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Marakaiah (R.) Vs. Tribunal for Disciplinary Proceedings - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1961)IILLJ536AP
AppellantMarakaiah (R.)
RespondentTribunal for Disciplinary Proceedings
Excerpt:
.....with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to..........that notwithstanding anything contained in the andhra civil services (classification, control and appeal) rules, the government shall be the authority competent to impose a penalty in cases enquired into by the tribunal.10. it is apparent that these rules were made by the governor of the state under the express powers conferred on mm by the constitution, that the rules apply to all members of the state services without distinction, gazetted or non-gazetted, that by the rules, the tribunal shall, after enquiry, send its findings and recommendations to the government and that the government shall be the authority competent to impose a penalty.11. the provisions of the constitution relevant in this context are article 310(1) which provides inter alia thatevery person who is a member of a.....
Judgment:

Narasimham, J.

1. This Is an appeal against the judgment of our learned brother Seshachelapati, J. In Writ Petition No. 316 of 1960 rejecting the prayer of the appellant; for the issuance of a writ of prohibition or other appropriate writ, direction or order restraining the Tribunal for Disciplinary Proceedings from proceeding with the enquiry against the appellant.

2. The facts of the appellant's case are briefly these:-- The appellant was entertained in the revenue department on 11 March 1942. He worked as the deputy tahsildar, Sringavarapukota in Visakhapatnam district from 2 May 1954 to 6 December 1954 and from 16 May 1955 to 2 November 1955. He was promoted as tahsildar on 3 November 1955 and was continuing in that capacity. On complaints made to the authorities alleging that he had received illegal gratifications in granting taccavi loans when the appellant was the deputy tahsildar, the X Branch, C.I.D. enquired into the allegations and reported to the Government that there was sufficient evidence to frame charges against the appellant. The Government thereupon directed an enquiry by the Board of Revenue. Charges were framed by the Board of Revenue on 20 May l959, and the appellant furnished his explanation on 16 October 1959. While the enquiry was pending before the Board of Revenue, the Government notified that tahsildars are gazetted officers with effect from 1 November 1958. Consequent on the upgrading of the posts of tahsildars, the Government referred the case of the appellant for enquiry by the Tribunal for Disciplinary Proceedings. The Government purported to do so under Rule 4(2) of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953. The tribunal thereafter framed charges and started the enquiry against the appellant. The enquiry against the appellant was adjourned several times at the request of the appellant. At that stage, the appellant applied to this Court for a writ for the relief's as set out supra on 16 May 1960. In the affidavit filed in support of the writ petition, the appellant averred that the Government could not withdraw a part-heard enquiry before the Revenue Board and refer his case to the tribunal afresh, that the remedies open to the appellant in the case of a departmental enquiry are different, that the appellant was prejudiced by the reference to the tribunal, that the reference to the tribunal was therefore bad and that the appellant was put to great hardship.

3. The Government filed a counter-affidavit negativing the averments in support of the writ petition.

4. Our learned brother, Seshachelapati, J. rejected the petition finding that there were no merits therein. That is how the matter is before us in appeal.

5. Sri Chennakesava Reddy for the appellant has advanced the following contentions before us. Firstly, he urged that Sub-rule (2) of Rule 4 of the Andhra Civil services (Disciplinary Proceedings Tribunal) Rules, 1953, hereinafter to be referred to as the Tribunal Rules, under which the appellant's case was referred to the tribunal, is arbitrary and offends Article 14 of the Constitution and as such the reference itself has to be struck down. He relies on Dhirendranath Das v. State of Orissa A.I.R. 1958 Orissa 96 as supporting his contention. We would at the outset read the relevant rules notified by the Governor in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution of India. The rules had come into force on 1 October 1953 and they shall apply to all officers under the rule-making control of the State Government. The tribunal was appointed by the Governor.

6. Rule 4, in so far as it is relevant, is in these terms:--

(4)(a) The Government shall, subject to the provisions of Rule 5, refer to the tribunal cases relating to gazetted officers in respect of matters involving corruption in the discharge of their official duties:

(b)* * *(2) Government may, subject to the provisions of Rule 5, also refer to the tribunal any other case or class of cases which, they consider, should be dealt with by the tribunal.

(3) Notwithstanding anything contained in Sub-rule (1) or Sub-rule (2), oases arising In the judicial department shall not be referred to the tribunal.

7. Rule 5 is in the following terms:--

Rule 5(a). In every case referred to in Sub-rule (1) and Sub-rule (2) of Rule 4 on completion of investigation, anti-corruption department or other departmental authority concerned, shall forward to the Government all the records of the case.

(b) The Government snail, after examining such records and after consulting the heads of the departments concerned, If necessary, decide whether the case shall be tried in a Court of law or by the tribunal or by a departmental authority.

(c) If the Government decide that the case shall be tried by the tribunal, they shall send the records to the tribunal.

8. Rule 8 refers to the procedure to be adopted by the tribunal in conducting the enquiries before it. It provides inter alia that after the enquiry baa been completed, the tribunal shall send its findings and recommendations to the Government.

9. Rule 9 expressly provides that notwithstanding anything contained In the Andhra Civil Services (Classification, Control and Appeal) Rules, the Government shall be the authority competent to impose a penalty in cases enquired into by the tribunal.

10. It is apparent that these rules were made by the Governor of the State under the express powers conferred on Mm by the Constitution, that the rules apply to all members of the State services without distinction, gazetted or non-gazetted, that by the rules, the tribunal shall, after enquiry, send its findings and recommendations to the Government and that the Government shall be the authority competent to Impose a penalty.

11. The provisions of the Constitution relevant in this context are Article 310(1) which provides inter alia that

every person who Is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of State.

Article 311 deals with

the dismissal, removal or reduction In the rank of persons employed In civil capacities under the Union or a State.

The said provision expressly enunciates that no person who holds a civil post under a State shall be dismissed or removed by an authority subordinate to that by which he was appointed and further that no such person as aforesaid shall be dismissed or removed or reduced In rank until he has given a reasonable opportunity of showing cause against theaction proposed to be taken in regard to him. The Constitution provides only these safeguards for delinquent officers.

12. We may now read Article 14 which enunciates that 'the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.' This article has received consistent Interpretation by the Supreme Court that while the article forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. A permissible classification has to satisfy two conditions: firstly, that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and secondly, that differentia must have rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. Vide Bhudhan Choudhry v. State of Bihar : 1955CriLJ374 restated in Ram Krishna Dalmla v. Justice Tendolkar : [1959]1SCR279 , Sri Chennakesava Reddy urges that Article 14 of the Constitution is violated by the rule because 'it amounts to gross discrimination between non-gazetted Government servants who may have committed identical acts of misconduct.' (Ground No. 5.)

13. His contention appears to be that the cases against non-gazetted officers cannot be referred to the tribunal at all and by such reference in the case of any non-gazetted officer, a discrimination is made out. For this proposition he assumed that as the appellant is charged with alleged acts of misconduct when he was a deputy tahsildar (a non-gazetted officer), he must be dealt with as a non-gazetted officer for purposes of enquiry, though It transpired that at the time of the reference and enquiry following it he Is a gazetted officer.

14. We do not consider that the said assumption is right. In every case the status of the officer at the time of the reference and the enquiry following it is the deciding factor and not what the delinquent officer was at the same of the alleged misconduct. Ordinarily, when enquiries are made expeditiously such a contingency may not arise. But, there could be cases where a non-gazetted officer might have been promoted subsequently to a gazetted rank. It is neither propriety, nor is there any express rule, that the enquiry Into the charges should be as the delinquent official was in the past. Sri Chennakesava Reddy has not placed before us any authority in support of this assumption. Our learned brother has rejected the assumption expressing thus:

In my view, the relevant time factor Is not the date of the commission of the offence, but the date of the reference and what determines that reference to the tribunal Is the office that the miscreant holds on the date of the reference, that Is, whether he holds a gazetted post or not.

We consider that this is a correct statement of the position. So, this assumption cannot be countenanced. If this assumption fails, the argument that he has been discriminated against and his case has been singled out of other oases of non-gazetted officers fails also.

15. There is nothing in the rules, which apply equally to gazetted and non-gazetted officers, which we could say are violative of Article 14 of the Constitution.

16. Sri Chennakesava Reddy has argued that Rule 4(2) is subject to Rule 5 and Sub-rule (b) of Rule 5, extracted supra, which confers an arbitrary power on the Government in deciding whether the case should be tried in a Court of law or by the tribunal or by a departmental authority. The learned Counsel has argued that this gives an uncontrolled power, the exercise whereof is bound to be arbitrary.

17. Thus, the question arises whether the decision as to the forum of enquiry from the specified forums involves a capricious or arbitrary exercise of power or discretion in the decision thereof.

18. We consider that the choice of the Government from the specified forums cannot possibly be Impugned. The Supreme Court has repelled such a contention in Kapur Singh v. Union of India 1960 S.C.J. 487. In that case Sardar Kapur Singh, a former member of the Indian Civil Service, was dismissed from service on charges of corruption and other acts of misconduct, after an enquiry held under the Public Servants (Inquiries) Act, 1850. It would appear that the Government was invested with powers to direct an inquiry under any one of the two alternative modes, either under the Public Servants (Inquiries) Act, 1850 or under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It was contended before the Supreme Court that by holding an Inquiry under the Public Servants (Inquiries) Act which contained more stringent provisions; Article 14 of the Constitution was infringed; when against another public servant similarly circumstanced, an enquiry under Rule 55 may be directed. After a discussion of the provisions of the Constitution, the plea was negatived with these observations:

The primary constitutional guarantee, a member of the Indian Civil Service is entitled to is one of being afforded a reasonable opportunity of the contents set out earlier, in an enquiry in exercise of powers conferred by either the Public Servants (Inquiries) Act or Rule 65 of the Civil Services (Classification, Control and Appeal) Rules and discrimination is not practiced merely because resort is had to one of two alternative sources of authority; unless it is shown that the procedure adopted operate to the prejudice of the public servant concerned. In the case before us, the enquiry held against the appellant Is not in manner different from the manner in which an enquiry may be held consistently with the procedure prescribed by Rule 55, and therefore on a plea of Inequality before the law, the enquiry held by the Enquiry Commissioner is not liable to be declared void because it was held in a manner though permissible in law, not in the manner the appellant says it might have been held.

19. Sri Chennakesava Reddy has argued that he could still say that the procedure adopted operated to the prejudice of the public servant concerned because the appellant would have a right of appeal against an adverse decision of the Board In any event, whereas that right is now taken away.

20. We do not consider that there Is any merit in this line of argument. The prejudice contemplated has reference to the different procedures and not whether decisions taken by the enquiring bodies could be appealed from. If there Is nothing violative in the Government directing an enquiry in any of the alternative modes prescribed, the exercise of that power cannot be attacked as violative with reference to the appeal ability of the decisions. An appeal does not exist as of right. It must be expressly conferred, and decisions cannot be said to be violative where no appeals are provided. A fortiorari it is not open to attack the reference itself as violative because the decision on an enquiry by a certain body is not subject to an appeal.

21. The argument that the procedure followed by the tribunal is prejudicial because no right of appeal is provided against the tribunal's findings, assumes that the right of appeal is a matter of mere procedure. But, it is not so. A right of appeal is not merely a matter of procedure. It is a matter of substantive right. The Supreme Court has lucidly stated in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh : 1983(13)ELT1277(SC) , p. 224 of the judgment.

22. Sri Chennakesava Reddy has also relied on the above decision for his contention that as soon as the enquiry was taken up against the appellant by the Board of Revenue, the right of appeal against the Board's decision was vested in the appellant and that cannot be taken away. That would be so if the right of appeal against the decision of the Board of Revenue was taken away by some amendment of the rules or otherwise subsequent to the enquiry commenced by the Board. But, such is not the case. In the present case, the Government have withdrawn the enquiry from the Board of Revenue and referred the matter to the tribunal. The decision of the Supreme Court discussed the question with reference to the effect of an amendment to the Central Province and Berar Sales Tax Act, 1947, on the right of appeal to the assessee. The learned Judges held that the right of appeal was governed by the provision as It stood before the amendment and that the amendment was not retrospective. The decision is of little assistance to the appellant.

23. We may also refer to a Division Bench Ruling of this Court:--M.V. Joga Rao v. State of Madras (now Andhra) 1956 A.L.T. 979 wherein the Division Bench repelled an argument that Rule 5(6) of the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1948, was void as It offended Article 14 of the Constitution of India.

24. It was urged before the Division Bench that as under the said rule, the Government had an arbitrary power to prosecute one civil servant in a criminal Court and take disciplinary proceedings against another under similar circumstances, it offended the provisions of Article 14 of the Constitution. After an elaborate discussion, the Bench repelled the contention observing thus:

The object is to cleanse the administrative machinery and the classification is based on differences existing between persons on the basis of the gravity of the offence, the availability of the evidence and the purpose of the action. The classification is, therefore, based on differences germane to the object to be achieve. It is not necessary to multiply cases as they are only illustrative of the application of the well settled principle. We, therefore, hold that the validity of the rule can be sustained on the principle of reasonable classification.

25. The present rule is (sic) pari materia. Our learned brother has reproduced relevant extracts from the judgment. We do not consider it necessary to reproduce the same, except the concluding part as above. We are in respectful agreement with the view propounded by the Division Bench.

26. We would not refer, to the Orissa decision relied on by the appellant Dhirendranath Das v. State of Orissa A.I.R. 1958 Orissa 96, It was held in that case that

So far as non-gazetted Government servants are concerned, the provisions of the Tribunal Rules are less advantageous and more drastic than those of the classification rules and the conferment of an unfettered discretion on the executive to apply either of these rules for the purpose of taking disciplinary action against a non-gazetted Government servant would offend Article 14 of the Constitution.

The learned Judges were discussing the Tribunal Rules, 1951 made by the Governor of Orissa. There is reference to certain of those provisions in the judgment, one of which seems to be that the Tribunal Rules did not say that every case against; a Government servant, whether gazetted or non-gazetted, In which the acts of misconduct alleged were any of those described in Sub-rule (1) of Rule 4 of the said rules, should be invariably referred to the tribunal.

27. In the view that we have taken that the appellant was a gazetted officer at the time of the reference, we do not consider that this decision has any bearing.

28. For all the said reasons, we are unable to accede to the contention advanced for the appellant that Sub-rule (2) of Rule 4 of the Tribunal Rules offends Article 14 of the Constitution.

29. It is next contended by Sri Chennakesava Reddy that the Government have no power to withdraw the case of the appellant which was referred to the Board of Revenue and made a fresh reference to the tribunal.

30. In this context, it may be recalled that the Government purported to make the reference to the tribunal for the reason that the appellant was a gazetted officer at the time of the reference. We have indicated that the appellant must be held to' be a gazetted officer at the time of the reference repelling the contention that he must be treated as a non-gazetted officer because the charges related to the period when he was a non-gazetted officer. It, therefore, emerges that the Government had sufficient reason to make a reference to the tribunal after withdrawing the case from the Board of Revenue. We are not persuaded that there is any substance in the contention that the. Government have no power to withdraw the enquiry before the Board of Revenue. Our learned brother has dealt with this contention and held that

It is open to the Government to choose any one of the agencies and the fact that the Government has chosen one agency at one point of time cannot be held to be a bar to Its choosing another later.

31. We consider that this view is unexceptionable.

32. The learned Government Pleader has contended that the power to make a reference necessarily carried with it the power to withdraw the reference on the analogy of apower to make rules or orders as including a power to rescind, revoke, amend or vary the rules or orders. He has invited reference to Section 15 of the Madras General Clauses Act, 1891 (Act I of 1891). We consider that this contention is sound.

33. Maxwell on Interpretation of Statutes, 10th edition, 1953, dealing with implied powers' says at p. 361 thus:

Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.

34. The Constitution has empowered a State Government to take appropriate disciplinary action against the persons who are members of a civil service of the State or hold any civil post under the State. Such disciplinary action as is warranted is taken in the exercise of the jurisdiction. They have therefore power to do all acts necessary in the exercise of such jurisdiction.

35. Sri Chennakesava Reddy has argued that what the statute does not expressly or Impliedly authorize is to be taken to he prohibited. He has cited this proposition from Halabury's Law of England, Vol. 8, occurring at p. 73, when dealing with powers of statutory corporations.

36. In the view we have expressed that there is an Implied power to withdraw the reference from the Board of Revenue, the said statement of the law does not advance the case of the appellant.

37. We do not, therefore, see any substance in the contention and hence we reject it.

38. We are in agreement with the view expressed by our learned brother that the appellant has no right as such to choose a particular forum for the inquiry into the alleged misconduct unlike the case of a suitor who has in law a right to institute a suit in the forum of his choice. It cannot be said that the appellant suffers a prejudice by the enquiry before the Tribunal for Disciplinary Proceedings.

39. We have already indicated that the tribunal reports Its findings and It Is for the Government to take appropriate action. Rule 8(b) of the Tribunal Rules specifically provides that

After the Government have arrived at provisional conclusions In regard to the penalty to be Imposed, the person charged shall be supplied with a copy of the report of the tribunal (In so far as it is relevant) and he (the person concerned) shall be called upon to show cause within a reasonable time... against the particular penalty proposed to be inflicted.

40. There Is also a provision for any representation to be made by person charged, against the findings of the tribunal, which shall be duly taken Into consideration by the Government before final orders are passed. The Tribunal Rules provide reasonable opportunities, to the delinquent officer at all material stages and we cannot possibly entertain any ground of prejudice.

41. We do not find any grounds for interference with the decision of our learned brother. The Writ Appeal is dismissed with costs. Advocate's fee Rs. 100.


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