STATE OF ASSAM & Anr. v. BIMAL KUMAR PANDIT

leave from the judgment and decree dated January 22, 1962, of the Assam High Court in Gauhati, in Civil Rule No. 369 ofl961. JJf. Q. Setalvad and Naunit Lal, appellant. N. C. Chatterjee and D. N. Mukherjee, for tq<; respond ent, 1963 ~talt of AJ.tam v. Bimai l .. umar Fontiit · 4 SUPREME COURT REPORTS jl964] VOL. 196;{. February 12. The Judgment of Court was delivered by Com111issioncr, i;>e dismissed from G.~.JE1'"DHAGADKAH . .J.- This appeal by special leave raises a short qu,:stion about the scope and effect of the provisions contained in Article :.111 (:?) uf the Constitution. The: said questiu11 arises in this respondent Bunal Kumar Pandit was way. The tl1c State of Assam, as an serving appellant :\o. I, :--hillong. On E:arn-Assistant December 11, l!J59, the second appellant, the Chief Secretary to the Government of Assa·n, scn•ed on the respondent a charge-sheet containing eleven specific charges and called upon him to show cause why he service or otherwise should not punisi1cd under Rule ;i5 of the; Civil Services (Classi Iication, Control & Appeal) l{ulrs read with Art. :HI of the Constitution. The said notice further infor med the respondent tl1at tlie Governor of As.sam had been pleased tu authorise the Commissioner of Plains the enquiry and to Divi, ion, Assam, to conduct 011 January 13, 1900 report to appellant No. 2. the respondent submitted an elaborate explanation in respect of all the charges. The Commissioner of Plains Division, Assam, Lllen proceeded to hold an enquiry and after considering the evidence adduced the report on April 12, 1960. before him, he made In this report the Enquiring Olliccr found that out of the 11 charges drawn up agains~ the respondent, 6 had not been proved and of the remaining 5 charges, two had been fully established-they were charges (7) and (IO); and the other three charges Nos. (I), (~) and (4) had been partially established. The report made these findings and proceeded to add that the· lapses proved did uot cast any serious doubt on the honesty and integrity of the delinquent officer, although the in respect of charges (I) and (2) proved his inexperience and that led under charges (2) and (4) showed his irrespom1bility. The report further stated that in the circumstances, the evidence led .. .. • • • 2 S.C.R. SUPREME COURT REPORTS 5 two charges which deserved consideration for pur poses of punishment were charges (7) and (10); and 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. 1963 Stat, of Assam v. Bima/ Kumar Pandit Gqfendragadkar, J. • <+ After this report was received, appellant No. 2 served a second respondent on notice on June 1, 1960. This notice referred to the discipli nary proceedings held against the respondent and added that the respondent was thereby required under clause (2) of Art. 311 of the Constitution to sub mit 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 sub mitted his explanation on June 21, 1D60 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 the respondent Assam was pleased to reduce in rank the Assam Civil Service, who was on probation in Class I to the Assam Civil Service Class II, perma the date he takes over as nently, with effect such. The Governor of Assam · further ordered th at the respondent will be on probation the said Class II 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 II and his ~eniority in the cadre wm1ld be determined with 1963 Stat1 llf Auo111 v. Bi:1Ml Kumnr Pow/if 6 SUPREME COURT REPORTS [1964] vot. effect from the date of his joining. This Order was made on July 8, 1961. The respondent thm challenged the validity of this order by a writ petition in the High Court of '.ln August, 24, l9til. One .Judicature at Assam of the points urged by him was that he had not been reasonable opportunity of showing cause given a against the action which was ultimately against him under Art. 311 (2); and he urged that the contravention of .\rt. 3ll (2) impugned order invalid. He urged other contentions also, but those have beer: rejected by the High Court, while his main point mder Art. 3ll (2) has been upheld. In the result, the High Court has allowed the writ petition and issued a mandamus directing the appellants not to ;~ive effect to the order date,-d It is against this order that the 8th July, 19Gl. appellants h;1ve come to this Court by special leave . rendered • We have already referred to the second notice served on the respondent under Art. 311 (2). The respondent's contention •vhich has been accepted by the High Court is that in the said notice, appellant No. l 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 impose upon the respondent the penalty of removal service. The High Court has hel<l that the notice issued under Art. 31 l (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 In other words the notice the delinquent oflicer. should expressly state th: conclusions of the <lismiss ing authority, because unless these conclusions are communicated to the delinquent otficer, he would not he able to make an ;tdequate or rffective reprc sc11tation. According tc the High Court, in rccor <ling such conclusions, tt e dismissing authority must • • • • 2 s.c.R. SUl>RF.ME COURT REPORTS 7 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 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 cont ends that in coming to this conclusion, the High Court has mis-interpreted the scope and effect of Art. 311 (2). 1963 St'Jte of Assam v. Bimal /( umar Pandit Gajendragudkar, J, inter alia, Article 311 (1) provides, that no person covered by the said sub-article shall be dis missed or removed by an authority subordinate to that by which he was appointed. We are not con cerned with this sub-Article in the present appeal. Article 311 (2) provides that no such person as speci fied in Art. 311 (1), shall be dismissed or removed or reduced in rank until he has Leen given a reason able opportunity of showing cause against the action proposed to be taken in regard to him. It is now that a public officer against whom well settled 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 In other words, at this first stage of '>Wn evidence. 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 dismiss ing authority has to consider the report and decide whether it agrees with the conclusious of the report or not. If the findings, in th<" report are against the I J.Wi.'J Statt oj A.1·wm v. fl i•nal K umnr Pandit 8 SUPREME COURT REPORTS [1964] VOL. in both 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 why disciplinary action should not be taken against l1im. In issuing the second notice, the dismissing ;u:thority naturally 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 requirement of justice in his case, and it is only after reaching conclusions 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 vali dity or the corr~ctness of the findings recorded by the enquiring officer and provisionally accepted by In other words, the second the dismissing authority. opportunity enables the public ofiicer to cover the whole ground and to plead that no case had bi~en made out against him for taking any disciplinary action and then to urge that if he fails in substantia ting his innocence, the action proposed ta be taken against him is either uncbly 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, the dismissing authority must indicate its conclusions on the findings recor ded by the enquiring officer and must specify reasons in support 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 pro posed 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 dismissing authority had applied its mind and had provisionally C·Drne to some conclusions • • 1963 State of Assam v. Bimal Kumar Pandit Gajendragadkar, J • 2 S.C.R. SUPREME COURT REPORTS 9 both in regard to the guilt of the public officer and It the punishment which his misconduct deserved. may be conceded that it is desirable that the dis missing authority should indicate in the second notice its c.mcurrence 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 that int:o officer against the delinquent officer, does duce such an infirmity in the proceedings as to make the final order invalid? We are not prepared to It seems to answer this question in the affirmative. us that it would be plain to the delinquent officer that the ismance of the notice indicating the provis ional conclusions of the dismissing authority as lo the punishment that should be imposed on him, obvio usly and clearly implies that the findings recorded against him by the enquiring officer have been accep ted by the dismissing authority; otherwise 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 thr impugned notice was served on the respondent, the Government bad accepted the findings of the enquiring officer which means tbat the Government agreed with the enqui ring officer in regard to both sets of findings recorded by him. Therefore, we do not think that the failure to state expre'Ssly that the dismissing a,1thority 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 enqui ring officer had been accepted by the appellants and so, we think it woulcl not be reasonable to accept the " • .. 1963 Slate "f A1.uam v. Bimal /, 'umo1 Punt/it ':a;tt1d111;adf..ar I. 10 SUPREME COURT REPORts [1964] VOL. view that in the present case, he had no reasonable opportunity as required hy Art. 311 (2). ". We ought, howcvcr, to add that if the dis missing autl10ritv differ; from the lindin<YS recorded i~ . the enquiry. ;.cpon, is necessary tl~at its pro v1s1onal concl11s1011s in th«l behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismis1ing authC1rity disagrees with the said findings and proceeds to the notice under In such a case, it would obviously be Art. 311 (2). necessary that the dismissing authority should ex pressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to bt· taken against the delin quent officer. Without such an express statement in the notice, it would be imJossible to issue the notice at all. There may also n:ay be cases in which the enquiry report may mal;e findings in favour of the delinquent officer on somi: issues and against him on some other issues. Tha: is precisely what has If the dismissing happened in the present case. authority accepts all tht said findings entirety, it is another matter: but if the dismissing authority accepts the fin:lings recorded against the delinquenl ofliccr and differs from some or all of those recorded in his fa\'1Jur and proceeds to specify the nature of the action proposed to be taken on it1 own conclusions, it would be necessary that lhe said conclusions should be briefly indicated in the notice. In this category of cases. the action proposed to be taken would be based not conly on the findings recor in the enquiry ded against the delinquc1t ofliccr report, but also on the view of the dismissing autho rity that the other charfCS not held proved by the enquiring officer arc, acrnrding to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportt:nity tll show cause under Art. 311 (2), the conclusions it is essential that • I • • • 1963 State ef Assam v. Bimsl J(tJmar Pandit Cajenlirag :dkar, J, 2 S.C.It SUPREME COUR1' REPORTS 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 i.»ue the notice against the delinquent officer after accepting the enquiry report in its entiretv, it cannot be said that it is essential that the dismissing auth ority 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 contravention of such a statement amounts In dealing with this point, we must Art. 311 (2). 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 1 ealising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the cone lusions of the enquiring officer in their entirety. It has, however, been urged by Mr. Chatterjee for the respondent that in the present case, the appe llants 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 pro inflicted on the 7espondent rather posed to be suggests that the appellants felt that some of the other charges which the enquiring officer had not .. .. • 1§63 State of Assam v. Bimal Kumar Pandit Gajendragadkar, J. 12 SUPREME COURT REPORTS [1964] VOL. 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 . • Y. D'Silva v. Union of Irulia (i), in the absence of rules or any statutory provisions to the contrary, the enquiring 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 respon dent was justified even on the findings recorded against him by the enquiring officer, and so, it would be idle to contend that unless the appellant~ had differed from the conclusi, ms of the enquiring officer in respect of the charges which he held not proved, they could not have legitimately thought of impos ing the said punishment on him. Therefore, in our opinion, the argument that the action proposed to be taken i tsclf shows th<tt the appel ]ants did not accept the findings recorded by the enr1uiring officer in favour nf the respondent must be rejt.~cted. We will now refer to some of the decisions on which ~1:r. Chatterjee relied. [n the case of The Hiyh Co11,,,1is,£oner of India v. I. 21{. Lr1l ('), the Federal C<w•t had to consider the scope and effect of the provisinm of s. 240(:{) of the C'mstitution Act of 19:l:l. Thi, provision is substantially similar to the provisions <\JOt~ined in Art. :l 11 (2) of the Constitu tion. According to the majority view of the Federal Court in that case, all thats. 240(:J) required was (I) [1962] Supp. IS. C.R. 968. (2) (IH!l] F. C, R. I03, 136. • .. 1963 Stale of AJsam v. Bimal Kumar Pandit G .. f·ndragadhar, 1. - - - • • 2 S.C.R. SUPREME COURT REPORTS 13 refers are the not only notification of the action proposed bqt 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 Lo 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 that clearly shows that the dismissing authority must indicate its reasons in support of the said action. In our opinion, this argument is not justified, because the context in which the said observations were 1rntde by the Federal Court clearly shows that the grounds to which the findings or conclusions judgment In fact, in the reached by the enquiring officer. 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 there of some authority definitely proposes dismissal or reduction 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 c;iuse with information why he should not suffer the proposed dismissal or reduc tion in rank." It would be noticed that this state ment 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 rank, 1963 5112·1 of As.um v. Himai Krmur Pt1'ldil Gt1jt11dra; adka1, J. 14 SUPREME COURT REPORTS [1964] VOL. In of the action proposed to be taken against him. 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 I. M. Lal's case supports the view taken by the High Court in the pr~ent proceedings. It is true that in the case of Kliem Chq, nd v. The Union of India (' ), this Court has held that : "Reasonable opportunity envisaged by Art. 311 (2) includes, inter-alia, an opportunity to make his repre sentation 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 ar:d after applying his mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the threr punish. ments 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 findmgs recorded in the report should be It is only if the findings recorded accepted or not. in the report against the Government servant are accepted by the appropriate authority that it has to provision:>lly deride what action should be agaimt him. But this does not mean that in every case, the appropriate authority is under a conslitu · tional obligation to state in the nolice that it has accepted the adverse findings recorded by the enquir· ing officer before it indicates I he nature of the act ion proposed to be taken against the delinquent officer. Therefore, we do not think that the decision of (1) (1~58] S. O. R. 1080, 1097. ' - ... • • • , 2 S.C.R. SUPREME COURT REPORTS 15 this Court Mr. Chatterjee's contention. in Khem Chand's case supprots 1963 State of Assam v. Bimal Kumar Pandit Gujendragtidkar, J. - - On the other hand, the decision of this Court in The Strite of Orissa v. Govindr; dris Panda (1), shows that a similar order issued by the Orissa Government In that case, the notice was upheld by this Court. issued under Art. 311 (2) did not expressly state that the State Government had accepted the findings recorded by the enquiring officer against the Govern ment servant in question. In fact, even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicated. The Orissa High Court had struck down the order of dismissal on the ground that the notice was defe ctive and so, the provisions of Art. 31 l (2) had been contravened. This Court in reversing the conclusion of the Orissa High Court, observed that "in the con text, it must have been obvious to the respondent that the p11n::;i1ment 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) accep ted the recommendation of the Administrative Tribu nal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service." It may be added incidentally that the pirnishment which had been suggested by Tribunal was removal from service, as distinguished from dismissal, and this Court held that the impugned to that notice must be deemed to have referred punishment as the action proposed to be against the Government servant. Therefore, decision, in substance, is against the contention raised by Mr. Chatterjee. There are, however, some decisions which seem to lend support to Mr. Chatte~jee's argument and it In the is, therefore, necessary to examine them. (l) Civil Appeal NO, 412/1918 decided on 10th Pee., 1958. 1963 s-1i;1e <1f Auom v. /l•M1~/ f,11111ur Pandit 16 SUPRE:ME COURT REPORTS [1964] VOL. case of '!'he State of Andhm v. '1'. Ramayya Suri('), the Andhra Pradesh High Court has held that "under Art. 311 (2) the authority concerned should nccessari · ly in its order requiring the civil srn·ant to sl10·.-· cause give not only the punishment proposed to !.Jc inflicted but als0 the reasons for coming to that con clusion." If this observation is intended to lay dowu a general rule that in every case the appropriat<.: 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. 31 I (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 WG:dd 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 opportw1ity to challenge the view which the Government wa, 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, in the notice, the however, does not mean that Government ought to state its grounds or reasons in It is the finding or the con support of its conclusion. clusion which the mind of the Government that must, in such a case, be communi cated to the public servant. is weighing In Bi11u1l Chnmn :llitra v. S1<1fr of Orissrt ('), 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 (I) A. I, R. 1957 ADdh. 370. (2) A. I. R. 1957 Oriua. 184. .. c - .• • 1963 Stfl.tt of Assdlm v. Bimal llumsr P&ndit dajendragadtar J. 2 S.C.R. SUPREME COURT REPORTS 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. 311 ( 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 manda tory 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 Krisltan Gopal J,fukherjee v. The State (1 ). The last decision to which reference must be made is the decision of the Bombay High Court in the Stc1te of Bombay v. Oajanan Maltadev Badley ('). 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 the Government proposes to take ground on which 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 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 (!) A.LR. 1960 Od"a 37, (2) A.J.R. 1954 Bom. 351. ' 1963 Sto!lt of Assam ·. v. Bitnal Kumar PJndit ~- ' --~- • 18 SUPREMlfCOURT REPORTS [1964] VOL. and so read, it would clearly ihow 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. Chattcrjee's argu ment that the notice issued under Art. 311(2) must expressly state that the appropriate authority accepts the findings of the enquiry ofiiccr 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 ~n 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 res pondent 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 i~ dismissed. There will be no order as to costs. Appeal allowed. ' ' l ... • • I ' ~: r• . I