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Srinivasan (N.A.) Vs. State of Andhra (Secretary, Public Works and Transport) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1959)IILLJ569AP
AppellantSrinivasan (N.A.)
RespondentState of Andhra (Secretary, Public Works and Transport)
Excerpt:
.....petitioner, to the tribunal and, that being the case, we fail to understand what further the petitioner could have done even if he had notice of the intention of the government to consult the tribunal......now proceed to consider the next contention urged on behalf of the petitioner, namely, that the state government ought to have issued a notice to the petitioner when they decided to consult the tribunal for disciplinary proceedings, andhra state, having disagreed with the findings submitted by the madras tribunal. in support of this contention, reliance is placed by the learned counsel on the decision in kuppuswami v. state of madras 1956-ii l.l.j. 165, khem chand v. union of india 1959-i l.l.j. 167 and state of andhra v. ramayya i.l.r. 1957 a.p. 27. we do not think that these decisions render any assistance to the petitioner. the only proposition laid down in those cases is that article 311 of the constitution requires that the officer charged, should be afforded two opportunities,.....
Judgment:

P. Chandra Reddi, C.J.

1. In this petition under Article 226 of the Constitution, the validity of the order removing the petitioner from service is questioned.

2. The material facts may be briefly stated. The petitioner, who is a B.E. of the Madras University, joined service as a Municipal Electrical Engineer in or about the year 1938 and served in several municipalities in such capacity between 1938 and 1950. When he was the Municipal Electrical Engineer at Bellary, the Bellary Municipal Electrical Works were taken over by the Government. Thereupon, the petitioner was appointed as an Assistant Engineer, Electrical Operation, Bellary. In December 1950, he was transferred to Proddatur in Cuddapah district.

3. Subsequently, a petition was received from the President, Panchayat Board, Pugalur; Coimbatore district, alleging corruption and several irregularities on the part of the petitioner. The matter was entrusted to the Superintendent of Police, X-Branch, C.I.D., Madras, for enquiry and report. In September 1951, the Chief Operation Engineer (North) forwarded a report from the Superintending Engineer (kndhra Power System) containing: a number of allegations of corruption and other irregularities against the petitioner, when he was the Electrical Engineer at Bellary. That report also was forwarded to the concerned police for enquiry and report. Taking into account the material gathered by them, the X-Brancli Department of the composite State of Madras thought that a prima facie case had been made out against the officer and that a departmental enquiry should be held against him. Accordingly, the matter was remitted to the Tribunal for Disciplinary Proceedings, Madras, for necessary action. Pending enquiry into the charges by the tribunal, the petitioner was placed under suspension.

4. The Tribunal for Disciplinary Proceedings, Madras, framed several charges against the civil servant, but we are now concerned only with two of them, viz., charges 2(ii) and 4. charge 2(ii) being attempt on his part to take away a bicycle belonging to the Government at the time of his leaving Bellary on transfer and charge 4 being deliberately altering a receipt granted by Venkar & Co. for Rs. 6 towards the cost of repairing a portable telephone instrument belonging to Bellary Electrical Substation into one for Rs. 16 and misappropriating the difference of Rs. 10.

5. On a consideration of the evidence of several witnesses during the oral enquiry and the written explanation of the accused officer, the tribunal held that he was guilty of the charges mentioned above and recommended his removal from service. The Chief Engineer of the composite State of Madras agreed with the penalty suggested by the tribunal. The penalty of removal from service was accepted provisionally by the Government of the composite State and a copy of the report of the tribunal was furnished to the petitioner and he was asked to show cause why the penalty proposed should not be imposed on him. To this, the petitioner sent a reply, submitting an elaborate explanation. After examining the various points raised by the petitioner in his explanation, the Government thought it desirable that a further reference should be made to the Tribunal for Discriplinary Proceedings, Andhra State, as by that time the State of Andhra was formed. Therefore, they consulted the tribunal for the Andhra State on certain points. The latter tribunal adhered to the findings of the tribunal for the composite State as regards the charge relating to the attempt to take away the bicycle but felt that there was room for holding that charge (4) was not proved against the accused officer beyond reasonable doubt. It had also pointed out that the punishment originally suggested by the Madras tribunal would be justified in regard to charge 2(ii) alone. However, they recommended that the Government, if they deemed fit, could award any lesser punishment as an act of mercy. The Government was not prepared to act on the latter suggestion of the tribunal, as they felt that in the interests of efficient administration a leaser penalty than removal from service would not be adequate. In this view of the matter, they removed the petitioner from service and this was communicated to him by a letter dated 21 October 1955. It is this order that is sought to be quashed in the present proceedings.

6. In support of this petition, various contentions are urged by the learned Counsel for the petitioner and we will deal with them seriatim. At the outset, the argument pressed upon us was that the Government of Andhra State had no jurisdiction to continue the proceedings started by the composite State of Madras, as the areas in which the offences were committed by the petitioner lie outside the Andhra State. According to the learned Counsel, it is only the Government exercising jurisdiction over the teritories in which the irregularities were committed by the officer concerned that could proceed against the officer.

7. The answer to this depends upon the relevant provisions of the Andhra State Act (XXX of 1953). Section 58 of this Act provides for the continuance of proceedings pending immediately before the courts or tribunals at the time of the formation of the Andhra State. Section 58, omitting the unnecessary portion, reads:

Every proceeding pending immediately before the appointed day before a court (other than the High Court), tribunal, authority or officer-

(a) in any area which on that day falls within the State of Madras or the transferred territory shall, if it is a proceeding relating exclusively to any part of the territories which as from that day are the territories of the State of Andhra, stand transferred to the corresponding court, tribunal, authority or officer in the State of Andhra, or* * *

The stress of the argument of the learned Counsel for the petitioner is that it is only proceedings relating to are as which are included in the new State that are transferable under Section 58 of the Act, which implies that the offences should have been committed in those areas. We do not think we can accede to this theory. It should be remembered that this provision contemplates not only a transfer of proceedings pending before a tribunal but also suits and other proceedings pending in Courts other than the High Court. It is for that reason that the section is couched in that language. In our judgment, the expression 'proceeding relating exclusively to any part of the territories which as from that day are the territories of the State of Andhra' connotes proceedings relating to officers residing or working in the areas that are comprised in the Andhra State, in other words, matters concerning officers under the employ of the Andhra State. Courts ought to put a reasonable interpretation on the statutory provisions. If the construction suggested by the learned Counsel for the petitioner should be adopted, the enquiry should be split into as many as there are areas comprehended within the new State. That apart, the enquiries conducted by the Government exercising jurisdiction over those territories would be futile for the reason that those Governments would have no disciplinary control over the officer concerned. In our opinion, by reason of Section 58 of the Andhra State Act, all proceedings pending before a court, tribunal or authority stand transferred to the corresponding court, tribunal or authority of the Andhra State comprising the territories in which the delinquency was perpetrated, the only main test being whether or not the officer is serving that State having been allotted to it.

8. Quite apart from that, in this case, the petitioner requested the Government of Andhra to have the proceedings transferred and continued. Having regard to the important role that his request plays in this context, we may set out the contents of his letter dated 4 August 1955 in so far as they are relevant. It reads:

After so much of waiting for final orders, I now learn from press that my case is to be transferred to Madras Government for disposal as the proceedings were instituted by the composite Madras State. I submit that it may take further long time for the Madras Government to study the case afresh and issue final orders, which may further add to agony and mental suffering. I submit that I belong to Andhra State. I have been allocated to Andhra State. At the time of separation of Andhra State, my case was handed to Andhra State for final disposal presumably after examining jurisdiction at that time. As a consequence, the Andhra Government issued to me the 'show-cause' memo and I submitted my explanation only to the Andhra Government on 12 February 1954, since which date the Andhra Government have been dealing with this matter. Unfortunately for me the jurisdiction question is again raised at this late hour. It would have saved much time and mitigated my sufferings if the jurisdiction question was decided once for all at the time of formation of the Andhra State. I pray that the Andhra Government may be graciously pleased to treat this matter as a special case and issue final orders and grant me early relief since they have been dealing with this matter all these months.

Having prevailed upon the Andhra Government to proceed with the matter Itself, it is not open to the petitioner to turn round and question the validity of the proceedings on the ground that they were not competent to deal with his case.

9. Even otherwise, we do not think that this la a case in which the jurisdiction of this Court under Article 226 of the Constitution could be invoked. As pointed out by the Supreme Court in Sangram Singh v. Election Tribunal 1955 S.C.J. 431 at 434 S.C., it is not every case of error of law or misapplication of the principles of law that would induce the High Court to exercise its jurisdiction under Article 226 of the Constitution. The High Court will not exercise this jurisdiction 'in this class of case unless substantial injustice has ensued or is likely to ensue.'

10. We may here quote a passage from the judgment of the Supreme Court in Pannalal Binjraj v. Union of India : [1957]1SCR233 . It reads:

There is moreover another feature which is common to both those groups and it is that none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Incometax Officers to whom their cases had been transferred. It was only after their decision in Bidi Supply Company v. Union of India A.I.R. 1956 S.C. 479 was pronounced on 20 March 1956 that these petitioners woke up and asserted their alleged rights, the Amritsar group on 20 April 1956, and the Raichur group on 5 November 1956. If they acquiesced in the jurisdiction of the Incometax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this Court under Article 32.

This is an a fortiori case in that the petitioner requested and induced the Government of Andhra to proceed further with the enquiry. Apart from the inconsistent attitude that is now sought to be adopted by the petitioner, we fail to see how any injustice has ensued to the petitioner. For these reasons, this contention is overruled.

11. The next point presented by Sri Subrahmanyam is that rule 8 of the Madras Civil Services (Disciplinary Proceedings Tribunal; Rules, 1955, was violated in that copies of the statements made by P.Ws. 13 to 18 and 22 to 25 were not furnished to the petitioner and the enquiry before the tribunal is, therefore, vitiated. Rule inter alia requires that the tribunal shall, immediately before each witness is examined by the prosecution, furnish a copy of any statement taken from him by the concerned department to the person charged. We do not think the complaint in this behalf is well founded. P.Ws. 12 to 16 speak to facts bearing on other charges of which the delinquent officer had been acquitted and it is only the evidence of P.Ws. 17 and 18 that has a material bearing on charge 2(ii). It appears from the explanation submitted by the petitioner that P.Ws. 17 and 18 were not examined at the preliminary enpuiry. That being the position, we fail to understand the petitioner's present grievance that the statements of these witnesses were not made available to. him, as required by Rule 8(a) of the Disciplinary Proceedings Tribunal Rules.

12. It is true that P. W. 27 also deposed against the petitioner in regard to charge 2(ii). But it is apparent that the petitioner had the use of his statement. It is significant that no allegation is made in his affidavit that he had not the use of the copy of the statement of P. W. 27.

13. Apart from this, we are convinced that the petitioner was not in any way prejudiced in the conduct of his defence, when it is seen that he had effectively cross-examined all the witnesses. As pointed out by a Bench of this Court in Valayya Pantulu v. Government of Andhra 1957 A.L.T. 788 mere non-compliance of the rules without proof of prejudice is not a sufficient ground for quashing the order of the Government.

14. Having regard to the complaint made in this behalf, we have gone through the relevant records carefully and have reached the conclusion that even if it is within the province of this Court to go into questions of fact, there can be little doubt that the charge under 2(ii) has been firmly established. For these reasons, this submission also is unsubstantial and has to be rejected.

15. We will now proceed to consider the next contention urged on behalf of the petitioner, namely, that the State Government ought to have issued a notice to the petitioner when they decided to consult the Tribunal for Disciplinary Proceedings, Andhra State, having disagreed with the findings submitted by the Madras tribunal. In support of this contention, reliance is placed by the learned Counsel on the decision in Kuppuswami v. State of Madras 1956-II L.L.J. 165, Khem Chand v. Union of India 1959-I L.L.J. 167 and State of Andhra v. Ramayya I.L.R. 1957 A.P. 27. We do not think that these decisions render any assistance to the petitioner. The only proposition laid down in those cases is that Article 311 of the Constitution requires that the officer charged, should be afforded two opportunities, one to deny his guilt and another to make his representation as to why the proposed penalty should not be levied, which could only be done after the enquiry was over.

16. We may here recall the following three tests enunciated by their lordships of the Supreme Court in Khem Chand v. Union of India 1959-I L.L.J. 167 in regard to 'reasonable opportunity' envisaged by Article 311 of the Constitution, namely:

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

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

(3) an opportunity to make his representation 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 the Government servant.

The other two decisions do not contain any doctrine different from this.

17. It is seen that the Government is not required to give any opportunity to the accused officer when the authority concerned feels it necessary to consult the tribunal. In this context, we may refer to Rule 9 of the Disciplinary Proceedings Tribunal Rules. It enacts:

Notwithstanding anything contained in the Madras 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. The advice of the tribunal will ordinarily be accepted. If (?) the advice is to be rejected or deviated from, the reasons for such rejection or deviation shall be communicated to the tribunal and the remarks of the tribunal in regard thereto shall be taken into consideration before passing orders.

It is manifest that this rule does not cast any obligation on the Government to inform the petitioner of their intention to consult the tribunal. There is no scope for the argument in this case that the Government have disagreed with the findings of the Madras tribunal. What appears from the record is that in view of the points raised by the petitioner, the Government wanted the Tribunal for Disciplinary Proceedings, Andhra State, to take them into account and give its opinion. The Government had not expressed their own opinion on the findings of the Madras tribunal. Assuming for the sake of argument that there was such a disagreement, we do not think that there was any necessity for the Government to intimate the petitioner about it. It is not in every case of disagreement that an opportunity should be given to the officer concerned to put forward Ms case in regard to the charge over which there is difference of opinion. It is only in cases where the disagreement results in his detriment that such an opportunity should be afforded to the delinquent officer. It should be remembered that the Government was communicating all the points raised by the petitioner, to the tribunal and, that being the case, we fail to understand what further the petitioner could have done even if he had notice of the intention of the Government to consult the tribunal. For these reasons, this argument is in admissable and ought to be disallowed.

18. There remains the question whether it was necessary for the State Government, after the tribunal for the Andhra State finally submitted its findings to the State Government, to give the petitioner another opportunity to show cause against the proposed punishment. The facts necessary for the appreciation of this contention have already been set out. It should be remembered that when the Government issued the prescribed notice to show cause against the punishment proposed, their conclusions at that time were only tentative both with reference to the findings and with reference to the punishment proposed. It was surely within the competence of the State Government to depart from those findings in the light of the explanation submitted by the petitioner. In our opinion, having consulted the tribunal once again and having accepted its conclusions, the Government should, at that stage, call upon the petitioner to show cause against the punishment, because it was only then that they could be said to have come to definite conclusions on the charges and the actual punishment to follow that provisionally determined. It was only at that point of time that the Government are expected to give thought to the nature of punishment to be inflicted upon the accused officer, having regard to the gravity of the charges. That being the situation, we feel that a show-cause notice should be served upon him afresh after the Government had finally made up its mind with regard to charge 2(ii).

19. It follows that the order of removal of the petitioner from service should be set aside, since the second notice as contemplated by Article 311 of the Constitution was not issued to him.

20. The Government will issue afresh a notice calling upon the petitioner to show cause why a particular kind of punishment should not be imposed on him. This order of ours does not in any way affect the order of suspension against the petitioner.

21. The parties will bear their own costs.


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