The enquiry in its true
nature is quasi-judicial. It is manifest from the very nature of the enquiry
that the approach to the materials placed before the enquiring body should be
judicial. It is true that by Regulation 490, the oral evidence is to be direct,
but even under r. 8 of the Tribunal Rules,, the Tribunal is to be guided by
rules of equity and natural justice and is not bound by formal rules of
procedure relating to evidence. It was urged that whereas the triburnal may
admit on record evidence which is hear-say, the oral evidence under the Police
Regulations must be direct evidence and hearsay is excluded. We do not think
that any such distinction was intended. Even though the Tribunal is not bound
by formal rules relating to procedure and evidence, it cannot rely on evidence
which is purely hearsay, because to do so in an enquiry of this nature would be
contrary to rules of equity and natural justice. The provisions for maintaining
the record and calling upon the delinquent public servant to submit Is
explanation are substantially the same under Regulation 490 of the Police
Regulations and r. 8 of the Tribunal Rules. It is urged that under the Tribunal
Rules, there is a departure (1) [1962] 1 S.C.R. 151 663 in respect of important
matters from the Police Regulations which render the Tribunal Rules prejudicial
to the person against whom enquiry is held under those rules. Firstly, it is
submitted that there is. no. right of appeal under the Tribunal Rules as is
given under the Police Regulations; secondly, that the Governor is bound to act
according to the recommendations of the Tribunal and thirdly, that under the
Tribunal Rules, even if the complexity of a case under enquiry justifies
engagement of counsel to assist the person charged, assistance by counsel may
not be permitted at the enquiry. These three variations, it is urged, make the
Tribunal Rules not only discriminatory but prejudicial as well to the person
against whom enquiry is held under these Rules. In our view, this plea cannot
be sustained. The Tribunal Rules and the Police Regulations in so far as they
deal with enquiries against police officers are promulgated under s. 7 of the
Police Act, and neither the Tribunal Rules nor the Police Regulations provide
an appeal against an order of dismissal or reduction in rank which the Governor
may pass. The fact that an order made by a police authority is made appealable
whereas the order passed by the Governor is not made appealable is not a ground
on which the validity of the Tribunal Rules can be challenged. In either case,
the final order rests with the Governor who has to decide the matter himself.
Equal protection of the laws does not postulate equal treatment of all persons
without discrimination to all persons similarly situated. The power of the
Legislature to make a distinction between persons or transactions based on a
real differential is not taken away by the equal protection clause.
Therefore by providinga right of appeal
against the order of police authorities acting under the Police Regulations
imposing 664 penalties upon a member of the police force, and by providing no
such right of appeal when the order passed is by the Governor, no
discrimination inviting the application of Art. 14 is practised." The plea
that there was discrimination because there was a right of appeal against an
order imposing penalty under one set of rules, and no such right under the
other, was rejected in Jagannath Prasad v. State of U. P. (1). It must
therefore be held that the existence of a right of appeal against the order of
an administrative head imposing penalty and absence of such a right of appeal
against the order of the Governor under the Tribunal Rules, does not result in
discrimination contrary to Art. 14 of the Constitution.
The High Court has held that there was
evidence to support the findings on heads (c) & (d) of Charge (1) and on
Charge (2). In respect of charge 1(b) the respondent was acquitted by the
Tribunal and it did not fall to be considered by the Governor. In respect of charges
1(a) and 1(e) in the view of the High Court "the rules of natural justice
had not been observed". The recommendation of the Tribunal was undoubtedly
founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The
High Court was of the opinion that the findings on two of the heads under
Charge (1) could not be sustained, because in arriving at the findings the
Tribunal had violated rules of natural justice.
The High Court therefore directed that the
Government of the State of Orissa should decide whether "on the basis of
those charges, the punishment of dismissal should be maintained or else whether
a lesser punishment would suffice". It is not necessary for us to consider
whether the High Court was right in holding that the findings of the Tribunal
on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in
our judgment the (1) [1962] 1. S.C.R. 151 order of the High Court Directing the
Government to reconsider the question of punishment cannot, for reasons we Will
Presently set out,, be sustained. If the order of dismissal was based on the
findings on charges 1(a) and 1(e) alone the Court would have jurisdictions
declare the order of dismissal illegal but when the findings the Tribunal
relating to the two of five a of the first charge and the second charge was
found, not liable to be interfered. with by the ,High 'Court and those findings
established that the respondent was prima facie guilty of grave delinquency, in
our view , the High Court had no power to direct the Governor of Orissa to
reconsider the order of dismissal.
The constitutional guarantee afforded to a
public servant is that he shall not be dismissed or removed by an authority
subordinate to that by which he was appointed, and that he shall not 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.
The reasonable opportunity contemplated has
manifestly to be in accordance with the rules framed under Art. 309 of the
Constitution. But the Court in a case in which an order of dismissal of a
public servant is impugned, is not concerned to decide whether the sentence
imposed, provided it is justified by the rules, is appropriate having regard to
the gravity of the misdemeanor established. The reasons which induce the
punishing authority, if there has been an enquiry consistent with the
prescribed rules, is not justiciable:
nor is the penalty open to review by the
Court. If the High Court is satisfied that if some but not all of the finding
the Tribunal were "unassailable", the order of the Governor on whose
powers by the rules no restrictions in determining the appropriate punishment
are placed, was final, and the High Court had no jurisdiction to direct the Governor
to review the penalty, for as we have already observed the order of dismissal
passed by a competent authority on a public servant., if the 666 conditions of
the constitutional protection have been complied with, is not justiciable.
Therefore if the order may be supported on any finding as to substantial
misdemeanour for which the punishment can lawfully be imposed, it is not for
the Court to consider whether that ground alone would have weighed with the
authority in dismissing the public servant. The Court has no jurisdiction if
the findings of the enquiry officer or the Tribunal Prima facie make out a case
of misdemeanour, to direct the authority to reconsider that order because in
respect of some of the findings but not all it appears that there had been
violation of the rules of natural justice.
The High Court was, in our judgment, in error
in directing the Governor of Orissa to reconsider the question.
The appeal must therefore be allowed and the
order passed by the High Court set aside. Having regard to the circumstances of
the case, there will be no order as to costs in this Court and the High Court.
Appeal allowed.
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