PETITIONER:
KHEM CHAND
Vs.
RESPONDENT:
THE UNION OF INDIA AND OTHERS
DATE OF JUDGMENT:
13/12/1957
BENCH:
DAS, SUDHI RANJAN (CJ)
BENCH:
DAS, SUDHI RANJAN (CJ)
AIYYAR, T.L. VENKATARAMA
DAS, S.K.
SARKAR, A.K.
BOSE, VIVIAN
CITATION:
1958 AIR 300 1958 SCR 1080
ACT:
Constitution, Interpretation of-’Reasonable opportunity
of showing cause’, Meaning of-Punishment of dismissal on
Government Servant-Constitutional Protection-Procedure-
Constitution of India, Art. 311(2).
HEADNOTE:
Reasonable opportunity to show cause’ in Art. 311(2) Of
the Constitution contemplates not merely the opportunity to
do so at the enquiry stage but also when the competent
authority, as a result of the enquiry, proposes to inflict
one of the three punishments mentioned in the Article on the
delinquent servant. Such reasonable opportunity must,
therefore, include,-
(1) opportunity to deny his guilt and establish his
innocence which means that he must be told what the charges
against him
1081
are and the allegations on which such charges are based ;
(2)opportunity to cross-examine the witnesses produced
against him and examine himself or other witnesses on his
behalf and,
(3)opportunity to show that the proposed punishment would
not be the proper punishment to inflict, which means that
the tentative determination of the competent authority to
inflict one of the three punishments must be communicated to
him.
High Commissioner for India v. I.M. Lall, L.R. (1948) 75
I.A. 225, explained and relied on.
Secretary of State for India v. I. M. Lall, (1945) F.C.R.
I03, not followed.
Parshotam Lal Dhingra v. The Union of India, and Venkata
Rao v. Secretary of State for India, L.R. (1936) 64 I.A. 55,
referred to.
The procedure followed in such cases must, therefore,
include the giving of two notices to the servant, one at the
enquiry Stage and the other when the competent authority, as
a result of the enquiry, tentatively determines to inflict a
particular punishment on him.
Consequently, in a case where the Government Servant
sought to be proceeded against for misconduct was served
with a charge-sheet and appeared before two officers
conducting the enquiry, one after the other, but no notice
was served upon him when the competent authority accepted
the report and confirmed the opinion that the punishment of
dismissal should be inflicted on him, and no cause could,
therefore, be shown by him, the provision of Art. 311(2) had
not been fully complied with and the order of dismissal
passed against him must be declared void and inoperative.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 353 of
1957.
Appeal by special leave from the judgment and decree
dated November 1, 1955, of the Punjab High Court (Circuit
Bench) at Delhi in Regular Second Appeal No. 28-D of 1955,
arising out of the judgment and decree dated December 31,
1954, of the Court of the Senior Subordinate Judge at Delhi
in Regular Civil Appeal No. 685 of 1954, affirming the
judgment and decree of Subordinate Judge Third Class Delhi
in Suit No. 273/213 of 1953.
Janardhan Sharma, for the appellant.
C. K. Daphtary, Solicitor-General of India, R. Gana-
pathy Iyer and R. H. Dhebar, for the respondents.
1082
1957. December 13. The following Judgment of the Court was
delivered by
DAS C. J.-This appeal by special leave granted by this
Court to the plaintiff-appellant is directed against the
judgment and decree passed on November 1, 1955, by a single
Judge of the Punjab High Court sitting in the Circuit Bench
at Delhi in regular second appeal No. 28-D of 1955.
The facts leading up to the present appeal are shortly as
follows: On April 6, 1943, the appellant was appointed a
sub-inspector under the Delhi Audit Fund. In February 1947,
he was transferred to the Co-operative Societies Department
and posted as subinspector in the Milk Scheme. On July 3,
1947, the the appellant was confirmed by the then Deputy
Commissioner of Delhi who was also the ex-officio Registrar
of Co-operative Societies. On August 1, 1948, the appellant
was transferred to the Rehabilitation Department of the Co-
operative Societies and posted as sub-inspector. On July 1,
1949, the appellant was suspended by the then Deputy
Commissioner, Delhi. On July 9, 1949, the appellant was
served with a charge sheet under r. 6(1) of the Rules which
had been framed by the Chief Commissioner, Delhi to provide
for the appointment to the subordinate services under his
administrative control and the discipline and rights of
appeal of members of those services. After formulating
eight several charges the document concluded as follows: ”
You are, therefore, called upon to show cause why you should
not be dismissed from the service. You should also state in
your reply whether you wish to be heard in person or whether
you will produce defence. The reply should reach the
Asst.Registrar, Co-operative Societies, Delhi, within ten
days from the receipt of this charge sheet”. The
chargesheet was signed by Shri Rameshwar Dayal who was at
that time the Deputy Commissioner of Delhi and was
admittedly the authority competent to dismiss the appellant.
The appellant duly submitted his explanation in writing.
One Shri Mahipal Singh, Inspector, Co.
1083
operative Societies was appointed by the Deputy
Commissioner, Delhi the officer to hold the enquiry. The
appellant attended two sittings before the Enquiry Officer
and then applied to the Deputy Commissioner to entrust the
enquiry to some Gazetted Officer under him. This request of
the appellant was rejected and he was informed accordingly.
Indeed, the appellant was warned that the Enquiry Officer
had been authorised to proceed with the enquiry ex parte if
the appellant failed to attend the enquiry. The appellant,
however, did not, after October 20, 1949, attend any further
sittings before the Enquiry Officer. The Enquiry Officer
thereupon framed four additional charges against the
appellant, namely, (1) for his refusal to attend the
enquiry, (2) for his refusal to accept the service of the
order of the Enquiry Officer, (3) for his absence without
permission and (4) for his misconduct in snatching away
papers from one Mohd. Ishaq and using unparliamentary and
threatening language.
It appears that at or about this time the appellant
became involved in a criminal case on a charge under s. 307
of the Indian Penal Code and on October 30, 1949, he was
actually arrested but was released on bail two or three days
later. Eventually on May 20, 1950, the appellant was
discharged from the criminal charge.
On November 14, 1951, the appellant was served with a
notice signed by one Shri Vasudev Taneja, Superintendent.
The notice was in the following terms: ”Please note that
you are to appear before Shri J.B. Tandon, 1. A. S.,
Additional District Magis-trate,on the 24th November, 1951,
at 10-30 a.m., in his court room in connection with the
departmental enquiry pending against you”. The language
employed in the notice does lead some support to the conten-
tion that the Enquiry Officer, Shri Mahipal Singh, had not
concluded the enquiry entrusted to him and that the
departmental enquiry was still pending.
Pursuant to the notice the appellant appeared before Shri
J. B. Tandon and urged two points, namely, (1)
138
1084
that the enquiry of the charges framed against him ought to
have been held by a Gazetted Officer of the District Court
and (2) that the enquiry should have been held in his
presence. It will be noticed that both the points related
to the enquiry before Shri Mahipal Singh. On December 13,
1951, Shri J. B. Tandon made a report. After reciting the
charge sheet containing the notice calling upon the
appellant to show cause why he should not be dismissed from
service and setting out the charges contained in the notice
and summarising the explanation submitted by the appellant
with regard to each of the charges and reciting the prayer
of the appellant that the Enquiry Officer should be changed
and the rejection thereof and the framing of additional
charges and the appellant’s absence from the enquiry with
effect from October 20, 1949, the report proceeded to set
out the actual charges which Shri Mahipal Singh was appoint-
ed to enquire into. The report then stated that the enquiry
with regard to the first two charges had been held in the
presence of the appellant and the rest were enquired into ex
parte as the appellant had absented himself from the
enquiry. Then the report recited that twelve charges had
been proved against the appellant and he was given the
benefit of doubt in respect of charge No. (iii) and that no
charge sheet had been given with regard to charges Nos.
(xiii) and (xiv) and that no enquiry had been held on those
charges. Out of the twelve charges said to have been proved
against the appellant, Shri J. B. Tandon found that no
charge had been actually framed in one case and, therefore,
he reduced the number of proved charges to eleven and
proceeded to base his recommendation on them. After stating
that the charges of embezzlemient, acceptance of illegal
gratification and borrowing of money from societies were so
serious that even one of them alone was sufficient to demand
the appellant’s dismissal and that the entries made in his
character roll disclosed that his work and conduct had not
been satisfactory and explaining that the enquiry had been
held up by reason of the appellant having been challaned
under s. 307, Indian Penal Code, Shri J. B.
1085
Tandon, in his report, formulated the following points for
consideration: namely, (1) what penalty should be imposed on
Shri Khem Chand for the eleven charges proved against him?
(2) Whether his gun licence should be cancelled and (3)
whether the dues of societies, which had been proved, might
be realised out of the security deposit furnished by him?
Then, after stating that a personal hearing was given to the
appellant who raised the two points mentioned above and
holding that there was no substance in either of them,
paragraph 16 of the report ran as follows:
“ The charges of embezzlement, acceptance of illegal
gratification, making wrong statement, misbehaviour at the
time of enquiry and refusal to receive orders to attend
enquiry which had been proved against him are so serious
that, I am sorry, I cannot suggest lesser punishment than
dismissal from service and he may be dismissed.”
The report also recommended that the appellant’s gun
licence be cancelled and that he be directed to surrender
his licence and deposit the gun in the district Malkhana and
that the money, which had been proved to have been taken by
the appellant from various societies, might also be
recovered from the security deposit furnished by him. There
is no positive and definite statement in Shri J. B. Tandon’s
report that Shri Mahipal Singh had concluded the enquiry or
submitted a formal report. The general tenor of Shri J. B.
Tandon’s report, however suggests that Shri Mahipal Singh
did arrive, at definite findings on twelve charges. The
appellant’s grievance is that he was not given a copy of the
report of Shri Mahipal Singh, if any had been made, and no
such report has been exhibited in this case.
At the foot of Shri J. B. Tandon’s report the following
endorsement appears over the signature of the Deputy
Commissioner, Delhi under date December 14, 1951: “ The
report is approved. Action accordingly.” Thereupon on
December 17, 1951, a formal order was issued over the
signature of the Deputy Commissioner, Delhi. It was in the
following terms: -
1086
“I, the undersigned, do hereby dismiss Shri Khem Chand,
sub-inspector, Co-operative Societies, Delhi, from the
Government Service with effect from the date of this order.
He has been found guilty of the charges of embezzlement,
acceptance of illegal gratification, making wrong
statement,misbehaviour at the time of the enquiry and
refusal to receive order to attend the enquiry. I further
order that money which has been proved to have been taken by
Shri Khem Chand from various societies be recovered from the
security deposit furnished by him.
On March 15, 1952, the appellant appealed to the Chief
Commissioner, but his appeal was dismissed on December 8,
1952. Thereafter the appellant served a notice of suit on
the respondents under s. 80 of the Code of Civil Procedure
and on May 21, 1953, filed civil suit No. 213 of 1953
complaining, inter alia, that Art. 311(2) had not been
complied with. The suit was decreed by the subordinate
judge, Delhi on May 31, 1954, declaring that the plaintiff’s
dismissal was void and inoperative and that the plaintiff
continued to be in the. service of the State of Delhi at the
date of the institution of the suit and awarding costs to
the plaintiff. The Union of India preferred an appeal
against the judgment of the subordinate judge, Delhi, but
the appeal was dismissed by the senior subordinate judge,
Delhi on December 21, 1954, and the decree of the trial
court was confirmed. A second appeal was taken by the
defendants to the Punjab High Court. By his judgment dated
November 1, 1955, the Single Judge held that there had been
a substantial compliance with the provisions of Art. 311 and
accordingly accepted the appeal, set aside the decree of the
courts below and dismissed the plaintiff’s suit. On
September 6, 1956, the plaintiff obtained special leave from
this Court and has preferred this appeal against the order
of the learned Single Judge. The appellant has also been
allowed to prosecute the appeal in forma pauperis.
In the courts below a point was raised as to whether the
appellant was a member of any of the services
1087
referred to in Art. 311. But it was a conceded before the
High Court and has also been admitted before us that the
appellant was such a member and consequently that point does
not arise. The only point that has been canvassed before
us, as it had been before the High Court, is: Was the
appellant given a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him ?
There is no dispute that the appellant was served with a
charge sheet on July 9, 1949, as required by r. 6 of the
Rules which had been framed by the Chief Commissioner, Delhi
and which governed the appellant’s conditions of service.
It is also conceded that the appellant actually appeared at
two hearings before the Enquiry Officer, Shri Mahipal Singh,
but that subsequently he wanted a transfer of the enquiry to
some other officer and that that prayer having been refused
he did not take any further part in the enquiry before that
officer. There is no grievance that no opportunity had been
given to him to defend himself against the charges levelled
against him in that enquiry. It is also an admitted fact
that some time after the appellant was discharged from the
criminal case, be received a notice on November 14, 1951,
requiring him to appear before Shri J. B. Tandon on November
25, 1951, in connection with the pending enquiry. The
appellant did appear on the appointed day, bad been given a
personal hearing and in fact raised two several objections
against the enquiry held by Shri Mahipal Singh. His only
grievance is that, after Shri J. B. Tandon had made his
report on December 13, 1951, recommending the dismissal of
the appellant and the Deputy Commissioner had on the very
next day approved of the report and proposed to take action
accordingly, the appellant was not given an opportunity to
show cause against the action so pro. posed to be taken in
regard to him, as he was entitled to under Art. 311 of the
Constitution.
In order to appreciate the arguments advanced by learned
counsel for the parties, it is necessary at this stage to
set out the provisions of the Constitution qearing on them.
The relevant portions of Arts. 310
1088
and 311 of the Constitution, which substantially reproduce
sub-ss. (1), (2) and (3) of s. 240 of the Government of
India Act, 1935, are as follows:-
“ 310(1) Except as expressly provided by this
Constitution, every person who is a member of a defence
service or of a civil service of the Union or of an all-
India service or holds any post connected with defence or
any civil post under the Union, holds office during the
pleasure-of the President, and every person who is a member
of a civil service of a State or holds any civil post under
a State holds office during the pleasure of the Governor of
the State.
(2)………………………………………………
311(1) No person who is a member of a civil service of
the Union or an all-India service or a civil service of a
State or holds a civil post under the Union or a State shall
be dismissed or removed by an authority subordinate to that
by which he was appointed.
(2)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:
Provided………………………………………….
(3) If any question arises whether it is reasonably
practicable to give to any person an opportunity of showing
cause under clause (2), the decision thereon of the
authority empowered to dismiss or remove such person or to
reduce him in rank, as the case may be, shall be final.”
The answer to the question canvassed before us depends on
a true construction of the aforesaid pro,visions and in
particular on the view we take as to the meaning, scope and
ambit of Art. 311(2). In Parshotam Lal Dhingra’s case (1)
it wag said that the word “removed ” was not in s. 240(3)
but had been introduced in Art. 311(2). It may be mentioned
that although the word ” removed ” was not actually used in
s. 240(3), the reference to dismissal, according to s. 277,
included a reference to removal.
(1) Civil Appeal No. 65 Of 1957, decided on November 1,
1957.
1089
Article 310(1) no doubt provides that every person
falling within it holds office during the pleasure of the
President or the Governor, as the case may be. The language
of both cls. (1) and (2) of Art. 311 are prohibitory in form
and was held by the Judicial Committee in High Commissioner
for India v. 1. M. Lal (1) to be inconsistent with their
being merely permissive and consequently those provisions
have to be read as qualifications or provisos to Art. 310(1)
as has been held by the Judicial Committee in that case and
recently by this Court in Parshotam Lal Dhingra v. The Union
of India(2) in a judgment pronounced on November 1, 1957.
The limitations thus imposed on the exercise of the pleasure
of the President or the Governor in the matter of the
dismissal, removal or reduction in rank of government
servants constitute the measure of the constitutional
protection afforded to the government servants by Art.
311(2).
Clause (1) of Art. 311 is quite explicit and protects
government servants of the kinds referred to therein by
providing that they cannot be dismissed, or re. moved or
reduced in rank by a lesser authority than that which
appointed them. Likewise cl. (2) protects government
servants against being dismissed, removed or reduced in rank
without being given a reasonable opportunity to show cause
against the action proposed to be taken in regard to them.
As has been explained by this Court in Parshotam Lal
Dhingra’s case (2), the expressions ‘dismissed’, ‘removed’
and ,reduced in rank’ are technical words taken from the
service rules where they are used to denote the three major
categories of punishments.
In exercise of powers conferred by s. 96-B(2) of the
Government of India Act, 1915, the Secretary of State in
Council framed Civil Service (Governors Provinces
Classification) Rules. Rules (x) and (xiii) of those rules
provided that local government might, for good and
,sufficient reasons, inflict the several punishments therein
mentioned on persons therein indicated. Rule (xiv)
prescribed the procedure for all cases in which dismissal,
removal or reduction in rank of any officer was intended
(1) L.R. (1948) 75 I.A. 225 at P. 241.
1090
to be ordered. These rules were reproduced with some
modifications in the Civil Services (Classification, Control
and Appeal) Rules which were, on May 27, 1930, ,promulgated
by the Secretary of State in Council in exercise of the same
powers under s. 96-B of the Government of India Act, 1915.
Rule 49 of those rules specified seven different kinds of
punishments which could, for good and sufficient reasons, be
imposed upon the members of the services therein specified.
Rule 55 reproduced old r. (xiv) with greater details. It
provided:
“ Without prejudice to the provisions of the Public
Servants (Inquiries) Act, 1850, no order of dismissal,
removal or reduction shall be passed on a member of a
Service (other than an order based on facts which have led
to his conviction in a criminal court or by a Court Martial)
unless he has been informed in writing of the grounds on
which it is proposed to take action, and has been afforded
an adequate opportunity of defending himself The grounds on
which it is proposed to take action shall be reduced to the
form of a definite charge or charges which shall be communi-
cated to the person charged, together with a statement of
the allegations on which each charge is based and of any
other circumstances which it is proposed to take into
consideration in passing orders on the case He shall be
required, within a reasonable time, to put in a 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 direct, an oral inquiry shall be held. At that
inquiry oral evidence shall be heard as to such of the
allegations as are not admitted, and the person charged
shall be entitled to crossexamine the witnesses, to give
evidence in person and to have such witnesses called, as he
may wish, provided that the officer conducting the inquiry
may, for special and sufficient reason to be recorded in
writing, refuse to call a witness. The proceedings shall
contain a sufficient record of the evidence and a statement
of the findings and the grounds thereof. This rule shall
not apply where the person concerned has absconded,
1091
or where it is for other reasons impracticable to com-
municate with him. 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
a difficulty in observing exactly the requirements of the
rule and those requirements can be waived without injustice
to the person charged.”
Similar rules were framed and are to be found in the
Indian Railway Establishment Code which governs the railway
servants. Rule 6 of the Rules framed by the Chief
Commissioner, Delhi, referred to above, is more or less on
the same lines.
In R. Venkata Rao v. Secretary of State for India it was
held, with reference to the rules made under s.96-B of the
Government of India Act, 1915, that while that section
assured that the tenure of office, though at pleasure, would
not be subject to capricious and arbitrary action, but would
be regulated by the rules, it gave no right to the
appellant, enforceable by action, to hold his office in
accordance with those rules. It was held that s. 96-B and
the rules made thereunder only made provisions for the
redress of grievances by administrative process. The
position of the Government servant was, therefore, rather
insecure, for his office being held during the pleasure of
the Crown under the Government of India Act, 1915, the rules
could not over-ride or derogate from the statute and the
protection of the rules could not be enforced by action so
as to nullify the statute itself. The only protection that
the Government servants had was that, by virtue of s. 96-
B(1), they could not be dismissed by an authority
subordinate to that by which they were appointed. The
position, however, improved to some extent under the 1935
Act which, by s. 240(3), gave a further protection, in
addition to that provided in s. 240(2) which reproduced the
protection of s 96-B(1) of the Government of India Act,
1915. We have, therefore, to determine the true meaning,
scope and ambit of this now protection given by s. 240(3) of
(1) L. R. (1936) 64 I.A. 55.
139
1092
the Government of India Act, 1935, which has been reproduced
in Art. 311(2).
The majority of the Judges of the Federal Court (Spens,
C.J., and Zafarulla Khan, J.) in I. M. Lall’s case (1) took
the view that in sub-s. (3) of s. 240 there had been enacted
provisions of a very limited scope in permanent statutory
form as compared with the provisions under the rules
considered in Venkata Rao’s case (2). Further down, after
referring to the fact that prior to 1935 a sort of
protection for the servants of the Crown provided by sub-s.
(3) was merely to be found in the rules, many and various
and liable to change, their Lordships proceeded to state
that from those rules had been picked out and enacted in the
section itself certain limited specific provisions only.
The majority of the Federal Court at page 138 construed s.
240(3) as follows:
“In our judgment the words “against the action proposed to
be taken in regard to him ” require that there should be a
definite proposal by some authority either to dismiss a
civil servant or to reduce him in rank or alternatively to
dismiss or reduce him in rank as and when final action may
be determined upon. It should be noted that the sub-section
does not require any inquiry, any formulation of charges, or
any opportunity of defence against those charges. All that
it expressly requires is that where it is proposed to
dismiss or reduce in rank a civil servant he should be given
reasonable opportunity of showing cause against the proposal
to dismiss or reduce him. It is also significant that there
is no indication as to the authority by whom the action is
to be proposed. It does, however, seem to us that the sub-
section 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
(I) (1945) F.C.R. I03, 136.
(2) L.R. (1936) 64 I.A. 55
1093
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. It is suggested that in some cases it
will be sufficient to indicate the charges, the evidence on
which those charges are put forward and to make it clear
that unless the person can on that information show good
cause against being dismissed or reduced if all or any of
the charges are proved, dismissal or reduction in rank will
follow. This may indeed be sufficient in some cases. 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 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. That in our judgment
involves in all cases where there is an enquiry and as a
result thereof some authority definitely proposes dismissal
or reduction in rank, that the person concerned shall be
told in full, or adequately summarised form, the results of
that enquiry, and the findings of the enquiring officer and
be given an opportunity of showing cause with that
information why he should not suffer the proposed dismissal
or reduction of rank. ” The above passage indicates that in
the view of the majority of the judges of the Federal Court
s. 240(3) corresponding now to art. 311(2) does not ”
require any inquiry, any formulation of charges or any
opportunity to defend against those charges “. According to
them ” all that it expressly requires is that where it is
proposed to dismiss or reduce in rank a civil servant he
should be given reasonable opportunity of showing cause
against the proposal to dismiss or reduce him “.Their
Lordships added that as that opportunity had to be a
reasonable opportunity the section must be taken to require
“not only notification of the action proposed but of the
grounds on which the authority is proposing that the action
should be
1094
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 sit is proposed to
be taken “. It is quite clear that the majority of the
Federal Court put a somewhat narrow interpretation on the
relevant provision in that they considered that the
requirement of reasonable opportunity contemplated by it
arose only at a later stage when the competent authority
definitely proposed to take a particular action and that
this opportunity did not cover the earlier stage where
charges were formulated and enquired into.
Varadachariar, J… in his dissenting judgment took much
the same view on this point as did the High Court. The High
Court observed as follows:
“The plaintiff’s contention is that this opportunity
should have been afforded to him after the finding of the
enquiring officer had been considered and the punishment
decided upon. With this contention we are unable to agree.
Eight charges were served on the plaintiff and at the end he
was asked to show cause why he should ‘not be dismissed,
removed or reduced or subjected to such other disciplinary
action as the competent authority may think fit to enforce
for breach of Government Rules and conduct unbecoming to the
Indian Civil Service. He was aware ‘from the very start of
the enquiry against him that removal from service was one of
the various actions that could have been taken against him
in the event of some or all the charges being established,
and in this sense he was showing cause during the course of
the inquiry against the action proposed. The plaintiff’s
contention that there should be two enquiries the first to
establish that be had been guilty and the second to
determine what should be the appropriate punishment, and
that in each stage he should have reasonable and independent
opportunities to defend and show cause does not appear to be
correct or intended by the Legislature (1). ”
In agreement with the High Court Varadachariar J. held
that the requirements of sub-s. (3) of s. 240
(1) (1944) I. L. R. 25 Lah. 325, 347, 348.
1095
demanded nothing beyond what was required for compliance
with the provisions of r. 55 of the Civil Services
(Classification, Control and Appeal) Rules. His Lordship
found nothing in the language of el. (3) to indicate that
anything more or anything different was contemplated or to
suggest that a further opportunity was to be given after the
enquiry had been completed in the presence of the officer
charged and the enquiring officer had made his report. The
learned Judge was unable to accept the suggestion that the
words of the statute were appropriate only to the stage when
the authorities would be in a position to indicate
definitely what action they intended to take, namely,
whether it was to be one of dismissal or one of reduction
and that this could be predicated only after the Enquiring
Officer had made his report.
In our judgment neither of the two views can be accepted
as a completely correct exposition of the intendment of the
provisions of s. 240(3) of the Government of India Act,
1935, now embodied in Art. 311(2) of the Constitution.
Indeed the learned Solicitor-General does riot contend that
this provision is confined to guaranteeing to the government
servant an opportunity to be given to him only at the later
stage of showing cause against the punishment proposed to be
imposed on him. We think that the learned Solicitor General
is entirely right in not pressing for such a limited
construction of the provisions under consideration. It is
true that the provision does not, in terms, refer to
different stages at which opportunity is to be given to the
officer concerned. All that it says is that the government
servant must be given a reasonable opportunity of showing
cause against the action proposed to be taken in regard to
him. He must not only be given an opportunity but such
opportunity must be a reasonable one. In order that the
opportunity to show cause against the proposed action may be
regarded as a reasonable one, it is quite obviously
necessary that the government servant should have the
opportunity, to say, if that be his case, that he has not
been guilty of any misconduct to merit any punishment at all
and also that the particular punish-
1096
ment proposed to be given is much more drastic and severe
than he deserves. Both these pleas have a direct bearing on
the question of punishment and may well be put forward in
showing cause against the proposed punishment. If this is
the correct meaning of the clause, as we think it is, what
consequences follow ? If it is open to the governmnet
servant under this provision to contend, if that be the
fact, that he is not guilty of any misconduct then how can
he take that plea unless he is told what misconduct is
alleged against him? If the opportunity to show cause is to
be a reasonable one it is clear that he should be informed
about the charge or charges levelled against him and the
evidence by which it is sought to be established, for it is
only then that he will be able to put forward his defence.
If the purpose of this provision is to give the government
servant an opportunity to exonerate himself from the charge
and if this opportunity is to be a reasonable one he should
be allowed to show that the evidence against him is not
worthy of credence or consideration and that he can only do
if he is given a chance to cross-examine the witnesses
called against him and to examine himself or any other
witness in support of his defence. All this appears to us
to be implict in the language used in the clause, but this
does not exhaust his rights. 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 removal or reduction in rank and
that any of the lesser punishments ought to be sufficient in
his case.
To summarise: the reasonable opportunity envisaged by the
provision under consideration includes-
(a) An opportunity to deny his guilt and establish his
innocence, which he can only do if he is told what
1097
the charges levelled against him are and the allegations on
which such charges are based;
(b) an opportunity to defend himself by crossexamining
the witnesses produced against him and by examining himself
or any other witnesses in support of his defence; and
finally
(c) an opportunity to make his representation as to
why the proposed punishment should not be inflicted on him,
which he can only do if the competent authority, after the
enquiry is over and after applying his mind to the gravity
or otherwise of the charges proved against the government
servant tentatively proposes to inflict one of the three
punishments and communicates the same to the government
servant. In short the substance of the protection provided
by rules, like r. 55 referred to above, was bodily lifted
out of the rules and together with an additional opportunity
embodied in s. 240 (3) of the Government of India Act, 1935
so as to give astatutory protection to the government
servants and has now been incorporated in Art. 311 (2) so as
to convert the protection into a constitutional safeguard.
We find support for our above mentioned conclusion in the
judgment of the Judicial Committee in I. M. Lall’s case (1).
It is true that after quoting a portion of the passage from
the judgment of the majority of the Federal Court set out
above their Lordships at page 242 stated that they agreed
with the view taken by the majority of the Federal Court,
but their Lordships did not stop there and went on to say:
” In their opinion, sub-s. 3 of s. 240 was not intended to
be, and was not, a reproduction of r. 55, which was left
unaffected as an administrative rule. , Rule 55 is concerned
that the civil servant shall be informed ” of the grounds on
which it is proposed to take action “, and to afford him an
adequate opportunity of defending himself against charges
which have to be reduced to writing; this is in marked
contrast to the statutory provision of “ a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to him “. In the
(1) L.R. (1948) 75 I.A. 225 at 241.
1098
opinion of their Lordships, no action is proposed within the
meaning of the sub-section until a definite conclusion has
been come to on the charges, and the actual punishment to
follow is provisionally determined on. Before that stage,
the charges are unproved and the suggested punishments are
merely hypothetical. It is on that stage being reached that
the statute gives the civil servant the opportunity for
which sub-s. 3 makes provision. Their Lordships would only
add that they see no difficulty in the statutory opportunity
being reasonably afforded at more than one stage. If the
civil servant has been through an inquiry under r. 55, it
would not be reasonable that he should ask for a repetition
of that stage, if duly carried out, but that would not
exhaust his statutory right, and he would still be entitled
to represent against the punishment proposed as the result
of the findings of the inquiry.”
The above passage quite clearly explains that the point
on which their Lordships of the Judicial Committee agreed
with the majority of the Federal Court is that a further
opportunity is to be given to the government servant after
the charges have been established against him and a,
particular punishment is proposed to be meted out to him.
The opening sentence in the above passage, namely, that s.
240 (3) was not a reproduction of r. 55 and that r. 55 was
left unaffected as an administrative rule does seem to
suggest that s. 240 (3) is not at all concerned with the
enquiry into the charges which comes at the earlier stage,
but a close reading of the rest of that passage will
indicate that in their Lordships’ view the substance of the
protection of r. 55 is also included in s. 240 (3) and to
that is superadded, by way of further protection, the neces-
sity of giving yet another opportunity to the government
servant at the stage where the charges are proved against
him and a particular punishment is tentatively proposed to
be inflicted on him. Their Lordships referred to ”
statutory opportunity being reasonably afforded at more than
one stage “, that is to say, that the opportunities at more
stages than one are comprised within the opportunity
contemplated
1099
by the statute itself. Of course if the government servant
has been through the enquiry under r. 55, it would not be
reasonable that he should ask for a repetition of that
stage, if duly carried out, which implies that if no enquiry
has been held under r. 55 or any analogous rule applicable
to the particular servant then it will be quite reasonable
for him to ask for an enquiry. Therefore, in a case where
there is no rule like r. 55 the necessity of an enquiry was
implicit in s. 240 (3) and is so in Art. 311(2) itself.
Further their Lordships say that an enquiry under r. 55 ”
would not exhaust his statutory right and he would still be
entitled to make a representation against the punishment
proposed as the result of the findings of the enquiry “.
This clearly proceeds on the basis that the right to defend
himself in the enquiry and the right to make representation
against the proposed punishment are all parts of his ”
statutory right “ and are implicit in the reasonable
opportunity provided by the statute itself for the
protection of the government servant.
The learned Solicitor General appearing for the Union of
India, then, contends that assuming that the government
servant is entitled to have an opportunity not only to show
cause against his guilt but also an opportunity to show
cause against the punishment proposed to be inflicted on
him, the appellant in the present case has had both such
opportunities, for by the notice served on him on July 9,
1949, the appellant was called upon to show cause against
the charges as well as against the punishment of dismissal
in case the charges were established. He points out that in
I. M. Lall’s case (1) the notice given to I. M. Lall did not
specify dismissal as the only and particular punishment
proposed to be imposed on him, but called upon him to show
cause why he should not be dismissed, removed or reduced or
subjected to such other disciplinary action as the competent
authority, might think fit to enforce, whereas in the
present case the notice referred to above clearly indicated
that the punishment of dismissal alone was proposed to be
inflicted.
L.R. (1948) 75 1. A. 225.
140
1100
The learned Solicitor General in support of his contention
relies on the observations of the majority of the Federal
Court quoted above and in particular on the passage where
their Lordships stated ” that in some cases it would be
quite sufficient to indicate the charges, the evidence on
which those charges are put forward and to make it clear
that unless the person can on that information show good
cause against being dismissed or reduced in rank if all or
any of the charges are proved, dismissal or reduction in
rank would follow and that this would be sufficient in some
cases.” He also strongly relies on the circumstance that
their Lordships of the Judicial Committee, after quoting the
above passage, stated that they agreed with the view taken
by the majority of the Federal Court. But as we have
already explained, the other observations of their Lordships
of the Judicial Committee, which follow immediately, quite
clearly indicate that what they agreed with was that a
second opportunity was to be given to the government servant
concerned after the charges had been brought home to him as
a result of the enquiry. Their Lordships made it clear that
no action could, in their view, be said to be proposed
within the meaning of the section until a definite
conclusion had been come to on the charges and the actual
punishment to follow was provisionally determined on, for
before that stage the charges remained unproved and the
suggested punishments were merely hypothetical and that it
was on that stage being reached that the statute gave the
civil servant the opportunity for which sub-s. (3) made
provision. A close perusal of the Judgment of the Judicial
Committee in I. M. Lall’s case will, however, show that the
decision in that case did not proceed on the ground that an
opportunity had not been given to 1. M. Lall against the
proposed punishment merely because in the notice several
punishments were included, but the decision proceeded really
on the ground that this opportunity should have been given
after a stage had been reached where the charges had been
established and the competent authority had applied its mind
to the gravity or otherwise of the
1101
proved charge tentatively and proposed a particular
punishment. There is as the Solicitor-General fairly
concedes, no practical difficulty in following this
procedure of giving two notices at the two stages. This
procedure also has the merit of giving some assurance to the
officer concerned that the competent authority maintains an
open mind with regard to him. If the competent authority
were to determine, before the charges were proved, that a
particular punishment would be meted out to the government
servant concerned, the latter may well feel that the
competent authority had formed an opinion against him,
generally on the subject matter of the charge or, at any
rate, as regards the punishment itself. Considered from
this aspect also the construction adopted by us appears to
be consonant with the fundamental principle of jurisprudence
that justice must not only be done but must also be seen to
have been done.
It is on the facts quite clear that, when Shri J. B.
Tandon concluded his enquiry and definitely found the
appellant guilty of practically all the charges he for the
first time suggested that the punishment of dismissal should
be the proper form of punishment in this case. Shri J. B.
Tandon was not, however, the competent authority to dismiss
the appellant and, therefore, he could only make a report to
the Deputy Commissioner who was the person competent to
dismiss the appellant. When the Deputy Commissioner accept-
ed the report and confirmed the opinion that the punishment
of dismissal should be inflicted on the appellant, it was on
that stage being reached that the appellant was entitled to
have a further opportunity given to him to show cause why
that particular punishment should not be inflicted on him.
There is, therefore, no getting away from the fact that Art.
311(2) has not been fully complied with and the appellant
has not had the benefit of all the constitutional protection
and accordingly his dismissal cannot be supported. We,
therefore, accept this appeal and set’ aside the order of
the Single Judge and decree the appellant’s suit by making a
declaration that the order of dismissal passed by the Deputy
Commissioner on
1102
December 17,1951, purporting to dismiss the appellant from
service was inoperative and that the appellant was a member
of the service at the date of the institution of the suit
out of which this appeal has arisen. The appellant will get
costs throughout in all courts. He must pay all court fees
that may be due from him. Under order XIV, Rule 7 of the
Supreme Court Rules were direct that the appellants could be
paid his fees which we assess at Rs. 250.
Appeal allowed.