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PETITIONER: SECRETARY, CENTRAL BOARD OF EXCISEAND CUSTOMS & ORS.

       Vs.

RESPONDENT: K.S. MAHALINGAM

DATE OF JUDGMENT23/04/1986

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) SEN, A.P. (J)

CITATION:  1987 AIR 1919            1986 SCR  (2) 742  1986 SCC  (3)  35        1986 SCALE  (1)1308  CITATOR INFO :  D          1988 SC1000  (1)

ACT:      Constitution of India, Article 311(2) and Central Civil Services (Classification,  Control and  Appeal) Rules, 1965, Rule 15(4) - Punishment - Imposition of - Second opportunity to show cause - Whether necessary.

HEADNOTE:      A  charge-sheet   was  served   on  the  respondent,  a Government  servant,  containing  two  articles  of  charges alleging misconduct  involving lack of integrity and lack of devotion to  duty and  conduct unbecoming  of  a  Government servant. In  his defence  the respondent denied the charges. The Inquiry  Officer held  that both the articles of charges were established.  The Disciplinary  Authority accepted  the report of the Inquiry Officer and by his order dated May 15, 1980 dismissed  the respondent  from  service.  Against  the dismissal order,  the respondent  preferred an  appeal.  The Appellate Authority  by its  order dated July 8, 1981 upheld the finding  of the  Disciplinary  Authority.  It,  however, altered the  penalty  of  dismissal  to  one  of  compulsory retirement of the respondent from service.      The respondent filed a writ petition in the High Court. The Single Judge quashed the order of dismissal and directed reinstatement of  the respondent  in  service  holding  that there was  no evidence  to substantiate the charges and that as no  opportunity was given to the respondent to show cause against the punishment before the same was imposed the order of dismissal was vitiated.      In the appeal preferred by the Department, the Division Bench agreed  with the  Single Judge that the respondent was deprived  of  an  opportunity  to  show  cause  against  the punishment imposed  on him  by the  Disciplinary  Authority, modified the order of the Single Judge and directed the 743 Disciplinary  Authority   to  proceed   further   with   the disciplinary proceedings  against the  respondent  from  the stage of  giving a  fresh notice  to show  cause against the punishment to be proposed.      Allowing the appeal by the Department, ^

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    HELD : (1) Both the Single Judge and the Division Bench were not  justified in  holding that  the order of dismissal was vitiated  as the  respondent  was  not  given  a  second opportunity to  make a representation against the punishment of dismissal before the same was imposed on him. [747 F-G]      (2) The judgment of the Division Bench is set aside. As the Division  Bench did  not consider  the judgment  of  the Single Judge on merits, the case is remanded to the Division Bench for  disposal of the appeal on merits after giving the parties an opportunity of being heard. [747 H; 748 A-B]      (3) The Constitution (Forty-second Amendment) Act, 1976 has  deleted   from  clause   (2)  of  Article  311  of  the Constitution the  requirement of a reasonable opportunity of making representation  on the proposed penalty and, further, it has  been expressly  provided in  the  first  proviso  to clause (2)  that "it  shall not  be necessary  to give  such person any  opportunity  of  making  representation  on  the penalty proposed".  After the  amendment, the requirement of clause (2)  will be satisfied by holding an inquiry in which the Government  servant has  been informed  of  the  charges against him  and given  a reasonable  opportunity  of  being heard. [746 C-E]      In the instant case, such an opportunity has been given to the respondent. Undisputedly after the order of dismissal was passed,  the respondent  was supplied with a copy of the report of the Inquiry Officer which enabled him to prefer an appeal to  the Appellate  Authority  against  the  order  of dismissal. [746 E-F]      (4) In  view of  the amendment of Article 311(2) of the Constitution, Rule  15(4)  of  the  Central  Civil  Services (Classification,  Control   and  Appeal)   Rules,  1965  was amended, which,  inter alia,  provided that  it would not be necessary to  give the Government servant any opportunity of making 744 representation  on  the  penalty  proposed  to  be  imposed. Therefore, the  respondent cannot claim a second opportunity to show  cause against  the punishment  either under Article 311(2) of  the Constitution  or  under  Rule  15(4)  of  the Central Civil Services (Classification, Control and Appeal), Rules, 1965. [746 G; 747 D-E]      Union of India v. Tulsi Ram Patel, [1985] 3 S.C.C. 389, relied upon.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1279 of 1986.      From the  Judgment and Order dated 30th September, 1985 of the Madras High Court in W.A. No. 809 of 1985.      Anand  Prakash,  C.V.  Subba  Rao,  R.D.  Agarwala  and T.V.S.N. Chari for the Appellants.      K.S. Mahalingam in person.      The Judgment of the Court was delivered by      M.M. DUTT,  J. The  Special Leave Petition filed by the appellants was  heard upon  notice to  the  respondent,  who appeared before us in person. As arguments have been made by both sides  at the hearing of the Special Leave Petition, we proceed to dispose of the appeal after granting such leave.      The only  question that  is  involved  in  this  appeal whether it  is necessary  to give a second show cause notice against the  punishment before  the same  was imposed on the respondent and  to furnish  him with a copy of the report of the Inquiry  Officer in  view of the amendment of clause (2)

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of  Article   311  of  the  Constitution  of  India  by  the Constitution (Forty-Second  Amendment)  Act,  1976  and  the consequential change  brought about  in Rule  15(4)  of  the Central Civil  Services (Classification, Control and Appeal) Rules,  1965.  Indeed,  the  notice  of  the  Special  Leave Petition that was served on the respondent was confined only to the said question.      The respondent,  K.S. Mahalingam,  was the  Examiner of Madras Customs House. While he was acting in that capacity a 745 charge sheet  was served  on him  containing two articles of charge alleging  misconduct involving  lack of integrity and lack of  devotion  to  duty  and  conduct  unbecoming  of  a Government servant.  The respondent  submitted his  defence, inter alia,  denying the  charges. The  Inquiry Officer held that both  the articles  of  charge  were  established.  The Disciplinary Authority,  namely, the  Collector of  Customs, Madras, examined  the report  of the  Inquiry Officer and by his order  dated May  15, 1980 came to the finding that both the charges  framed against  the respondent  were proved. In view of  the said  finding, the  Collector of Customs by his said order  dismissed the  respondent  from  service.  Being aggrieved  by   the  order   of  dismissal,  the  respondent preferred an  appeal against the same to the Chief Vigilance Officer, Central  Board of Excise and Customs. The Appellate Authority elaborately considered the facts and circumstances of the  case and  by its order dated July 8, 1981 upheld the finding of  the  Disciplinary  Authority  that  the  charges against the respondent were proved. The Appellate Authority, however,  altered   the  penalty  of  dismissal  to  one  of compulsory retirement of the respondent from service.      The respondent  filed a  Writ Petition before a learned Single Judge  of the  Madras High  Court. The learned Judge, upon a  review of  the materials  on  record,  came  to  the conclusion that  there was  no evidence of lack of integrity or lack  of devotion  to duty  or conduct  unbecoming  of  a Government  servant  as  alleged  in  the  charges  levelled against the  respondent. Further, the learned Judge took the view that  as no  opportunity was given to the respondent to show cause  against  the  punishment  before  the  same  was imposed by  the Disciplinary Authority and as no copy of the Inquiry Officer’s  report was  supplied to him, the order of dismissal was  vitiated. Accordingly,  the learned  Judge by his order  dated September  7, 1985  quashed  the  order  of dismissal and  directed reinstatement  of the  respondent in service.      The appellants  preferred an  appeal before  a Division Bench of  the High Court. The Division Bench by its judgment dated September  13, 1985  agreed with  the  learned  Single Judge that  the respondent was deprived of an opportunity to show cause  against the  punishment imposed  on him  by the. Disciplinary Authority. In that view of the matter, the 746 Division Bench  did not consider the findings of the learned Judge on  merits. The  Division Bench  modified the order of the learned  Single Judge by setting aside the direction for reinstatement of  the respondent  in service  and permitting the Disciplinary  Authority  to  proceed  further  with  the disciplinary proceedings  against the  respondent  from  the stage of  giving a  fresh notice  to show  cause against the punishment to  be proposed  by him. Hence this appeal by the appellants.      It thus  appears that  the Division  Bench as  also the learned Single  Judge of  the High  Court took the view that the order  of dismissal  was vitiated  as  the  Disciplinary

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Authority failed to give to the respondent an opportunity to show cause  against the  punishment of  dismissal before the same was  imposed on  him. Both  the Division  bench and the learned Single  Judge of  the  High  Court  have  completely overlooked the  fact  that  the  Constitution  (Forty-Second Amendment) Act,  1976 has deleted from clause (2) of Article 311 of  the Constitution  the requirement  of  a  reasonable opportunity of making representation on the proposed penalty and, further,  it has  been expressly provided inter alia in the first  proviso to  clause (2)  that  "it  shall  not  be necessary to  give such  person any  opportunity  of  making representation  on   the  penalty   proposed".   After   the amendment, the  requirement of  clause (2) will be satisfied by holding  an inquiry  in which  the Government servant has been informed  of  the  charges  against  him  and  given  a reasonable opportunity  of being heard. In the instant case, such an  opportunity has been given to the respondent. It is also not  disputed that  after the  order of  dismissal  was passed, the  respondent was  supplied with  a  copy  of  the report of the Inquiry Officer which enabled him to prefer an appeal to  the Appellate  Authority  against  the  order  of dismissal.      In this  connection, it  may be noticed that in view of the said  amendment of  Article 311(2)  of the Constitution, Rule 15(4)  of the  Central Civil  Services (Classification, Control and  Appeal) Rules,  1965 was amended. Rule 15(4) as amended provides as follows :           "15(4).  If   the  disciplinary  authority  having           regard to  its findings  on  all  or  any  of  the           articles  of  charge  and  on  the  basis  of  the           evidence adduced 747           during the  inquiry is  of the opinion that any of           the penalties  specified in  clause (v) to (ix) of           Rule  11  should  be  imposed  on  the  Government           servant, it  shall make  an  order  imposing  such           penalty and  it shall not be necessary to give the           Government  servant   any  opportunity  of  making           representation  on  the  penalty  proposed  to  be           imposed :           Provided that  in every case where it is necessary           to consult  the  Commission,  the  record  of  the           inquiry shall  be forwarded  by  the  disciplinary           authority to  the Commission  for its  advice  and           such advice  shall  be  taken  into  consideration           before making  an order  imposing any such penalty           on the Government servant." Clause (ix)  of Rule  11 referred  to in  Rule 15(4)  is the penalty of dismissal.      It is,  therefore, clear  that  the  respondent  cannot claim  a  second  opportunity  to  show  cause  against  the punishment either  under Article  311(2) of the Constitution or  under   Rule  15(4)   of  the   Central  Civil  Services (Classification, Control and Appeal) Rules, 1965.      The question  was also considered by a five-Judge Bench of this Court in Union of India v. Tulsi Ram Patel, [1985] 3 S.C.C. 398.  In that case, it has been observed per majority that the only right to make a representation on the proposed penalty which  was to  be found in clause (2) of Article 311 of the  Constitution prior  to  the  amendment  having  been taken, by  the Constitution  (Forty-Second  Amendment)  Act, there is  no provision  of  law  under  which  a  Government servant can  claim this  right. In our view, therefore, both the learned  Single Judge and the Division Bench of the High Court were  not justified  in  holding  that  the  order  of

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dismissal was  vitiated as  the respondent  was not  given a second  opportunity   to  make  representation  against  the punishment of dismissal before the same was imposed on him.      In the  circumstances, we set aside the judgment of the Division Bench of the High Court but, as in disposing the 748 appeal the Division Bench has not considered the judgment of the learned  Single Judge on merits of the case, we send the case back  on remand  to the Division Bench for the disposal of  the  appeal  on  merits  after  giving  the  parties  an opportunity of being heard.      This appeal  is allowed.  There will,  however,  be  no order as to costs. A.P.J.                                       Appeal allowed. 749