Full Judgment Text
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PETITIONER:
SHADI LAL GUPTA
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT07/03/1973
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
DUA, I.D.
VAIDYIALINGAM, C.A.
CITATION:
1973 AIR 1124 1973 SCR (3) 637
1973 SCC (1) 680
ACT:
Punjab Civil Service (Punishment and Appeal) Rules 1952-Rule
8--Appellant charge sheeted for disobedience to superiors
and for negligence of duty-Personal hearing was, given to
him but no copy of the enquiry officer’s report given to
appellant--whether the Rule was vitiated and the principle
of natural justice violated.
HEADNOTE:
Appellant was a Clerk in the Treasury at Ludhiana., He filed
a suit for three different reliefs to which only one that
now survives is regarding the order withholding his
increment for one year with cumulative effect. On 10-11-61
he was charged sheeted on the ground that he was disobedient
to his superior and negligent in the discharge of his duties
and a few specific instances of his carelessness and
negligence were mentioned in the chargesheet. Thereafter the
appellant submitted his explanation and a personal hearing
was also given to him by the authorities. The appellant com-
plained that he was not given any opportunity to adduce any
evidence in defence and no prosecution witnesses were
examined in his presence. The contentions of the appellant
are that (i) by the failure to give him a copy of the report
of the Treasury Officer who made a local inquiry, and taking
it into consideration behind his back, be has been pre-
judiced and (ii) Rule 8 of the Punjab Civil Services
(Punishment and Appeal) Rules 1952 has been contravened.
Rule 8 provides, inter alia, that no order for censure,
withholding of increments, recovery from pay of any
pecuniary loss to the Govt., shall be passed imposing a
penalty on a Govt. Servant, unless he has been given to
make,- and such representation has been taken into
consideration. Dismissing the appeal.
HELD : (i) Under Rule 8 of the Punjab Civil Service
(Punishment and Appeal) Rules 1952, the only requirement is
that the officer concerned should be given an adequate
opportunity of making any representation that he may desire
to make. There is no provision for examination of witnesses,
cross examination of witnesses and furnishing a copy of the
report of the enquiry officer etc. He need not be told about
the punishment which is sought to be imposed on him, either
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at the time the chargesheet was served on him or at any
other stage. In the present case, these was, no failure to
follow the relevant rules, which only require that the
officer concerned should have an opportunity of making a
representation in respect of the charges made against him
and the officer concerned had an opportunity to make a
representation and his representation was considered by the
authorities in taking disciplinary action against him.
(ii The rules of natural justice have also not been violated
in the present case. The requirements of the rules of
natural justice are :-(a) the person accused should know the
nature of the accusation made; (b) that he should be given
an opportunity to state his case; and (iii) that the
tribunal should act in good faith Byrne & another v.
Kinematograph Rentery Society Ltd., [1958] A.E.R. 579,
referred, to. [646 A-B]
638
(iii)In any proceedings even by a domestic tribunal, the
rules of natural justice would have to be observed; but the
principles to be applied would depend upon the circumstances
of each case.
(iv)In the present case, the principle of natural justice
had not been violated because the appellant was not given an
opportunity to make a representation. in respect of the
Treasury Officer’s report. When the authorities wanted a
local enquiry to be made, it was with a view to check up
with records the representation made by the appellant. The
report does not add one single instance more than what is
already found in the allegations. If the report had
contained any material extraneous to the charges against the
appellant then only he could be said to have been
prejudiced. The report merely sets up the evidence in
support of the allegation,,;. Therefore. the appellant has
not been prejudiced by the Treasurv Officer’s report being
taken into consideration before the order of punishment was
passed against the petitoner. [646 H; 647 A-B]
JUDGMENT:
CIVIL APPELATE JURISDICTION : Civil Appeal No. 1527 of 1971.
Appeal by special leave from the judgment and order dated
October 12, 1970 of the Punjab and Haryana High Court at
Chandigarh in Regular S.A. No. 1370 of 1969.
G. L. Sanghi, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the Respondent.
The Judgment of the Court was delivered by-
ALAGIRISWAMI, J.-This appeal is by way of special leave
against the judgment of the High Court of Punjab and Haryana
dismissing the Second Appeal filed by the appellant. He was
a clerk in the Treasury. at Ludhiana. He filed the suit out
of which this appeal arises for three different reliefs out
of which the only one that now survives is regarding the
order withholding his increment for one year with cumulative
effect.
The sole point raised on behalf, of the appellant before the
High Court. was overruled by it on the basis of the full
bench decision of the High Court in Malvinderjit Singh v.
The State of Punjab & Ors.(1) which overruled the decision
in Kalyan Singh v. The State of Punjab(2).
This is perhaps the first case that comes to this Court in
the matter of a minor punishment. The appellant relied upon
the decision of this Court in B. D. Gupta v. State of
Haryana(1), the facts of which art rather complicated; and
are unnecessary for the purpose of this case. One of the
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points that arose in that case was regarding the minor
punishment of censure, though it was ail incidental one in
an appeal which involved a much more important question. It
was held that the show cause notice in that case did
(1) (1970) 2 I.L.R. (Punjab) 580.
(2) (1967) 2 I.L.R. (Punjab) 471.
(3) A.I.R. 1972 (S.C.) 2472.
639
not give the appellant (the aggrieved Government servant)
any real opportunity to defend himself. That is not the
case here.
The charge-sheet served on the appellant on 10-11-61 was to,
the following effect :
"(i)That you have been careless and negligent
in the performance of your ditties at Sub-
Treasury, Sirhind, as per concrete instances
mentioned in the enclosed statement of
allegations.
(ii)That you have been disobedient to the
Assistant Treasury Officer, Sirhind."
and an elaborate statement of allegations was enclosed
alongwith the charge-sheet, which is set out, below
STATEMENT OF ALLEGATIONS
"While Shri Shadi Lal Gupta, Clerk, Sangrur
Treasury, was working as Routine Clerk,
Sirhind Sub-Treasury, he had been disobedient
to the Assistant Treasury Officer. Sirhind
and negligent in the discharge of his duties,
and a few instances of his carelessness,
negligence and disobedience are given below
1.Shri Shadi Lal Gupta was allotted the work
of passing Deposit Repayment Orders issued by
the Courts and it was found vide some
instances quoted below that he calculated
wrong balances in the Deposit Receipt
Registers which were likely to cause over-
payment in certain cases And refusal to make
payment in other cases at some later stage.
(a) While passing DRO No. 17, dated 15th
November, 1960 on. 18-11-1960 the balance was
calculated ’by him as Rs. 327.60 instead of
Rs. 317.60 N.P.
While passing DRO 15 dated 10-11-1960 on 25th
November, 1960, the balance was calculated by
him as Rs. 56-44 N.P. instead of Rs. 56.33
N.P.
(c) In the said DRO 1 5 dated 10- 11-1960 pas-
sed on 25-11-1960 the amount to be paid was
entered by him as Rs. 74 only instead of Rs.
74.11 N.P.
(d) While passing payment of Rs. 131.06 N.P.
in respect of DRO 17 dated 15-11-1960 on
18-11-1960 the balance in the deposit receipt
Register was calculated by him as Rs. 595.23
N.P. instead of Rs. 495.23 N.P.
640
(e) In passing payment of Rs. 28.71 N.P.
relating to DRO 23 dated 5-12-1960 on 7-12-
1960 the balance was worked out by him as Rs.
261.71 N.P. instead of Rs. 281.71 N.P.
(f) The passing payment of Rs 1562.70 N.P. in
respect of DRO 124 dated 8-11-1960 repaid on
9-11-1960 the actual payment was shown as Rs.
1600/- in the deposit receipt register.
2. He passed cheque No. 335553 dated 13-11-
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1960 on 15-11-1960 without verifying the
particulars of the cheque in question as the
cross entry of the cheque was wrong and he did
not point it out, Similarly cheque No. 395202,
dated 21-11-1960 for Rs. 126/- was passed on
24-11-1960 by him without verifying the
identifier of the payee, as neither he asked
him to produce his half of the P.P.O. quoted
by him in his identification nor did he
confirm the fact from the Sub-Treasury record.
3. Inward letter No. 419 and 430 were received
from the Deputy Commissioner, Patiala on 6-12-
1960 which remained undisposed of by him till
3-1-1961. Letter No. 695, dated 14-11-1960
regarding verification of credits received
from the N.T. (Recovery) was not disposed of
by him till 3-1-1961. He also did not diarise
them.
4. On 30-12-1960, the Assistant Treasury
Officer asked him verbally to attend office on
31-12-1960 to clear arrears on his seat. He
refused to do so. Thereon he gave him.
written orders to that effect and he refused
to note them. Again he asked him to record
his refusal in black and white but he declined
even to do so.
5. He refused to write-up the Assistant
Treasury Officer’s set of Double Lock
registers on his ordering him to do so as is
evidenced by the fact that when he asked him
even in writing on 13-1-1961, after obtaining
Treasury Officer Patiala’s orders to write up
his set of double lock registers, he stated in
his application dated 16-1-1961 that he had no
objection to carry out the work under protest
for some days upto the decision of the
Treasury ’Officer, Patiala.
641
.lm15
The carelessness, negligence and disobedience of the
official has rendered him liable to disciplinary action."
Thereafter the appellant seems to have submitted his
explanations and the then Deputy Secretary, Shri Banwari Lal
seems also to have given him a personal hearing. The
appellant complained that he was not given any opportunity
to adduce any evidence in defence and no prosecution
witnesses were examined in his presence. Shri Banwari Lal
seems to have felt it necessary to have, a local enquiry
and, therefore, asked the Treasury Officer to send a report
after a local enquiry. One of the complaints of the
appellant was that these proceedings were started because
one Yash Pal Kaura, the Treasury Officer was inimical
disposed towards him. But we consider that point irrelevant
because how the proceedings came to be initiated would not
in any way affected the validity or otherwise of the
disciplinary proceedings. The: Treasury Officer who sent up
the report, ’after the local enquiry,, was another person.
Two contentions were urged on behalf of the appellant
(1) that by the failure to give him copy of the report of
the Treasury Officer and taking it into consideration behind
his back, he has been prejudiced; and
(2) Rule 8 of the Punjab Civil Services (Punishment and
Appeal) Rules 1952 has been contravened.
Under Rule 4 of the above rules the following penalties
may,.for good and sufficient reason be imposed
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(i) Censure;
(ii) Withholding of increments or promotion,
including stoppage at an efficiency bar, if
any;
(iii) Reduction to a lower post or time-scale,
or to a lower stage in a time scale;
(iv) Recovery from pay of the whole or part of
any pecuniary loss caused to Government by
negligence of breach or order;
(v) Suspension;
(vi) Removal from the Civil Service of the
Government which does not disqualify from
future employment.
(vii) Dismissals from the Civil Service of the
Government which ordinarily disqualifies from
future employment;
642
Rule 8 is to the following effect
"8. Without prejudice to the provisions of
Rule 7, no order under clauses (i), (ii), or
(iv) of Rule 4 shall be passed imposing a
penalty on a Government servant, unless he has
been given an adequate opportunity of making
any representation that be, may desire to
make, and such representation has been taken
into consideration."
There are two provisos to the rule which it is unnecessary
to set out for the purposes of this case. Under this rule
the only ,requirement is that the officer concerned should
’be given an adequate opportunity of making any
representation that he may desire to make. There is no
provision for examination of witnesses, ,cross examination
of witnesses and furnishing a copy of the report, all
requirements which we find in Rule 7. Therefore, in this
case if the punishment had been imposed after the charge-
sheet had been served on the appellant and he had made his
representation ,and also been personally heard by Banwari
Lal, it would have been perfectly legal. Rule 8 does not
require anything more than that the allegations on the
basis, of which the officer concerned is charged should be
made known to him and he should be given ,an opportunity to
make any representation with regard to them. He need not be
told the punishment which is sought to be imposed ,on him,
either at the time the chargesheet is served on him or any
other stage. There is no question of his being given an
opportunity a second time after the enquiry is. completed in
respect of the punishment sought to be imposed on him unlike
in a case covered ,,by Rule 7.
Rule 7 of these Rules deals with cases where the major
punishment of dismissal, removal or reduction in rank are
proposed to be imposed and sub-rule 6 of that rule
specifically provides that in such a case after the
punishing authority has arrived at a provisional conclusion
in regard to the penalty to be imposed, the accused officer
shall be supplied with a copy of the report of the
enquirying authority and be called upon to show cause
against the particular penalty proposed to be inflicted on
Wm. The words " without prejudice to the provisions of rule
7" occurring at the beginning of Rule 8 are sought to be
taken advantage of to contend that even in the case of minor
punishments referred to in that rule, of censure,
withholding of increments and recovery from pay, an
opportunity should be given to show cause against the
punishment proposed to be imposed. Those words do not fit
in in the context and cannot mean that in a case of minor
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punishment not only the provisions of rule 8 but also the
provisions of rule 7 should be followed. The rules must be
interpreted in their proper setting and if so interpreted,
those words would not bear the interpretation
643
sought to be placed on them. The provisions of rule 7 are
necessitated by the provisions of Article 311(2) of the
Constitution. As far as other punishments are concerned,
the only right which a Government servant is entitled to is
that the action proposed should-be in accordance with the
rules made under the proviso to Article 309. That rule,
rule 8 does not contemplate anything more than an adequate
opportunity of making a representation. We are, therefore,
unable to, accept this contention.
We shall now consider some of the decisions cited before us.
It is first necessary to refer to the decision in Kalyan
Singh v. The State of Punjab (supra) which has been
overruled by the Full Bench in Malvinderjit Singh v. The
State of Punjab & Anr. (supra). The High Court was not
quite right in dismissing the appellant’s appeal on the
basis, of Malvinderjit Singh’s case. Kalyan Singh’s case was
overruled only as regards the question whether a copy of the
report of the Vigilance Department on the basis of which
proceedings were initiated, should be given to the concerned
officer or not. We are not concerned with that question in
this case. But the Full Bench also dealt with the question
of the procedure to be adopted in the case of imposition of
minor punishment and it held:
"(a) that for the minor punishment to _public
servants for their misconduct the authorities
have designedly provided for a simple and
summary procedure of representations only,
untrammalled by any furnishing of copies of
documents or material on which the allegations
are based or the right of cross-examination or
the right of leading defence evidence which
are all provided in the case of enquiries qua
major punishments. The furnishing of
documents as provided for in rules 7 and 9 of
the Punjab Civil Services (Punishment and
Appeal) Rules, 1952, stands excluded under
rule 8. Basically
the right to secure copies of documents or
other specific material is a procedural right
which accrues if it is so granted in express
terms by a statute. Nobody can be said to
have any inherent right to secure copies or to
have any access to confidential State records.
Such a right can only be a creature of a
statute. On an overall view of the specific
language of rule 8 of the Rules, its setting
in the relevant rules and the scope and ambit
thereof all collectively tend to negative any
such procedural right.
(b) That the words ’adequate opportunity’ in
the context of rule 8 of the Rules may mean-no
more than an adequacy of time to make a
representation which alone is guaranteed by
rule 8. It is possible to place
644
such a limited meaning upon these words, but
even if a more liberal construction is placed,
these words cannot be elongated enough to
create a specific procedural right to secure
copies and materials. Moreover, the adequacy
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of opportunity to make representation under
rule 8 cannot possibly imply a larger right
than what has been judicially interpreted to
be the basic requirements of a reasonable
opportunity of being heard or to show cause
against specific allegations.
(c) That under rule 8 of the Rules, unlike
rule 7, the employee has only one opportunity
of making a representation. No enquiry need
be conducted as under rule 7 and no evidence
need be recorded in the presence of the
employee. It is open to the punishing
authority to collect any material either
itself or through any specialised agency like
the Vigilance Department to acquaint itself
with the real facts in order to take a
decision whether any action is to be taken
against the employee, and, if so, what action
is to be taken. But if such an enquiry is
made arid material is collected on the basis
of which a prejudicial view is taken against
the employee ,and he is chargesheeted under
rule 8 with a view to impose one of the three
minor punishments, then the employee is
entitled to an adequate opportunity to make a
representation to show that (1) he is not
guilty and (2) that the proposed punishment
should not be imposed on him, being excessive.
It would be impossible for an employee to make
such a representation unless it is made known
to him the material on the basis of which it
has been decided that he is guilty and that
the particular punishment be imposed on
him...... Without being supplied with such a
material he cannot make an effective and real
representation. The only case in which the
punishing authority would be justified in
withholding such a material, would be where
under the second proviso to rule 8, sufficient
reasons are recorded in writing to the effect
that it is not practicable to observe the re-
quirements of the rule and that this can be
done without injustice to the officer
concerned.
(d) That the words ’adequate opportunity in
the context of rule 8 of the Rules connote
"reasonably sufficient opportunity" in every
respect, to make a representation against the
action sought to be taken against the
employee. Before an employee can be said to
have had this ’adequate opportunity’, the
employee has to be told the charges of
misconduct and then he must have an
opportunity to be heard in answer to those
charges."
645
The case in R. D. Rawa v. State(1) was also noticed in the
above Full Bench decision., In that case two charges were
made against Rawal and one of the charges was held not
established. Another charge, was on the basis that certain
action taken by him wag malafide The malafides were held
not established but the impugned order withholding one
increment was passed on the ground that some lapses on his
part had resulted in excess payment to a contractor. This
order was set aside by the High Court. That decision could
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be explained on the basis that the officer concerned did not
have an opportunity of showing that there was no lapse on
his part.
We may also refer to the decision in Roop Lal v. State of
Punjab (2) of the Punjab and Haryana High Court.
The ratio of decision in that case is stated as follows
"in the present case if the procedure under
rule 7 of the Rules had been followed and
instead of a major punishment a minor
punishment had been inflicted, no fault could
be found therewith but if no enquiry was held
as envisaged under rule 7 ibid and the minor
punishment was proposed to be inflicted under
rule 8 thereof, then the procedure prescribed
under rule 8 had to be followed."
We thus come to the conclusion that there was no failure in
this case to follow the relevant rules, which, as we have
already indicated, only require that the officer concerned
should have an opportunity of making a representation in
respect of the charges made against him. This- leaves the
question of whether any principles of natural justice have
been violated in this case.
The rules of natural justice would undoubtedly have to be
observed in any proceedings even by a domestic tribunal.
But the principles of natural justice to be applied would
depend upon the circumstances of each case. In Suresh v.
Kerala University(3) this Court pointed out that the
question whether the requirements of natural justice have
been met by the procedure adopted must depend to a great
extent on the facts and circumstances of the case in point,
the constitution of the Tribunal and the rules under which
it functions. After referring to the decisions in Russel
v.Duke of Norfolk & Ors., (4 ) Local Government Board v.
Alridge(3) and De Verteuil v. Knaggs & Anr.(6) this Court
also referred to the observations of Lord Harman, J. in
Byrne & Anr. v. Kinematograph Renters Society Ltd.(7) to the
following effect
(1) 1967 C.L.J. 439. (2) 1971 (1) S.L. R. 41.
(3) [1969] 1 S.C.R. 317. (4) 1949 I All F.R. 108 at 119.
(5) [1915] A.C. 120. (6) [1918] A.C. 557.
(7) [1958] All E.R. 579.
646
"What , then, arc, the requirements of natural
justice in a case of this kind ? First, I
think that the person accused should know the
nature of the accusation made; secondly that
he should be given an opportunity to state his
case; and thirdly, of course, that the
tribunal should act in good faith. I do not
think that there really is anything more:’
and went on to Jay down the same principle in its own words
"Suffice it to say that in the case before us
there was a fair inquiry against the
appellant; the officer appointed to inquire
was an impartial person; he cannot be said to
have been biassed against the appellant; the
charge against the appellant was made known to
him before the commencement of the inquiry;
the witnesses who gave evidence against him
were examined in his presence and he was
allowed to cross-examine them and lastly he
was given every opportunity to present his
case before the Inquiry Officer. Hence we see
no merit in the contention that there was any
breach of the principles of natural justice.
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It is true that the Vice-Chancellor did not
make available to the appellant a copy of the
report submitted by the Inquiry Officer.
Admittedly the appellant did not ask for a
copy of the report. There is no rule requir-
ing the Vice-Chancellor to, provide the
appellant with a copy of the report of the
Inquiry Officer before he was called upon to-
make his representation against the provi-
sional decision taken by him. If the
appellant felt any difficulty in making his
representation without looking into the report
of the Inquiry Officer, he, could have, very
well asked for a copy of that report. His
present grievance appears to be an after
thought and we see no substance in it."’
As we have indicated earlier, if Shri Banwari Lal had
imposed the punishment after he had given a hearing to the
appellant, the order would have been perfectly legal and it
could not have been said that any principle of natural
justice had been violated. The criteria indicated above
would have been satisfied. But what is urged before us in
this case is that as the report of the Treasure Officer,
which we have already referred to earlier, was taken into
consideration without showing, it to the appellant he has
been seriously prejudiced and the principles of natural
justice have been violated in so far as he has not had an
opportunity of making his representation in respect of that
report. We find no substance in this contention. When Shri
Banwari Lal wanted a local enquiry to be made he apparently
wanted the representations made by the .appellant to be
checked up with the records and that is what has
647
been done as is clear from a comparison of the allegations
on the basis of which the chargesheet was served on the
petitioner, and the report of the Treasury Officer. We have
carefully one through it and it does not add one single
instance more than what is already found in the allegations.
It merely sets out the evidence in support of these
allegations. We are, therefore, of the opinion that the
appellant has not been in any way prejudiced by the Treasury
Officer’s report being taken into consideration before the
order of punishment was passed against the petitioner. If
before the Treasury Officer had sent his report he had
’associated the appellant in the enquiry he held it would
not have been necessary to give him a copy of the report he
sent. If the report had contained any material extraneous
to the charges against the appellant, or any thing in
addition to what is found in the original allegations
against him then only he could be said to have been pre-
judiced. In the decision of the Judicial Committee in B.
Surinder Singh Kanda v. Government of the Federation of
Malaya(1) noticed in Suresh v. Kerala University (Supra) a
report made by the Board, which held the preliminary
inquiry, which was highly prejudicial to Kanda had been
placed in the hands of the officer who held the formal
enquiry was not made available to Kanda. That report was
likely to have prejudiced the Inquiry Officer and the
Judicial Committee held that the enquiry was not fair.
There is no question in this case of the Treasury Officer’s
report having prejudiced the punishing officer, Mr. D. D.
Sharma. The application of the principles of natural
justice is not a question of observance of a formula or a
mere technicality. In essence it is meant to assure that
the party concerned has an opportunity of being heard, the
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principle of audi alteram partam. Whether in any particular
case it has been violated will depend on the facts and
circumstances of that case. It is not to be considered that
unless all the procedure of the courts are observed it would
mean failure to observe the principles of natural justice.
We are of the opinion that no principles of natural justice
have been violated in this case. We think it useful in the
circumstances of this case to refer to the observations made
by this Court in Suresh’s case to the effect
"There seems to be an erroneous impression in
certain quarters evidently influenced by the
provisions in Art. 311 of the Constitution
particularly as they stood
(1) [1962] A.C. 332.
648
before the amendment of that article that every disciplinary
proceeding must consist of two inquiries, one before issuing
the show cause notice to be followed.by another inquiry
thereafter. Such is not the requirement of the principles
of natural justice. Law may or may not prescribe such a
course. Even if a show cause notice is provided by law from
that it does not follow that a copy of the report on the
basis of which the show cause notice is issued should be
made available to the person proceeded against or that
another inquiry should be, held thereafter.’,
In the result this appeal is dismissed.
S.C. Appeal dismissed
349