Full Judgment Text
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PETITIONER:
STATE OF ASSAM & ANOTHER
Vs.
RESPONDENT:
BIMAL KUMAR PANDIT
DATE OF JUDGMENT:
12/02/1963
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
HIDAYATULLAH, M.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1963 AIR 1612 1964 SCR (2) 1
CITATOR INFO :
RF 1964 SC 364 (15)
R 1964 SC 506 (7)
R 1977 SC 567 (16,17,18)
ACT:
Government Servant--suspension enquiry and demotion
Reasonable Opportunity what is--Contents of second notice
when Government accepts, rejects or partly accepts or partly
rejects the findings of Enquiry Officer--Necessity of
stating conclusions of Government in notice--Function of
Enquiry Officer-Constitution of India, Art. 311 (2).
HEADNOTE:
The respondent was An Extra Assistant Commissioner. He was
charge-sheeted and lie submitted an elaborate explanation in
respect of all the charges. The enquiry was held by the
Commissioner and a report submitted by him. After giving
his findings, the Commissioner added that the lapses proved
did not cast any serious doubt on the honesty arid integrity
of the respondent and hence the withholding of three
increments from his pay would meet the ends of justice. The
appellant served a second notice on the respondent and the
latter was asked to submit his explanation wiry penalty of
removal from service should not be imposed upon him. The
respondent submitted an explanation and the Governor of
Assam, after considering the explanation, ordered his
demotion.
That order was challenged by the respondent by a writ
petition filed in the High Court. The writ petition was
allowed by the High Court and a writ of mandamus was issued
directing the appellant not to give effect to the order of
demotion. The High Court held that the second notice did
not clearly indicate that the Government had accepted the
findings- of Enquiry officer and as such a statement was not
made in the notice, the respondent could not have known on
what grounds the Government had provisionally decided to
2
impose upon him the penalty of removal from service. It was
also held that the notice must show that the dismissing
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authority had applied its mind to the findings of the
Enquiry officer and had accepted the said findings against
the respondent. The notice should expressly state the
conclusions of the dismissing authority because unless those
conclusions were communicated to the respondent, he was not
in a position to make an adequate or effective
representation, the dismissing authority must also indicate
the reasons on which it bad come to those conclusions. As
the impugned notice did not contain a specific averment that
the dismissing authority had accepted the findings of the
Enquiry officer and otherwise gave no grounds or reasons for
the action proposed to be taken against the respondent, it
contravened the provisions of Art. 311 (2). The appellant
came to this Court by special leave.
Held, that the High Court was in error in coming to the
conclusion that the order of demotion passed against the
respondent was invalid on the ground that the respondent had
not been given a reasonable opportunity of showing cause
against the action to be taken against him under Art. 311
(2) of the Constitution.
A public officer against whom disciplinary proceedings are
intended to be taken is entitled to have two opportunities.
Ali enquiry must be held and it must be conducted according
to the rules prescribed in that behalf and consistently with
tile requirements of natural justice. When the Enquiry
Officer submits his report, the dismissing authority has to
consider the report and decide whether it agrees with the
conclusions of the report or not. If the findings in the
report are against the public officer and the dismissing
authority agrees with them, another notice has to be given.
In issuing the second notice, the dismissing authority has
to come to a tentative or provisional conclusion about the
guilt of the public officer as well as about the punishment
which would meet the ends of justice. in response to this
notice, the public officer is entitled to show cause not
only against the action proposed to be taken against him but
also against the validity or correctness of the findings
recorded by tile Enquiry officer and provisionally accepted
by the dismissing authority.
If the dismissing authority differs from the findings
recorded in the enquiry report, it is necessary that its
provisional conclusions should be specified in the second
notice. If the -dismissing authority accepts the findings
against the delinquent officer and differs from some or all
of those recorded in his favour and proceeds to specify the
nature of the action
3
proposed to be taken on its own conclusions, it is necessary
that the said conclusions should be briefly indicated in the
notice. Where the dismissing authority purports to issue the
notice against the delinquent officer after accepting the
enquiry report in its entirety, it cannot be said that it is
essential that the dismissing authority must say that it has
so accepted the report. However, it is desirable that even
in such cases a statement to that effect should be made, but
failure to make such statement does not contravene the
provisions of Art. 311 (2).
As regards the functions of the Enquiry officer unless there
is any rule or statutory provision to the contrary, he is
not required to specify the punishment which may be imposed
on the delinquent officer. His task is merely to hold an
enquiry into the charges and make his report stating forth
his con- clusions and findings in respect of the said
charges. Sometimes, the Enquiry officers do indicate the
nature of the action that may be taken against the
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delinquent officer, that ordinarily is outside the scope of
the enquiry.
A.N. D’Silva v. Union of India, [1962] Supp. 1 S. C. R.
968, High Commissioner of India v. I. M. Lal, [1945] F. C.R,
103, Khem Chand v. Union of India, [1958] S. C. R. 1080, The
State of Orissa v. Govindadas Pahda, C. A. No. 412/58, dt.
10-12-1958, State of Andhra v. T. Ramayya Suri, A. 1. R.
1957 Andhra 370, Bimal Charan Mitra v. State of Orissa A. 1.
R. 1957 Orissa 184, Krishan Gopal Mukherjee v. The State, A.
1. R. 1960 Orissa 37 and State of Bombay v. Gajnan Mahadev
Baldev, A. 1. R. 1954 Bom. 351, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 832 of 1962.
Appeal by special leave from the judgment and decree dated
January 22, 1962, of the Assam High Court in Gauhati, in
Civil Rule No. 369 of 1961.
M. C. Setalvad and Naunit Lal, for ’the appellant.
N. C. Chatterjee and D. N. Mukherjee, for the respondent,
4
1963. February 12. The judgment of the Court was delivered
by
GAJENDRAGADKAR J.-This appeal by special leave raises a
short question about the scope and effect of the provisions
contained in Article 311 (2) of the Constitution. The said
question arises in this way. The respondent Bimal Kumar
Pandit was serving appellant No. 1, the State of Assam, as
an Extra-Assistant Commissioner, Shillong. On December 11,
1959, the second appellant, the Chief Secretary to the
Government of Assam, served on the respondent a charge-sheet
containing eleven specific charges and called upon him to
show cause why he should not be dismissed from service or
otherwise punished under Rule 55 of the Civil Services
(Classification, Control & Appeal) Rules read with Art. 311
of the Constitution. The said notice further informed the
respondent that the Governor of Assam had been pleased to
authorise the Commissioner of Plains Division, Assam, to
conduct the. enquiry and to report to appellant No. 2. On
January 13, 1960 the respondent submitted an elaborate
explanation in respect of all the charges. The Commissioner
of Plains Division, Assam, then proceeded to hold an enquiry
and after considering the evidence adduced before him, he
made the report on April 12, 1960. In this report the
Enquiry officer found that out of the 11 charges drawn up
against the respondent, 6 had not been proved and of the
remaining 5 charges, two had been fully established-they
were charges (7) and (10) ; and the other three charges Nos.
(1), (2) and (4) had been partially established. The report
made these findings and proceeded to add that the lapses
proved did not cast any serious doubt on the honesty and
integrity of the delinquent officer, although the evidence
led in respect of charges (1) and (2) proved his
inexperience and that led under charges (2) and (4) showed
his irresponsibility. The report further stated that in the
circumstances, the
5
two charges which deserved consideration for purposes of
punishment were charges (7) and (10); aid it ended with the
recommendation that in view of the limited scope of the
charges proved and of the age and experience of the
delinquent officer, the with. holding of three increments
from his pay would meet the ends of justice in this case.
After this report was received, appellant No. .2 served a
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second notice on the respondent on June 1, 1960. This
notice referred to the disciplinary proceedings held against
the respondent and added that the respondent was thereby
required under clause (2) of Art. 311 of the Constitution to
submit his explanation if any, why the penalty of removal
from service should not be imposed upon him. The notice
further stated that a copy of the report of the Enquiring
officer in the disciplinary proceedings drawn up against the
respondent was enclosed. The respondent was told that he
had to submit his explanation through the Commissioner of
Plains Division, Assam, on or before June 18, 1960.
On receiving this notice, the respondent submitted his
explanation on June 21, 1960 in respect of the charges which
had been held proved by-the Enquiring officer. After
considering the explanation thus submitted by the
respondent, the Governor of Assam was pleased to reduce in
rank the respondent who was on probation in the Assam Civil
Service, Class I to the Assam Civil Service Class Il, perma-
nently, with effect from the date he takes over as such.
The Governor of Assam further ordered that the respondent
will be on probation in the said Class 11 Service for two
years, subject to termination, if his work and conduct were
not found satisfactory. The respondent was to draw his pay
in the minimum of the scale of pay of A. C. S., Class 11 and
his seniority in the cadre would be determined with
6
effect from the date of his joining. This Order was made on
July 8, 1961.
The respondent then challenged the validity of this order
by a writ petition in the High Court of .Judicature at Assam
on August, 24, 1961. One of tile points urged by him was
that he had not been given a reasonable opportunity of
showing cause against the action which was ultimately taken
against him under Art. 311 (2); and he urged that the
contravention of Art. 311 (2) rendered the impugned order
invalid. He urged other contentions also, but those have
been rejected by the High Court, while his main point under
Art. 3.11 (2) has been upheld. In the result, the High
Court has allowed the writ petition and issued a mandamus
directing the appellants not to give effect to the order
dated 8th July, 1961. It is against this order that the
appellants have come to this Court by special leave.
We have already referred to the second notice served on the
respondent under Art. 311 (2). The respondent’s contention
which has been accepted by the High Court is that in the
said notice, appellant No. 1 has not clearly indicated that
it accepted the findings of the Enquiring officer; and since
such a statement is not made in the notice, the respondent
could not have known on what ground appellant No.1
provisionally decided to impose upon the respondent the
penalty of removal from service. The High Court has held
that the notice issued under Art. 311 (2) must show that the
dismissing authority has applied its mind to the findings of
the Enquiring officer and has accepted the said findings
against the delinquent officer. In other words the notice
should expressly state the conclusions of the dismissing
authority, because unless these conclusions are communicated
to the delinquent officer, he would not be able to make an
adequate or effective representation. According to the High
Court, in recording such conclusions, the dismissing
authority must
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also indicate the reasons on which it had come to those
conclusions against the delinquent officer and since the
impugned notice did not contain a specific averment that the
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dismissing authority had accepted the findings of the
enquiring officer and otherwise gave no grounds or reasons
for the action proposed to be taken against the respondent,
it contravened the requirements of Art. 311 (2) and so, it
must be held to be void. Mr. Setalvad for the appellants
contends that in coming to this conclusion, the High Court
has misinterpreted the scope and effect of Art. 311 (2).
Article 311 (1) provides, inter alia, that no person covered
by the said sub-article shall be dismissed or removed by an
authority subordinate to that by which he was appointed. We
are not concerned with this sub-Article in the present
appeal. Article 311 (2) provides that no such person as
specified in Art. 311 (1), shall be dismissed or removed or
reduced in rank until he has been given a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to him. It is now well settled that a
public officer against whom disciplinary proceedings are
intended to be taken is entitled to have two opportunities
before disciplinary action is finally taken against him. An
enquiry must be held and it must be conducted according to
the rules prescribed in that behalf and consistently with
the requirements of natural justice. At this enquiry, the
public officer concerned would be entitled to test the
evidence adduced against him by cross-examination, where
necessary, and to lead his own evidence. In other words, at
this first stage of the proceedings he is entitled to have
an opportunity to defend himself. When the enquiry is over
and the enquiring officer submits his report, the dismissing
authority has to consider the report and decide whether it
agrees with the conclusions of the report or not. If the
findings, in the report are against the
8
public officer and the dismissing authority agrees with the
said findings, a stage is reached for giving another
opportunity to the public officer to show will disciplinary
action should not be taken against him. In issuing the
second notice, the dismissing authority naturally has to
come to a tentative or provisional conclusion about the
guilt of the public officer as well as about tile punishment
which would meet the requirement., of justice in his case,
and it is only after reaching conclusions in both these
matters provisionally that the dismissing authority issues
the second notice. There is no doubt that in response to
this notice; the public officer is entitled to show cause
not only against the action proposed to be taken against
him, but also against the validity or the correctness of the
findings recorded by the enquiring officer and provisionally
accepted by the dismissing authority. In other words, the
second opportunity enables the public officer to cover the
whole ground and to plead that no case had been made out
against him for taking any disciplinary action and then to
urge that if he fails in substantiating his innocence, the
action proposed to be taken against him is either unduly
severe or not called for. This position is not in dispute.
The High Court seems to have taken the view that in order
that the public officer may have a reasonable opportunity,
tile dismissing authority must indicate its conclusions on
the findings recorded by the enquiring officer and must
specify reasons in supports of them. According to this
view, the fact that the copy of the report made by the
enquiring officer was sent to the delinquent officer along
with the notice indicating the nature of the action proposed
to be taken against him, does not help to meet the
requirement of’ Art. 311 (2). The argument is that unless
this course is adopted, it would not be clear that the
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dismissing authority had applied its mind and had
provisionally come to some conclusions
9
both in regard to the guilt of ’the public officer and the
punishment which his misconduct deserved. It may be
conceded that it is desirable that the dismissing authority
should indicate in the second notice its concurrence with
the conclusions of the enquiring officer before it issues
the said notice under Art. 311 (2). But the question which
calls for our decision is if the dismissing authority does
not expressly say that it has accepted the findings of the
enquiring officer against the delinquent officer, does that
introduce such an infirmity in the proceedings as to make
the final order invalid ? We are not prepared to answer this
question in the affirmative. It seems to us that it would
be plain to the delinquent officer that the issuance of the
notice indicating the provisional conclusions of the
dismissing authority as to the punishment that should be
imposed on him, obviously and clearly implies that the
findings recorded against him by the enquiring officer have
been accepted by the dismissing authority; otherwise there
would be no sense and no purpose in issuing the notice under
Art. 311 (2). Besides, we may add that in the present case,
the affidavit made by appellant No. 2 clearly shows that
before the impugned notice was served on the respondent, the
Government had accepted the findings of the enquiring
officer which means that the Government agreed with the
enquiring officer in regard to both sets of findings
recorded by him. Therefore, we do not think that the
failure to state expressly that the dismissing authority has
accepted the findings recorded in the report against the
delinquent officer, justifies the conclusion that the notice
given in that behalf does not afford a reasonable
opportunity to the delinquent officer under Art. 311 (2).
On receiving the notice in the present case, it ’must have
been obvious to the respondent that, the findings recorded
against him by the enquiring officer had been accepted by
the appellants and so, we think it would not be reasonable
to accept the
10
view that in the present case, he had no reasonable
opportunity as required by Art. 311 (2).
We ought, however, to add that if the dismissing authority
differs from the findings recorded in the enquiry report, it
is necessary that its provisional conclusions in that behalf
should be specified in the second notice. It may be that
the report makes -findings in favour of the delinquent
officer, but the dismissing authority disagrees with the
said findings and proceeds to issue the notice under Art.
311 (2). ID such a case, it would obviously be necessary
that the dismissing authority should expressly state that it
differs from the findings recorded in the enquiry report and
then indicate the nature of the action proposed to be taken
against the delinquent officer. Without such an express
statement in the notice, it would be impossible to issue the
notice at all. There may also may be cases in which the
enquiry report may make findings in favour of the delinquent
officer on some issues and against him on some other issues.
That is precisely what has happened in the present case.
It’ the dismissing authority accepts all the said findings
in their entirety, it is another matter : but if the
dismissing authority accepts the findings recorded against
the delinquent officer and differs from some or all of those
recorded in his favour and proceeds to specify the nature of
the action proposed to be taken on its own conclusions, it
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would be necessary that the said conclusions should be
briefly indicated in the notice. In this category of cases,
the action proposed to be taken would be based not only on
the findings recorded against the delinquent officer in the
enquiry report, but also on the view of the dismissing
authority that the other charges not held proved by the
enquiring officer are, according to the dismissing
authority, proved. In order to give the delinquent officer
a reasonable opportunity to show cause under Art. 311 (2),
it is essential that the conclusions
11
provisionally reached by the dismissing authority must, in
such cases, be specified in the notice. But where the
dismissing authority purports to proceed to issue the notice
against the delinquent officer after accepting the enquiry
report in its entirety it cannot be said that it is
essential that the dismissing authority must say that it has
so accepted the report. As we have already indicated, it is
desirable that even in such cases a statement to that effect
should be made. But we do not think that the words used in
Art. 311 (2) justify the View that the failure to make such
a statement amounts to contravention of Art. 311 (2). In
dealing with this point, We must bear in mind the fact that
a copy of the enquiry report had been enclosed with the
notice, and so, reading the notice in a common sense manner,
the respondent would not have found any difficulty in
realising that the action proposed to be taken against him
proceeded on the basis that the appellants had accepted the
conclusions of the enquiring officer in their entirety.
It has, however, been urged by Mr. Chatterjee for the
respondent that in the present case, the appellants must
have proceeded to issue the notice against the respondent
after coming to the conclusion that, some of the findings
recorded in the enquiry report in favour of the respondent
were not correct. His argument is that the enquiry report
had suggested that the withholding of three increments would
meet the ends of justice in the present case, nevertheless
the notice issued by the appellants indicated that the
action proposed to be taken was the respondent’s removal
from service. It is true that the ultimate action taken
against him was not as severe; he has, been merely demoted
to Class II Service. But it is suggested that the severity
of the punishment proposed to be inflicted on the Respondent
rather suggests that the appellants felt that some of the
other charges which the enquiring officer had not
12
held proved appeared to be proved to the appellants. This
argument is no doubt ingenious; but in the circumstances of
this case, we do not think it can be accepted. As this
Court has held in A. N. D’Silva v. Union of India (1), in
the absence of rules or any statutory provisions to the
contrary, the enquiry officer is not required to specify the
punishment which may be imposed on the delinquent officer.
His task is merely to hold an enquiry into the charges and
make his report setting forth his conclusions and findings
in respect of the said charges. Sometimes the enquiring
officers do indicate the nature of the action that may be
taken against the delinquent officer, but that ordinarily is
outside the scope of the enquiry. That being so, not much
significance can be attached to the recommendation made by
the enquiring officer in the present case. Besides, it is
absolutely clear that under the relevant rules, the
punishment proposed to be imposed on the respondent was
justified even on the findings recorded against him by the
enquiring officer, and so, it would be idle to contend that
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unless the appellants had differed from the conclusions of
the enquiring officer in respect of the charges which he
held not proved, they could not have legitimately thought of
imposing the said punishment on him. Therefore, in our
-)pinion, the argument that the action proposed to be taken
itself shows that the appellants did not accept the findings
recorded by the enquiring officer favour of the respondent
must be rejected.
We will now refer to some of the decisions on which Mr,
Chatterjee relied. In the case of The High Commissioner of
India v. I. M. Lal ( 2 ) , the Federal Court had to
consider the scope and effect of he provisions of s. 240(3)
of the Constitution Act of 1935. ’This provision is
substantially similar to the provisions contained in Art.
311(2) of the Constitution. According to the majority view
of the Federal Court in that case, all that s. 240(3)
requited ’was
(1) [1962] Supp. 1 S. C. R. 968. (2) [1945] F. C. R. 103.
136.
13
not only notification of the action proposed but of the
grounds on which the authority was proposing that the action
should be taken, and that the person concerned must then be
given reasonable time to make his representations against
the proposed action and the grounds on which it was proposed
to be taken. Mr. Chatterjee contends that this decision
shows that the notice served on the delinquent officer must
set forth the grounds on which the particular action was
proposed to be taken. He emphasises the fact that in the
judgment it has been specifically stated that grounds should
be stated on which the action is proposed to be taken, and
shows that the dismissing authority must its reasons in
support or the said Section. In our opinion, this argument
is not justified, because the context in which the said
observations were made by the Federal Court clearly shows
that the grounds to the judgment refers are the findings or
conclusions reached by the enquiring officer. In fact, in
tile subsequent passage, it has been expressly observed
that. the requirement of s. 240(3) involves "in. all cases
where there is an enquiry and as a result, thereof some
authority definitely proposes dismissal or reduction in
rank, that the person concerned shall be told in full, or
adequately summarised form the results of that enquiry, and
the findings of the enquiring officer and be given an
opportunity of showing cause with that information why lie
should not suffer the proposed dismissal or reduction in
rank." It would be noticed that this statement clearly shows
that what the Federal Court held was that the dismissing
authority must convey to the delinquent officer the findings
of the enquiring officer either fully, or adequately
summarised, and state the nature of the action proposed to
be taken against him. In other words, the officer concerned
ought to know what findings have been recorded against him
and should be given a chance to challenge those findings and
to question the propriety
14
of the action proposed to be taken against him. In this
context, therefore, the grounds which, according to the
judgment, have to be stated in the notice do not indicate
grounds or reasons which would show. why the dismissing
authority accepts the enquiring officer’s report, but the
grounds, reasons, or findings which have been recorded by
the enquiring officer are required to be stated. Therefore,
we do not think that Mr. Chatterjee is justified in
contending that the decision of the Federal Court in 1. M.
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Lal’s case supports the view taken by the High Court in the
present proceedings.
It is true that in the case of Khem Chand v. The Union of
India (1), this Court has held that : "Reasonable
opportunity envisaged by Art. 311 (2) includes, internal, 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 his 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." There
is no doubt that after the report is received, the
appropriate authority must apply its mind to the report and
must provisionally decide whether the findings recorded in
the report should be accepted or not. It is only if the
findings recorded in the report against the Government
servant are accepted by the appropriate authority that it
has to provisionally decide what action should be taken
against him But this does not mean that in every case, the
appropriate authority is under a constitutional obligation
to state in the notice that it has accepted the adverse
findings recorded by the enquiring officer before it
indicates the nature of the action proposed to be taken
against the delinquent officer. Therefore, we do not think
that the decision of
(1) [1958] S. C. R. 1080, 1097,
15
this Court in Khem Chand’s case supports Mr. Chatterjee’s
contention.
On the other hand, the decision of this Court in The State
of Orissa v. Govindadas Panda (1), shows that a similar
order issued by the Orissa Government was upheld by this
Court. In that case, the notice issued under Art. 311 (2)
did not expressly state that the State Government had
accepted the findings recorded by the enquiring officer
against the Government servant in question. In fact even
the nature of the punishment which was proposed to be
inflicted on him was not specifically and clearly indicted.
The Orissa High Court had struck down the order of dismissal
on the ground that the notice was defective and so, the
provisions of Art. :II 1 (2) had been contravened. This
Court in reversing the concision of the Orissa High Court,
observed that "in the context, it Must have been obvious to
the respondent that the punishment proposed was removal from
service and the respondent was called upon to show cause
against that punishment. On a reasonable reading of the
notice, the only conclusion at which one can arrive is that
the appellant (the State) accepted the recommendation of the
Administrative Tribunal and asked the respondent to show
cause against the proposed punishment, namely, that of
removal from service." It may be added incidentally that the
punishment which had been suggested by the Tribunal was
removal from service, as distinguished from dismissal, and
this Court held that the impugned notice must be deemed to
have referred to that punishment as the action proposed to
be taken against the Government servant. Therefore, this
decision, in substance, is against the contention raised by
Mr. Chatterjee
There are, however, some decisions which seem to lend
support to Mr. Chatterjee’s argument and it is, therefore,
necessary to examine them. In the
(1) Civil Appeal NO, 412/1958 decided on 10th Dec., 1958,
16
case of The State o Andhra v. T. Ramayya Suri the Andhra
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Pradesh High Court has held that "under Art. 311 (2) the
authority concerned should necessarily in its order
requiring the civil servant to show cause give not only the
punishment proposed to lie inflicted but also the reasons
for coming to that conclusion." If this observation is
intended to lay down a general rule that in every case the
appropriate authority must state its own grounds or reasons
for proposing to take any specific action against the
delinquent government servant, we must hold that the said
view is not justified by the requirements of Art. 311 (2).
We ought, however, to add that in the case with which the
Andhra Pradesh High Court was dealing, it appeared that the
Government did not agree with the Tribunal in regard to its
finding on the third charge and so, its conclusion on the
said charge which was different from that of the Tribunal,
weighed in its mind in proposing to take the specified
action against the Government servant. In such a case, it
would be legitimate to hold that the public servant did not
know what was weighing in the mind of the Government and so,
did not get an adequate opportunity to challenge the view
which the Government was inclined to take in respect of the
third charge framed against him. On these facts, we think,
the High Court was justified in taking the view that the
Government should have indicated in the notice its
conclusion on the third charge. That, however, does riot
mean that in the notice, the Government ought to state its
grounds or reasons in support of its conclusion. It is the
finding or the conclusion which is weighing in the mind of
the Government that must, in such a case, be communicated to
the public servant.
In Bimal Charan Mitra v. State of Orissa (2), the Orissa
High Court has held that "the service of the copy of the
findings of the punishing authority on the public servant is
mandatory and the service
(1) A. I. R. 1957 Andh. 370,
(2) A. I. R. 1957 Orissa. 184,
17
of the report of the enquiring officer who is not the
punishing authority, when there is no indication at all in
the notice that the authority competent to punish agrees
with those findings, cannot constitute substantial
compliance with the requirements of Art. 31 1 (2). " This
decision seems to suggest that in issuing the notice under
Art. 311. (2), the appropriate authority must, besides
serving the copy of the enquiring officer’s report on the
government servant, supply the said officer the findings of
the punishing authority and this requirement is treated as a
mandatory requirement under Art. 311(2). In our opinion,
this view is erroneous.
The same comment falls to be made ’about another decision of
the said High Court in Krishan Gopal Mukherjee v. The State
(1).
The last decision to which reference must be made is the
decision of the Bombay High Court in the State of Bombay v.
Gajanan Mahadev Badley (2) . In this case, Chief justice
Chagla has observed that under Art. 311 (2) it is not
sufficient that the State should call upon the servant to
show cause against the quantum of punishment intended to be
inflicted upon him; the State must also call upon the
servant to show cause against the decision arrived at by a
departmental enquiry if that decision constitutes the ground
on which the Government proposes to take, action against the
servant. This view is clearly right. But then in support
of this conclusion, the learned Chief justice has observed
that the public servant must have an opportunity to show
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cause not only against the punishment but also against the
grounds on which the State proposes to punish him; and Mr.
Chatterjee relies upon this sentence to support his argument
that the grounds on which the State proposes to act must be
communicated to the public servant. In our opinion, this
statement must be read along with the conclusion of the High
Court
(1) A.I.R. 1960 Orissa 37.
(2) A.I.R. 1954 Bom. 351.
18
and so read, it would clearly show that what the C. J.
intended to lay down was that the findings recorded in the
enquiry report which constitutes the ground on which the
Government proposes to take action must be communicated to
the public servant. Therefore, this decision does not
support Mr. Chatterjee’s argument that the notice issued
under Art. 311(2) must expressly state that the appropriate
authority accepts the findings of the enquiry officer and
must give reasons in support of the action proposed to be
taken against him.
In the result, we hold that the High Court was in error in
coming to the conclusion that the order of demotion ’Passed
against the respondent in the present case was invalid on
the ground that the respondent had not been given a
reasonable opportunity of showing cause against the said
action under Art. 311(2). The appeal accordingly succeeds,
the order passed by the High Court is set aside and the writ
petition filed by the respondent is dismissed. There will
be no order as to costs.
Appeal allowed.
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