Full Judgment Text
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PETITIONER:
HUKUM CHAND MALHOTRA
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT:
12/12/1958
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
HIDAYATULLAH, M.
CITATION:
1959 AIR 536 1959 SCR Supl. (1) 892
CITATOR INFO :
RF 1971 SC2004 (10)
RF 1980 SC1650 (7)
ACT:
Government Servant-Acceptance of Private employment without
Government’s sanction-Show cause notice-Proposal of
alternative Punishment-Legality of notice-Validity of order
of removal from service-Constitution of India, Art. 311(2).
HEADNOTE:
The appellant, a Government servant, was charged with
having, contrary to the rules governing the conditions of
his service, accepted private employment without sanction of
Government while he was still in Government service. The
Officer who held an enquiry against him found the charge to
be true and submitted a report. On April 14, 1954, a notice
was issued to the appellant asking him to show cause in
accordance with the provisions of Art. 3II(2) of the
Constitution in the following terms:........... On a careful
consideration of the report, and in particular of the
conclusions reached by the Enquiring Officer in respect of
the charges framed against you, the President is
provisionally of opinion that a major penalty, viz.,
dismissal, removal or reduction should be enforced on you.
Before he takes that action, he desires to give you an
opportunity of showing cause against the action proposed to
be taken......... The appellant then showed cause and on
October 1, 1954, the President passed an order removing the
appellant from service with effect from that date. It was
contended for the appellant, inter alia, that the show cause
notice dated April 14, 1954, stated all the three
punishments mentioned in Art. 311(2) and that inasmuch as it
did not particularise the actual or exact punishment
proposed to be imposed on the appellant, the notice did not
comply with the essential requirements of Art. 311(2) and,
therefore, the final order of removal passed on October,
1‘954, was not a valid order.
Held, that the show cause notice dated April 14, 1954, did
not contravene the provisions of Art. 311(2) of the
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Constitution.
There is nothing wrong in principle in the punishing
authority tentatively forming the opinion that the charges
proved merit any one of the three major penalties and on
that footing asking the Government servant concerned to show
cause against the punishment proposed to be taken in the
alternative in regard to him, because it gives the
Government servant better opportunity to show cause against
each of those punishments being inflicted on him, which he
would not have had if only the severest punishment had been
mentioned and a lesser punishment not mentioned in the
notice had been inflicted on him.
893
High Commissioner for India and High Commissioner for
Pakistan v. I. M. Lall, (1948) L.R. 75 I.A. 225 and Khem
Chand v. Union of India, [1958] S.C.R. 1080, explained.
Jatindra Nath Biswas v. R. Gupta, (1953) 58 C.W.N. 128;
Dayanidhi Rath v. B. S. Mohanty, A.I.R. 1955 Orissa 33 and
Lakshmi Narain Gupta v. A. N. Puri, A.I.R. 1954 Cal. 335,
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 288 of 1958.
Appeal by Special Leave from the judgment and order dated
December 3, 1956, of the Punjab High Court (Circuit Bench)
at Delhi in Letters Patent Appeal No. 25-D of 1956, arising
out of the judgment and order dated April 9, 1956, of the
said High Court (Circuit Bench) at Delhi in Civil Writ No.
8-D of 1955.
N. C. Chatterjee and R. S. Narula, for the appellant.
M. C. Setalvad, Attorney-General for India, B. Sen and T.
M. Sen, for the respondent
1958. December 12. The Judgment of the Court was delivered
by
S. K. DAS, J.-This is an appeal by special leave and the
only question for decision is if the order of the President
dated October 1, 1954, removing the appellant from service
with effect from that date is invalid, as claimed by the
appellant, by reason of a contravention of the provisions of
Art. 311(2) of the Constitution.
The short facts are these. The appellant stated that he
joined permanent Government service on April 4, 1924. In
1947, before partition, he was employed as Assistant
Secretary, Frontier Corps of Militia and Scouts in the then
North-Western Frontier Province, under the administrative
control of the External Affairs Department of the Government
of India. The appellant stated that the post which be held
then was a post in the Central Service, Class 11. After
partition, the appellant opted for service in India and was
posted to an office under the Ministry of Commerce in the
Government of India in October, 1947. In December, 1949, he
was transferred to the office of the Chief Controller of
Imports, New Delhi, to clear off certain arrears of work.
In August, 1951, he was posted as
894
and Deputy Chief Controller of imports, Calcutta, and
continued to work in that post till September, 1952. He
then took four months’ leave on average pay and on the
expiry of his leave on January 24, 1953, he was transferred
as Section officer in the Development Wing of the Ministry
of Commerce. The appellant thought that the order amounted
to a reduction of his rank and lie made certain
representations. As these representations bore no fruit, he
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applied for leave preparatory to retirement on February 6,
1953. In that application the appellant stated:
Normally I am due to retire in April 1956 but I find it
difficult to reconcile myself to the new conditions of
service under which I am now placed to work. I find that I
would not be wasting only myself but I would also not be
doing full justice to the’ interest of my Government and
country in my present environment. Under the circumstances,
I pray that I may be permitted to retire from the 1st May,
1953."
On February 14, 1953, the appellant amended his leave
application and said that he had been informed by the I
-Administrative Branch of the Development Wing that the
question of permission to retire was under consideration,
because of some difficulty with regard to the inclusion in
the service of the appellant the period during which he held
the, post of Assistant Secretary, Frontier Corps; therefore
be said that he might be granted leave on full average pay
for four months with effect from February 15, 1953, if the
decision to give him permission to retire was likely to be
postponed beyond May 1, 1953. He amended his leave
application by making the following prayer:
" Leave may be sanctioned for four months from. the 15th
February, 1953, or up to the date from which I am permitted
to retire whichever may be earlier ".
On March 10, 1953, the appellant was informed that
he could not be allowed to retire at that stage, but the
Ministry had agreed to grant him leave from February 16, 19
3, to April 30, 1953. The appellant then went on leave and
on February 25, 1953, he
895
wrote to Government to say that he was contemplating to join
the service of Messrs. Albert David & Co. Ltd., Calcutta,
and for that purpose he was accepting a course of training
in that Company for two months. In April, 1953, the
appellant accepted service under Messrs. Albert David & Co.
Ltd., and he wrote to Government to that effect on April 6,
1953. On June 16, 1953, the appellant was charged with hav-
ing violated r. 15 of the Government Servants’ Conduct Rules
and Fundamental Rule 11. Rule 15 of the Government
Servants’ Conduct Rules states, inter alia, that a
Government servant may not without the previous sanction of
Government engage in any trade or undertake any employment
other than his public duties. Fundamental Rule 11 says in
effect that unless in any case it be otherwise distinctly
provided, the whole time of a Government servant is at the
disposal of the Government which pays him. A. P. Mathur,
Joint Chief Controller of Imports, was asked to hold an
enquiry against the appellant on the charge mentioned above.
The appellant submitted an explanation and an enquiry was
held by A. P. Mathur in due course. The Enquiring Officer
submitted his report on September 12, 1953, in which he
found that the appellant had, contrary to the rules
governing the conditions of his service, accepted private
employment without previous sanction of Government during
the period when he was still in Government service. On
April 14, 1954, the appellant was asked to show cause in
accordance with the provisions of Art. 311(2) of the
Constitution. As the whole of the argument in this case
centres round this show cause notice, it is necessary to set
it out in full
Sir,
I am directed to say that the Enquiry Officer appointed to
enquire into certain charges framed against you has
submitted his report ; a copy of the report is enclosed for
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your information.
2. On a careful consideration of the report, and in
particular of the conclusions reached by the Enquiry Officer
in respect of the charges framed against you the President
is provisionally of opinion that a
896
major penalty, viz., dismissal, removal or reduction should
be enforced on you. Before he takes that action, he desires
to give you an opportunity of showing cause against the
action proposed to be taken. Any representation which you
may make in that connection -will be considered by him
before taking the proposed action. Such representation, if
any, should be made, in writing, and submitted so as to
reach the undersigned not later than 14 days from the
receipt of this letter by you.
Please acknowledge receipt of this letter.
Yours faithfully,
Sd. S. Bhoothalingam,
Joint Secretary to the Government of India."
The appellant then showed cause and on October 1, 1954, the
President passed an order in which it was stated that after
taking into consideration the report of the Enquiring
Officer and in consultation with the Public Service
Commission, the President found that the charge had been
proved against the appellant and the appellant was
accordingly removed from service with effect from that date.
The appellant then moved the Punjab High Court by a petition
under Art. 226 of the Constitution in which his main
contentions were (a) that he had no opportunity of showing
cause against the action proposed to be taken in regard to
him within the meaning of Art. 311 (2) of the Constitution
and (b) that he had asked for leave preparatory to
retirement and accepted service under Albert David & Co.
Ltd. in the bona fide belief that Government had no
objection to his accepting such private employment. Dulat,
J., who dealt with the petition in the first instance, held
against the appellant on both points. He found that there
was no contravention of the provisions of Art. 311 (2) of
the Constitution and on the second point, he held that on
the facts admitted in the case there was no doubt that the
appellant had accepted private employment in contravention
of the rules governing the conditions of his service and
there was little substance
897
in the suggestion of the appellant that he had no sufficient
opportunity to produce evidence.
The second point no longer survives, and the only
substantial point for our consideration is the alleged
contravention of Art. 311(2) of the Constitution.
Mr. N. C. Chatterjee, who has appeared on behalf of the
appellant, has submitted before us that the show cause
notice dated April 14, 1954, stated all the three
punishments mentioned in Art. 311 (2) and inasmuch as it did
not particularise the actual or exact punishment proposed to
be imposed on the appellant, the notice did not comply with
the essential requirements of Art. 311 (2) of the
Constitution; therefore, the final order of removal passed
on October 1, 1954, was not a valid order.
In the recent decision of Khem Chand v. Union of India (1)
this Court explained the true scope and effect of Art. 311
(2) of the Constitution. It was stated in that decision
that the reasonable opportunity envisaged by Art. 311 (2) of
the Constitution included (a) an opportunity to the
Government servant to deny his guilt and establish his
innocence, (b) an opportunity to defend himself, and finally
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(c) an opportunity to make his representation as to why the
proposed punishment should not be inflicted on him, which he
can only do if the competent authority after the enquiry is
over and after applying its mind to the gravity or otherwise
of the charges proved against the Government servant
tentatively proposes to inflict one of the three punishments
and communicates the same to the Government servant. It is
no longer in dispute that the appellant did have
opportunities (a) and (b) referred to above. The question
before us is whether the show cause notice dated April 14,
1954, gave the appellant a reasonable opportunity of showing
cause against the action proposed to be taken in regard to
him. Mr. N. C. Chatterjee has emphasised two observations
made by this Court in Khem Chand’s case (1). He points out
that in connection with opportunity (c) aforesaid, this
Court observed that a Government
(1) [1958] S.C.R. 1080.
113
898
servant can only make his representation if the competent
authority after the enquiry is over and after applying its
mind to the gravity or otherwise of the charges proved
against the Government servant tentatively proposes to
inflict one of the three punishments and communicates the
same to the Government servant. Mr. Chatterjee emphasises
the observation " one of the three punishments ". Secondly,
he has drawn our attention to the observations made in the
judgment of the Judicial Committee in High Commissioner for
India and High Commissioner for Pakistan v. I. M. Lall (1),
which observations were quoted with approval in Khem Chand’s
case (2). One of the observations made was:
" In the opinion of their Lordships no action is -proposed
within the meaning of the sub-section " (their Lordships
were dealing with sub-section (3) of s. 240 of the
Government of India Act, 1935) " until a definite conclusion
has been come to on the charges, and the actual punishment
to follow is provisionally determined on."
Mr. Chatterjee emphasises the expression " actual punishment
" occurring in the said observations. It is to be
remembered, however, that both in I. M. Lall’s case, (1) and
Khem Chand’s case (1) the real point of the decision was
that no second notice had been given to the Government
servant concerned after the enquiry was over to show cause
against the action proposed to be taken in regard to him.
In I. M. Lall’s case (1) a notice was given at the same time
as the charges were made which directed the Government
servant concerned to show cause " why he should not be
dismissed, removed or reduced or subjected to such other
disciplinary action as the competent authority may think fit
to enforce, etc." In other words, the notice was what is
usually called a combined notice embodying the charges as
well as the punishments proposed. Such a notice, it was
held, did not comply with the requirements of sub-s. (3) of
s. 240. In Khem Chand’s case (2) also the report of the
Enquiring Officer was approved by the Deputy Commissioner,
Delhi, who imposed the
(1) (1948) L.R. 75 I.A. 225,242.
(2) [1958] S.C.R. 1080.
899
penalty of dismissal without giving the Government servant
concerned an opportunity to show cause against the action
proposed to be taken in regard to him. In Khem Chand’s case
(1) the learned SolicitorGeneral appearing for the Union of
India sought to distinguish the decision in I. M. Lall’s
case (2) on the ground that the notice there asked the
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Government servant concerned to show cause why he should not
be dismissed, removed or reduced or subjected to any other
disciplinary action, whereas in Khem Chand’s case(1) the
notice issued to the Government servant before the enquiry
mentioned only one punishment, namely, the punishment of
dismissal. Dealing with this argument of the learned
Solicitor-General this Court said (at p. 1100):
" A close perusal of the judgment of the Judicial Committee
in I. M. Lall’s case will, however, show that the decision
in that case did not proceed on the ground that an
opportunity had not been given to 1. M. Lall against the
proposed punishment merely because in the notice several
punishments were included, but the decision proceeded really
on the ground that this opportunity should have been given
after a stage bad been reached where the charges had been
established and the competent authority had applied its mind
to the gravity or otherwise of the proved charge tentatively
and proposed a particular punishment."
Therefore, the real point of the decision both in I. M.
Lall’s case (2) and Khem Chand’s case (1) was that no
opportunity had been given to the Government servant
concerned to show cause after a stage had been reached when
the charges had been established and the competent authority
bad applied its mind to the gravity or otherwise of the
charges proved and tentatively proposed the punishment to be
given to the Government servant for the charges so proved.
It is true that in some of the observations made in those
two decisions the words " actual punishment " or particular
punishment " have been used, but those
(1) [1958] S.C.R. 1080.
(2) (1948) L.R. 75 I.A. 225, 242.
900
observations must, however, be taken with reference to the
context in which they were made.
Let us examine a little more carefully what consequences
will follow if Art. 311(2) requires in every case that the "
exact " or " actual " punishment to be inflicted on the
Government servant concerned must be mentioned in the show
cause notice issued at the second stage. It is obvious, and
Art. 311 (2) expressly says so, that the purpose of the
issue of a show cause notice at the second stage is to give
the Government servant concerned a reasonable opportunity of
showing cause why the proposed punishment should not be
inflicted on him; for example, if the proposed punishment is
dismissal, it is open to the Government servant concerned to
say in his representation that even though the charges have
been proved against him, he does not merit the extreme
penalty of dismissal, but merits a lesser punishment, such
as removal or reduction in rank. If it is obligatory on the
punishing authority to state in the show cause notice at the
second stage the " exact " or " particular " punishment
which is to be inflicted, then a third notice will be
necessary if the State Government accepts the representation
of the Government servant concerned. This will be against
the very purpose for which the second show cause notice was
issued.
Then, there is another aspect of the matter which has been
pointedly emphasised by dulat, J. If in the present case the
show cause notice had merely stated the punishment of
dismissal without mentioning the other two punishments, it
would still be open to the punishing authority to impose any
of the two lesser punishments of removal or reduction in
rank and no grievance could have been made either about the
show cause notice or the actual punishment imposed. Can it
be said that the enumeration of the other two punishments in
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the show cause notice invalidated the notice ? It appears to
us that the show cause notice in the present case by
mentioning the three punishments gave a better and fuller
opportunity to the appellant to show cause why none of the
three punishments should be inflicted on him. We desire to
901
emphasise here that the case before us is not one in which
the show cause notice is vague or of such a character as to
lead to the inference that the punishing authority did not
apply its mind to the question of punishment to be imposed
on the Government servant. The show cause notice dated
April 14, 1954, stated in clear terms that " the President
is provisionally of opinion that a major penalty, namely,
dismissal, removal or reduction, should be enforced on you."
Therefore, the President had come to a tentative conclusion
that the charge proved against the appellant merited any one
of the three penalties mentioned therein and asked the
appellant to show cause why any one of the aforesaid three
penalties should not be imposed on him. We see nothing
wrong in principle in the punishing authority tentatively
forming the opinion that the charges proved merit any one of
- the three major penalties and on that footing asking the
Government servant concerned to show cause against the
punishment proposed to be taken in the alternative in regard
to him. To specify more than one punishment in the
alternative does not necessarily make the proposed action
any the less definite; on the contrary, it gives the
Government servant better opportunity to show cause against
each of those punishments being inflicted on him, which he
would not have had if only the severest punishment had been
mentioned and a lesser punishment not mentioned in the
notice had been inflicted on him.
We turn now to certain other decisions on which learned
counsel for the appellant has relied. They are: Jatindra
Nath Biswas v. R. Gupta (1), Dayanidhi Rath v. B. S.
Mohanty (2) and Lakshmi Narain Gupta v. A. N. Puri (3).
In the case of Jatindra Nath Biswas (1) no second show cause
notice was given and the decision proceeded on that footing.
Sinha, J., observed, however:
"Where there is an enquiry, not only must he have an
opportunity of contesting his case before the
(1) [1953] 58 C.W.N. 128. (2) A.I.R. 1955 Orissa 33.
(3) A.I.R. 1954 Cal. 3.35-
902
enquiry, but, before the punishment is imposed upon him, he
must be told about the result of the enquiry and the exact
punishment which is proposed to be inflicted."
Mr. Chatterjee has emphasised the use of the word " exact ".
As we have pointed out, the decision proceeded on a
different footing and was not rested on the ground that only
one punishment must be mentioned in the second show cause
notice. The decision in Dayanidhi Rath’s case (1) proceeded
on the footing that if the punishment that is tenatively
proposed against a civil servant is of a graver kind, he can
be awarded punishment of a lesser kind; but if the
punishment that is tentatively proposed is of a lesser kind,
there will be prejudice in awarding a graver form of punish-
ment. What happened in that case was that the show cause
notice stated that in view of the Enquiring Officer’s
findings contained in the report with which the Secretary
agreed and in consideration of the past record of the
Government servant concerned, it was proposed to remove him
from Government service; in another part of the same notice,
however, the Government servant concerned was directed to
show cause why the penalty of dismissal should not be
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inflicted for the charges proved against him. Thus, in the
same notice two punishments were juxtaposed in such a way
that it was difficult to say that the punishing authority
had applied its mind and tentatively come to a conclusion as
to what punishment should be given. It was not a case where
the punishing authority said that either of the two
punishments might be imposed in the alternative; on the
contrary, in one part of the notice the punishing authority
said that it was proposed to remove the Government servant
concerned and in another part of the notice it said that the
proposed punishment was dismissal. In Lakshmi Narain
Gupta’s case (2) the notice called upon the petitioner to
show cause why disciplinary action, such as reduction in
rank, withholding of increments, etc., should not be taken
against him. The learned Judge pointed out
(1) A.I.R. 1955 Orissa 33.
(2) A.I.R. 1954 Cal- 335.
903
that there were seven items of penalties under r. 49 of the
Civil Service (Classification, Control and Appeal) Rules,
and the notice did not indicate that the punishing authority
had applied its mind and come to any tentative conclusion as
to the imposition of any of the punishments mentioned in
that rule. On that footing it was held that there was no
compliance with the provisions in Art. 311(2) of the
Constitution. We do not, therefore, take these decisions as
laying down that whenever more than one punishment is
mentioned in the second show cause notice, the notice must
be held to be bad. If these decisions lay down any such
rule, we must hold them to be incorrect.
We have come to the conclusion that the three decisions on
which learned counsel for the appellant has placed his
reliance do not really support the extreme contention
canvassed for by him, and we are further of the view that
the show cause notice dated April 14, 1954, in the present
case did not contravene the provisions of Art. 311 (2) of
the Constitution. The appellant had a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to
him.
This disposes of the principal point in controversy before
us. Mr. Chatterjee referred to certain mistakes of
reference in the order of the President dated October 1,
1954. Instead of referring to r. 15 of the Government
Servants’ Conduct Rules, r. 13 was referred to. There was
also a reference to para. 5 of a particular Government order
which prohibited Government servants from taking up
commercial employment within two years of retirement. Mr.
Chatterjee submitted that this particular order did not
apply to Government servants in Class 11. We do not think
that the inaccurate references were of any vital importance.
In effect and substance the order of removal dated October
1, 1954, was based on the ground that the appellant violated
r. 15 of the Government Servants’ Conduct Rules and r. II of
the Fundamental Rules; he accepted private employment
without sanction of Government while he was still in
Government service. That was the basis for the enquiry
against
904
the appellant and that was the basis for the order of
removal passed against him.
For these reasons we hold that there is no merit in the
appeal which must accordingly be dismissed with costs.
Appeal dismissed.
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