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Mohan Rao (M.) Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1960)IILLJ165AP
AppellantMohan Rao (M.)
RespondentState of Andhra Pradesh and anr.
Excerpt:
.....the competent authority appointed the assistant operating officer to make an enquiry. 1. that the enquiry officer had not clearly indicated in the charge-memo the punishment to be awarded in case the charges were proved and that this had resulted in substantial prejudice to the petitioner ;2. that the public service commission had not been consulted before the petitioner's removal was ordered; the instruction reads :issue of charge-sheet-(a) once the authority competent to appoint the enquiry officer is satisfied that a departmental enquiry is necessary or he is directed by higher authority to hold a departmental enquiry, the first step shall be to appoint an enquiry officer (if a higher authority has directed him to hold an enquiry himself, he will himself be the enquiry officer). the..........authority appointed the assistant operating officer to make an enquiry. on 13 april 1956, the enquiry officer issued a charge memo to the petitioner calling upon him to furnish his explanation to the charges and also to show cause why suitable disciplinary action should not be taken against him. the petitioner submitted his explanation denying the charges. the enquiry officer, after following the procedure laid down in sub-rules (4) and (5) of rule 22, submitted a report to the competent authority wherein he found that the charges were proved. at the enquiry held by him, the enquiry officer had examined the travelling ticket inspector and the petitioner. the competent authority after ariving at a provisional conclusion that the penalty of removal should be imposed upon the.....
Judgment:
ORDER

Satyanarayan Raju, J.

1. This is a petition, under Article 226 of the Constitution of India, for the issue of a writ of certiorari quashing the orders of the state of Andhra Pradesh and the regional transport department removing the petitioner from service. The material facts are these.

2. The petitioner joined service as a conductor in the road transport department of the erstwhile Hyderabad State on 18 July 1953. About a year later he was confirmed in the post. On 15 March 1956 two travelling ticket inspectors made a check of the vehicle and found that the petitioner failed to collect the fare from one passenger and omitted to issue tickets to three passengers. They also observed that he issued four torn tickets to passengers on citing them (travelling ticket inspectors). The statements of the passengers were recorded by one of the travelling inspectors and they were attested by the petitioner.

3. The conductor is listed as a member of the subordinate services and the authority competent to take disciplinary action against him is the superintendent of the road transport department (hereinafter referred to as the 'competent authority'). On being satisfied that a departmental enquiry was necessary, the competent authority appointed the assistant operating officer to make an enquiry. On 13 April 1956, the enquiry officer issued a charge memo to the petitioner calling upon him to furnish his explanation to the charges and also to show cause why suitable disciplinary action should not be taken against him. The petitioner submitted his explanation denying the charges. The enquiry officer, after following the procedure laid down in Sub-rules (4) and (5) of Rule 22, submitted a report to the competent authority wherein he found that the charges were proved. At the enquiry held by him, the enquiry officer had examined the travelling ticket inspector and the petitioner. The competent authority after ariving at a provisional conclusion that the penalty of removal should be imposed upon the petitioner, issued a further notice calling upon him to show cause why the proposed penalty should not be imposed. In reply thereto, the petitioner submitted a further representation. After a consideration of the report of the enquiry officer and the representations made by the petitioner, the competent authority finally directed the petitioner to be discharged from service. The word 'discharge' was evidently a mistake for 'removal'.

4. There is no dispute about this fact. Thereafter, the petitioner preferred an appeal to government. By their order dated 27 March 1957, the government rejected the petitioner's appeal. The petitioner has canvassed the orders passed by the competent authority and by the appellate, authority in this writ petition.

Sri Babul Reddy, learned Counsel for the petitioner, has raised the following grounds:

1. that the enquiry officer had not clearly indicated in the charge-memo the punishment to be awarded in case the charges were proved and that this had resulted in substantial prejudice to the petitioner ;

2. that the public service commission had not been consulted before the petitioner's removal was ordered;

3. that the appellate authority had not complied with the requirements of Rule 3 of the Hyderabad Civil Services (Classiffication Control & Appeal) Rules 1955 (hereinafter referred to as 'the Rules'); and finally

4. that the petitioner had not been afforded an adequate and reasonable opportunity of defending himself.

We will deal with these contentions seriatim.

5. As supporting the first of the contentions, the learned Counsel for the petitioner has relied upon instruction No. 2 of the procedural instructions, governing the holding of departmental enquiries under Rule 22 of the rules. The instruction reads :

Issue of charge-sheet-(a) Once the authority competent to appoint the enquiry officer is satisfied that a departmental enquiry is necessary or he is directed by higher authority to hold a departmental enquiry, the first step shall be to appoint an enquiry officer (if a higher authority has directed him to hold an enquiry himself, he will himself be the enquiry officer). The enquiry officer should frame a charge-sheet containing:

(i) definite charge or charges,

(ii) under each charge the grounds on which that charge is based, and

(iii) any other circumstances which it is proposed to take into consideration, in passing ordains in the case. Each charge should be drawn up clearly and precisely and care should be taken to avoid vagueness..

6. There is nothing in this instruction which lends support to the contention of the petitioner. The sample formula which, according to the instruction, should form part of the concluding portion of the charge-sheet, in fact, requires the enquiry officer to call upon the delinquent to 'show cause why suitable 'disciplinary action should not be taken against you on the charges mentioned.' The instruction no where requires that the punishment sought to be imposed in case the charges were proved, should be indicated at that stage. It may also be mentioned that the procedural instructions embodied in Appendix I to the rules have no statutory force, non-compliance with which would afford the petitioner a right of action. It is, however, stated by the learned Counsel for the petitioner that in the absence of a mention of the proposed penalty in the charge-sheet, he was led to believe that the charge was not a serious one and for that reason, he did not put forth his best efforts in meeting the charge. On a perusal of the records we are not convinced that this was the case. That apart, the concluding portion of the charge-sheet intimated the petitioner that suitable disciplinary action would be taken against him, and that was sufflcienty indicative of the gravity of the charges levelled against him.

7. Moreover, as pointed out by their Lordships of the Supreme Court in Khem Chand v. Union of India 1959 I L.L.J. 167 at 177;

If the competent authority were to determine, before the charges 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 on opinion against him, generally on the subject-matter of the charge or, at any rate, as regards the punishment itself

Therefore, it was proper on the part of the competent authority not to indicate the punishment even at the initial stage.

8. We now come to the second of the contentions which is that the provisions of Article 320 had been contravened by reason of the competent authority not having consulted the Public Service Commission prior to the imposition of the punishment. Article 320(3), on the basis of which this argument is founded, in so far as it is material for the present purpose, reads:

The union public service commission or the state public service commission, as the case may be, shall be consulted-

* * *(c) On all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;

* * *and it shall be the duty of a public service commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them;

Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessaary for a public service commission to be consulted.

This proviso empowers the President as regards the all-India services, and the Governor or the Rajpramuth (since omitted) as regards other services and posts in connection with the affairs of a State, to make regulations specifying the matters in which it shall not be necessary for a public service commission to be consulted. In exercise of the powers conferred by the aforesaid proviso, H.E.H. the Rajpramukh of the erstwhile Hyderabad State promulgated certain Regulations on 22 February 1952, Clause 2(g) of the regulations provides that it shall not be necessary for the government to consult the commission with respect to all disciplinary matters affecting members of the subordinate services (excepting those serving in the secretariat and in posts to which appointments are made on the recommendations of the commission). Admittedly the post of conductor la not one of the appointments made on the recommendations of the commission. As already stated, he is a member of the subordinate services. Therefore, this regulation dispenses with the need for consulting the public service commission, as required by Article 320(3). It may here be mentioned that their Lordships of the Supreme Court have held in State of U.P. v. Manbodhan Lal : (1958)IILLJ273SC that the provisions of Article 320(3)(c) are not mandatory and do not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution ; and that it is not a right which could be recognised and enforced by a writ.

9. The third of the contentions really turns upon the scope of the order passed by the government in appeal. Rule 35, on which the petitioner relies, reads:

(1) In the case of an appeal against an order imposing any penalty specified in Rule 12, the appellate authority shall consider :

(a) whether the facts on which the order was based have been established ;

(b) whether the facts established afford sufficient ground for taking action; and

(c) whether the penalty is excessive, adequate or inadequate;

and after such consideration shall reject the appeal or pass such other order as it thinks proper.

It is argued that in the present case, the government, the appellate authority, have not complied with the requirements of this rule. In order to appreciate this contention, it is necessary to read the material portion of the order of the government, which is as follows :

The government have examined the case with reference to the appeal and the connected records and they consider that, for the charge held proved, the penalty of discharge from service was justified, and see no grounds to interfere.

Learned Counsel for the petitioner has argued that the appellate authority itself had not considered the facts with reference to the charges nor had it come to a, conclusion that the order says that 'for the charges held proved, the penalty of discharge from service was justified.' This passage has to be read and understood with reference to its context. But, this passage immediately follows the statement that 'government have examined the case with refence to the appeal and the connected records.'

10. The appeal was against the findings on the charges and not only against the penalty. So, the meaning is that the Government examined the case with reference to the findings as well as the punishment and that after such examination, they passed the order regarding the appeal (viz), about the proof of the charges and about the penalty. So, it is reasonable to infer that what really the government meant was that on an examination of the case with reference to the appeal and the connected record, they were of the view that the charges were proved. The language employed is not quite happy. There seems to be no doubt about the purport and meaning of the conclusion reached by the government.

11. There remains the last of the contentions that the petitioner had not been afforded an adequate opportunity of defending himself. As has been pointed out by their Lordships of the Supreme Court in Khem Chand v. Union of India 1959 I L.L.J. 167, the protection provided by the rules, like Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, together with an additional opportunity embodied in Section 240(3) of the Government of India Act, 1935, so as to give a statutory protection to the government servants has now been incorporated in Article 311(2) of the Constitution so as to convert the protection into a constitutional safeguard. Their Lordships have further pointed out :

The reasonable opportunity of showing cause against the action proposed includes:

(a) an opportunity to deny his guilt and establish his innocence which he can do only if he is told what the charges levelled against him are and the allegations on which the charges are based;

(b) an opportunity to defend himself by cross-examining the witness produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representations 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 and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to him.

12. If these requirements have been substantially complied with, the enquiry is not open to attack.

13. Sri Babul Reddy has stated that the passengers from whom statements had been recorded were not examined at the enquiry. Here, it is necessary to recall that the statements of the passengers were recorded by the travelling ticket inspector on the spot. These statements were attested by the petitioner. It is no doubt, true that in the written representation submitted by him, in answer to the charges, the petitioner averred that his attestation on the statements was taken under a threat by the inspector. The travelling ticket inspector himself was examined at the enquiry and the petitioner was repeatedly asked by the enquiry officer as to whether he had any more representations to make. When he was afforded this opportunity, the petitioner did not even say that he would like to have the evidence of the passengers taken by the enquiry officer. There is, indeed, no controversy about the fact that the petitioner made no request in this regard at any time. If the petitioner had asked for the examination of the passengers and if that request was rejected by the enquiry officer, there would certainly be some substance in the contention of the petitioner. But, in the absence of any request on his part, we fall to see how there was any denial of a reasonable opportunity to the petitioner. In fact, we feel that this and other similar grievances were put forward as an afterthought by the petitioner to furnish a plausible basis for the claim made by him in this petition.

13. It is also submitted before us that the petitioner was not supplied with copies of the statements of the passengers. Those statements were admittedly recorded in his presence and were attested by him. They were admittedly shown to the petitioner at the enquiry. We have no material on record to show that the petitioner asked for copies of these statements or that the enquiry officer rejected his request. Here again, there is little substance in the complaint of the petitioner that he was denied a reasonable opportunity.

14. Lastly, it has been contended that the order the competent authority does not give an indication of the fact that he had applied his mind to the evidence recorded by the enquiry officer. The order of the competent authority recites that he gave careful consideration to the explanation given by the petitioner in connection with the charges made against him and the evidence on record and that after such consideration, he came to the conclusion that the charges stood proved. Here, the argument is that the order contains a mechanical reproduction of the requirements of the relevant rules, and there was no independent consideration of the evidence and a conclusion that the charges were proved. It may be remembered that the competent authority was affirming the findings reached by the enquiry officer and that, in such a case, it was not necessary that the authority should himself review the evidence once again. The requirements of a ' reasoned decision' do not extend to a detailed consideration of the evidence by the competent authority. It is, no doubt, true that when he disagrees with that finding reached by the enquiry officer, it is necessary that he should give reasons for his disagreeing with that finding. In other oases, where he simply affirms the conclusion of the enquiry officer, it is not necessary for him to traverse the ground once again.

15. All the contentions raised on behalf of the petitioner having been negatived, this writ petition must fall and is therefore dismissed with costs Advocate's fee Rs. 100.


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