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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: BIDYABHUJSHAN MOHAPATRA

DATE OF JUDGMENT: 19/10/1962

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1963 AIR  779            1963 SCR  Supl. (1) 648  CITATOR INFO :  R          1967 SC1353  (15)  R          1969 SC 966  (8)  R          1970 SC 679  (8)  RF         1972 SC1975  (9)  F          1974 SC1589  (12)  RF         1976 SC 232  (18)  RF         1977 SC2411  (19)  F          1989 SC1185  (20,23,25)  RF         1989 SC1854  (20)

ACT: Public    Servant-Disciplinary   proceedings-Two    parallel procedures available-Right of appeal under one but not under the  other-If discriminatory-Punishment-If court can  inter- fere  with-Orissa Discipilinary  Proceeding  (Administrative Tribunal)   Rules,  1951-Civil   Services   (Classification, Control and Appeal) Rules, 1930-Constitution of India, Arts. 14, 309, 311.

HEADNOTE: The  respondent,  a non-gazetted permanent employee  of  the State, was charged with (i) having received illegal gratifi- cation  on  five  occasions and  (ii)  being  possession  of property  disproportionate  to his  income.   The  Governor. referred is case to the Administrative Tribunal  constituted under   s.   4   (1)  of   the   Disciplinary   Proceeding,; (Administrative Tribunal) Rules which had been framed  under Art. 309 of tile Constitution.. The Tribunal found four  out of  the  five heads under the first charge  and  the  second charge   proved  and  recommended  the  dismissal   of   the respondent.   The  Governor, after giving the  respondent  a reasonable  opportunity. to ,how cause against the  proposed punishment,  dismissed  him.  The respondent  filed  a  writ petition  before  the High Court challenging  the  order  of dismissal  on  the  ground  that  the  Tribunal  Rules  were discriminatory and that in holding the enquiry the  Tribunal had  violated  the rules of natural  justice.   Following  a previous  decision  the High Court held  that  the  Tribunal Rules were discriminatory but since that decision was  under

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appeal  before the Supreme Court, it proceeded to deal  with the second ground.  It held that the second charge and  only two head,, of the first charge were established and directed the  Governor  to reconsider whether on the basis  of  these charges the punishment of dismissal should be maintained. Held,  that  the  Tribunal Rules  were  not  discriminatory. There were simultaneously in existence two sets of  parallel rules, viz. the Tribunal Rules and the Classification  Rules and proceedings could be taken against the respondent  under either  of  the at the discretion of the Governor.   But  in substance there  649 is  no  difference in the procedures prescribed by  the  two sets of rules.  Mere adoption of one procedure in preference to  another  permissible  procedure  does  not  justify   an inference ;of unlawful discrimination.  The fact that  under the Classification Rules there is a right of appeal from  an order  imposing a penalty whereas there is no such right  of appeal under the Tribunal Rules against the order passed  by the  Governor  was not a ground for sustaining the  plea  of unlawful discrimination. Sardar Kapur Singh v. Union of India, [1960] 2 S. C. R.  569 and Jagannath Prasad v. State of U. P., A. 1. R. 1961 S.  C. 1245, followed State of Orissa v. Dhirendranath Das, A. I. R. (1961) S.   C. 1715, distinguished. Held, further that the High Court had no power to direct the Governor to reconsider the question of punishment.  The High Court has only to see whether the constitutional  guarantees have been violated; but it is not concerned with the penalty imposed, provided it is justified by the rules.  The reasons which induce the punishing authority are not justiciable nor is  the penalty open to review by the Court.  If  the  order can   be  supported  on  any  finding  as  ’to   substantial misdemeanour  for  which  the  punishment  can  lawfully  be imposed  it  is not for the court to consider  whether  that ground   alone  would  have  weighed  with   the   authority dismissing the public servant.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 213 of 1962. Appeal from the judgment and order dated February 17,  1959, of  the  Orissa High Court, Cuttack in O.J. C.  No.  216  of 1957. R.   Ganapathy lyer and P. D. Menon, for the appellants. G.   B.  Pai,  B. Parthasarthy, J. B. Dadachanji and  O.  C. Mathur, for, the respondent. 1962.  October 19.  The judgment of the Court was  delivered by SHAH,  J.-Bidyabhushan  Mohapatra  hereinafter  called  ’the respondent’-was a permanent 650 non-gazetted  employee  of the State of Orissa  in  the  Re- gistration Department and was posted at the material time as a  Sub-Registrar at Sambalpur.  Information was received  by the  Government of the State of Orissa that  the  respondent was  habitually receiving illegal gratification and that  he was  possessed of property totally disproportionate  to  his income.  The case of the respondent was referred by order of the  Governor  of  Orissa  to  the  Administrative  Tribunal constituted  under  r.4(1) of the  Disciplinary  Proceedings (Administrative Tribunal) Rules, 1951 framed in exercise  of the  powers conferred by Art. 309 of the Constitution.   The

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Tribunal  held an enquiry in the presence of the  respondent on two charges (1) relating to five specific heads  charging the  respondent with having received  illegal  gratification and (2) relating to possession of means disproportionate  to his income as a Sub-Registrar.  The Tribunal held that there was reliable evidence to support four out of the five  heads in  the  first charge ’of corruption’ and  also  the  charge relating  to  possession of means  disproportionate  to  the income and recommended that the respondent be dismissed from service.   The  finding  of the-  Tribunal  was  tentatively approved  by the Governor of Orissa and the  respondent  was called  upon  to show cause why he should not  be  dismissed from service as recommended.  The respondent made a detailed submission in rejoinder and contended, inter alia, that  the Tribunal  held the enquiry in a manner contrary to rules  of natural  justice.   After  consulting  the  Public   Service Commission  the Governor of Orissa by order dated  September 26,  1957,  directed that the respondent be  dismissed  from service.  The respondent then applied to the High Court of Orissa   by  petition  under  Arts.  226  and  227  of   the Constitution.  inter alia, for a writ quashing the  "’entire proceedings  before the Tribunal beginning from the  charges and culminating in the order of dismissal" and directing the State of Orissa to forbear from giving effec to the order of dismissal dated September 26, 1957,                             651 and for a declaration that he be deemed to have continued in his post as Sub-Registrar. In support of his petition the respondent submitted that the order  of dismissal was void because the rules  relating  to the  holding  of  an  enquiry  against  non-gezetted  public servants,     called    the     Disciplinary     Proceedings (Administrative  Tribunal) Rules, 1951. were  discriminatory and that in holding the enquiry against him the Tribunal had violated the rules of natural justice.  Following their view in  Dhirendranath Das v. State of Orissa(1), the High  Court held that the impugned rules were discriminatory and on that account void, and that the respondent was entitled to a writ declaring that the order of dismissal was inoperative.   As, however,  the  case of Dhirendranath Das(1) was  carried  in appeal to this Court, the High Court proceeded to  deal-with the  second  submission.   The  High  Court  held  that  the findings  of  the Tribunal on charges 1(a) and  1  (e)  were vitiated  because  it had failed to "observe  the  rules  of natural  justice",,  but  they held  that  the  findings  on charges 1(c), 1(d) and charge (2) were supported by evidence and  were  not shown to be vitiated because  of  failure  to observe  the  rules  of natural  justice.   The  High  Court accordingly  directed that if this Court disagreed with  the Dhirendra  nath Das’s case(1), "the findings in  respect  of charges  1(a) and 1(e) be set aside as being opposed to  the rules  of  natural justice but the findings  in  respect  of charges 1(c) and 1(d) and Charge (2) need not be disturbed", and "that it would then be left to the Government to  decide whether,  on the basis of those charges, the  punishment  of dismissal  should  be maintained or else  whether  a  lesser punishment would suffice". "The  State  of  Orissa  has appealed  to  this  Court  with certificate of fitness granted by the High Court under  Art. 132  of the Constitution.  The High Court  in  Dhirendranath Das’s case(1) had held that at the material time there  were in operation two sets of (1)  I. L. R. (1958) Cuttack 11. 652 rules   governing  enquiries  against  non-gazetted   public

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servants : (i) the Disciplinary Proceedings  (Administrative Tribunal)  Rules, 1951 (called the Tribunal Rules) and  (ii) the  Civil  Services (Classification,  Control  and  Appeal) Rules, 1930 with the subsidiary rules framed thereunder such as  the Bihar and Orisa Subordinate Service  Discipline  and Appeal Rules, 1935 (collectively called the  Classification Rules),  and these two sets of rules provided for  different punishments  and justified commencement of  proceedings  for different  reasons, and whereas there was a right of  appeal against   the   order  of  a  departmental   head   imposing punishment,  under  the Classification Rules there  was  no. right of appeal. against the order of the Governor, imposing punishment,  under  the  Tribunal  Rules.   The  High  Court observed "’the main difference between the two sets of rules arises  from (1) the nature of the punishment proposed,  and (2)  the  right  of appeal.  Under the  Tribunal  Rules  the findings  of the Tribunal including the proposed  punishment are  submitted  to  Government  are in  the  nature  of  a recommendation  which the Government may or may not  accept. But  the Government are bound to consult the Public  Service Commission  before they pass final orders.  Government  have the  power  to impose the penalty of  compulsory  retirement under  sub-r. (2) of r. 8 of the Tribunal rules in  addition to   the  other  penalties,  described  in  r.  49  of   the Classification  rules.   The right of  appeal  is  expressly barred  by sub-rule (3) of r. 9. The Tribunal Rules  do  not say  that every case against a Government  servant,  whether gazetted  or non-gazetted, in which the acts  of  misconduct alleged  are any of those described in sub-rule (1) of r.  4 of  the  said Rules, should be invariably  referred  to  the Tribunal.   Thus, if there are two  non-gazetted  Government servants  both  of  whom have committed  identical  acts  of misconduct such as failure to discharge duties properly,  it is  left to the unfettered discretion of the  Government  to refer the case of one of them to the  653 Tribunal for enquiry under the said rule-,, and to allow the enquiry  against  the  other  public  servant  to  be   held departmentally by his superior Officers under the provisions of the Classification Rules.  The former public servant will have no right of appeal, but he will leave the  satisfaction of  his  case  being  enquired into  not  by  his  immediate superiors,  but  by an independent  authority,  namely,  the Member,  Administrative Tribunal, whose recommendation  will be  subjected  to  further scrutiny by  the  Public  Service Commission  and  the final authority to pass  any  order  of punishment  will  be  the  Government.   The  latter  public servant  however, though denied the advantage of having  his case  investigated  by independent authorities, is  given  a statutory  right of appeal.  The procedure laid down in  the Classification   Rules  may  be  described  as  the   normal procedure   for  taking  disciplinary  action  against   the Government  servants, whether gazetted or non-gazetted;  and the  procedure  laid  down  in the  Tribunal  Rules  may  be described  as  a drastic procedure".  The  High  Court  then observed after considering the arguments advanced at the Bar "that  so  far  as  non-gazetted  Government  servants   are concerned  the  provisions of the Tribunal  Rules  are  less advantageous   and   more   drastic  than   those   of   the Classification  Rules  and the conferment of  an  unfettered discretion  on the Executive to apply either of these  rules for the purpose of taking disciplinary action against a non- gazetted  Government  servant would offend Art.  14  of  the Constitution".  Accordingly the High Court quashed the order of  dismissal passed against the public  servant  concerned.

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Against the order of the High Court, an appeal was filed  to this  Court.  In this Court counsel for the State of  Orissa in that appeal made no attempt to challenge the  correctness of  the  decision  of the High Court,  on  the  question  of discrimination.   The Tribunal Rules and the  Classification Rules  were not even included in the Books prepared for  the use  of  this Court at the hearing.  The  only  argument  in support of the appeal 654 advanced  by  counsel  for the State was  that  the  Classi- fication  Rules,  were  not in operation  when  enquiry  was directed against the delinquent public servant and the only rules  under  which the enquiry could be directed  were  the Tribunal Rules and therefore by directing an enquiry against the  delinquent  public servant the guarantee of  the  equal protection  clause  of the Constitution  was  not  violated. This   Court   held  that  if  two  sets   of   rules   were simultaneously  in  operation at the material time,  and  by order  of  the Governor, enquiry was  directed  against  the respondent  under  the  Tribunal  Rules  which  were   "more drastic"  and  "Prejudicial to the interests of  the  public servant",  a  clear case of discrimination  arose,  and  the order  directing the enquiry against the public servant  and the subsequent proceedings were liable to be struck down  as infringing   Art.  14  of  the  Constitution.   This   Court accordingly   dismissed  the  appeal  of  the   State.    An application  for review of ,judgment was then filed  by  the State,  and  it  was contended that as the  Bihar  &  Orissa Subordinate  Services Discipline & Appeal Rules,  1935  were not  statutory rules and they did not constitute "law",  and that   there  had  been  some  misapprehension  about   "the submission  made  at the Bar which had led  to  an  apparent error on the face of the record".  Even at that stage it was not  urged  that the view taken by the High Court  that  the Tribunal  Rules  were  "more drastic and  prejudicial  to  a public  servant against whom an enquiry was directed  to  be made"  could  not on a true interpretation of the  rules  be sustained.   This Court rejected the application for  review of judgment. In  this  appeal copies of the Bihar  &  Orissa  Subordinate Services   Discipline   &  Appeal  Rules,   1935   and   the Disciplinary  Proceedings (Administrative  Tribunal)  Rules, 1951  are  produced.   Under the  latter  rules  which  were referred  to  as  the  Tribunal  Rules  ’misconduct  in  the discharge of official duties  655 is  defined  in  Rule 2(c),  "failure  to  discharge  duties properly’  in Rule 2(d) and ’personal immorality’  in  Rule, 2(e).  By Rule 3(4) the Tribunal constituted by the Governor is  authorised subject to the directions of the Governor  to co-opt  an  Assessor  to assist it, such  Assessor  being  a departmental officer higher in rank in the department to the official  charged.  By Rule 4 the Governor is authorised  to refer  to the Tribunal cases relating to public servants  in respect of matters involving-               (a)   misconduct in the discharge of  official               duties;               (b)   failure to discharge duties properly;               (c)   irremediable  general inefficiency in  a               public   servant  of  more  than  ten   years’               standing: and               (d)   personal immorality. By  Rule 7 the Tribunal is required to make such enquiry  as may be deemed appropriate and in conducting the enquiry  the Tribunal  is  to be guided by rules of equity  and  natural.

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justice  and not by formal rules relating to  procedure  and evidence.   Clause  (3)  of  Rule  7  provides  that  before formulating  its recommendations the Tribunal shall  give  a summary of the charges against the official and shall if  he is  not absconding or untraceable, give him  an  opportunity orally or in writing, within the time to be specified by the Tribunal to offer his explanation in respect of the charges. Rule  8 provides that after completing its  proceedings  the Tribunal  shall make a record of the case in which it  shall state the charges, the explanation and its own findings, and it shall, where satisfied, that punishment be imposed,  also formulate its recommendations about the punishment.  Rule  9 provides  that  the  Governor  may,  after  considering  the recommendations of the Tribunal, pass such order of 656 punishment as he may deem appropriate.  By el. (3) of Rule 9 an  appeal  against the order of the Governor  is  expressly prohibited.   By  el.  (iii) of Rule 1. of  the,  Bihar  and Orissa Subordinate Services Discipline & Appeal Rules,  1935 it is provided that the Rules shall apply to all members  of Subordinate Services under the administrative control of the Government  of  Bihar, and Orissa, except  those  for  whose appointments and conditions of employment special  provision was  made by or under any-law for the time being  in  force. By  Rule  2  the penalties specified in  the  order  may  be imposed "for good and sufficient reasons".  The procedure to be  followed  before  an  order  of  dismissal,  removal  or reduction is passed, is the same as is set out in Rule 55 of the  Civil  Services (Classification,  Control  and  Appeal) Rules.    It  is  further  directed  that  in   drawing   up proceedings  and  conducting  departmental  enquiries,   the instructions  contained in rr. 172 to 178 of the  Bihar  and Orissa Board’s Miscellaneous Rules, 1928, are to be followed except where more detailed instructions have been framed  by the  Department concerned.  Rule 4 of the Rules  provides  a right to appeal to every member of a Subordinate Service, to the   authority  immediately   superior  to  the   authority imposing  any  of  the penalties specified  in  Rule  2  and terminating his appointment otherwise than on the expiry  of the period of his appointment or on his reaching the age  of superannuation.  Rule 55 of the Civil Services  (Classifica- tion, Control and Appeal) Rules which is referred to in  the note  to Rule 2, in so far as it is material,  provides  for information  being given in writing of the grounds on  which it is proposed to take action against the public servant and to afford him an adequate opportunity of defending himself : the grounds on which it is proposed to take action are to be reduced  to the form of a definite charge or charges,  which have to be communicated to the person charged together  with a statement of any allegation on which each charge is  based and of any other circumstances                             657 which  it is proposed to take into consideration in  passing orders on the case : the public servant concerned has within a  reasonable time, to put in his written statement  of  his defence  and  to  state whether he desires to  be  heard  in person;  if he so desires, or if the authority concerned  so directs,  an  oral inquiry is to be held, at  which  inquiry oral  evidence  as  to such of the allegations  as  are  not admitted is to be led and the person charged is entitled  to cross-examine the witnesses, to give evidence in person  and to  have  such witnesses called as he may  desire,  provided that the officer conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a  witness.  Rule 55 further provides that  the  proceedings

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shall  contain  a sufficient record of the  evidence  and  a statement  of the findings and the grounds thereof and  that all or any of the provisions of the rule, may in exceptional cases, for special and sufficient reasons to be recorded  in writing,  be waived where there is difficulty  in  observing the  requirements of the rule and those requirements can  be waived without injustice to the person charged. It is manifest that whereas detailed provisions are made  in the Tribunal Rules as to the grounds on which an enquiry may be  directed against a public servant for misconduct in  the discharge  of official duties, failure to  discharge  duties properly, general inefficiency or personal immorality, under the  Classification Rules for "good and sufficient  reasons’ penalties  may  be  imposed.  The  expression  used  in  the Classification  Rules is somewhat vague, but whatever  other ground  it  may  include, it does in  our  judgment  include charges  described  in Rule 4 of the  Tribunal  Rules.   The procedure  to be followed in the enquiry under the  Tribunal Rules  is  not described in any detail.  But it  is  clearly indicated,  that the public servant must be given a  summary of  the  charges  against  him  and  he  must  be  given  an opportunity to submit his explanation orally or in  writing, in respect 658 of  the charges, and that the Tribunal must in  holding  the enquiry be guided by rules of natural justice and equity, in the  matter  of  procedure  and  evidence.   The   procedure prescribed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules which is assimilated by virtue  of the note under Rule 2 into the Classification Rules, is  set out  in  greater detail, but is in substance  not  different from the procedure under Rule 7 of the Tribunal Rules. It  is  true  that the Tribunal Rules do  not  set  out  the punishments which may be imposed whereas the  Classification Rules  set  out the various punishments such  as-,  censure, withholding  of increments or promotion, including  stoppage at  an  efficiency bar, reduction to a lower post  or  time- scale or to a lower stage in a time-scale, recovery from pay of  the  whole  or  part of any  pecuniary  loss  caused  to Government   by  negligence  or  breach  of   order,   fine, suspension, removal from the Civil Service, which does not disqualify  from  future employment and dismissal  from  the Civil  Service  which ordinarily  disqualifies  from  future employment.   But failure to enumerate the  penalties  which may be imposed also does not indicate any variation  between the Tribunal Rules and the Classification Rules.  Rule 2  of the  Classification  Rules  merely  enumerates  the  diverse punishments which may be imposed.  This list is  exhaustive, and  no  penalties  other than  those  enumerated  are  ever imposed upon delinquent public servants.  Under the Tribunal Rules  there is no enumeration of penalties, but it is  left to  the  Governor in his discretion, after  considering  the report of the Tribunal to select the appropriate  punishment having regard to the gravity of the delinquency. This  Court in Sardar Kapur Singh v. The Union  of  India(1) has  held  that  even if the procedure  prescribed  under  a particular method adopted for enquiry is more detailed  than that   prescribed   by  Rule  55  of  the   Civil   Services (Classification, Control and (1)  [1960] 2 S.C.R. 569.  659 Appeal) Rules, if in accordance with both the sets of  rules notice has to be given of charges and the materials on which the  charges  are sought to be sustained and if  the  public servant  so  desires  he  can demand  an  oral  hearing  and

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examination  of witnesses, it cannot be said that  there  is any discrimination.  In Sardar Kapur Singh’s case(1) it  was contended that an enquiry under the procedure prescribed  by Public   Servants   (Inquiries)  Act,  1850  was   void   as discriminatory  when an enquiry could have been  made  under the  procedure prescribed by rule 55 of the  Civil  Services Classification, Control and Appeal) Rules.  This Court  held that  the  procedure  under Rule 55 of  the  Civil  Services (Classification, Control and Appeal) Rules was described  in terms  elastic, but the procedure under the Public  Servants (Inquiries) Act, 1850 not being substantially different,  an enquiry  directed under the latter procedure and  not  under Rule  55 of the Civil Services (Classification, Control  and Appeal)  Rules did not result in any discrimination  leading to  the  invalidation  of proceedings  started  against  the public  servant under the Public Servants  (Inquiries)  Act, 1850.   It was observed in that case that in the absence  of proof of any prejudice to the public servant concerned, mere adoption   of  one  procedure  in  preference   to   another permissible  procedure  will  not justify  an  inference  of unlawful discrimination. Under  the Classification Rules there is a right  of  appeal from  an order imposing a penalty passed by  a  departmental head to the latter’s superior whereas there is no such right of appeal against the order passed by the Governor  imposing penalty  upon  a public servant.  But this  also  cannot  be regarded   as  a  ground  sustaining  a  plea  of   unlawful discrimination.  In Jagannath Prasad v. State, _of U. P.(2), the  question whether an enquiry directed against  a  public servant  under  the  Rules of the  State  of  Uttar  Pradesh similar to the Orissa Tribunal Rules which provided no right of appeal from the order of the Governor (1) [1960] 2 S. C. R. 569. (2) [1962] 1 S.C. R. 151. 660 imposing  punishment  and  not under Rules  similar  to  the Orissa Classification Rules which provided a right of appeal against  an  order  dismissing  a  public  servant  in   the employment of the State of Uttar Pradesh, was discriminatory fell  to  be considered, and it was held  that  the  enquiry under the Tribunal Rules was not discriminatory.  The public servant concerned in that case was a police officer  against whom an enquiry was commenced before the Constitution, which resulted  after the commencement of the Constitution  in  an order of dismissal.  The enquiry against the public  servant was  directed  under  the  U.  P.  Disciplinary  Proceedings (Administrative   Tribunal)  Rules,  1947  by   a   Tribunal appointed  by the Governor of Uttar Pradesh.  At  this  time there  were in operation also the U. P.  Police  Regulations which  were  framed  under  the  Indian  Police  Act.  which authorised the Governor to dismiss a Police Officer employed in the State.  The Tribunal Rules of the State of U. P. were framed  in exercise of the powers vested under s. 7  of  the Police Act.  The Police Regulations framed by the Government of  U.  P.  and Tribunal Rules in so far as  they  were  not inconsistent   with  the  provisions  of  the   Constitution remained  in operation by virtue of Art. 313 even after  the commencement of the Constitution.  Therefore at the material time  there  were two sets of rules for holding  an  enquiry against  ’a  police officer.  The Police  authorities  could direct  an  enquiry  under the Police  Regulations  and  the procedure  in that behalf was prescribed by Regulation  490; it was also open to the Governor of the State to direct  an enquiry  against a public servant under Rule 4 of the U.  P. Disciplinary  Proceedings (Administrative  Tribunal)  Rules.

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Relying  on the existence of the two distinct sets of  rules simultaneously,   and   the  power  vested  in   the   State authorities  to commence enquiry against the Police  Officer under  either  of  these two sets of  rules  in  respect  of charges  set  out in Rule 4 of the Tribunal  Rules,  it  was urged that in commencing  661 an  enquiry against the public servant concerned  under  the Tribunal  Rules  discrimination  was practised  and  he  was deprived  of the guarantee of equal protection of laws.   It was   held   that  even  after  the  commencement   of   the Constitution,  continuation  of  the  enquiry  against   the delinquent  public  servant  under the  U.  P.  Disciplinary Proceedings  (Administrative Tribunal) Rules, 1947  did  not result   in  any  unlawful  discrimination  infringing   the protection of Art. 14 of the Constitution.  Under the Police Regulation  an  appeal  did lie from  a  subordinate  police authority to a superior authority whereas no appeal lay from the   order   passed   by   the   Governor   accepting   the recommendations  of Tribunal.  In considering the effect  of the  decision in State of Orissa v. Dhirendranath Das(1)  on which reliance was placed on behalf of the appellant in that case, it was observed that the case was not an authority for the  proposition that where out of the two sets of rules  in force  it  is open to the authorities to resort to  one  for holding  an  enquiry against a public servant  charged  with misdemeanor and if one of such set of rules does not provide for  a right of appeal against an order passed  against  the public  servant  and the other set provides for a  right  of appeal,  unlawful  discrimination results:  the  only  point decided in state of Orissa v. Dhirendranath Das case(1)  was that  at the material time there were in existence two  sets of rules simultaneously in operation, it being accepted that the Tribunal Rules under which the enquiry was made  against the public servant were " more drastic" and "prejudicial  to the public servant".  The Court then proceeded to hold  that the  procedure  under  the U.  P.  Disciplinary  Proceedings (Administrative  Tribunal)  Rules, 1947  and  the  procedure under   the  enquiry  commenced  under  the  U.  P.   Police Regulations  were substantially the same and the  mere  fact that  there  was  a right of appeal  against  the  order  of penalty imposed by a, subordinate police authority and there was  no  such  right  against  the  order  of  the  Governor accepting the recommendations (1) A.I.R. (196) S.C. 1715. 662 of the Tribunal did not make any discriminations  justifying this  Court  in striking down the Tribunal  Rules  as  being discriminatory  under Art. 14 of the Constitution.   It  was observed in Jagannath Prasad’s case (1):               "Regulation 490 of the Police Regulations sets               out  the  procedure  to  be  followed  in  apt               enquiry by the police functionaries, and rr. 8               and  9  of  the Tribunal  Rules  set  out  the               procedure  to  be followed  by  the  Tribunal.               There is no substantial difference between the               procedure  prescribed  for the  two  forms  of               enquiry.   The enquiry in its true  nature  is               quasi-judicial.  It is manifest from the  very               nature of the enquiry that the approach to the               materials  placed  before the  enquiring  body               should  be  judicial.   It  is  true  that  by               Regulation  490,  the oral evidence is  to  be               direct,  but even under r. 8 of  the  Tribunal               Rules,, the Tribunal is to be guided by  rules

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             of equity and natural justice and is not bound               by  formal  rules  of  procedure  relating  to               evidence.  It was urged that whereas the  tri-               burnal  may admit on record evidence which  is               hear-say,  the oral evidence under the  Police               Regulations must be direct evidence and  hear-               say  is  excluded.  We do not think  that  any               such  distinction was intended.   Even  though               the  Tribunal  is not bound  by  formal  rules               relating to procedure and evidence, it  cannot               rely  on  evidence which  is  purely  hearsay,               because to do so in an enquiry of this  nature               would  be  contrary  to rules  of  equity  and               natural    justice.    The   provisions    for               maintaining  the record and calling  upon  the               delinquent   public  servant  to   submit   Is               explanation  are substantially the same  under               Regulation  490 of the Police Regulations  and               r. 8 of the Tribunal Rules.  It is urged  that               under the Tribunal Rules, there is a departure               (1) [1962] 1 S.C.R. 151                663               in  respect  of  important  matters  from  the               Police Regulations which render the  Tribunal               Rules  prejudicial to the person against  whom               enquiry  is held under those rules.   Firstly,               it  is submitted that there is. no.  right  of               appeal  under the Tribunal Rules as  is  given               under  the Police Regulations; secondly,  that               the Governor is bound to act according to  the               recommendations  of the Tribunal and  thirdly,               that  under  the Tribunal Rules, even  if  the               complexity  of a case under enquiry  justifies               engagement  of  counsel to assist  the  person               charged,  assistance  by counsel  may  not  be               permitted   at  the  enquiry.    These   three               variations,  it  is urged, make  the  Tribunal               Rules not only discriminatory but  prejudicial               as well to the person against whom enquiry  is               held  under  these Rules.  In our  view,  this               plea cannot be sustained.  The Tribunal  Rules               and  the Police Regulations in so far as  they               deal  with enquiries against  police  officers               are promulgated under s. 7 of the Police  Act,               and neither the Tribunal Rules nor the  Police               Regulations provide an appeal against an order               of  dismissal or reduction in rank  which  the               Governor  may  pass.  The fact that  an  order               made by a police authority is made  appealable               whereas  the order passed by the  Governor  is               not  made appealable is not a ground on  which               the  validity  of the Tribunal  Rules  can  be               challenged.   In either case, the final  order               rests with the Governor who has to decide  the               matter himself.  Equal protection of the  laws               does  not  postulate equal  treatment  of  all               persons without discrimination to all  persons               similarly situated.  The power of the Legisla-               ture to make a distinction between persons  or               transactions  based on a real differential  is               not taken away by the equal protection clause.               Therefore  by  providing- a  right  of  appeal               against the order of police authorities acting               under the Police Regulations imposing               664

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             penalties  upon a member of the police  force,               and by providing no such right of appeal  when               the  order  passed  is  by  the  Governor,  no               discrimination  inviting  the  application  of               Art. 14 is practised." The  plea that there was discrimination because there was  a right of appeal against an order imposing penalty under  one set  of  rules,  and  no such right  under  the  other,  was rejected in Jagannath Prasad v. State of U. P. (1).  It must therefore  be held that the existence of a right  of  appeal against the order of an administrative head imposing penalty and  absence of such a right of appeal against the order  of the  Governor under the Tribunal Rules, does not  result  in discrimination contrary to Art. 14 of the Constitution. The  High Court has held that there was evidence to  support the findings on heads (c) & (d) of Charge (1) and on  Charge (2).  In respect of charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by  the Governor.   In respect of charges 1(a) and 1(e) in the  view of the High Court "the rules of natural justice had not been observed".    The   recommendation  of  the   Tribunal   was undoubtedly  founded on its findings on charges 1(a),  1(e), 1(c),  1(d)  and  Charge (2).  The High  Court  was  of  the opinion  that the findings on two of the heads under  Charge (1)  could  not  be sustained, because in  arriving  at  the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice".  It is  not necessary  for  us to consider whether the  High  Court  was right  in  holding  that the findings  of  the  Tribunal  on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the (1)  [1962] 1. S.C.R. 151 order  of  the  High  Court  Directing  the  Government   to reconsider the question of punishment cannot, for reasons we Will  Presently  set out,, be sustained.  If the  order of dismissal was based on the findings on charges 1(a) and 1(e) alone  the Court would have jurisdictions declare the  order of  dismissal  illegal but when the  findings  the  Tribunal relating  to the two of five a of the first charge  and  the second  charge was found, not liable to be interfered.  with by the ,High ’Court and those findings established that  the respondent  was prima facie guilty of grave delinquency,  in our  view  ,  the  High Court had no  power  to  direct  the Governor  of  Orissa to reconsider the order  of  dismissal. The constitutional guarantee afforded to a public servant is that  he shall not be dismissed or removed by  an  authority subordinate  to that by which he was appointed, and that  he shall  not be dismissed or removed or reduced in rank  until he has been given a reasonable opportunity of showing  cause against  the action proposed to be taken in regard  to  him. The reasonable opportunity contemplated has manifestly to be in  accordance with the rules framed under Art. 309  of  the Constitution.  But the Court in a case in which an order  of dismissal of a public servant is impugned, is not  concerned to  decide  whether  the sentence imposed,  provided  it  is justified by the rules, is appropriate having regard to  the gravity of the misdemeanour established.  The reasons  which induce the punishing authority, if there has been an enquiry consistent  with the prescribed rules, is  not  justiciable: nor is the penalty open to review by the Court.  If the High Court  is satisfied that if some but not all of the  finding the Tribunal were "unassailable", the order of the  Governor

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on whose powers by the rules no restrictions in  determining the  appropriate punishment are placed, was final,  and  the High  Court  had no jurisdiction to direct the  Governor  to review  the  penalty, for as we have  already  observed  the order  of  dismissal passed by a competent  authority  on  a public servant., if the 666 conditions  of  the  constitutional  protection  have   been complied  with, is not justiciable.  Therefore if the  order may   be  supported  on  any  finding  as   to   substantial misdemeanour  for  which  the  punishment  can  lawfully  be imposed,  it is not for the Court to consider  whether  that ground  alone  would  have weighed  with  the  authority  in dismissing   the   public  servant.   The   Court   has   no jurisdiction  if the findings of the enquiry officer or  the Tribunal  Prima  facie make out a case of  misdemeanour,  to direct  the  authority to reconsider that order  because  in respect of some of the findings but not all it appears  that there  had been violation of the rules of  natural  justice. The  High Court was, in our judgment, in error in  directing the Governor of Orissa to reconsider the question. The  appeal must therefore be allowed and the  order  passed by  the  High  Court  set  aside.   Having  regard  to   the circumstances  of  the case, there will be no  order  as  to costs in this Court and the High Court. Appeal allowed.  667