TMI Blog1962 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... wed and the order passed by the High Court set aside. Having regard to the circumstances of the case, there will be no order as to costs in this Court and the High Court. - Civil Appeal No. 213 of 1962 - - - Dated:- 19-10-1962 - SHAH, J.C., SINHA, BHUVNESHWAR P., GAJENDRAGADKAR, P.B., WANCHOO, K.N. AND GUPTA, K.C. DAS, JJ. JUDGMENT R. Ganapathy lyer and P. D. Menon, for the Appellant G. B. Pai, B. Parthasarthy, J. B. Dadachanji and O. C. Mathur, for, the Respondent SHAH, J.- Bidyabhushan Mohapatra hereinafter called 'the respondent'-was a permanent non-gazetted employee of the State of Orissa in the Registration Department and was posted at the material time as a Sub-Registrar at Sambalpur. Information was received by the Government of the State of Orissa that the respondent was habitually receiving illegal gratification and that he was possessed of property totally disproportionate to his income. The case of the respondent was referred by order of the Governor of Orissa to the Administrative Tribunal constituted under r.4(1) of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 framed in exercise of the powers conferred by Art. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges 1(a) and 1 (e) were vitiated because it had failed to observe the rules of natural justice ,, but they held that the findings on charges 1(c), 1(d) and charge (2) were supported by evidence and were not shown to be vitiated because of failure to observe the rules of natural justice. The High Court accordingly directed that if this Court disagreed with the Dhirendra nath Das's case(1), the findings in respect of charges 1(a) and 1(e) be set aside as being opposed to the rules of natural justice but the findings in respect of charges 1(c) and 1(d) and Charge (2) need not be disturbed , and that it would then be left to the Government to decide whether, on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice . The State of Orissa has appealed to this Court with certificate of fitness granted by the High Court under Art. 132 of the Constitution. The High Court in Dhirendranath Das's case (I. L. R. (1958) Cuttack 11) had held that at the material time there were in operation two sets of rules governing enquiries against non-gazetted public servants : (i) the Disciplinary Proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion will be subjected to further scrutiny by the Public Service Commission and the final authority to pass any order of punishment will be the Government. The latter public servant however, though denied the advantage of having his case investigated by independent authorities, is given a statutory right of appeal. The procedure laid down in the Classification Rules may be described as the normal procedure for taking disciplinary action against the Government servants, whether gazetted or non-gazetted; and the procedure laid down in the Tribunal Rules may be described as a drastic procedure . The High Court then observed after considering the arguments advanced at the Bar that so far as non-gazetted Government servants are concerned the provisions of the Tribunal Rules are less advantageous and more drastic than those of the Classification Rules and the conferment of an unfettered discretion on the Executive to apply either of these rules for the purpose of taking disciplinary action against a nongazetted Government servant would offend Art. 14 of the Constitution . Accordingly the High Court quashed the order of dismissal passed against the public servant concerned. Against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge duties properly' in Rule 2(d) and 'personal immorality' in Rule, 2(e). By Rule 3(4) the Tribunal constituted by the Governor is authorised subject to the directions of the Governor to co-opt an Assessor to assist it, such Assessor being a departmental officer higher in rank in the department to the official charged. By Rule 4 the Governor is authorised to refer to the Tribunal cases relating to public servants in respect of matters involving- (a) misconduct in the discharge of official duties; (b) failure to discharge duties properly; (c) irremediable general inefficiency in a public servant of more than ten years' standing: and (d) personal immorality. By Rule 7 the Tribunal is required to make such enquiry as may be deemed appropriate and in conducting the enquiry the Tribunal is to be guided by rules of equity and natural. justice and not by formal rules relating to procedure and evidence. Clause (3) of Rule 7 provides that before formulating its recommendations the Tribunal shall give a summary of the charges against the official and shall if he is not absconding or untraceable, give him an opportunity orally or in writing, within the time to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to be communicated to the person charged together with a statement of any allegation on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case : the public servant concerned has within a reasonable time, to put in his written statement of his defence and to state whether he desires to be heard in person; if he so desires, or if the authority concerned so directs, an oral inquiry is to be held, at which inquiry oral evidence as to such of the allegations as are not admitted is to be led and the person charged is entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may desire, provided that the officer conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. Rule 55 further provides that the proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof and that all or any of the provisions of the rule, may in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived where there is difficulty in observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enumerated are ever imposed upon delinquent public servants. Under the Tribunal Rules there is no enumeration of penalties, but it is left to the Governor in his discretion, after considering the report of the Tribunal to select the appropriate punishment having regard to the gravity of the delinquency. This Court in Sardar Kapur Singh v. The Union of India ([1960] 2 S.C.R. 569) has held that even if the procedure prescribed under a particular method adopted for enquiry is more detailed than that prescribed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, if in accordance with both the sets of rules notice has to be given of charges and the materials on which the charges are sought to be sustained and if the public servant so desires he can demand an oral hearing and examination of witnesses, it cannot be said that there is any discrimination. In Sardar Kapur Singh's case ([1960] 2 S. C. R. 569) it was contended that an enquiry under the procedure prescribed by Public Servants (Inquiries) Act, 1850 was void as discriminatory when an enquiry could have been made under the procedure prescribed by rule 55 of the Civil Services Classification, Control a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the State of U. P. were framed in exercise of the powers vested under s. 7 of the Police Act. The Police Regulations framed by the Government of U. P. and Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation by virtue of Art. 313 even after the commencement of the Constitution. Therefore at the material time there were two sets of rules for holding an enquiry against 'a police officer. The Police authorities could direct an enquiry under the Police Regulations and the procedure in that behalf was prescribed by Regulation 490; it was also open to the Governor of the State to direct an enquiry against a public servant under Rule 4 of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules. Relying on the existence of the two distinct sets of rules simultaneously, and the power vested in the State authorities to commence enquiry against the Police Officer under either of these two sets of rules in respect of charges set out in Rule 4 of the Tribunal Rules, it was urged that in commencing an enquiry against the public servant concerned under the Tribunal Rules discrimination was practised and he was depriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et out the procedure to be followed by the Tribunal. There is no substantial difference between the procedure prescribed for the two forms of enquiry. The enquiry in its true nature is quasi-judicial. It is manifest from the very nature of the enquiry that the approach to the materials placed before the enquiring body should be judicial. It is true that by Regulation 490, the oral evidence is to be direct, but even under r. 8 of the Tribunal Rules,, the Tribunal is to be guided by rules of equity and natural justice and is not bound by formal rules of procedure relating to evidence. It was urged that whereas the triburnal may admit on record evidence which is hear-say, the oral evidence under the Police Regulations must be direct evidence and hearsay is excluded. We do not think that any such distinction was intended. Even though the Tribunal is not bound by formal rules relating to procedure and evidence, it cannot rely on evidence which is purely hearsay, because to do so in an enquiry of this nature would be contrary to rules of equity and natural justice. The provisions for maintaining the record and calling upon the delinquent public servant to submit Is explanation are substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gannath Prasad v. State of U. P. ([1962] 1. S.C.R. 151). It must therefore be held that the existence of a right of appeal against the order of an administrative head imposing penalty and absence of such a right of appeal against the order of the Governor under the Tribunal Rules, does not result in discrimination contrary to Art. 14 of the Constitution. The High Court has held that there was evidence to support the findings on heads (c) (d) of Charge (1) and on Charge (2). In respect of charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court the rules of natural justice had not been observed . The recommendation of the Tribunal was undoubtedly founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether on the basis of those charges, the punishment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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