Full Judgment Text
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PETITIONER:
B. D. GUPTA
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT18/09/1972
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
GROVER, A.N.
BEG, M. HAMEEDULLAH
CITATION:
1972 AIR 2472 1973 SCR (2) 323
1973 SCC (3) 149
CITATOR INFO :
D 1973 SC1124 (3)
F 1987 SC2257 (18)
ACT:
Punjab Civil Services (Punishment and Appeal) Rules, 1952
(Vol. 1, Part-I)-Rules 7.2 and 7.3-Punishment of Censure-
Show cause notice must indicate precisely the charges and
allegations-Opportunity to show-cause necessary before the
government prescribes what proportion of the pay and
allowances should be paid to the delinquent officer where
the suspension is held to be unjustifiable.
HEADNOTE:
In December, 1954, the appellant was arrested and prosecuted
under section 5 (2) of the Prevention of Corruption Act. He
was suspended in the same month. In November, 1956, the
appellant was served with a charge-sheet under Rue 7 (2) for
the departmental proceedings to be held on two charges of
taking illegal gratification. The appellant submitted his
explanation on December, 18, 1956. The Enquiry Officer
exonerated the appellant of charge 1 (a). In 1960, the
appellant was discharged in the criminal case. The
appellant was, thereafter, dismissed from service, on the
finding of the Enquiry Officer, that charge, 1 (b) was
proved. The High Court of Punjab quashed the dismissal
order. After reinstatement, the appellant was served with
another suspension order in May, 1963. A fresh enquiry for
charge 1 (b) was ordered in 1965 but the same was later on
withdrawn. On October 26, 1966, the appellant was again
directed to show-cause why he should not be censured for his
unsatisfactory explanation dated December 18, 1956. In
reply to the showcause notice in November, 1956, the
appellant’s explanation was found unsatisfactory and a
sentence of censure was imposed on him. Instead of granting
full pay for the suspension period the authorities ordered
that the appellant should not be paid more than the
subsistence allowance received by him during the period of
suspension. The writ petition filed against the said orders
by appellant was dismissed by the single Judge of the Punjab
High Court, and then by the Division Bench.
Allowing the appeal,
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HELD : The show-cause notice was vague, it did not indicate
whether the explanation was called for regarding charge 1
(a) or charge 1 (b). As regards charge 1(b) it was finally
withdrawn. The show-cause notice did not indicate which
part of the explanation dated 18-12-1956 was unsatisfactory.
In what way it was unsatisfactory and what was the material
before the Government on which it was thought that the
explanation was unsatisfactory. The notice being vague, the
appellant did not get any chance at all to show cause that
he did not deserve a censure upon his conduct. The
appellant was not given an opportunity to show that the sus-
pension order against him had been unjustified and that he
was entitled to full pay and allowances. Under Rule 7 (3),
the Govt. has to make two decisions (i) whether the
suspension was justified and (ii) what portion of the pay
and allowances should be paid to the delinquent officer?
[328 C]
HELD : Further that the order regarding pay affects the
pecuniary interest of the appellant. No real opportunity
was given to the appellant to make an effective
representation against the said order. The order regarding
pay during suspension period was not merely consequential
order to the first order. [331 B]
324
M. Gopala Krishan Naidu v. State of Madhya Pradesh [1968] 1
S.C.R. 355, relied upon.
State of Assam and another v. Raghav Rajgopalachari Civil
Appeal No. 1561 and 1562 of 1966 decided on October 6, 1967,
distinguished on facts
The appeal was allowed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2129 of
1969.
Appeal by special leave from the order dated January 13,
1969 of the Punjab and Haryana High Court, at Chandigarh, in
L.P.A. No. 6 of 1969.
B. Sen and G. D. Gupta, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
MUKHERJEA, J. This appeal on special leave is from an order
of the Division Bench of the Punjab and Haryana High Court
dismissing summarily an appeal directed against a judgment
and order of a Single Judge of that Court by which a
petition of the appellant under Art. 226 of the Constitution
of India was dismissed. The matter arises in connection
with a disciplinary proceeding under the Punjab Civil
Services (Punishment and Appeal) Rules, 1952 which had a
very chequered career.
For a proper appreciation of the points raised in this case
it is necessary to set out some of the salient facts. The
appellant joined the Punjab Irrigation Department as a
temporary Engineer in 1939 and in course of time became an
Executive Engineer in that department. In December, 19 4 he
was arrested in connection with a case under Sec. 5(2) of
the Prevention of Corruption Act which had been registered
against one K. R. Sharma, Superintending Engineer, with whom
the appellant had been working as a Personal Assistant. The
appellant was, however, enlarged on bail. About the same,
time the appellant was suspended with effect from 13
December 1954 and certain departmental proceedings were
started, against him. In November 1956 the appellant was
served with a charge sheet under Rule 7.2 of the Punjab
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Civil Services (Punishment and Appeal) Rules, There, were,
two distinct charges made against the appellant which will,
for the sake of convenience, be described hereinafter as
Charge No. 1(a) and Charge No. 1(b). Both the charges were
based on allegations that the appellant had taken illegal
gratification. We are not concerned for the purposes of
this, appeal with the details of the charges. On 18
December 1956 the appellant submitted a reply to the
chargesheet to which
325
he added certain supplementary replies between MAY and July
195?. Government, it appears, appointed an Enquiry Officer
as late as October, 1957. On 18 February 1958 the appellant
was., reverted from the post of Executive Engineer (under
suspension) to that of an Assistant Engineer (under
suspension). In May, 1958 Government decided to defer the
enquiry in respect of Charge 1 (b) until there was a
decision in regard to Charge 1(a), In," October, 1958 the
Enquiry Officer submitted to Government a report in respect
of Charge 1(a) which exonerated the appellant completely.
The Government then waited for another six months before
appointing another Enquiry Officer to conduct the enquiry in
regard to Charge 1(b). The appellant, it appears’, asked
Government on more than one occasion to supply him with a
copy of the report of the first Enquiry Officer in respect
of Charge 1 (a). Government, however, declined to supply
any copy. In December, 1960 the criminal case which had
been Started against the appellant in 1954 ended in
discharge of the appellant. On 19 April 1961 the appellant
was dismissed from service on the basis of a report of the
second Enquiry Officer regarding Charge 1(b). This order of
dismissal was, however, quashed in March, 1963 by the High
Court of Punjab and Haryana. The appellant was, thereafter,
reinstated and forthwith placed under another order of
suspension in May, 1963. A third Enquiry Officer was
appointed simultaneously for a fresh enquiry into Charge
1(b). In February, 1965 the appellant got a decree in a
civil suit by which he was allowed to recover the balance of
his pay and allowances for the period of suspension and for
quashing the order of reversion. Between 1963 and 1965 the
appellant made various attempts through what was apparently
a high-powered board called the Establishment Board to bring
about a closure of the enquiry proceedings initiated against
him. Nothing happened until 15 December 1965 when, once
again Government appointed a new Enquiry Officer to, replace
the earlier officer who had been appointed in February,
1965. In January; 1966 the appellant was reinstated as
Executive Engineer and in October, the same year, the
entire enquiry against the appellant was withdrawn. One
would have thought that this would be the end of the
unusually protracted proceedings against the appellant. On
the contrary, however, on 26 October 1966 Government served
a fresh "Show Cause notice"’ on the appellant by which the
appellant was told that his explanation of 18 December 1956
in reply to the charges and allegations levelled against him
had been found unsatisfactory by Government and that
Government proposed to censure his conduct.
Immediately upon receipt of the said "Show Cause notice" the
appellant asked for a copy of the statement made by one S. D
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Khanna, Sub-Divisional Officer under Sec. 164 of the Code of
Criminal Procedure. The appellant justified his demand for
a copy of S. D. Khanna’s statement by reference to two
facts. First, ’Charge No. 1(b) related to an alleged demand
by the appellant for illegal gratification in the presence
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of S. D. Khanna and he was, therefore, entitled to have a
copy of the statements made by Is. D. Khanna before the
police and the magistrate. Secondly, the appellant pointed
out, under the orders of the High Court he was expecting a
copy of Khanna’s statement to be supplied to him on 27
October 1966. He did not, however, receive a copy because
the Government withdrew the chargesheet against him on 18
October 1966. If, therefore, by a fresh "Show Cause notice"
the appellant was called upon to vindicate his earlier reply to th
e chargesheet, he was, he claimed, entitled to a copy
of the statement of S. D. Khanna. On 24 November 1966,
however, Secretary to the Government of Haryana turned down
the appellant’s request for a copy of Khanna’s statement.
Thereafter, on 16 December 1966 the appellant submitted a
reply to the "Show Cause notice".
On 27 February 1967 the Government passed an order imposing
the penalty of censure on the appellant. The substantive
part of the order is in the following terms :
"Your explanation has been duly considered and
the same has been found to be unsatisfactory.
The Governor of Harayana is accordingly
pleased to order that the penalty of censure
be imposed on you. Your conduct, is
therefore, censured."
On the same day another order was communicated to the appel-
lant by which the Governor of Haryana had directed that
under Rule 7.3(3) of the Punjab Civil Services Rules, Volume
1, Part 1, the appellant should not be allowed anything more
than what had already been paid to him as subsistence
allowance during the period of his suspension from 31 May
1963 to 6 January 1966. The order included also a direction
that the entire period of absence from duty of the appellant
on account of suspension from ’31 May 1963 to 6 January 1966
was to be treated as a period spent on duty for all other
purposes.
In June, 1967 the appellant was given a notice of compulsory
retirement which was subsequently withdrawn. In October,
1968, however, the appellant was compulsorily retired. In
the meantime, however, in November, 1967 the appellant had
filed a writ petition in the High Court of Punjab and
Haryana challenging the validity of the two orders dated 27
February 1967-one inflicting on him the punishment of
censure and the other withholding from him his usual pay and
allowances beyond what had
327
been paid to him as subsistence allowance during the period
of suspension. The writ petition was dismissed by a Single
Judge of the High Court on 6 November 1968. The appellant
then went on appeal before a Division Bench of the High
Court. The appeal was, however, dismissed in limine. Upon
being refused a certificate for appeal to this Court, the
appellant asked for special leave which was granted to him
on 3 October 1969.
Only two contentions were raised on behalf of the appellant
before us. First, it was contended that the appellant did
not get a reasonable opportunity to reply to the "Show Cause
notice" dated 26 October 1966 on the basis of which he had
been censured by the Government inasmuch as the notice’ was
too vague to. enable him to give an effective reply.
Secondly, it was contended that the order of 27 February
1967 which withheld from the appellant any payment in excess
of the subsistence allowance he had drawn during the period
of his suspension was liable to be struck down on the ground
that it had been passed without giving him any opportunity
to make a representation against it. We shall now deal with
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these contentions one by one.
The appellant’s complaint about the "Show Cause notice" of
26 October 1966 is one that has to be accepted as
substantial. For a proper appreciation of the appellant’s
contention, the Memorandum containing the "Show Cause
notice" may be set out in extenso It was in the following
terms
"Your explanation dated the 18th December,
1956, in reply to the statements of charges
and allegations has been considered and found
to be unsatisfactory. The President of India,
after taking a lenient view, has tentatively
decided to censure your conduct and also to
place a copy thereof on your personal file.
2.Before the proposed punishment is
inflicted, you are given an opportunity of
making representation against the action
proposed to be taken. Any representation
which you make in this connection will be
considered before taking the proposed action.
Such representation, if any, should be made in
writing and submitted so as to reach me not
later than the 7th day from the receipt of
this communication by you. In case no reply
is received within the aforesaid period it
will be presumed that you have no explanation
to offer."
The only ground on which the Government proposed to censure
the appellant is the fact that the appellant’s explanation
dated 18 December 1956 in reply to the statement of charges
and
328
allegations had been found unsatisfactory by Government. By
the expression "Charges, and allegations" in this "Show
Cause ,notice", reference obviously is to the letter of 22
October 1956. That, letter, it will be remembered, contains
two charges, namely, Charge 1 (a) and Charge 1(b). The
appellant’s explanation of 18 December 1956 which is said to
have been found unsatisfactory by Government was a reply not
only to Charge 1 (a) but also to Charge 1(b) of these two
charges, so far as Charge 1 (a) is ,concerned the appellant
had been completely exonerated in October, 1958. There is
nothing, however, in the "Show Cause notice" of 26 October
1966 to indicate clearly that the dissatisfaction of
Government with the appellant’s reply of 18 December 1956
had nothing to do with Charge 1 (a). The "Show Cause
notice" merely states in vague general terms that the
appellant’s ’reply to the charges and allegations was
unsatisfactory. Even if ’we were to assume, though there is
no reasonable ground for this assumption, that Government
did not have in mind the contents of Charge 1 (a) while
serving this "Show Cause notice", there is nothing in the
"Show Cause notice" to give any indication that the
particular allegations regarding which the appellant had
failed to furnish a satisfactory explanation were referable
only to ,Charge 1(b). The notice is vague on other grounds
as well. As one reads the first paragraph of the notice,
the questions that at once assail ones mind are many: In
what way was the explanation of the appellant unsatisfactory
? Which part of the appellant’s explanation was so
unsatisfactory ? On what materials did the Government think
that the appellant’s explanation was unsatisfactory. It is
to our mind essential for a "Show Cause notice" to- indicate
the precise scope of the notice and also to indicate the
points on which the officer concerned is expected to give a
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reply. We have no manner of doubt that the "Show Cause
notice" in the instant case did not give the appellant any
real ,opportunity to defend himself against the complaint
that his previous explanation of 18 December 1956 had been
unsatisfactory. ’The appellant did not, therefore, get any
chance at all to show ,that he did not deserve a censure
upon his conduct.
We were told that since the appellant was aware of the
charge and also aware of the reply he had given to the
charges made against him, it was enough for Government to
tell him that his answer was unsatisfactory. It was argued
that since the "Show Cause notice" really pointed this out
and mentioned that the very lenient sentence of censure upon
the appellant’s conduct was ,going to be imposed, there was
nothing further that Government could be expected to do in
this case. We have no hesitation in rejecting this
contention made out on behalf of the State. It is
,manifestly clear that the "Show Cause notice" was too vague
to
329
permit the appellant to deal with. it effectively and that
consequently the order of censure passed on him is bad and
liable to be struck down.
We now come to the second contention raised on behalf of the
appellant that the order passed by the Governor of Haryana
which directed the withholding from the appellant any
payment in excess of the subsistence allowance he had
already received during the period of his suspension between
31 May 1963 , and 6 January 1966 was bad in so far as the
appellant had not been given a prior opportunity to make a
representation against such order.
The relevant order was passed under Rule 7.3 of the Punjab
Civil Services Rules (Vol. 1, Part I) which is in the
following terms
"7.3 (1) When a Government servant, who has
been dismissed, removed, or suspended, is
reinstated, the authority competent to order
the reinstatement shall consider and make a
specific order :-
(a)regarding the pay and allowances to be
paid to the Government servant for the period
of his absence from duty; and
(b) whether or not the said period shall be
treated as a period spent on duty.
(2) Where the authority mentioned in Sub-
rule (1) is of opinion that the Government
servant has been fully exonerated or, in the
case of suspension, that it was wholly
unjustified, the Government servant shall be
given the full pay and allowances to which he
would have been entitled, had he not been
dismissed, removed or suspended, as the case
may be.
(3)In other cases, the Government servant
shall be given such proportion of such pay and
allowances as such competent authority may
prescribe :
Provided that the payment of allowances under
clause (2) or clause (3) shall be subject to
all other conditions under which such
allowances are admissible.
(4)In a case falling under clause (2) the
period of absence from duty shall be treated
as a period spent on duty for all purposes.
(5)In a case falling under clause (3) the
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period of absence from duty shall not be
treated as a period spent on duty, unless such
competent authority specifically directs that
it shall be so treated for any specified
purpose.
330
Provided that if the Government ;servant so
desires, such authority may direct that the
period of absence from duty shall be converted
into leave of any kind due and admissible to
the Government servant."
It is clear that before passing an order under Rule 7.3, the
authority concerned has to form an opinion as to whether the
Government servant has been fully exonerated and, also,
whether, in the case of suspension, the order of suspension
waswholly unjustified.
It was urged on behalf of the appellant that before the
authority formed such an opinion, it was incumbent upon it
to afford an opportunity to make suitable representations in
thisbehalf. Reliance was placed upon the Judgment of this
Court in M. Gopala Krishna Naidu v. State of Madhya
Pradesh(1). The appellant in that case had been exonerated
of the charges framed against him in a departmental enquiry.
Government held, however, that the appellant’s suspension
and the departmental enquiry instituted against him "were
not wholly. unjustified". The relevant order, after
reinstating the appellant with effect from the date of the
order and directing the appellant’s retirement from the same
date on the ground that he had already attained the age of
superannuation contained a further direction that the entire
period of the appellant’s absence from duty should be
treated as a period spent on duty under Fundamental Rule
54(5) for the purpose of pension only, but that "he should
not be allowed any pay beyond what he had actually received
or were allowed to him by way of subsistence allowance
during the period of his suspension". The appellant in that
case contended that his case really came under Fundamental
Rule 54(2) and not under Fundamental Rule 54(5) and that the
Government should have granted him an opportunity to be
heard before deciding as to the rule which applied to his
case. It was contended on behalf of the Government that the
order regarding allowances was a mere consequential order
and in passing such an order it was not necessary to give a
hearing to the party affected by the order. This Court,
however, held that an order passed under Fundamental Rule,
54 is not always a consequential order or a mere
continuation of the departmental proceeding taken against
the employee. Since consideration under Fundamental Rule 54
depends on facts and circumstances in their entirety and
since the order may result in pecuniary loss to the
Government servant, consideration under the Rule "must be
held to be an objective rather than a subjective function".
Shelat, J. who delivered the judgment of the Court went on
to observe : "The very nature of the function implies the
(1) [1968] 1 S.C.R. 355
331
duty to act judicially. In such a case if an opportunity to
show cause against the action proposed is not afforded, as
admittedly it was not done in the present case, the order is
liable to be struck down as invalid on the ground that it is
one in breach of the principles of natural justice".
We have no doubt in our minds that in this case also justice
and fair play demand that the Government should have given
the appellant a reasonable opportunity to show cause why an
order affecting his pay and emoluments to his prejudice
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should not be made,
The decision in M. Gopala Krishna Naidu’s(l) case had been
cited before the High Court. The High Court, however,
sought to distinguish that case from the instant case on
facts. The High Court held that since in M. Gopala Krishna
Naidu’s(1) case the proceedings had been dropped and the
officer concerned reinstated, he never got an opportunity to
show to the appointing authority that his suspension had
been unjustified and that he was entitled to full pay and
allowances, while-in the instant case the appellant has
already, according to the High Court, received all
reasonable opportunity to show cause against the punishment
that has been meted out against him. With respect, we do
not think that-there is any real difference in substance
between the facts of the instant case and those in M. Gopala
Krishna Naidu’s(l) case. The appellant in the instant case
did not really get an opportunity to defend himself against
Charge 1 (b). It will be remembered that in this case also
the Government abandoned the proceedings against the
appellant with regard to Charge 1(b). Had the proceedings
been completed, it is not altogether impossible that the
appellant would have been exonerated also of that charge
just as he had been exonerated of Charge 1 (a) earlier. To
that extent the appellant did not get any opportunity to
show that the suspension order against him had been
unjustified and that he was, therefore, entitled to full pay
and allowances. From this point of view there is really no
difference between the instant case and the case of Gopala
Krishna Naidu(1).
Besides, the real ratio in M. Gopala Krishna Naidu’s(l) case
was that if an order affects the employee financially, it
must be passed after an objective consideration and
assessment of all relevant facts and circumstances and after
giving the person concerned full opportunity to make out his
own case about that order. In the instantcase the order
unquestionably is one that seriously prejudices theappellant.
We would, further like to add that the fact that eventhe
order of punishment was made without giving
(1) [1968] 1 S.C.R. 355.
4-498Sup. CI/73
332
the appellant a real opportunity to make an effective
representation against it makes the second order affecting
his pay and allowances still more vulnerable.
Mr. Mahajan appearing for the State sought to rely in this
connection upon an unreported decision ’of this Court in
the, State of Assam and Anr. v. Raghava Rajagopalachari(l).
That case was a case dealing with Fundamental Rule 54 which
is more or less similar to Rule 7.3 of the Punjab Civil
Services Rules, under which this second order of 27 February
1967 had been passed by the Governor. The relevant portion
of Fundamental Rule 54 is in the following terms :-
"F.R. 54. When the suspension of a Government
servant is held to have been unjustifiable or
not wholly justifiable; or
When a Government servant who has been dis-
missed, removed or suspended is reinstated;
the revising or appellate authority may grant
to him for the period of his absence from
duty-
(a)if he is honourably acquitted, the full
pay to which he would have been entitled if he
had not been dismissed, removed or suspended
and, by an order to be separately recorded,
any allowance of which he was in receipt prior
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to his dismissal, removal or suspension; or
(b)if otherwise such proportion of such pay
and allowances as the revising or appellate
authority may prescribe.
In a case falling under clause (a) the period
of absence from duty will be treated as a
period spent on duty. In a case falling under
clause (b), it will not be treated as a period
spent on duty unless the revising or appellate
authority so direct."
This Court held that cl. (b) of the Fundamental Rule 54
would be applicable in all cases where the officer concerned
is not honourably acquitted. Since in that case the
Government servant had clearly not been fully exonerated of
the charges levied against him, it was open to Government to
decide what period of absence from duty during the period of
suspension should be treated as period spent on duty and,
also, what proportion of pay and allowances should be given
to him. This decision cannot apply to the instant case for
the simple reason that Government, by withdrawing the
proceedings initiated against the appellant in
(1) Civil Appeals Nos. 1561 and 1562 of 1965 decided by the
Supreme Court on 6 October 1967.
333
respect of Charge 1(b), made it impossible for the appellant
to get himself fully exonerated. Since the appellant had
been exonerated of Charge 1(a) and since Charge 1(b) was
withdrawn, it is impossible for Government to proceed on the
basis as if the appellant has not been fully exonerated or
to assume that the order of suspension was one which was not
wholly unjustified.In that view of the matter, we do not
think that case of the State of Assam and Anr. v. Raghava
Rajagopalachari (supra) can be of any assistance to the
respondents.
In the result this appeal succeeds. The judgment and order
of the High Court- are set aside. The orders dated 27
February 1967 impugned in the appellant’s petition before
the High Court are quashed. The appellant will get the
costs of this appeal as well as the costs incurred below.
S.B.W. Appeal allowed.
334