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P.L. Michael Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 17 of 1968
Judge
Reported inILR1972Delhi84
ActsConstitution of India - Article 311(2)
AppellantP.L. Michael
RespondentUnion of India and anr.
Advocates: F. Anthony,; C.L. Talwar and; B. Kirpal, Advs
Cases Referred(Bhagat Raja v. Union of India
Excerpt:
.....the previous decision to impose the punishment of removal.; (ii) practice--disciplinary enquire--copies of documents--right of delinquent to supply of, c.c.s. (c.c.a.) rules 1957, rule 15(3).; that a government servant has no right to ask for copies to be prepared for him by government. he has only the right to take inspection of the document and make copies thereof himself.; (iii) practice--procedure--order of quasi-judicial authority involving civil consequences--whether to be a speaking order--order passed in appeal against such order--when ought to be a speaking order.; it is well established that a quasi-judicial authority must give reasons for an order which involves civil consequences to another person. but whether an order passed in appeal against such quasi-judicial should or..........(a)resonable opportunity to defend himself was denied to him because of the non-supply of the copies of documents asked for by him; and (b) in imposing the punishment of removal on him the punishing authority took into account his past record.(3) s. n. shankar, j. negatived both these contentions and dismissed the writ petition. in this appeal against the said order of dismissal, shri frank anthony learned counsel for the appellant has advanced the following contentions :- (1)reasonable opportunity required to be given by article 311(2) was denied to the petitioner when the enquiry officer refused to supply him with copies of documents. (2) the petitioner appellant could not take part in the enquiry as he had been suspended and subsistence allowance was not given to him. (3) the.....
Judgment:

V.S. Deshpande, J.

(1) The petitioner appellant was an Inspector in the Central Excise Department. On 31st October 1958, a departmental enquiry was launched against him under the Central Civil Services (Classification, Control & Appeal) Rules, 1957 (hereinafter called the Ccs (CCA) Rules of 1957). The relevant charges related to making of false entries in his diary dated 19th May 1958, not maintaining a proper diary and making false and mischievous allegations against official superiors, insubordination and unnecessarily harassing one Raja Ram Misra warehouse licensee. The procedure of imposing major penalties on a Government servant prescribed by rule 15 of the Ccs (CCA) Rules, 1957 governed the departmental enquiry. On receipt of the charges and allegations supporting them, the petitioner asked the Enquiry Officer 'for the supply of the copies of all the documents which have been made basis of the charges framed against me (i.e. him)'. He also asked for inspection of certain documents which were given to him. As for the supply of copies, he was informed that he should specifically state the records which he wanted to consult specifying the relevancy thereof within seven days. But he merely repeated his request for copies of the documents 'which have been made basis for the charges framed against me'. On this he was informed that 'since you have failed to specify the records and give relevancy as asked for......the question of supplying copies of the documents does not arise'. The petitioner thereupon refused to attend the enquiry held against him. During the enquiry, reference was made by the Enquiry Officer to documents numbering about fourteen. On the report of the Enquiry Officer the petitioner was asked to show cause why he should not be removed from service. After he showed cause, an order of removal from service was passed against him. The appeal against the order imposing the punishment was partly allowed and the punishment was reduced from that of removal to that of reduction of the petitioner in rank from that of the Inspector to that of a Lower Division Clerk. A subsequent representation to the President was also dismissed.

(2) The petitioner challenged the legality of the punishment imposed on him in a writ petition on the following grounds, namely:-

(A)resonable opportunity to defend himself was denied to him because of the non-supply of the copies of documents asked for by him; and (b) in imposing the punishment of removal on him the punishing authority took into account his past record.

(3) S. N. Shankar, J. negatived both these contentions and dismissed the writ petition. In this appeal against the said order of dismissal, Shri Frank Anthony learned counsel for the appellant has advanced the following contentions :-

(1)Reasonable opportunity required to be given by Article 311(2) was denied to the petitioner when the Enquiry Officer refused to supply him with copies of documents. (2) The petitioner appellant could not take part in the enquiry as he had been suspended and subsistence allowance was not given to him. (3) The past record of the petitioner was taken into account by the punishing authority in imposing the punishment of removal on him without giving him the opportunity of showing cause as to why his past record of service should not be so taken into account. (4) The order of the appellate authority reducing the punishment imposed on him was not a speaking order. and (5) A stigma has been attached to him by the order informing him that his representation had been rejected by the President and that unless he behaved properly and earned better reports, the question as to whether or not he should be allowed to continue in service would have to be reconsidered.

(4) These contentions are considered below Serialtim: (1) The scope of 'reasonable opportunity' required to be given by Article 311(2) has to be determined in each case according to the particular facts and circumstances of that case. For the purposes of the departmental enquiries, the procedure for giving such a reasonable opportunity to the Government servant was at the relevant time laid down in rule 15 of the Ccs (CCA) Rules, 1957. Such procedure was uniformally applied to all departmental enquiries held against Government servants for the imposition of major penalties. The rules were framed after a great deal of experience was gathered by the Government in holding such departmental enquiries firstly under the Government of India Acts and secondly under the Constitution. It is to be presumed, thereforee, that the rules should be regarded as adequate for giving a reasonable opportunity to the Government servant in such a departmental enquiry unless it is shown that a particular rule falls short of the quantum of reasonable opportunity given by Article 311(2). The provision regarding documents was contained in rule 15(3) which is as follows:-

'THE Government servant shall, for the purpose of preparing his defense, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto.'

It is to be noted that the Government servant had no right to ask for copies to be prepared for him by the Government. We do not see any particular reason why any copies wanted by the Government servant should be prepared for him by the Government. On the contrary, rule 15(3) gives the Government servant a right to inspect and 'take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion he disciplinary authority, such records are not relevant for purpose or it is against the public interest to allow him access thereto'. The proper procedure, thereforee, was that the petitioner should have applied for inspection. Such inspection when applied for was given to the petitioner. Even the supply of copies was not straightaway refused. The petitioner was, however, told to specify the documents and their relevancy before this could be done. The petitioner stated that he wanted copies of all documents which were the basis of the charges framed against him. A perusal of the relevant charges shows that only the diaries were the basis of the first two of them. The inspection of the diaries was given to the petitioner. No other document was made the basis of any of the charges. When the petitioner, thereforee, asked for copies of those documents which were the basis of charges against him he clearly failed to 'specify' the documents as required by rule 15(3). Further, he did not specify the relevancy of any document wanted by him. As he failed to comply with rule 15(3) he was not entitled to the supply of copies of any documents. Shri Frank Anthony relied upon the Supreme Court decision in Tirlok Nath v. Union of India and Others, 1967 S. L. R. 7590 The rule applicable to the departmental enquiry in that case was rule 55 of the old Ccs (CCA) Rules. The Supreme Court held that the public servant facing the enquiry had to be furnished with copies of relevant documents, that is, documents sought to be relied on by the Enquiry Officer or required by the public servant for his defense. In the present case, the documents relied on in the charges were inspected by the petitioner and he does not complain that copies of those documents were not given to him. The petitioner did not specify what documents he wanted for his defense and none could, thereforee, be supplied to him. The description that he wanted copies of documents which were the basis of the charges was so inadequate that it was impossible for the Enquiry Officer or for any reasonable person to understand thereby what particular documents he wanted. Learned counsel said that in the enquiry the Enquiry Officer referred to about fourteen documents. The learned Single Judge in his judgment under appeal has observed that these documents were referred to by the Enquiry Officer in addition to the oral evidence already on record by way of caution. At any rate, it cannot be said that these documents were 'relied on' by the Government or were the 'basis of the charges'. This contention of the petitioner, thereforee, fails mainly for two reasons, namely, (1) that the petitioner did not specify the documents of which he wanted copies and (2) that he had only the right to take inspection of those documents and make copies thereof himself but could not ask the Government to make copies of them for his benefit. (2) The petitioner was placed under suspension on 7th September 1959 in connection with a totally different contemplated departmental enquiry. Prior to the suspension, he was to referred to Kanpur on 16th July 1959. He, however, did not joint. his posting and could not, thereforee, be paid any allowance including the subsistence allowance. He was not suspended in the departmental enquiry with which we are concerned. This contention, thereforee, fails for two reasons, namely, (1) the disobedience of the petitioner to obey the orders of transfer resulted in the non-payment of salary and subsistence allowance by the Government to him, and (2) the suspension was not with regard to the impugned departmental enquiry at all. We cannot, thereforee, consider whether the non-payment of subsistence allowance prejudiced in any way the petitioner in defending himself in the departmental enquiry with which we are concerned, (3) From Annexure R-9 dated 21st January 1960 it is seen that it was decided provisionally that the petitioner should be removed from service as a result of the report of the Enquiry Officer. The petitioner was asked to show cause why the proposed punishment should not be awarded to him. It is after the petitioner showed cause in response to this notice that the order imposing the punishment of removal was passed on 9th April 1960. It is in that order that the following occurs :-

'8.In view of the above circumstances, I do not find Shri Michael's Explanationn satisfactory. The charges of insubordination, disobedience of orders making mischievous allegations against his official superiors, making manipulations in the diary and above all causing harassment to the trade, which are proved against Shri Michael, are very serious offences. The punishment of removal from service as provisionally concluded by me would be justified under the circumstances. In awarding this punishment, I have also taken into account Shri Michael's past record of service, which is very bad.'

Shri Frank Anthony contended that the punishing authority could not take into consideration the past record of the petitioner unless he was given an opportunity to show cause why it should not be considered against him. This contention would have been valid if the punishing authority had taken into account the past record of service of the petitioner before provisionally deciding that he should be removed from service. But the punishing authority did not do so. In the letter dated 21st January 1960 written to the petitioner, the provisional punishment of removal was already decided without any reference to the past record of the petitioner. It is only after the Explanationn of the petitioner was considered that this punishment of removal was confirmed. It was only while confirming the punishment. that the past record was taken into account. It cannot be said, thereforee, that any circumstance was taken into account against the petitioner by the punishing authority when the provisional conclusion was first arrived at that the petitioner should be removed from service. That conclusion was based only on the report of the Enquiry Officer. Later on 9th April 1960 the punishing authority referred to the past record of the petitioner while confirming the punishment of removal which was already decided upon in the letter dated 21st January 1960 by way of reinforcing his previous conclusion. But even without such reinforcement, the previous conclusion would have been the same. No objection can, thereforee, be taken to such subsequent reinforcement of the argument justifying the previous decision to impose the punishment of removal. The decision in State of Mysore v. K. Manche Gowda, : [1964]4SCR540 , has application to the present case. In that case the notice to show cause was against the proposed punishment of reduction in rank. But afterwards without fresh notice, the proposed punishment was converted into a punishment for dismissal in view of the had past record of the official concerned. In the present case, on the other hand, the notice to show cause was against the proposed punishment of removal and the ultimate punishment was the same. Further, the past record was not taken into account in proposing the punishment of removal. No harm could be done, thereforee, if it was referred to as an additional justification in confirming the same punishment. (4) It is well-established that a quasi-judicial authority must give reasons or an order which involves civil consequences to another person. Is there also a rule of natural justice which requires that an order passed in appeal against such a quasijudicial order must also give reasons for it The answer to this question cannot be one but would vary according to the circumstances of different types of cases. Firstly, an appellate authority may either reverse or vary the order appealed against or may agree with it. If the appellate authority does not agree with the order appealed against, then reasons must be given by it for varying it or reversing the order. (Mis. Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala : [1962]2SCR339 If of course the variation or reversal of the order appealed against is in favor of the appellant, then no prejudice is caused to the appellant thereby. Even if the appellate authority, thereforee. does not give reasons in such a case, the appellant cannot complain for the simple reason that the decision is in his favor as happened in the present case. Secondly, if the appellate authority agrees with the order appealed against, then the following circumstances would determine when reasons have to be given by the appellate authority:- (1) If the parties before the appellate authority are the same as they were before the original authority and if the materials before the appellate authority were the same which were before the original authority, then the appellate authority does not consider anything which was not considered by the original authority and does not add anything to what has been said by the original authority. In such a case it is not necessary for the appellate authority to repeat what has been said by the original authority. (Nandram Hunatram v. Union of India. : AIR1966SC1922 and Commissioner of Income-tax v. K. v. Pilliah : [1967]63ITR411(SC) . (2) When however the party before the original authority was only the applicant but the parties before the revisional or appellate authority are not only the original applicant but also other persons who are interested in challenging the order passed in favor of the original applicant by the original authority, then necessarily fresh material is introduced by the new parties before the revisional or the appellate authority. The original authority could not have said anything about the new parties and the new material introduced by them. The appellate authority would have to say something about them even if it dismisses the revision or the appeal. (Bhagat Raja v. Union of India, : [1967]3SCR302 . The appeal in a departmental enquiry is preferred by the same party who was before the original authority in the departmental enquiry. The material in the appeal is the same which was before the original authority. As the parties and the material were the same, the appellate authority can simply dismiss the appeal without repeating the same reasons for the conclusion which were already given by the original authority. In a departmental enquiry, full reasons are given by the Enquiry Officer. If the punishing authority merely agrees with the Enquiry Officer then it need not give any reasons for such agreement. This is particularly so because the report of the Enquiry Officer is shown to the Government servant concerned and he has an opportunity of showing cause why the report should not be accepted by the Government. If, however, the punishing authority differs from the report, then it will have to give reasons for it. Full opportunity having thus been given to the Government servant at the first stage, it is not necessary that the appellate authority should give reasons for dismissing the appeal. (5) The warning given to the petitioner by the President while dismissing his representation was apparently called for by the very had record of the petitioner shown by the copies of confidential reports on record. It is the function of the employer and the superior authorities to bring the misconduct of the Government servant concerned to his notice and to warn him that he must improve himself. The petitioner cannot complain if this was done.

(5) The appeal is, thereforee, dismissed but without any order as to costs.


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