1. This is an appeal against the Judgment of our learned brother Govinda Menon, J., in Writ Petition No. 717 of 1952.
2. The appellant was a Motor Vehicles Inspector under the Government of Madras. Disciplinary proceedings were taken against him, and the Tribunal constituted under the Madras Civil Services Disciplinary Tribunal Rules, 1948, conducted the enquiry. Five charges were framed against him. The Tribunal held that three of the charges so framed had not been proved. The Tribunal further held the following two charges proved: (i) on or about 4th October, 1948, the appellant received Rs. 40, for issuing the fitness certificate for M.D.U. 2321, lorry belonging to V. Somasundaram Odayar of Kottayur and (ii) in April, 1949, the appellant received Rs. 40, for issuing fitness certificate for the same lorry. A copy of the report of the Tribunal was sent to the appellant by the Government, and he was asked to show cause why he should not be dismissed from service. The appellant submitted his representations. After considering these representations, and after consulting again the chairman of the Tribunal for Disciplinary Proceedings, the Government issued their order on 22nd January, 1951. The relevant portion of that order ran:
The Government have carefully considered the further representations made by the delinquent and observe that the major charges against him have not been proved and that even in the case of minor charges there is no conclusive proof although there is a strong suspicion against him. They, therefore, consider that the ends of justice would be met by compulsorily retiring him from service. The Government accordingly direct with, the concurrence of the Tribunal for Disciplinary Proceedings that. Sri P.S. Kuppuswami Iyer be compulsorily retired from service with effect from the date of receipt of this order.
3. Further representations to the Government failed and the petitioner applied to this Court under Article 226 of the Constitution to set aside the order of the Government dated 22nd January, 1951. It was against the dismissal of that application by Govinda Menon, J., that the present appeal was preferred.
4. Of the several contentions, which Mr. Venkatasubramania Iyer learned Counsel for the appellant petitioner desired to put forward, we virtually confined the arguments before us to the consideration of ground No. 15, in the memorandum of appeal which ran thus:
The learned Judge ought to have held the Government had no power to remove the appellant from service on the ground of mere suspicion in view of the guarantees embodied in the Rules of 1948.
The punishment inflicted on the appellant was not removal from service as such although that was the real effect of the punishment. The punishment actually imposed upon the appellant was compulsory retirement from service. The difference between the two punishments, removal from service and compulsory retirement from service, was explained by the Supreme Court in Satish Chandra Anand v. The Union of India (1953) S.C.J. 323 : (1953) S.C.R. 323, and also in Shyam Lal v. The State of Uttar Pradesh, and The Union of India : (1954)IILLJ139SC One other feature, which could be but of academic interest in this case, was pointed out by the learned Advocate-General. Section 240(3) of the Government of India Act, 1935, it should be remembered, singled out two punishments for the statutory guarantee provided in that sub-clause, dismissal and reduction in rank. Article 311 now gives a similar guarantee for dismissal, removal and reduction in rank. The learned Advocate-General referred to Section 277(1) of the Government of India Act, 1935, which explained dismissal. 'Reference to dismissal from His Majesty's service includes reference to removal from Majesty's service.' He contended that the position after the Constitution came into force was substantially the same. Only removal from service was specifically mentioned in Article 311. That, however, does not alter the fact, that compulsory retirement from service was a punishment not within the scope either of Section 240 of the Government of India Act or of Article 311 of the Constitution.
5. Thus the plea in paragraph 15 of the memorandum of appeal, which implied that the petitioner had been removed from service, is not quite correct. That, however, does not affect the main question at issue, whether a Civil servant like the appellant could have been punished in the absence of proof of the charges framed against him and on mere grounds of suspicion.
6. Rule 8 of the Madras Civil Services Classification, Control and Appeal Rules, as it now stands - the rule was the same during the relevant period when the appellant was punished - runs:
The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services specified in Rule 5.
Then follows an enumeration of 9 punishments, and the 6th item is 'compulsory retirement otherwise than under Article 465(2) or under Note (1) to Article 465-A of the Civil Services Regulations.' It was that power that the Government purported to exercise, when it inflicted the punishment of compulsory retirement from service on the appellant.
7. The Government accepted the report of the Tribunal, that the truth of three of the five charges, which the appellant had to answer, was not established. The Tribunal held that the other two charges had been proved. Those findings were provisionally accepted by the Government, when it issued notice to the appellant to show cause why he should not be dismissed from service. That was the punishment that the Tribunal had recommended. When the Government issued the order inflicting the punishment, there was a departure from its provisional conclusions in two respects. The original punishment of dismissal that was contemplated was not imposed. The lesser punishment of compulsory retirement from service was inflicted. As against its provisional conclusion that two of the charges of corruption had been proved the Government finally came to the conclusion, that there was no conclusive proof even on the truth of those two charges, though there was a strong suspicion against the appellant. What precisely the Government meant when they characterised the two charges of which the Tribunal found the appellant guilty as minor charges, we are unable to gather. However, it should be obvious that the standard of proof should be the same, whether the charges are major charges or minor charges in the view of the authority competent to inflict the punishment. The Government as we understand the relevant portion of the order, categorically stated that with reference to the two charges, on the basis of which they punished the appellant with compulsory retirement, there was no proof but only suspicion. Whether that finding satisfied the requirements of 'good and sufficient reason' in Rule 8 is the question for our determination.
8. That question does not appear to have been considered in that specific form by our learned brother, Govinda Menon, J. In his judgment the learned Judge observed,
As contended by the learned Advocate-General for the State the two questions which have to be decided are: (i) what is the final effect of the finding of the Tribunal; and (ii) whether the Government is questioning the order of the Tribunal. The action of the Government is more lenient in substance than the recommendation of the Tribunal and I cannot say that in this case no reasonable opportunity has been given to the petitioner to show cause against the action proposed to be taken against him.
With all respect to the learned Judge, who accepted the contention of the learned Advocate-General, the real question, in our opinion, should have been what was the finding of the Government, whatever the finding of the Tribunal might have been.
9. The scope of the Madras Civil Services Disciplinary Proceedings Tribunal's Rules makes it clear that despite the composition of the Tribunal, its role, apart from the enquiry it had to conduct and the findings it had to record on the basis of the evidence produced by both sides in that enquiry, was advisory. The Government was the ultimate authority to decide both the relevant questions, whether the charges had been proved, and if the charges had been proved, what the punishment should be. Rule 8(b) makes that position quite clear. Indeed we do not understand the learned Advocate-General to dispute the proposition, that even if the Tribunal held one or more of the charges enquired into by it had been proved, it was open to the Government to disagree with the Tribunal and to decline to accept those findings as correct. Certainly in the case of the punishment recommended by the Tribunal it was open to the Government to differ from the Tribunal. Only Rule 8(b) and Rule 9 required the Government to consult the Tribunal again before it departed from any of the recommendations made by the Tribunal. That the Government purported to do in the case of the appellant. It was after consulting the Chairman of the Tribunal, that the Government passed this order in January, 1951.
10. It is true that in the case of the appellant, the finding of the Tribunal that two charges of corruption had been proved against the appellant was accepted by the Government, when it issued the prescribed notice to the appellant to show cause against the punishment proposed at that stage, the punishment of dismissal from service. But then it should be remembered that the conclusions of the Government at that stage were only provisional, both with reference to the findings and with reference to the proposed punishment. It was certainly within the jurisdiction of the Government to depart from those provisional conclusions on either or both the relevant factors, the finding whether the charges had been proved, and the punishment that should be imposed on the Civil servant, if the charges were proved. Whether in every case, a Civil servant is entitled as of right to challenge the correctness of the findings of fact recorded or deemed to have been recorded in the notice given to him on the basis of the provisional conclusions reached by the authority competent to punish, to show cause against the proposed punishment, we are not called upon to decide in this case. It is enough to observe that the authority competent to punish has jurisdiction to depart from its provisional conclusion when recording its final conclusions both on the question of the truth of the charges and on the punishment to be inflicted. That jurisdiction the Government exercised in this case. It is the final conclusion of the Government, as recorded in its order dated 22nd January, 1951, that has to be considered in answering the question at issue, whether the requirements of good and sufficient reasons of Rule 8 of the Classification, etc., Rules were satisfied.
11. The learned Advocate-General, as we understood his arguments, certainly did not take up the position, that mere suspicion would satisfy the requirements of good and sufficient reason in Rule 8. What the learned Advocate-General invited us to hold was, that on a fair reading of the order of the Government, the Government must be deemed to have concurred with the Tribunal, that the two charges of corruption had been proved but that the Government recorded its reasons for mitigating the punishment of dismissal that had been recommended by the Tribunal. Of course the learned Advocate-General made it clear that the fair reading of the order of the Government, which he asked for, should be fair both to the Government and to the appellant. No doubt the Government did not in express terms record that they ultimately differed from the Tribunal on the question, whether the two charges of corruption had been proved. But then the Government expressly recorded, 'Even in the case of minor charges, there is no conclusive proof, although there is a strong suspicion against him'. We are certainly unable to construe that to mean that while the infirmities in the evidence on record were not enough to alter the finding that the charges had been proved, they were enough to mitigate the punishment. We are unable to accept the contention of the learned Advocate-General that we should view it as a case of inelegant choice of language in drafting the order. We must necessarily read and understand the passage as it stands. It was not as if the Secretary to the Government, who authenticated the order of the Government was not or could not have been aware of the difference between' proof and suspicion. Even if we do not attach any special significance to the word 'even' in the passage we have extracted above, it seems to us quite clear that what the Government intended to record, and what it did record, was that with reference to the two charges there was no proof but only suspicion. In this context, there can be little difference between conclusive proof and proof. Whether it is a penal provision of a statute, or a statutory rule that is to be applied the standard of proof remains the same, whether it is called proof or conclusive proof. Such proof the Government held was absent, and that is the only way in which we can understand the order of the Government. As we pointed out, it could not have been denied, and in fact it was not denied, by the learned Advocate-General that mere suspicion could not take the place of proof to satisfy the requirements of 'good and sufficient reason' prescribed by Rule 8. In the absence of good and sufficient reason, the Government can really claim no jurisdiction to inflict any of the punishments enumerated in Rule 8. The Government was the competent authority to punish the appellant. But the Government could do so only for good and sufficient reason. That requirement was not satisfied in this case, and the Government themselves made it clear ex facie the order, the validity of which the petitioner challenged.
12. The learned Advocate-General referred to the oft quoted decision of the Privy Council, High Commissioner for India v. I.M. Lal (1948) 2 M.L.J. 55 : L.R. 75 IndAp 225 : (1948) F.L.J. 23 : 1948 F.C.R. 44, and explained the scope of the declaration, the Privy Council ordered to issue in that case. On page 67 their Lordships directed the issue of a declaration that
the order of August 10th, 1940, purporting to dismiss the respondent from the Indian Civil Service was void and inoperative, and that the respondent remained a member of the Indian Civil Service, at the time of the institution of the present action on 20th July, 1942.
13. The learned Advocate-General explained that when the general principle at that stage was that a civil servant held his appointment during the pleasure of the Crown, an invalid order of the type their Lordships had to consider in Lall's case (1948) 2 M.L.J. 55 : 1948 L.R. 75 IndAp 225 : (1948) F.L.J. 23 : 1948 F.C.R. 44 did not really amount to an expression of His Majesty's pleasure. That, the learned Advocate-General maintained, was the real basis of the modified declaration, their Lordships of the Privy Council issued in Lall's case (1948) 2 M.L.J. 55 : L.R. 75 IndAp 225 : (1948) F.L.J. 23 : 1948 F.C.R. 44 a declaration couched in guarded and precise language. The learned Advocate-General posed the question whether, if a Civil servant immediately after his services had been terminated by the Government even wrongfully, sought employment elsewhere, he could be held to have been in the service of the Government, despite the order terminating his services. That question does not arise for consideration in this case.
14. We have held that the jurisdiction of the Government to punish the appellant could have been founded only on proof of good and sufficient reason within the meaning of Rule 8. We have held also that mere suspicion will not amount to good and sufficient reason. It follows that the appellant was punished in the absence of good and sufficient reason. The Government had no jurisdiction to punish the appellant in the absence of good and sufficient reason. That, in our opinion, should suffice to set aside the order of the Government dated 22nd January, 1951. What consequences should ensue, it may not be necessary for us to indicate in the circumstance of this case.
15. We allow the appeal, set aside the order of Govinda Menon, J., and direct that the rule nisi issued in W.P. No. 717 of 1952 be made absolute. The appellant will be entitled to his costs throughout. Counsel's fee Rs. 200.