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A. Parameswara Iyer Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 2650 of 1961
Judge
Reported inAIR1963Ker92
ActsConstitution of India - Articles 14, 311(2) and 320(3); Travancore Public Servants (inquiries) Act, 1122 - Sections 21; Kerala (Classification, Control and Appeal) Rules, 1957; Public Servants' (Enquiry Proceedings Tribunal) Rules, 1960; Kerala Public Service Commission (Consultation) Regulation, 1957 - Rule 9
AppellantA. Parameswara Iyer
RespondentState of Kerala
Appellant Advocate T.N. Subramania Iyer and; K.S. Paripoornan, Advs.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases ReferredSreedharaiah v. Dist. Supdt. of Police Anantapur.
Excerpt:
service - dismissal - articles 14, 311 (2) and 320 (3) of constitution of india, section 21 of travancore public servants (enquiries) act, 1122, kerala (classification, control and appeal) rules, 1957, public servants (enquiry proceedings tribunal) rules, 1960 and rule 9 of kerala public service commission (consultation) regulation, 1957 - order of dismissal passed by state government on ground of misbehaviour challenged in present petition - petitioner contended that respondent had committed serious irregularity or illegality in having consulted public service commission in matter - ordinarily no obligation on state government to consult public service commission in matter relating to judicial officers - no irregularity or illegality in such consultation - state government's view is not.....c.a. vaidialingam, j,1. in this writ petition mr. t. n. subramania iyer, learned counsel for the petitioner, challenges the proceedings taken by the state government, and which ultimately resulted in the passing of the order, ext. p-8, by the respondent on 20-6-1961. under ext. p-8, it will be seen that the state government are of the view that, misbehaviour as against the petitioner, has been proved and that he is dismissed from service with effect from 13-2-1961, the date on which he was placed under suspension, pending enquiry into the charges framed as against him.2. the petitioner joined as a clerk in the land revenue department in 1107 and he was occupying various positions after that period and ultimately in 1955, he was promoted and posted as sub-magistrate, irinjalakuda. on.....
Judgment:

C.A. Vaidialingam, J,

1. In this writ petition Mr. T. N. Subramania Iyer, learned counsel for the petitioner, challenges the proceedings taken by the State Government, and which ultimately resulted in the passing of the order, Ext. P-8, by the respondent on 20-6-1961. Under Ext. P-8, it will be seen that the State Government are of the view that, misbehaviour as against the petitioner, has been proved and that he is dismissed from service with effect from 13-2-1961, the date on which he was placed under suspension, pending enquiry into the charges framed as against him.

2. The petitioner joined as a clerk in the Land Revenue Department in 1107 and he was occupying various positions after that period and ultimately in 1955, he was promoted and posted as Sub-Magistrate, Irinjalakuda. On 6-10-1956, the Bar Association, Irinjalakuda, passed a resolution alleging serious misconduct as against the petitioner and requesting for action being taken as against him. On a copy of the resolution being sent to the High Court, the latter directed the District Magistrate, Trichur to conduct a preliminary enquiry in the matter.

3. The District Magistrate, Trichur conducted an enquiry and his report is Ext. P-1 dated 19-12-1957. It is not really necessary to go into the various matters mentioned in the report because that is only more or less a sort of a preliminary enquiry directed to be conducted by the authorities concerned to decide as to whether disciplinary proceedings have to be initiated as against the petitioner. But it will be seen that the view of the District Magistrate appears to be that as regards the allegations about the petitioner -- having taken bribe, though there are sufficient materials that the Magistrate has received illegal gratification, the evidence is not of such a nature as will justify a conviction for taking bribe, if a criminal proceeding is launched against him. There is also the view expressed by the District Magistrate that thepetitioner has allowed parties in pending cases to see him at his house and that he has also gone out of the way in going to the office of the Syndicate for an attestation and that he has been indiscriminate in the matter of imposing punishments and in taking up and deciding cases on plea of guilty to the charge made by the parties, even in cases where these parties had specifically denied the charges in the first instance.

4. On the basis of this report, the State Government ultimately decided to take disciplinary proceedings as against the petitioner, and accordingly directed proceedings to be taken under the Public Servants (Inquiries) Act, 1122, (Act XI of 1122).

5. In the usual course, the Enquiry Commissioner was appointed; and though there is on record material to show that there has been a changeof personnel, the petitioner does not seem to have had any grievance so far as the actual nature of the enquiry itself was concerned.

6. Under Ext. P-4, six charges have been framed as against the petitioner and the Commissioner was directed to inquire into the same. The six charges are as follows:

'Charge I : -- That you, Sr. A. Parameswara Iyer, while working as Sub Magistrate, Irinjala-kuda (Mukundapuram) in the Judicial service of the State in the year 1955 and 1956, did accept, by misusing your official position and Sub Magistrate illegal gratification from the persons noted in Col. 1 below, who were either parties to, or connected with the parties to the cases pending before you noted in Col. 2, the amounts in cash or in kind, noted in Col. 3 on or about the dates noted in Col. 4.

Col. 1.

Col. 2.

Col. 3.

Col. 4.

1.

Sri. BaghavaMenon.

C. C. 586/56

Rs. 5

Sept. 56.

2.

'Thomas Vareed.

Irinjalakuda(Crime No 69/69)

Rs. 5

1956.

3.

'Ramankutty.

C. C. 529/55

Rs. 10

12 or 13-9-1950.

4.

'Rappal.

C. C. 59-1/55

Rs. 6

Sept. or Oct. 58.

5.

'Lonappan.

C. C. 264/54

Rs. 15 in kind

1956.

6.

'Sankunny Nair.

C. C. 432/55

Rs. 5

Sept. or Oct. 58.

Charge No. II : -- That during the said period, you have allowed parties to the Criminal Proceedings pending before you or persons connected with such parties to approach you either in your chambers privately or in your house, and there is reason to believe that you did so to facilitate receipt of illegal gratification from such persons.

Charge No. III : -- That during the said period you have gone out of your way in visiting the office of the Cochin Commercial Syndicate, Irinjalakuda, for the purpose of issuing a certificate. This as well as your action in allowing the parties to approach you either in your chambers or at your house is improper and unbecoming your position as a Judicial Officer.

Charge No. IV : -- That during the said period you have misused the judicial discretion vested in you to pass appropriate sentences in cases tried by you, by passing grossly inadequate sentence as against some of the accused, and being unduly severe against certain others, especially in Motor Cases. There is reason to believe that you did so, actuated by corrupt motives.

Charge No. V : -- That you have wilfully clutched at jurisdiction not vested in you as a Se-sond Class Magistrate by framing charges and trying the accused in C. C. No. 4366/53 while you know that the evidence in the case prima facie disclosed offences triable by the Court of Sessions. There is reason to believe that you did so mala fide and with corrupt motives.

Charge No. VI : -- That you committed serious irregularities in conducting the trials of cases before you as (a) in C. C. 844/56, you changed the date of hearing of the case to suit the convenience of the accused, did not give notice of the change of the date of prosecution and did not hear them; noted in the judgment that the copies of the records necessary to be given to the accused were handed over which was not true and passed a sentence which was grossly inadequate; (b) in C. C.432/55 the accused had pleaded not guilty, and you posted the case to 6-10-55 for evidence. He absented himself on that date and you adjourned the case to 28-10-55, and on that date instead of taking evidence as you were bound to do, you accepted a petition from the accused as a plea of guilty and disposed of the case on that plea. This procedure is not warranted by law. There is reason to believe that these irregularities were committed by you actuated by improper motives'.

7. It will be seen that so far as charge (1), is concerned it is an allegation as against the petitioner that he has received illegal gratification, misusing his official position as a Sub Magistrate during the period mentioned therein and there are various instances mentioned in that charge.

8. Charge II, it will be seen, related to an allegation that the petitioner was allowing parties to criminal proceedings, pending before him, or persons connected with such parties, to approach him either in his chambers or in his house to make representations regarding such proceedings. No doubt, there is also the allegation that all that must have been done to facilitate receipt of illegal gratification.

9. Charge No. III again relates to the petitioner having visited the office of a particular Syndicate at Irinjalakuda for the purpose of issuing a certificate. There again there is a further allegation to the effect that the conduct of the petitioner, in allowing parties to approach him either in his chamber or in his house is highly improper and unbecoming of his position as a judicial officer.

10. Charge No. IV related to the misuse of judicial discretion alleged, as against the petitioner, in the manner stated therein.

11. Charge No. V again related to the petitioner having wilfully clutched at jurisdiction not vested in him in respect of certain matters stated under that charge.

12. Charge No. VI relates to certain irregularities in the conduct of cases which are dealt with therein.

13. The petitioner did send an explanation to these various charges; and there is no controversy that the petitioner had an opportunity of not only adducing evidence on his own behalf but also of cross-examining the various persons who appeared as witnesses on the side of the prosecution. So far as the actual enquiry proceedings before the Commissioner are concerned, as I mentioned earlier, the petitioner does not have any grievance whatsoever.

14. Ext. P-5, dated 7-9-1959 is the report sent by the Enquiry Commissioner. I will briefly indicate his findings on the various charges.

15. So far as Charge No. I is concerned, it is the view of that authority that on a careful consideration of all the circumstances, there is no reliable or sufficient legal evidence to support the case that the accused officer has received illegal gratification in the six cases mentioned under this charge. Therefore, the Enquiry Commissioner finds that the accused is not guilty under Charge No. I, At this stage, I may mention that in the earlier part of the report, the Enquiry Commissioner has adverted to certain confessions that the petitioner is stated to have made to some members of the Irinjalakuda Bar, when the petitioner came to know that action was being taken by the members of the Bar, to pass the resolution in question. Some members of the Bar, have given evidence saying that the petitioner has really admitted having taken bribes and undertook to behave in future properly and requested that the proposal to pass any resolution as against him may be dropped. A part of their evidence was also to the effect that some of their clients have mentioned that they paid illegal gratification to the petitioner.

It is the view of the Enquiry Commissioner that these admissions must be considered to be only in the nature of extra judicial confession and, therefore, it cannot be given much importance, more so, when resolutions have been passed by the Bar Association, to which resolution those members of the Bar were also parties. The direct evidence before the Enquiry Commissioner, by some of the parties who are said to have gone and met the petitioner in his office or house and given bribes, is not also accepted on the ground that this evidence is only the evidence of accomplices. It is on this state of evidence that the Enquiry Commissioner has recorded findings on Charge No. I to which I have already referred.

16. Charges II and III are dealt with by the Enquiry Commissioner together. The Commissioner is of the view that the first portion of Charge II and the second portion of Charge III have been proved. The first portion of Charge II is that the petitioner has been allowing parties or persons connected with such parties in pending proceedings, to approach him either in his chambers or in his house and make representations regarding cases which were pending. The second portion of Charge III is again to the effect that the petitioner by allowing persons or parties to go and see him in connection with pending cases certainly has acted improperly and that act is unbecoming of the posi-tion occupied by the petitioner. On these aspects the Enquiry Commissioner finds the petitioner guilty. So far as the charge of the petitioner having gone to the office of a particular Syndicate is concerned, the Enquiry Commissioner is of the view that the petitioner cannot be considered to have gone there with a corrupt motive. Even in respect of the second portion of Charge II, the Commissioner finds that there is no corrupt motive in the petitioner allowing parties to see him in his house or chambers in connection with pending cases.

17. So far as Charge IV is concerned, that relates to the allegation of misuse of judicial discretion. There was also a further allegation that the petitioner has misused such discretion actuated by corrupt motives. So far as this is concerned, the Enquiry Commissioner is of the view, that the petitioner Has misused the judicial discretion vested in him in several cases in the matter of passing sentences and that he gave differential treatment to parties who appeared by lawyers and who appeared by themselves. There is also the further finding that there is no evidence to show that the accused officer was actuated by corrupt motives in so doing, though such inference is possible.

18. So far as Charge V is concerned, that related to the accused officer's action in the conduct of certain cases referred to therein. But so far as that is concerned, the Enquiry Commissioner is of the view that the prosecution has not proved this charge.

19. SO far as Charge No. VI is concerned, regarding certain irregularities in the conduct of the trial of the cases mentioned therein, it is the view of the Enquiry Commissioner that the procedure adopted by the Magistrate was certainly irregular or illegal. But here again, the finding recorded by the Enquiry Commissioner is that there is no evidence to support the case of the prosecution that such irregularity or illegality was committed by the accused officer, actuated by any corrupt motives. These are the findings recorded by the Enquiry Commissioner on the various charges.

20. The Enquiry Commissioner then sums up in the final part of his report. According to the Enquiry Commissioner, the accused officer has established a very bad reputation as a Judicial Officer, though the actual charges of corruption or receipt of illegal gratification, as such, have not been proved by the prosecution. But he has stated that the conduct of the accused, in admitting and interviewing parties in pending proceedings either in chambers or in the house, was highly improper and unbecoming of the status of a judicial officer and that has given room for strong suspicion that the petitioner is actuated by corrupt motives. The Commissioner also states that such conduct on the part of a judicial officer cannot certainly be tolerated. Finally, the Enquiry Commissioner states that the Officer's long service as a clerk in the Department, and his inexperience as a Judicial Officer at the time of the alleged irregularities, may be taken into account by the Government, if any disciplinary action, is sought to be taken as against him.

21. On receipt of the Enquiry Commissioner's Report Ext. P-25, the State Government issued Ext. P-6 dated 8-2-1961, the show-cause notice. There is no controversy that the petitioner was furnished with a copy of the Enquiry Report along with Ext. P. 6.

22. In Ext. P-6, after setting out the circumstances leading up to the enquiry, and also after adverting to the findings of the Enquiry Commissioner on the various charges, the Government state that they have examined the records of the enquiry very thoroughly and that they accept the finding of the Enquiry Commissioner with regard to Charges II to VI. But regarding Charge No. I, namely, the charge of receiving bribes or illegal gratification, the Government state that they feel that the evidence of the members of the Bar regarding confessions stated to have been made bythe petitioner and also the evidence of witnesses who have spoken to having given illegal gratification, should, have been accepted by the Enquiry Commissioner. The State Government is also of the further view that the findings of the Enquiry Commissioner, in respect of charges II and III have to be considered in the light of this evidence. The Respondent further states that there are strong circumstances to show that the accused must have been receiving illegal gratification. Ultimately, the Government hold the petitioner guilty of dereliction of duty and of conduct highly improper and unbecoming of his office andof partiality to certain parties. The Government state that the accused does not deserve to be in the public service in view of the seriousness of themisconduct proved against him. The Government further state that in view of these circumstancesthey propose to dismiss the petitioner fromservice.

23. The State Government, in the said showcause notice calls upon the petitioner to showcause, within the time mentioned therein, as to why the penalty of dismissal should not be imposed; and there is also the further statement that if no explanation is received within the particular period mentioned therein, the matter will be proceeded with on the presumption that he has nothing to represent.

24. The petitioner did send an explanation to the show-cause notice, Ext. P-6. That explanation is dated 25-2-1961 evidenced by Ext. P-7. The petitioner deals with the various findings andsays that so far as charge I is concerned, the Enquiry Commissioner has discussed the evidence regarding that aspect and has given the benefit of doubt in his favour. Not only that; the petitioner further states that the Enquiry Commissioner hag categorically stated that, after a consideration of the various materials placed before him, there is no reliable or legal evidence to support the case that the petitioner has received illegal gratification. Therefore, the petitioner states that while that is the finding recorded by the Enquiry Commissioner, there is absolutely no reason why the State Government should not accept those conclusions and attempt to differ from them. Therefore, the petitioner says that when he has beenfound not guilty by the Commissioner on a very important charge, namely, charge No. I, the othercharges are very minor ones, and because the petitioner was inexperienced at the relevant time, those could be very well condoned and no improper or corrupt motive could be attributed to him. The petitioner also says that in the absence of any evidence whatever in respect of the main charge of corruption, it will be very hard that the Government should consider it necessary to find him guilty of this charge and try to impose the punishment stated in Ext. P-6.

25. Then again, the petitioner deals with the findings of the Commissioner on Charges II to VI and then he gives his explanation regarding those matters. The petitioner again adverts to Charge No. 1 and gives instances when, according to him, parties have been allowed to come to his house to meet him or in his chambers and also gives the occasion which has necessitated their coming. The petitioner further states that these aspects will have to be taken into account by the State Government. The petitioner again mentions in some detail regarding the allegation that he has adopted a discriminatory treatment in some of the cases. Then again, the petitioner states in his explanation that from the findings on charges 2, 3, 4 and 6, no adverse inference at all can be drawn as against him as has been done by the Enquiry Commissioner in this case. Then he gives a statement of the various cases which he has dealt with aad also gives an explanation as to how exactly he has dealt with them. Ultimately, the petitioner says that it is extremely hard and unfair that the Commissioner himself should have disbelieved his plea in respect of charges II to VI and should have found him guilty. He makes a request to the State Government that the finding on charges 2, 3, 4 and 6 should not be accepted. Finally he emphasises upon his long, loyal arid arduous service and requests that these circumstances should be taken into account by the State Government and the explanation accepted and he be exonerated from all charges.

26. There is one aspect to be noted in this explanation, Ext. P-7, namely, the petitioner prays that the Government should be pleased to give him an opportunity of being heard through counsel in this matter. I am specifically referring to this matter, because an argument has been advanced before me by the learned counsel for the petitioner to which I will refer later. The contention is that by the State not having granted that request before the final order, Ext. P-8, was passed, there has been a denial of the reasonable opportunity guaranteed under Article 311.

27. Before I go to the final order passed by the State Government, there is one aspect to be noticed in Ext. P-7. Though in Ext. P-6, the State Government has categorically stated that the evidence of the members of the Bar regarding the confession stated to have been made by the petitioner and the evidence of the direct witnesses who have spoken to have given bribe to the petitioner, should be accepted and that the Enquiry Commissioner had acted wrongly in not acting upon that evidence, it will be seen that in Ext. P-7, the officer has absolutely nothing to say to the view proposed to be taken. He does not say, so far as I could see, in Ext. P-7 why the evidenceof the advocates, which is sought to be relied upon by the State Government, should not be accepted or the evidence of the witnesses who have spoken to having given bribes should not be accepted by the State Government. I am referring to this aspect because this will become relevant in considering the attack, that there has been no proper consideration by the State Government regarding the plea of the accused in this case befqre the order, Ext. P-8, was passed.

28. After receipt of the explanation, Ext. P-7, the State Government, by Ext. P-8, which is the order under attack, passed on 20-6-61, dismissed the petitioner from service. Here again, they refer to the circumstances leading up to the inquiry proceedings and after adverting to the findings recorded by the Enquiry Commissioner on these various aspects advert to the show-cause notice, Ext. P-6, issued by the State Government. They also advert to the explanation, Ext. P-7, furnished by the petitioner. It i3 the Government's view that the explanation of the officer has been properly and duly considered by them but the explanation of the officer has not shown any reasonable cause against the proposed punishment. No doubt, there is a reference to the Public Service Commission having been consulted and the latter--agreeing with the findings arrived at by the State Government regarding the charges. Ultimately, the State Government dismissed the petitioner from service with effect from 13-2-1961.

29. The first contention of Mr. T. N. Subra-mania Iyer, learned counsel for the petitioner, is that the procedure indicated in Act XI of 1122, under which disciplinary proceedings as against the petitioner were conducted, is more harsh than the corresponding provisions of the Kerala (Classification, Control and Appeal) Rules, 1957, which were in existence on the relevant date. In fact, in the affidavit it is stated by the petitioner that the Public Servants' Enquiries Act, 1122, is a more drastic measure and the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 which was in vogue at the time of the enquiry is more favourable to persons like the accused. It is also stated that Act XI of 1122 provides a summary procedure whereas the latter rules are more beneficial to accused persons. Therefore, the attack is that the proceedings initiated under this Act, inasmuch as they are harsh is discriminatory. Further inasmuch as uncontrolled power has been given to the State Government to decide the nature of the proceedings to be initiated against officers like the petitioner, that is violative of Article 14 of the Constitution. Naturally, the Government Pleader controverts this proposition.

30. If this question arises for the first time before me, I may have to go into that aspect very fully. But it is seen that the learned counsel, appearing for the petitioner in these proceedings, raised the same contention in another writ petition stating that the Public Servants' (Enquiry Proceedings Tribunal) Rules, 1960, under which proceedings were initiated against the particular officer therein were more harsh than the Kerala Civil Services (Classification, Control and Appeal) Rules 1957 or Act XI of 1122, which is the mate-rial Act before me. I may at this stage mention that Classification. Control and Appeal Rules of 1957, are substantially the same as the 1960 Rules. There was also an attack based upon what was stated to be an arbitrary power vested in the Government to choose one or other of the method of trial, as they pleased.

31. I had occasion to consider this ground of attack based upon Article 14 of the Constitution. In that connection, I had very exhaustively considered the various provisions in the Kerala Public Servants' (Enquiry Proceedings Tribunal) Rules, 1960 and the sections contained in the Travancore Public Servants Enquiry Act, Act XI of 1122, as also the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957. After going into those matters, in Considerable detail, I have held that though there may be some slight difference ia the procedure -- adopted under the Act and the other two set of rules, ultimately the reasonable opportunity, guaranteed to persons like the petitioner, under Article 311(2) is amply satisfied by the Public Servants (Enquiry Proceedings Tribunal) Rules, or the Travancore Public Servants Enquiries Act, Act XI of 1122, of the Kerala Civil Services (Classification, Control and Appeal) Rules and that there is no question of discrimination under Article 14.

32. That decision of mine is reported in Macki Fernandez v. State of Kerala, 1961 Ker LJ 231. Mr. T. N. Subramania Iyer has quite fairly stated before me that though an attempt was made to challenge this judgment of mine referred to above in appeal, that attempt did not succeed.

33. Therefore, it' is not really necessary for me to cover this ground over again because all the reasons given by me in that judgment for over-ruling the objections raised based upon Article 14 apply with full force to this case also. But there is one aspect which requires to be stated. In my decision referred to above, considerable reliance was placed by learned counsel for the petitioner therein on the then unreported decision of the Supreme Court, which, no doubt, has since been reported in State of Orissa v. Dhirendranath Das, AIR 1961 SC 1715. The particular observations of Mr. Justice Shah in that case which have been extracted in my judgment referred to, were very strongly relied upon by learned counsel for the petitioner in support of the contention that Article 14 has been violated. No doubt, I did not accept the contention of learned counsel. In fact, I had referred to a previous judgment of Mr. Justice Shah reported in Kapur Singh v. Union of India, AIR 1960 SC 493. I had also indicated the difference in the facts of the case before me.

34. It is now brought to my notice by learned Government Pleader that though this unreport-ed decision relied upon before me was reported only later in AIR 1961 SC 1715 that judgment has been referred to by Mr. Justice Shah himself when he had to deal with another case reported in Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245. The particular circumstances under which Mr. Justice Shah made the observations in AIR 1961 SC 1715 have been explained, ,if I may say so with great respect, by the learned Judgehimself in the later decision, though reported earlier, namely, AIR 1961 SC 1245.

35. Therefore, this contention based upon Article 14 cannot certainly be accepted.

36. The second contention of Mr. T. N. Subramania Iyer, learned counsel for the petitioner, is that the reasonable opportunity guaranteed under Article 311(2) of the Constitution contemplates opportunity, similar to the opportunity regarding the enquiry proceedings, being given to persons likc the petitioner, even during the second stage, namely, after the enquiry proceedings and when the punishment is sought to be imposed. That is, in other words, what was gone through at the enquiry stage must be repeated when the show cause notice is issued and punishment imposed. No doubt, learned counsel was prepared to modify this stand and urged later that the opportunity which he seeks to urge that an officer is entitled to at the second stage need not be as elaborate as at the first singe; but anyhow, there is certainly a requirement of that opportunity, namely, of the petitioner being heard, even at the stage of show-cause notice and before the final order imposing the punishment is passed. No doubt, in this connection learned counsel urged an alternative contention on the basis of the request made by the petitioner in Ext. P-7 wherein he has stated, when furnishing his explanation, that he may be given an opportunity to place his case before the authority concerned, by counsel.

36a. This proposition enunciated by the learned counsel is very seriously controverted by the learned Government Pleader appearing for the State. No doubt, Mr. T. N. Subramania Iyer, learned counsel referred to two decisions of the Orissa High Court reported in M. S. Heque v. Member, Board of Revenue Sambalpur, AIR 1956 Orissa 103 and Narayan Das v. Member, Board ot Revenue Sambalpur, AIR 1956 Orissa 219. In the earlier case it will be seen that even the show cause notice itself stated, that if the petitioner wanted an opportunity of being heard, it will be furnished and notwithstanding the request made in that behalf, the authority seems to have disposed of the matter without giving him an opportunity. It was under these circumstances that the learned Judges in that case set aside the order passed by the punishing authority. No doubt, in the later case reported in AIR 1956 Orissa 219 the learned Judges were not prepared to go to the extent of the earlier decision. In fact, the learned Judges are of the view that there is no guarantee given to officers at the second stage to have the entire process, that has been gone through at an earlier stage, repeated.

37. Even so far as this aspect is concerned, in my view the position is concluded as against the petitioner by the decision of the Supreme Court in AIR 1960 SC 493. What exactly is the. content of the reasonable guarantee given to persons like the petitioner under Article 311(2), if I may say BO with respect, has been exhaustively laid down by His Lordship Chief Justice Das, speaking on behalf of the Court, in the decision reported in Khem Chand v. Union of India, AIR 1958 SC 300. These principles have been reiterated by the later decisions of the Supreme Court. The petitioner inthis case has no grievance regarding the conduct of the enquiry by the Enquiry Commissioner. The petitioner's grievance is that he has not been given an opportunity either when the show-cause notice Ext. P-6 was issued or before the final order. Ext. P-8, was passed. Considerable stress is laid on the specific requirement by the petitioner made in Ext. P-7 for a personal hearing. In AIR 1958 SC 300 at p. 307, Das, C. J. summarises the reasonable opportunity under Article 311 :

'To summarise; the reasonable opportunity envisaged by the provisions under consideration includes :

(a) 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 such charges arebased;

(b) 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,

(c) 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 arid 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'.

According to Mr. Subramania Iyer, an opportunity to make representations under clause (c) above, includes a right to be heard at that stage. The question is whether there is any such right.

38. In this case, in Ext, P-6, Government have indicated their serious view of the petitioner's misconduct. They differ from the Commissioner on Charge 1 and they give reasons for so differing. They also inform the petitioner, that in their opinion the petitioner does not deserve to be in public service and they also inform that, in consequence, they propose to dismiss him and call upon him to show cause why the said penalty should not be imposed. Petitioner sends Ext. P-7 and then Ext. P-8 is passed by Government.

39. The question as to whether a party is entitled to have an oral hearing also at the stage when a show cause notice has been issued, directly arose in the decision reported in AIR 1960 SC 493. The grievance of the officer in that case appears to have been that, when the President of India, issued the show cause notice no opportunity was given to the petitioner by means of an oral enquiry at that stage and the action taken by the President without giving that opportunity was challenged.

40. At page 500 Mr. Justice Shah, dealing with this aspect states that the President of India was not bound, before passing an order dismissing the appellant, to hear the evidence of witnesses. The learned Judge is of the view that it was open to the punishing authority, in that case, the President of India, to arrive at a conclusion on the evidence already recorded at the enquiry, by the Enquiry Commissioner. The learned Judge states that under Article 311 of the Constitution, no doubt,a public servant is entitled to show cause against the action proposed to be taken as against him, but exercise of the authority to pass an order to the prejudice of a public servant is not conditioned by the holding of an enquiry at which evidence of witnesses viva voce, notwithstanding an earlier fair and full opportunity before the Enquiry Commissioner, is recorded. The learned Judge then refers to the observation of their Lordships of the Privy Council in High Commissioner for India v. I. M. Lall, AIR 1948 PC 121.

41. The learned Judge again refers to the observations of. Das C. J., in AIR 1958 SC 300 to the effect :

'Of course, if the Government servant has been through the enquiry under Rule 55, it would not be reasonable thai he should ask for a repetition of that stage, if duly carried out.'

Then the learned Judge states that under the Constitution an opportunity of showing cause against the action proposed to be taken against a public servant is guaranteed and that opportunity must be a reasonable opportunity. As to whether opportunity afforded in a particular case is reasonable or not, the learned Judge says, depends upon the circumstances of that case. Ultimately the learned Judge holds at page 500 :

'By the Constitution, an opportunity of showing cause against the action proposed to be taken against a public servant is guaranteed and that opportunity must be a reasonable opportunity. Whether opportunity afforded to a public servant in a particular case is reasonable must depend upon the circumstances of that case. The enquiry in this case was held by the Enquiry Commissioner who occupied the high office of Chief Justice of the East Punjab High Court. The appellant himself examined 82 witnesses and produced a large body of documentary evidence and submitted an argumentative defence which covers 321 printed pages. An opportunity of making an oral representation not being in our view a necessary postulate of an opportunity of showing cause within the meaning of Article 311 of the Constitution, the plea that the appellant was deprived of the constitutional protection of that Article because he was not given an oral hearing by the President cannot be sustained'.

The above observations of His Lordship clearly show that when once an enquiry proceeding has been conducted properly and in this case I should again repeat that the petitioner has no grievance whatsoever so far as the actual enquiry proceedings are concerned -- there is no constitutional right in an officer to ask for a repetition at the stage of show-cause notice.

42. Mr. T. N. Subramania Iyer urged that whatever may be the position when the punishing authority accepts the findings of the Enquiry Tribunal, nevertheless a distinction will have to be made when the punishing authority differs, as in this case, even in some respects from the views expressed by the Enquiry Commissioner. According to the learned counsel, the constitutional guarantee win have to be considered in the light of as to whether the punishing authority accepts in toto the findings of the Enquiry Commissioner or dees not accept the view of the Enquiry Commissioner. Ifind it difficult to appreciate this attempt at making a distinction in the manner suggested by the learned counsel. After all, the constitutional guarantee afforded to a party ander all circumstances must be one and the same and the nature of guarantee cannot depend on as to whether the punishing authority agrees with the findings of the Enquiry Commissioner or disagrees with them. No such distinction is sought to be made, so far as I could see, in the decision of the Supreme Court, in AIR 1960 SC 493 to which I have already made a reference.

43. The learned counsel then urged that at any rate in the particular circumstances of this case and when especially in Ext. P-7 the petitioner has made a specific request for being given an opportunity of being heard by counsel, when the authorities had ignored that request and passed the order, Ext. P-8, there has been a violation of the principles of natural justice. I am not inclined to accept this contention. No doubt, learned counsel for the petitioner invited my attention to certain observations of the Andhra Pradesh High Court ia Sreedharaiah v. Dist. Supdt. of Police Anantapur. AIR 1960 Andh Pra 473. But so far as this case is concerned, I am not inclined to accept the contention of the learned counsel that there has been any violation of the principles of natural justice or that the Government have not applied their mind arid given reasons in Ext. P-6, for differing from the findings of the Enquiry Commissioner on Charge No. 1. It will be seen that the findings of the Enquiry Commissioner on Charges II to VI have been accepted completely even by the State Government. It must be remembered that those findings were also to the effect that the petitioner is guilty of improper conduct and he has so conducted himself that it was unbecoming of the position that he held.

44. But so far as Charge No. 1 is concerned, it will be seen from Ext. P-6 that the State Government was not inclined to accept the view expressed by the Enquiry Tribunal. It would be seen that even the Tribunal has not disbelieved as such the evidence adduced by either the advocate or by the various other witnesses regarding corruption. No doubt, it set before itself a rule of caution that an extra judicial confession should not be given undue importance and the evidence of persons who had given bribes should be considered the evidence of accomplices and such evidence has to be considered with greater caution. It is really because of these circumstances that the Enquiry Commissioner has not accepted the case of the prosecution regarding Charge No, I, namely of receiving illegal gratification and bribe.

45. No doubt there was a feeble contention that the State Government has no power to go behind the findings recorded by the Commissioner This contention cannot be accepted, because under section 21 of the Act in question, power is given to the Government to finally pass such orders as it considers just and proper.

46. That the State Government have certain-ly applied their mind to the enquiry report and the records is clear when they say in Ext. P-6that there is evidence given by members of the Bar regarding confession stated to have been made by the petitioner at about- the time when they were taking steps to pass a resolution regarding the misconduct of the petitioner and urging the higher authorities to take action. The Government also refer to the evidence of the other witnesses regarding corruption. As to whether the State Government should have accepted that evidence or not is a totally different matter. It is not as if when an authority takes into account the extra judicial confession it can be stated that the autho-rty has acted illegally. No doubt, it was not inclined to agree with the view adopted by the Enquiry Commissioner. Therefore I am not inclined to accept the contention of the learned counsel that the Government, without to any manner applying its mind, has really chosen to disagree with the conclusions arrived at by the Enquiry Commissioner on a very important item of charge, namely, taking illegal gratification. The learned counsel also urged that but for this mistake committed by the punishing authority, it is not possible to say that by the mere acceptance of the finding on the other charges the State Government would have inflicted this severe punishment by way of dismissal. I have already indicated that the punishment authority was not prepared to accept the view of the Enquiry Commissioner and I do not find any provision in the Act in question which debars the State Government when the report is received by them and acting under section 21, from interfering with the findings of the Enquiry Commissioner.

47. No doubt, the learned counsel urged that under section 21 there is an obligation on the part of the State Government when the report of the Enquiry Commissioner received to pass such orders as they consider just and proper. The only question is whether the State Government has discharged its functions under the statute properly. As I mentioned earlier, it has certainly applied its mind to the records and materials before it and indicated in Ext. P-6 as to why it is not accepting the finding of the Enquiry Commissioner even regarding Charge No. I.

48. In this connection it will be noted that in the explanation given under Ext. P-7, as I have already indicated, the petitioner has nothing to say to the proposal of the State Government that they intend to accept the evidence of the lawyers to whom the petitioner is stated to have made an extra judicial confession as also the evidence of persons who have spoken to the payment of bribes. So far as this is concerned, the petitioner does not in Ext. P-7 certainly say anything as to why the evidence of the lawyers should oot be taken into account. His only grievance, appears to be that when the Enquiry Commissioner has found that the evidence on record does not justify him to come to a conclusion as against the petitioner on Charge No. I and he has given him the benefit of doubt, the State Government should not interfere with that finding. Therefore, I am not satisfied that the attack made as against Ext. P-8 that the State Government has come to a conclusion without really applying its mind is well-founded.

49. Finally, the order, Ext. P-8, also shows that the State Government have referred to thetentative conclusion arrived at by them as well as the explanation given by the accused and then ultimately have come to the conclusion that inasmuch as the explanation given by the petitioner is not acceptable they passed the order under attack. No doubt, when the petitioner asked for a personal opportunity in Ext. P-7, it was open to the Government to consider his request. But I have shown earlier that the petitioner has no such constitutional right. If that is so, it follows that the petitioner has not been deprived of any constitutional protection under Article 311 when the State Government did not accede to his request for personal hearing under Ext. P-7, when the petitioner had gone through a fair and elaborate enquiry before the Enquiry Commissioner. There is no violation of any principles of natural justice either in this case.

50. There is another contention taken before me by Mr. T. N. Subramania Iyer, learned counsel for the petitioner, that the State Government has committed a very serious irregularity or illegality in having consulted the Public Service Commis-sion in this matter as is clear from the order Ext. P-8. It will be seen that at the stage when the show cause notice was issued under Ext. P-6, the Public Service Commission was nowhere in the picture. The view expressed there is the view of the State Government and the State Government alone. No doubt, in Ext. P-8 it is stated that they have consulted the Public Service Commis-sion and that the Public Service Commission agrees with the conclusions arrived at by the Government. No doubt, in this connection Mr. T. N. Subramania Iyer, learned counsel for the petitioner, drew my attention to Rule 9 of the Kerala Pub-lic Service Commission (Consultation) Regulation, 1957, which proves that this regulation shall not apply to the judicial service of the State and the Legislature Secretariat service. According to the learned counsel, inasmuch as this rule was not complied with, there is an illegality committed by the State Government when they took the advice of the Public Service Commission.

51. I am not inclined to accept this contention either. The rule in question only comes to this, namely, that ordinarily there is absolutely no obligation on the State Government to consult the Public Service Commission in matters relating to Judicial Officers. But if they choose to consult, I do not find any irregularity or illegality. The State Government's view is in no way influenced by the opinion of the Public Service Commission. Further, this argument is ignoring the provisions in Article 320(3)(c) of the Constitution. Under that provision, the Public Service Commission shall be consulted, on all disciplinary matters affecting a person serving the Government in a civil capacity.

52. Therefore, all the contentions raised by the learned counsel fail and the writ petition is dismissed. There will be no order as to costs.


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