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PETITIONER: HUKUM CHAND MALHOTRA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 12/12/1958

BENCH: DAS, S.K. BENCH: DAS, S.K. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1959 AIR  536            1959 SCR  Supl. (1) 892  CITATOR INFO :  RF         1971 SC2004  (10)  RF         1980 SC1650  (7)

ACT: Government Servant-Acceptance of Private employment  without Government’s   sanction-Show   cause   notice-Proposal    of alternative Punishment-Legality of notice-Validity of  order of removal from service-Constitution of India, Art. 311(2).

HEADNOTE: The  appellant,  a  Government servant,  was  charged  with having,  contrary to the rules governing the  conditions  of his service, accepted private employment without sanction of Government  while he was still in Government  service.   The Officer who held an enquiry against him found the charge  to be true and submitted a report.  On April 14, 1954, a notice was  issued  to the appellant asking him to  show  cause  in accordance  with  the  provisions  of  Art.  3II(2)  of  the Constitution in the following terms:........... On a careful consideration  of  the  report, and  in  particular  of  the conclusions  reached by the Enquiring Officer in respect  of the   charges   framed  against  you,   the   President   is provisionally  of  opinion  that  a  major  penalty,   viz., dismissal,  removal or reduction should be enforced on  you. Before  he  takes  that action, he desires to  give  you  an opportunity of showing cause against the action proposed  to be  taken.........  The appellant then showed cause  and  on October 1, 1954, the President passed an order removing  the appellant  from service with effect from that date.  It  was contended for the appellant, inter alia, that the show cause notice   dated  April  14,  1954,  stated  all   the   three punishments mentioned in Art. 311(2) and that inasmuch as it did  not  particularise  the  actual  or  exact   punishment proposed to be imposed on the appellant, the notice did  not comply  with the essential requirements of Art. 311(2)  and, therefore,  the  final order of removal passed  on  October, 1‘954, was not a valid order. Held,  that the show cause notice dated April 14, 1954,  did not  contravene  the  provisions  of  Art.  311(2)  of   the

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Constitution. There  is  nothing  wrong  in  principle  in  the  punishing authority  tentatively forming the opinion that the  charges proved  merit  any one of the three major penalties  and  on that footing asking the Government servant concerned to show cause  against  the punishment proposed to be taken  in  the alternative   in  regard  to  him,  because  it  gives   the Government servant better opportunity to show cause  against each  of those punishments being inflicted on him, which  he would not have had if only the severest punishment had  been mentioned  and  a  lesser punishment not  mentioned  in  the notice had been inflicted on him. 893 High  Commissioner     for India and High  Commissioner  for Pakistan  v.  I. M. Lall, (1948) L.R. 75 I.A. 225  and  Khem Chand v.  Union of India, [1958] S.C.R. 1080, explained. Jatindra  Nath  Biswas v. R. Gupta, (1953)  58  C.W.N.  128; Dayanidhi  Rath v. B. S. Mohanty, A.I.R. 1955 Orissa 33  and Lakshmi  Narain Gupta v. A. N. Puri, A.I.R. 1954  Cal.  335, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 288 of 1958. Appeal  by Special Leave from the judgment and  order  dated December  3, 1956, of the Punjab High Court (Circuit  Bench) at Delhi in Letters Patent Appeal No. 25-D of 1956,  arising out  of the judgment and order dated April 9, 1956,  of  the said  High Court (Circuit Bench) at Delhi in Civil Writ  No. 8-D of 1955. N.   C. Chatterjee and R. S. Narula, for the appellant. M.   C. Setalvad, Attorney-General for India, B. Sen and  T. M. Sen, for the respondent 1958.  December 12.  The Judgment of the Court was delivered by S.   K.  DAS, J.-This is an appeal by special leave and  the only question for decision is if the order of the  President dated  October 1, 1954, removing the appellant from  service with  effect  from that date is invalid, as claimed  by  the appellant, by reason of a contravention of the provisions of Art. 311(2) of the Constitution. The  short  facts are these.  The appellant stated  that  he joined  permanent Government service on April 4,  1924.   In 1947,  before  partition,  he  was  employed  as   Assistant Secretary, Frontier Corps of Militia and Scouts in the  then North-Western  Frontier Province, under  the  administrative control of the External Affairs Department of the Government of India.  The appellant stated that the post which be  held then  was  a post in the Central Service, Class  11.   After partition, the appellant opted for service in India and  was posted  to an office under the Ministry of Commerce  in  the Government of India in October, 1947.  In December, 1949, he was  transferred  to the office of the Chief  Controller  of Imports,  New Delhi, to clear off certain arrears  of  work. In August, 1951, he was posted as 894 and  Deputy  Chief  Controller  of  imports,  Calcutta,  and continued  to  work in that post till September,  1952.   He then  took  four  months’ leave on average pay  and  on  the expiry of his leave on January 24, 1953, he was  transferred as  Section officer in the Development Wing of the  Ministry of Commerce.  The appellant thought that the order  amounted to   a   reduction  of  his  rank  and  lie   made   certain representations.  As these representations bore no fruit, he

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applied  for leave preparatory to retirement on February  6, 1953.  In that application the appellant stated: Normally  I  am due to retire in April 1956 but  I  find  it difficult  to  reconcile  myself to the  new  conditions  of service under which I am now placed to work.  I find that  I would  not  be wasting only myself but I would also  not  be doing  full  justice to the’ interest of my  Government  and country in my present environment.  Under the circumstances, I  pray that I may be permitted to retire from the 1st  May, 1953." On  February  14,  1953, the  appellant  amended  his  leave application  and  said that he had been informed  by  the  I -Administrative  Branch  of the Development  Wing  that  the question  of permission to retire was  under  consideration, because  of some difficulty with regard to the inclusion  in the service of the appellant the period during which he held the, post of Assistant Secretary, Frontier Corps;  therefore be  said that he might be granted leave on full average  pay for  four months with effect from February 15, 1953, if  the decision  to give him permission to retire was likely to  be postponed  beyond  May  1,  1953.   He  amended  his   leave application by making the following prayer: "  Leave  may be sanctioned for four months from.  the  15th February, 1953, or up to the date from which I am  permitted to retire whichever may be earlier ". On March 10, 1953, the appellant was informed that he  could  not be allowed to retire at that stage,  but  the Ministry had agreed to grant him leave from February 16,  19 3, to April 30, 1953.  The appellant then went on leave  and on February 25, 1953, he 895 wrote to Government to say that he was contemplating to join the  service of Messrs.  Albert David & Co. Ltd.,  Calcutta, and  for that purpose he was accepting a course of  training in  that  Company  for  two months.   In  April,  1953,  the appellant accepted service under Messrs.  Albert David & Co. Ltd., and he wrote to Government to that effect on April  6, 1953.  On June 16, 1953, the appellant was charged with hav- ing violated r. 15 of the Government Servants’ Conduct Rules and  Fundamental  Rule  11.   Rule  15  of  the   Government Servants’   Conduct  Rules  states,  inter  alia,   that   a Government servant may not without the previous sanction  of Government  engage in any trade or undertake any  employment other  than his public duties.  Fundamental Rule 11 says  in effect  that unless in any case it be  otherwise  distinctly provided,  the whole time of a Government servant is at  the disposal  of the Government which pays him.  A.  P.  Mathur, Joint  Chief  Controller of Imports, was asked  to  hold  an enquiry against the appellant on the charge mentioned above. The  appellant submitted an explanation and an  enquiry  was held  by A. P. Mathur in due course.  The Enquiring  Officer submitted  his  report on September 12, 1953,  in  which  he found  that  the  appellant  had,  contrary  to  the   rules governing  the conditions of his service,  accepted  private employment  without previous sanction of  Government  during the  period  when he was still in  Government  service.   On April  14,  1954, the appellant was asked to show  cause  in accordance  with  the  provisions  of  Art.  311(2)  of  the Constitution.   As  the whole of the argument in  this  case centres round this show cause notice, it is necessary to set it out in full Sir, I  am directed to say that the Enquiry Officer appointed  to enquire   into  certain  charges  framed  against  you   has submitted his report ; a copy of the report is enclosed  for

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your information. 2.   On  a  careful  consideration of  the  report,  and  in particular of the conclusions reached by the Enquiry Officer in  respect of the charges framed against you the  President is provisionally of opinion that a 896 major penalty, viz., dismissal, removal or reduction  should be enforced on you.  Before he takes that action, he desires to  give  you an opportunity of showing  cause  against  the action  proposed to be taken. Any representation  which  you may  make  in  that connection -will be  considered  by  him before taking the proposed action.  Such representation,  if any,  should  be made, in writing, and submitted  so  as  to reach  the  undersigned  not later than  14  days  from  the receipt of this letter by you. Please acknowledge receipt of this letter.  Yours faithfully,       Sd. S. Bhoothalingam, Joint Secretary to the Government of India." The appellant then showed cause and on October 1, 1954,  the President passed an order in which it was stated that  after taking  into  consideration  the  report  of  the  Enquiring Officer   and  in  consultation  with  the  Public   Service Commission,  the  President found that the charge  had  been proved   against  the  appellant  and  the   appellant   was accordingly removed from service with effect from that date. The appellant then moved the Punjab High Court by a petition under  Art.  226  of  the Constitution  in  which  his  main contentions  were (a) that he had no opportunity of  showing cause  against the action proposed to be taken in regard  to him  within the meaning of Art. 311 (2) of the  Constitution and  (b)  that  he  had  asked  for  leave  preparatory   to retirement  and  accepted service under Albert David  &  Co. Ltd.  in  the  bona  fide  belief  that  Government  had  no objection to his accepting such private employment.   Dulat, J., who dealt with the petition in the first instance,  held against  the appellant on both points.  He found that  there was  no contravention of the provisions of Art. 311  (2)  of the  Constitution and on the second point, he held  that  on the  facts admitted in the case there was no doubt that  the appellant  had accepted private employment in  contravention of  the  rules governing the conditions of his  service  and there was little substance 897 in the suggestion of the appellant that he had no sufficient opportunity to produce evidence. The   second  point  no  longer  survives,  and   the   only substantial  point  for  our consideration  is  the  alleged contravention of Art. 311(2) of the Constitution. Mr.  N.  C. Chatterjee, who has appeared on  behalf  of  the appellant,  has  submitted  before us that  the  show  cause notice   dated  April  14,  1954,  stated  all   the   three punishments mentioned in Art. 311 (2) and inasmuch as it did not particularise the actual or exact punishment proposed to be imposed on the appellant, the notice did not comply  with the   essential  requirements  of  Art.  311  (2)   of   the Constitution;  therefore, the final order of removal  passed on October 1, 1954, was not a valid order. In  the recent decision of Khem Chand v. Union of India  (1) this  Court explained the true scope and effect of Art.  311 (2)  of  the Constitution.  It was stated in  that  decision that the reasonable opportunity envisaged by Art. 311 (2) of the   Constitution  included  (a)  an  opportunity  to   the Government  servant  to  deny his guilt  and  establish  his innocence, (b) an opportunity to defend himself, and finally

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(c) an opportunity to make his representation as to why  the proposed punishment should not be inflicted on him, which he can only do if the competent authority after the enquiry  is over and after applying its mind to the gravity or otherwise of  the  charges  proved  against  the  Government   servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.  It  is no   longer   in  dispute  that  the  appellant   did   have opportunities  (a) and (b) referred to above.  The  question before  us is whether the show cause notice dated April  14, 1954, gave the appellant a reasonable opportunity of showing cause  against the action proposed to be taken in regard  to him.   Mr. N. C. Chatterjee has emphasised two  observations made by this Court in Khem Chand’s case (1).  He points  out that  in  connection with opportunity  (c)  aforesaid,  this Court observed that a Government (1) [1958] S.C.R. 1080. 113 898 servant  can only make his representation if  the  competent authority  after the enquiry is over and after applying  its mind  to  the  gravity or otherwise of  the  charges  proved against  the  Government  servant  tentatively  proposes  to inflict  one of the three punishments and  communicates  the same  to the Government servant.  Mr. Chatterjee  emphasises the observation " one of the three punishments ".  Secondly, he  has drawn our attention to the observations made in  the judgment of the Judicial Committee in High Commissioner  for India and High Commissioner for Pakistan v. I. M. Lall  (1), which observations were quoted with approval in Khem Chand’s case (2).  One of the observations made was: "  In the opinion of their Lordships no action is  -proposed within  the  meaning of the sub-section "  (their  Lordships were  dealing    with  sub-section  (3)  of  s.  240  of  the Government of India Act, 1935) " until a definite conclusion has  been come to on the charges, and the actual  punishment to follow is provisionally determined on." Mr. Chatterjee emphasises the expression " actual punishment "  occurring  in  the  said  observations.   It  is  to   be remembered, however, that both in I. M. Lall’s case, (1) and Khem  Chand’s  case (1) the real point of the  decision  was that  no  second  notice had been given  to  the  Government servant  concerned after the enquiry was over to show  cause against  the action proposed to be taken in regard  to  him. In I. M. Lall’s case (1) a notice was given at the same time as  the  charges  were made which  directed  the  Government servant  concerned  to  show cause " why he  should  not  be dismissed,  removed  or reduced or subjected to  such  other disciplinary action as the competent authority may think fit to  enforce,  etc." In other words, the notice was  what  is usually  called a combined notice embodying the  charges  as well  as  the punishments proposed.  Such a notice,  it  was held, did not comply with the requirements of sub-s. (3)  of s.  240.   In Khem Chand’s case (2) also the report  of  the Enquiring  Officer was approved by the Deputy  Commissioner, Delhi, who imposed the (1) (1948) L.R. 75 I.A. 225,242. (2) [1958] S.C.R. 1080. 899 penalty  of dismissal without giving the Government  servant concerned  an opportunity to show cause against  the  action proposed to be taken in regard to him.  In Khem Chand’s case (1) the learned SolicitorGeneral appearing for the Union  of India  sought  to distinguish the decision in I.  M.  Lall’s case  (2)  on  the ground that the notice  there  asked  the

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Government servant concerned to show cause why he should not be  dismissed, removed or reduced or subjected to any  other disciplinary  action,  whereas in Khem Chand’s  case(1)  the notice  issued to the Government servant before the  enquiry mentioned  only  one punishment, namely, the  punishment  of dismissal.   Dealing  with  this  argument  of  the  learned Solicitor-General this Court said (at p. 1100): " A close perusal of the judgment of the Judicial  Committee in  I. M. Lall’s case will, however, show that the  decision in  that  case  did  not  proceed  on  the  ground  that  an opportunity  had  not been given to 1. M. Lall  against  the proposed  punishment  merely because in the  notice  several punishments were included, but the decision proceeded really on  the ground that this opportunity should have been  given after  a stage bad been reached where the charges  had  been established and the competent authority had applied its mind to the gravity or otherwise of the proved charge tentatively and proposed a particular punishment." Therefore,  the  real point of the decision both  in  I.  M. Lall’s  case  (2)  and Khem Chand’s case  (1)  was  that  no opportunity  had  been  given  to  the  Government   servant concerned to show cause after a stage had been reached  when the charges had been established and the competent authority bad  applied  its mind to the gravity or  otherwise  of  the charges proved and tentatively proposed the punishment to be given  to the Government servant for the charges so  proved. It  is true that in some of the observations made  in  those two decisions the words " actual punishment " or  particular punishment " have been used, but those (1) [1958] S.C.R. 1080. (2) (1948) L.R. 75 I.A. 225, 242. 900 observations  must, however, be taken with reference to  the context in which they were made. Let  us  examine a little more carefully  what  consequences will follow if Art. 311(2) requires in every case that the " exact  "  or " actual " punishment to be  inflicted  on  the Government  servant concerned must be mentioned in the  show cause notice issued at the second stage.  It is obvious, and Art.  311  (2) expressly says so, that the  purpose  of  the issue of a show cause notice at the second stage is to  give the Government servant concerned a reasonable opportunity of showing  cause  why the proposed punishment  should  not  be inflicted on him; for example, if the proposed punishment is dismissal, it is open to the Government servant concerned to say in his representation that even though the charges  have been  proved  against  him, he does not  merit  the  extreme penalty  of dismissal, but merits a lesser punishment,  such as removal or reduction in rank.  If it is obligatory on the punishing authority to state in the show cause notice at the second  stage  the " exact " or "  particular  "  punishment which  is  to  be inflicted, then a  third  notice  will  be necessary if the State Government accepts the representation of  the Government servant concerned.  This will be  against the very purpose for which the second show cause notice  was issued. Then,  there is another aspect of the matter which has  been pointedly emphasised by dulat, J. If in the present case the show  cause  notice  had merely  stated  the  punishment  of dismissal  without mentioning the other two punishments,  it would still be open to the punishing authority to impose any of  the  two lesser punishments of removal or  reduction  in rank and no grievance could have been made either about  the show cause notice or the actual punishment imposed.  Can  it be said that the enumeration of the other two punishments in

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the show cause notice invalidated the notice ? It appears to us  that  the  show  cause notice in  the  present  case  by mentioning  the three punishments gave a better  and  fuller opportunity  to the appellant to show cause why none of  the three punishments should be inflicted on him.  We desire to 901 emphasise  here that the case before us is not one in  which the show cause notice is vague or of such a character as  to lead  to the inference that the punishing authority did  not apply  its mind to the question of punishment to be  imposed on  the  Government servant.  The show  cause  notice  dated April  14, 1954, stated in clear terms that " the  President is  provisionally of opinion that a major  penalty,  namely, dismissal, removal or reduction, should be enforced on you." Therefore, the President had come to a tentative  conclusion that the charge proved against the appellant merited any one of  the  three  penalties mentioned therein  and  asked  the appellant  to show cause why any one of the aforesaid  three penalties  should  not be imposed on him.   We  see  nothing wrong  in principle in the punishing  authority  tentatively forming the opinion that the charges proved merit any one of -  the three major penalties and on that footing asking  the Government  servant  concerned  to show  cause  against  the punishment proposed to be taken in the alternative in regard to  him.   To  specify  more  than  one  punishment  in  the alternative  does not necessarily make the  proposed  action any  the  less  definite;  on the  contrary,  it  gives  the Government servant better opportunity to show cause  against each  of those punishments being inflicted on him, which  he would not have had if only the severest punishment had  been mentioned  and  a  lesser punishment not  mentioned  in  the notice had been inflicted on him. We  turn  now to certain other decisions  on  which  learned counsel  for the appellant has relied.  They  are:  Jatindra Nath Biswas v. R. Gupta (1), Dayanidhi Rath v.    B.      S. Mohanty (2) and Lakshmi Narain Gupta v. A.   N.  Puri   (3). In the case of Jatindra Nath Biswas (1) no second show cause notice was given and the decision proceeded on that footing. Sinha, J., observed, however: "Where  there  is  an  enquiry, not only  must  he  have  an opportunity of contesting his case before the (1) [1953] 58 C.W.N. 128.    (2) A.I.R. 1955 Orissa 33.           (3) A.I.R. 1954 Cal. 3.35- 902 enquiry, but, before the punishment is imposed upon him,  he must  be told about the result of the enquiry and the  exact punishment which is proposed to be inflicted." Mr. Chatterjee has emphasised the use of the word " exact ". As  we  have  pointed  out,  the  decision  proceeded  on  a different footing and was not rested on the ground that only one  punishment must be mentioned in the second  show  cause notice.  The decision in Dayanidhi Rath’s case (1) proceeded on  the  footing that if the punishment that  is  tenatively proposed against a civil servant is of a graver kind, he can be  awarded  punishment  of  a  lesser  kind;  but  if   the punishment that is tentatively proposed is of a lesser kind, there will be prejudice in awarding a graver form of punish- ment.   What happened in that case was that the  show  cause notice  stated  that  in view  of  the  Enquiring  Officer’s findings  contained in the report with which  the  Secretary agreed  and  in  consideration of the  past  record  of  the Government servant concerned, it was proposed to remove  him from Government service; in another part of the same notice, however,  the Government servant concerned was  directed  to show  cause  why  the penalty of  dismissal  should  not  be

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inflicted for the charges proved against him.  Thus, in  the same  notice two punishments were juxtaposed in such  a  way that  it was difficult to say that the  punishing  authority had applied its mind and tentatively come to a conclusion as to what punishment should be given.  It was not a case where the  punishing  authority  said  that  either  of  the   two punishments  might  be imposed in the  alternative;  on  the contrary, in one part of the notice the punishing  authority said  that it was proposed to remove the Government  servant concerned and in another part of the notice it said that the proposed  punishment  was  dismissal.   In  Lakshmi   Narain Gupta’s  case (2) the notice called upon the  petitioner  to show  cause  why disciplinary action, such as  reduction  in rank,  withholding of increments, etc., should not be  taken against him.  The learned Judge pointed out (1) A.I.R. 1955 Orissa 33. (2) A.I.R. 1954 Cal- 335. 903 that there were seven items of penalties under r. 49 of  the Civil  Service (Classification, Control and  Appeal)  Rules, and the notice did not indicate that the punishing authority had applied its mind and come to any tentative conclusion as to  the  imposition of any of the punishments  mentioned  in that  rule.  On that footing it was held that there  was  no compliance  with  the  provisions  in  Art.  311(2)  of  the Constitution.  We do not, therefore, take these decisions as laying  down  that  whenever more  than  one  punishment  is mentioned  in the second show cause notice, the notice  must be  held  to be bad.  If these decisions lay down  any  such rule, we must hold them to be incorrect. We  have come to the conclusion that the three decisions  on which  learned  counsel  for the appellant  has  placed  his reliance  do  not  really  support  the  extreme  contention canvassed  for by him, and we are further of the  view  that the  show cause notice dated April 14, 1954, in the  present case  did not contravene the provisions of Art. 311  (2)  of the   Constitution.    The  appellant   had   a   reasonable opportunity of showing cause against the action proposed  to be taken in regard to him. This  disposes of the principal point in controversy  before us.    Mr.  Chatterjee  referred  to  certain  mistakes   of reference  in  the order of the President dated  October  1, 1954.   Instead  of  referring to r. 15  of  the  Government Servants’  Conduct Rules, r. 13 was referred to.  There  was also a reference to para. 5 of a particular Government order which   prohibited  Government  servants  from   taking   up commercial  employment within two years of retirement.   Mr. Chatterjee  submitted  that this particular  order  did  not apply  to Government servants in Class 11.  We do not  think that the inaccurate references were of any vital importance. In  effect and substance the order of removal dated  October 1, 1954, was based on the ground that the appellant violated r. 15 of the Government Servants’ Conduct Rules and r. II of the  Fundamental  Rules;  he  accepted  private   employment without  sanction  of  Government  while  he  was  still  in Government  service.   That was the basis  for  the  enquiry against 904 the  appellant  and  that was the basis  for  the  order  of removal passed against him. For  these  reasons we hold that there is no  merit  in  the appeal which must accordingly be dismissed with costs. Appeal dismissed.

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