State of Mysore Vs. K. Manche Gowda
[1963] INSC 174 (22 August 1963)
22/08/1963 SUBBARAO, K.
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1964 AIR 506 1964 SCR (4) 540
CITATOR INFO:
D 1969 SC1020 (8,10)
ACT:
Civil Servant--Reasonable
opportunity--Dismissal based on previous punishments--Whether an opportunity to
explain be given in second show cause notice--"Presumptive knowledge"
and "reasonable opportunity"--Constitution of India, Art.
311 (2)--Government of India Act, 1935, s. 240(3).
HEADNOTE:
The respondent was holding the post of an
Assistant to the Additional Development Commissioner, Planning, Bangalore. A departmental enquiry was held against him and the Enquiry Officer recommended
that the respondent be reduced in rank. After considering the report of Enquiry
Officer, the Government issued a notice calling upon respondent to show cause
why he should not be dismissed from service. The reply of the respondent was
that the entire case had been foisted on him. After considering his
representation, the Government passed an order dismissing him from service. The
reason given for his dismissal was that the respondent had on two earlier
occasions committed certain offences and he had been punished for the same.
However, those facts were not given as
reasons for the proposed punishment of dismissal from service.
541 The respondent filed a petition in the
High Court under Art. 226 of the Constitution for quashing the order of his
dismissal. The High Court quashed the order of dismissal on the ground that the
two circumstances on which the Government relied for the proposed infliction of
punishment of dismissal were not put to the respondent for being explained by
him in the show cause notice which was issued to him. The appellant came to
this Court by special leave.
The contentions of the appellant were that
the Government was entitled to take into consideration the previous record of
Government servant in awarding punishment to him and it was not incumbent on it
to bring to the notice of the Government servant the said fact in the second
notice. Moreover, as the Government servant in this case had knowledge of his
two earlier punishments he was not in any way prejudiced by their
non-disclosure in the second notice. Dismissing the appeal, Held, that it was
incumbent upon the Government to give the Government servant at the second
stage reasonable opportunity to show cause against the proposed punishment and
if the proposed punishment was also based on his previous punishments or his
previous bad record, that should be included in the second notice so that he
may be able to give an explanation. The doctrine of "presumptive
knowledge" or that of "purposeless enquiry" is subversive of the
principle of "reasonable opportunity".
Secretary of State for India, v. I. M. Lal,
[1945] F.C.R.
103, Khern Chand v. Union of India, [1958]
S.C.R. 1080, Gopalrao v. State, I.L.R. [1954] Nag. 90, Shankar Shukla v. Senior
Superintendent of Post Offices, Lucknow Division, A.I.R. 1959 All. 624 and
State of Assam v. Bimal Kumar Pandit, [1964] 2 S.C.R. referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 387 of 1963.
Appeal by special leave from the judgment and
order dated February 14, 1962, of the Mysore High Court in Writ Petition No.
916 of 1959.
C.K. Daphtary, Attorney-General for India, R.
Gopalalkrishnan and B.R.G.K. Achar for P.D. Menon, for the appellant.
Naunit Lal, for the respondent.
August 22, 1963. The Judgment of the Court
was delivered by SUBBA RAO J.--This appeal by special leave is preferred
against the Order of a Division Bench of the High Court of Mysore at Bangalore
quashing the order of the 542 Government dated March 13, 1957 dismissing the
respondent from service.
In the year 1957 the respondent was holding
the post of an Assistant to the Additional Development Commissioner, Planning,
Bangalore. On June 25, 1957, the Government of Mysore appointed Shri G.V.K.
Rao, I.A.S., Additional Development Commissioner, as the Enquiry Officer to conduct
a departmental enquiry against him in respect of false claim for allowances and
fabrication vouchers to support them.
After giving the usual notice, the said
Enquiry Officer framed four charges against him. After making the necessary
enquiry in accordance with law the said Enquiry Officer submitted his report to
the Government with the recommendation that the respondent might be reduced in
rank.
After considering the report of the Enquiry
Officer, the Government issued to him a notice calling upon him to show cause
why he should not be dismissed from service. The relevant part of the said show
cause notice reads as follows:
"The Inquiry Authority has recommended
that you may be reduced in rank. As the charges proved against you are of a
very grave nature and are such as render you unfit to remain in Government
Service, and the Government consider that a more severe punishment is called
for in the interest of public service, it is proposed to dismiss you from
service." The respondent made representation to the effect that the entire
case had been foisted on him. After considering the representations of the
respondent, the Government passed an order on January 6, 1959 dismissing him
from service. As the argument turns upon the terms of this order, it will be
convenient to read the material part thereof:
"Government have carefully considered
the report the enquiry, the explanation of Shri Manche Gowda and the opinion
furnished by the Mysore Public Service Commission. There is no reasonable
ground to accept the version of Shri Manche Gowda that the entire case has been
deliberately foisted on him. The evidence on record shows conclusively that the
charges framed are fully proved." "As regards the quantum of
punishment, Government 543 have examined the previous record of the Officer and
have given careful consideration to the recommendation of the Public Service
Commission. Shri Manche Gowda was recruited directly as a Gazetted Officer. He
had been punished twice--first, in Government Order No. SD 19-16/A:17. 53-12,
dated 1--4-1954, for making false claims of T.A. and tampering with the
accounts and ledgers of Food Depot and again, in Government Order No. 40 MSC
57, dated 13th March 1957 for not having credited to Government certain sums of
money which he had collected from the Office Staff. Yet he failed to learn a
lesson; he had indulged in similar offences. It is clear that he is
incorrigible and no improvement can be expected in his conduct. In the
circumstances a reduction in pay and continuance of the Officer in Government
Service, as recommended by the Public Service Commission, is no remedy. Having
regard to the status of the Officer and the nature of the charges proved
against him, Government have come to the conclusion that he is unfit to
continue in Government service and direct that he may be dismissed from service
forthwith." It will be seen from the said Order that the reason for giving
enhanced punishment above that recommended by the Inquiry Officer as well as by
the Service Commission was that earlier he had committed similar offences and
was punished--once on April 1, 1954 and again on March 13, 1957.
In the second notice those facts were not
given as reasons for the proposed punishment of dismissal from service. The
respondent filed a petition in the High Court under Art.
226 of the Constitution for quashing the said
order and the High Court quashed the order of dismissal on the ground that the
said two circumstances on which the Government relied for the proposed
infliction of punishment of dismissal were not put to the petitioner for being
explained by him, in the show cause notice, which was issued to the petitioner
on February 4, 1958. The impugned order was accordingly set aside leaving it
open to the State Government to dispose of the matter afresh if it desired to
do so after compliance with the requirements of Art. 311(2) of the 544
Constitution. Hence the appeal.
Learned Attorney General contends that the
Government is entitled to take into consideration the previous record of a
Government servant in awarding punishment to him and it is not incumbent on it
to bring to the notice of the Government servant the said fact in the second
notice. Alternatively, he argues that whether a Government servant has had a
reasonable opportunity of being heard or not, being a question of fact in each
case, and in the instant case as the Officer concerned had knowledge of his two
earlier punishments which formed the basis of the enhanced punishment, he was
not in any way prejudiced by their non- disclosure to him in the second notice
and, therefore, the principles of natural justice were not violated.
Mr. Naunit Lal, learned counsel for the
respondent, says that a Government servant cannot be punished for his acts or
omissions unless they said acts or omissions arc subject of specific charges
and are enquired into in accordance with law and that, in any view, even if the
Government could take into consideration a Government servant's previous record
in awarding punishment, the facts that form the basis of that punishment should
at least be disclosed in the second notice giving thereby an opportunity to the
said Government servant to explain his earlier conduct.
The material part of Art. 311(2) of the
Constitution which 'embodies the constitutional protection given to a
Government servant reads thus:
"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." Section 240(3) of the Government of India Act was pari materig
with the said clause of the Article of the Constitution. That section fell to
be considered by the Federal Court in Secretary of State for India v. I. M. Lall(1).
In considering that sub-section, Spens C.J-, speaking for the majority of the
Court, made the following remarks relevant to the present enquiry:
"It does however seem to us that the
sub- section (1) [1945] F.C.R. 103, 139.
545 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 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 ................. 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 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.
This judgment was taken in appeal to the
Privy Council, and the Judicial Committee, after quoting in extenso the passage
just now extracted by us from the Federal Court judgment, expressed its
agreement with the view taken by the majority of the Federal Court. This Court
Khem Chand v. The Union of India(1) also emphasized upon the importance of
giving a reasonable opportunity to a Government servant to show that he does
not merit the punishment proposed to be meted out to him. Das C.J., speaking for
the Court, observed:
"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 re- (1) [1958] S.C.R. 1080, 1096.
546 moval or reduction in rank and that any
of the lesser punishments ought to be sufficient in his case." The
relevant aspect of the case has been neatly brought out by the Nagpur High
Court in Gopalrao v. State(1). There, as here, the previous record of a
Government servant was taken into consideration in awarding punishment without
bringing the said fact to his notice and giving him a reasonable opportunity of
explaining the same. Sinha, C.J. speaking for the Court, observed:
"Normally, the question of punishment is
linked up with the gravity of the charge, and the penalty that is inflicted is
proportionate to the guilt. Where the charge is trivial and prima facie merits
only a minor penalty,, a civil servant may not even care to defend himself in
the belief that only such punishment as would be commensurate with his guilt
will be visited on him. in such a case, even if in the show cause notice a more
serious punishment is indicated than what the finding of guilt warrants, he
cannot be left to guessing for himself what other possible reasons have
impelled the proposed action. It is not, therefore, sufficient that other
considerations on which a higher punishment is proposed are present in the mind
of the competent authority or are supported by the record of service of the
civil servant concerned. In a case where these factors did not form part of any
specific charge and did not otherwise figure in the departmental enquiry, it is
necessary that they should be intimated to the civil servant in order to enable
him to put up proper defence against the proposed action." Randhir Singh
J. of the Allahabad High Court, in Girja Shankar Shukla v. Senior
Superintendent of Post Offices, Lucknow Division, Lucknow(2), distinguished the
case thus:
"In the present case, however, those
punishments were taken into consideration which are not only within the
knowledge of the applicant but which he had suffered earlier ..................................
This is evidently not opposed to any
principles of (1) I.L.R. [1954] Nag. 90, 94.
(2) A.I.R. 1959 All. 624, 625.
547 natural justice." Multiplication of
citation is not necessary, as the aforesaid decisions bring out the conflicting
views.
Under Art. 311(2) of the Constitution, as
interpreted by this Court, a Government servant must have a reasonable
opportunity not only to prove that he is not guilty of the charges levelled
against him, but also to establish that the punishment proposed to be imposed
is either not called for or excessive. The said opportunity is to be a
reasonable opportunity and, therefore, it is necessary that the Government
servant must be told of the grounds on which it is proposed to take such
action: see the decision of this Court in the State of Assam v. Bimal Kumar
Pandit(1). If the grounds are not given in the notice, it would be well nigh
impossible for him to predicate what is operating on the mind of the authority
concerned in proposing a particular punishment: he would not be in a position
to explain why he does not deserve any punishment at all or that the punishment
proposed is excessive. If the proposed punishment was mainly based upon the
previous record of a Government servant and that was not disclosed in the
notice, it would mean that the main reason for the proposed punishment was withheld
from the knowledge of the Government servant. It would be no answer to suggest
that every Government servant must have had knowledge of the fact that his past
record would necessarily be taken into consideration by the Government in
inflicting punishment on him; nor would it be an adequate answer to say that he
knew as a matter of fact that the earlier punishments were imposed on him or
that he knew of his past record.
This contention misses the real point,
namely, that what the Government servant is entitled to is not the knowledge of
certain facts but the fact that those facts will be taken into consideration by
the Government in inflicting punishment on him. It is not possible for him to
know what period of his past record or what acts or omissions of his in a
particular period would be considered. If that fact .was brought to his notice,
he might explain that he had no knowledge of the remarks of his superior
officers, that he had adequate explanation to offer (1) [1964] 2 S.C.R. 1.
548 for the alleged remarks or that his
conduct subsequent to the remarks had been exemplary or at any rate approved by
the superior officers. Even if the authority concerned took into consideration
only the facts for which he was punished, it would be open to him to put
forward before the said authority many mitigating circumstances or some other
explanation why those punishments were given to him or that subsequent to the
punishments he had served to the satisfaction of the authorities concerned till
the time of the present enquiry. He may have many other explanations.
The point is not whether his explanation
would be acceptable, but whether he has been given an Opportunity to give his
explanation. We cannot accept the doctrine of "presumptive knowledge"
or that of "purposeless enquiry", as their acceptance will be
subversive of the principle of "reasonable opportunity". We,
therefore, hold that it is incumbent upon the authority to give the Government
servant at the second stage reasonable opportunity to show cause against the
proposed punishment and if the proposed punishment is also based on his
previous punishments or his previous bad record, this should be included in the
second notice so that he may be able to give an explanation.
Before we close, it would be necessary to
make one point clear. It is suggested that the past record of a Government
servant, if it is intended to be relied upon for imposing a punishment, should
be made a specific charge in the first stage of the enquiry itself and, if it
is not so done, it cannot be relied upon after the enquiry is closed and the
report is submitted to the authority entitled to impose the punishment. An
enquiry against a Government servant is one continuous process, though for
convenience it is done in two stages. The report submitted by the Enquiry
Officer is only recommendatory in nature and the final authority which
scrutinizes it and imposes punishment is the authority empowered to impose the
same. Whether a particular person has a reasonable opportunity or not depends,
to some extent, upon the nature of the subject matter of the enquiry. But it is
not necessary in this case to decide whether such previous record can be made
the subject matter of charge at the first stage of the enquiry.
But, nothing in law 549 prevents the
punishing authority from taking that fact into consideration during the second
stage of the enquiry, for essentially it, relates more to the domain of
punishment rather than to that of guilt. But what is essential is that the
Government servant shall be given a reasonable opportunity to know that fact
and meet the same.
In the present case the second show cause
notice does not mention that the Government intended to take his previous
punishments into consideration in proposing to dismiss him from service. On the
contrary, the said notice put him on the wrong scent, for it told him that it
was proposed to dismiss him from service as the charges proved against him were
grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows
that but for the previous record of the Government servant, the Government
might not have imposed the penalty of dismissal on him and might have accepted
the recommendations of the Enquiry Officer and the Public Service Commission.
This order, therefore, indicates that the show cause notice did not give the
only reason which influenced the Government to dismiss the respondent from
service. This notice clearly contravened the provisions of Art. 311(2)of the
Constitution as interpreted by Courts.
This order will not preclude the Government
from holding the second stage of the enquiry afresh and in accordance with law.
In the result the appeal is dismissed with
costs.
Appeal dismissed.
Back
