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Baishnab Charan Das Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 91 of 1955
Judge
Reported inAIR1957Ori70
ActsConstitution of india - Articles 14, 226, 309, 310 and 311(2); Orissa Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 - Rules 4(2), 7, 7(2) and 9; Civil Services (Classification, Control and Appeal) Rules, 1930 - Rule 55
AppellantBaishnab Charan Das
RespondentState of Orissa and anr.
Appellant AdvocateP.C. Chatterjee, Adv.
Respondent AdvocateAdv.-General
DispositionPetition dismissed
Cases ReferredNarayan Das v. Member
Excerpt:
.....properly, (3) irremediable general inefficiency and (4) personal immorality. rule 8(2) of the tribunal rules says that in addition to the seven classes of penalties referred to in rule 49 of the classification rules, compulsory retirement from government service may also be recommended by the tribunal. it is now well-settled by authority that rules of equity and natural justice require that the evidence against a person should as far as practicable be recorded in his presence and he shall be given an opportunity to cross-examine the witnesses and also to adduce evidence on his behalf. in the letter of the under-secretary to the government of orissa in the cabinet department, dated the 11-5-1954 calling upon the petitioner to show cause why the punishment recommended against him..........deals with article 14 of the constitution. he urged, that under rule 4(1) of the tribunal rules government had an unfettered discretion to send a case against a particular government servant to the tribunal for conducting the proceedings against him in accordance with the tribunal rules, whereas he may send the case of another government servant who is alleged to be guilty of identical acts of misconduct for an enquiry under rule 55 of the classification rules by his immediate superior officer. the tribunal rules do not contain any provisions regulating this exercise of discretion by the governor. consequently, according to mr. chatterji, they authorise arbitrary discrimination between government servants in respect of departmental enquiries though in other respects their.....
Judgment:

Narasimham, C.J.

1. This is a petition under Article 226 of the Constitution against an order of the Government of Orissa in the Development Department, No. 18238 dated 28-12-1954. discharging the petitioner from Government service with immediate effect.

2. The petitioner entered Government service sometime in 1929 and after holding various posts was transferred as District Agricultural, Officer, Koraput, sometime in 1953. It was alleged that while holding that post he committed serveral irregularities and was also guilty of some corrupt practices. His case was referred to the Administrative Tribunal under Rule 4(1) of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951, The Member in charge of the Tribunal framed several charges against the petitioner and copies of these charges were sent to the petitioner on 6-6-1953 by the Director of Agriculture and Food Production, Orissa. and he was called upon to furnish his explanation to the Tribunal. He submitted has explanation in due course, and the Member then held an elaborate enquiry and came to a finding that he was guilty of most of the charges. By his order dated 28-4-1954 the Member observed that the charges were serious and recommended the dismissal of the petitioner from Government service. His report was submitted to Government and Government in the Cabinet Department, in their memo No. 663 dated 11-5-1954 sent a copy of his report to the petitioner and called upon him to show cause, by 12-6-1954, as to why the punishment recommended against him should not be inflicted. The petitioner then submitted another explanation to Government in which he not only challenged the correctness of the findings of the Member in charge of the Tribunal but also gave reasons for not imposing the extreme penalty of dismissal. His explanation was considered in due course and the Government of Orissa in the Development Department by their aforesaid order dated 28-12-1954 discharged him from Government service with immediate effect.

3. The findings of fact arrived at by the Member in charge of the Tribunal were rightly not challenged before us. The charges that were framed against the petitioner were very elaborate and full particulars in support of the charges were clearly mentioned. The enquiry also appears to have been conducted in a very elaborate manner and the Member has written a lenghty order giving reasons in support of his findings. On receipt of his report Government called upon the petitioner to show cause why the punishment recommended, namely dismissal, may not be imposed, and after scrutinising the explanation submitted by the petitioner decided to impose the lesser punishment of discharge from Government service. Thus, the provisions ofart311 of the Constitution ap-pear to have been fully complied with.

4. Mr. Chatterji's main arguments in support of this petition may be summarised as follows:

(1) The petitioner was not given an opportunity of representing his case personally before Government.

(2) In the notice underart311 issued to the petitioner by Government on 11-5-1954 it was not clearly stated that Government, after independent scrutiny, accepted the finding of fact arrived at by the Member in charge of the Tribunal,

(3) The provisions of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951 offend article 14 of the Constitution.

5. For appreciating these arguments it is necessary to describe briefly the statutory provisions dealing with the conduct of disciplinary proceedings against Government servants. The Civil Services (Classification, Control and Appeal) Rules 1930 (hereinafter referred to as the Classification Rules) contained detailed provisions about the various classes of penalties that may be imposed on a Government servant (Rule 49), the procedure to be followed in holding an enquiry against a Government servant (Rule 55) and the right of appeal against an order of punishment (Rules 66 and 57). The petitioner was at all material times, holding a gazetted post under the Government of Orissa and he would therefore be a 'member of the Provincial Service' within the meaning of the Classification Rules. Rule 49 enumerates seven classes of punishment that may be imposed on a Government servant. Rule 55 says:

'No order of dismissal, removal or reduction shall be passed on a member of a service, other than an order based on facts which have led to his conviction in a criminal court (or by a Court Martial), unless he has been informed in writing of the grounds on which it is proposed to take ac-tion & has been afforded an adequate opportunity of defending himself. The ground on which it is proposed to take action shall be reduced to the form of definite charges which shall be communicated to the person charged, together, with a statement of the allegations on which each charge is based, and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs an oral enquiry shall be held. At that enquiry oral evidence shall be heard to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceeding shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof'.

Rule 57 (5) conferred on a member of the provincial Service a right of appeal to the Government against an order of punishment passed by the Provincial Government. These rules were kept alive by the Government of India Act, 1935, and also by the Constitution subject to necessary adaptations required to avoid any inconsistency between the rules and the constitutional changes brought about by the Constitution article 310 says that until other provision is made in this behalf under this Constitution, all laws in force immediately before the commencement of this Constitution shall continue in force so far as consistent with the Provisions of this Constitution,'.

Undoubtedly, the Classification Rules are 'laws in force' within the meaning of this article article 309 conferred on the State Legislature the power to make laws regarding the conditions of service of persons employed within a State, and the proviso to that article conferred on the Government of a State the power to make rules regarding the conditions of service of such officers until provision is made in this behalf by the State Legislature. In exercise of the power conferred by the proviso to article 309 the Governor of Orissa made the Rules known as the Disciplinary Proceedings (Administrative Tribunal) Rules in 1951 hereinafter referred to as the Tribunal Rules). The main object of these Rules was to constitute an independent body known as the Tribunal for the purpose of holding a preliminary enquiry where a Government servant is alleged to have committed the following acts of misconduct: (1) corruption, (2) failure to discharge his duties properly, (3) irremediable general inefficiency and (4) personal immorality. Rule 4(1) of the Tribunal Rules conferred discretionary power on the Governor to refer to the Tribunal the case of a Government servant who was alleged to have committed any of the aforesaid acts of misconduct. Rule 4(2), however, provided that where the delinquent Government servant is a gazetted officer the Governor may refer his case to the Tribunal if he makes a request to that effect. Though the expression used in Rule 4(2) is 'may' it is obvious from the context that it has an imperative force & hence if a gazetted Government servant requests that his case shall be referred to the Tribunal, the Governor has no other option but to accede to his request. Rule 7 of the Tribunal Rules deals with the procedure to be adopted by the Tribunal in holding an enquiry. This rule is not so elaborate as Rule 55 of the Classification Rules and merely says that in conducting an enquiry the Tribunal shall be guided by the rules of equity and natural justice and shall not be bound by any formal rules relating to procedure and evidence. But Rule 7(3) of the Tribunal Rules expressly provides that the delinquent officer should be given a summary of the charges against him and given a reasonable opportunity to offer his explanation in respect of those charges.

6. After completing the enquiry the Tribunal is required to submit its findings to Government in respect of the charges and also its recommendation about the punishment to be imposed. Rule 8(2) of the Tribunal Rules says that in addition to the seven classes of penalties referred to in Rule 49 of the Classification Rules, compulsory retirement from Government Service may also be recommended by the Tribunal. Rule 9(1) says that after considering the recommendation of the Tribunal the Governor may pass such orders of punishment as he may deem appropriate and Rule 9 (3) further says that there shall be no appeal against the order passed by Government.

7. It will thus be noticed that the Tribunal Rules are intended to be supplementary to the Classification Rules. The various penalties described in Rule 49 of the Classification Rules are retained and in addition another penalty, namely, compulsory retirement from service was authorised. The various acts of misconduct which would come within the cognizance of the Tribunal Rules were specified whereas in the Classification Rules there is no special provision dealing with what would amount to 'misconduct' on the part of a Government servant. Moreover, as regards the mode of conducting the enquiry, though Rule 7 of the Tribunal Rules may not at first sight, appeal to be so elaborate as Rule 55 of the Classification Rules a careful scrutiny of the relevant provisions would show that there is substantially no difference between the two. In both of them the formulation of specific charges and supply of a copy of the summary of the charges to the delinquent officer were insisted upon. It is true that the Tribunal Rules did not expressly say that the evidence against the Government servant concerned shall be heard in his presence and that he shall be entitled to cross-examine the witnesses and give evidence on his behalf.

But Rule 7(2) of the Tribunal Rules says that the enquiry shall be held according to the rules of equity and natural justice. It is now well-settled by authority that rules of equity and natural justice require that the evidence against a person should as far as practicable be recorded in his presence and he shall be given an opportunity to cross-examine the witnesses and also to adduce evidence on his behalf. Moreover Rule 55 of the Classification Rules says that the delinquent officer should be specifically informed as to whether he desires to be heard in person. This right of personal hearing is not provided for in Rule 7 of the Tribunal Rules, but it may be inferred if so desired by the officer on the general principles of equity and natural justice.

8. When an order is passed by the State Government under the Tribunal Rules there is no right of appeal against it, whereas against an order of punishment passed by the State Government under the Classification Rules there is a right of appeal to the Governor. This deprivation of the right of appeal may at first sight lend some support to the argument that the Tribunal Rules are more unfavourable to the Government servant than the Classification Rules, but further scrutiny will not support such a view. Where the delinquent officer concerned is a gazetted officer and the order of punishment is passed against him by the State Government, the right of appeal to the Governor provided by Rule 57 (5) of the Classification Rules is in most cases, illusory. Under the present Constitution the Governor is bound to act on the advice of his Ministers and if the original order of punishment is passed by the Minister it is difficult to imagine how in an appeal the Governor could set aside that order unless the Minister himself is willing to re-consider his order.

9. Doubtless, in the case of non-gazetted government servant the position would differ materially inasmuch as the order of punishment would, be passed by an authority subordinate to the State Government and there would be a right of appeal to Government or any other superior authority. If, however, the enquiry against the non-gazetted government servant is held under the Tribunal Rules the final order of punishment would be passed by the State Government and there would no right of appeal against that order. But as the petitioner was admittedly a gazetted government servant it is unnecessary to consider here whether the provisions of the Tribunal Rules are more unfavourable than those of the Classification Rules so far as non-gazetted government servants are concerned. It is sufficient to say that in respect of enquiries against gazetted government servants there is practically very little difference between these two sets of rules. On the contrary, the Tribunals Rules are more favourable to the delinquent officer inasmuch as the enquiry is made by an independent member of the Tribunal and not by the superior officer of the Department concerned as is usually the case when the enquiry is held under the Classification Rules. Thus, the officer concerned gets the advantage of an enquiry by an independent officer and the findings of that officer are subject to further scrutiny by Government.

10. I now take up the three points raised by Mr. Chatterji. He urged that the rules of natural Justice require that the petitioner should be specifically asked as to whether he desired to be heard in person and if he expresses such a desire he ought to have been heard either by the Minister concerned or by the Secretary in charge of the Department concerned before the final order was passed. As pointed out already, if the enquiry had been made under Rule 35. of the Classification Rules, there would be some force in this contention. But the Tribunal Rules do not expressly say that the delinquent officer should be asked as to whether he desired to be heard in person. In the letter of the Under-Secretary to the Government of Orissa in the Cabinet Department, dated the 11-5-1954 calling upon the petitioner to show cause why the punishment recommended against him should not be inflicted it was not stated that the explanation should be only in writing.

It was, therefore, clearly open to the petitioner to say in reply to that letter, that he wished to be heard in person and if his request for a personal hearing was rejected this Court may be justified in saying that the petitioner did not get a reasonable opportunity of showing cause against the punishment proposed to be inflicted upon him within the meaning of article 311(2). In this connection the case reported in Narayan Das v. Member, Board of Revenue, Sambalpur, ILR (1956) Cut 537: (AIR 1956 Orissa 219) (A) may be referred to. In his reply to the aforesaid notice of the Under Secretary to the Government of Orissa in the Cabinet Department, the petitioner did not ask for personal hearing. On the other hand he contended himself with merely challenging the finding of the Tribunal. Hence, I am unable to accept Mr. Chatterji's contention that the omission to hear him personally has in any way deprived the petitioner of a reasonable opportunity to show cause against the proposed punishment as required by article 311(2).

11. The second contention of Mr. Chatterji is based on the contents of Government's letter No. 663 dated 11-5-1954 material portions of which are as follows:

'I am directed to enclose herewith copy of the findings of the Member, Administrative Tribunal, Orissa, in the proceedings against you. You are hereby called upon to explain by the afternoon of the 12-6-1954 as to why the punishment recommended against you should not be inflicted on you'.

It is true that this letter does not expressly say that Government after independent scrutiny, accepted the findings of the Tribunal as regards the guilt or otherwise of the petitioner, or that they tentatively accepted the Tribunal's recommendation regarding the proposed punishment. In the well-known Lal's case High Comnir. for India v I. M. Lall AIR 1948 PC 121 (B) the Privy Council while construing the words 'reasonable opportunity of showing cause against the action proposed to be taken in regard to him' occurring in Section 240(3) of the Government of India Act, 1935 (which corresponds to article 311(2) of the Constitution), pointed out that 'no action is proposed within the meaning of that sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on'. Mr. Chatterji rightly relied on these observations and urged that on receipt of the Tribunal's findings and recommendation, Government must come to an independent and definite conclusion of their own on the charges and must also tentatively decide on the actual punishment proposed to be passed.

It would have been much better if Government's letter dated 11-5-1954 had contained express words indicating the conclusions as mentioned above, but the omission of those words, in that letter is not material inasmuch as, from the affidavit filed by Shri A.C. Bandhopadhyaya, Deputy Secretary to the Government of Orissa in the Agriculture and Community Development Department, we are satisfied that the findings of the Administrative Tribunal were actually put up before the Chief Minister who approved the findings and then called upon the petitioner to show cause why the proposed punishment should not be inflicted. The Assistant Government Advocate also produced, before us the original file containing the orders of the then Chief Minister and we are satisfied that the Chief Minister agreed with the findings of the Tribunal and also tentatively accepted the punishment recommended by the Tribunal. In these circumstances the omission to-state these facts clearly in Government's letter dated 11-5-1954 addressed to the petitioner, will be a mere irregularity which has caused no prejudice to him.

12. The last point raised by Mr. Chatterji deals with article 14 of the Constitution. He urged, that under Rule 4(1) of the Tribunal Rules Government had an unfettered discretion to send a case against a particular Government servant to the Tribunal for conducting the proceedings against him in accordance with the Tribunal Rules, whereas he may send the case of another Government servant who is alleged to be guilty of identical acts of misconduct for an enquiry under Rule 55 of the Classification Rules by his immediate superior officer. The Tribunal Rules do not contain any provisions regulating this exercise of discretion by the Governor. Consequently, according to Mr. Chatterji, they authorise arbitrary discrimination between Government servants in respect of departmental enquiries though in other respects their conditions may be identical and such a law would, therefore, offend article 14 of the Constitution.

13. I have already discussed the question as to whether the provisions of the Tribunal Rules are less favourable to Government servants than the provisions of the Classification Rules so far as departmental enquiries into acts of misconduct are concerned. In respect of non-gazetted Government servants the former may be less favourable as the right of appeal is expressly taken away, but so far as Gazetted Government servants are concerned the Tribunal Rules cannot be said to be less favourable. On the contrary they are more favourable to those Government servants inasmuch as their cases are enquired into by an independent Tribunal & not by their immediate superior officers who might otherwise be prejudiced against them. Moreover, in the case of gazetted Government servants Rule 4(2) of the Tribunal Rules leaves no discretion with the Governor but compels him to refer their cases to the Tribunal if requested by them.

Consequently, it lies with the gazetted government servant concerned to choose whether his case should be enquired into by the Tribunal, or in accordance with the Classification Rulas. The difference in the mode of enquiry in respect of gazetted government servants is thus brought about, not by the Tribunal Rules but by the exercise, or the omission to exercise, of the choice by the gazetted servant concerned under Rule 4(2) of the Tribunal Rules. The discrimination if any is brought about by the option of the Government servant and not by the Tribunal Rules. Hence article 14 of the Constitution will not be attracted.

14. We would, however, leave open the question as to whether Rule 4(1) of the Tribunal Rules would be discriminatory so as to offend article 14 of the Constitution so far as enquiries against non-gazetted government servants are concerned. That question does not arise for consideration in the present petition.

15. I am, therefore, satisfied that this is not a fit case for interfering with the order of discharge passed by Government. The petition is dismissed but there will be no order for costs.

Das, J.

16. I agree.


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