Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14
PETITIONER:
RAM CHANDER
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT02/05/1986
BENCH:
OZA, G.L. (J)
BENCH:
OZA, G.L. (J)
REDDY, O. CHINNAPPA (J)
SINGH, K.N. (J)
CITATION:
1986 SCC (4) 12 1986 SCALE (1)904
ACT:
Railway Servants (Discipline & Appeal) Rules 1968,
Rule 22(2) - "Consider" - Interpretation of - Duty of
Railway Board to record its findings and pass reasoned
order.
Constitution of India, Art. 311(2) - Tulsiram Patel’s
case - Effect of - Appellate Authority - Duty of - To give
hearing to delinquent servant - Pass a reasoned order in the
departmental appeal.
HEADNOTE:
The appellant who was employed as Shunter, Grade ’B’
was removed from service. The charge against him was that he
was guilty of misconduct in that he had assaulted his
immediate superior. As he did not appear at the enquiry, the
Enquiry Officer proceeded ex-parte and examined witnesses
and found the charge proved. The General Manager agreed with
the report of the Enquiry Officer and came to the
provisional conclusion that the penalty of removal from
service should be inflicted, issued a show cause notice to
the appellant, who in compliance, showed cause but his
explanation was not accepted. The General Manager by an
order dated August 24, 1971 imposed the penalty of removal
from service.
The appellant preferred an appeal before the Railway
Board under rule 18(ii) of the Railway Servants (Discipline
and Appeal) Rules, 1968 but the Railway Board dismissed the
appeal. me High Court also dismissed the writ petition of
the appellant holding that since the Railway Board agreed
with the findings of the General Manager, there was no duty
cast on the Railway Board to record reasons for its
decision. The appellant’s Letters Patent Appeal before a
Division Bench was also dismissed in limine.
Allowing the appeal and remanding the matter to the
Railway Board,
981
^
HELD: 1. The judgment and order of the Single Judge and
that of the Division Bench are both set aside, so also the
impugned order of the Railway Board dated March 11, 1972.
The Railway Board is directed to hear and dispose of the
appeal after affording a personal hearing to the appellant
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14
on merits by a reasoned order in conformity with the
requirements of Rule 22(2) of the Railway Servants
(Discipline and Appeal) Rules, 1968. [999 H; 1000 A-B]
2. Rule 22(2) of the Railway Servants Rules in express
terms requires the Railway Board to record its finding on
the three aspects stated therein. It provides that in the
case of an appeal against an order imposing any of the
penalties specified in rule 6 or enhancing any penalty
imposed under the said Rule, the Appellate Authority shall
’consider’ as to the matters indicated therein. [989 E-F]
2.1 The word ’consider’ has different shades of meaning
and must in rule 22(2), in the context in which it appears,
mean an objective consideration by the Railway Board after
due application of mind which implies the giving of reasons
for its decision. [989 F-G]
In the instant case, the impugned order is just a
mechanical reproduction of the phraseology of rule 22(2)
without any attempt on the part of the Railway Board either
to marshall the evidence on record with a view to decide
whether the finding arrived at by the Disciplinary Authority
could be sustained or not. There is also no indication that
the Railway Board applied its mind as to whether the act of
misconduct with which the appellant was charged together
with the attendant circumstances and the past record of the
appellant were such that he should have been visited with
the extreme penalty of removal from service for a single
lapse in a span of 24 years of service. There being non-
compliance with the requirements of Rule 22(2) of the
Railway Servants Rules, the impugned order passed by the
Railway Board is liable to be set aside. [987 A-D]
3. Dismissal or removal from service is a matter of
grave concern to a civil servant, who after such a long
period of service may not deserve such a harsh punishment.
[987 C-D]
982
State of Madras v. A.R. Srinivasan, A.I.R. [1966 S.C.
1827, Som Datt Datta v. Union of India & Ors., [1969] 2
S.C.R. 176, Tara Chand Khatri v. Municipal Corporation of
Delhi Ors., [1977] 2 S.C.R. 198 and Madhya Pradesh
Industries Ltd. v. Union of India, [1966] 1 S.C.R. 466,
referred to.
4.1 After the constitutional change brought about by
the Forty-Second Amendment the only stage at which now a
civil servant can exercise this valuable right is by
enforcing his remedy by way of a departmental appeal or
revision, or by way of judicial review. [997 E-F]
4.2 A civil servant who has been dismissed, removed or
reduced in rank by applying to his case one of the clauses
of the second proviso to Art. 311(2) or the analogous
Service Rule has two remedies available to him. These
remedies are : t (i) the appropriate departmental appeal
provided for in the relevant Service Rules ; and (ii) if
still dissatisfied, invoking the Court’s power of judicial
review. [997 G-H]
4.3 It is of utmost importance after the Forty-Second
Amendment as interpreted by the majority in Tulsi Ram
Patel’s case that the Appellate Authority must not only give
a hearing to the government servant, but also pass a
reasoned order dealing with the contention raised by him in
the appeal. The duty to give reasons is an incident of the
Judicial process. [999 E-F]
4.4 Reasoned decisions by Tribunals, such as the
Railway Board in the present case, will promote public
confidence in the administrative process. As objective
consideration is possible only if the delinquent servant is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14
heard and given a chance to satisfy the authority regarding
the final orders that may be passed on his appeal.
Considerations of fairplay and justice also require that
such a personal hearing should be given. [999 F-G]
R.P. Bhatt v. Union of India & Ors., (C.A.No. 3165/81
decided on Dec. 14, 1982), Union of India & Anr. v. Tulsiram
Patel, [1985] 3 S.C.C. 398, Secretary, Central Board of
Excise & Customs & Ors. v. R.S. Mahalingam (C.A. No. 1279/86
decided on April 24, 1986 and Satyavir Singh & Ors. v. Union
of India & Ors., [1985] 4 S.C.C. 252, relied upon.
983
5. High Commissioner for India v. I.M. Lall, L.R.
(1947-48) 75 I.A. 225, Khem Chand v. Union of India & Ors.,
[1958] S.C.R. 1080 and Swadeshi Cotton Mills v. Union of
India, [1981] 2 S.C.R. 533, referred to.
The majority decision in Tulsiram Patel’s case seeks to
justify the amendment effected by the Forty-Second Amendment
of c1.(2) of Art. 311 by observing that ’c1.(2) of Art. 311
as originally enacted and the legislative history of that
clause wholly rule out the giving of any opportunity’. The
Court expressed its reservations about the correctness of
this proposition. [992 C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1621 of
1986.
From the Judgment and Order dated 15th February, 1984
of the Delhi High Court in L.P.A. No. 178 of 1983.
M.K. Ramamurthi, M.A. Krishnamoorthy and Mrs. Chandan
for the Appellant.
O.P. Sharma, P.P. Singh and C.V. Subba Rao for the
Respondent.
The Judgment of the Court was delivered by
SEN, J. The central question in this appeal is whether
the impugned order passed by the Railway Board dated March
11, 1972 dismissing the appeal preferred by the appellant,
was not in conformity with the requirements of r.22(2) of
the Railway servants (Discipline & Appeal) Rules, 1968. At
the hearing on February 13, 1986, learned counsel for the
Union of India took time to enable the Railway Board to
reconsider its decision as to the quantum of punishment. At
the resumed hearing on March 13, 1986 we were informed by
the learned counsel that there was no question of the
Railway Board reconsidering its decision. Arguments were
accordingly heard on the question as to whether the impugned
order of the Railway Board was sustainable in law. We heard
the parties and allowed the appeal by order dated March 13,
1986 directing the Railway Board to hear and decide the
appeal afresh on merits in accordance with
984
law in conformity with the requirements of r.22(2) of the
Rules. We now proceed to give reasons therefor.
The facts, the appellant Ram Chander, Shunter, Grade at
Loco Shed Ghaziabad was inflicted the penalty of removal
from service under r.6(viii) of the Railway Servants
(Discipline & Appeal) Rules, 1968 by order of the General
Manager, Northern Railway dated August 24, 1971. The
gravamen of the charge was that the appellant was guilty of
misconduct in that he had October 1, 1969 at 7.30 p.m.
assaulted his immediate superior Banarsi Das, Assistant Loco
Foreman while he was returning after performing his duties.
The immediate cause for the assault was that the appellant
had on September 30, 1969 applied for medical leave for one
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14
day i.e. for October 1, 1969. On that day there was a
shortage of Shunters, he accordingly asked Banarsi Das for
the cancellation of leave and permit the appellant to resume
his duties but Banarsi Das refused to cancel the leave. It
is said that the appellant nursed a grouse against Banarsi
Das because his refusal to permit him to resume his duties
deprived him of the benefit of one day’s additional wages
for October 2, 1969 which was a national holiday. The
Enquiry Officer fixed the date of enquiry on May 11, 1970 at
Ghaziabad. The enquiry could not be held on that date due to
some administrative reasons and was then fixed for the July
11, 1970. The appellant was duly informed of the date but he
did not appear at the enquiry. The Enquiry Officer
accordingly proceeded ex parte and examined witnesses. By
his report dated May 26, 1971, the Enquiry Officer found the
charge proved. The General Manager agreed with the report of
the Enquiry Officer and came to the provisional conclusion
that the penalty of removal from service should be inflicted
and issued a show cause notice dated May 26, 1971. In
compliance the appellant showed cause but his explanation
was not accepted. The General Manager, however, by order
dated August 24, 1971 imposed the penalty of removal from
service. The appellant preferred an appeal before the
Railway Board under r.18(ii) of the Railway Servants
(Discipline & Appeal) Rules, 1968 but the Railway Board by
the impugned order dated March 11, 1972 dismissed this
appeal. Thereafter, the appellant moved the High Court by a
petition under Art. 226 of the Constitution. A learned
Single Judge by his order dated August 16, 1983 dismissed
the writ petition holding that since the Railway Board
agreed with the findings
985
of the General Manager there was no duty cast on the Railway
Board to record reasons for its decision. me appellant
therefore preferred a Letter Patent Appeal, but a Division
Bench by its order dated February 15, 1984 dismissed the
appeal in in limine.
Rule 22(2) of the Railway Servants Rules provided as
follows :
"22(2) In the case of an appeal against an order
imposing any of the penalties specified in Rule 6
or enhancing any penalty imposed under the said
rule, the appellate authority shall consider - C
(a) Whether the procedure laid down in these rules
has been complied with, and if not, whether such
non-compliance has resulted in the violation of
any provisions of the Constitution of India or in
the failure of justice ; D
(b) whether the findings of the disciplinary
authority are warranted by the evidence on the
record; and
(c) whether the penalty or the enhanced penalty
imposed is adequate, inadequate or severe ;
and Pass orders -
(i) confirming, enhancing, reducing or setting
aside the penalty, or F
(ii) remitting the case to the authority which
imposed or enhanced the penalty or to any other
authority with such directions as it may deem fit
in the circumstances of the case :
The duty to give reasons is an incident of the judicial
process. So, in R.P. Bhatt v. Union of India & Ors., (C.A.
No. 3165/81 decided on December 14, 1982) this Court, in
somewhat similar circumstances, interpreting r.27(2) of the
Central Civil Services (Classification, Control & Appeal)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14
Rules, 1965 which provision is in pari materia with r.22(2)
of
986
the Railway Servants (Discipline & Appeal) rules, 1968,
observed :
"It is clear upon the terms of r.27(2) that the
appellate authority is required to consider (1)
whether the procedure laid down in the rules has
been complied with; and if not, whether such non
compliance has resulted in violation of any of the
provisions of the Constitution of India or in the
failure of justice ; (2) whether the findings of
the disciplinary authority are warranted by the
evidence on record ; and (3) whether the penalty
imposed is adequate, inadequate or severe, and
pass orders confirming, enhancing, reducing or
setting aside the penalty, or remit back the case
to the authority which imposed or enhanced the
penalty, etc."
It was held that the word ’consider’ in r.27(2) of the Rules
implied ’due application of mind’. The Court emphasized that
the Appellate Authority discharging quasi-judicial functions
in accordance with natural justice must give reasons for its
decisions. There was in that case, as here, no indication in
the impugned order that the Director-General, Border Road
Organisation, New Delhi was satisfied as to the aforesaid
requirements. The Court observed that he had not recorded
any Findings on the crucial question as to whether the
Findings of the disciplinary authority were warranted by the
evidence on record. In the present case, the impugned order
of the Railway Board is in these terms :
"(1) In terms of rule 22(2) of the Railways
Servants (Discipline & Appeal) Rules, 1968, the
Railway Board have carefully considered your
appeal against the orders of the General Manager,
Northern Railways, new Delhi imposing on you the
penalty of removal from service and have observed
as under :
(a) by the evidence on record, the findings of the
disciplinary authority are warranted ; and
(b) the penalty OF removal From service imposed on
you Is merited.
987
(2) The Railway Board have therefore rejected the
appeal preferred by you."
To say the least, this is just a mechanical
reproduction of the phraseology of r.22(2) of the Railway
Servants Rules without any attempt on the part of the
Railway Board either to marshall the evidence on record with
a view to decide whether the findings arrived at by the
disciplinay authority could be sustained or not. There is
also no indication that the Railway Board applied its mind
as to whether the act of misconduct with which the appellant
was charged together with the attendant circumstances and
the past record of the appellant were such that he should
have been visited with the extreme penalty or removal from
service for a single lapse in a span of 24 years of service.
Dismissal or removal from service is a matter of grave
concern to a civil servant who after such a long period of
service, may not deserve such a harsh punishment. There
being non-compliance with the requirements of r.22(2) of the
Railway Servants Rules, the impugned order passed by the
Railway Board is liable to be set aside.
It was not the requirement of Art. 311(2) of the
Constitution prior to the Constitution (Forty-Second
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14
Amendment) Act, 1976 or of the rules of natural justice,
that in every case the appellate authority should in its
order state its reasons except where the appellate authority
disagreed with the findings of the disciplinary authority.
In State of Madras v. A.R. Srinivasan, A.I.R. [1966] S.C.
1827 a Constitution Bench of this Court while repelling the
contention that the impugned order by the State Government
accepting the findings being in the nature of quasi-judicial
proceedings was bad as it did not give reasons for accepting
the findings of the Tribunal, observed as follows :
"In dealing with the question as to whether it is
obligatory on the State Government to give reasons
in support of the order, imposing a penalty on the
delinquent officer, we cannot overlook the fact
that the discipline proceedings against such a
delinquent officer begin with an enquiry conducted
by an officer appointed in that behalf. That
enquiry is followed by report and the Public
Service Commission is consulted where necessary.
988
Having regard to the material which is thus made
available to the State Government and which is
made available to the delinquent officer also, it
seems to us somewhat unreasonable to suggest that
the State Government must record its reasons why
it accepts the findings of the Tribunal. It is
conceivable that if the State Government does not
accept the findings of the Tribunal which may be
in favour of the delinquent officer and proposes
to impose a penalty on the delinquent officer, it
should give reasons why it differs from the
conclusion of the Tribunal, though even in such a
case, it is not necessary that the reasons would
be detailed or elaborate. But where the State
Government agrees with the findings of the
Tribunal which are against the delinquent officer,
we do not think as a matter of law, it could be
said that the State Government cannot impose the
penalty against the delinquent officer in
accordance with the findings of the Tribunal
unless it gives reasons to show why the said
findings were accepted by it. The proceedings are,
no doubt, quasi-judicial; but having regard to the
manner in which these enquiries are conducted, we
do not think an , obligation can be imposed on the
State Government to record reasons in every case."
Again, in Som Datt Datta v. Union of India & Ors.,
[1969] 2 S.C.R. 176 a Constitution Bench of this Court
rejected the contention that the order of the Chief of the
Army Staff confirming the proceedings of the General Court
Martial under 3. 164 of the Army Act, 1950 and the order of
the Central Government dismissing the appeal of the
delinquent officer under s. 165 of the Act were illegal and
ultra vires as they lid not give reasons in support of the
orders, and summed up the legal position in these words :
"Apart from any requirement imposed by the statute
or statutory rules either expressly or by
necessary implication, there is no legal
obligation that the statutory tribunal should give
reasons for its decision. There is also no general
principle or any
989
rule of natural justice that a statutory tribunal
should always and in every case give reasons in
support of its decision."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14
So also in Tara Chand Rhatri v. Municipal Corporation
of Delhi & Ors.. [1977] 2 S.C.R. 198 this Court observed
that there was a vital difference between an order of
reversal by the appellate authority and an order of
affirmance and the omission to give reasons for the decision
may not by itself be a sufficient ground for passing such
order, relying on the test laid down by Subba Rao, J. in
Madhya Pradesh Industries Ltd.. v. Union of India [1966] 1
S.C.R. 466.
"Ordinarily, the appellate or revisional authority
shall give its own reasons succinctly; but in a
case of affirmance where the original tribunal
gives adequate reasons, the Appellate Tribunal may
dismiss the appeal or the revision, as the case
may be, agreeing with those reasons." D
These authorities proceed upon the principle that in
the absence of a requirement in the statute or the rules,
there is no duty cast on an appellate authority to give
reasons where the order is one of affirmance. Here, r. 22(2)
of the Railway Servants Rules in express terms requires the
Railway Board to record its findings on the three aspects
stated therein. Similar are the requirements under r. 27(2)
of the Central Civil Services (Classification, Control &
Appeal) Rules, 1965. R. 22(2) provides that in the case of
an appeal against an order imposing any of the penalties
specified in r. 6 or enhancing any penalty imposed under the
said rule, the appellate authority shall ’consider’ as to
the matters indicated therein. The word ’consider’ has
different shades of meaning and must in r.22(2), in the
context in which it appears, mean an objective consideration
by the Railway Board after due application of mind which
implies the giving of reasons for its decision. G
After the amendment of c1.(2) of Art. 311 of the
Constitution by the Constitution (Forty-Second Amendment)
Act, 1976 and the consequential change brought about in
r.10(5) of the Railway servants (Discipline & Appeal) Rules,
1968, substituted by the Railway Servants (Discipline &
Appeal)
990
(Third Amendment) Rules, 1978, it is no longer necessary to
afford a second opportunity to the delinquent servant to
show cause against the punishment. The Forty-Second
Amendment has deleted from c1.(2) of Art. 311 the
requirement of a reasonable opportunity of making
representation on the proposed penalty and, further, it has
been expressly provided inter alia in the first proviso to
c1.(2) that :
"Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the
evidence adduced during such enquiry and it shall
not be necessary to give such person any
opportunity of making representation on the
penalty proposed."
After the amendment, the requirement of c1.(2) will be
satisfied by holding an inquiry in which the Government
servant has been informed of the charges against him and
given a reasonable opportunity of being heard. But the
essential safeguard of showing his innocence at the second
stage i.e. after the disciplinary authority has come to a
tentative conclusion of guilt upon a perusal of the findings
reached by the Inquiry Officer on the basis of the evidence
adduced, as also against the proposed punishment, has been
removed to the detriment of the delinquent officer. In view
of the said amendment of Art. 311(2) of the Constitution,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14
r.10(5) of the Railway Servants Rules has been substituted
to bring it in conformity with c1.(2) of Art. 311, is
amended. R. 10(5), as substituted, provides as follows :
"10(5). If the disciplinary authority, having
regard to its findings on all or any of the
articles of charge and on the basis of the
evidence adduced during the inquiry, is of the
opinion that any of the penalties specified in
clauses (v) to (ix) of rule 6 should be imposed on
the railway servant, it shall make an order
imposing such penalty and it shall not be
necessary to give railway servant any opportunity
of making representation on the penalty proposed
to be imposed :
991
Provided that in every case where it is necessary
to consult the Commission, the record of the
inquiry shall be forwarded by the disciplinary
authority to the Commission for its advice and
such advice shall be taken into consideration
before making an order imposing any such penalty
on the railway servant."
We may here mention that a corresponding change in the
Central Civil Services (Classification, Control & Appeal)
Rules, 1965 has been brought by substituting r.15(4) taking
away the procedural safeguard of making a representation at
C the second stage i.e. before imposing punishment on the
basis of the evidence at the inquiry.
In Union of India & Anr. v. Tulsiram Patel, [1985] 3
S.C.C. 398 a five-judge Bench by a majority of 4:1 held that
where a departmental inquiry was wholly dispensed with in
the three situations under the second proviso to Art.
311(2), the only right to make a representation on the
proposed penalty which was to be found in c1.(2) of Art. 311
of the Constitution prior to its amendment having been taken
away by the Constitution (Forty-Second Amendment) Act, 1976,
there is no provision of law under which a Government
servant can claim this right. This Court last week in the
secretary, Central Board of; Excise & Customs & Ors. v. K.S.
Mahalingam (C.A.No.1279/86 decided on April 24, 1986) after
referring to the constitutional changes brought about
observed :
"After the amendment, the requirement of c1.(2)
will be satisfied by holding an inquiry in which
the Government servant has been informed of the
charges against him and given a reasonable
opportunity of being heard."
After the majority decision in Tulsiram Patel’s case,
it can no longer be disputed that the right to make a
representation on the proposed penalty which was to be found
in c1.(2) of Art. 311 of the Constitution having been taken
away by the Forty-Second Amendment, there is no provision of
law under which a Government servant can claim this right.
992
It seems to be purely academic to refer to the vintage
decisions of the Privy Council in High Commissioner for
India v. I.M.. Lall, L.R. [1947-48] 75 IA 225 and that of
this Court in Khem Chand v. Union of India & Ors., [1958]
S.C.R. l080 following it or the plethora of decisions
thereafter which have now become otiose after the Forty-
Second Amendment by which the words ’ a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to him’ were deleted at the end of cl.
(2) of Art. 311 and proviso to cl.(2) substituted, with the
object of doing away with the second opportunity of making
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14
representation at the stage of imposing penalty i.e. at the
conclusion of the inquiry. It is however necessary to refer
to these two decisions briefly with the object of showing
the prejudicial effect on such delinquent Government
servants. More so, because the majority decision in Tulsiram
Patel’s case seeks to justify the amendment effected by the
Forty-Second Amendment of cl. (2) of Art. 311 by observing
that ’cl. (2) of Art. 311 as originally enacted and the
legislative history of that clause wholly rule out the
giving of any opportunity’. We have our own reservations
about the correctness of this proposition. It is not quite
accurate to suggest that the opportunity of showing cause
before a Government servant was dismissed, removed or
reduced in rank was not contemplated by law nor justified by
the legislative history.
In I.M. Lall’s case, Lord Thankerton while interpreting
the words ’ a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him’ Ln
sub-s.(3) of s. 240 of the Government of India Act, 1935
speaking for the Judicial Committee of the Privy Council,
observed :
"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."
(Emphasis supplied)
993
That very distinguished Judge went on to say : A
"It is on that stage reached that the statute
gives the civil servant the opportunity for which sub-s.(3)
makes provision."
And then added :
"Their Lordships would only add that they see no
difficulty in the statutory opportunity being
reasonably afforded at more than one stage. If the
civil servant has been through an enquiry under
Rule 55, it would not be reasonable that he should
ask for a repetition of that stage, if duly
carried out but that would not exhaust his
statutory right, and he would still be entitled to
represent against the punishment proposed as the
result of the findings of the inquiry."
The phrase ’ a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him’
appearing in sub-s. (3) of s. 240 of the Government of India
Act, 1935 was reproduced in cl. (2) of Art. 311 of the
Constitution as originally enacted i.e. prior to its
amendment by the Constitution (Fifteenth Amendment) Act,
1963. It would appear that in the original Art. 311(2) as it
stood before the Fifteenth Amendment, the obligation to
afford an opportunity at two stages, namely, at the stage of
inquiry into the charges and, again, at the stage of
awarding punishment, was not explicitly stated in the
Article itself. It merely required that opportunity must be
given to show cause against the ’action propposed’. As
already stated, the obligation to offer such opportunity at
two stages was however deduced judicially by the Privy
Council in I.M. Lall’s case.
In Khem Chand’s case, the Court following the judgment
of the Privy Council in I.M. Lall’s case came to the same
conclusion from the word ’reasonable’. The Government
servant must not only be given an opportunity but such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14
opportunity must be a reasonable one. In order that the
opportunity to show cause against the proposed action may be
regarded as a reasonable one, it is quite necessary that the
Government servant should have the opportunity, to say, if
that be his
994
case, that he has not been guilty of any misconduct to merit
any punishment at all and also that the particular
punishment proposed to be given is much more drastic and
severe than he deserves. It referred to the above passages
from the judgment of the Privy Council in I.M. Lall’s case,
and observed :
"Further opportunity is to be given to the
Government servant after the charges have been
established against him and a particular
punishment is proposed to be meted out to him."
In short, the substance of the protection provided by Rules,
like r. 55 referred to above, was bodily lifted out of the
rules and together with an additional opportunity embodied
in s.240(3) of the Government of India Act, 1935 so as to
give a statutory protection to the Government servants and
had now been incorporated in Art. 311(2) so as to convert
the protection into a constitutional safeguard. The legal
consequence therefore was that :
"At the second stage, the delinquent Government
servant was therefore entitled to contend -
(a) that the inquiry at which the findings were
arrived at was vitiated by a breach of the
Principles of natural justice.
(b) That the findings were not supported by the
evidence in the proceedings, or that the evidence
against him was not worthy of credence or that he
was not guilty of any misconduct to merit and
punishment at all.
(c) That the punishment proposed could not be
properly awarded on the findings arrived at, that
is to say, the charges proved did not require the
Particular punishment proposed to be awarded."
After Parliament frustrated the attempt of the
Government to delete the constitutional safeguard as evolved
by this Court in Khem Chand’s case following the principles
laid down in the Privy Council decision in I.M. Lall’s case
by deletion of the words ’ a reasonable opportunity of
showing cause
995
against the action proposed to be taken in regard to him’ by
the Constitution (Fifteenth Amendment) Act, 1963, it seems
somewhat strange that after more than a decade the
Government of the day thought it fit to remove this valuable
safeguard by the Forty-Second Amendment. It is particularly
important to notice how closely Members of Parliament
scrutinised the motives of the Government while discussing
the Fifteenth Amendment Bill and it is profitable to read
the debates leading to the passsng of the Fifteenth
Amendment. m ere could scarcely be a better example of the
principle that the constituent powers to amend the
Constitution, however permissible, must be used with
scrupulous attention to their true purpose and for reasons
that are relevant and proper. A determined attempt on the
part of the Government to unsertle the law as laid down by
this Court was successfully frustrated on that occasion.
Although the clause as originally drafted in the Amendment
Bill was deficient insofar as it conferred no express
protection as regards the second stage i.e. the stage of
punishment, but the Fifteenth Amendment Act as passed,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14
introduced the requirement of giving a reasonable
opportunity on the penalty proposed, after the conclusion of
the inquiry into the charges and after a penalty had been
provisionally determined. After considerable debate in
Parliament, Shri Ashok Sen, Law Minister, intervened, in
deference to the concern expressed by Members representing
all sections of the House over the Amendment Bill by which
the Government was seeking to remove the opportunity at the
second stage, and gave an assurance that he would move an
amendment, making it clear that the second opportunity in
regard to the punishment proposed would be retained, but
such opportunity shall be only on the basis of the evidence
adduced during the inquiry. me Government accordingly moved
the following amendment :
"And where it is proposed, after such inquiry, to
impose on him any such penaltty, until he has been
given a reasonable opportunity of making
representation on the penalty proposed, but only
on the basis of the evidence adduced during such
inquiry."
We may recall the words of the law Minister on that
occasion while intervening in the debate on the original
draft:
996
"Now, Sir, as I explained, when the motion was
first before the House and before it went to the
Joint Committee it was never the intention of the
Government to vary rule 25 of the civil service
rules which provided for representation by the
civil servant against the penalty proposed. me
point taken was that in future some irresponsible
Government might do way with rule 25 ignoring the
assurance given to Parliament. Well, then, I told
the representatives of the civil servants and
other representatives of the INTUC who had come to
see me to give me a draft which would make it
quite clear that the representation against the
penalty proposed would not include any right to
insist on further hearing and further evidence
being given. They gave me that draft which I have
accepted with a slight modification.
I, therefore, dispel any idea, if there is any,
that there has been any-deviation from the ideals
of democracy and preservation of the vital rights
not only of civil servants but of the citizens. I
hope we shall never deviate from that course
because it-is our great strength and it is through
the processes of democracy that we are
functioning, not through the processes of fear or
force. (Lok Sabha Debates, 3rd Series, Vol. XVIII,
1963, 4th Session, p. 13152-54).
The Fifteenth Amendment, in fact, clarified the legal
position under the existing law by requiring that
opportunity must be given to the delinquent Government
servant not only at the first stage to be heard in respect
of the charges but also at the second stage i.e. after the
disciplinary authority had come to a tentative conclusion of
guilt at the conclusion of the inquiry and had decided upon
the punishment proposed to be inflicted. It was a necessary
and sufficient safeguard against arbitrary and excessive
executive action written into the Constitution.
Unfortunately, now the Forty-Second Amendment has achieved
what the Fifteenth Amendment could not. By the
constitutional amendment, the Government has taken away the
essential Constitutional safeguard.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14
997
It is a fundamental rule of law that no decision must
be A taken which will affect the rights of any person
without first glving him an opportunity of putting forward
his case. Both the Privy Council as well as this Court have
in a series of cases required strict adherence to the rules
of natural justice where a public authority or body has to
deal with rights. Unfortunately the first proviso to cl. (2)
of Art. 311 has eliminated the rule audi alteram partem at
the second stage i.e. Observance of the rules of natural
justice and the requirement of a reasonable opportunity of
making representation on the proposed action. The question
still remains as to the stage when the delinquent Government
servant would get the opportunity of showing cause against
the action taken against him. Where does he get an
opportunity to exonerate himself from the charge unless he
is allowed to show that the evidence adduced at the inquiry
is not worthy of credence or consideration ? Does he ever
get a right to show that he has not been guilty of any
misconduct so as to deserve any punishment, or that the
charges proved against him are not of such a character as to
merit the extreme penalty of dismissal or even of removal or
reduction in rank and that any of the lesser punishments
ought to have been sufficient in his case ? But we are bound
by the majority decision in Tulsiram Patel’s case.
After the constitutional change brought about it seems
that the only stage at which now a civil servant can
exercise this valuable right is by enforcing his remedy by
way of a departmental appeal or revision, or by way of
judicial review . In Tulsiram Patel’s case, -the majority
decision has pointed out that even after the Forty-Second
Amendment, the inquiry required by c1.(2) of Art. 311 would
be the same except that it would not be necessary to give to
a civil servant an opportunity to make representation with
respect to the penalty proposed to be imposed on him. In
such a case, a civil servant who has been dismissed, removed
or reduced in rank by applying to his case one of the
clauses of the second proviso to Art.311 (2) or the
analogous Service Rule has two remedies available to him.
These remedies are : (i) the appropriate departmental appeal
provided for in the relevant Service Rules, and (ii) if
still dissatisfied, invoking the Court’s power of judicial
review. In Satyavir Singh & Ors. v. Union of India & Ors.,
[1985] 4 S.C.C. 252 there is an attempt made to analyse the
ratio of the majority decision in Tulsiram Patel’s
998
case and the nature of the remedies left to the civil
servant at pp.276-281 of the report. If that be so, in a
case governed by one of the clauses of the second proviso to
Art. 311(2) or an analogous Service Rule, there is still all
the more reason that in cases not governed by the second
proviso, a civil servant subjected to disciplinary
punishment of dismissal, removal or reduction in rank under
cl. (2) of Art. 311 would have these remedies left to him.
Virtually this is tantamount to a post-decisional hearing.
There has been considerable fluctuation of judicial opinion
in England as to whether a right of appeal is really a
substitute for the insistence upon the requirement of a fair
hearing or the observance of natural justice which implies
’the duty to act judicially’. Natural justice does not
require that there should be a right of appeal from any
decision. This is an inevitable corollary of the fact that
there is no right of appeal against a statutory authority
unless the statute so provides. Professor H.W.R.Wade in his
Administrative Law, 5th edn., at p. 487 observed :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14
"Whether a hearing given on appeal is an
acceptable substitute for a hearing not given, or
not properly given, before the initial decision is
in some cases an arguable question. In principle
there ought to be an observance of natural justice
equally at both stages.... If natural justice is
violated at the first stage, the right of appeal
is not so much a true right of appeal as a
corrected initial hearing: instead of fair trial
followed by appeal, the procedure is reduced to
unfair trial followed by fair trial."
After referring to Megarry, J.’s dictum in a trade union
expulsion case holding that, as a general rule, a failure of
natural justice in the trial body cannot be cured by a
sufficiency of natural justice in the appellate body, the
learned author observes :
"Nevertheless it is always possible that some
statutory scheme may imply that the ’appeal’ is to
be the only hearing necessary."
Professor de Smith at pp. 242-43 refers to the recent
greater readiness of the Courts to find a breach of natural
justice ’cured’ by a subsequent hearing before an appellate
999
tribunal. In Swadeahi Cotton Mills v. Union of India, [1981]
2 S.C.R. 533 although the majority held that the rule of
audi alteram partem was not excluded from s.18A(1)(a) of the
Industrial Undertakings (Development and Regulation) Act,
1951, Chinnappa Reddy, J. dissented with the view and
expressed that the expression ’immediate action’ may in
certain situations mean exclusion of the application of the
rules of natural justice and a post-decisional hearing
provided by the statute itself may be a sufficient
substitute. It is not necessary for our purposes to go into
the vexed question whether a post-decisional hearing is a
substitute of the denial of a right of hearing at the
initial stage or the observance of the rules of natural
justice since the majority in Tulsiram Patel’s case
unequivocally lays down that the only stage at which a
Government servant gets ’a reasonable opportunity of showing
cause against the action proposed to be taken in regard to
him’ i.e. an opportunity to exonerate himself from the
charge by showing that the evidence adduced at the inquiry
is not worthy of credence or consideration or that the
charge proved against him are not of such a character as to
merit the extreme penalty of dismissal or removal or
reduction in rank and that any of the lesser punishments
ought to have been sufficient in his case, is at the stage
of hearing of a departmental appeal. Such being the legal
position, it is of utmost importance after the Forty-Second
Amendment as interpreted by the majority in Tulsiram Patel’s
case that the Appellate Authority must not only give a
hearing to the Government servant concerned but also pass a
reasoned order dealing with the contentions raised by him in
the appeal. We wish to emphasize that reasoned decisions by
tribunals, such as the Railway Board in the present case,
will promote public confidence in the administrative
process. An objective consideration is possible only if the
delinquent servant is heard and give a chance to satisfy the
Authority regarding the final orders that may be passed on
his appeal. Considerations of fairplay and justice also
require that such a personal hearing should be given.
In the result, the appeal must succeed and is allowed.
The judgment and order of a learned Single Judge of the
Delhi High Court dated August 16, 1983 and that of the
Division Bench dismissing the Letters Patent Appeal filed by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14
the
1000
appellant in limine by its order dated February 15, 1984 are
both set aside, so also the impugned order of the Railway
Board dated March 11, 1972. We direct the Railway Board to
hear and dispose of the appeal after affording a personal
hearing to the appellant on merits by a reasoned order in
conformity with the requirements of r.22(2) of the Railway
Servants (Discipline & Appeal) Rules, 1968, as expeditiously
as possible, and in any event, not later than four months
from today.
A.P.J. Appeal allowed.
1001