Rama Jois, J.
1. In this Petition in which a former member of the Indian Administrative Service (member of the Service) has prayed for quashing the order made by the President imposing the penalty of dismissal from service against him, the following question of law arises for consideration :
Whether an order made by the President under Rule 9(4) (ii)(b) of the All India Services (Discipline and Appeal) Rules, 1969, imposing penalty of dismissal from service, against a member of the Service, merely expressing agreement with the advice tendered by the Union Public Service Commission, after considering the reply furnished by the member of the Service to the show-cause notice issued by the President proposing to impose the penalty, is invalid on the ground that it is not a speaking order?
2. The facts of the case, in brief, are as follows : The petitioner was a member of the Indian Administrative Service allotted to the State of Karnataka. A departmental inquiry was instituted against him under the provisions of the All India Services (Discipline and Appeal) Rules, 1969 ('the Rules' for short). Six charges of misbehaviour as set out in the Article of Charges (Exhibit-A) were framed and the same were communicated to the petitioner together with the statement of imputations of misconduct and misbehaviour in support of each of the article of charges. Sri Veeraraj Urs, the then Commissioner of Commercial Taxes of the State, was appointed as the Inquiring Authority to inquire into the charges against the petitioner. After holding a regular inquiry in accordance with the rules, the inquiring Authority held that out of the six charges framed against the petitioner, Charges 1, 2 and 6 were proved fully and Charge 5 partly, and that Charges 3 and 4 were not proved. The Inquiring Authority submitted his report to the President, the Disciplinary Authority.
3. The President agreed with the findings of the Inquiring Authority and issued a notice dated 19-10-1974 (Exhibit-R1 produced along with the statement of objections), calling upon the petitioner to show-cause as to why the penalty of dismissal from service should not be imposed against him. The petitioner submitted his detailed reply to the show-cause notice. Thereafter, the inquiry records together with the inquiry report, the show-cause notice and the reply furnished by the petitioner, were sent to the Union Public Service Commission ('the Commission' for short) for its advice. On Consideration of the inquiry records, the inquiry report and the reply furnished by the petitioner, the Commission advised that the findings recorded against the petitioner were sound and that he was liable to be dismissed from service. Accepting the said recommendation, the President made the impugned order. Aggrieved by the said order, the petitioner has presented this Petition.
4. At the hearing, the only contention urged by Shri B.S. Keshava Iyengar, Learned Counsel for the petitioner, was that the final order made by the President was not a speaking order, in that there was no application of the mind of me President to the reply furnished by the petitioner to the show cause notice and, therefore, the same was violative of Article 411(2) of the Constitution read with Rule 9(4) of the Rules.
5. In support of the above contention, Learned Counsel for the petitioner relied on the Judgment of this Court in the case of Ramachandrappa v. State of Mysore, 1967(2) Mys. L.J. 360 and G.V.M. Nadagouda v. State of Mysore, 1973(2) Mys. L.J. Sh. N. p.31. In both these cases, which arose under the provisions of the Karnataka Civil Services (Classification, Control and Appeal) Rules ('the KCS(CCA) Rules' for short) this Court held that when a civil servant was called upon to furnish his reply to a show-cause notice proposing to impose a major penalty and a reply had been sent by the civil servant concerned, it was obligatory on the part of the disciplinary authority to consider the various points raised in the representation made and pass the final order. This Court held that the disciplinary authority could not proceed on the assumption that there were no new points, or that all of them had been considered by the Inquiring Authority as had been done in those cases and in this behalf pointed out that a civil servant gets the first opportunity to contest the findings recorded against him in the inquiry by the Inquiring Authority or the Disciplinary Authority, as the case may be, only when the second show cause notice regarding proposed penalty in terms of Article 411(2) and the relevant procedural rules. The basis for the above conclusion was, that at the stage of second opportunity, a civil servant is not only entitled to represent against the penalty proposed, but also against the findings recorded in the inquiry, (See : Union of India v. Rajappa Menon, : 2SCR343 ; State of Assam v. Bimal Kumar, : (1963)ILLJ295SC and Bachittar Singh v. State of Punjab, : AIR1963SC395 ), not making of a specific order after considering the reply, vitiates the final order.
6. In view of the aforesaid decisions, there can be no doubt that a proper consideration of the reply furnished by the delinquent officer is obligatory. In the present case, what has been done is the reply submitted by the Petitioner had been forwarded to the Commission and it had considered the representation in great detail and advised the president that there was no substance in the reply furnished by the Petitioner and that having regard to the gravity of the charges, the Petitioner should be dismissed from service. The President accepted the advice and made the impugned order. The impugned order itself does not set out the grounds or reasons for rejecting the points submitted in the reply. It is in these circumstances the question set out first arises for consideration.
7. While Article 411 (2) as it stood prior to 1-2-1977 made it obligatory to give two opportunities to a delinquent civil servant, first at the inquiry stage and second after the findings are recorded and before imposing one of the three major penalties, Article 409 confers power on the Legislature to regulate by or under law the content of reasonable opportunity, i.e., the procedure for holding disciplinary proceedings. The Rules are those made under an Act of Legislature viz. The All India Service Act, 1951. The answer to the question depends upon the provisions of the Rules.
8. Rule 9 of the Rules prescribes the procedure to be followed after the submission of inquiry report before making a final order.
(i) The first Sub-rule of the rule empowers the Disciplinary Authority to remit a case for re-inquiry for reasons to be recorded. The second sub-rule provides that if the Disciplinary Authority disagrees with the findings of the Inquiring Authority it should record its reasons for such disagreement. The third sub-rule provides that if the Disciplinary Authority agrees with the findings recorded against a member of the Service on all or any of the charges framed against a member of the Service and it is of the opinion that any one of the minor penalties specified under Clauses (1) to (iv) of Rule 6 of the Rules should be imposed, the authority can straightaway proceed to impose the penalty after ascertaining the advice of the Commission. These three sub-rules are not applicable to the facts of this case.
(ii) The fourth sub-rule provides that if the Disciplinary Authority having regard to its finding on all or any of the article of charges is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 6 of the Rules, namely major penalties, should be imposed on a member of the Service, the Disciplinary Authority is required to furnish to the member of the Service a copy of the report and call upon the member of service to show cause against the penalty proposed to be imposed on him. At this stage, there is no dispute that all that the Disciplinary Authority is required to do is to express agreement with the findings recorded by the Inquiring Authority, for the doing of which no reasons need be recorded. (See : Bimal Kumar, : (1963)ILLJ295SC and State of Madras v. Srinivasan, AIR 1966 SC 1827). If the finding of the Inquiring Authority were to be in favour of the member of the Service and the Disciplinary Authority were to disagree with the findings and were to hold that the charges levelled against the concerned member of the Service are proved, the authority is required to record its reasons.
9. Though the Learned Counsel for the Petitioner submitted that the Disciplinary Authority had not recorded its findings, at all before issuing the show-cause notice, the submission is not well founded. The relevant portion of the show-cause notice (Exhibit R-1) reads :
'3. On a careful consideration of the Inquiry Report aforesaid, the President agrees with the findings of the Inquiring Authority and holds that charges Nos. (3) and (4) have not been proved, charges Nos. (1). (2) and (6) have been proved and charge No. 5 has been proved to the extent mentioned in the Inquiry Report. The President has, therefore, provisionally come to the conclusion that Sri Pratap Singh Dardi is not a fit person to be retained in service and so the President proposes to impose on him the penalty of dismissal from service in terms of Rule 6(1)(ix) of the All India Services (Discipline & Appeal) Rules, 1969.
4. Shri Pratap Singh Dardi is hereby given an opportunity of making a representation on the penalty proposed but only on the basis of the evidence adduced during the inquiry. Any representation which he may wish to make in this connection will be considered by the President and such representation, if any, should be made in writing and submitted through the Government of Karnataka not later than 15 days from the date of receipt of this Memorandum by Shri Pratap Singh Dardi.'
(Underlined by me)
The contents of the show-cause notice clearly indicate that the President who is the Disciplinary Authority agreed with the findings of the Inquiring Authority on charges 1,2,5 and 6 and held that they have been proved against the Petitioner. Therefore there is infirmity at the stage of is suing show cause notice.
10. The contention urged by the Learned Counsel for the Petitioner, as indicated earlier, was that the final order made by the President was invalid for non-consideration of the reply given by the Petitioner to the show-cause notice.
13. Sub-Rule 4 (ii) (a) and (b) of Rule 9 of the Rules prescribe the procedure to be followed at the final stage, namely, after the receipt of reply from the delinquent member of the Service. Rule 4 (ii) (a) provides that the record of the inquiry together with the copy of the notice given to the member of the Service and the representation made in reply to the said notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice. In the present case, there is no dispute that all these records including the reply furnished by the Petitioner to the show-cause notice had been forwarded to the Commission and the Commission had tendered its advice. A copy of the advice tendered by the Commission is produced as Exhibit R-2. The said advice given by the Commission indicates that the Commission had considered the representation of the Petitioner contesting the findings recorded by the Inquiring Authority as also his complaint regarding procedural defects in great detail. The Commission was of the view that there had been no procedural defect and on merits of the case there was overwhelming evidence in support of the charges of which the Petitioner was found guilty. The Commission concluded as follows :
'10. In the light of their findings as above and after taking into account all other relevant factors, the Commission consider that Shri Dardi has proved himself to be a disgrace to his service and wholly unfit to be retained in Government service in any capacity and that he should be dismissed therefrom. They advise accordingly.'
The President made the final order, which is produced as Exhibit-P along with the Petition. The operative portion of the order reads.
'2. Shri M. Veeraraj Urs, IAS, the then Commissioner for Commercial Taxes, Karnataka, was appointed as the inquiring Authority to inquire into the charges against Sri Pratap Singh Dardi. A copy of the report of the Inquiring Authority was furnished to Shri Pratap Singh Dardi, with this Department's memorandum No 105/2/73-AVD. I, dated the 19th October 1974.
3. The President has considered the records of the proceedings, the report of the Inquiring Authority including his findings on each article of charge, the representations made by Shri Pratap Singh Dardi and advice of the Union Public Service Commission contained in the Commission's letter No. F.3/104/-75 SI dated the 14th August 1976 (copy enclosed). The President agrees with the conclusions of the Union Public Service Commission and holds that Articles 3 and 4 of the charge are not proved, Articles 1, 2 and 6 of the charge are proved, and Article 5 of the charge is proved to the extent that Shri Yellappa, Peon, is asking him to massage his legs and thighs.
4. In the light of the findings as above and after taking into account all relevant factors, the President considers that Shri Pratap Singh Dardi, is not a fit person to be retained in service and determines that the penalty of dismissal from service in term is of Rule 6(1)(ix) of the All India Services (Discipline and Appeal) Rules, 1969, should be imposed on Shri Pratap Singh Dardi and orders that Shri Pratap Singh Dardi be and is hereby dismissed from service with effect from the date of service of this Memorandum on Shri Pratap Singh Dardi.'
The contents of the final order of the President indicate that the President agreed with the advice tendered by the Commission and was of the view that the penalty of dismissal from service should be imposed against the petitioner.
12. It is here the Learned Counsel for the petitioner vehemently maintained that there has been gross violation of Rule 9(4)(ii)(b) of the Rules read with Article 411(2) as it was in force. He argued that the contents of the final order itself established that the President had not independently considered the representation furnished by the petitioner and therefore the final order was liable to be quashed on the basis of the ratio of the judgments of this Court in the case of Ramachandrappa, 1967(2) Mys. L.J. 360 and G.V.M. Nadagouda, 1973(2) Mys. L.J. Sh. N. p.31.
13. There can be no doubt that if Rule 9(4)(ii)(a) and (b) of the Rules are in pari materia with Rule 11(10) of the KCS (CCA) Rules, the President would be under an obligation to consider the reply to the show cause notice himself independently and such consideration must be found and incorporated in the final order. It is therefore necessary to set out the two rules side by side.
THE ALL INDIA SERVICES (DISCIPLINE & APPEAL) RULES, 1969
THE KARNATAKA CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL)RULES, 1957.
9.Actionon the inquiry report :-
11. Procedurefor imposing majorpenalties.
(4) ** **
(ii)(a) in every case the record of the inquiry, together with a copy of thenotice given under clause (i) and the representation made in pursuance of suchnotice, if any, shall be forwarded by the disciplinary authority to theCommission for its advice ;
(10)(ii)(a)In every case in which it is necessary to consult the Commission, the recordof the inquiry, together with a copy of the notice given under clause (i) andthe representation made in response to such notice, if any, shall beforwarded by the Disciplinary Authority to the Commission for its advice onthe penalties proposed to be imposed on the Government servant.
(b) thedisciplinary authority shall, after considering the representation, if any, madeby the member of the Service, and the advice given by the Commission,determine what penalty, if any should be imposed on the member of the Serviceand make such order as it may deem fit.
(b) Onreceipt of the advice of the Commission, the Disciplinary Authority shallconsider the representation, if any, made by the Government servant as aforesaid,and the advice given by the Commission and determine what penalty, if any,should be imposed on the Government servant and pass appropriate orders onthe case. (Underlined by me)
The underlined words of Rule 11(10)(ii)(a) of the rules are significant. These were added by an amendment made to the rules on 26-8-1965. Thus there is an important difference between the provisions of the two rules, i.e.
(i) Under Rule 11(10)(ii)(a) of KCS (CCA) Rules the disciplinary authority is required to seek the advice of the Commission only on the penalty proposed and not in respect of the findings recorded in the inquiry.
(ii) Under Rule 9(4)(ii)(a) of the Rules, the advice of the Union Public Service Commission required to be taken is not limited to the quantum of penalty.
Thus under Rule 9(4)(ii)(a) of the Rules, the Commission is required to consider the entire inquiry records including the contents of the notice given by the Disciplinary Authority and the representation made by the concerned member of the Service in reply thereto and has to furnish its advice to the Disciplinary Authority. Thus, unlike under Rule 11(10)(ii)(a) of KCS (CCA) Rules, under which the State Public Service Commission is required to advice only in the matter of quantum of penalty, under Rule 9(4)(ii)(a) of the Rules, the Commission is required to consider not only the adequacy of the quantum of penalty proposed but also the correctness of the findings recorded by the Inquiring Authority. Indeed, in the present case, the Commission has, in obedience to this rule considered the representation furnished by the petitioner in great detail and has furnished its advice to the President. The Commission advised not only the acceptance of the findings on charges held proved against the petitioner by the Inquiring Authority but also advised that the penalty of dismissal from service should be imposed. The President has accepted the advise of the Commission. Such acceptance, in my opinion, is in conformity with Rule 9(4)(ii)(b) of the Rules.
14. Just as at the first stage, when the holding of the inquiry is entrusted to an Inquiring Authority, the Disciplinary Authority, need not give any reasons for agreeing with the finding of the Inquiring Authority, (See : Bimal Kumar, : (1963)ILLJ295SC and Srinivasan, AIR 1966 SC 1827), at the second stage when the rules entrust the task of consideration of the representation of the delinquent member of the Service to the Commission, the President, if he agrees with the advice, he need not give any reason separately. Thus the obligation to consider the representation is there, but it is entrusted by the rule to an expert constitutional body, i.e., the Commission. Here again, on the analogy of the first stage, the President is bound to give reasons if he were to disagree with the advice of the Commission and not in a case in which he agrees. In other words, the advice, given by the Commission stands adopted by and becomes part of, the order of the President. In this case also, as the President accepted the advice of the Commission, the advice of the Commission should be read as part of the final order and so read, it is clear that the infirmity sought to be made out for the petitioner does not exist.
15. The above position in law is made clear by the Supreme Court while rejecting a similar argument in the case of Tara Chand v. Delhi Municipality, : (1977)ILLJ331SC the relevant part of which reads.
'We are not prepared to accept the argument. In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal though even in such a case, it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, no doubt, quasi-judicial, but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on the State Government to record reasons in every case.'
For these reasons, I hold that there is no substance in the contention urged for the Petitioner. It is therefore rejected.
16. Before concluding, I must point out that in view of the above position emerging from Rule 9(4)(ii)(a) and (b) of the Rules, it is necessary for the respondent to enclose the advice of the Commission to the final order. In this case, it was not done, but the same was produced along with the statement of objections. This aspect is required to be taken note of by the respondents hereafter, while communicating the final order made under the Rules accepting the advice of the Commission.
17. For the reasons aforesaid, I answer the question set out first in the negative and make the following order :
(i) Rule discharged
(ii) Petition dismissed.
(iii) No costs.