REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL No. 2023 OF 2006

Government of  A.P. & Anr.     …Appellants   

Versus

N. Ramanaiah               …Respondent

J U D G M E N T  

B.SUDERSHAN REDDY, J.

1. This appeal by the Government of Andhra Pradesh has  

been filed challenging the final  judgment and order dated  

28.04.2003  of  the  High  Court  of  judicature  of  Andhra  

Pradesh  passed  in  Writ  Petition  No.2121/03  whereby  the  

High Court allowed the Writ Petition filed by the respondent  

herein.  The High Court by the impugned order quashed the  

order dated 17.04.2001 passed by the appellant dismissing  

the respondent from service.

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2. Relevant  facts  leading to filing  of  this  appeal  by the  

State may briefly be stated as under:

3. The respondent herein was initially appointed as Over-

Seer  in  the  year  1966  which  post  was  re-designated  as  

Assistant Engineer in the year 1974.  He was in-charge of  

Bitumen  stores  between  May  1990  and  September  1994  

while working as the Assistant Engineer in R&B Department,  

Karim Nagar District, Andhra Pradesh.  It was brought to the  

notice of the appellant that the respondent while working at  

the said place misappropriated huge quantities of 425 MT of  

bulk bitumen and 71.00 MT of pack bitumen.  The Engineer-

in-chief  (R&B) Administration, was accordingly directed by  

the Government to frame appropriate charges against  the  

respondent  and  others  involved  in  the  misappropriation  

under sub-rule (3) of Rule 20 of A.P.Civil Services (CC & A)  

Rules, 1991 (herein referred to as the ‘Rules’) against the  

respondent  and  others  concerned.   The  Engineer-in-chief  

accordingly  framed  articles  of  charges  as  against  the  

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respondent.   The  Government  issued  orders  appointing  a  

Member  of  Commissionerate  of  Inquiries  as  the  Enquiry  

Officer  to  conduct  departmental  enquiry  against  the  

respondent  and others for  the irregularities  of  large scale  

misappropriation  of  bitumen  belonging  to  Government  

valued at about more than Rs. Forty Lakhs.  The respondent  

was  placed  under  suspension  by  the  order  dated  

13.08.1998.  The Enquiry Officer after making an enquiry as  

is required in law has submitted his report in which it is held  

that  the  respondent  who  was  incharge  of  stores  has  not  

been  able  to  properly  account  for  missing  quantities  of  

bitumen and accordingly held that the charges have been  

duly proved against him.

4. The Government having examined the Enquiry Officer’s  

report and material available on record provisionally decided  

to impose a major penalty of dismissal from service on the  

respondent.  A show cause notice under Rule 21(4) of the  

Rules was served on the respondent requiring him to explain  

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as  to  why  the  major  penalty  of  dismissal  should  not  be  

imposed on him.  A copy of the Enquiry Officer’s report has  

been duly furnished to the delinquent to which he submitted  

his  written statement.   The Government having examined  

the written statement of defence found no merit in it. The  

Andhra Pradesh Public Service Commission was consulted as  

is required in law for its concurrence to impose the major  

punishment of dismissal from service on the respondent to  

which  the  Commission  expressed  its  concurrence.    The  

Government in exercise of the powers conferred by clause  

(x) of Rule 9 of the said Rules accordingly passed the orders  

in G.O.Ms. No. 58 TR&B(S.I.3) dated 17.04.2001 inflicting  

punishment  of  dismissal  from  service  as  against  the  

respondent.

5. The respondent challenged the said order of dismissal  

before the A.P. Administrative Tribunal.  The Tribunal vide  

its  judgment  dated  28.06.2002;  upheld  the  order  of  

dismissal passed by the Government against the respondent  

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and accordingly dismissed the appeal filed by him. Aggrieved  

by  the  said  order,  the  respondent  filed   Writ  petition  

No.2121/03 in the High Court of Andhra Pradesh.  The High  

Court vide its impugned judgment quashed the orders of the  

A.P.Administrative  Tribunal  and  accordingly  set  aside  the  

order of  dismissal  passed against  the respondent.   Hence  

this appeal by the Government of Andhra Pradesh.

6. We have elaborately heard the learned senior counsel  

appearing for both the parties and perused the impugned  

order and the material available on record.  The High Court  

allowed  the   Writ  Petition  only  on  the  ground  that  the  

impugned order of dismissal has been passed by the State  

Government  imposing  the  major  punishment  of  dismissal  

from service depriving the employee of his right of appeal  

provided under the said Rules framed under Article 309 of  

the  Constitution  of  India  which  regulates  the  service  

conditions of the Government employees.  The High Court  

concluded that a valuable right of appeal has been denied to  

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the respondent delinquent since the appellate authority itself  

has  passed  the  impugned  order  of  dismissal  instead  of  

appointing authority prescribed under the Rules.

7. Shri  R.Sundaravardhan,  learned  senior  counsel  

appearing  for  the  appellant  submitted  that  the  impugned  

order  of  the  High  Court  suffers  from incurable  infirmities  

requiring  the  interference  of  this  court  in  exercise  of  its  

jurisdiction under Article 136 of the Constitution of India.  It  

was  submitted  the  order  of  dismissal  passed  by  the  

Government in exercise of its power under clause (x) of Rule  

9 of the said Rules does not suffer from any infirmity.  The  

submission was the order passed by the Government does  

not suffer from any jurisdictional error and the question of  

depriving  the  respondent  of  his  right  to  prefer  an  appeal  

does not arise since there is no appeal provided against the  

order passed by the Government.  It was further submitted  

that there is a right of review provided under the Rules to an  

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aggrieved  employee  which  was  not  availed  of  by  the  

respondent.  

8. Shri P.S. Narasimha, learned  senior counsel appearing  

for the respondent submitted that a public servant cannot be  

deprived of his substantive right of appeal.  The submission  

was when an appeal is provided to the Government against  

the order of the disciplinary authority and the Government  

passes an order of punishment, the employee concerned is  

deprived of the remedy of appeal which is substantive right  

given to him  under the  Rules.  It was submitted that the  

issue really becomes relevant particularly where there is a  

provision  for  appeal  against  the  order  of  disciplinary  

authority  to  the  higher  authority  and  where  there  is  no  

appeal provided against the order of higher authority. It was  

submitted that a reasonable opportunity  to be afforded to a  

Government  servant  means  and  includes  right  of  appeal  

whenever provided by law  and deprivation of such a right to  

prefer  appeal  against  the  order  of  appointing  authority  

dismissing  the  public  servant  from  service   amounts  to  

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denial  of  reasonable  opportunity  guaranteed  under  Article  

311 (2) of the Constitution.  

9. The only question that falls for our consideration in the  

instant appeal is whether the impugned order of dismissal  

passed by the Government of Andhra Pradesh suffers from  

any  illegality  on  the   ground  that  it  had  deprived  the  

respondent of his valuable right to prefer an appeal had it  

been  passed  by  the  disciplinary  authority  which  is  

subordinate to the  Government.  The real point in issue is  

whether the impugned order of the Government dismissing  

the respondent from service suffers from any jurisdictional  

error?   

10. The  elaborate  provisions  in   Part  XIV  relating  to  

services  under  the  Union  and  the  States  indicate  the  

importance which  the framers of our Constitution attached  

to the Civil Service.  The trinity of Articles 309, 310 and 311  

deal with the services regulating recruitment, and conditions  

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of service of persons appointed to public services and posts  

in  connection  with  the affairs  of  the Union or  any of  the  

State.  Every person who is a member of civil service  of a  

State  or  holds  any  civil  post  under  a  State  holds  office  

during the pleasure of the Governor. Article 311 (2) qualifies  

the  pleasure  of  the  President  or  the  Governor,  and  the  

pleasure  cannot  be  exercised  if  a  Government  servant’s  

service is to be terminated as a punishment for misconduct.  

In such a case, Article 311 (2) mandates that a reasonable  

opportunity of being heard in respect of the charges must be  

given to the Government servant.  Any order inflicting the  

punishment  of  dismissal,  removal  without  giving  the  

opportunities  as is required by Article 311 (2) would be null  

and  void  as  violative  of  an  express  constitutional  

requirement.  One more aspect that may have to be borne  

in  mind  that  Article  311 (1)  does  not  command that  the  

dismissal must be by the very same authority who made the  

appointment or by its direct superior.  The dismissal can be  

either by the appointing authority or by any other authority  

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to  which  the  appointing  authority  is  subordinate.   The  

dismissal of a civil servant must comply  with the procedure  

laid down in Article 311.  

In exercise of the powers conferred by the proviso to  

Article 309 of the Constitution of India, the Government of  

Andhra Pradesh made the Rules known as A.P. Civil Services  

(Classification, Control and Appeal) Rules, 1963. These Rules  

prescribe the detailed procedure for holding a departmental  

enquiry  in  all  cases  where  the  dismissal,  removal  or  

reduction  in  rank  of  any  government  servant  was  to  be  

considered.   These rules are required to be read so as to be  

in conformity with the constitutional  provisions.   We shall  

now proceed to analyse the rules in order to appreciate the  

submissions made by both the parties.      

11. Rule 2 (a) of the Rules defines  appointing authority in  

relation  to  a  Government  servant  as  the  authority  which  

actually made the temporary  or officiating or substantive  

appointment as the case may be, of the Government servant  

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to  the  post  held  by  him  at  the  time  of  initiation   of  

disciplinary proceedings; or the authority which is, under the  

rules  regulating  the  recruitment  to  the  post  which  the  

Government servant for the time being holds, competent to  

make an appointment, whichever authority is higher.  There  

is no dispute before us the appointing authority in relation to  

the  post  that  was  held  by  the  respondent  delinquent  

employee  is  the  Engineer-in-chief  and  he  is  also  the  

disciplinary  authority.   For  the  purposes  of  Rules  the  

‘disciplinary authority’ is defined in Rule 2 (c ) of the Rules  

as the authority competent under the Rules to impose on a  

Government servant any of the penalties under Rule 9 or  

Rule 10 of the Rules.  Rule 9 in its turn provides that for  

good and sufficient reasons and as further provided in the  

Rules;   major  penalties  be  imposed  on   a  Government  

servant   including  dismissal  from  service  which  shall  

ordinarily be a disqualification for future employment under  

the Government.  Rule 9 itself does not make any provision  

as to which authority is authorised to impose the penalties.  

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It is Rule 14 which provides further details of the disciplinary  

authorities  and  authorities  competent  to  impose  the  

penalties, in respect of Subordinate Services.  Rule 14 which  

is relevant for our present purposes provides:  

“Rule 14. Disciplinary Authorities and Authorities  competent to suspend, in respect of Subordinate  Services :

     (1) (a) - - - - -

           (b)- - - - -

(2)  The  authority  which  may  impose  on  a  member of  a  Subordinate  Service,  the penalties  specified in [clauses (ii) and (v) to (x)} of Rule 9  shall be the appointing authority or any authority  to which it is subordinate.”  

A   plain  reading  of  the  Rules  aforementioned   clearly  

suggests  the  disciplinary  authority  endowed  with  the  

jurisdiction to impose on a member of subordinate service,  

the penalties specified in clause (ii) and (v) to (ix) of Rule 9  

includes not only the appointing authority but any authority  

to which the appointing authority is subordinate.  The power  

is concurrently conferred upon the appointing authority and  

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as well as the authority to which the appointing authority is  

subordinate. There is no dispute that Engineer-in-chief being  

the appointing authority in respect of the post that was held  

by  the  respondent  delinquent  at  the  time  of  initiation  of  

disciplinary  enquiry  is  undoubtedly  subordinate  to  the  

Government.  In such view of the matter it cannot be said  

that  the  Government  had  no  jurisdiction  or  the  authority  

under the Rules to impose a major penalty on a member of  

subordinate service.  Sub-rule (2) of Rule 14 clearly enables  

not only the appointing authority but any authority to which  

the appointing authority is subordinate to impose penalties  

including the dismissal of Government servant from service.  

There  is  no  provision  in  the  Rules  which  prohibits  the  

Government exercising the power of appointing authority in  

the matter of imposition of the penalties specified in clauses  

(ii) and (v) to (ix) of Rule 9 which includes dismissal from  

service.   The Constitution being the transcendental law, the  

rule making authority by making Rule 14 (2) took care to  

see  that  constitutional  guarantee  enshrined in  Article  311  

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(1)  of  the  Constitution  which  was  available  to  the  

Government  servant  was  protected.  That  the  construction  

placed  by  us  on  the  expression  ‘subordinate’  is  in  

consonance  with  the  meaning  and  import  of  the  word  

‘subordinate’ occurring in Article 311 (1)  of the Constitution  

is apparent from many a decisions of this Court.  We shall  

refer to some of them. In our considered opinion there is  

nothing in  the Constitution  which debars  the Government  

from  exercising  the  powers  of  appointing  authority  to  

dismiss  a  Government  servant  from service.  These  Rules  

cannot be read as implying that dismissal must be by the  

very  authority  who  made  the  appointment  or  by  his  

immediate  superior.  In  Sampuran  Singh  Vs.   Sate  of  

Punjab  [(1982) 3 SCC 200], this Court observed that “in  

view  of  Article  311  (1)  of  the  Constitution  the  removing  

authority cannot be subordinate in rank to the appointing  

authority. By  necessary implication the removing authority  

may  be  higher  in  rank  to  the  appointing  authority”  

(emphasis supplied). There is a compliance with clause (1)  

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of  Article 311 if the dismissing authority is not lower in rank  

or grade than the appointing authority. [See The State of  

U.P. & ors. vs. Ram Naresh Lal (1970 (3) SCC 173) and Jai  

Jai  Ram  and  Ors.  vs.  U.P.   State  Road  Transport  

Corporation, Lucknow and ors. (1996 (4) SCC 727].

12. The  decision  in  K.C.  Chandrasekharan  s/o  K.C.  

Chamu    vs.  State  of  Kerala  [AIR  (1964)  Kerala  87]  

supports the submission made by the learned senior counsel  

for the appellant that the mere fact that the Rules provided  

for  an  appeal  to  Government  in  case  the  Government  

servant is punished by an authority subordinate to it does  

not mean that the Government cannot itself undertake the  

disciplinary proceedings against its officers.  In that case the  

Government  having  received  reports  that  the  appellant  

therein, while he was Special  Forest Officer, received illegal  

gratification and helped  illicit transport of timber from the  

forest  areas,  conducted  a  preliminary  investigation  which  

disclosed a prima facie case, placed the public servant under  

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suspension,  framed specific   charges  against  him,  served  

them  on  him,  and  finding  his  explanation   thereto  

unsatisfactory,  ordered an enquiry by the Enquiry  Officer,  

who submitted his report to Government finding corruption  

on  the  part  of  the  public  servant  and  recommending  his  

removal  from  service.   Government  then  consulted  the  

Public  Service  Commission  and  having  considered  the  

explanation of the public servant passed orders dismissing  

him from service.  The  said  order  was  challenged  by  the  

public servant therein on the ground that under Kerala Civil  

Services  (Classification,  Control  and  Appeal)  Rules,  1957,  

the Inquiry authority should have submitted its report to the  

appointing authority, who, in this case, was the Conservator  

of Forest, in which case the public servant would have had a  

right of appeal to Government from the penalty that might  

have been imposed on him by the appointing authority.  The  

contention was that he was deprived of right of appeal and  

that  amounted  to  denial  of  reasonable  opportunity  

guaranteed under Article 311 (2) of the Constitution.  The  

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Kerala High Court held :  

“ 5. The  constitutional  guarantee  a  Government  servant is entitled to is  one of being afforded a  reasonable opportunity of the above content in an  enquiry  under  the  Civil  Services  (Classification,  control and Appeal) Rules. The complaint here is  not that the appellant was not afforded any of the  three opportunities mentioned above, but that he  had been deprived of the right of appeal  to the  Government  from  the  order  of  the  appointing  authority if it had imposed the penalty on him by  the Government having received the report of the  Inquiring  Authority  and  passed  orders  thereon.  Whether  opportunity  afforded  to  a  Government  servant  in  a  particular  case  is  reasonable  will  depend upon the circumstances of each case, me  enquiry  In  this  case  was  held  by  the  Enquiry  commissioner and Special Judge, who was a Judge  of the High court of Travancore-Cochin mere is no  complaint that the appellant had not been given  opportunity  to participate  in  the proceeding and  vindicate  his  innocence  we  do  not  think  that  a  right  of  appeal  is  a  necessary  postulate  of  an  opportunity of showing cause within the meaning  of Article 311 (2) of the Constitution, and do not  the any force in the plea that the appellant was  deprived  of  the  constitutional  protection  of  that  Article because me Government, who is appellate  authority,  itself  scrutinised  the  report  of  the  Inquiring  Authority,  consulted  the  Public  Service  Commission and imposed the punishment on him.  The  fact  that  the  Kerala  Civil  services  (Classification,  Control  and Appeal)  Rules,  1957,  provided for as appeal to Government in case the  

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Government  servant  had  been  punished  by  an  authority subordinate to it are not mean that the  Government  could,  not  itself  undertake  the  disciplinary proceedings against its offices, to fact,  Rule 13 of the Kerala Civil services (Classification  Control  and  Appeal)  Rules  provided  that  the  authority  which  might  impose  the  penalty  of  dismissal from the civil service on a member of a  subordinate service was the appointing authority  or  any  higher  authority,  which  LATTER  must  necessarily  include  the  Government.  Under  Rule  17  (2)  the  authority  concerned,  that  is  to  say,  either  the  appointing  authority  or  any  higher  authority could direct an enquiry to be held by a  special  officer  or  tribunal  appointed  by  the  Government for the purpose or any other person  mentioned, in Sub-rule (3). Rule 17 (5) provided  that the report of the Inquiring Authority should  be  forwarded  to  the  appointing  authority,  who  should proceed to impose the appropriate penalty  on the delinquent officer. There was a lacuna in  the  rules  as  to  whom  the  report  was  to  be  submitted  in  case  the  Government  Itself  had  undertaken  the  disciplinary  proceedings  and  ordered enquiry into the charges transfer against  the officer. As the enquiry had been ordered by  the  Government,  the  report  of  the  Inquiring  Authority should be submitted to the Government  itself. The operation of Rule 17 (5) could therefore  be  confined  only  to  cases  where  the  appointing  authority was to imposed the penalty as the sub- rule  itself  indicated.  We  do  not  see  any  impropriety,  much  less  any  illegality,  in  the  Government  itself  having  received  the  report  of  findings by the Enquiry Commissioner and Special  judge and imposed the penalty on the appellant in  this  case.  As  THE  proceedings  snow  that  reasonable opportunity to prove his innocence had  

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been afforded to the appellant before the Inquiring  Authority and to show cause against me proposed  imposition of the penalty of dismissal from service  before  the  Government,  no  violation  of  the  guarantee or  reasonable  opportunity  provided in  Article 311 (2) or the Constitution had occurred in  the impugned proceedings.

We approve the said reasoning of the Kerala High  

Court.

13. In  the  State of  Madras  vs.  G.Sundaram  [AIR  

1965 SC 1103], a Constitution Bench of this court while  

interpreting the provisions of the Madras District Police  

Act, 1859 and the Madras Police Subordinate Service  

(Discipline  and  Appeal)  Rules,  1950,  rejected  the  

contention  of  the  employee  therein  that  an  order  of  

compulsory  retirement  amounts  to  an  order  of  

dismissal  which  could  be  passed only  by one  of  the  

officers specified in Section 10 of the Police Act and not  

by the State Government which is not  given any power  

to pass such order.  This Court observed :

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“12. - - - -If the order of compulsory retirement  amounts, in the circumstances of this case, to an  order of dismissal, the Constitutional requirement  of Article 311 that the respondent could not have  been  dismissed  from  service  by  an  authority  subordinate  to  that  by  which  he  was  appointed  has  been  satisfied.  The  respondent  must  have  been appointed to the Police Service in 1929 by an  authority  subordinate  to  the  State  Government  and,  therefore,  the  State  Government  was  competent to dismiss him.

13.  The  Police  Rules  were  framed by  the  State  Government in exercise of the powers conferred  by Section 10  of  the Police Act  and by certain  other  provisions  including  the  proviso  to  Article  309 of the Constitution. Rule 2 of the Police Rules  mentions  the  various  penalties  which  can  be  imposed among the members of the service and  mentions 'compulsory retirement' in Clause (g) as  one such penalty.  Rule 4 specifies  the authority  which may impose any of the penalties prescribed  in Rule 2 on a member of the service specified in  column 1 of the Schedule to the Rules and states  that  it  shall  be  the  authority  specified  in  the  corresponding  entry  under  columns  2  to  8,  therefore,  whichever  is  relevant  or  any  higher  authority. According to the entry in the Schedule,  the  authority  competent  to  order  compulsory  retirement, removal or dismissal of an Inspector of  Police  in  the  districts,  is  the  Deputy  Inspector- General  of  Police.  The  State  Government  is  an  authority  higher  than  the  Deputy  Inspector- General of Police. This cannot be gainsaid. It is,  however, urged for the respondent that the higher  authority contemplated by Rule 4 is the authority  

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higher in rank according to the provisions of the  Police Act and that such an authority could be only  the Inspector-General of Police. We do not agree  with this contention.

14. The State Government can pass the various  orders of punishment dealt  with in the schedule  and this is clear from Rule 5 which describes the  forum  to  which  a  member  of  the  Service  can  appeal  from  an  order  imposing  any  of  the  penalties specified in Rule 2. According to Clause  (c), an appeal lies to the Governor if such an order  imposing a penalty specified in Rule 2 is passed by  the State Government. We, therefore, agree with  the  High  Court  that  the  State  Government  was  competent to order the compulsory retirement of  the appellant. ”

                                           (emphasis supplied)                                 

14. In the present case Rule 33 of the Rules provides right  

of  appeal  against  an  order  imposing  any of  the  penalties  

specified  in  Rule  9  or  Rule  10  whether  made  by  the  

disciplinary authority or by an appellate authority or revising  

authority to the appellate authorities.  Rule 34 specifies the  

appellate authorities.  There is no difficulty to hold that had  

the appointing authority, who, in this case was the Engineer-

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in-chief passed the order of penalty the respondent would  

have had a right of appeal to the Government.  Rule 32 of  

the  Rules  says  that  notwithstanding  anything  contained  

therein no appeal shall  lie against any order made by the  

Governor;  in  the  present  case  the  impugned  order  of  

dismissal  was  made  by  the  Government  in  the  name  of  

Governor,  therefore  there  is  no  right  of  appeal  as  such  

against  the  impugned  order  of  dismissal  made  by  the  

Government.  It is well said and needs no restatement at  

our hands that a right of appeal no doubt is a substantive  

one but not inherent or fundamental right.  No appeal lies to  

the higher authority as a matter of right unless provided for  

by the law.   

It is not as if there is no remedy available against the  

order passed by the Government dismissing a Government  

servant from its service. Rule 38 of the said Rules confers on  

every member of State Service, or a member of Subordinate  

Service in whose case  the Government have passed original  

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orders, shall not be entitled to appeal but shall be entitled to  

make separately and in his own name, within a period of  

three  months  from  the  date  on  which  the  order  was  

communicated  to  him,  a  petition  to  the  Government  for  

review of the order passed by the Government on any of the  

following grounds namely :

(i) that the order against which the petition of review is  

made was not passed by the competent authority;

(ii) that  a  reasonable  opportunity  was  not  given  to  the  

petitioner for defending himself;

(iii) that the punishment is excessive or unjust;

(iv) that the petitioner has made a discovery of new matter  

or evidence which he proves to the satisfaction of the  

Government, was not within his knowledge or could not  

be  adduced  by  him  before  the  order  imposing  the  

penalty was passed; and

(v) that there is an evidence error or omission in the order  

such as failure to apply the law of limitation or an error  

of procedure apparent on the fact of record.”

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The power conferred upon the Government to review  

its own order is very wide and that a substantive right of  

review  has  been  conferred  on  every  member  of  a  State  

Service  or  a  member  of  Subordinate  Service  against  the  

orders passed by the Government.  In the present case the  

respondent  failed  to  avail  the  remedy provided  for  under  

Rule 38.   

15. Shri P.Narsimha, learned senior counsel appearing for  

the  respondent  relying  upon  the  decision  of  this  court  in  

Surjit Ghosh vs. Chairman and Managing Director, UCO  

Bank  and  ors.  [  (1995)  2  SCC  474]  contended  that  the  

respondent employee was denied a right of appeal, since the  

order  of  dismissal  against  him  was  passed  by  the  

Government though the disciplinary authority was Engineer-

in-chief.   The submission  was as  per  the said  Rules,  the  

disciplinary authority was Engineer-in-chief and if the action  

was  taken  by  him,  the  employee  had  an  opportunity  to  

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appeal  to  the  Government.   In  order  to  appreciate  this  

contention it is required to notice that in the said case the  

undisputed  facts  were  the  disciplinary  action  against  the  

bank employee therein  was taken by the  Deputy  General  

Manager.   In  terms  of  the  regulations,  the  disciplinary  

authority of officers in Grade E,D,C and B was the Divisional  

Manager/Assistant  General  Manager(Personnel)  and  the  

appeal  against  their  order  was  to  the  DGM or  any  other  

officer of the same rank.  This court took the view that if the  

action was taken by the disciplinary authority,  he had an  

opportunity to appeal to the DGM or any other officer of the  

same rank.  However, since the action  was taken by DGM  

although the Divisional Manager and  AGM (Personnel) were  

available for taking the action the employee was denied the  

right of an appeal and also the right of review which lay only  

against the appellate order.  This court took the view that  

the  order  passed  by  the  bank  suffered  from an  inherent  

defect.   Having said so the Court proceeded to observe that  

it  is  true  that  an  authority  higher  than  the  disciplinary  

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authority  itself  imposes  the  punishment,  the  order  of  

punishment  suffers  from  no  illegality  when  no  appeal  is  

provided to such authority. It is  further held:

“ 6. - - -  However, when an appeal is provided to  the higher authority concerned against the order  of the disciplinary authority or of a lower authority  and  the  higher  authority  passes  an  order  of  punishment, the employee concerned is deprived  of  the  remedy of  appeal  which  is  a  substantive  right  given to him by the Rules/Regulations.  An  employee  cannot  be deprived  of  his  substantive  right. What is further, when there is a provision of  appeal  against  the  order  of  the  disciplinary  authority  and  when  the  appellate  or  the  higher  authority against whose order there is no appeal,  exercises the powers of the disciplinary authority  in a given case, it results in discrimination against  the  employee  concerned.  This  is  particularly  so  when  there  are  no  guidelines  in  the  Rules/Regulations as to when the higher authority  or  the  appellate  authority  should  exercise  the  power of the disciplinary authority. The higher or  appellate  authority  may  choose  to  exercise  the  power of the disciplinary authority in some cases  while no doing so in other cases. In such cases,  the right of the employee depends upon the choice  of  the  higher/appellate  authority  which  patently  results in discrimination between an employee and  employee. Surely, such a situation cannot savour  of legality.”

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The said decision was apparently one where the  power  

to impose the punishment was not concurrently  conferred  

upon  both  the  disciplinary  authority,  viz.,  the  Divisional  

Manager/AGM (Personnel) and the Deputy General Manager  

under the regulations. The said decision is therefore clearly  

distinguishable.

16. In the case on hand the Rules clearly empower not only  

the disciplinary authority but as well as the Government to  

impose appropriate punishment as against delinquent public  

servant  for  proven charges  of  misconduct.  In  our  opinion  

the judgment is not relevant and in no manner supports the  

point  urged  by  the  learned  senior  counsel  for  the  

respondent.  

17. It was further submitted that there are no guidelines in  

the Rules as to when the Government should exercise the  

powers of  disciplinary authority.   The submission was the  

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Government     may choose to exercise the power of  the  

disciplinary authority in some cases while not doing so in  

other  cases  eventuality  resulting  in  the  right  of  the  

Government  servant  dependant  upon  the  choice  of  the  

Government  which  patently  results  in  discrimination  

between one set up Government servant and another.  This  

contention  does not  merit  any serious  examination  by us  

since the constitutional validity of Rule 14 (2) which enables  

the  Government  to  award  punishment  apart  from  the  

disciplinary authority is not challenged.  

18. The  decision  in  A.  Sudhakar   vs.  Post  Master  

General,  General  and anr.  [(2006)  4  SCC 348]   in  no  

manner  supports  the  contention  urged  on  behalf  of  the  

respondent.  On the other hand this court took the view that  

clause (1) of Article 311 of the Constitution puts an embargo  

upon passing an order of dismissal, removal or reduction of  

rank in services by an authority below the rank of appointing  

authority.  “There  does  not  appear  to  be  an  embargo  in  

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terms of the said provision that a higher authority would not  

act as a disciplinary authority.”  The decision in Electronics  

Corporation of India vs. G. Muralidhar [ (2001) 10 SCC  

43 ] is  based  on the decision in Surjit Ghosh’s case (supra)  

about which we have dealt with in the preceding paragraphs.  

No further discussion as regards the ratio of the decision in  

Electronics  Corporation  of India (supra) is necessary for the  

purposes of disposal of this appeal.  

19. It is evident from the record that no other substantial  

grounds  have  been  raised  or  urged  by  the  respondent  

employee  either  in  the  Tribunal  or  in  the  High  Court  

challenging the order of his dismissal from service. Nothing  

was  urged  even  before  us  on  merits.   The  High  Court,  

mainly, therefore concentrated on the question as regards  

the validity of the impugned order of dismissal passed by  

the Government with which we have dealt in this judgment  

of ours.   Therefore no useful purpose would be served by  

remitting the matter for fresh consideration on merits.   

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20. For  all  the  aforesaid  reasons,  we  find  it  difficult  to  

sustain the order passed by the High Court interfering with  

the order   of  dismissal  passed by the Government.   The  

judgment of the High Court is accordingly set aside.    

 21. The appeal is allowed without any order as to costs.

…………………………………………..J. [R.V. RAVEENDRAN ]

……………………………………………J. [ B.SUDERSHAN REDDY]

New Delhi,  May  14, 2009

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