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PETITIONER: M.   N. DASANNA

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT02/05/1973

BENCH: GROVER, A.N. BENCH: GROVER, A.N. MUKHERJEA, B.K. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 2275            1974 SCR  (1)  87  1973 SCC  (2) 378

ACT: Andhra  Pradesh  Civil  Service  (Disciplinary   Proceedings Tribunal) Act, 1960-Rule 7 read with the proviso-If a report submitted  by the Chairman who heard only the arguments  but did not hold the enquiry himself is a valid report under the proviso to Sec. 7.

HEADNOTE: The   appellant  was  the  officer-incharge   of   Vijaywada Government  Headquarters  Hospital.  On a reference  by  the Government of Andhra Pardesh, the Tribunal under the  Andhra Pradesh  Civil Service (Disciplinary  Proceedings  Tribunal) Act,   1960,  framed  a  number  of  charges  against   him. Proceedings by the Tribunal were first conducted before  one K, the Chairman of the Tribunal.  The Tribunal consisted  of two  members.   Charges  were  framed  and,  the  case   was transferred  to  the  other member N.  The  case  was  later withdrawn  from him and K continued the enquiry until  March 21, 1963 and examined certain witnesses.  On the same  date, the  case was transferred to one S, who had succeeded N.  S, held the enquiry for sometime, and examined a number of wit- nesses.  He retired in July 1963.  One G. who succeeded  him continued  to hold the enquiry and examined some  witnesses. After the written statement of the appellant had been  filed and his witnesses had been examined, he heard arguments  but before  he could submit a report S, was transferred and  was succeeded  by  one  C,  who was then  the  Chairman  of  the Tribunal.  He submitted a report on July 31, 1964.  He  held that out of 22 charges only 10 had been proved.  Thereafter, a  notice  was sent to the appellant by the  State  to  show cause  why he should not be dismissed from service,  and  on September  3, 1964, the State directed that the  penalty  of dismissal be imposed on the appellant. The appellant moved the High Court challenging the order  of dismissal  mainly on the ground that the proceedings  before the Tribunal were vitiated from beginning to end.  While the writ  petition  was  pending, a decision  was  ,given  by  a Division  Bench  of  the  High  Court  construing  identical provisions  of  the  Hyderabad  Public  Services   (Tribunal Enquiry)  Act  that  where one  member  alone  conducted  an enquiry  and submitted his report, that report was  invalid.

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In the meantime. an amendment was made in s. 7 of the Andhra Pradesh Act by adding a proviso, which provided that where a single  member  of the Tribunal holds an inquiry,  he  alone shall  report  his findings and it will be deemed  to  be  a report  of  the Tribunal for the purposes of the  Act.   The appellant  submitted  that the amendment did  not  make  any difference  to  his case; but the High Court  negatived  his contention and dismissed the writ ’Petition. Allowing the appeal, HELD : (i) According to the substantive Dart of s. 7 of  the Andhra  Pradesh  Civil  Service  (Disciplinary   Proceedings Tribunal)  Act, 1960, it is the Tribunal which is to  report the  findings  to the Government on the  conclusion  of  the enquiry.  In other words, even if the enquiry was  conducted by  one member, two members have to submit their report,  if the  Tribunal  consists of two members, as  in  the  present case.  The proviso only enables the report to he  ,submitted by  one  member  alone  if  the  condition  prerequisite  is satisfied,  namely, that he has held the enquiry himself  in the  matter.   If  he has held the enquiry  instead  of  two members,  his report may be deemed to be the report  of  the Tribunal.  In the present case, it is not in dispute that the Chairman of the Tribunal never conducted any part of the enquiry  and that  he  had only heard arguments and  then  submitted  his report  giving his findings.  In the judgment of the  Andhra Pradesh High Court, C. K. Doraiswamy Naidu v. Andhra Pradesh 173 I.L.R.  1967  A.P.  904,  it was laid  down  that  the  word ’Enquiry’ under s. 8 of the Act does not include a  finding. The  enquiry was stated to cover the hearing of’  the  case. i.c., recording evidence, admitting documents and  generally completing  the records upon which a finding will be  based. Therefore,  the stage of enquiry has to be completed  before the  argument is advanced as is clear from Ruler  7(1)(iii). The  net result would be that according to the Act  and  the Rules  framed thereunder, arguments would not be a  part  of enquiry.   The  Chairman  of the  Tribunal  had  only  heard arguments  and  had  not  held  any  part  of  the  enquiry. Therefore, his report could not be deemed to be a report  of the Tribunal under the Proviso to s. 7 of the Act. [176E] (ii) Under  s.  7 the position is quite clear  that  if  the tribunal consists of more than one member and if the enquiry is held by a single member, he alone Tribunal.  But where  a single  member  has not held any enquiry,  then  his  report cannot be deemed to be   report  of the Tribunal, an  it  is essential that all members of the Tribunal   should   submit the  report.   As  arguments  could not  form  part  of  the enquiry,  the  conditions of s. 7 could not be- regarded  to have been fulfilled.  The result would be that the order  of dismissal  based  on the report submitted by  the  Chairman, must be held to be illegal and void. [177B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1596  of 1967. Appeal  by special leave from the judgment and  order  dated July  5, 1956 of the Andhra Pradesh High Court in  W.P.  No. 468 of 1965. A.   K.  Sen,  A.  V.  Rangwn  and  A.  Subhashini  for  the appellant. P.   Ram Reddy and B. Parthasarathy, for the respondent  No. 1.

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The Judgment of the Court was delivered by GROVER, J. This is an appeal by certificate from a  judgment of them Andhra Pradesh High Court dismissing a writ petition filed  by the appellant challenging the order  of  dismissal from service. The appellant who has passed the M.B B.S. examination of the Madras  University in 1940 entered the service of the  State of Madrason August 14, 1941 as Civil Assistant Surgeon.   On the  formation of the State of Andhra Pradesh  his  services were allotted to’ the new State.  In 1961 he was working  as Officer-in-charge   of  Vijaywada  Government   Headquarters Hospital. On  a  reference by the Government of  Andhra  Pradesh,  the Tribunal,   under   the  Andhra   Pradesh   Civil   Services (Disciplinary  Proceedings) Tribunal Act  1960,  hereinafter called  the ’Act’, framed a number of charges  against  him. Proceedings by the Tribunal were first conducted before Shri K.  Umpathy Rao, the Chairman of the Tribunal, which at  all material times, consisted of two members.  The charges  were framed  by him on August 22, 1962.  On or about  January  7, 1963  the  case  was transferred to the  other  member  Shri Nazimuddin.   On the protest of the appellant that the  said member  would be biased against him the case  was  withdrawn from him and Shri K. Umpathy Rao continued the enquiry until March 21, 1963 and examined certain witnesses.  On the  same date  the case was transferred to Shri Shankar  Pershad  who had  succeeded Shri Nazimmudin on the latter’s  appointment. Shri  Shanker Pershad held the inquiry until June  20,  1963 and  examined  a number of witnesses.  He  retired  in  July 1963.  Shri G. Ramaiah Chowdhary who succeeded him continued to hold the enquiry and examined some witnesses.  After  the written statement of 174 the  appellant  had been filed and his  witnesses  had  been examined he heard arguments on October 26, 1963.  Before  he could  submit  a report Shri Chowdhary  was  transferred  on February   2,   1964   and  was   succeeded   by   Shri   C. Jaganathacharyulu who was then the Chairman of the Tribunal. He submitted a report on July 31, 1964.  He held that out of the  22 charges only 10 had been proved.  On  September  15, 1964  a  notice  was  sent to the  appellant  by  the  first respondent  herein  to  show  cause why  he  should  not  be dismissed  from  service.  On September 3,  1964  the  first respondent directed that the penalty of dismissal be imposed on the appellant. The  appellant  moved the High Court under Art. 226  of  the Constitution challenging the order of dismissal  principally on the ground that the proceedings before the Tribunal  were vitiated from beginning to the end.  While the writ petition was pending a decision was given by the Division Bench(1) of the  High Court on September- 7, 1965  construing  identical provisions  of  the  Hyderabad  Public  Service   (Tribunal) Enquiry,  Act  that  where one  member  alone  conducted  an enquiry and submitted his report that report was invalid and opposed to the provisions of the Act and the decision of the Government on such report would be without jurisdiction.  It is  claimed  on behalf of the appellant that  in  accordance with that decision the writ petition would have been allowed but  for an amendment which was made in s. 7 of the  Act  by adding a proviso which may be noticed.               "7.  On  the  conclusion of  an  inquiry,  the               Tribunal  shall  report its  findings  to  the               Government......               Provided  that where a single  member  of  the               Tribunal  holds  an  inquiry into  a  case  as

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             provided  in sub-section (1) of Section 6,  he               alone shall report his findings and  recommend               the penalties and his report to the Government               in  this  regard  shall be deemed  to  be  the               report  of  the Tribunal for the  purposes  of               this Act". The appellant submitted to the High Court that the amendment did  not  make any difference and affect the merits  of  the case  in  any  manner  but  the  High  Court  negatived  his contention and dismissed the writ petition. We  shall presently consider the contentions that have  been pressed  before us on behalf of the appellant but we  cannot help observing at the threshold that the manner in which the proceedings were conducted before the Tribunal strikes us as most  extraordinary.   It is somewhat surprising  that  even when  the  member who was holding the enquiry had  not  been transferred  or  had not retired and was in  a  position  to conclude the enquiry and make a report the proceedings  were transferred  either  to the Chairman or some  other  member. the relevant provisions of the Act and the rules may now  be noticed.   Section  3  provided for the  constitution  of  a Tribunal  for disciplinary proceedings consisting of one  or more members.  Where the Tribunal consists of more than  one member the Government has to designate one of the (1)  C. K. Doraiswamy Naidu v. The State of  Andhra  Pradesh I.L.R. [1967] Andhra pradesh. 904. 175 members  as the Chairman.  Under S. 6 (1 ) if  the  Tribunal consists  of  more than one member an inquiry  into  a  case referred  to the Tribunal shall be held by all  the  members sitting  together or by a single member as the Chairman  may direct.  Under S. 7 the Tribunal has to report its  findings to the Government on the conclusion of the inquiry.  Section 7, as it stood before the amendment Act 27 of 1965. provided that  on  the conclusion of an inquiry  the  Tribunal  shall report its findings to the Government, The proviso which was inserted after the judgment of the Andhra Pradesh High Court mentioned before has already been quoted. Rule  7 of the Rules framed under S. 10 of the Act  requires the  Tribunal  to follow the procedure  prescribed  thereby. Under  Rule 7(2)(i) after an inquiry has been completed  the Tribunal  has  to  send  the  report  of  its  findings  and recommendations to the Government together with its opinion. Sub-rule 2(iii) says :               "After   the   Government  have   arrived   at               provisional  conclusions  in  regard  to   the               penalty to be imposed, the Government  servant               charged  shall be supplied with a copy of  the               report of Tribunal and he shall be called upon               to show cause within a reasonable time against               the particular penalty proposed to be imposed"               Sub-rule  6  of  Rule 7  is  material  and  is               reproduced below               "Where  the  Chairman  or any  member  of  the               Tribunal  is prevented by death,  transfer  or               other cause from concluding an enquiry or from               reporting his findings in any case referred to               the Tribunal, his successor may deal with  any               evidence  taken  down by  his  predecessor  in               office as if such evidence had been taken down               by  him and may proceed with the enquiry  from               the  stage at which his predecessor  had  left               it, or report his findings to the Government." This  sub-rule  (6) was added by G.O.M. 690 dated  the  12th June 1964-

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The  High Court was of the view that if Shri Venkatarao  who made the report could be said to have held an enquiry  under S.  6(1)  that  his report would be valid  in  view  of  the proviso to S. 7. It was pointed out that under sub-rule 6 of Rule  7  Shri  Venkata Rao as member  of  the  Tribunal  was competent to lawfully deal with the evidence which had  been taken  down by his predecessor as if such evidence had  been taken  down by him.  He proceeded to hear arguments  on  the 9th and 10th July 1964.  The hearing of arguments was a part of  the  enquiry  under S. 6(1).   It  was  not,  therefore, necessary  that  the  report must have  been  made  by  both members of the Tribunal. Now  it is quite clear that Shri Venkata Rao never  examined any  witnesses or took on record any evidence.  All that  he did  was  to  hear arguments afresh.   Under  section  7  on conclusion  of  an enquiry it is the Tribunal which  has  to report  its  findings to the Government.   The  proviso  was inserted  as  is  clear from the statement  of  Objects  and Reasons  contained  in  the Bill which  was  introduced  for enacting the amending Act of 1965 because of the decision of the Andhra 176 Pradesh  High Court referred to before in which It was  held that  the  purpose  of having a Tribunal of  more  than  one member was that all members should bring to bear their  mind to the matter in controversy and come to the conclusion that where  a single member had held an inquiry the  findings  of the  report  should  be given by all the  members.   It  was pointed  out  that  the intention was that  where  a  single member held an inquiry under s. 6(1) he alone should  report his findings and recommend the penalties in the report to be submitted to the Government.  Where a single member held  an inquiry  it  might not be appropriate to require  the  other member  who had not enquired into the case and who  did  not have an opportunity of hearing the evidence to take part  in further  proceedings  and recording the findings  and,  sub- mitting the report to the government.  In order to make  the intention  clear  and to validate the action  taken  by  the Government  in the past on the findings and the report of  a single  member  of the Tribunal, the  Andhra  Pradesh  Civil Services   (Disciplinary  Proceedings)  Tribunal   Amendment Ordinance  1965 had been promulgated by the Governor.   That was later followed by the Amendment Act 1965. As Rule 7(6) cannot abrogate the provisions contained in the Act  and  the provisions of the Act must prevail,  we  shall have  to determine what the true import and meaning  of  the proviso  to s. 7 is.  It is abundantly clear that  according to the substantive part of s. 7 it is the Tribunal which has to  report the findings to the Government on the  conclusion of the enquiry.  In other words even if the enquiry is  con- ducted by one member two members have to submit their report if  the  Tribunal consists of two members as  was  the  case here.   The proviso only enables the report to be  submitted by  one  member  alone- if the  condition  pre-requisite  is satisfied, namely, that he has held an inquiry himself  into the matter.  If he has held the enquiry then instead of  two members  his report shall be deemed to be the report of  the Tribunal,  The crucial question, therefore, in  the  present case is whether the report of Shri Venkata Rao satisfied the conditions  laid down; in s. 7 and the proviso thereto.   It is  not in dispute that he had never conducted any  part  of the  enquiry and that he had only heard arguments  and  then submitted a report giving his findings.  In the judgment  of the Andhra Pradesh High Court (supra) it was laid down  that the  word  "enquiry" in s. 8 of the Act does not  include  a

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finding.  The enquiry was stated to cover the hearing of the case  i.e.  recording  evidence,  admitting  documents   and generally  completing the record upon which a finding  would be based.  It is only after all the material has been placed on the record by both the sides that the stage of  reporting a  finding would arise.  We entirely concur with this  view. in our opinion the stage of enquiry is completed before  the arguments  have  to  be  advanced  as  is  clear  from  Rule 7(1)(iii) which is in the following terms :-               "As the enquiry, oral and documentary evidence               shall be first adduced by the prosecution and               the   Government  servant  charged  shall   be               entitled  to  cross-examine  the   prosecution               witnesses   and  to  explain   any   documents               produced   by  the  prosecution.   After   the               enquiry  is completed, the Government  servant               charged  shall  be  entitled  to  advance  the               neces-                177               sary arguments and the prosecution shall  have               a right of reply". The  net result would be that according to the Act  and  the Rules  framed  thereunder arguments would not be a  part  of enquiry.   As Shri Venkata Rao had only heard arguments  and had  not held any part of the enquiry, his report could  not be  deemed  to  be the. report of  the  Tribunal  under  the proviso to s. 7 of the, Act.  As pointed out before sub-rule 6 of Rule 7 cannot override s. 7 of the Act.  Under s. 7 the position  is  quite clear that if the Tribunal  consists  of more than one member and if the enquiry is held by a  single member ha alone can report his findings and his report shall be deemed to be a report of the Tribunal but where a single, member  has not held any enquiry then his report cannot  be deemed to be the report of the Tribunal and it is  essential that  all  members  of the  Tribunal  should  submit  their’ report.  As arguments could not form part of the enquiry the conditions  of  s.  7 could not be regarded  to  have,  been fulfilled.  The High Court was entirely in error in  holding that Shri Venkata Rao who had only heard arguments should be treated  to have held part of the enquiry and  therefore  Ms report  should be deemed to be the report of  the  Tribunal. The result would be that the order of dismissal based on the report  submitted  by Shri Venkata Rao must be  held  to  be illegal and void. For  the reasons given above the appeal is allowed  and  the order  of  the High Court is set aside.  The  writ  petition shall  stand  allowed  with the result  that  the  order  of dismissal  shall  stand  quashed.   The  appellant  will  be entitled to his costs in this Court. S.C.                                   Appeal allowed. 13-944SupCI/73 178