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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: RAM RATAN

DATE OF JUDGMENT09/05/1980

BENCH: DESAI, D.A. BENCH: DESAI, D.A. CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA

CITATION:  1980 AIR 1650            1980 SCR  (3)1243  CITATOR INFO :  F          1982 SC1493  (6)

ACT:      Disciplinary proceedings  and second  show cause notice to  terminate   the  service   of  a  government  servant-No specification in  the show  cause notice  of the  particular penalty proposed  to be  inflicted and imposition of penalty other than  such proposed  penalty, whether bad and illegal- Constitution of  India, Article  311(2) and Rule 15(4)(i)(b) of the  M.P. Civil  Services  (Classification,  Control  and Appeal) Rules, 1966.      Practice and  Procedure-Supreme Court  is not  bound to set  aside   the  order   of  the   High   Court   directing reinstatement of  the employee  when he has succeeded in two Courts below-Constitution of India, 1950, Art.136.

HEADNOTE:      Respondent Ram  Ratan was employed as a Forest Guard in the Forest  Department of  Madhya Pradesh Government. He was served with  a charge-sheet dated March 6, 1969, in which he was accused of misconduct. Respondent refuted the charges. A departmental enquiry  was  held  by  the  Divisional  Forest Officer, Mr.  Mathotra, in  respect of  the  charges  framed against the respondent. Charge of misconduct was held proved whereupon the  punishing authority  served respondent with a second  show  cause  notice  dated  February  12,  1970,  as contemplated by  Article 311(2)  of the  Constitution as  it stood prior to its amendment in 1976.      After  the   respondent  replied   to  the  notice  the disciplinary-cum-punishing authority  imposed the penalty of compulsory retirement  on  the  respondent.  The  respondent questioned the validity and correctness of the punishment in Civil Suit  No. 227-A/73  filed by  him in  the Court of the Civil Judge,  Civil Court,  Class II,  Sabalgarh. The  trial Court decreed  the suit and set aside the order imposing the major  penalty   of  compulsory  retirement  and  granted  a declaration that  respondent continues in service. On appeal by the  State  of  Madhya  Pradesh,  the  Second  Additional District Judge,  Morena, set  aside the  decree of the trial Court and dismissed the suit of the respondent. On appeal by the respondent  to the  High Court a learned single judge of the Madhya  Pradesh High  Court  a  allowed  the  appeal  of

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respondent and  set aside  the decree  made by  the District Judge and  restored the  one passed  by the trial Court with the  result   that  a   declaration  was  granted  that  the respondent would  continue in  service till  the date of his superannuation. Hence  this appeal  by special  leave by the State of Madhya Pradesh.      Allowing the appeal, the Court ^      HELD: 1.  Article 311(2)  as it  stood at  the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon  the punishing  authority to  serve a second show cause  notice where  it was proposed after departmental inquiry to  impose on  the delinquent Government servant any of the 1244 penalties referred to in Art. 311 so as to give a reasonable opportunity  of   making  representation   on  the   penalty proposed. Rule  15(4)(i)(b) of  the  1966  Rules  prescribes procedure to  be  followed  by  the  disciplinary  authority before imposing  punishment to the effect that the concerned authority should  give a  notice  setting  out  the  penalty proposed to  be imposed on the concerned government servant, and calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days, as may be allowed,  such representation  as he  may wish to make on the proposed  penalty on  the basis  of the evidence adduced during  the  inquiry  held  under  rule  14.  The  punishing authority has in the second show cause notice to specify the punishment which  it tentatively  or  provisionally  decides upon to impose looking to the gravity of the charge which is held proved.  At that  stage the  decision of  the punishing authority is  a tentative decision and in the very nature of things it  must be so because an opportunity has to be given to   the   delinquent   government   servant   to   make   a representation on  the nature  of penalty.  This would imply that if  the delinquent  officer in his representation makes out  a   case  for  a  lesser  punishment  the  disciplinary authority would  keep an  open mind  and after  applying its mind to the representation made by the delinquent government servant,  the  authority  may  either  confirm  its  earlier tentative decision  or it  would be  open to  it to  award a lesser penalty then the one tentatively decided. [1247 C-H]      2. Principle  of natural justice and fair play implicit in Art.  311(2) and  rule 15(4)(i)(b) would require that the disciplinary authority  has to  take into  consideration the representation made  by the delinquent government servant in response to the notice which is a constitutional obligation, and if  the delinquent  officer is in a position to pursuade by his  representation, to  so modulate  the  punishment  as would accord  with the  gravity of  the misconduct and other mitigating or  extenuating circumstances  all of  which  may enter into  the verdict  of deciding  upon the  penalty, and consequently the  disciplinary authority  would be  free  to impose a  lesser penalty than the one proposed in the second notice. This is the constitutional scheme. [1248 A-B]      If the  view, namely,  that the  disciplinary authority must tentatively  decide upon  the penalty  and specify  the penalty in  the second  show cause  notice and  after taking into consideration the representation made by the delinquent government servant  in response  to the  notice it  can only confirm the  tentative decision  but cannot  award a  lesser punishment, the  exercise of giving second show cause notice becomes self-defeating and giving of the notice inviting the representation on  the  question  of  penalty  would  be  an exercise in  futility.  Such  an  approach  would  render  a

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tentative decision  as final  and the  rest being  an  empty formality. Such  could  not  be  the  underlying  object  in enacting a  constitutional mandate  for  the  protection  of government servants. [1248 C-E]      In  service   jurisprudence  for   different  types  of misconduct  various  penalties  are  prescribed  in  service rules. 1966 Rules prescribe as many as 9 penalties which can be awarded  for  good  and  sufficient  reasons.  Compulsory retirement is one of the major penalties. Similarly, removal from service  which shall  not  be  a  disqualification  for future appointment  in government service and dismissal from service which  shall ordinarily  be a  disqualification  for future employment  under the  government are  the other  two major penalties.  The disciplinary authority keeping in view the  gravity  of  misconduct  committed  by  the  government servant will tentatively determine the penalty to be imposed upon  the   delinquent   government   servant.   Degree   of seriousness of misconduct will ordi- 1245 narily determine  the penalty  keeping in view the degree of harm that  each   penalty can  inflict upon  the  government servant. Before  serving the  second show  cause notice  the disciplinary  authority   will  determine   tentatively  the penalty keeping  in view  the seriousness of misconduct. But this is  a tentative  decision. On receipt of representation in response to notice, the disciplinary authority will apply its mind  to  it,  take  into  account  any  extenuating  or mitigating circumstances  pleaded in  the representation and finally determine  what should  be the penalty that would be commensurate with  the circumstances of the case. [1248 E-H, 1249 A]      It a  major penalty  was tentatively decided upon and a lesser or  minor penalty  cannot be awarded because this was not the  specified penalty, the government servant to whom a notice proposing  major penalty is served would run the risk of awarded  major penalty  because it  would not  be open to award a  lesser or a minor penalty than the one specified in the show  cause notice.  Such a  view runs  counter  to  the principle  of   penology.  In  criminal  and  quasi-criminal jurisprudence where  the  penalties  are  prescribed  it  is implicit thereunder  that a  major penalty  would comprehend within its  fold the  minor penalty.  If a  major penalty is proposed looking  to the  circumstances of the case, at that stage, after  taking into  consideration the  representation bearing on  the subject and having an impact on the question of penalty  a minor  penalty can always be awarded. In penal statute maximum  sentence for  each offence  is provided but the matter  is within the discretion of the judicial officer awarding sentence  to award such sentence within the ceiling prescribed by  law as would be commensurate with the gravity of the  offence and  the  surrounding  circumstances  except where minimum  sentence is prescribed and Court’s discretion is by legislation fettered. [1299 A-D]      Therefore, if  any particular  penalty is  specified as tentatively proposed  in the  second show  cause notice  the disciplinary authority  after taking  into consideration the representation made by the delinquent government servant can award that  penalty or  any lesser  penalty and  in so doing Art. 311(2)  will not be violated. In fact, this leaves open a discretion  to the  punishing authority which accords with reason, fair play and justice. [1251 B-C]      Hukam Chand  Malhotra v. Union of India,[1959] Suppl. 1 SCR 892; followed.      Union of  India and  Ors. v.  K. Rajappa Menon,[1969] 2

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SCR 343; explained.      3. Supreme  Court while  exercising  its  extraordinary jurisdiction under  Act. 136  of the  Constitution,  is  not bound to  set aside  the order  of the  High Court directing reinstatement of  the employee, when he has succeeded in the two courts  below. Quantifying  the backwages  and the costs would accord  with the demands of social justice, reason and fairplay. [1252 D-E]      Punjab Beverages  P. Ltd.  v.  Suresh  Chand  and  Ors. [1978] 3 SCR 370; followed.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 422 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated the   23-8-1979  of  the  Madhya  Pradesh  High  Court (Jabalpur Bench) at Gwalior in Second Appeal No. 42 of 1979. 1246      S. K. Gambhir for the Appellant.      Mr. N. S. Das Bahl for Respondent.      The Judgment of the Court was delivered by      DESAI, J.-Respondent Ram Ratan was employed as a Forest Guard in the Forest Department of Madhya Pradesh Government. He was  served with  a charge-sheet  dated March 6, 1969, in which he  was accused  of misconduct. Respondent refuted the charges. A  departmental enquiry  was held by the Divisional Forest Officer,  Mr. Malhotra,  in respect  of  the  charges framed against the respondent. Charge of misconduct was held proved whereupon  the punishing  authority served respondent with a  second show cause notice dated February 12, 1970, as contemplated by  Article 311(2)  of the  Constitution as  it stood  prior   to  its   amendment   by   the   Constitution (Fortysecond Amendment)  Act,  1976.  The  dispute  in  this appeal centres  around the  construction of  this notice No. E/1/2053 dated  February 12,  1970, and its relevant portion may be extracted:           ". .  . the  Enquiry Officer  has concluded in the      report  that   he  is  guilty  of  the  above-mentioned      charges. Hence  as a  result of  the above said charges      having been  established, why  you shall not be imposed      major penalty under the M. P. Civil Services Act ? . .           Why you will not be removed from the State Service      by imposing the abovesaid punishment ?"      After  the   respondent  replied   to  the  notice  the disciplinary-cum-punishing authority  imposed the penalty of compulsory retirement  on  the  respondent.  The  respondent questioned the validity and correctness of the punishment in Civil Suit  No. 227A/73  filed by  him in  the Court  of the Civil Judge,  Civil Court,  Class II,  Sabalgarh. The  trial Court decreed  the suit and set aside the order imposing the major  penalty   of  compulsory  retirement  and  granted  a declaration that  respondent continues in service. On appeal by the  State  of  Madhya  Pradesh,  the  Second  Additional District Judge,  Morena, set  aside the  decree of the trial court and dismissed the suit of the respondent. On appeal by the respondent  to the  High Court a learned single judge of the  Madhya   Pradesh  High  Court  allowed  the  appeal  of respondent and  set aside  the decree  made by  the District Judge and  restored the  one passed  by the trial court with the  result   that  a   declaration  was  granted  that  the respondent would  continue in  service till  the date of his superannuation. Hence  this appeal  by special  leave by the State of Madhya Pradesh.

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1247      The  High   Court  was   of  the  opinion  that  strict compliance with  Art.311(2) of  the Constitution  along with rule   15(4)(i)(b)    of   the    M.   P.   Civil   Services (Classification, Control  and  Appeal)  Rules,  1966  (’1966 Rules’ for short), must be insisted upon because it provides a  safeguard  against  arbitrary  removal  from  service  of Government  servants.  Consistent  with  this  approach  and drawing sustenance  from the decision of this Court in Union of India  & Ors.  v. K.  Rajappa Menon,(1)  it was held that unless the  disciplinary or  competent authority tentatively determines to inflict a particular penalty and specifies the particular  penalty   to  be  inflicted  on  the  delinquent Government  servant,   the  show-cause   notice  cannot   be sustained without  such a particular penalty being specified and the final order cannot be sustained unless the specified and no other penalty is imposed.      Article 311(2)  as it  stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the  punishing authority  to serve  a second show cause notice where  it is proposed after a departmental inquiry to impose on  the delinquent  Government  servant  any  of  the penalties referred to in Art. 311 so as to give a reasonable opportunity  of   making  representation   on  the   penalty proposed. Rule  15(4) (i)(b)  of the  1966 Rules  prescribes procedure to  be  followed  by  the  disciplinary  authority before imposing  punishment to the effect that the concerned authority should  give a notice setting the penalty proposed to be  imposed on  the concerned  government servant calling upon him  to submit  within 15 days of the receipt of notice or such  further time  not exceeding  15  days,  as  may  be allowed, such  representation as  he may wish to make on the proposed penalty on the basis if the evidence adduced during the inquiry  held under  rule 14.  It would thus appear that the punishing  authority has in the second show cause notice to  specify   the  punishment   which  it   tentatively   or provisionally decides  upon to impose looking to the gravity of the  charge which  is held  proved.  At  that  stage  the decision of  the punishing authority is a tentative decision and in  the very  nature of  things it must be so because an opportunity has  to be  given to  the delinquent  government servant to  make a  representation on the nature of penalty. This would  imply that  if the  delinquent  officer  in  his representation makes  out a case for a lesser punishment the disciplinary authority  would keep  an open  mind and  after applying  its   mind  to  the  representation  made  by  the delinquent government  servant,  the  authority  may  either confirm its  earlier tentative  decision or it would be open to it  to award a lesser penalty on them the one tentatively decided. 1248      Principle of  natural justice and fair play implicit in Art. 311(2)  and rule  15(4) (i)  (b) would require that the disciplinary authority  has to  take into  consideration the representation made  by the delinquent government servant in response to the notice which is a constitutional obligation, and if  the delinquent  officer is in a position to persuade by his  representation, to  so modulate  the  punishment  as would accord  with the  gravity of  the misconduct and other mitigating or  extenuating circumstances  all of  which  may enter into  the verdict  of deciding  upon the  penalty, and consequently the  disciplinary authority  would be  free  to impose a  lesser penalty than the one proposed in the second notice. This is the constitutional scheme.      If the  view that  the High  Court has  taken is  to be

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accepted that  the disciplinary  authority must  tentatively decide upon  the penalty  and specify  the  penalty  in  the second show cause notice and after taking into consideration the representation made by the delinquent government servant in response  to the  notice it  can only  either confirm the tentative decision but cannot award a lesser punishment, the exercise of  giving second  show cause  notice becomes self- defeating  and   giving   of   the   notice   inviting   the representation on  the  question  of  penalty  would  be  an exercise in  futility.  Such  an  approach  would  render  a tentative decision  as final  and the  rest being  an  empty formality. Such  could  not  be  the  underlying  object  in enacting a  constitutional mandate  for  the  protection  of government servants.      In  service   jurisprudence  for   different  types  of misconduct  various  penalties  are  prescribed  in  service rules. 1966 Rules prescribe as many as 9 penalties which can be awarded  for good  and sufficient reasons. In the list of penalties the  first three  are styled  as ’minor penalties’ and the  remaining six  are  styled  as  ’major  penalties’. Compulsory  retirement   is  one  of  the  major  penalties. Similarly,  removal  from  service  which  shall  not  be  a disqualification  for   future  appointment   in  government service and dismissal from service which shall ordinarily be a  disqualification   for  future   employment   under   the government  are   the  other   two  major   penalties.   The disciplinary  authority  keeping  in  view  the  gravity  of misconduct  committed   by  the   government  servant   will tentatively determine  the penalty  to be  imposed upon  the delinquent government  servant.  Degree  of  seriousness  of misconduct will  ordinarily determine the penalty keeping in view the  degree of  harm that each penalty can inflict upon the government servant. Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty  keeping in  view the seriousness of misconduct. But  this   is  a   tentative  decision.   On   receipt   of representation  in  response  to  notice,  the  disciplinary authority will  apply its  mind to it, take into account any extenuating  or  mitigating  circumstances  pleaded  in  the representation and finally 1249 determine what  should be penalty that would be commensurate with the  circumstances of the case. Now, if a major penalty was tentatively  decided upon  and a lesser or minor penalty cannot be  awarded on  the view  taken  by  the  High  Court because this  was not  the specified penalty, the government servant to  whom a  notice proposing major penalty is served would run the risk of being awarded major penalty because it would not  be open to award a lesser or a minor penalty than the one specified in the show cause notice. Such a view runs counter to the principle of penology. In criminal and quasi- criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend within its  fold the  minor penalty.  If a  major penalty is proposed looking  to the  circumstances of the case, at that stage, after  taking into  consideration the  representation bearing on the subjects and having an impact on the question of penalty  a minor  penalty can always be awarded. In penal statute maximum  sentence for  each offence  is provided but the matter  is within the discretion of the judicial officer awarding sentence  to award such sentence within the ceiling prescribed by  law as would be commensurate with the gravity of the  offence and  the  surrounding  circumstances  except where minimum  sentence is prescribed and Court’s discretion is by  legislation fettered.  This is  so  obvious  that  no

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authority  is  needed  for  it  but  if  one  is  needed,  a constitution Bench  of this Court in Hukam Chand Malhotra v. Union of  India(1) dealt  with this  very  aspect.  Relevant portion of  the second  show cause  notice which  was before this Court may be extracted:           ’On a  careful consideration of the report, and in      particular of  the conclusions  reached by  the Enquiry      Officer in  respect of  the charges  framed against you      the President  is provisionally of opinion that a major      penalty viz., dismissal, removal or reduction should be      enforced on you....’      Ultimately,  after   taking  into   consideration   the representation made  by  the  concerned  government  servant penalty of removal from service was imposed upon him. It was contended before  this Court that in view of the decision of the Privy  Council in  High Commissioner  for India and High Commissioner for  Pakistan v.  I. M. Lall, and Khem Chand v. Union of  India(3) it  is well  settled that  the  punishing authority must  either specify  the ’actual  punishment’  or ’particular punishment’  in the  second  show  cause  notice otherwise the notice would be bad. Repelling this contention this Court observed as under: 1250           Let  us  examine  a  little  more  carefully  what      consequences will  follow if  Art. 311(2)  requires  in      every case  that the  "exact" or "actual" punishment to      be inflicted  on the  Government servant concerned must      be mentioned  in the  show cause  notice issued  at the      second stage.  It is obvious, and Art. 311(2) expressly      says so,  that the purpose of the issue of a show cause      notice at  the second  stage is  to give the Government      servant concerned  a reasonable  opportunity of showing      cause  why   the  proposed  punishment  should  not  be      inflicted  on   him,  for   example,  if  the  proposed      punishment is  dismissal, it  is open to the Government      servant concerned  to say  in his  representation  that      even though  the charges  have been proved against him,      he does not merit the extreme penalty of dismissal, but      merits  a   lesser  punishment,   such  as  removal  or      reduction in rank. If it is obligatory on the punishing      authority to  state in  the show  cause notice  at  the      second stage  the "exact"  or  "particular"  punishment      which is  to be  inflicted, than a third notice will be      necessary  if   the  State   Government   accepts   the      representation of  the  Government  servant  concerned.      This will  be against  the very  purpose for  which the      second show cause notice was issued".           "... If  in the present case the show cause notice      had merely  stated the  punishment of dismissal without      mentioning the  other two punishments it would still be      open to  the punishing  authority to  impose any of the      two lesser  punishments of removal or reduction in rank      and no  grievance could have been made either about the      show cause notice or the actual punishment imposed".      The High  Court in  support of  its decision has relied upon K. Rajappa Menon’s case (Supra). The High Court appears to be  of the view that the decision in Rajappa Menon’s case is an  authority or  the proposition  that if  the punishing authority fails  to specify  any particular punishment to be imposed on  the Government  servant the  show  cause  notice cannot be  sustained without  such a  particular  punishment being specified.  Such was not the case before this Court in Rajappa Menon’s  case. The  contention canvassed before this Court was  that  if  disciplinary  authority  specifies  the penalty tentatively  decided upon  by it.  it would indicate

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that the  authority  has  finally  made  up  its  mind  and, therefore, the  notice would  be bad. This contention was in terms negatived  relying upon  Khem Chand’s case (Supra) and it was  observed that  the procedure which is to be followed under  Art.  311(2)  of  the  Constitution  of  affording  a reasonable opportunity  includes giving  of two notices, one at the enquiry stage and 1251 the other  when the  competent authority  as a result of the enquiry  tentatively  determines  to  inflict  a  particular punishment. It is quite obvious that unless the disciplinary or  the   competent  authority  arrives  at  some  tentative decision it  will not  be in  a position  to determine  what particular punishment  to inflict  and a  second show  cause notice  cannot   be  issued   without   such   a   tentative determination. This  is of  no assistance  in the case under discussion.      It is  thus incontrovertible  that  if  any  particular penalty is  specified as  tentatively proposed in the second show cause  notice the  disciplinary authority  after taking into consideration the representation made by the delinquent government servant  can award  that penalty  or  any  lesser penalty and in so doing Art. 311(2) will not be violated. In fact,  this  leaves  open  a  discretion  to  the  punishing authority which accords with reason, fair play and justice.      The fact situation in this appeal is that in the notice dated February  12, 1970,  the disciplinary authority stated that it  was tentatively  proposed to  impose major penalty, viz., removal  from service.  Original notice  is  in  Hindi language. Its  translation in  English language is placed on record. It  clearly transpires  from  the  notice  that  the punishing authority  tentatively proposed  to impose a major penalty of  removal from  service. Ultimately,  after taking into consideration  the representation of the respondent the disciplinary  authority   imposed  penalty   of   compulsory retirement. In  relation to  penalty of removal from service the penalty of compulsory retirement inflicts less harm and, therefore, it  is a  lesser penalty compared to removal from service. Compulsory  retirement results  in loss  of service for certain  years depending  upon the  date  of  compulsory retirement and  the normal  age of  superannuation, but  the terminal benefits are assured. In removal from service there is  a   further  disqualification   which  may   have   some repercussion on  terminal  benefits.  It  was  not  disputed before  us  that  in  comparison  to  removal  from  service compulsory retirement  is a  lesser penalty. Therefore, when in the  second show  notice major  penalty of  removal  from service was  tentatively proposed,  it did comprehend within its fold  every other  minor penalty which can be imposed on the delinquent government servant. That having been done, no exception can be taken to it.      The High Court was accordingly in error in holding that the second  show cause notice was invalid and on this ground allowing the  second appeal of the respondent, and decreeing his suit. Accordingly this appeal will have to be allowed. 1252      The next question is, what order we should make in this appeal. If  the appeal is allowed, naturally the suit of the respondent will  stand  dismissed.’  The  respondent  was  a Forest  Guard,  a  petty  servant,  serving  in  the  Forest Department of  the State. The charge against him was that he removed some  forest wood  worth about  Rs. 310.12P.  He has been in this litigation for the last 10 years. He won in the trial court and in the High Court. This appeal was preferred by the State for a decision on the question of law which may

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affect other  cases. Allowing the State appeal would clarify the legal  position and  that would serve the purpose of the State in preferring the appeal.      A welfare  State would hardly be interested in pursuing its employees  serving in  the lower  echelons of service as would inflict,  unbearable burden  on him.  Further, if  the order  by  the  High  Court  is  not  interfered  with,  the respondent would have to be reinstated in service but by the passage  of   time  he   would  have   by  now   retired  on superannuation also  and accordingly he would be entitled to his salary  for the  period  commencing  from  date  of  his compulsory retirement  to the  date of his normal retirement on superannuation. Since we are exercising our extraordinary jurisdiction under  Art. 136 of the Constitution, we are not bound to  set aside  the order  of the  High Court directing reinstatement of  the respondent but as he would now only be entitled to  his back  wages, we  quantify the  same at  Rs. 10,000/- and  direct that  the State shall pay the same with costs quantified  at Rs.  1,000/- to the respondent. Such an approach accords  with the demands of social justice, reason and fair  play. [See  Punjab Beverages  Pvt. Ltd.  v. Suresh Chand & Ors.(1)]      The State  shall pay  the amount  herein directed to be paid within  two months  from today and the respondent shall be entitled  to his  terminal benefits  from the date of his retirement on superannuation.      This appeal stands disposed of accordingly. S.R.                                         Appeal allowed. 1253