TMI Blog1963 (2) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Pandit was serving appellant No. 1, the State of Assam, as an Extra-Assistant Commissioner, Shillong. On December 11, 1959, the second appellant, the Chief Secretary to the Government of Assam, served on the respondent a charge-sheet containing eleven specific charges and called upon him to show cause why he should not be dismissed from service or otherwise punished under Rule 55 of the Civil Services (Classification, Control Appeal) Rules read with Art. 311 of the Constitution. The said notice further informed the respondent that the Governor of Assam had been pleased to authorise the Commissioner of Plains Division, Assam, to conduct the. enquiry and to report to appellant No. 2. On January 13, 1960 the respondent submitted an elaborate explanation in respect of all the charges. The Commissioner of Plains Division, Assam, then proceeded to hold an enquiry and after considering the evidence adduced before him, he made the report on April 12, 1960. In this report the Enquiry officer found that out of the 11 charges drawn up against the respondent, 6 had not been proved and of the remaining 5 charges, two had been fully established-they were charges (7) and (10) ; and the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order by a writ petition in the High Court of .Judicature at Assam on August, 24, 1961. One of tile points urged by him was that he had not been given a reasonable opportunity of showing cause against the action which was ultimately taken against him under Art. 311 (2); and he urged that the contravention of Art. 311 (2) rendered the impugned order invalid. He urged other contentions also, but those have been rejected by the High Court, while his main point under Art. 3.11 (2) has been upheld. In the result, the High Court has allowed the writ petition and issued a mandamus directing the appellants not to give effect to the order dated 8th July, 1961. It is against this order that the appellants have come to this Court by special leave. We have already referred to the second notice served on the respondent under Art. 311 (2). The respondent's contention which has been accepted by the High Court is that in the said notice, appellant No. 1 has not clearly indicated that it accepted the findings of the Enquiring officer; and since such a statement is not made in the notice, the respondent could not have known on what ground appellant No.1 provisionally decided to impose upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings, in the report are against the public officer and the dismissing authority agrees with the said findings, a stage is reached for giving another opportunity to the public officer to show will disciplinary action should not be taken against him. In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about tile punishment which would meet the requirement., of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice; the public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to both sets of findings recorded by him. Therefore, we do not think that the failure to state expressly that the dismissing authority has accepted the findings recorded in the report against the delinquent officer, justifies the conclusion that the notice given in that behalf does not afford a reasonable opportunity to the delinquent officer under Art. 311 (2). On receiving the notice in the present case, it 'must have been obvious to the respondent that, the findings recorded against him by the enquiring officer had been accepted by the appellants and so, we think it would not be reasonable to accept the view that in the present case, he had no reasonable opportunity as required by Art. 311 (2). We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes -findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Art. 311 (2). ID such a case, it would obviously be necessary that the dismissing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the conclusions of the enquiring officer in their entirety. It has, however, been urged by Mr. Chatterjee for the respondent that in the present case, the appellants must have proceeded to issue the notice against the respondent after coming to the conclusion that, some of the findings recorded in the enquiry report in favour of the respondent were not correct. His argument is that the enquiry report had suggested that the withholding of three increments would meet the ends of justice in the present case, nevertheless the notice issued by the appellants indicated that the action proposed to be taken was the respondent's removal from service. It is true that the ultimate action taken against him was not as severe; he has, been merely demoted to Class II Service. But it is suggested that the severity of the punishment proposed to be inflicted on the Respondent rather suggests that the appellants felt that some of the other charges which the enquiring officer had not held proved appeared to be proved to the appellants. This argument is no doubt ingenious; but in the circumstances of this case, we do not think it can be accepted. As this Court has held in A. N. D'Silv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically stated that grounds should be stated on which the action is proposed to be taken, and shows that the dismissing authority must its reasons in support or the said Section. In our opinion, this argument is not justified, because the context in which the said observations were made by the Federal Court clearly shows that the grounds to the judgment refers are the findings or conclusions reached by the enquiring officer. In fact, in tile subsequent passage, it has been expressly observed that. the requirement of s. 240(3) 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 lie should not suffer the proposed dismissal or reduction in rank. It would be noticed that this statement clearly shows that what the Federal Court held was that the dismissing authority must convey to the delinquent officer the findings of the enquiring officer either fully, or adequately summarised, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal NO, 412/1958 decided on 10th Dec., 1958), shows that a similar order issued by the Orissa Government was upheld by this Court. In that case, the notice issued under Art. 311 (2) did not expressly state that the State Government had accepted the findings recorded by the enquiring officer against the Government servant in question. In fact even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicted. The Orissa High Court had struck down the order of dismissal on the ground that the notice was defective and so, the provisions of Art. :II 1 (2) had been contravened. This Court in reversing the concision of the Orissa High Court, observed that in the context, it Must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service. It may be add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Orissa High Court has held that the service of the copy of the findings of the punishing authority on the public servant is mandatory and the service of the report of the enquiring officer who is not the punishing authority, when there is no indication at all in the notice that the authority competent to punish agrees with those findings, cannot constitute substantial compliance with the requirements of Art. 31 1 (2). This decision seems to suggest that in issuing the notice under Art. 311. (2), the appropriate authority must, besides serving the copy of the enquiring officer's report on the government servant, supply the said officer the findings of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion, this view is erroneous. The same comment falls to be made 'about another decision of the said High Court in Krishan Gopal Mukherjee v. The State (A.I.R. 1960 Orissa 37). The last decision to which reference must be made is the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley (A.I.R. 1954 Bom. 351) . In this case, Chief justice Chagla has observed that under Art. 311 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
