Case Note & Summary
The appeal by special leave arose from a judgment of the Punjab High Court (Circuit Bench) at Delhi which had upheld the removal of a permanent government servant. The appellant, who joined permanent government service on 4 April 1924, held various posts; after partition he was employed under the Ministry of Commerce. In 1952 he was transferred as Section Officer, which he considered a reduction in rank, and applied for leave preparatory to retirement. While on leave, he sought and accepted private employment with Messrs. Albert David & Co. Ltd. without obtaining prior sanction of the Government. On 16 June 1953 he was charged with violating Rule 15 of the Government Servants' Conduct Rules and Fundamental Rule 11 because a government servant may not accept private employment without Government sanction and his whole time is at the disposal of Government. An enquiry officer submitted a report on 12 September 1953 finding the charge proved. On 14 April 1954 the President issued a show cause notice under Article 311(2) stating that he was provisionally of opinion that a major penalty, viz., dismissal, removal or reduction, should be enforced and giving the appellant an opportunity to show cause against the action proposed. After considering the appellant's representation and consulting the Public Service Commission, the President passed an order on 1 October 1954 removing the appellant from service. The appellant challenged the removal by writ petition under Article 226 of the Constitution in the Punjab High Court, contending that he was not given reasonable opportunity to show cause against the action proposed because the show cause notice did not specify which of the three major penalties was intended, and that he had accepted private employment in a bona fide belief that Government had no objection. The single judge dismissed the petition and the Letters Patent Appeal was also dismissed. Before the Supreme Court, the only substantial question was whether the show cause notice complied with Article 311(2) though it mentioned all three major penalties in the alternative. The appellant relied on the decision in Khem Chand v. Union of India, arguing that the competent authority must tentatively propose 'one of the three punishments' and communicate the same to the government servant; he contended that proposing all three did not satisfy that requirement. The Court explained that the reasonable opportunity under Article 311(2) includes an opportunity to deny guilt, to defend, and to make representation as to why the proposed punishment should not be inflicted. The Court held that there was nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merited any one of the three major penalties and asking the government servant to show cause against the punishment proposed to be taken in the alternative. This gave the government servant a better opportunity to show cause against each of those punishments, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted. The decisions in High Commissioner for India and High Commissioner for Pakistan v. I.M. Lall and Khem Chand v. Union of India were explained, while Jatindra Nath Biswas v. R. Gupta, Dayanidhi Rath v. B.S. Mohanty and Lakshmi Narain Gupta v. A.N. Puri were distinguished. Accordingly, the Supreme Court held that the show cause notice dated 14 April 1954 did not contravene Article 311(2) and the removal order dated 1 October 1954 was valid. The appeal was dismissed.
Headnote
A) Service Law - Constitutional Protection of Civil Servants - Reasonable Opportunity Under Article 311(2) - Constitution of India, 1950, Article 311(2) - The show cause notice issued to a government servant tentatively proposed major penalty of dismissal, removal, or reduction in the alternative, without specifying the exact penalty. The Supreme Court held that such alternative proposal did not contravene Article 311(2) because it afforded the government servant a better opportunity to represent against each of the possible punishments. Held that the notice was valid and the removal order was not vitiated. (Paras Not mentioned)
Issue of Consideration
Whether a show cause notice under Article 311(2) of the Constitution that states all three major penalties (dismissal, removal, reduction) in the alternative, without specifying the exact punishment proposed, satisfies the requirement of reasonable opportunity
Final Decision
The Supreme Court held that the show cause notice dated 1954-04-14 did not contravene Article 311(2) and that the removal order dated 1954-10-01 was valid. The appeal was dismissed.
Law Points
- Legal points not extracted
- A show cause notice under Article 311(2) may tentatively propose dismissal
- removal
- or reduction in the alternative without specifying the exact penalty
- such notice affords better opportunity to show cause and does not vitiate subsequent removal order
- the phrase 'one of the three punishments' in Khem Chand requires communication of a tentative proposal but not exact particularization of penalty
Case Details
Civil Appeal No. 288 of 1958
S.K. Das, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah
Citation not available, 1959 AIR 536, 1959 SCR Supl. (1) 892
N.C. Chatterjee, R.S. Narula, M.C. Setalvad, B. Sen, T.M. Sen
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Nature of Litigation
Disciplinary proceedings against a government servant leading to removal from service, challenged by writ petition under Article 226 of Constitution alleging violation of Article 311(2).
Remedy Sought
Appellant sought to have the President's removal order dated 1954-10-01 declared invalid and set aside on the ground that the show cause notice did not specify the exact punishment and thus denied reasonable opportunity under Article 311(2).
Filing Reason
The appellant was served with a show cause notice proposing major penalty in the alternative ('dismissal, removal or reduction') rather than specifying which penalty was tentatively intended, and he contended this defect vitiated the final removal order.
Previous Decisions
Punjab High Court (Circuit Bench) at Delhi dismissed the appellant's writ petition (Civil Writ No. 8-D of 1955) on 1956-04-09, holding no contravention of Article 311(2) and rejecting bona fide belief argument; Letters Patent Appeal No. 25-D of 1956 was dismissed by the same High Court on 1956-12-03.
Issues
Whether a show cause notice under Article 311(2) of the Constitution that states all three major penalties (dismissal, removal, reduction) in the alternative, without specifying the exact punishment proposed, satisfies the requirement of reasonable opportunity
Submissions/Arguments
Appellant contended that the show cause notice was invalid because it stated all three major punishments and did not particularize the actual or exact punishment proposed to be imposed, thereby violating Article 311(2).
Appellant also contended before the High Court that he had accepted service under Albert David & Co. Ltd. in bona fide belief that Government had no objection; however this point was not pressed before the Supreme Court.
Union of India argued that the show cause notice complied with Article 311(2) because it provided ample opportunity to represent against each of the proposed penalties.
Ratio Decidendi
A show cause notice under Article 311(2) is valid even if it tentatively proposes any one of the three major penalties (dismissal, removal, reduction) in the alternative. The requirement of reasonable opportunity is satisfied because the delinquent government servant gets a better chance to represent against each possible punishment, and the disciplinary authority is not bound to specify the exact penalty before considering representation. The phrase 'one of the three punishments' in Khem Chand does not require exact particularization.
Judgment Excerpts
On a careful consideration of the report, and in particular of the conclusions reached by the Enquiry Officer in respect of the charges framed against you the President is provisionally of opinion that a major penalty, viz., dismissal, removal or reduction should be enforced on you. Before he takes that action, he desires to give you an opportunity of showing cause against the action proposed to be taken.
There is nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him, because it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on him.
Procedural History
Appellant joined permanent government service on 1924-04-04 and held various posts. In 1952 he was transferred as Section Officer in the Development Wing of the Ministry of Commerce, which he considered a reduction in rank. He applied for leave preparatory to retirement on 1953-02-06 and amended that application on 1953-02-14. On 1953-03-10 he was informed he could not retire at that stage but was granted leave from 1953-02-16 to 1953-04-30. While on leave, he wrote to Government on 1953-02-25 that he was contemplating joining Messrs. Albert David & Co. Ltd. and in April 1953 accepted service with that company, informing Government on 1953-04-06. On 1953-06-16 he was charged with violating Rule 15 of the Government Servants' Conduct Rules and Fundamental Rule 11. An enquiry officer submitted a report on 1953-09-12 finding the charge proved. A show cause notice under Article 311(2) was issued on 1954-04-14. The President passed an order removing him from service on 1954-10-01. The appellant filed Civil Writ No. 8-D of 1955 in the Punjab High Court; the single judge dismissed it on 1956-04-09. The Letters Patent Appeal No. 25-D of 1956 was dismissed on 1956-12-03. The appellant then appealed to the Supreme Court by special leave, which was dismissed on 1958-12-12.
Acts & Sections
- Constitution of India, 1950: Article 311(2)
- Government Servants' Conduct Rules: Rule 15
- Fundamental Rules: Rule 11
