TMI Blog1957 (12) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... On August 1, 1948, the appellant was transferred to the Rehabilitation Department of the Cooperative 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appointed 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 foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing 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: - 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 compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 subsection 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 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 reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit any punishment at all and also that the particular punish- 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 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt 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 (L.R. (1948) 75 1. A. 225) 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 subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity or otherwise of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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