Secretary, Central Board of Excise and
Customs & Ors V. K.S. Mahalingam [1986] INSC 88 (23 April 1986)
DUTT, M.M. (J) DUTT, M.M. (J) SEN, A.P. (J)
CITATION: 1987 AIR 1919 1986 SCR (2) 742 1986
SCC (3) 35 1986 SCALE (1)1308
CITATOR INFO:
D 1988 SC1000 (1)
ACT:
Constitution of India, Article 311(2) and
Central Civil Services (Classification, Control and Appeal) Rules, 1965, Rule
15(4) - Punishment - Imposition of - Second opportunity to show cause - Whether
necessary.
HEADNOTE:
A charge-sheet was served on the respondent,
a Government servant, containing two articles of charges alleging misconduct
involving lack of integrity and lack of devotion to duty and conduct unbecoming
of a Government servant. In his defence the respondent denied the charges.
The Inquiry Officer held that both the
articles of charges were established. The Disciplinary Authority accepted the
report of the Inquiry Officer and by his order dated May 15, 1980 dismissed the
respondent from service. Against the dismissal order, the respondent preferred
an appeal. The Appellate Authority by its order dated July 8, 1981 upheld the
finding of the Disciplinary Authority. It, however, altered the penalty of
dismissal to one of compulsory retirement of the respondent from service.
The respondent filed a writ petition in the
High Court.
The Single Judge quashed the order of
dismissal and directed reinstatement of the respondent in service holding that
there was no evidence to substantiate the charges and that as no opportunity
was given to the respondent to show cause against the punishment before the
same was imposed the order of dismissal was vitiated.
In the appeal preferred by the Department,
the Division Bench agreed with the Single Judge that the respondent was
deprived of an opportunity to show cause against the punishment imposed on him
by the Disciplinary Authority, modified the order of the Single Judge and
directed the 743 Disciplinary Authority to proceed further with the
disciplinary proceedings against the respondent from the stage of giving a
fresh notice to show cause against the punishment to be proposed.
Allowing the appeal by the Department, ^
HELD : (1) Both the Single Judge and the
Division Bench were not justified in holding that the order of dismissal was
vitiated as the respondent was not given a second opportunity to make a
representation against the punishment of dismissal before the same was imposed
on him. [747 F-G] (2) The judgment of the Division Bench is set aside. As the
Division Bench did not consider the judgment of the Single Judge on merits, the
case is remanded to the Division Bench for disposal of the appeal on merits
after giving the parties an opportunity of being heard. [747 H; 748 A-B] (3)
The Constitution (Forty-second Amendment) Act, 1976 has deleted from clause (2)
of Article 311 of the Constitution the requirement of a reasonable opportunity
of making representation on the proposed penalty and, further, it has been
expressly provided in the first proviso to clause (2) that "it shall not
be necessary to give such person any opportunity of making representation on
the penalty proposed". After the amendment, the requirement of clause (2)
will be satisfied by holding an inquiry in which the Government servant has
been informed of the charges against him and given a reasonable opportunity of
being heard. [746 C-E] In the instant case, such an opportunity has been given
to the respondent. Undisputedly after the order of dismissal was passed, the
respondent was supplied with a copy of the report of the Inquiry Officer which
enabled him to prefer an appeal to the Appellate Authority against the order of
dismissal. [746 E-F] (4) In view of the amendment of Article 311(2) of the
Constitution, Rule 15(4) of the Central Civil Services (Classification, Control
and Appeal) Rules, 1965 was amended, which, inter alia, provided that it would
not be necessary to give the Government servant any opportunity of making 744
representation on the penalty proposed to be imposed.
Therefore, the respondent cannot claim a
second opportunity to show cause against the punishment either under Article
311(2) of the Constitution or under Rule 15(4) of the Central Civil Services
(Classification, Control and Appeal), Rules, 1965. [746 G; 747 D-E] Union of
India v. Tulsi Ram Patel, [1985] 3 S.C.C. 389, relied upon.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1279 of 1986.
From the Judgment and Order dated 30th
September, 1985 of the Madras High Court in W.A. No. 809 of 1985.
Anand Prakash, C.V. Subba Rao, R.D. Agarwala
and T.V.S.N. Chari for the Appellants.
K.S. Mahalingam in person.
The Judgment of the Court was delivered by
M.M. DUTT, J. The Special Leave Petition filed by the appellants was heard upon
notice to the respondent, who appeared before us in person. As arguments have
been made by both sides at the hearing of the Special Leave Petition, we
proceed to dispose of the appeal after granting such leave.
The only question that is involved in this
appeal whether it is necessary to give a second show cause notice against the punishment
before the same was imposed on the respondent and to furnish him with a copy of
the report of the Inquiry Officer in view of the amendment of clause (2) of
Article 311 of the Constitution of India by the Constitution (Forty-Second
Amendment) Act, 1976 and the consequential change brought about in Rule 15(4)
of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
Indeed, the notice of the Special Leave Petition that was served on the
respondent was confined only to the said question.
The respondent, K.S. Mahalingam, was the
Examiner of Madras Customs House. While he was acting in that capacity a 745
charge sheet was served on him containing two articles of charge alleging
misconduct involving lack of integrity and lack of devotion to duty and conduct
unbecoming of a Government servant. The respondent submitted his defence, inter
alia, denying the charges. The Inquiry Officer held that both the articles of
charge were established. The Disciplinary Authority, namely, the Collector of
Customs, Madras, examined the report of the Inquiry Officer and by his order
dated May 15, 1980 came to the finding that both the charges framed against the
respondent were proved. In view of the said finding, the Collector of Customs
by his said order dismissed the respondent from service. Being aggrieved by the
order of dismissal, the respondent preferred an appeal against the same to the
Chief Vigilance Officer, Central Board of Excise and Customs. The Appellate
Authority elaborately considered the facts and circumstances of the case and by
its order dated July 8, 1981 upheld the finding of the Disciplinary Authority
that the charges against the respondent were proved. The Appellate Authority,
however, altered the penalty of dismissal to one of compulsory retirement of
the respondent from service.
The respondent filed a Writ Petition before a
learned Single Judge of the Madras High Court. The learned Judge, upon a review
of the materials on record, came to the conclusion that there was no evidence
of lack of integrity or lack of devotion to duty or conduct unbecoming of a
Government servant as alleged in the charges levelled against the respondent.
Further, the learned Judge took the view that as no opportunity was given to
the respondent to show cause against the punishment before the same was imposed
by the Disciplinary Authority and as no copy of the Inquiry Officer's report
was supplied to him, the order of dismissal was vitiated. Accordingly, the
learned Judge by his order dated September 7, 1985 quashed the order of
dismissal and directed reinstatement of the respondent in service.
The appellants preferred an appeal before a
Division Bench of the High Court. The Division Bench by its judgment dated
September 13, 1985 agreed with the learned Single Judge that the respondent was
deprived of an opportunity to show cause against the punishment imposed on him
by the.
Disciplinary Authority. In that view of the
matter, the 746 Division Bench did not consider the findings of the learned
Judge on merits. The Division Bench modified the order of the learned Single
Judge by setting aside the direction for reinstatement of the respondent in
service and permitting the Disciplinary Authority to proceed further with the
disciplinary proceedings against the respondent from the stage of giving a
fresh notice to show cause against the punishment to be proposed by him. Hence
this appeal by the appellants.
It thus appears that the Division Bench as
also the learned Single Judge of the High Court took the view that the order of
dismissal was vitiated as the Disciplinary Authority failed to give to the
respondent an opportunity to show cause against the punishment of dismissal
before the same was imposed on him. Both the Division bench and the learned
Single Judge of the High Court have completely overlooked the fact that the
Constitution (Forty-Second Amendment) Act, 1976 has deleted from clause (2) of
Article 311 of the Constitution the requirement of a reasonable opportunity of
making representation on the proposed penalty and, further, it has been
expressly provided inter alia in the first proviso to clause (2) that "it
shall not be necessary to give such person any opportunity of making
representation on the penalty proposed". After the amendment, the
requirement of clause (2) will be satisfied by holding an inquiry in which the
Government servant has been informed of the charges against him and given a
reasonable opportunity of being heard. In the instant case, such an opportunity
has been given to the respondent. It is also not disputed that after the order
of dismissal was passed, the respondent was supplied with a copy of the report
of the Inquiry Officer which enabled him to prefer an appeal to the Appellate
Authority against the order of dismissal.
In this connection, it may be noticed that in
view of the said amendment of Article 311(2) of the Constitution, Rule 15(4) of
the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was
amended. Rule 15(4) as amended provides as follows:
"15(4). If the disciplinary authority
having regard to its findings on all or any of the articles of charge and on
the basis of the evidence adduced 747 during the inquiry is of the opinion that
any of the penalties specified in clause (v) to (ix) of Rule 11 should be
imposed on the Government servant, it shall make an order imposing such penalty
and it shall not be necessary to give the Government servant any opportunity of
making representation on the penalty proposed to be imposed :
Provided that in every case where it is
necessary to consult the Commission, the record of the inquiry shall be
forwarded by the disciplinary authority to the Commission for its advice and
such advice shall be taken into consideration before making an order imposing
any such penalty on the Government servant." Clause (ix) of Rule 11
referred to in Rule 15(4) is the penalty of dismissal.
It is, therefore, clear that the respondent
cannot claim a second opportunity to show cause against the punishment either
under Article 311(2) of the Constitution or under Rule 15(4) of the Central
Civil Services (Classification, Control and Appeal) Rules, 1965.
The question was also considered by a
five-Judge Bench of this Court in Union of India v. Tulsi Ram Patel, [1985] 3
S.C.C. 398. In that case, it has been observed per majority that the only right
to make a representation on the proposed penalty which was to be found in
clause (2) of Article 311 of the Constitution prior to the amendment having
been taken, by the Constitution (Forty-Second Amendment) Act, there is no
provision of law under which a Government servant can claim this right. In our
view, therefore, both the learned Single Judge and the Division Bench of the
High Court were not justified in holding that the order of dismissal was vitiated
as the respondent was not given a second opportunity to make representation
against the punishment of dismissal before the same was imposed on him.
In the circumstances, we set aside the
judgment of the Division Bench of the High Court but, as in disposing the 748
appeal the Division Bench has not considered the judgment of the learned Single
Judge on merits of the case, we send the case back on remand to the Division
Bench for the disposal of the appeal on merits after giving the parties an opportunity
of being heard.
This appeal is allowed. There will, however,
be no order as to costs.
A.P.J. Appeal allowed.
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