M. N. Dasanna Vs. State of Andhra Pradesh [1973] INSC 109 (2 May 1973)

GROVER, A.N.

GROVER, A.N.

MUKHERJEA, B.K.

VAIDYIALINGAM, C.A.

CITATION: 1973 AIR 2275 1974 SCR (1) 87 1973 SCC (2) 378

ACT:

Andhra Pradesh Civil Service (Disciplinary Proceedings Tribunal) Act, 1960-Rule 7 read with the proviso-If a report submitted by the Chairman who heard only the arguments but did not hold the enquiry himself is a valid report under the proviso to Sec. 7.

HEADNOTE:

The appellant was the officer-in charge of Vijaywada Government Headquarters Hospital. On a reference by the Government of Andhra Pradesh, the Tribunal under the Andhra Pradesh Civil Service (Disciplinary Proceedings Tribunal) Act, 1960, framed a number of charges against him.

Proceedings by the Tribunal were first conducted before one K, the Chairman of the Tribunal. The Tribunal consisted of two members. Charges were framed and, the case was transferred to the other member N. The case was later withdrawn from him and K continued the enquiry until March 21, 1963 and examined certain witnesses. On the same date, the case was transferred to one S, who had succeeded N. S, held the enquiry for some time, and examined a number of witnesses. He retired in July 1963. One G. who succeeded him continued to hold the enquiry and examined some witnesses.

After the written statement of the appellant had been filed and his witnesses had been examined, he heard arguments but before he could submit a report S, was transferred and was succeeded by one C, who was then the Chairman of the Tribunal. He submitted a report on July 31, 1964. He held that out of 22 charges only 10 had been proved. Thereafter, a notice was sent to the appellant by the State to show cause why he should not be dismissed from service, and on September 3, 1964, the State directed that the penalty of dismissal be imposed on the appellant.

The appellant moved the High Court challenging the order of dismissal mainly on the ground that the proceedings before the Tribunal were vitiated from beginning to end. While the writ petition was pending, a decision was ,given by a Division Bench of the High Court construing identical provisions of the Hyderabad Public Services (Tribunal Enquiry) Act that where one member alone conducted an enquiry and submitted his report, that report was invalid.

In the meantime. an amendment was made in s. 7 of the Andhra Pradesh Act by adding a proviso, which provided that where a single member of the Tribunal holds an inquiry, he alone shall report his findings and it will be deemed to be a report of the Tribunal for the purposes of the Act. The appellant submitted that the amendment did not make any difference to his case; but the High Court negatived his contention and dismissed the writ 'Petition.

Allowing the appeal,

HELD : (i) According to the substantive Dart of s. 7 of the Andhra Pradesh Civil Service (Disciplinary Proceedings Tribunal) Act, 1960, it is the Tribunal which is to report the findings to the Government on the conclusion of the enquiry. In other words, even if the enquiry was conducted by one member, two members have to submit their report, if the Tribunal consists of two members, as in the present case. The proviso only enables the report to he ,submitted by one member alone if the condition prerequisite is satisfied, namely, that he has held the enquiry himself in the matter. If he has held the enquiry instead of two members, his report may be deemed to be the report of the Tribunal.

In the present case, it is not in dispute that the Chairman of the Tribunal never conducted any part of the enquiry and that he had only heard arguments and then submitted his report giving his findings. In the judgment of the Andhra Pradesh High Court, C. K. Doraiswamy Naidu v. Andhra Pradesh 173 I.L.R. 1967 A.P. 904, it was laid down that the word 'Enquiry' under s. 8 of the Act does not include a finding.

The enquiry was stated to cover the hearing of' the case.

i.c., recording evidence, admitting documents and generally completing the records upon which a finding will be based.

Therefore, the stage of enquiry has to be completed before the argument is advanced as is clear from Ruler 7(1)(iii).

The net result would be that according to the Act and the Rules framed there under, arguments would not be a part of enquiry. The Chairman of the Tribunal had only heard arguments and had not held any part of the enquiry.

Therefore, his report could not be deemed to be a report of the Tribunal under the Proviso to s. 7 of the Act. [176E] (ii) Under s. 7 the position is quite clear that if the tribunal consists of more than one member and if the enquiry is held by a single member, he alone Tribunal. But where a single member has not held any enquiry, then his report cannot be deemed to be report of the Tribunal, an it is essential that all members of the Tribunal should submit the report. As arguments could not form part of the enquiry, the conditions of s. 7 could not beregarded to have been fulfilled. The result would be that the order of dismissal based on the report submitted by the Chairman, must be held to be illegal and void. [177B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1596 of 1967.

Appeal by special leave from the judgment and order dated July 5, 1956 of the Andhra Pradesh High Court in W.P. No. 468 of 1965.

A. K. Sen, A. V. Rangwn and A. Subhashini for the appellant.

P. Ram Reddy and B. Parthasarathy, for the respondent No.1.

The Judgment of the Court was delivered by GROVER, J. This is an appeal by certificate from a judgment of them Andhra Pradesh High Court dismissing a writ petition filed by the appellant challenging the order of dismissal from service.

The appellant who has passed the M.B B.S. examination of the Madras University in 1940 entered the service of the State of Madrason August 14, 1941 as Civil Assistant Surgeon. On the formation of the State of Andhra Pradesh his services were allotted to' the new State. In 1961 he was working as Officer-in-charge of Vijaywada Government Headquarters Hospital.

On a reference by the Government of Andhra Pradesh, the Tribunal, under the Andhra Pradesh Civil Services (Disciplinary Proceedings) Tribunal Act 1960, hereinafter called the 'Act', framed a number of charges against him.

Proceedings by the Tribunal were first conducted before Shri K. Umpathy Rao, the Chairman of the Tribunal, which at all material times, consisted of two members. The charges were framed by him on August 22, 1962. On or about January 7, 1963 the case was transferred to the other member Shri Nazimuddin. On the protest of the appellant that the said member would be biased against him the case was withdrawn from him and Shri K. Umpathy Rao continued the enquiry until March 21, 1963 and examined certain witnesses. On the same date the case was transferred to Shri Shankar Pershad who had succeeded Shri Nazimmudin on the latter's appointment.

Shri Shanker Pershad held the inquiry until June 20, 1963 and examined a number of witnesses. He retired in July 1963. Shri G. Ramaiah Chowdhary who succeeded him continued to hold the enquiry and examined some witnesses. After the written statement of 174 the appellant had been filed and his witnesses had been examined he heard arguments on October 26, 1963. Before he could submit a report Shri Chowdhary was transferred on February 2, 1964 and was succeeded by Shri C. Jaganathacharyulu who was then the Chairman of the Tribunal.

He submitted a report on July 31, 1964. He held that out of the 22 charges only 10 had been proved. On September 15, 1964 a notice was sent to the appellant by the first respondent herein to show cause why he should not be dismissed from service. On September 3, 1964 the first respondent directed that the penalty of dismissal be imposed on the appellant.

The appellant moved the High Court under Art. 226 of the Constitution challenging the order of dismissal principally on the ground that the proceedings before the Tribunal were vitiated from beginning to the end. While the writ petition was pending a decision was given by the Division Bench(1) of the High Court on September7, 1965 construing identical provisions of the Hyderabad Public Service (Tribunal) Enquiry, Act that where one member alone conducted an enquiry and submitted his report that report was invalid and opposed to the provisions of the Act and the decision of the Government on such report would be without jurisdiction. It is claimed on behalf of the appellant that in accordance with that decision the writ petition would have been allowed but for an amendment which was made in s. 7 of the Act by adding a proviso which may be noticed.

"7. On the conclusion of an inquiry, the Tribunal shall report its findings to the Government......

Provided that where a single member of the Tribunal holds an inquiry into a case as provided in sub-section (1) of Section 6, he alone shall report his findings and recommend the penalties and his report to the Government in this regard shall be deemed to be the report of the Tribunal for the purposes of this Act".

The appellant submitted to the High Court that the amendment did not make any difference and affect the merits of the case in any manner but the High Court negatived his contention and dismissed the writ petition.

We shall presently consider the contentions that have been pressed before us on behalf of the appellant but we cannot help observing at the threshold that the manner in which the proceedings were conducted before the Tribunal strikes us as most extraordinary. It is somewhat surprising that even when the member who was holding the enquiry had not been transferred or had not retired and was in a position to conclude the enquiry and make a report the proceedings were transferred either to the Chairman or some other member.

the relevant provisions of the Act and the rules may now be noticed. Section 3 provided for the constitution of a Tribunal for disciplinary proceedings consisting of one or more members. Where the Tribunal consists of more than one member the Government has to designate one of the (1) C. K. Doraiswamy Naidu v. The State of Andhra Pradesh I.L.R. [1967] Andhra pradesh. 904.

175 members as the Chairman. Under S. 6 (1 ) if the Tribunal consists of more than one member an inquiry into a case referred to the Tribunal shall be held by all the members sitting together or by a single member as the Chairman may direct. Under S. 7 the Tribunal has to report its findings to the Government on the conclusion of the inquiry. Section 7, as it stood before the amendment Act 27 of 1965. provided that on the conclusion of an inquiry the Tribunal shall report its findings to the Government, The proviso which was inserted after the judgment of the Andhra Pradesh High Court mentioned before has already been quoted.

Rule 7 of the Rules framed under S. 10 of the Act requires the Tribunal to follow the procedure prescribed thereby.

Under Rule 7(2)(i) after an inquiry has been completed the Tribunal has to send the report of its findings and recommendations to the Government together with its opinion.

Sub-rule 2(iii) says :

"After the Government have arrived at provisional conclusions in regard to the penalty to be imposed, the Government servant charged shall be supplied with a copy of the report of Tribunal and he shall be called upon to show cause within a reasonable time against the particular penalty proposed to be imposed" Sub-rule 6 of Rule 7 is material and is reproduced below "Where the Chairman or any member of the Tribunal is prevented by death, transfer or other cause from concluding an enquiry or from reporting his findings in any case referred to the Tribunal, his successor may deal with any evidence taken down by his predecessor in office as if such evidence had been taken down by him and may proceed with the enquiry from the stage at which his predecessor had left it, or report his findings to the Government." This sub-rule (6) was added by G.O.M. 690 dated the 12th June 1964The High Court was of the view that if Shri Venkatarao who made the report could be said to have held an enquiry under S. 6(1) that his report would be valid in view of the proviso to S. 7. It was pointed out that under sub-rule 6 of Rule 7 Shri Venkata Rao as member of the Tribunal was competent to lawfully deal with the evidence which had been taken down by his predecessor as if such evidence had been taken down by him. He proceeded to hear arguments on the 9th and 10th July 1964. The hearing of arguments was a part of the enquiry under S. 6(1). It was not, therefore, necessary that the report must have been made by both members of the Tribunal.

Now it is quite clear that Shri Venkata Rao never examined any witnesses or took on record any evidence. All that he did was to hear arguments afresh. Under section 7 on conclusion of an enquiry it is the Tribunal which has to report its findings to the Government. The proviso was inserted as is clear from the statement of Objects and Reasons contained in the Bill which was introduced for enacting the amending Act of 1965 because of the decision of the Andhra 176 Pradesh High Court referred to before in which It was held that the purpose of having a Tribunal of more than one member was that all members should bring to bear their mind to the matter in controversy and come to the conclusion that where a single member had held an inquiry the findings of the report should be given by all the members. It was pointed out that the intention was that where a single member held an inquiry under s. 6(1) he alone should report his findings and recommend the penalties in the report to be submitted to the Government. Where a single member held an inquiry it might not be appropriate to require the other member who had not enquired into the case and who did not have an opportunity of hearing the evidence to take part in further proceedings and recording the findings and, submitting the report to the government. In order to make the intention clear and to validate the action taken by the Government in the past on the findings and the report of a single member of the Tribunal, the Andhra Pradesh Civil Services (Disciplinary Proceedings) Tribunal Amendment Ordinance 1965 had been promulgated by the Governor. That was later followed by the Amendment Act 1965.

As Rule 7(6) cannot abrogate the provisions contained in the Act and the provisions of the Act must prevail, we shall have to determine what the true import and meaning of the proviso to s. 7 is. It is abundantly clear that according to the substantive part of s. 7 it is the Tribunal which has to report the findings to the Government on the conclusion of the enquiry. In other words even if the enquiry is conducted by one member two members have to submit their report if the Tribunal consists of two members as was the case here. The proviso only enables the report to be submitted by one member alone if the condition pre-requisite is satisfied, namely, that he has held an inquiry himself into the matter. If he has held the enquiry then instead of two members his report shall be deemed to be the report of the Tribunal, The crucial question, therefore, in the present case is whether the report of Shri Venkata Rao satisfied the conditions laid down; in s. 7 and the proviso thereto. It is not in dispute that he had never conducted any part of the enquiry and that he had only heard arguments and then submitted a report giving his findings. In the judgment of the Andhra Pradesh High Court (supra) it was laid down that the word "enquiry" in s. 8 of the Act does not include a finding. The enquiry was stated to cover the hearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise. We entirely concur with this view.

in our opinion the stage of enquiry is completed before the arguments have to be advanced as is clear from Rule 7(1)(iii) which is in the following terms :"As the enquiry, oral and documentary evidence shall be first adduced by the prosecution and the Government servant charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. After the enquiry is completed, the Government servant charged shall be entitled to advance the necessary arguments and the prosecution shall have a right of reply".

The net result would be that according to the Act and the Rules framed there under arguments would not be a part of enquiry. As Shri Venkata Rao had only heard arguments and had not held any part of the enquiry, his report could not be deemed to be the. report of the Tribunal under the proviso to s. 7 of the, Act. As pointed out before sub-rule 6 of Rule 7 cannot override s. 7 of the Act. Under s. 7 the position is quite clear that if the Tribunal consists of more than one member and if the enquiry is held by a single member ha alone can report his findings and his report shall be deemed to be a report of the Tribunal but where a single, member has not held any enquiry then his report cannot be deemed to be the report of the Tribunal and it is essential that all members of the Tribunal should submit their' report. As arguments could not form part of the enquiry the conditions of s. 7 could not be regarded to have, been fulfilled. The High Court was entirely in error in holding that Shri Venkata Rao who had only heard arguments should be treated to have held part of the enquiry and therefore Ms report should be deemed to be the report of the Tribunal.

The result would be that the order of dismissal based on the report submitted by Shri Venkata Rao must be held to be illegal and void.

For the reasons given above the appeal is allowed and the order of the High Court is set aside. The writ petition shall stand allowed with the result that the order of dismissal shall stand quashed. The appellant will be entitled to his costs in this Court.

S.C. Appeal allowed.

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