Full Judgment Text
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PETITIONER:
STATE OF MYSORE
Vs.
RESPONDENT:
K. MANCHE GOWDA
DATE OF JUDGMENT:
22/08/1963
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1964 AIR 506 1964 SCR (4) 540
CITATOR INFO :
D 1969 SC1020 (8,10)
ACT:
Civil Servant--Reasonable opportunity--Dismissal based on
previous punishments--Whether an opportunity to explain be
given in second show cause notice--"Presumptive knowledge"
and "reasonable opportunity"--Constitution of India, Art.
311 (2)--Government of India Act, 1935, s. 240(3).
HEADNOTE:
The respondent was holding the post of an Assistant to
the Additional Development Commissioner, Planning,
Bangalore. A departmental enquiry was held against him and
the Enquiry Officer recommended that the respondent be
reduced in rank. After considering the report of Enquiry
Officer, the Government issued a notice calling upon
respondent to show cause why he should not be dismissed from
service. The reply of the respondent was that the entire
case had been foisted on him. After considering his
representation, the Government passed an order dismissing
him from service. The reason given for his dismissal was
that the respondent had on two earlier occasions committed
certain offences and he had been punished for the same.
However, those facts were not given as reasons for the
proposed punishment. of dismissal from service.
541
The respondent filed a petition in the High Court under
Art. 226 of the Constitution for quashing the order of his
dismissal. The High Court quashed the order of dismissal on
the ground that the two circumstances on which the
Government relied for the proposed infliction of punishment
of dismissal were not put to the respondent for being
explained by him in the show cause notice which was issued
to him. The appellant came to this Court by special leave.
The contentions of the appellant were that the
Government was entitled to take into consideration the
previous record of Government servant in awarding punishment
to him and it was not incumbent on it to bring to the notice
of the Government servant the said fact in the second
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notice. Moreover, as the Government servant in this case
had knowledge of his two.earlier punishments he was not in
any way prejudiced by their non-disclosure in the second
notice. Dismissing the appeal,
Held, that it was incumbent upon the Government to give
the Government servant at the second stage reasonable
opportunity to show cause against the proposed punishment
and if the proposed punishment was also based on his
previous punishments or his previous bad record, that should
be included in the second notice so that he may be able to
give an explanation. The doctrine of "presumptive
knowledge" or that of "purposeless enquiry" is subversive of
the principle of "reasonable opportunity".
Secretary of State for India, v. I. M. Lal, [1945] F.C.R.
103, Khern Chand v. Union of India, [1958] S.C.R. 1080,
Gopalrao v. State, I.L.R. [1954] Nag. 90, Shankar Shukla v.
Senior Superintendent of Post Offices, Lucknow Division,
A.I.R. 1959 All. 624 and State of Assam v. Bimal Kumar
Pandit, [1964] 2 S.C.R. referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 387 of
1963.
Appeal by special leave from the judgment and order
dated February 14, 1962, of the Mysore High Court in Writ
Petition No. 916 of 1959.
C.K. Daphtary, Attorney-General for India, R.
Gopalalkrishnan and B.R.G.K. Achar for P.D. Menon, for the
appellant.
Naunit Lal, for the respondent.
August 22, 1963. The Judgment of the Court was delivered by
SUBBA RAO J.--This appeal by special leave is
preferred against the Order of a Division Bench of the High
Court of Mysore at Bangalore quashing the order of the
542
Government dated March 13, 1957 dismissing the respondent
from service.
In the year 1957 the respondent was holding the post of
an Assistant to the Additional Development Commissioner,
Planning, Bangalore. On June 25, 1957, the Government of
Mysore appointed Shri G.V.K. Rao, I.A.S., Additional
Development Commissioner, as the Enquiry Officer to conduct
a departmental enquiry against him in respect of false claim
for allowances and fabrication vouchers to support them.
After giving the usual notice, the said Enquiry Officer
framed four charges against him. After making the necessary
enquiry in accordance with law the said Enquiry Officer
submitted his report to the Government with the
recommendation that the respondent might be reduced in rank.
After considering the report of the Enquiry Officer, the
Government issued to him a notice calling upon him to show
cause why he should not be dismissed from service. The
relevant part of the said show cause notice reads as
follows:
"The Inquiry Authority has recommended that
you may be reduced in rank. As the charges
proved against you are of a very grave nature
and are such as render you unfit to remain in
Government Service, and the Government
consider that a more severe punishment is
called for in the interest of public service,
it is proposed to dismiss you from service."
The respondent made representation to the effect that the
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entire case had been foisted on him. After considering the
representations of the respondent, the Government passed an
order on January 6, 1959 dismissing him from service. As
the argument turns upon the terms of this order, it will be
convenient to read the material part thereof:
"Government have carefully considered the
report the enquiry, the explanation of Shri
Manche Gowda and the opinion furnished by the
Mysore Public Service Commission. There is no
reasonable ground to accept the version of
Shri Manche Gowda that the entire case has
been deliberately foisted on him. The evidence
on record shows conclusively that the charges
framed are fully proved."
"As regards the quantum of punishment,
Government
543
have examined the previous record of the
Officer and have given careful consideration
to the recommendation of the Public Service
Commission. Shri Manche Gowda was recruited
directly as a Gazetted Officer. He had been
punished twice--first, in Government Order
No. SD 19-16/A:17. 53-12, dated 1--4-1954,
for making false claims of T.A. and tampering
with the accounts and ledgers of Food Depot
and again, in Government Order No. 40 MSC 57,
dated 13th March 1957 for not having credited
to Government certain sums of money which he
had collected from the Office Staff. Yet he
failed to learn a lesson; he had indulged in
similar offences. It is clear that he is
incorrigible and no improvement can be
expected in his conduct. In the circumstances
a reduction in pay and continuance of the
Officer in Government Service, as recommended
by the Public Service Commission, is no
remedy. Having regard to the status of the
Officer and the nature of the charges proved
against him, Government have come to the
conclusion that he is unfit to continue in
Government service and direct that he may be
dismissed from service forthwith."
It will be seen from the said Order that the reason for
giving enhanced punishment above that recommended by the
Inquiry Officer as well as by the Service Commission was
that earlier he had committed similar offences and was
punished--once on April 1, 1954 and again on March 13, 1957.
In the second notice those facts were not given as reasons
for the proposed punishment of dismissal from service. The
respondent filed a petition in the High Court under Art.
226 of the Constitution for quashing the said order and the
High Court quashed the order of dismissal on the ground that
the said two circumstances on which the Government relied
for the proposed infliction of punishment of dismissal were
not put to the petitioner for being explained by him, in
the show cause notice, which was issued to the petitioner on
February 4, 1958. The impugned order was accordingly set
aside leaving it open to the State Government to dispose of
the matter afresh if it desired to do so after compliance
with the requirements of Art. 311(2) of the
544
Constitution. Hence the appeal.
Learned Attorney General contends that the Government is
entitled to take into consideration the previous record of a
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Government servant in awarding punishment to him and it is
not incumbent on it to bring to the notice of the Government
servant the said fact in the second notice. Alternatively,
he argues that whether a Government servant has had a
reasonable opportunity of being heard or not, being a
question of fact in each case, and in the instant case as
the Officer concerned had knowledge of his two earlier
punishments which formed the basis of the enhanced
punishment, he was not in any way prejudiced by their non-
disclosure to him in the second notice and, therefore, the
principles of natural justice were not violated.
Mr. Naunit Lal, learned counsel for the respondent, says
that a Government servant cannot be punished for his acts or
omissions unless the said acts or omissions arc subject of
specific charges and are enquired into in accordance with
law and that, in any view, even if the Government could take
into consideration a Government servant’s previous record
in awarding punishment, the facts that form the basis of
that punishment should at least be disclosed in the second
notice giving thereby an opportunity to the said Government
servant to explain his earlier conduct.
The material part of Art. 311(2) of the Constitution which
’embodies the constitutional protection given to a
Government servant reads thus:
"No such person as aforesaid 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."
Section 240(3) of the Government of India Act was pari
materig with the said clause of the Article of the
Constitution. That section fell to be considered by the
Federal Court in Secretary of State for India v. I. M.
Lall(1). In considering that sub-section, Spens C.J-,
speaking for the majority of the Court, made the following
remarks relevant to the present enquiry:
"It does however seem to us that the sub-
section
(1) [1945] F.C.R. 103, 139.
545
requires that as and when an authority is
definitely proposing to dismiss or to reduce
in rank a member of the civil service he
shall be so told and he shall be given an
opportunity of putting his case against the
proposed action and as that opportunity has
to be a reasonable opportunity, it seems to
us that the section requires not only
notification of the action proposed but of
the grounds on which the authority is
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 is proposed to be
taken ................. In our judgment each
case will have to turn on its own facts, but
the real point of the sub-section is in our
judgment that the person who is to be
dismissed or reduced must know that punishment
is proposed as the punishment for certain acts
or omissions on his part and must be told the
grounds on which it is proposed to take such
action and must be given a reasonable
opportunity of showing cause why such
punishment should not be imposed.
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This judgment was taken in appeal to the Privy Council, and
the Judicial Committee, after quoting in extenso the passage
just now extracted by us from the Federal Court judgment,
expressed its agreement with the view taken by the
majority of the Federal Court. This Court Khem Chand v. The
Union of India(1) also emphasized upon the importance of
giving a reasonable opportunity to a Government servant to
show that he does not merit the punishment proposed to be
meted out to him. Das C.J., speaking for the Court,
observed:
"In addition to showing that he has not been
guilty of any misconduct so as to merit any
punishment, it is reasonable that he should
also have an opportunity to contend that the
charges proved against him do not necessarily
require the particular punishment proposed to
be meted out to him. He may say, for
instance, that although he has been guilty of
some misconduct it is not of such a character
as to merit the extreme punishment of
dismissal or even of re-
(1) [1958] S.C.R. 1080, 1096.
546
moval or reduction in rank and that any of the
lesser punishments ought to be sufficient in
his case." The relevant aspect of the case has
been neatly brought out by the Nagpur High
Court in Gopalrao v. State(1). There, as here,
the previous record of a Government servant
was taken into consideration in awarding
punishment without bringing the said fact to
his notice and giving him a reasonable
opportunity of explaining the same. Sinha,
C.J. speaking for the Court, observed:
"Normally, the question of punishment is
linked up with the gravity of the charge, and
the penalty that is inflicted is proportionate
to the guilt. Where the charge is trivial and
prima facie merits only a minor penalty,, a
civil servant may not even care to defend
himself in the belief that only such
punishment as would be commensurate with his
guilt will be visited on him. in such a case,
even if in the show cause notice a more
serious punishment is indicated than what the
finding of guilt warrants, he cannot be left
to guessing for himself what other possible
reasons have impelled the proposed action. It
is not, therefore, sufficient that other
considerations on which a higher punishment is
proposed are present in the mind of the
competent authority or are supported by the
record of service of the civil servant
concerned. In a case where these factors did
not form part of any specific charge and did
not otherwise figure in the departmental
enquiry, it is necessary that they should be
intimated to the civil servant in order to
enable him to put up proper defence against
the proposed action."
Randhir Singh J. of the Allahabad High Court,
in Girja Shankar Shukla v. Senior
Superintendent of Post Offices, Lucknow
Division, Lucknow(2), distinguished the case
thus:
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"In the present case, however, those
punishments were taken into consideration
which are not only within the knowledge of the
applicant but which he had suffered
earlier ...................................
This is evidently not opposed to any
principles of
(1) I.L.R. [1954] Nag. 90, 94.
(2) A.I.R. 1959 All. 624, 625.
547
natural justice."
Multiplication of citation is not necessary, as the
aforesaid decisions bring out the conflicting views.
Under Art. 311(2) of the Constitution, as interpreted by
this Court, a Government servant must have a reasonable
opportunity not only to prove that he is not guilty of the
charges levelled against him, but also to establish that the
punishment proposed to be imposed is either not called for
or excessive. The said opportunity is to be a reasonable
opportunity and, therefore, it is necessary that the
Government servant must be told of the grounds on which it
is proposed to take such action: see the decision of this
Court in the State of Assam v. Bimal Kumar Pandit(1). If
the grounds are not given in the notice, it would be well
nigh impossible for him to predicate what is operating on
the mind of the authority concerned in proposing a
particular punishment: he would not be in a position to
explain why he does not deserve any punishment at all or
that the punishment proposed is excessive. If the proposed
punishment was mainly based upon the previous record of a
Government servant and that was not disclosed in the
notice, it would mean that the main reason for the proposed
punishment was withheld from the knowledge of the Government
servant. It would be no answer to suggest that every
Government servant must have had knowledge of the fact that
his past record would necessarily be taken into
consideration by the Government in inflicting punishment on
him; nor would it be an adequate answer to say that he knew
as a matter of fact that the earlier punishments were
imposed on him or that he knew of his past record.
This contention misses the real point, namely, that what
the Government servant is entitled to is not the knowledge
of certain facts but the fact that those facts will be taken
into consideration by the Government in inflicting
punishment on him. It is not possible for him to know what
period of his past record or what acts or omissions of his
in a particular period would be considered. If that
fact .was brought to his notice, he might explain that he
had no knowledge of the remarks of his superior officers,
that he had adequate explanation to offer
(1) [1964] 2 S.C.R. 1.
548
for the alleged remarks or that his conduct subsequent to
the remarks had been exemplary or at any rate approved by
the superior officers. Even if the authority concerned took
into consideration only the facts for which he was
punished, it would be open to him to put forward before the
said authority many mitigating circumstances or some other
explanation why those punishments were given to him or that
subsequent to the punishments he had served to the
satisfaction of the authorities concerned till the time of
the present enquiry. He may have many other explanations.
The point is not whether his explanation would be
acceptable, but whether he has been given an Opportunity to
give his explanation. We cannot accept the doctrine of
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"presumptive knowledge" or that of "purposeless enquiry", as
their acceptance will be subversive of the principle of
"reasonable opportunity". We, therefore, hold that it is
incumbent upon the authority to give the Government servant
at the second stage reasonable opportunity to show cause
against the proposed punishment and if the proposed
punishment is also based on his previous punishments or his
previous bad record, this should be included in the second
notice so that he may be able to give an explanation.
Before we close, it would be necessary to make one
point clear. It is suggested that the past record of a
Government servant, if it is intended to be relied upon for
imposing a punishment, should be made a specific charge in
the first stage of the enquiry itself and, if it is not so
done, it cannot be relied upon after the enquiry is closed
and the report is submitted to the authority entitled to
impose the punishment. An enquiry against a Government
servant is one continuous process, though for convenience it
is done in two stages. The report submitted by the Enquiry
Officer is only recommendatory in nature and the final
authority which scrutinizes it and imposes punishment is
the authority empowered to impose the same. Whether a
particular person has a reasonable opportunity or not
depends, to some extent, upon the nature of the subject
matter of the enquiry. But it is not necessary in this case
to decide whether such previous record can be made the
subject matter of charge at the first stage of the enquiry.
But, nothing in law
549
prevents the punishing authority from taking that fact into
consideration during the second stage of the enquiry, for
essentially it, relates more to the domain of punishment
rather than to that of guilt. But what is essential is that
the Government servant shall be given a reasonable
opportunity to know that fact and meet the same.
In the present case the second show cause notice does
not mention that the Government intended to take his
previous punishments into consideration in proposing to
dismiss him from service. On the contrary, the said notice
put him on the wrong scent, for it told him that it was
proposed to dismiss him from service as the charges proved
against him were grave. But, a comparison of paragraphs 3
and 4 of the order of dismissal shows that but for the
previous record of the Government servant, the Government
might not have imposed the penalty of dismissal on him and
might have accepted the recommendations of the Enquiry
Officer and the Public Service Commission. This order,
therefore, indicates that the show cause notice did not give
the only reason which influenced the Government to dismiss
the respondent from service. This notice clearly
contravened the provisions of Art. 311(2)of the Constitution
as interpreted by Courts.
This order will not preclude the Government from holding
the second stage of the enquiry afresh and in accordance
with law.
In the result the appeal is dismissed with costs.
Appeal dismissed.