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B. Varadarajulu Chettiar Vs. State of Madras by Secretary, Home Department - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtChennai High Court
Decided On
Reported in(1956)2MLJ145
AppellantB. Varadarajulu Chettiar
RespondentState of Madras by Secretary, Home Department
Excerpt:
- - if that is the scope of article 311(2) then the requirements of the constitutional guarantee have been satisfied by the government. the requirements of both were satisfied in this case. 26 of 1949 he, the petitioner, failed to prepare a list relating to valuable movables in respect of which an insolvent had presented a long list before him and that he followed an irregular procedure causing considerable loss to the insolvent's estate. to that extent the learned counsel for the petitioner was well founded in his contention, that the government set out two items which were at variance with the findings recorded by the additional district judge......petitioner in response to the notice, dated 30th september, 1953, appears to have been sent to the public service commission, who had to be consulted before orders punishing the petitioner could be passed by the government. the public service commission reported to the government that dismissal would be appropriate. on nth june, 1954, the government passed orders dismissing the petitioner from his post and it should be remembered the post he held was the post borne on the cadre of official receivers.6. the petitioner appealed, and that appeal was dismissed on 22nd october, 1954.7. the petitioner applied to this court under article 226 of the constitution for the issue of a writ of certiorari to set aside the order of dismissal, dated nth june, 1954, which was eventually confirmed on.....
Judgment:
ORDER

Rajagopalan, J.

1. The petitioner held the post of Official Receiver, Gombatore, and was in receipt of the pay and allowances due to an officer he iding a post borne on that cadre. He was also entrusted with the powers of an Additional Judge of the. Court of Small Causes and with the powers of a Rent Controller, but apparently there was no separate payment of allowances for discharging these functions.

2. On 6th August, 1952, twelve charges were framed by the District Judge against the petitioner, and these related to the discharge of his functions as an Official Receiver under the administrative control of the District Judge. The Additional District Judge of Coimbatore conducted the enquiry into these charges and submitted his report on 26th June, 1953. Of the twelve charges the learned Additional District Judge held that two charges had been fully proved and that two others were proved in part.

3. On 20th March, 1953, two further charges were framed by the District Judge, and on 1st April, 1953, one more charge was added. Of these three, one related to the work of the petitioner as Rent Controller. The District Judge himself held the enquiry into these charges. In the findings he recorded on 4th May, 1953, he held that each of these charges, which also involved a charge of dishonesty, had been, proved.

4. The petitioner had been appointed by the Government, and so the competent authority to order a punishment of dismissal or removal was only the Government. In due course, the reports of the Distric Judge and the Additional District Judge were submitted to the Government through the High Court. On 30th September, 1953, the Government issueda notice to the petitioner to show cause why he should not be dismissed from service. Along with that notice copies of the findings as embodied in the reports of the District Judge and Additional District Judge were furnished to the petitioner. The petitioner submitted his representation on 19th October, 1953.

5. The entire record including the final representation made by the petitioner in response to the notice, dated 30th September, 1953, appears to have been sent to the Public Service Commission, who had to be consulted before orders punishing the petitioner could be passed by the Government. The Public Service Commission reported to the Government that dismissal would be appropriate. On nth June, 1954, the Government passed orders dismissing the petitioner from his post and it should be remembered the post he held was the post borne on the cadre of Official Receivers.

6. The petitioner appealed, and that appeal was dismissed on 22nd October, 1954.

7. The petitioner applied to this Court under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the order of dismissal, dated nth June, 1954, which was eventually confirmed on appeal on 22nd October, 1954.

8. One of the grounds put forward by the learned Counsel for the petitioner in support of the application for the issue of a writ of certiorari was that the notice, which the Government issued on 30th September, 1953, did not comply with the requirements of Article 311(2) of the Constitution, which requires that the Officer, that is, the petitioner in this case, should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The contention of the learned Counsel for the petitioner was as follows: Under Article 320(3)(c) of the Constitution the Government was bound to consult the Public Service Commission, as this was a case of disciplinary matter affecting a person serving under the Madras Government in a civil capacity, and, the advice of the Public Service Commission was one of the factors the Government had to take into consideration before deciding on the punishment to be inflicted on the petitioner. Therefore, the learned Counsel for the petitioner contended, the stage at which the petitioner was entitled to the notice guaranteed under Article 311(2) of the Coristitution was after the Public Service Commission had been consulted and after the Government was in a position to arrive tentatively at a conclusion as to the punishment suitable in this case, that is, 'the action proposed to be taken' within the meaning of Article 311(2). The learned Counsel contended that this had not been done in this case.

9. There was no specific provision in the Madras Civil Services (Classification and Control Appeal) Rules or even in the Madras Public Service Commission Rules of Procedure specifying the stage at which the Public Service Commission should be consulted to comply with Article 320(3)(c) of the Constitution.

10. Rule 18(2)(f) of Madras Public Service Regulations no doubt directs that, if the Commission has at any previous stage given advice in regard to the order to be passed, and no fresh question has thereafter arisen for determination, a further reference to the Public Service Commission would be unnecessary. Rule 19 of the Madras Public Service Commission Rules of Procedure prescribes that in any case in which the Commission is consulted under Article 320(3)(c) of the Constitution, a copy of the opinion or of the portion of the opinion which relates to the officer should be communicated to the officer along with a copy of the orders of the authority empowered to punish. That rule was complied with in this case.

11. No doubt the opinion of the Public Service Commission was taken into consideration by the Government before it finally passed the order of punishment, that is dismissal. But the question is is the notice prescribed by Article 311(2) to be ssued only after the Public Service Commission had been consulted as required by Article 320(3)(c) of the Constitution. Under Article 311(2) the person holding the civil post against whom action is proposed to be taken by the Government is entitled to show cause against the action proposed to be taken; that is the notice for which Rule 17(b)(ii) of the Madras Civil Services (Classification and Control Appeal) Rules provides. The action proposed to be taken within the meaning of Article 311(2) would apply to the provisional conclusion the Government reached, on the findings recorded and accepted, before they are communicated to the officer charged. At that stage the Government would have to consider what would be the appropriate punishment, should those findings finally stand. It is only a tentative conclusion. It is certainly open to the Government to ask a person charged for example to show cause against dismissal, and on a further representation which he is entitled to make to inflict a much lesser penalty. It may be on the basis of the representation of the Officer. It may be on the advice of the Public Service Commission or it may be on independent considerations undertaken by the Government. But the stage, at which Article 311(2) prescribes a notice should issue to the officer to furnish an opportunity to show cause against the action proposed, is when the Government come to a tentative conclusion as to the punishment which would be appropriate: and at that stage the Government are bound to issue the notice and give the officer charged an opportunity; and if the opportunity is availed of, the representation the officer may make, the Government are also bound to consider. If that is the scope of Article 311(2) then the requirements of the constitutional guarantee have been satisfied by the Government. That a further opportunity was not given to the petitioner after the Public Service Commission had been consulted and after it had given its opinion does not, in my judgment, vitiate the exercise of the jurisdiction the Government had to dismiss the person, and there was no violation of the guarantee provided by Article 311(2) of the Constitution. There can be no real conflict between the requirements of Article 311(2) as indicated by me above and Article 320(3)(c) of the Constitution. The requirements of both were satisfied in this case.

12. Another ground on which the validity of the order of the Government was attacked by the learned Counsel for the petitioner was that, as Rent Controller the petitioner was not under the administrative control of the District Judge, and that the District Judge had therefore no jurisdiction to initiate disciplinary proceedings against the petitioner for something done by him as Rent Controller. The jurisdiction to punish was that of the Government, and that was not really affected by the enquiry conducted by the District Judge. But apart from that aspect of the case, it is not open to the petitioner in these proceedings under Article 226 of the Constitution to object to the jurisdiction the District Judge exercised to conduct an enquiry, because the petitioner had submitted to it, and apparently he did not challenge the jurisdiction at any earlier stage. In my opinion, the exercise of the jurisdiction the Government had to punish the petitioner was not affected by the fact, that as Rent Controller the petitioner was not under the administrative control of the District Judge.

13. I pointed out earlier that the Additional District Judge found that two of the charges framed against the petitioner had been proved only in part. In the order of the Government, dated nth June, 1954, it recorded that 'four of the twelve charges were established against the Official Receiver'. Of these item (2) was that in I.P. No. 26 of 1949 he, the petitioner, failed to prepare a list relating to valuable movables in respect of which an insolvent had presented a long list before him and that he followed an irregular procedure causing considerable loss to the insolvent's estate. What the Additional District Judge actually found was that the charge of irregular procedure had been established, but that it had not been established that there was any loss to the insolvent's estate. Similarly with reference to item (3) of the charges held established, as set out in the order of the Government, dated 1 ith June, 1954, what was stated was that in I.P. Nos. 43 of 1949 and 21 of 1949, he the petitioner violated the rules framed under the Provincial Insolvency Act. That again was not quite what the Additional District Judge found. He said that while the charge relating to I.P. No. 21 of 1949 had been proved the charge relating to I.P. No. 43 of 1949 had not been proved.

14. In the counter-affidavit filed by the Government they explained that what was set out in paragraph 2 in the order of Government, dated 1 ith June, 1954, was the charges as they had been framed; but that really overlooks what the Government themselves recorded in their order, that they set out below the charges 'as established' against the Official Receiver. To that extent the learned Counsel for the petitioner was well founded in his contention, that the Government set out two items which were at variance with the findings recorded by the Additional District Judge.

15. The question is, does this vitiate the order passed by the Government, the order dated 1 ith June, 1954? It is no doubt true it is not for this Court to substitute its opinion, rule out what was not necessary and decide on the balance of the material available whether the punishment actually awarded by the Government was appropriate. It should be noticed that, apart from the charges held proved by the Additional District Judge, each of the charges held proved by the District Judge involved a charge of dishonesty. But the error apparent on the face of the record would appear to be only a technical one, and in the circumstances of this case, I do not feel justified in using my discretion in favour of the petitioner to set aside the order as one vitiated as a whole.

16. I have dealt with the several grounds on which the exercise of the jurisdiction the Government undoubtedly had to punish the petitioner was challenged; and I am unable to accept any of the contentions put forward by the learned Counsel for the petitioner. The rule is discharged and the petition is dismissed. No order as to costs.


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