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P. Sreeramulu and anr. Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal Nos. 386 and 387 of 1966
Judge
Reported inAIR1969AP114
ActsConstitution of India - Articles 226, 311 and 311(2)
AppellantP. Sreeramulu and anr.
RespondentState of Andhra Pradesh
Appellant AdvocateAdavi Rama Rao and ;K. Nagaraja Rao, Advs.
Respondent AdvocateGovt. Pleader
Excerpt:
.....311 (2) and opportunity of being heard to delinquent - in order to obviate any allegation of bias enquiry officers to avoid indicating punishment in charge memo - held, no bias or prejudice proved by mention of punishment in charge memo. - - but it seems to me that the observations made in the charge-sheet do not vitiate the proceeding in this case, especially because the final order imposing the punishment was made, not by the officer that made the observations, but by a person of a higher rank whose judgment is not shown to have been influenced in any manner by the observations that are complained of. hon'ble the chief justice of calcutta high court, [1955]2scr1331 .it is equally true that the entire proceedings beginning from the show cause notice, framing of the charges and the..........and thus failed to exercise proper care to government stock quite contrary to rules in force.' the enquiry officer having thus clearly given a finding on the charges even before the enquiry started had also proceeded to indicate the punishment. the ratio of this decision was set out by krishna rao, j., at page 257: 'the above facts clearly indicate that the enquiry officer had already prejudged the issue and can never be expected to maintain an pend mind during the course of the enquiry. in other words, the enquiry officer gave his judgment even before the trial, rendering the whole trial a mere farce. we are therefore justified in coming to the conslusion that the enquiry officer in the present case has not started his enquriy with an open mind but that he has prejudged the very issue.....
Judgment:

Jaganmohan Reddy, C.J.

1. These second appeals have been referred to a Bench by our learned brother, Parthasarathi, J., in view of the different points of view said to have been expressed in decided cases on some aspects of these appeals, namely whether the expression of any comment upon the alleged actions of the delinquents or of the proposed punishments in the very first show cause notice before enquiry would vitiate the enquiry and the finding. It appears that a head Constable and a police constable filed two suits in the District Munisifs Court Cuddaph, which are the subject-matter of these second appeals impugning the validity of the orders of dismissal dated 13th September 1960. The charges against them related to an incident regarding which their conduct was considered unmeritorious and reprehensible. The District Munisif, Cuddapah, disposed of these suits buy a common judgment and one of the issues he decided was whether the order of dismissal passed by Superintendent of Police, Cuddapah, on 13-9-1960 is illegal, arbitrary, ultra vires of his powers and against the canons of natural justice. he found this issue in favour of the plaintiffs holding that the enquring Officer had prejudged the issue as he had not an open mind at the time he started the enquiry. In the result, the District Munsif decreed both the suits. Against the decrees passed in both the suits, the State of Andhra Pradesh preferred appeals. The Subordinate Judge of Cuddapah allowed the appeals, set aside the judgment and decrees and dismissed the suits.

2. The main contentions that are urged in these second appeals on behalf of the appellants (plaintiffs) which were also urged before our learned brother are: (a) The Deputy Superintendent in his charge memo dated June 17, 1960 had prejudged the case against the plaintiffs inasmuch as he expressed, in categorical terms his opinion or verdict that the employees 'had abused their position and brought discredit to the department'. (b) The charge memo indicated the final punishment of dismissal and such an indication constitutes a violation of the terms of Article 311 of the Constitution, besides manifesting the bias which actuated and vitiated the whole process of inquiry.

3. Our learned brother, Parthasarathi, J. has, in a considered order of reference, dealt with several cases pertaining to the aforesaid questions and relying upon certain observations made by the Supreme Court of the United States in United States of America v. Morgan, (1941) 313 US 409 stated

'whether these observation can be regarded as laying down a rule which can be applied to all administrative tribunals, is a matter on which considerable doubt may be entertained. But it seems to me that the observations made in the charge-sheet do not vitiate the proceeding in this case, especially because the final order imposing the punishment was made, not by the officer that made the observations, but by a person of a higher rank whose judgment is not shown to have been influenced in any manner by the observations that are complained of.'

It is true that a person authorised to award a punishment can always entrust an enquriy to a person who is not so authorised Pradyat kumar Bose v. Hon'ble the Chief Justice of Calcutta high Court, : [1955]2SCR1331 . It is equally true that the entire proceedings beginning from the show cause notice, framing of the charges and the conduct of the enquiry and ending with the report and final show cause notice of punishment must conform to certain well accepted principles of natural justice i.e., that the Enquiring Officer must be unbiased and should not prejudge the case, and that the enquiry also must be fair and impartial by giving full opportunity to the delinquent to plead and establish his defence. It appears that even where it is not alleged that the punishing authority is not biased or has not in any way violated the principles of natural justice or has not transgressed any of the accepted principles upon which fair and impartial enquiries have to be held, the fact that he acts upon a report of an enquiry conducted by an officer who is biased or has violated the principles of natural justice or has prejudged the case, would nonetheless vitiate the finding and punishment. In the language of Das C. J., in State of U. P. v. Mohammed Nooth, AIR 1958 SC 86 at p. 91.

'If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion.'

It will, in our view, not avail of an answer to allegations of bias that it was not alleged that the punishing officer was not biased even thought he conduct of the Enquiring Officer had given rise to such bias. This principle of natural justice, owe think is equally applicable to enquries under Article 311 as they are to administrative tribunals and administrative enquries. The principle of natural justice would include within it impartiality of hearing process and the conducting of proceedings in good faith.

4. In Subba Rao v. State of Hyderabad, 1957 Andh LT 155 = (AIR 1957, Andh Pra 414), Subba Rao C. J. (as he then was delivering the judgment of the Bench consisting of himself and Mohammed Ahmed Ansari, J. (as he then was), and agreeing with the summary of the case law on the subject given by Sinha, J., in Choudhury v. Union of India, : (1957)ILLJ494Cal , observed at p. 162:

'Dobtless, the Government i.e., the authority entitled to punish the petitioner in this case can ordinarily delegate the holding of an enquiry to its subordinate officers before taking final action against him. But it is a fundamental principle of natural justice that the officer selected to make an enquriy should be a person with an open mind and not one who is either biased against the person against whom actions sought to be taken or one who has prejudged the issue.'

While it may not be permissible according to the observations made by the American Judges as cited by our learned brother to probe into the mental process of the enquiring officer or the person charged with making an administrative decision but nonetheless where bias or prejudice is obvious even before the enquiry commenced so as to raise a strong feeling in the mind of the delinquent that he has no hope of a fair trial, then the principle that 'justice should not only de done but seen to be done' has its full lmpact upon the validity of the proceedings.

It is true that the process in administrative enquiries need not follow the ideals and pattners of regular courts of law. As observed by Mr. Justice P. B. Mukharji of the Calcutta High Court in an article 'Administrative Law' (punished in the Journal of the Indian Law Institute, October 1958 Vol. 1, Part No. 1):

'The climate of the court, the climate of the orthodox jurisprudence, the pattern of the judicial procedure and the judicial environment, and the anatomy of the judicial process are all basically different from those of the administrative courts, the administrative agencies, the administrative process, and the administrative technique. To judicicialise the administrative process is one way to defeat the new demand, and to fly against the very reason for the growth and development of the administrative law'.

But nonetheless there can be no doubt that certain basic principles of natural justice apply equally to administrative enquries as to judicial enquiries. A person who has conducted a preliminary enquriy and found a prima facie case for a regular enquiry, will not be permitted to conduct the regular enquiry because he has already in some way formed an opinion in the case, or where an administrative superior has expressed definite views on the conduct of a delinquent officer, he will not be permitted to hold an enquiry. See 1957 Andh LT 155 = (AIR 1957 Andh Pra 414). In Suryanarayana v. State of Andhra Pradesh, (1967) 2 Andh WR 253 a Division Bench of this Court consisting of Chnadrasekhrar Sastry and Krishan Rao, JJ, had charge against the petitioner was as follows:

'all the above goes to prove that Shri R. Suryanarayana Add. Agricultural Demonstrator, Hiramandalam with an ulterior motive pre planned and committed the fraud by removing the paddy seed from the paddy seed bags procured by him.

He, being a responsible government servant on the spot, instead of taking steps to see that his subordinate staff do not commit fraud, misappropriation or any other irregularity, has himself deliberately committed the fraud and thus failed to exercise proper care to Government stock quite contrary to rules in force.'

The enquiry officer having thus clearly given a finding on the charges even before the enquiry started had also proceeded to indicate the punishment. The ratio of this decision was set out by Krishna Rao, J., at page 257:

'the above facts clearly indicate that the Enquiry officer had already prejudged the issue and can never be expected to maintain an pend mind during the course of the enquiry. In other words, the Enquiry Officer gave his judgment even before the trial, rendering the whole trial a mere farce. We are therefore justified in coming to the conslusion that the enquiry officer in the present case has not started his enquriy with an open mind but that he has prejudged the very issue before him.'

The facts in each case therefore will have to be taken into consideration in determining whether there is a violation of the principles of natural justice and fair hearing. In this cases on hand, the Deputy Superintendent of Police had, in the charge-memos dated 17th June 1960, stated that the delinquents 'had abused their positioned brought discredit to the department'. That was a categorical opinion and that in our view, indicates bias: or, at any rate, a fear or apprehension in the minds of the delinquents that they had no hope or chance of a fairtrial; to say that the delinquents did not protest at that time is to ignore the fact that they, being in service in the lowest rung, may have entertained a fear of antagonising the superior. At any rate, that cannot be a matter which can be taken into consideration in determining whether the proceedings have been validly initiate. In our view, k therefore, the expression of an opinion by the enquiry officer in the charge-memos that the delinquents had abused their position and thought discredit to the department would vitiate the proceedings.

5. On the second question whether the mentioning of the final punishment of dismissal in the charge memos constitutes a violation of Article 311 of the Constitution there is--as pointed out by Parthasarathi, J.--a divergence of view of Single benches of this Court. Our land brother Obul Reddy, J., in gunnnamma Naidu v. Sub-Collector Guddur, W. P. No. 1566 of 1967 D/- 28-10-1968 (AP) thought that this would cause a reasonable apprehension in the mind of a delinquent Officer that the Enquiry Officer had made up his mind and that he will not have a fair-play in that Officer were to enquiry against him. On the other hand, our learned brother Chinnappa Reddy, J., in Venkannna v. State of Andhra pradesh, W. P. No. 2033 of 1966 on 1-3-1968 (AP) and Sambaiah v. Government of Andhra Pradesh, W. P. No. 1275 of 1966, D/- 30-7-1968 (AP) was of the view that bias is not a legitimate inference that can be drawn invariably from the mere fact of the indication of punishment kin the charge memo. As pointed out by Chinnappa Reddy J., and as also noticed by us earlier the decision in 1967-2 Andh WR 253 was a case in which in the first show cause notice issued to the delinquent officer itself, the enquiry officer had given clear findings on all the charges and that was the ground on which the aforesaid Bench Decision, in our view and with respect, was rightly distinguished. The decision of our learned brother, Barisimham, J. in Mohan Das v. Superintendent of Police Khammmameth, (1967) 1 Andh WR 156 was also distinguished on the same grounds inasmuch as it was stated in the charge that the delinquent had grossly misbehaved in the affair.

It is o doubt true that our learned brother Krishan Rao, J. in R. Skkuryanarayana's case, 1967-2 Andh WR 253 (supra) did in the end mention that indicting the punishment in a charge-memo itself is not contemplated by Article 311 and is wholly inappropriate and that such an indication of penalty really offends Article 311 of the Constitution of India. In our view, that is not the ratio of that decision; and if that was the only ground, it would have to be seen whether in fact the indication of punishment prejudiced the defence of the delinquent of otherwise the enquiry was conducted in a fair and impartial manner and the provisions of Art. 311(2) were complied with.

6. In khem Chand v. Union of India, : (1959)ILLJ167SC their Lordships of the Supreme Court had considered a similar question. While referring to the observations of their Lordships of the Judicial Committee in High Commissioner for India v. I. M. Lall, AIR 1948 PC 121 in which the notice given to I. M. Lall did not specify dismissal as the only and particular punishment proposed to be imposed on him, but called upon him to show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority might think fit to enforce, S. R. Dasm C. J., said that the observations of their Lordships of the Judicial committee in I. M. lall's case, AIR 1948 PC 121, Supra, while agreeing with the view taken by the majority of the Federal Court, quite clearly indicted that what they agreed with was that second opportunity was to be given to the government servant concerned after the charges had been brought home to him as a result of the enquiry. 'their Lordships' the learned Chief Justice observed, 'made it clear that no action could, in their view, be said to be proposed within the meaning of the section until a definite conclusion had been come to on the charges and the actual punishment to follow was provisionally determined on, for before that stage the changes remained unproved and the suggested punishments were merely hypothetical and that it was on that stage being reached that the statute gave the civil servant the opportunity for whihc sub-section (30 made provision.'

A close perusal of the judgment of the Judicial Committee in I. M. Lall's case, AIR 1948 PC 121 (supra), will, however, show that the decision in that case did not proceed on the ground that an opportunity had not proceed on the ground that an opprtunity had not been given to I. M. Lall against the proposed punishment merely because in the notice several punishments were included, but the decision proceeded really on the ground that this opportunity should have been given after a stage had been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the proved charge tentatively and proposed a particular punishment. Khem Chand's case, : (1959)ILLJ167SC was one in which the charge-sheet had asked the delinquent to show cause why he should not be dismissed from service and though the report of the Enquiry Officer had found the delinquent guilty of practically all the charges for the first time the punishment of dismissal was suggested by him. But since he was not the punishing authority, he made a report to the Deputy Commissioner, k but who accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant. The Deputy Commissioner did not appear to have given the delinquent a further opportunity to show cause why that particular punishment should not be inflicted on him. It is this omission to indicate the punishment in the second show cause notice as required under Clause 92) of Article 311 that had been held to have contravened the constitutional protection and his dismissal was therefore set aside. Though S. R. Das C. J., no doubt said as page 308:

'If the competent authority were to determine before the changes were proved, that a particular punishment would be meted out to the government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject matter of the charge or, at any rate, as regards the punishment itself',

nonetheless did not say, that by itself would amount to violation of the principles of natural justice. The question as we have posed earlier, would be as to whether the indication of punishment in the charge memo by itself would amount to a violation of the principles of natural justice, or whether the constitutional protection guaranteed under clause (2) of Article 311 was also complied with. In many cases where punishment has been indicated, in the charge memo it may be that it was meant to indicate that if the charges are proved, that punishment would be meted out but it is not to say without anything further that the charges had been proved against him and therefore the punishment would be meted out.

7. In the other unreported decision of this Court in K. Venkateswara Rao v. Inspector-General of Police, Andhra Pradesh W. P. no. 1164 of 1964 dated 20-9-1965 (AP) the Bench consisting of Monohar Peshad, J. (as he then was) and kumarayya, J. had stated that the Deputy Inspector general of Police had disagreed with the Enquiry Officer in respect of one charge which he found as proved while agreeing with the finding that the other charge was held to be not been proved observed that

'as the order of the Deputy Inspector General of Police and the dissenting note do not show that officer had come to an independent decision after perusing the record, such an order cannot be sustained, and has to be quashed. After this, it is unnecessary for us to go into the other contnetion of the learned counsel for the petitioner whether the evidence on record is legal evidence or not so as to sustain the order of dismissal.'

After having so stated incidentally, the Bench also considered at the end the question whether the indication of punishment in the charge-memo would vitiate the enquiry. Reliance seems to have been placed by the Government Pleader for his contention that there is nothing wrong in indicating the punishment by a reference to the procedure contained in certain Police Standing Orders, but he could not produce them. on the other hand, the government Order with which they were concerned had definitely stated that the accused officers should not be asked to show cause against a particular penalty n the first charge-memo itself before the competent authority arrives at a provisional conclusion after completion of the enquirty, thereby giving rise to an argument that the authority concerned had prejudged the issues involved. Further a penalty can be suggested only with reference to the charges proved.

This decision in our view, is not an authority for the proposition that the mere mention of punishment would by itself vitiate the enquiry because the bench nonetheless held in that case that though there was a mention of penalty I the first show cause notice given to the petitioner therein, it does not appear that the Enquiry Officer had already made up his mind against the petitioner because if that was so, he would not have acquitted the petitioner of the charges. Manohar Pershad, J., had towards the end observed:

'In view of this there does not remain any force in the contention of the learned counsel for the petitioner that he was prejudiced by this mention of punishment in the first notice.'

8. An examination of the decided cases leads us to the conclusion that except in so far as the facts and circumstances of a particular case indicate prejudicial mind or amount to prejudging of the issue, the mere mention of punishment in the charge-memo by itself would not amount to bias or prejudice. If, as we said earlier, the provisions or clause (2) of Article 311 have to be complied with at the end of the enquiry; if so, a reasonable opportunity of being heard should be given by calling upon the delinquent to show cause as to why he should not be meted out with the punishment indicated in the charge-memo un respect of the charges held to have been proved against him. While this is so, in order to obviate any allegation of bias or prejudgment, it is always best for the Enquiry Officers to avoid indicating punishment in the charge.

9. In view taken by us on the first two questions, the last two questions specified in the order of Prthasarathi, J., need not be considered. The appeals are allowed with costs in this Court and in the Courts below, the judgment of the first appellate Court set aside and that of the trial Court restored.

10. Appeals allowed.


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