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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: S.N. NIZAMUDDIN ALl KHAN

DATE OF JUDGMENT05/08/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SINGH, JASWANT

CITATION:  1976 AIR 1964            1977 SCR  (1) 128  1976 SCC  (4) 745  CITATOR INFO :  RF         1988 SC 908  (5)

ACT:             Constitution   of  India,  Article   311(2),   violation         of--Penalty of compulsory retirement--Hyderabad Civil  Serv-         ice (Classification,  Control  and  Appeal) Rules---Reasona-         ble  opportunity  of defence at the stages  of  enquiry  and         punishment--Consideration of extraneous matters in recommen-         dation  of  penally  by High Court  Chief  Justice,  whether         valid.

HEADNOTE:             The respondent, Munsiff Magistrate, was found guilty  in         an  enquiry  held by a High Court Judge,  regarding  serious         allegations  against  him.  The Chief Justice  of  the  High         Court also examined the evidence on his own, and  confirming         the findings of the Enquiry Officer, recommended  compulsory         retirement. Both reports were sent to the Government, and  a         show-cause  notice  with the Enquiry  Officer’s  report  was         issued  to the respondent.  Later, with the  Public  Service         Commission’s  approval,  the  respondent  was   compulsorily         retired.  His  appeal to the Rajpramukh was  dismissed,  but         the City Civil Court and High Court decided in his favour.         The  question before this Court was, whether the Chief  Jus-         tice’s  report  was in accordance with the  Hyderabad  Civil         Service  (Classification, Control and Appeal) Rules and  the         High Court Act, and whether the failure to communicate it to         the respondent, amounted to a denial of reasonable  opportu-         nity  for  defending himself at the stages  of  enquiry  and         punishment.         Dismissing the appeal, the Court,             HELD:  (1) The report of the Chief Justice of  the  pro-         posed punishment of compulsory retirement took into  consid-         eration extraneous matters, and he was not authorised to  do         so  under the Rules, or the High Court Act.  The report  was         based,  to a large extent, oh secret information  which  the         respondent had no opportunity of meeting. [132 D-E]             (2)  The Government accepted the Chief Justice’s  report         and  took  action on it.  The report was not  given  to  the         respondent.  He was denied the opportunity of being heard at         that stage of enquiry.  The respondent was denied a reasona-

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       ble  opportunity  of  making a  representation  against  the         penalty proposed by the Government. [132 E-F]

JUDGMENT:             CIVIL  APPELLATE JURISDICTION:CIVIL Appeal No.  1863  of         1968.         P.  Ram Reddy, K. Jayaram and A. V. V. Nair, for the  appel-         lant.             T.C. Raghavan, B. Parthasarathi and S. Shaukat  Hussain,         for the respondent.         The Judgment of the Court was delivered by             RAY,  C.J.  This appeal by special leave is against  the         judgment  dated  3 April, 1967 of the High Court  of  Andhra         Pradesh.             The respondent filed this suit to set aside the order of         compulsory  retirement  on the ground that it  was  illegal,         wrongful,  ultra vires and inoperative. The  respondent  al-         leged  that  the departmental enquiry was initiated  by  the         Chief  Justice  and not by the Administrative Bench  of  the         High Court which alone could do so under the Hyderabad  High         Court  Act. The respondent alleged that he was not  given  a         reasonable opportunity inasmuch as the report of the Enquiry         Officer was submitted         129         to the Chief Justice and not to the Administrative Bench and         that  the Public Service Commission was not consulted.   The         respondent further alleged that the Chief Justice added  his         own  findings  to the report of the  Enquiry  Officer  while         sending it to the Government and in doing so he took  extra-         neous  matters which had not been the subject matter of  the         enquiry.  The respondent alleged that he had no  opportunity         to  defend  himself with reference to the  findings  of  the         Chief Justice.             The  High Court held that the report of the  High  Court         took into consideration extraneous matters and thus deprived         the  respondent from giving a reasonable  opportunity.   The         High Court, therefore, held that Article 311(2) was  violat-         ed.  The High Court confirmed the decree of the trial  Court         but modified the order to the extent that the respondent was         entitled to arrears of salary.             The  Hyderabad Civil Services  (Classification,  Control         and  Appeal) Rules referred to as the Rules contain in  Part         III  the  following relevant provisions.  Rule  9(b)  states         that compulsory retirement before completion of 30 years  or         25  years  of qualifying service is one  of  the  penalties.         Rule  12 provides that the Government may impose any of  the         penalties  mentioned  in items (ii) to (viii) of Rule  9  on         members  of the State Services after consultation  with  the         Public Service Commission where such consultation is  neces-         sary.  Rule  17(b) provides that in every case where  it  is         proposed  to  impose  on a member of a Service  any  of  the         penalties mentioned in items (iv), (vi), (vii) and (viii) of         rule 9. the grounds shall be communicated.  The.charges  are         to be communicated together with the statement of the  alle-         gations on which each charge is based.  A written  statement         is required to be filed by the officer and an enquiry  shall         be  held.  After the enquiry has been completed, the  person         charged  shall be entitled to put in, if he so desires.  any         further written statement in his defence.  After the enquiry         has  been  completed and after the  authority  competent  to         impose  the penalty mentioned in that clause has arrived  at         provisional  conclusions, the person charged shall  be  sup-         plied with the copy of the report of the enquiring authority

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       and  be called upon to show cause within a  reasonable  time         against the particular penalty proposed to be inflicted.             Rule  14 states that after completing the oral  enquiry,         if  any,  and giving the person charged  an  opportunity  of         making  a  written  statement, the  inquiry  officer  should         record  his,  findings on each charge, the reason  for  such         findings and recommendations as regards the penalty on  each         of the charges. Rule 16 states that on receipt of the report         of the enquiry officer the punishing authority should arrive         at  a provisional conclusion in regard to the penalty to  be         imposed and the person charged shall be supplied with a copy         of  the report of the enquiry officer and be called upon  to         show  cause  within  a reasonable time  why  the  particular         penalty or penalties should not be inflicted upon him.   Any         representation  submitted  by  the person  charged  in  this         behalf shall be duly taken into consideration by the punish-         ing authority before final orders are passed.              The Rules further provide that in a case in which it is         necessary to consult the Public Service Commission according         to the provisions of         130         the  Public  Service Commission  Regulations,  the  complete         papers  of  the case should be sent to  the  Commission  for         their  advice as regards the action to be taken without  any         observation  on  the merits of the case. On receipt  of  the         advice of the Commission, if it be found that the Commission         have  agreed with the provisional conclusion reached by  the         punishing authority as regards the penalty to be  inflicted,         final  orders should be issued to the person  Charged.   If,         however,  it  be found that there has been  disagreement  on         this  point and the punishing authority has no objection  to         accept the advice of the Commission, final orders should  be         issued  to  the person charged. If, however,  the  punishing         authority does not consider it feasible to accept the advice         of the Commission another reference on this point should  be         made  to  the Commission and if they still adhere  to  their         views  the  case should be submitted  through  the  Services         Branch  of  the General Administrative  Department  for  the         orders of the Chief Minister showing reason for the proposal         and such orders as may be passed by the Chief Minister shall         be communicated to the person charged.             Uuder  the  Hyderabad  High Court Act 3  of  1337  fasli         corresponding  to the year 1937 section 12 provides for  the         Administrative  Bench  consisting  of at  least  two  Judges         appointed  by  the  Chief Justice.  The  Chief  Justice  may         constitute  more than one Administrative Bench. Every  ques-         tion before the Administrative Bench shall be decided either         by  a  consensus  or by majority of opinion.   But  where  a         disagreement does not produce a majority of opinion,  action         shall  be taken in accordance with the view with  which  the         Chief  Justice might concur.  If the Chief Justice does  not         join  the  Bench  and there is no majority  of  opinion  all         opinions  shall be placed before the Chief Justice  and  the         opinion   concurred  by  him  shall  be  given   effect  to.         Section 13 of the Hyderabad High Court Act deals with powers         of Administrative Bench of the High CoUrt.  The  Administra-         tive Bench shall have power inter alia to sanction,  suspen-         sion, fines, dismissal.             The  respondent was appointed as Munsiff  Magistrate  in         the  year  1948.  Sometime in 1951 and  1952  a  preliminary         enquiry  by the District and Sessions Judge was  made.   The         Administrative Bench consisting of the Chief Justice of  the         High Court and another learned Judge deputed Justice Manohar         Prasad to conduct the enquiry in accordance with the  Rules.         On  16 April, 1953 the respondent was suspended.  A  charge-

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       sheet was served on the respondent along with the statements         of  four persons.  On the following charges it was  proposed         to  remove the respondent from service namely  (1)  Communal         bias in deciding case, (2) disregarding judicial orders, (3)         suggesting names of Muslim lawyers to Muslim parties and (4)         inefficiency.              On  3 August, 1953 the Enquiry Officer Justice  Manohar         Prasad  submitted a report finding the respondent guilty  of         charges  numbered 1 and 3 and he recommended a warning.   On         25  August, 1953 the report of the Chief Justice on his  own         examination  of the evidence confirmed the findings  of  the         enquiry  officer and he recommended  compulsory  retirement.         On 5 September, 1953 the Administrative Bench the High Court         sent both the reports to the Government.         131             On 14 October, 1953 a show cause notice was issued  from         the Government for compulsory retirement of the  respondent.         The  Government  show cause notice enclosed  the  report  of         Justice  Manohar Prasad.  The respondent answered the  find-         ings  of the enquiry report and also protested  against  the         report  of the Chief Justice saying that the  Chief  Justice         had  no  authority to add his own remarks and  his  findings         were arrived at without hearing the respondent.             On  22  December, 1953 the matter was  referred  to  the         Public Service Commission.  On 27 February, 1954 the  Public         Service  Commission  approved compulsory  retirement.  On  8         April, 1954 the respondent was compulsorily retired.             On  28 June, 1954 the respondent preferred an appeal  to         the  Rajpramukh.   On 4 November, 1954 the  Rajpramukh  dis-         missed the appeal.  In 1957 the respondent filed this suit.             The  City Civil Court found that the respondent did  not         have a chance to meet some of the allegations referred to by         the Chief Justice. The City Civil Court also found that  the         report  of  the Chief Justice weighed with  the  Government.         The  City Civil Court also found that the respondent had  no         reasonable  opportunity  for defending himself  against  the         imposition of penalty of compulsory retirement.             The  High  Court  held that the findings  of  the  Chief         Justice  were  based to a considerable  extent  on  material         which  was  not produced before the High  Court.   The  High         Court also held that the Government had accepted the  report         of  the  Chief  Justice both with regard to  the  guilt  and         punishment.   The High Court held that since the  report  of         the  Chief Justice formed an integral part of  the  enquiry,         the respondent was denied reasonable opportunity at both the         stages of enquiry and punishment and, therefore, the compul-         sory retirement was bad.             On behalf of the appellant it was contended that  assum-         ing the report of the Chief Jusitce was taken into consider-         ation  by the Government the findings of the  Chief  Justice         were based on evidence let in before the Enquiry Officer and         not  any  extraneous circumstances.  It was  also  submitted         that  it was open to the Government to accept or reject  the         recommendation  of  the  Chief Justice on  the  question  of         punishment.  The further submission was that the  respondent         was given a reasonable opportunity at both the stages of the         enquiry and punishment, and, therefore, the order of compul-         sory retirement, is good.             In  the  alternative it was submitted on behalf  of  the         appellant  that the Government of .its own came to the  con-         clusion  that compulsory retirement was the  proper  punish-         ment,  and,  therefore, the Government did not  act  on  the         recommendation of the Chief Justice.             The  report of the Chief Justice referred to the  report         of  the  Enquiring  Judge.  The Enquiring  Judge  held  that

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       charges relating to the communal bias of the respondent  and         charges relating to unbecoming conduct of the respondent  in         relation  to  engagement of counsel in  pending  cases  were         proved.  The  Chief Justice in his report said that  he  was         flooded with complaints from lawyers, litigants and from all         sides         132         which emanated not only from the members of the Bar but also         from  responsible officers.  The Chief Justice said  in  his         report that on consideration of all the facts he had not the         slightest  doubt  that in this case leniency would  be  mis-         placed and in the interest of purity of services such  prac-         tices, when proved, as they have been proved, must be  dealt         with firmly.  He, therefore, expressed the opinion that  the         respondent  should be compulsorily retired and he  concluded         with the observation "let the Government be moved according-         ly".             Under  the Rules the Government has power under rule  12         to impose, inter alia, the penalty of compulsory  retirement         after consultation with the Public Service Commission  where         such  consultation is necessary.  The Chief  Justice  recom-         mended  compulsory retirement.  He took note  of  complaints         received  by him from lawyers and other persons.  The  Chief         Justice  took note of insubordination which charge  was  re-         jected  by  the Enquiry Officer.  Rule 17(e)  of  the  Rules         requires  that  all  orders of punishment  shall  state  the         grounds on which they are based and shall be communicated to         the  person against whom they are passed. The report of  the         Chief  Justice  was not given to the respondent.   The  High         Court  Act  did not authorise the Chief Justice  to  send  a         supplementary report with his own findings.  The  respondent         had  no reasonable opportunity of making any  representation         against  the  report of the Chief Justice  of  the  proposed         punishment of compulsory retirement.             The High Court rightly held that the report of the Chief         Justice  took into consideration extraneous matters, and  he         was  not  authorised to do so under the Rules  of  the  High         Court Act.  The report submitted by the Chief Justice is not         the  report  of the Administrative Bench.   The  High  Court         rightly  held  that the Government accepted the  Chief  Jus-         tice’s  report  and took action on it. The  High  Court  was         right  in holding that the report of the Chief  Justice  was         based  to  a large extent on secret  information  which  the         respondent  had no opportunity of meeting.   The  respondent         was  denied the opportunity of being heard at that stage  of         enquiry.  The respondent was denied a reasonable opportunity         of  making a representation against the penalty proposed  by         the Government.             For these reasons the appeal is dismissed.  The respond-         ent is entitled to costs.         M.R.                                                  Appeal         dismissed         133