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PETITIONER: B. D. GUPTA

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT18/09/1972

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. GROVER, A.N. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 2472            1973 SCR  (2) 323  1973 SCC  (3) 149  CITATOR INFO :  D          1973 SC1124  (3)  F          1987 SC2257  (18)

ACT: Punjab  Civil Services (Punishment and Appeal)  Rules,  1952 (Vol.   1, Part-I)-Rules 7.2 and 7.3-Punishment of  Censure- Show  cause notice must indicate precisely the  charges  and allegations-Opportunity  to show-cause necessary before  the government  prescribes  what  proportion  of  the  pay   and allowances  should be paid to the delinquent  officer  where the suspension is held to be unjustifiable.

HEADNOTE: In December, 1954, the appellant was arrested and prosecuted under section 5 (2) of the Prevention of Corruption Act.  He was  suspended  in the same month.  In November,  1956,  the appellant was served with a charge-sheet under Rue 7 (2) for the  departmental proceedings to be held on two  charges  of taking  illegal gratification.  The appellant submitted  his explanation  on  December, 18, 1956.   The  Enquiry  Officer exonerated  the  appellant of charge 1 (a).   In  1960,  the appellant   was  discharged  in  the  criminal  case.    The appellant  was, thereafter, dismissed from service,  on  the finding  of  the  Enquiry Officer, that charge,  1  (b)  was proved.   The  High Court of Punjab  quashed  the  dismissal order.   After reinstatement, the appellant was served  with another suspension order in May, 1963.  A fresh enquiry  for charge  1 (b) was ordered in 1965 but the same was later  on withdrawn.   On  October 26, 1966, the appellant  was  again directed to show-cause why he should not be censured for his unsatisfactory  explanation  dated December  18,  1956.   In reply  to  the  showcause  notice  in  November,  1956,  the appellant’s  explanation  was  found  unsatisfactory  and  a sentence of censure was imposed on him.  Instead of granting full  pay for the suspension period the authorities  ordered that  the  appellant  should  not  be  paid  more  than  the subsistence  allowance received by him during the period  of suspension.  The writ petition filed against the said orders by appellant was dismissed by the single Judge of the Punjab High Court, and then by the Division Bench. Allowing the appeal,

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HELD : The show-cause notice was vague, it did not  indicate whether  the explanation was called for regarding  charge  1 (a) or charge 1 (b).  As regards charge 1(b) it was  finally withdrawn.   The  show-cause notice did not  indicate  which part of the explanation dated 18-12-1956 was unsatisfactory. In what way it was unsatisfactory and what was the  material before  the  Government  on which it was  thought  that  the explanation was unsatisfactory.  The notice being vague, the appellant  did not get any chance at all to show cause  that he  did  not  deserve  a  censure  upon  his  conduct.   The appellant was not given an opportunity to show that the sus- pension  order against him had been unjustified and that  he was entitled to full pay and allowances.  Under Rule 7  (3), the  Govt.  has  to  make  two  decisions  (i)  whether  the suspension  was justified and (ii) what portion of  the  pay and  allowances  should be paid to the  delinquent  officer? [328 C] HELD  :  Further that the order regarding  pay  affects  the pecuniary  interest of the appellant.  No  real  opportunity was   given   to  the  appellant  to   make   an   effective representation against the said order.  The order  regarding pay  during suspension period was not  merely  consequential order to the first order. [331 B] 324 M. Gopala Krishan Naidu v. State of Madhya Pradesh [1968]  1 S.C.R. 355, relied upon. State  of Assam and another v. Raghav  Rajgopalachari  Civil Appeal No. 1561 and 1562 of 1966 decided on October 6, 1967, distinguished on facts The appeal was allowed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2129  of 1969. Appeal  by  special leave from the order dated  January  13, 1969 of the Punjab and Haryana High Court, at Chandigarh, in L.P.A. No. 6 of 1969. B.   Sen and G. D. Gupta, for the appellant. V.   C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by MUKHERJEA, J. This appeal on special leave is from an  order of  the Division Bench of the Punjab and Haryana High  Court dismissing  summarily an appeal directed against a  judgment and  order  of  a  Single Judge of that  Court  by  which  a petition of the appellant under Art. 226 of the Constitution of  India  was dismissed.  The matter arises  in  connection with  a  disciplinary  proceeding  under  the  Punjab  Civil Services  (Punishment  and Appeal) Rules, 1952 which  had  a very chequered career. For a proper appreciation of the points raised in this  case it  is necessary to set out some of the salient facts.   The appellant  joined  the  Punjab Irrigation  Department  as  a temporary  Engineer in 1939 and in course of time became  an Executive Engineer in that department.  In December, 19 4 he was  arrested in connection with a case under Sec.  5(2)  of the  Prevention of Corruption Act which had been  registered against one K. R. Sharma, Superintending Engineer, with whom the appellant had been working as a Personal Assistant.  The appellant  was, however, enlarged on bail.  About the  same, time  the  appellant  was  suspended  with  effect  from  13 December  1954  and certain  departmental  proceedings  were started,  against him.  In November 1956 the  appellant  was served with a charge sheet under Rule 7.2    of  the  Punjab

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Civil  Services (Punishment and Appeal) Rules, There,  were, two distinct charges made against the appellant which  will, for  the  sake of convenience, be described  hereinafter  as Charge No. 1(a) and Charge No. 1(b).  Both the charges  were based  on allegations that the appellant had  taken  illegal gratification.   We  are not concerned for the  purposes  of this,  appeal  with  the  details of  the  charges.   On  18 December  1956  the  appellant  submitted  a  reply  to  the chargesheet to which 325 he added certain supplementary replies between MAY and  July 195?.  Government, it appears, appointed an Enquiry  Officer as late as October, 1957.  On 18 February 1958 the appellant was.,  reverted from the post of Executive  Engineer  (under suspension)   to  that  of  an  Assistant  Engineer   (under suspension).   In May, 1958 Government decided to defer  the enquiry  in  respect  of  Charge 1 (b)  until  there  was  a decision  in regard to Charge 1(a), In," October,  1958  the Enquiry Officer submitted to Government a report in respect of  Charge 1(a) which exonerated the  appellant  completely. The  Government  then waited for another six  months  before appointing another Enquiry Officer to conduct the enquiry in regard  to Charge 1(b).  The appellant, it  appears’,  asked Government  on more than one occasion to supply him  with  a copy of the report of the first Enquiry Officer in respect of  Charge 1 (a).  Government, however, declined  to  supply any  copy.   In December, 1960 the criminal case  which  had been  Started  against  the  appellant  in  1954  ended   in discharge of the appellant.  On 19 April 1961 the  appellant was  dismissed from service on the basis of a report of  the second Enquiry Officer regarding Charge 1(b).  This order of dismissal  was, however, quashed in March, 1963 by the  High Court of Punjab and Haryana.  The appellant was, thereafter, reinstated  and  forthwith  placed under  another  order  of suspension  in  May,  1963.  A  third  Enquiry  Officer  was appointed  simultaneously  for a fresh enquiry  into  Charge 1(b).   In  February, 1965 the appellant got a decree  in  a civil suit by which he was allowed to recover the balance of his pay and allowances for the period of suspension and  for quashing the order of reversion.  Between 1963 and 1965  the appellant made various attempts through what was  apparently a high-powered board called the Establishment Board to bring about a closure of the enquiry proceedings initiated against him.   Nothing  happened until 15 December 1965  when,  once again Government appointed a new Enquiry Officer to, replace the  earlier  officer who had been  appointed  in  February, 1965.   In  January; 1966 the appellant  was  reinstated  as Executive  Engineer  and  in October, the  same  year, the entire  enquiry  against the appellant was  withdrawn.   One would  have  thought  that this would be the  end  of  the unusually protracted proceedings against the appellant.   On the contrary, however, on 26 October 1966 Government  served a  fresh "Show Cause notice"’ on the appellant by which  the appellant was told that his explanation of 18 December  1956 in reply to the charges and allegations levelled against him had been  found  unsatisfactory  by  Government  and  that Government proposed to censure his conduct. Immediately upon receipt of the said "Show Cause notice" the appellant asked for a copy of the statement made by one S. D 326 Khanna, Sub-Divisional Officer under Sec. 164 of the Code of Criminal Procedure.  The appellant justified his demand  for a  copy  of  S. D. Khanna’s statement by  reference  to  two facts.  First, ’Charge No. 1(b) related to an alleged demand by  the appellant for illegal gratification in the  presence

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of  S. D. Khanna and he was, therefore, entitled to  have  a copy  of  the statements made by Is. D.  Khanna  before  the police and the magistrate.  Secondly, the appellant  pointed out, under the orders of the High Court he was expecting  a copy  of  Khanna’s  statement to be supplied to  him  on  27 October  1966.  He did not, however, receive a copy  because the  Government withdrew the chargesheet against him  on  18 October 1966.  If, therefore, by a fresh "Show Cause notice" the appellant was called upon to vindicate his earlier reply to th e chargesheet, he was, he claimed, entitled to a  copy of  the  statement of S. D. Khanna.  On  24  November  1966, however, Secretary to the Government of Haryana turned  down the  appellant’s request for a copy of  Khanna’s  statement. Thereafter,  on 16 December 1966 the appellant  submitted  a reply to the "Show Cause notice". On 27 February 1967 the Government passed an order  imposing the  penalty of censure on the appellant.   The  substantive part of the order is in the following terms :               "Your explanation has been duly considered and               the same has been found to be  unsatisfactory.               The   Governor  of  Harayana  is   accordingly               pleased  to order that the penalty of  censure               be   imposed   on  you.   Your   conduct,   is               therefore, censured." On the same day another order was communicated to the appel- lant  by  which the Governor of Haryana  had  directed  that under Rule 7.3(3) of the Punjab Civil Services Rules, Volume 1, Part 1, the appellant should not be allowed anything more than  what  had  already been paid  to  him  as  subsistence allowance  during the period of his suspension from  31  May 1963 to 6 January 1966.  The order included also a direction that the entire period of absence from duty of the appellant on account of suspension from ’31 May 1963 to 6 January 1966 was  to be treated as a period spent on duty for  all  other purposes. In June, 1967 the appellant was given a notice of compulsory retirement  which was subsequently withdrawn.   In  October, 1968,  however, the appellant was compulsorily retired.   In the  meantime, however, in November, 1967 the appellant  had filed  a  writ  petition in the High  Court  of  Punjab  and Haryana challenging the validity of the two orders dated  27 February  1967-one  inflicting  on  him  the  punishment  of censure and the other withholding from him his usual pay and allowances beyond what had 327 been paid to him as subsistence allowance during the  period of suspension.  The writ petition was dismissed by a  Single Judge  of the High Court on 6 November 1968.  The  appellant then  went  on appeal before a Division Bench  of  the  High Court.  The appeal was, however, dismissed in limine.   Upon being  refused a certificate for appeal to this  Court,  the appellant  asked for special leave which was granted to  him on 3 October 1969. Only two contentions were raised on behalf of the  appellant before  us.  First, it was contended that the appellant  did not get a reasonable opportunity to reply to the "Show Cause notice"  dated 26 October 1966 on the basis of which he  had been censured by the Government inasmuch as the notice’  was too  vague  to.  enable  him to  give  an  effective  reply. Secondly,  it  was contended that the order of  27  February 1967 which withheld from the appellant any payment in excess of the subsistence allowance he had drawn during the  period of his suspension was liable to be struck down on the ground that  it had been passed without giving him any  opportunity to make a representation against it.  We shall now deal with

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these contentions one by one. The  appellant’s complaint about the "Show Cause notice"  of 26  October  1966  is  one  that  has  to  be  accepted   as substantial.   For a proper appreciation of the  appellant’s contention,  the  Memorandum  containing  the  "Show   Cause notice"  may be set out in extenso It was in  the  following terms               "Your  explanation  dated the  18th  December,               1956,  in reply to the statements  of  charges               and allegations has been considered and  found               to be unsatisfactory.  The President of India,               after  taking a lenient view, has  tentatively               decided  to censure your conduct and  also  to               place a copy thereof on your personal file.               2.Before   the  proposed   punishment   is               inflicted,  you  are given an  opportunity  of               making   representation  against  the   action               proposed  to  be  taken.   Any  representation               which  you  make in this  connection  will  be               considered before taking the proposed  action.               Such representation, if any, should be made in               writing  and submitted so as to reach  me  not               later  than  the 7th day from the  receipt  of               this  communication by you.  In case no  reply               is  received  within the aforesaid  period  it               will be presumed that you have no  explanation               to offer." The only ground on which the Government proposed to  censure the  appellant is the fact that the appellant’s  explanation dated 18 December 1956 in reply to the statement of  charges and 328 allegations had been found unsatisfactory by Government.  By the  expression  "Charges, and allegations" in  this  "Show Cause  ,notice", reference obviously is to the letter of  22 October 1956.  That, letter, it will be remembered, contains two  charges,  namely, Charge 1 (a) and  Charge  1(b).   The appellant’s explanation of 18 December 1956 which is said to have been found unsatisfactory by Government was a reply not only  to Charge 1 (a) but also to Charge 1(b) of  these  two charges, so far as Charge 1 (a) is ,concerned the  appellant had  been completely exonerated in October, 1958.  There  is nothing,  however, in the "Show Cause notice" of 26  October 1966  to  indicate  clearly  that  the  dissatisfaction   of Government  with the appellant’s reply of 18  December  1956 had  nothing  to  do with Charge 1  (a).   The  "Show  Cause notice"  merely  states  in vague  general  terms  that  the appellant’s  ’reply  to  the  charges  and  allegations  was unsatisfactory.  Even if ’we were to assume, though there is no  reasonable ground for this assumption,  that  Government did  not  have in mind the contents of Charge 1  (a)  while serving  this "Show Cause notice", there is nothing  in  the "Show  Cause  notice"  to  give  any  indication  that   the particular  allegations  regarding which the  appellant  had failed to furnish a satisfactory explanation were referable only  to ,Charge 1(b). The notice is vague on other  grounds as  well.  As one reads the first paragraph of the  notice, the  questions that at once assail ones mind are  many:  In what way was the explanation of the appellant unsatisfactory ?   Which  part  of  the  appellant’s  explanation  was   so unsatisfactory ? On what materials did the Government  think that the appellant’s explanation was unsatisfactory.  It  is to our mind essential for a "Show Cause notice" to- indicate the  precise  scope of the notice and also to  indicate  the points on which the officer concerned is expected to give  a

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reply.   We  have no manner of doubt that  the  "Show  Cause notice"  in the instant case did not give the appellant  any real  ,opportunity to defend himself against  the  complaint that  his previous explanation of 18 December 1956 had  been unsatisfactory.  ’The appellant did not, therefore, get  any chance  at  all to show ,that he did not deserve  a  censure upon his conduct. We  were  told  that since the appellant was  aware  of  the charge and  also aware of the reply he had  given  to  the charges  made against him, it was enough for Government  to tell him that his answer was unsatisfactory.  It was  argued that since the "Show Cause notice" really pointed this  out and mentioned that the very lenient sentence of censure upon the appellant’s conduct was ,going to be imposed, there  was nothing  further that Government could be expected to do  in this  case.   We  have  no  hesitation  in  rejecting   this contention  made  out  on  behalf  of  the  State.   It   is ,manifestly clear that the "Show Cause notice" was too vague to 329 permit  the appellant to deal with. it effectively and  that consequently  the order of censure passed on him is bad  and liable to be struck down. We now come to the second contention raised on behalf of the appellant  that the order passed by the Governor of  Haryana which  directed  the  withholding  from  the  appellant  any payment  in  excess  of the  subsistence  allowance  he  had already received during the period of his suspension between 31  May 1963 , and 6 January 1966 was bad in so far  as  the appellant  had not been given a prior opportunity to make  a representation against such order. The  relevant order was passed under Rule 7.3 of the  Punjab Civil  Services  Rules  (Vol. 1, Part I)  which  is  in  the following terms               "7.3  (1) When a Government servant,  who  has               been  dismissed,  removed,  or  suspended,  is               reinstated,  the authority competent to  order               the  reinstatement shall consider and  make  a               specific order :-               (a)regarding  the pay and allowances to  be               paid to the Government servant for the  period               of his absence from duty; and               (b)   whether or not the said period shall  be               treated as a period spent on duty.               (2)   Where  the authority mentioned  in  Sub-               rule (1)   is  of opinion that the  Government               servant  has been fully exonerated or, in  the               case   of  suspension,  that  it  was   wholly               unjustified,  the Government servant shall  be               given the full pay and allowances to which  he               would  have  been entitled, had  he  not  been               dismissed,  removed or suspended, as the  case               may be.               (3)In  other  cases,  the  Government  servant               shall be given such proportion of such pay and               allowances  as  such competent  authority  may               prescribe :               Provided that the payment of allowances  under               clause  (2) or clause (3) shall be subject  to               all   other   conditions  under   which   such               allowances are admissible.               (4)In  a case falling under clause (2)  the               period  of absence from duty shall be  treated               as a period spent on duty for all purposes.               (5)In  a case falling under clause (3)  the

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             period  of  absence  from duty  shall  not  be               treated as a period spent on duty, unless such               competent authority specifically directs  that               it  shall  be  so treated  for  any  specified               purpose.                                    330               Provided  that if the Government  ;servant  so               desires,  such authority may direct  that  the               period of absence from duty shall be converted               into leave of any kind  due and admissible  to               the Government servant." It is clear that before passing an order under Rule 7.3, the authority concerned has to form an opinion as to whether the Government  servant  has been fully  exonerated  and,  also, whether,  in the case of suspension, the order of suspension waswholly    unjustified. It  was  urged on behalf of the appellant  that  before  the authority  formed such an opinion, it was incumbent upon  it to afford an opportunity to make suitable representations in thisbehalf.  Reliance was placed upon the Judgment of  this Court  in  M.  Gopala  Krishna  Naidu  v.  State  of  Madhya Pradesh(1).  The appellant in that case had been  exonerated of the charges framed against him in a departmental enquiry. Government  held, however, that the  appellant’s  suspension and  the departmental enquiry instituted against  him  "were not   wholly.  unjustified".   The  relevant  order,   after reinstating  the appellant with effect from the date of  the order and directing the appellant’s retirement from the same date  on the ground that he had already attained the age  of superannuation contained a further direction that the entire period  of  the  appellant’s absence  from  duty  should  be treated  as  a period spent on duty under  Fundamental  Rule 54(5)  for the purpose of pension only, but that "he  should not be allowed any pay beyond what he had actually  received or  were  allowed  to him by way  of  subsistence  allowance during the period of his suspension".  The appellant in that case  contended that his case really came under  Fundamental Rule 54(2) and not under Fundamental Rule 54(5) and that the Government  should  have granted him an  opportunity  to  be heard  before deciding as to the rule which applied  to  his case.  It was contended on behalf of the Government that the order  regarding allowances was a mere  consequential  order and in passing such an order it was not necessary to give  a hearing  to  the party affected by the order.   This  Court, however,  held that an order passed under Fundamental  Rule, 54   is  not  always  a  consequential  order  or   a   mere continuation  of the departmental proceeding  taken  against the employee.  Since consideration under Fundamental Rule 54 depends  on  facts and circumstances in their  entirety  and since  the  order  may  result  in  pecuniary  loss  to  the Government  servant, consideration under the Rule  "must  be held to be an objective rather than a subjective  function". Shelat,  J. who delivered the judgment of the Court went  on to observe : "The very nature of the function implies the (1)  [1968] 1 S.C.R. 355 331 duty to act judicially.  In such a case if an opportunity to show  cause against the action proposed is not afforded,  as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice". We have no doubt in our minds that in this case also justice and  fair play demand that the Government should have  given the appellant a reasonable opportunity to show cause why  an order  affecting  his pay and emoluments  to  his  prejudice

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should not be made, The  decision in M. Gopala Krishna Naidu’s(l) case had  been cited  before  the  High Court.  The  High  Court,  however, sought  to  distinguish that case from the instant  case  on facts.  The High Court held that since in M. Gopala  Krishna Naidu’s(1)  case  the proceedings had been dropped  and  the officer concerned reinstated, he never got an opportunity to show  to  the appointing authority that his  suspension  had been  unjustified and that he was entitled to full  pay  and allowances,  while-in  the instant case  the  appellant  has already,   according  to  the  High  Court,   received   all reasonable opportunity to show cause against the  punishment that  has been meted out against him.  With respect,  we  do not  think  that-there is any real difference  in  substance between the facts of the instant case and those in M. Gopala Krishna Naidu’s(l) case.  The appellant in the instant  case did not really get an opportunity to defend himself  against Charge 1 (b).  It will be remembered that in this case  also the   Government  abandoned  the  proceedings  against   the appellant  with regard to Charge 1(b).  Had the  proceedings been  completed,  it is not altogether impossible  that  the appellant  would  have been exonerated also of  that  charge just as he had been exonerated of Charge 1 (a) earlier.   To that  extent  the appellant did not get any  opportunity  to show  that  the  suspension  order  against  him  had   been unjustified and that he was, therefore, entitled to full pay and allowances.  From this point of view there is really  no difference  between the instant case and the case of  Gopala Krishna Naidu(1). Besides, the real ratio in M. Gopala Krishna Naidu’s(l) case was  that if an order affects the employee  financially,  it must   be  passed  after  an  objective  consideration   and assessment of all relevant facts and circumstances and after giving the person concerned full opportunity to make out his own case about that order. In the instantcase the  order unquestionably is one that seriously prejudices theappellant. We would, further like to add that the fact that eventhe order of punishment was made without giving (1) [1968] 1 S.C.R. 355. 4-498Sup. CI/73 332  the  appellant  a  real opportunity to  make  an  effective representation  against it makes the second order  affecting his pay and allowances still more vulnerable. Mr.  Mahajan appearing for the State sought to rely in  this connection  upon  an unreported decision ’of this  Court  in the, State of Assam and Anr. v. Raghava  Rajagopalachari(l). That case was a case dealing with Fundamental Rule 54  which is  more  or less similar to Rule 7.3 of  the  Punjab  Civil Services Rules, under which this second order of 27 February 1967 had been passed by the Governor.  The relevant  portion of Fundamental Rule 54 is in the following terms :-               "F.R. 54.  When the suspension of a Government               servant is held to have been unjustifiable  or               not wholly justifiable; or               When  a Government servant who has  been  dis-               missed, removed or suspended is reinstated;               the revising or appellate authority may  grant               to  him  for the period of  his  absence  from               duty-               (a)if he is honourably acquitted, the  full               pay to which he would have been entitled if he               had  not been dismissed, removed or  suspended               and,  by an order to be  separately  recorded,               any allowance of which he was in receipt prior

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             to his dismissal, removal or suspension; or               (b)if  otherwise such proportion of  such  pay               and  allowances as the revising  or  appellate               authority may prescribe.               In a case falling under clause (a) the  period               of  absence  from duty will be  treated  as  a               period spent on duty.  In a case falling under               clause (b), it will not be treated as a period               spent on duty unless the revising or appellate               authority so direct." This  Court  held that cl. (b) of the  Fundamental  Rule  54 would be applicable in all cases where the officer concerned is  not  honourably  acquitted.   Since  in  that  case  the Government servant had clearly not been fully exonerated  of the charges levied against him, it was open to Government to decide what period of absence from duty during the period of suspension  should be treated as period spent on  duty  and, also, what proportion of pay and allowances should be  given to him.  This decision cannot apply to the instant case  for the  simple  reason  that  Government,  by  withdrawing  the proceedings initiated against the appellant in (1) Civil Appeals Nos. 1561 and 1562 of 1965 decided by  the Supreme Court on 6 October 1967. 333 respect of Charge 1(b), made it impossible for the appellant to  get himself fully exonerated.  Since the  appellant  had been  exonerated  of Charge 1(a) and since Charge  1(b)  was withdrawn, it is impossible for Government to proceed on the basis  as if the appellant has not been fully exonerated  or to assume that the order of suspension was one which was not wholly  unjustified.In  that view of the matter, we  do  not think  that case of the State of Assam and Anr.  v.  Raghava Rajagopalachari  (supra)  can be of any  assistance  to  the respondents. In the result this appeal succeeds.  The judgment and  order of  the  High  Court- are set aside.  The  orders  dated  27 February  1967 impugned in the appellant’s  petition  before the  High  Court are quashed.  The appellant  will  get  the costs of this appeal as well as the costs incurred below. S.B.W.                         Appeal allowed. 334