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PETITIONER: BRIJ NANDAN KANSAL

       Vs.

RESPONDENT: STATE OF U.P. & ANR.

DATE OF JUDGMENT26/02/1988

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR  908            1988 SCR  (3)  79  1988 SCC  Supl.  761     JT 1988 (1)   443  1988 SCALE  (1)436

ACT:      Service matter-Challenging order of dismissal-Denial of reasonable opportunity  of defence  contemplated by  Article 311(2) before  its amendment-Whether Administrative Tribunal has power  to  reappraise  evidence  and  record  subsequent findings to  hold that evidence is not sufficient to sustain charges against government servant involved.

HEADNOTE: %      The appellant was in Government service. On a number of charges framed  against him,  the State  government referred his case  to the  Administrative Tribunal  for  enquiry.  In respect of  the  six  charges  against  the  appellant,  the Tribunal recorded  findings that  the first  charge was  not proved but  it recorded  findings against  the appellant  in respect of the remaining charges. The Governor issued notice with a copy of the findings of the Tribunal to the appellant to show  cause why he should not be dismissed. The appellant submitted reply  to the showcause notice, which was referred to  the   Tribunal  for   its  consideration.  The  Tribunal submitted a report dated July 7, 1971, recording the finding that there  was no convincing evidence to uphold the charges framed against  the appellant. The State Government referred the matter  to the Legal Remembrancer for opinion. The Legal Remembrancer opined  that there  was sufficient  evidence on record to uphold charges 2 to 5 against the appellant, which were of  common pattern to the effect that the appellant had claimed travelling  allowance at  the rate  of  first  class railway fare without having actually travelled in that class on  four   different  occasions.   The  Governor   thereupon disregarding the  findings  of  the  Tribunal  issued  order dismissing the appellant. The appellant challenged the order of dismissal  by a writ petition in the High Court. The High Court (Single  Judge) allowed  the writ petition and quashed the order  of dismissal.  The respondent-State  preferred  a Letters Patent  appeal. The Division Bench of the High Court allowed the  appeal and  set aside  the order  of the Single Judge of the High Court. The appellant then moved this Court for relief by this appeal.      Allowing the appeal, the Court,

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80 ^      HELD:  After   scrutiny  of  the  two  reports  of  the Administrative  Tribunal   and  the   note  of   the   Legal Remembrancer, the  Court found  that the  view taken  by the Tribunal in  its subsequent  report dated  July 7, 1971, was positive in  nature that there was no convincing evidence to sustain the charges 2 to 5 against the appellant. [84B]       There  was no  justification for the view taken by the High Court. The Tribunal was the inquiring authority. In its initial report  dated May  7, 1970, it had recorded findings against the  appellant, but  when the  Governor referred the appellant’s reply  to the  show-cause notice to the Tribunal for reconsideration  of the  matter, it  recorded a positive finding that there was no convincing evidence to support its earlier  findings.   The  Tribunal   had  acted  within  its jurisdiction in  reappraising the  evidence in  the light of the appellant.  The State  Government  issued  the  impugned order of  dismissal on the basis of the opinion of the Legal Remembrancer without  recording any reasons for disregarding the findings  of the Tribunal. If the State Government chose to pass  the order  of dismissal, in all fairness, it should have recorded reasons for the same, and in order to afford a reasonable opportunity  to the  appellant, it  was necessary for the  Government to  communicate to  him the  reasons for disagreement with  the Tribunal’s  report. The report of the legal Remembrancer  on the basis of which the Government has passed the  impugned order,  had never  been communicated to the appellant  and he  was denied  opportunity to  meet  the same.  Article   311(2)  before   its   amendment   by   the Constitution    (forty-second    Amendment)    Act,    1975, contemplated reasonable  opportunity of  defence even at the stage of  show-cause notice.  The appellant  had been denied opportunity of  being  heard  at  the  stage  of  show-cause notice. [84E-H; 85A-B;F]      The Tribunal  in its  report dated  July  7,  1971  had categorically  recorded   the  finding  that  there  was  no evidence on  record to  prove the  charge that the appellant had not  purchased 1st  class tickets in advance relating to the journeys in question. The Tribunal had observed that the evidence raised  suspicion against  the appellant  but  mere suspicion was  not sufficient to hold that the charges stood proved. The Legal Remembrancer, ignoring the findings of the Tribunal, concluded  that the  evidence on record had proved charges  2   to  5.   The  entire   approach  of  the  Legal Remembrancer in considering the Tribunal’s findings suffered from errors  of law. He was of the opinion that the Tribunal had no  authority to  reappraise the  evidence or enter into the sufficiency  or adequacy of the evidence. The principles applicable to  judicial review  of administrative actions or findings recorded  in departmental  disciplinary proceedings do not apply to a Tribunal which is like an 81 inquiring authority  while assessing the evidence on charges against a  delinquent officer. The Tribunal could enter into adequacy,  insufficiency   or  credibility  of  evidence  on record. The  Tribunal was not discharging the functions of a court but  was acting as an enquiring authority therefore it had full  powers to  appraise the  evidence and  record  its findings.  The   approach  of  the  Legal  Remembrancer  was misconceived as  a result  whereof he  had opined  that  the findings of  the Tribunal  in appellant’s favour be ignored. The State  Government committed  a serious  error of  law in ignoring  the   findings  of   the  Tribunal   applying  the principles of judicial review of administrative actions by a

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court of law, without giving the appellant an opportunity to show cause  against the proposed view of the Government, and in passing  the impugned order on the basis of the report of the Legal  Remembrancer. In  view of  the  findings  of  the Tribunal dated  July 7,  1971 aforementioned,  the  impugned order of  dismissal could  not legally  be sustained against the appellant. [85F-G; 86C-H; 87A]      There was no evidence on record to sustain the findings of charges  2 to  5 against  the appellant, and further, the appellant was  denied a  reasonable opportunity  of  defence contemplated by Article 311(2) as it then existed. The State Government’s order dismissing the appellant from service was illegal and  unconstitutional. The  order  of  the  Division Bench of  the High  Court was  set  aside,  the  appellant’s petition was allowed and the order of dismissal was quashed. The appellant  was directed to be treated in service without a break with all the consequential benefits. [87B-C]      State of  Andhra Pradesh  v. S.N.  Nizamuddin Ali Khan, [1977] 1 S.C.R. 128, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1068 of 1976      From the  Judgment and  order  dated  7.8.1974  of  the Allahabad High Court in Special Appeal No. l02 of 1974.      R..K.  Garg,  V.J.  Francis  and  N.M.  Popli  for  the Appellant.      Anil Dev Singh and Mrs. S. Dixit for the Respondents.      The Judgment of the Court was delivered by SINGH, J.      SINGH,J. This  appeal is directed against the judgement of a 82 Division Bench  of the  High Court of Allahabad dated August 7, 1974  allowing the respondent’s Letters Patent appeal and setting aside  the order  of the  learned Single  Judge  and dismissing the  appellant’s writ petition made under Article 226 of  the Constitution- challenging the order of the State Government dated  April 24,  1972 dismissing  the  appellant from the U.P. Civil Service (Executive Branch).      The appellant  was in the service of the State of Uttar Pradesh as  a member  of the  U.P. Civil  Service (Executive Branch). He  was posted  as Regional Transport Magistrate at Bareilly between  June, 1962  to October,  1964. A number of charges were  framed against  the appellant  and  the  State Government referred  the matter  to the  U.P. Administrative Tribunal constituted under the U.P. Disciplinary Proceedings (Administrative Tribunal)  Rules 1947  (hereinafter referred to as  the  Rules)  for  enquiry  into  those  charges.  The Tribunal after  recording evidence  of the parties submitted its findings  to the State Government on 27th May, 1970. Out of six  charges framed  against the  appellant the  Tribunal recorded the  finding that  the first  charge was not proved but it recorded findings against the appellant in respect of the remaining  five charges.  The Governor issued show cause notice to the appellant on July 29, 1970 calling upon him to show-cause as  to  why  he  should  not  be  dismissed  from service. The  notice was  accompanied with  a  copy  of  the findings of the Tribunal. The appellant submitted a detailed reply making  comments  on  the  findings  recorded  by  the Tribunal on  each of  the charges.  The appellant  submitted that there  was no  evidence to  support the charges and the findings recorded  by the  Tribunal were not sustainable. On receipt of  the appellant’s  reply to  the show-cause notice

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the Governor referred the same to the Tribunal in accordance with Rule  l0(2) of  the Rules.  The Tribunal considered the appellant’s reply  to the show-cause notice and his comments on the  findings recorded  by it  earlier on the charges and thereupon it  submitted a  detailed findings to the Governor on 7.7.1971.  In that  report the  Tribunal  on  a  detailed analysis of the evidence recorded the finding that there was no convincing  evidence to uphold the charges framed against the appellant.  On receipt of the report of the Tribunal the State Government  appears to have referred the matter to the Legal Remembrancer  for his  opinion. The Legal Remembrancer disagreed with  the findings recorded by the Tribunal by his report dated  July 7,  1971 and  he opined  that  there  was sufficient evidence  on record  to uphold the charges 2 to 5 against the  appellant. In  view of the opinion submitted by the Legal Remembrancer the Governor disregarded the findings recorded by the Tribunal and issued the impugned order dated April 24, 1972 dismissing the appellant from service. 83      The appellant  preferred a  writ petition under Article 226 of  the Constitution  before the High Court at Allahabad challenging the  order of  dismissal on a number of grounds. C.S.P. Singh,  J. allowed  the writ  petition by  his  order dated January  10, 1974  and quashed the order of dismissal. The Respondent-State  of  Uttar  Pradesh  preferred  letters patent appeal before the Division Bench against the judgment of the learned Single Judge. The Division Bench by its order dated August 7, 1984 allowed the appeal, set aside the order of the  learned Single  Judge holding that the appellant had been given  reasonable opportunity  of defence and there was ample evidence  to sustain  the charges  and  the  order  of dismissal did  not suffer from any constitutional infirmity. Hence this appeal.      The State Government had framed six charges against the appellant, and  referred  the  same  to  the  Administrative Tribunal for  enquiry. The  Tribunal recorded  findings that charge No.  1 was not proved, while remaining charges two to six stood proved against the appellant. The State Government accepted the  Tribunal’s findings on charges Nos. 2 to 5 but it disagreed with the Tribunal’s findings on charge No. 6 as it was of the opinion that the said charge was not made out. The State  Government issued notice to the appellant to show cause against  the proposed  punishment  of  dismissal  from service. The  appellant submitted  a detailed  reply to  the show cause notice assailing the findings of the Tribunal, on the ground  that there  was no evidence on record to sustain the findings  of the  Tribunal on  charges Nos.  2 to  5. On receipt of the appellant’s explanation, the State Government referred the  matter to the Tribunal again and thereupon the Tribunal considered  the matter  and by  its report  on  7th July, 1971 it recorded findings that there was no convincing evidence to  support the  charges and  sustain its  findings recorded earlier  on charges  2 to  5 against the appellant. Charges 2 to 5 were of common pattern to the effect that the appellant  had   while  posted  as  the  Regional  Transport Magistrate at  Bareilly claimed  travelling allowance at the rate of  first class  railway fare  without having  actually travelled in  that class  on four different occasions. Three out of  four journeys were alleged to have been made on 14th April, 1963,  26th May,  1963 and  11th September, 1963 from Bareilly to  Nijibabad and  the fourth  journey was  made on 30th April,  1963 from  Nijibabad to Bareilly. The appellant denied the  charges and  asserted that  he had performed the aforesaid journeys  in the first class and had paid fare for that class.  In its  initial report  dated 7th May, 1970 the

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Tribunal had  recorded findings  that there  was evidence on record to  sustain the  charges but in its subsequent report dated July  7,  1971  the  Tribunal  after  considering  the appellant’s reply to the show 84 casue notice  and after  reappraising the evidence held that there was  no convincing  evidence to  sustain  its  earlier findings on  charges 2  to 5 in the light of the submissions made by  the appellant in reply to the show cause notice. We have carefully  scrutinised the  two reports of the Tribunal as well  as the  note of  the Legal  Remembrancer. We are of opinion that  the view  taken by  the Tribunal in its report dated July  7, 1971 was positive in nature that there was no convincing evidence  to sustain  the charges  2 to 5 against the appellant.  The Legal  Remembrancer disagreed  with  the findings recorded by the Tribunal. The Governor acted on the report of  the  Legal  Remembrancer  without  recording  any reasons for  disagreeing with  the findings  of the Tribunal dated July  7, 1971  and passed  the  impugned  order  dated 24.4.1972 dismissing the appellant from service.      The High  Court has  held  that  the  findings  of  the Tribunal dated.  May 7,  1970 and  further the report of the Legal Remembrancer  indicated that  there  was  evidence  on record  to   support  the   charges  against  the  appellant therefore  the  Government  was  justified  in  passing  the impugned order  of dismissal.  The High  Court further  held that since  there was  some evidence  on  record  which  the Government found  sufficient to  sustain  the  charges,  the Court had no jurisdiction to interfere with the order on the ground of  inadequacy of  the evidence.  The High Court held that the  Governor was justified in accepting the opinion of the Legal  Remembrancer and  it was not necessary for him to record any  reasons in  disagreeing with the findings of the Tribunal  dated   July  7,   1971.  We   do  not   find  any justification for  the view  taken by  the High  Court.  The Tribunal was  the inquiring authority. It was entrusted with the duty  of holding  inquiry and submitting its findings to the Government.  In its  initial report dated May 7, 1970 it recorded  findings   against  the  appellant  but  when  the Governor referred  the appellants  reply to  the show  cause notice to  the Tribunal,  it reconsidered  the matter in the light of  the analysis  of the  evidence  submitted  by  the appellant and thereupon it recorded a positive finding, that there was  no convincing  evidence to  support  its  earlier findings on  the charges.  The  Tribunal  acted  within  its jurisdiction in  reappraising the  evidence as  the Governor had referred the matter to it under Rule 10(2) of the Rules. The State  Government without  recording any reasons for not accepting  those  findings  issued  the  impugned  order  of dismissal presumably  on the  basis of  the opinion  of  the Legal Remembrancer.  The State Government did not record any reason as  to why  it ignore  the findings  recorded by  the Tribunal. If the State Government chose to pass the impugned order of  dismissal, in all fairness it should have recorded reasons for the same and in order to afford reasonable 85 Opportunity to  the appellant it was necessary for the State Government to  communicate the reasons for disagreement with the Tribunal’s report to the appellant. The report submitted by the  Legal Remembrancer to the Government on the basis of which the impugned order was passed had never been disclosed or  communicated   to  the   appellant  and  he  was  denied opportunity to  meet the  same. Article  311(2)  before  its amendment by  the Constitution (Forty-second Amendment) Act, 1976 contemplated  reasonable opportunity of defence even at

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the stage  of show  cause notice. In State of Andhra Pradesh v. S.N.  Nizamuddin Ali Khan, [1977] 1 S.C.R. 128 an enquiry into certain  charges was held by a High Court Judge against a Munsif  Magistrate.  The  Enquiry  officer  submitted  its findings and  recommended compulsory  retirement. The  Chief Justice of  the High Court also examined the evidence on his own and  confirmed the  findings of  the Enquiry officer and made recommendation  of 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. The Government issued  orders retiring  the Munsif compulsorily. This  Court   held  that   since  the  supplementary  report submitted by  the Chief  Justice to  the Government  was not given to  the officer  he had  no reasonable  opportunity of making his  representation against  the report  of the Chief Justice and  therefore, the  order of  compulsory retirement was vitiated.  The Court  emphasised that  the  officer  was denied the opportunity of being heard at the second stage of enquiry. Indisputably,  in the  instant  case  the  Governor acted  on   the  report  of  the  Legal  Remembrancer  which contained findings against the appellant but the copy of the same was  not given to him. Hence the appellant could get no opportunity of meeting the same. The appellant was therefore denied opportunity of being heard at the stage of show cause notice.      We have  carefully gone  through the  Tribunal’s report dated  July   7,  1970.   We  find  that  the  Tribunal  has categorically recorded  a finding that there was no evidence on record  to prove  that the appellant did not purchase Ist class  tickets  in  advance  relating  to  the  journeys  in question. The  Tribunal observed that the evidence on record raised suspicion  against the appellant but it observed that mere suspicion  was not  sufficient to hold that the charges had  been   proved  against   the   appellant.   The   Legal Remembrancer ignored  the findings  recorded by the Tribunal and concluded  that  the  evidence  on  record  duly  proved charges 2  to 5  against the  appellant. On a perusal of the Legal Remembrancer’s  note which  is on record, we find that the entire approach of the Legal Remembrancer in considering the Tribunal’s  findings suffered  from errors of law. While holding that the Tribunal 86 had committed error in holding that there was no evidence to prove charges against the appellant, he observed:           "Where there  is some evidence which the authority           entrusted with  the duty  to hold  the enquiry has           accepted and which evidence may reasonably support           the conclusion  that  the  delinquent  officer  is           guilty of  the charge,  it is  not the function of           the court  to review the evidence and to arrive at           an independent finding on the evidence."      The  above   observations  of  the  Legal  Remembrancer clearly indicate  that  he  was  of  the  opinion  that  the Tribunal  had  limited  jurisdiction  in  reconsidering  the findings recorded  by it  earlier against  the appellant. He proceeded  on  the  assumption  that  the  Tribunal  had  no authority to  reappraise  the  evidence  or  to  enter  into sufficiency or  adequacy of  evidence while  considering the question whether  charges stood proved against the appellant on the  evidence on  record. The  principles  applicable  to judicial  review   of  administrative  actions  or  findings recorded in  departmental disciplinary  proceedings  do  not apply to  a Tribunal  which is  like an  inquiring authority while assessing the evidence on the charges framed against a delinquent officer.  The Tribunal  was  entrusted  with  the

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primary duty  of making  inquiry and  record its findings on the charges.  In that  process it could enter into adequacy, insufficiency or  credibility of  evidence  on  record.  The Legal Remembrancer  was of  the opinion  that  the  Tribunal could not enter into the realm of adequacy or sufficiency of evidence and  for that  purpose he  relied  upon  the  well- established principles  of judicial review of administrative actions. The Tribunal was not discharging the functions of a court but  on the  other hand it was acting as the inquiring authority and  it had  full power to reappraise the evidence and record  its findings  and in that process it was open to it to hold that the evidence on record was not sufficient to sustain  the   charges  against  the  appellant.  The  whole approach of  the Legal  Remembrancer was  misconceived as  a result of  which he opined that the findings recorded by the Tribunal in  appellant’s favour  could be ignored. We are of opinion that  the State  Government  could  not  ignore  the findings of the Tribunal applying the principles of judicial review of  administrative actions  by a  court of  law.  The State Government  committed serious error of law in ignoring the findings  of the  Tribunal without giving an opportunity to the  appellant to show-cause against the proposed view of the Government  and passing  the impugned order on the basis of the  report of  the Legal  Remembrancer.  The  Tribunal’s findings dated July 7, 1970 clearly indicated that there was no evidence to sustain the 87 charges against  the appellant and in that view the impugned order of  dismissal could  not legally be passed against the appellant.      In view of our discussion, we are of opinion that there was no evidence on record to sustain the findings on charges 2 to  5 against  the appellant and further the appellant was denied reasonable  opportunity of defence as contemplated by Article 311(2)  as it then existed. We further hold that the State  Government’s  order  dismissing  the  appellant  from service was illegal and unconstitutional. We, therefore, set aside the  order of the Division Bench of the High Court and allow the  appellant’s  petition  and  quash  the  order  of dismissal dated April 24, 1972 and direct that the appellant shall be  treated to  be in  service without  break with all consequential benefits.  The appellant  is entitled  to  his costs. S.L.                                    Appeal allowed. 88