http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: A. N. D’SILVA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 06/12/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N.

CITATION:  1962 AIR 1130            1962 SCR  Supl. (1) 968  CITATOR INFO :  RF         1963 SC1612  (9)  RF         1964 SC 364  (17)  R          1984 SC1850  (12)  RF         1988 SC1000  (4)

ACT:      Government Servant-Disciplinary  proceedings- Punishment-Proposal by enquiry officer, if binding on the  punishing authority-Powers  of  President- Union   Public   Service   Commission-Whether   an appellate authority  over Enquiry  Officer-Advice, if binding  on  President-Constitution  of  India, Arts. 311, 320:

HEADNOTE:      D,  a   Divisional  Engineer   of  Posts  and Telegraphs  was   suspended   from   service   for irregularities  in  the  matter  of  allotment  of telephones.  The   charges  were   firstly,   that irregularities were  committed by  him with a view to secure  illegal gratification  for himself  and others and  secondly, that  he was  a party to the commission  of   irregularities   having   thereby facilitated acceptance of illegal gratification by his subordinates.  The enquiry  officer found  him guilty  of   misdemeanour  by   disobeying  orders expressly  issued.   The  report  of  the  Enquiry officer was  sent by  the President  to the  Union Public    Service     Commission     for     their recommendations. In the meantime was informed that the Government of India had decided to dismiss him subject to the advice of the Union 969 Public Service Commission, and that he should show cause why  he should  not be dismissed. The Public Service Commission  agreed with  the view  of  the Enquiry Officer  that there  was contravention  of the specific  orders issued  by  granting  "casual connections" from time to time, but the Commission was of the opinion that this may amount to neglect to open  defiance of the order of his superior and the be  suspicion, there was nothing on the record

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

to connect D with receiving illegal gratification, and advised  that D ‘be retired compulsorily’. The appellant was informed that the President had come to the  conclusion that  he was  guilty  of  gross negligence and  disobedience of orders, and though the Union  Public Service  Commission had  advised that he  be retired  compulsorily as  it was not a permissible  punishment   under  the   rules,  the President had  decided that  D should  be  removed from service with immediate effect. The appellants writ petition  to the High Court of the Punjab for mandamus  and   certiorari   was   dismissed   and thereafter he  came up  by special  leave to  this Court. ^      Held, that  the Civil  Service  Rules  merely prescribe diverse punishments which may be imposed upon a delinquent public servant; the rules do not provide for  specific  punishments  for  different misdemeanours.  The   Rules  leave   it   to   the discretion of  the punishing  authority to  select the appropriate  punishment having  regard to  the gravity of  the misdemeanour.  It is  not for  the enquiry authority to propose punishment.      The  power   of  the   President  to   impose punishment for misdemeanour found proved against a delinquent public  servant, is unrestricted and is not circumscribed by the proposal about punishment by  the  enquiry  officer  which  the  latter  was incompetent to  make. It  was for the President to arrive at  a tentative  conclusion as to the guilt of the  delinquent public  servant and  to propose the  appropriate   punishment.  The   Constitution merely guarantees  the protection  of a reasonable opportunity of  showing cause  against the  action proposed;  it   does  not   guarantee   that   the punishment  shall   not  be  more  severe  than  a prescribed punishment.      The  President   is  by   Art.  320   of  the Constitution required  to consult the Union Public Service Commission in disciplinary matters but the President is  not  bound  by  the  advice  of  the Commission. The Union Public Service Commission is not  an   appellate  authority   over  an  Enquiry Officer.      In the  present case,  in imposing punishment of removal  from service  the  President  did  not violate the guarantee of reasonable opportunity to show cause against the action proposed to be taken against the appellant. 970

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 322 of 1959.      Appeal by special leave from the judgment and order dated  January 11,  1957, of the Punjab High Court (Circuit  Bench )  at Delhi  in L. P. A. No. 22-D of 1955.      B. C. Misra, for the appellant.      S.  P.   Varma  and   T.  M.   Sen,  for  the respondent.      1961. December,  6. The Judgment of the Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

was delivered by      SHAH, J.-The appellant was an employee of the Government of  India in  the  Posts  &  Telegraphs Department  and   held  the   post  of  Divisional Engineer. Telegraphs  at Agra  in 1947.  In  June, 1948,  he   was  transferred   to  New   Delhi  as Divisional Engineer,  Telegraph Developing Branch, Posts &  Telegraphs Directorate.  On September 18, 1948, the appellant was suspended from service and a chargesheet containing the following two charges was delivered to him :-           "(i) That  he, with  a  view  to  secure      illegal gratification  for himself and/or for      others, committed  serious irregularities  in      the matter of allotment of Telephones in Agra      during the period he was Divisional Engineer,      Telegraphs, Agra, and           (ii) That by being a party to commission      of gross  irregularities  in  the  matter  of      allotment   of   telephones   in   Agra,   he      facilitated     acceptance     of     illegal      gratification by his subordinates." An appendix  setting out  the allegations  on  the basis of  which the  charges had  been framed  was also enclosed,  and the  appellant was called upon to submit  his  defence  to  the  charges  to  the Enquiry Officer  named therein.  The appellant was further 971 asked to  show cause  why, in  the event of charge (i) being  proved, he should not be dismissed from Government Service  and, in  the event  of  charge (ii) being  proved, he  should not  be permanently degraded to  the rank of the Electrical Supervisor or awarded  any other lesser penalty. The appendix consisted of three heads which are as follows:-           "(1) Contrary  to the order contained in      letter No.  Eng. P.768  of 7th February, 1948      from the  Post Master  General, Lucknow, that      no connection,  not even a casual connection,      should be  given out  of turn,  the following      casual connections  were opened  and in  some      cases extended and even made permanent:-           (Then were  set out  11 instances (a) to      (k) of  such casual  connections given by the      appellant.)           (2)  Transfers of  telephones  virtually      amounted to  allotment of  telephones out  of      turn was allowed in the following cases:-                (a) ... ... ... ... ...                (b) ... ... ... ... ...           (3)  Statements  given   in  writing  by      Khiali Ram  and Shyam Lal relating to illegal      gratification given to Mr. Ghambir and Kanaya      Lal Sharma respectively." The appellant  submitted his  explanation relating to these  charges. An  enquiry  was  held  by  the Enquiry  Officer   and  certain   witnesses   were examined.   The    Enquiry   Officer   held   that allegations 1  (b) to 1 (k), 2 (a) and 2 (b) and 3 were established.  He observed  that the  proof in respect of allegation (3) was not such as would be acceptable in  a  court  of  law,  but  there  was sufficient evidence  to show  that  the  appellant suddenly changed  his attitude  towards one Khiali

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

Ram and  went so  far as  to argue the case on his behalf  and   favoured  him   with   a   permanent connection and in the case of Shyam Lal he 972 sanctioned   an    out-of-turn    extension.    He accordingly made  a report  that charges  (i)  and (ii) in  the chargesheet  were proved.  The report together with  the record  of the  Enquiry Officer was sent  by the  President of  India to the Union Public Service  Commission under  Art. 320 (3) (c) of the Constitution for their recommendations. The Commission agreed  with the  view of  the  Enquiry Officer  that   the  appellant   had   contravened specific orders  issued by  the Postmaster General by granting "casual connections" from time to time as shown in the report of the Enquiry Officer. But in the view of the Commission this was at the most either neglect  on the  part of  the appellant  in complying with  the orders  of his  superiors,  or open defiance as he was not prepared to accept the instructions  issued   by   his   superiors.   The Commission, however,  observed that  "The crux  of charges against  Mr. D’  Silva was,  however,  not that he  allowed these  connections in defiance of these orders but that he had a motive in doing so. The only  evidence that  has been given relates to connection No.  283 for  Messrs. Khiali Ram Amolak Chand. There may be ground for suspicion but there is noting  on the  record to  connect Mr. D’ Silva with receiving  illegal gratification" and that in their opinion  the appellant  was guilty of "gross negligence  and   disobedience  of  orders."  They accordingly advised that the appellant "be retired compulsorily."      Notice  had   already  been   issued  to  the appellant informing  him that  the  Government  of India had  subject to  the  advice  of  the  Union Public Service  Commission provisionally  come  to the conclusion  that the appropriate punishment on the charges  is dismissal and that he was required to  show  cause  within  15  days  of  the  papers received by  him  as  to  why  he  should  not  be dismissed from  Government service.  The appellant submitted his  explanation to the notice. By order dated January 25, 1951, the appellant was informed that: 973           "........ after careful consideration of      the  record   of  the  case  the  explanation      submitted by  Mr. D’Silva  and the opinion of      the  Union  Public  Service  Commission,  the      President has come to the conclusion that the      officer is  guilty of  gross  negligence  and      disobedience   of    orders.   Although   the      Commission  have  advised  that  Mr.  D’Silva      should be  retired compulsorily,  it  is  not      possible to do so as compulsory retirement is      not a permissible punishment under the rules.      The President  has accordingly  decided  that      Mr. D’Silva  should be  removed from  service      with immediate effect......." The  appellant   then  moved  the  High  Court  of Judicature for  Punjab for a writ of certiorari or mandamus and  directions, order  or writs  in  the nature  of   mandamus  and   certiorari  or  other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

appropriate orders  setting aside the order passed on November  18, 1948,  suspending  the  appellant from service  and the  order passed on January 25, 1951, removing  him from  service and for an order directing the  Union of  India to reinstate him to the post  which he  was holding  at  the  time  of suspension,  with   all  rights,   privileges  and emoluments  pertaining   to  the  said  post.  The application was  dismissed by G. D. Khosla J., and the order  was confirmed  in appeal  by a Division Bench.  With   special  leave  the  appellant  has appealed to  this Court  against the  order of the High Court.      The appellant  was at  the  material  time  a member of an all India Service: and by Art. 310 of the  Constitution   he  held   office  during  the pleasure of  the President.  But by  Art. 311  the tenure of  his office  was  protected  by  certain guarantees. By  cl.(1) of  Art. 311  the appellant was not  liable to  be dismissed  or removed by an authority subordinate  to that  by  which  he  was appointed,  and   by  cl.  (2)  he  could  not  be dismissed or  removed or  reduced in rank until he had been given a reasonable opportunity of showing cause against the action 974 proposed  to  be  taken  in  regard  to  him.  The appellant  was   removed  from   service  by   the President  and   no  question  of  breach  of  the constitutional guarantee  under cl.(1) of Art. 311 therefore arises.  But counsel  for the  appellant contended that there was a breach of the guarantee under cl.(2) in that (1) the President had imposed punishment of  removal for  "gross negligence  and disobedience of  orders", when  the appellant  had not been  charged  in  the  enquiry  held  by  the Enquiry  Officer   with   misdemeanour   of   that character; (2) that the punishment proposed in the charge sheet  was not  removal for  the charge for which he  had  in  truth  been  found  guilty  and therefore the  order  of  punishment  amounted  to imposing a punishment different from the one which it was  originally contemplated  to  pass  against him; and  (3) that  the statement of Mr. Bhashyam- Post master General, Lucknow Division-was recorded by the  Union Public  Service  Commission  in  the absence of the appellant and without giving him an opportunity to  cross-examine that witness and the President took  that statement into consideration, in imposing  the penalty  of removal from service. By  adopting  this  procedure  the  constitutional guarantee of affording a reasonable opportunity to the appellant of showing cause was violated.      In our  view, there is no substance in any of the three  contentions. The  Civil Services  Rules merely prescribe the diverse punishments which may be imposed  upon delinquent  public servants;  the rules do  not provide for specific punishments for different misdemeanours. The rules leave it to the discretion of  the punishing  authority to  select the appropriate  punishment having  regard to  the gravity of  the misdemeanour.  The  power  of  the President  to   impose  any   punishment  for  any misdemeanour found  proved  against  a  delinquent public servant  is unrestricted.  The Constitution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

merely guarantees  the protection  of a reasonable opportunity 975 of showing  cause against  the action  proposed it does not  guarantee that  the punishment shall not be more  severe than  a prescribed punishment. The charge against the appellant fell under two heads, but  each   head  charged   the   appellant   with irregularities  in  the  matter  of  allotment  of telephones. Under  the first  head the  charge was that irregularities  were committed  by him with a view to  secure illegal  gratification for himself or for others. The second charge was in respect of a comparatively less serious misdemeanour, namely, that the  appellant was  a party to the commission of  irregularities   having  thereby   facilitated acceptance  of   illegal  gratifications   by  his subordinates. Counsel  for the appellant submitted that under  the  first  head  of  the  charge  the appellant was,  in substance,  charged with having received illegal  gratification for himself or for others, and invited our attention to the letter of the Enquiry  Officer dated  December 31,  1948, in which it was stated "that two specific allegations relating to  illegal gratification  given to  your subordinates have  already been  mentioned in  the annexure to the charge sheet. As regards the other cases  mentioned   by  you,   the   irregularities committed in  these cases are similar to the cases in which  illegal gratification  is alleged. It is for you  to prove  that though  the irregularities are similar  no illegal  gratification  has  taken place  in  these  cases."  This  letter  expressly states that  telephone connections were granted to Khiali Ram  and Shyam  Lal after receiving illegal gratification and that other instances referred to in the  appendix were  similar to  those cases  in which  illegal  gratification  was  alleged.  This letter, in  our judgment,  does  not  justify  the inference that  the Enquiry  Officer regarded  the charges as  primarily of  illegal gratification or corruption: nor  is  it  possible  to  accept  the submission that  the charges  were so  framed that the appellant  was misled  into believing that the charges  primarily   were  of   obtaining  illegal gratification. 976 As  already   observed,  the   charges   were   of irregularities committed  by  the  appellant,  the first being  with the  object of  securing illegal gratification  and  the  second  substantially  of negligence and  thereby acting so as to enable his subordinates to  receive illegal gratification. It is also clear from the Appendix which sets out the allegations and  especially heads (1) and (2) that the charges against the appellant were that he had committed irregularities  by granting, contrary to the  orders  passed  by  the  Postmaster  General, telephone  connections   out-of-turn  to   certain applicants. The  Enquiry Officer  found ten out of the eleven  instances set  out in  head No.  1 and both the  instances under  head No.  2 proved. The Union Public  Service Commission  agreed with that view. The  charge of  irregularities was therefore established against  the appellant. In the view of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

the  Enquiry   Officer  the  motive  for  granting irregular connections  was also  established,  but the Union  Public Service  Commission expressed  a different view. By Art. 320(3) of the Constitution it is  provided  that  the  Union  Public  Service Commission shall  be consulted in all disciplinary matters  affecting  a  person  serving  under  the Government of  India in  a civil capacity, but the Union  Public   Service  Commission   is  not   an appellate authority  over the  Enquiry Officer. It is unnecessary  for the  purpose of  this case  to consider whether  in making  their recommendations or tendering their advice the Union Public Service Commission may  express a conclusion on the merits of the case as to the misdemeanour alleged to have been committed  by a public servant different from the conclusion of the Enquiry Officer.      The President  had  before  him  the  Enquiry Officer’s report,  the record  of  the  case,  the explanation submitted  by the  appellant  and  the opinion of the Union Public Service Commission. On a  consideration   of  all   these  materials  the President came to the 977 conclusion that  the appellant was guilty of gross negligence and  disobedience of orders. It is true that there  is no  record of  the President having come  to   a  conclusion   whether  in  committing irregularities the  object of the appellant was to receive illegal  gratification for  himself or for others within  the meaning of the first charge. It is also  true that the President has, in recording his conclusion,  used the  same phraseology as was used by  the Public  Service Commission  in making its recommendation  but  on  that  ground  we  are unable to hold that the President has accepted the conclusion of  the Union Public Service Commission that the  irregularities were  not proved  to have been committed  with  a  view  to  secure  illegal gratification  for  himself  or  for  others.  The President is  by  Art.  320  of  the  Constitution required to  consult the Public Service Commission (except in  certain cases, which are not material) but the  President is  not bound  by the advice of the Commission.  The President found the appellant guilty of disobedience of orders and also of gross negligence. The  charge against  the appellant was disobedience of  orders and  that is the charge of which the  Enquiry Officer  held him  guilty.  The Union Public  Service Commission  also agreed with this view.  It cannot  therefore be  said that the misdemeanour of  which the  appellant was  charged was different from the misdemeanour for commission of  which   he  had   been   found   guilty.   The misdemeanour charged  consisted of  commission  of irregularities  by   disobeying  orders  expressly issued and  that is  the misdemeanour of which the appellant has been found guilty.      In the communication addressed by the Enquiry Officer the punishment proposed to be imposed upon the appellant  if  he  was  found  guilty  of  the charges  could   not  properly  be  set  out.  The question of  imposing punishment  can  only  arise after enquiry  is  made  and  the  report  of  the Enquiry  Officer   is  received.  It  is  for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

punishing authority to 978 propose the  punishment and  not for the enquiring authority. The  latter has,  when so  required, to appraise the  evidence, to  record its  conclusion and if it thinks proper to suggest the appropriate punishment. But  neither  the  conclusion  on  the evidence nor  the punishment  which the  enquiring authority may  regard as  appropriate  is  binding upon the  punishing authority. In the present case after  the  report  of  the  Enquiry  Officer  was received the  appellant was  called upon  to  show cause against his proposed dismissal from service. After considering  the representation  made by the appellant the  President came  to  the  conclusion that not  dismissal but  removal from  service was the appropriate punishment. In imposing punishment of removal  the  President  did  not  violate  the guarantee of  reasonable opportunity to show cause against the  action proposed  to be  taken against the appellant.  The appellant  was told  about the action proposed to be taken and he was afforded an opportunity to  make  his  defence.  Thereafter  a lighter punishment  was imposed.  There is nothing on the record to show that the President found the appellant guilty  of the second charge and imposed punishment proposed by the Enquiry Officer for the first charge.      The  contention  that  the  evidence  of  Mr. Bhashyam, Postmaster  General  Lucknow  Range  was recorded in  the absence of the appellant and that the same  was utilised  by the President in coming to the  conclusion that  the appellant  be removed from service  has no  warrant. It appears that the Postmaster General by his letter dated February 7, 1948,  directed   the  appellant   not  to   issue telephone  connections  out-of-turn  even  if  the connection was  casual. This  letter was  produced before the  Enquiry Officer. The contention of the appellant before  the Enquiry  Officer was that he had  made   a  representation  to  the  Postmaster General that it was "impracticable to put persons 979 asking for  ’casual connections’  in the same list as  those   that   were   asking   for   permanent connections" and that thereafter he had received a telephonic message from Mr. Bhashyam asking him to proceed according  to rules,  and  accordingly  he continued to  follow the  prevailing  practice  of maintaining two  separate lists,  one  of  regular connections and  the other for casual connections. In the  view of  the Enquiry  Officer this defence was not established. It appears, however, that the Union Public  Service Commission  ascertained from Mr. Bhashyam  his version in regard to the alleged instructions given  by him  to the appellant about restoring the original practice and the Postmaster General denied  the telephonic  conversation.  The appellant submitted  that  Mr.  Bhashyam  was  not examined in  his presence and he was not permitted to  cross-examine  Mr.  Bhashyam  on  the  alleged denial of  telephonic instructions. It is admitted that Mr.  Bhashyam was  not  examined  before  the Enquiry  Officer.   The  Commission,  it  appears, obtained information  from Mr. Bhashyam. But as we

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

may  again   observe  the   Union  Public  Service Commission  is   not  constituted   an   appellate authority over  an Enquiry Officer. The Commission is required to be consulted by the Constitution in disciplinary matters. The action of the Commission may be irregular but there is nothing to show that the  President   took   into   consideration   the statement of  Mr. Bhashyam which is referred to by the Commission  in their  report and  relying upon that statement  imposed the  punishment  upon  the appellant which  is impugned.  The mere  fact that the  same   phraseology  has   been  used  by  the President in  imposing  the  punishment  does  not justify the inference that the President took into consideration the  alleged denial of Mr. Bhashyam. We are of the view, therefore, that there has been no breach  of the  constitutional guarantee  under Art. 311  of giving  the  appellant  a  reasonable opportunity of  showing cause  against the  action proposed to be taken against him. 980      One more  argument raised  on behalf  of  the appellant may be referred to. It is urged that the President  having   accepted  the  advice  of  the Commission could  not remove  the  appellant  from service but could only impose the punishment which was proposed  in the  charge served by the Enquiry Officer in  respect of  the second  head. There is nothing, however,  in the  impugned order  to show that the  President accepted  the  advice  of  the Commission in  its entirety.  As we  have  already observed the  proposed  punishment  could  not  be properly incorporated  in the  charge served  upon the appellant  by the  Enquiry Officer. The notice served by the Secretary to the Government of India on November  3, 1949,  required the  appellant  to show cause why the punishment which the Government regarded as  appropriate, namely, dismissal should not be  imposed. Action  proposed to  be taken  by President is clearly set out in that notice. There is no  provision which  compels the  President  to impose only  the sentence  proposed by the Enquiry Officer. It  was for  the President to arrive at a tentative  conclusion  as  to  the  guilt  of  the appellant   and   to   propose   the   appropriate punishment.  This   the  President   did;  and  in imposing  the  punishment  having  regard  to  the gravity of  the  misdemeanour  found  proved,  the powers, of the President were not circumscribed by the proposal  as  to  punishment  by  the  Enquiry Officer which the latter was incompetent to make.      The appeal  therefore fails  and is dismissed with costs.                                  Appeal dismissed. 981