http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14  

PETITIONER: KHEM CHAND

       Vs.

RESPONDENT: THE UNION OF INDIA AND OTHERS

DATE OF JUDGMENT: 13/12/1957

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA DAS, S.K. SARKAR, A.K. BOSE, VIVIAN

CITATION:  1958 AIR  300            1958 SCR 1080

ACT:    Constitution,  Interpretation of-’Reasonable  opportunity of  showing  cause’, Meaning of-Punishment of  dismissal  on Government   Servant-Constitutional    Protection-Procedure- Constitution of India, Art. 311(2).

HEADNOTE:    Reasonable  opportunity to show cause’ in Art. 311(2)  Of the Constitution contemplates not merely the opportunity  to do  so  at  the enquiry stage but also  when  the  competent authority,  as a result of the enquiry, proposes to  inflict one of the three punishments mentioned in the Article on the delinquent  servant.   Such  reasonable  opportunity   must, therefore, include,-    (1)    opportunity  to deny his guilt and  establish  his innocence which means that he must be told what the  charges against him                             1081 are and the allegations on which such charges are based ;    (2)opportunity  to cross-examine the  witnesses  produced against  him and examine himself or other witnesses  on  his behalf and,    (3)opportunity to show that the proposed punishment would not  be the proper punishment to inflict, which  means  that the  tentative determination of the competent  authority  to inflict one of the three punishments must be communicated to him.    High Commissioner for India v. I.M. Lall, L.R. (1948)  75 I.A. 225, explained and relied on.    Secretary of State for India v. I. M. Lall, (1945) F.C.R. I03, not followed.    Parshotam Lal Dhingra v. The Union of India, and Venkata Rao v. Secretary of State for India, L.R. (1936) 64 I.A. 55, referred to.    The  procedure  followed in such cases  must,  therefore, include the giving of two notices to the servant, one at the enquiry Stage and the other when the competent authority, as a result of the enquiry, tentatively determines to inflict a particular punishment on him.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14  

   Consequently,  in  a case where the  Government  Servant sought  to  be proceeded against for misconduct  was  served with  a  charge-sheet  and  appeared  before  two   officers conducting  the enquiry, one after the other, but no  notice was  served upon him when the competent  authority  accepted the report and confirmed the opinion that the punishment  of dismissal  should be inflicted on him, and no  cause  could, therefore, be shown by him, the provision of Art. 311(2) had not  been  fully complied with and the  order  of  dismissal passed against him must be declared void and inoperative.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  353  of 1957.    Appeal  by  special leave from the  judgment  and  decree dated  November 1, 1955, of the Punjab High  Court  (Circuit Bench)  at Delhi in Regular Second Appeal No. 28-D of  1955, arising  out of the judgment and decree dated  December  31, 1954, of the Court of the Senior Subordinate Judge at  Delhi in  Regular  Civil  Appeal No. 685 of  1954,  affirming  the judgment  and decree of Subordinate Judge Third Class  Delhi in Suit No. 273/213 of 1953.    Janardhan Sharma, for the appellant.    C.     K. Daphtary, Solicitor-General of India, R.  Gana- pathy Iyer and R. H. Dhebar, for the respondents. 1082 1957.  December 13.  The following Judgment of the Court was delivered by     DAS  C. J.-This appeal by special leave granted by  this Court  to  the plaintiff-appellant is directed  against  the judgment and decree passed on November 1, 1955, by a  single Judge of the Punjab High Court sitting in the Circuit  Bench at Delhi in regular second appeal No. 28-D of 1955.    The facts leading up to the present appeal are shortly as follows:  On  April 6, 1943, the appellant was  appointed  a sub-inspector under the Delhi Audit Fund.  In February 1947, he was transferred to the Co-operative Societies  Department and  posted as subinspector in the Milk Scheme.  On July  3, 1947,  the  the appellant was confirmed by the  then  Deputy Commissioner of Delhi who was also the ex-officio  Registrar of Co-operative Societies.  On August 1, 1948, the appellant was transferred to the Rehabilitation Department of the  Co- operative Societies and posted as sub-inspector.  On July 1, 1949,  the  appellant  was  suspended  by  the  then  Deputy Commissioner,  Delhi.   On July 9, 1949, the  appellant  was served with a charge sheet under r. 6(1) of the Rules  which had been framed by the Chief Commissioner, Delhi to  provide for  the appointment to the subordinate services  under  his administrative  control  and the discipline  and  rights  of appeal  of  members of those  services.   After  formulating eight  several charges the document concluded as follows:  " You are, therefore, called upon to show cause why you should not be dismissed from the service.  You should also state in your reply whether you wish to be heard in person or whether you will  produce  defence.   The  reply  should  reach  the Asst.Registrar,  Co-operative Societies, Delhi,  within  ten days   from  the  receipt  of  this  charge   sheet".    The chargesheet  was signed by Shri Rameshwar Dayal who  was  at that   time  the  Deputy  Commissioner  of  Delhi  and   was admittedly the authority competent to dismiss the appellant.   The  appellant duly submitted his explanation in  writing. One Shri Mahipal Singh, Inspector, Co.                             1083

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14  

operative   Societies   was   appointed   by   the    Deputy Commissioner,  Delhi the officer to hold the  enquiry.   The appellant  attended two sittings before the Enquiry  Officer and  then applied to the Deputy Commissioner to entrust  the enquiry to some Gazetted Officer under him.  This request of the appellant was rejected and he was informed  accordingly. Indeed,  the appellant was warned that the  Enquiry  Officer had been authorised to proceed with the enquiry ex parte  if the appellant failed to attend the enquiry.  The  appellant, however, did not, after October 20, 1949, attend any further sittings  before the Enquiry Officer.  The  Enquiry  Officer thereupon   framed  four  additional  charges  against   the appellant,  namely,  (1)  for  his  refusal  to  attend  the enquiry,  (2) for his refusal to accept the service  of  the order  of the Enquiry Officer, (3) for his  absence  without permission  and  (4) for his misconduct  in  snatching  away papers  from one Mohd.  Ishaq and using unparliamentary  and threatening language.    It  appears  that  at or about this  time  the  appellant became involved in a criminal case on a charge under s.  307 of  the  Indian Penal Code and on October 30, 1949,  he  was actually arrested but was released on bail two or three days later.   Eventually  on  May 20,  1950,  the  appellant  was discharged from the criminal charge.     On  November 14, 1951, the appellant was served  with  a notice  signed by one Shri Vasudev  Taneja,  Superintendent. The notice was in the following terms:  "Please  note   that you  are  to  appear  before Shri J.B.  Tandon,  1.  A.  S., Additional District Magis-trate,on the 24th November,  1951, at  10-30  a.m., in his court room in  connection  with  the departmental  enquiry  pending against you".   The  language employed in the notice does lead some support to the conten- tion  that the Enquiry Officer, Shri Mahipal Singh, had  not concluded  the  enquiry  entrusted  to  him  and  that   the departmental enquiry was still pending.   Pursuant to the notice the appellant appeared before  Shri J. B. Tandon and urged two points, namely, (1) 138 1084 that the enquiry of the charges framed against him ought  to have  been held by a Gazetted Officer of the District  Court and  (2)  that  the enquiry should have  been  held  in  his presence.   It will be noticed that both the points  related to  the enquiry before Shri Mahipal Singh.  On December  13, 1951,  Shri J. B. Tandon made a report.  After reciting  the charge   sheet  containing  the  notice  calling  upon   the appellant to show cause why he should not be dismissed  from service and setting out the charges contained in the  notice and  summarising the explanation submitted by the  appellant with  regard to each of the charges and reciting the  prayer of the appellant that the Enquiry Officer should be  changed and  the  rejection thereof and the  framing  of  additional charges  and the appellant’s absence from the  enquiry  with effect  from October 20, 1949, the report proceeded  to  set out the actual charges which Shri Mahipal Singh was appoint- ed to enquire into.  The report then stated that the enquiry with  regard to the first two charges had been held  in  the presence of the appellant and the rest were enquired into ex parte  as  the  appellant  had  absented  himself  from  the enquiry.   Then the report recited that twelve  charges  had been  proved  against  the appellant and he  was  given  the benefit of doubt in respect of charge No. (iii) and that  no charge  sheet  had been given with regard  to  charges  Nos. (xiii) and (xiv) and that no enquiry had been held on  those charges.  Out of the twelve charges said to have been proved

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14  

against  the  appellant,  Shri J. B. Tandon  found  that  no charge had been actually framed in one case and,  therefore, he  reduced  the  number of proved  charges  to  eleven  and proceeded to base his recommendation on them.  After stating that  the  charges of embezzlemient, acceptance  of  illegal gratification and borrowing of money from societies were  so serious that even one of them alone was sufficient to demand the  appellant’s dismissal and that the entries made in  his character  roll disclosed that his work and conduct had  not been  satisfactory and explaining that the enquiry had  been held  up  by reason of the appellant having  been  challaned under s. 307, Indian Penal Code, Shri J. B.                             1085 Tandon,  in his report, formulated the following points  for consideration: namely, (1) what penalty should be imposed on Shri  Khem Chand for the eleven charges proved against  him? (2)  Whether  his gun licence should be  cancelled  and  (3) whether the dues of societies, which had been proved,  might be  realised out of the security deposit furnished  by  him? Then, after stating that a personal hearing was given to the appellant  who  raised the two points  mentioned  above  and holding  that  there  was no substance in  either  of  them, paragraph 16 of the report ran as follows:    "  The  charges of embezzlement,  acceptance  of  illegal gratification,  making wrong statement, misbehaviour at  the time  of  enquiry and refusal to receive  orders  to  attend enquiry  which  had been proved against him are  so  serious that,  I am sorry, I cannot suggest lesser  punishment  than dismissal from service and he may be dismissed."    The  report  also recommended that  the  appellant’s  gun licence  be cancelled and that he be directed  to  surrender his licence and deposit the gun in the district Malkhana and that the money, which had been proved to have been taken  by the   appellant  from  various  societies,  might  also   be recovered from the security deposit furnished by him.  There is no positive and definite statement in Shri J. B. Tandon’s report that Shri Mahipal Singh had concluded the enquiry  or submitted a formal report.  The general tenor of Shri J.  B. Tandon’s  report, however suggests that Shri  Mahipal  Singh did  arrive,  at definite findings on twelve  charges.   The appellant’s grievance is that he was not given a copy of the report  of Shri Mahipal Singh, if any had been made, and  no such report has been exhibited in this case.    At  the foot of Shri J. B. Tandon’s report the  following endorsement  appears  over  the  signature  of  the   Deputy Commissioner,  Delhi  under date December 14,  1951:  "  The report  is  approved.   Action  accordingly."  Thereupon  on December  17,  1951,  a formal order  was  issued  over  the signature of the Deputy Commissioner, Delhi.  It was in  the following terms: - 1086   "I,  the undersigned, do hereby dismiss Shri  Khem  Chand, sub-inspector,  Co-operative  Societies,  Delhi,  from   the Government Service with effect from the date of this  order. He  has  been found guilty of the charges  of  embezzlement, acceptance   of   illegal   gratification,   making    wrong statement,misbehaviour  at  the  time  of  the  enquiry  and refusal  to receive order to attend the enquiry.  I  further order that money which has been proved to have been taken by Shri Khem Chand from various societies be recovered from the security deposit furnished by him.    On  March 15, 1952, the appellant appealed to  the  Chief Commissioner,  but his appeal was dismissed on  December  8, 1952.   Thereafter the appellant served a notice of suit  on the  respondents under s. 80 of the Code of Civil  Procedure

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14  

and  on  May  21, 1953, filed civil suit  No.  213  of  1953 complaining,  inter  alia,  that Art. 311(2)  had  not  been complied  with.   The suit was decreed  by  the  subordinate judge, Delhi on May 31, 1954, declaring that the plaintiff’s dismissal  was void and inoperative and that  the  plaintiff continued to be in the. service of the State of Delhi at the date  of the institution of the suit and awarding  costs  to the  plaintiff.   The  Union of India  preferred  an  appeal against  the judgment of the subordinate judge,  Delhi,  but the  appeal was dismissed by the senior  subordinate  judge, Delhi  on  December 21, 1954, and the decree  of  the  trial court  was  confirmed.   A second appeal was  taken  by  the defendants to the Punjab High Court.  By his judgment  dated November 1, 1955, the Single Judge held that there had  been a substantial compliance with the provisions of Art. 311 and accordingly accepted the appeal, set aside the decree of the courts  below  and  dismissed  the  plaintiff’s  suit.    On September 6, 1956, the plaintiff obtained special leave from this  Court and has preferred this appeal against the  order of  the learned Single Judge.  The appellant has  also  been allowed to prosecute the appeal in forma pauperis.    In the courts below a point was raised as to whether  the appellant was a member of any of the services                             1087 referred  to in Art. 311.  But it was a conceded before  the High  Court  and has also been admitted before us  that  the appellant was such a member and consequently that point does not  arise.  The only point that has been  canvassed  before us,  as  it  had been before the High  Court,  is:  Was  the appellant  given a reasonable opportunity of  showing  cause against the action proposed to be taken in regard to him ?    There is no dispute that the appellant was served with  a charge  sheet  on July 9, 1949, as required by r. 6  of  the Rules which had been framed by the Chief Commissioner, Delhi and  which governed the appellant’s conditions  of  service. It is also conceded that the appellant actually appeared  at two hearings before the Enquiry Officer, Shri Mahipal Singh, but that subsequently he wanted a transfer of the enquiry to some other officer and that that prayer having been  refused he did not take any further part in the enquiry before  that officer.  There is no grievance that no opportunity had been given to him to defend himself against the charges  levelled against  him in that enquiry.  It is also an  admitted  fact that  some time after the appellant was discharged from  the criminal  case, be received a notice on November  14,  1951, requiring him to appear before Shri J. B. Tandon on November 25,  1951,  in  connection with the  pending  enquiry.   The appellant did appear on the appointed day, bad been given  a personal  hearing and in fact raised two several  objections against  the enquiry held by Shri Mahipal Singh.   His  only grievance  is  that, after Shri J. B. Tandon  had  made  his report  on December 13, 1951, recommending the dismissal  of the  appellant and the Deputy Commissioner had on  the  very next day approved of the report and proposed to take  action accordingly,  the appellant was not given an opportunity  to show  cause against the action so pro. posed to be taken  in regard  to him, as he was entitled to under Art. 311 of  the Constitution.    In order to appreciate the arguments advanced by  learned counsel  for the parties, it is necessary at this  stage  to set out the provisions of the Constitution qearing on  them. The relevant portions of Arts. 310 1088 and  311 of the Constitution, which substantially  reproduce sub-ss.  (1),  (2) and (3) of s. 240 of  the  Government  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14  

India Act, 1935, are as follows:-    "   310(1)   Except  as  expressly   provided   by   this Constitution,  every  person who is a member  of  a  defence service  or  of a civil service of the Union or of  an  all- India  service or holds any post connected with  defence  or any  civil  post under the Union, holds  office  during  the pleasure-of the President, and every person who is a  member of a civil service of a State or holds any civil post  under a State holds office during the pleasure of the Governor  of the State.    (2)......................................................    311(1)  No person who is a member of a civil  service  of the  Union or an all-India service or a civil service  of  a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to  that by which he was appointed.   (2)No  such  person  as aforesaid shall  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:    Provided.................................................   (3)  If  any  question arises  whether  it  is  reasonably practicable to give to any person an opportunity of  showing cause  under  clause  (2),  the  decision  thereon  of   the authority  empowered to dismiss or remove such person or  to reduce him in rank, as the case may be, shall be final."   The answer to the question canvassed before us depends  on a  true  construction of the aforesaid  pro,visions  and  in particular on the view we take as to the meaning, scope  and ambit  of Art. 311(2).  In Parshotam Lal Dhingra’s case  (1) it  wag said that the word "removed " was not in  s.  240(3) but had been introduced in Art. 311(2).  It may be mentioned that although the word " removed " was not actually used  in s. 240(3), the reference to dismissal, according to s. 277, included a reference to removal.    (1)  Civil Appeal No. 65 Of 1957, decided on November  1, 1957.                             1089    Article  310(1)  no  doubt  provides  that  every  person falling  within it holds office during the pleasure  of  the President or the Governor, as the case may be.  The language of both cls. (1) and (2) of Art. 311 are prohibitory in form and was held by the Judicial Committee in High  Commissioner for  India  v. 1. M. Lal (1) to be inconsistent  with  their being  merely permissive and consequently  those  provisions have to be read as qualifications or provisos to Art. 310(1) as has been held by the Judicial Committee in that case  and recently by this Court in Parshotam Lal Dhingra v. The Union of  India(2) in a judgment pronounced on November  1,  1957. The limitations thus imposed on the exercise of the pleasure of  the  President  or the Governor in  the  matter  of  the dismissal,  removal  or  reduction  in  rank  of  government servants  constitute  the  measure  of  the   constitutional protection  afforded  to  the government  servants  by  Art. 311(2).   Clause  (1)  of Art. 311 is quite  explicit  and  protects government  servants  of the kinds referred  to  therein  by providing  that  they cannot be dismissed, or re.  moved  or reduced  in  rank  by  a lesser authority  than  that  which appointed  them.   Likewise  cl.  (2)  protects   government servants against being dismissed, removed or reduced in rank without  being given a reasonable opportunity to show  cause against  the action proposed to be taken in regard to  them. As  has  been  explained  by this  Court  in  Parshotam  Lal Dhingra’s  case (2), the expressions ’dismissed’,  ’removed’

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14  

and  ,reduced  in rank’ are technical words taken  from  the service rules where they are used to denote the three  major categories of punishments.    In  exercise  of powers conferred by s.  96-B(2)  of  the Government  of  India Act, 1915, the Secretary of  State  in Council   framed   Civil   Service   (Governors    Provinces Classification) Rules.  Rules (x) and (xiii) of those  rules provided   that  local  government  might,  for   good   and ,sufficient reasons, inflict the several punishments therein mentioned   on  persons  therein  indicated.    Rule   (xiv) prescribed  the procedure for all cases in which  dismissal, removal or reduction in rank of any officer was intended (1)  L.R. (1948) 75 I.A. 225 at P. 241. 1090 to  be  ordered.   These rules  were  reproduced  with  some modifications in the Civil Services (Classification, Control and Appeal) Rules which were, on May 27, 1930,  ,promulgated by the Secretary of State in Council in exercise of the same powers  under s. 96-B of the Government of India Act,  1915. Rule  49 of those rules specified seven different  kinds  of punishments which could, for good and sufficient reasons, be imposed upon the members of the services therein  specified. Rule  55 reproduced old r. (xiv) with greater  details.   It provided:    "  Without  prejudice  to the provisions  of  the  Public Servants  (Inquiries)  Act,  1850, no  order  of  dismissal, removal  or  reduction  shall be passed on  a  member  of  a Service  (other than an order based on facts which have  led to his conviction in a criminal court or by a Court Martial) unless  he  has been informed in writing of the  grounds  on which  it is proposed to take action, and has been  afforded an adequate opportunity of defending himself The grounds  on which it is proposed to take action shall be reduced to  the form of a definite charge or charges which shall be communi- cated  to the person charged, together with a  statement  of the  allegations  on which each charge is based and  of  any other  circumstances  which  it is  proposed  to  take  into consideration  in  passing orders on the case  He  shall  be required,  within  a reasonable time, to put  in  a  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 direct, an oral inquiry shall be held.  At that inquiry  oral  evidence  shall be heard as to  such  of  the allegations  as  are not admitted, and  the  person  charged shall  be  entitled to crossexamine the witnesses,  to  give evidence in person and to have such witnesses called, as  he may  wish, provided that the officer conducting the  inquiry may,  for  special and sufficient reason to be  recorded  in writing,  refuse to call a witness.  The  proceedings  shall contain a sufficient record of the evidence and a  statement of  the findings and the grounds thereof.  This  rule  shall not apply where the person concerned has absconded,                             1091 or  where  it  is for other reasons  impracticable  to  com- municate with him.  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 a  difficulty in observing exactly the requirements  of  the rule and those requirements can be waived without  injustice to the person charged."    Similar  rules  were framed and are to be  found  in  the Indian Railway Establishment Code which governs the  railway servants.   Rule  6  of  the  Rules  framed  by  the   Chief Commissioner,  Delhi, referred to above, is more or less  on the same lines.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14  

  In R. Venkata Rao v. Secretary of State for India it was held,  with reference to the rules made under s.96-B of  the Government  of  India  Act, 1915, that  while  that  section assured that the tenure of office, though at pleasure, would not be subject to capricious and arbitrary action, but would be  regulated  by  the  rules,  it  gave  no  right  to  the appellant,  enforceable  by action, to hold  his  office  in accordance  with those rules.  It was held that s. 96-B  and the  rules  made  thereunder only made  provisions  for  the redress  of  grievances  by  administrative  process.    The position  of the Government servant was,  therefore,  rather insecure,  for his office being held during the pleasure  of the Crown under the Government of India Act, 1915, the rules could  not  over-ride or derogate from the statute  and  the protection  of the rules could not be enforced by action  so as to nullify the statute itself.  The only protection  that the  Government servants had was that, by virtue of  s.  96- B(1),   they  could  not  be  dismissed  by   an   authority subordinate  to  that  by which they  were  appointed.   The position,  however, improved to some extent under  the  1935 Act  which,  by  s. 240(3), gave a  further  protection,  in addition to that provided in s. 240(2) which reproduced  the protection  of  s 96-B(1) of the Government  of  India  Act, 1915.   We have, therefore, to determine the  true  meaning, scope and ambit of this now protection given by s. 240(3) of (1) L. R. (1936) 64 I.A. 55. 139 1092 the Government of India Act, 1935, which has been reproduced in Art. 311(2).    The  majority of the Judges of the Federal Court  (Spens, C.J., and Zafarulla Khan, J.) in I. M. Lall’s case (1)  took the view that in sub-s. (3) of s. 240 there had been enacted provisions  of a very limited scope in  permanent  statutory form  as  compared  with  the  provisions  under  the  rules considered  in Venkata Rao’s case (2).  Further down,  after referring  to  the  fact  that  prior  to  1935  a  sort  of protection for the servants of the Crown provided by  sub-s. (3)  was merely to be found in the rules, many  and  various and  liable  to change, their Lordships proceeded  to  state that from those rules had been picked out and enacted in the section  itself  certain limited specific  provisions  only. The  majority of the Federal Court at page 138 construed  s. 240(3) as follows:   "In our judgment the words "against the action proposed to be  taken in regard to him " require that there should be  a definite  proposal  by some authority either  to  dismiss  a civil  servant or to reduce him in rank or alternatively  to dismiss  or reduce him in rank as and when final action  may be determined upon.  It should be noted that the sub-section does not require any inquiry, any formulation of charges, or any opportunity of defence against those charges.  All  that it  expressly  requires  is that where  it  is  proposed  to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him.  It is also significant that there is  no indication as to the authority by whom the action  is to be proposed.  It does, however, seem to us that the  sub- section requires that as and when an authority is definitely proposing  to dismiss or to reduce in rank a member  of  the civil  service he shall be so told and he shall be given  an opportunity of putting his case against the proposed  action and as that opportunity has to be a reasonable  opportunity, it   seems  to  us  that  the  section  requires  not   only notification  of the action proposed but of the  grounds  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14  

which the authority is proposing that the (I) (1945) F.C.R. I03, 136. (2) L.R. (1936) 64 I.A. 55 1093 action  should be taken, and that the person concerned  must then  be given reasonable time to make  his  representations against  the proposed action and the grounds on which it  is proposed to be taken.  It is suggested that in some cases it will be sufficient to indicate the charges, the evidence  on which  those  charges are put forward and to make  it  clear that  unless  the person can on that information  show  good cause  against being dismissed or reduced if all or  any  of the charges are proved, dismissal or reduction in rank  will follow.   This may indeed be sufficient in some  cases.   In our  judgment each case will have to turn on its own  facts, but  the  real point of the sub-section is in  our  judgment that the person who is to be dismissed or reduced must  know that  that  punishment  is proposed as  the  punishment  for certain  acts or omissions on his part and must be told  the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why  such punishment  should  not be imposed.  That  in  our  judgment involves  in  all cases where there is an enquiry and  as  a result thereof some authority definitely proposes  dismissal or  reduction  in rank, that the person concerned  shall  be told in full, or adequately summarised form, the results  of that enquiry, and the findings of the enquiring officer  and be   given  an  opportunity  of  showing  cause  with   that information why he should not suffer the proposed  dismissal or reduction of rank.  " The above passage indicates that in the view of the majority of the judges of the Federal  Court s.  240(3)  corresponding  now to art.  311(2)  does  not  " require  any  inquiry,  any formulation of  charges  or  any opportunity to defend against those charges ". According  to them  " all that it expressly requires is that where  it  is proposed  to  dismiss or reduce in rank a civil  servant  he should  be  given reasonable opportunity  of  showing  cause against  the  proposal  to dismiss  or  reduce  him  ".Their Lordships  added  that  as  that opportunity  had  to  be  a reasonable opportunity the section must be taken to  require "not  only  notification of the action proposed but  of  the grounds on which the authority is proposing that the  action should be 1094 taken  and  that  the person concerned must  then  be  given reasonable  time  to -make his representations  against  the proposed action and the grounds on which  sit is proposed to be  taken  ".  It is quite clear that the  majority  of  the Federal  Court put a somewhat narrow interpretation  on  the relevant   provision  in  that  they  considered  that   the requirement  of  reasonable opportunity contemplated  by  it arose  only  at a later stage when the  competent  authority definitely  proposed  to take a particular action  and  that this  opportunity  did  not cover the  earlier  stage  where charges were formulated and enquired into.    Varadachariar, J... in his dissenting judgment took  much the same view on this point as did the High Court.  The High Court observed as follows:   "The  plaintiff’s  contention  is  that  this  opportunity should  have been afforded to him after the finding  of  the enquiring  officer  had been considered and  the  punishment decided upon.  With this contention we are unable to  agree. Eight charges were served on the plaintiff and at the end he was  asked  to show cause why he should ’not  be  dismissed, removed  or reduced or subjected to such other  disciplinary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14  

action  as the competent authority may think fit to  enforce for breach of Government Rules and conduct unbecoming to the Indian Civil Service.  He was aware ’from the very start  of the enquiry against him that removal from service was one of the  various actions that could have been taken against  him in  the event of some or all the charges being  established, and in this sense he was showing cause during the course  of the  inquiry against the action proposed.   The  plaintiff’s contention  that there should be two enquiries the first  to establish  that  be  had  been  guilty  and  the  second  to determine  what  should be the appropriate  punishment,  and that in each stage he should have reasonable and independent opportunities to defend and show cause does not appear to be correct or intended by the Legislature (1).  "    In  agreement with the High Court Varadachariar  J.  held that the requirements of sub-s. (3) of s. 240 (1)  (1944) I. L. R. 25 Lah. 325, 347, 348.                             1095 demanded  nothing  beyond what was required  for  compliance with  the  provisions  of  r.  55  of  the  Civil   Services (Classification,  Control and Appeal) Rules.   His  Lordship found  nothing in the language of el. (3) to  indicate  that anything  more or anything different was contemplated or  to suggest that a further opportunity was to be given after the enquiry  had been completed in the presence of  the  officer charged and the enquiring officer had made his report.   The learned  Judge was unable to accept the suggestion that  the words of the statute were appropriate only to the stage when the   authorities  would  be  in  a  position  to   indicate definitely  what  action  they  intended  to  take,  namely, whether  it was to be one of dismissal or one  of  reduction and  that this could be predicated only after the  Enquiring Officer had made his report.    In our judgment neither of the two views can be  accepted as a completely correct exposition of the intendment of  the provisions  of  s. 240(3) of the Government  of  India  Act, 1935,  now  embodied  in Art. 311(2)  of  the  Constitution. Indeed the learned Solicitor-General does riot contend  that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the  later stage of showing cause against the punishment proposed to be imposed on him.  We think that the learned Solicitor General is  entirely  right  in  not pressing  for  such  a  limited construction  of the provisions under consideration.  It  is true  that  the  provision  does not,  in  terms,  refer  to different stages at which opportunity is to be given to  the officer concerned.  All that it says is that the  government servant  must be given a reasonable opportunity  of  showing cause  against the action proposed to be taken in regard  to him.   He  must not only be given an  opportunity  but  such opportunity  must  be a reasonable one.  In order  that  the opportunity to show cause against the proposed action may be regarded  as  a  reasonable  one,  it  is  quite   obviously necessary  that  the  government  servant  should  have  the opportunity,  to say, if that be his case, that he  has  not been guilty of any misconduct to merit any punishment at all and also that the particular punish- 1096 ment  proposed to be given is much more drastic  and  severe than he deserves.  Both these pleas have a direct bearing on the question of punishment and may    well be put forward in showing  cause against the proposed punishment.  If this  is the  correct meaning of the clause, as we think it is,  what consequences  follow  ?   If it is open  to  the  governmnet servant  under  this provision to contend, if  that  be  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14  

fact,  that he is not guilty of any misconduct then how  can he  take  that  plea unless he is told  what  misconduct  is alleged against him?  If the opportunity to show cause is to be  a reasonable one it is clear that he should be  informed about  the  charge or charges levelled against him  and  the evidence by which it is sought to be established, for it  is only  then that he will be able to put forward his  defence. If  the purpose of this provision is to give the  government servant an opportunity to exonerate himself from the  charge and if this opportunity is to be a reasonable one he  should be  allowed  to show that the evidence against  him  is  not worthy of credence or consideration and that he can only  do if  he  is  given a chance to  cross-examine  the  witnesses called  against  him  and to examine himself  or  any  other witness  in support of his defence.  All this appears to  us to  be implict in the language used in the clause, but  this does not exhaust his rights.  In addition to showing that he has  not  been guilty of any misconduct so as to  merit  any punishment,  it  is reasonable that he should also  have  an opportunity  to contend that the charges proved against  him do   not  necessarily  require  the  particular   punishment proposed to be meted out to him.  He may say, for  instance, that  although he has been guilty of some misconduct  it  is not  of such a character as to merit the extreme  punishment of  dismissal  or even of removal or reduction in  rank  and that any of the lesser punishments ought to be sufficient in his case.   To summarise: the reasonable opportunity envisaged by  the provision under consideration includes-   (a)  An  opportunity to deny his guilt and  establish  his innocence, which he can only do if he is told what                             1097 the charges levelled against him are and the allegations  on which such charges are based;     (b)   an opportunity to defend himself by crossexamining the witnesses produced against him and by examining  himself or  any  other  witnesses in support  of  his  defence;  and finally    (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 his 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.  In short the substance of the protection  provided by  rules, like r. 55 referred to above, was  bodily  lifted out of the rules and together with an additional opportunity embodied in s. 240 (3) of the Government of India Act,  1935 so  as  to  give astatutory  protection  to  the  government servants and has now been incorporated in Art. 311 (2) so as to convert the protection into a constitutional safeguard.    We find support for our above mentioned conclusion in the judgment of the Judicial Committee in I. M. Lall’s case (1). It is true that after quoting a portion of the passage  from the  judgment of the majority of the Federal Court  set  out above  their Lordships at page 242 stated that  they  agreed with  the view taken by the majority of the  Federal  Court, but their Lordships did not stop there and went on to say:   " In their opinion, sub-s. 3 of s. 240 was not intended to be,  and  was not, a reproduction of r. 55, which  was  left unaffected as an administrative rule. , Rule 55 is concerned that the civil servant shall be informed " of the grounds on which it is proposed to take action ", and to afford him  an adequate  opportunity of defending himself  against  charges

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14  

which  have  to  be reduced to writing; this  is  in  marked contrast  to  the  statutory provision  of  "  a  reasonable opportunity of showing cause against the action proposed  to be taken in regard to him ". In the (1)  L.R. (1948) 75 I.A. 225 at 241. 1098 opinion of their Lordships, no action is proposed within the meaning  of the sub-section until a definite conclusion  has been  come to on the charges, and the actual  punishment  to follow  is provisionally determined on.  Before that  stage, the  charges are unproved and the suggested punishments  are merely hypothetical.  It is on that stage being reached that the  statute  gives the civil servant  the  opportunity  for which sub-s. 3 makes provision.  Their Lordships would  only add that they see no difficulty in the statutory opportunity being  reasonably afforded at more than one stage.   If  the civil  servant has been through an inquiry under r.  55,  it would not be reasonable that he should ask for a  repetition of  that  stage,  if duly carried out, but  that  would  not exhaust his statutory right, and he would still be  entitled to  represent against the punishment proposed as the  result of the findings of the inquiry."     The above passage quite clearly explains that the  point on  which their Lordships of the Judicial  Committee  agreed with  the  majority of the Federal Court is that  a  further opportunity  is to be given to the government servant  after the  charges  have  been  established  against  him  and  a, particular  punishment is proposed to be meted out  to  him. The  opening sentence in the above passage, namely, that  s. 240  (3) was not a reproduction of r. 55 and that r. 55  was left  unaffected  as  an administrative rule  does  seem  to suggest  that  s. 240 (3) is not at all concerned  with  the enquiry  into the charges which comes at the earlier  stage, but  a  close  reading  of the rest  of  that  passage  will indicate that in their Lordships’ view the substance of  the protection  of r. 55 is also included in s. 240 (3)  and  to that is superadded, by way of further protection, the neces- sity  of  giving yet another opportunity to  the  government servant  at the stage where the charges are  proved  against him  and a particular punishment is tentatively proposed  to be  inflicted  on  him.   Their  Lordships  referred  to   " statutory opportunity being reasonably afforded at more than one stage ", that is to say, that the opportunities at  more stages  than  one  are  comprised  within  the   opportunity contemplated                             1099 by the statute itself.  Of course if the government  servant has  been through the enquiry under r. 55, it would  not  be reasonable  that  he  should ask for a  repetition  of  that stage, if duly carried out, which implies that if no enquiry has  been held under r. 55 or any analogous rule  applicable to  the particular servant then it will be quite  reasonable for  him to ask for an enquiry.  Therefore, in a case  where there is no rule like r. 55 the necessity of an enquiry  was implicit  in  s. 240 (3) and is so in  Art.  311(2)  itself. Further  their Lordships say that an enquiry under r.  55  " would not exhaust his statutory right and he would still  be entitled  to  make a representation against  the  punishment proposed  as  the result of the findings of the  enquiry  ". This clearly proceeds on the basis that the right to  defend himself in the enquiry and the right to make  representation against  the  proposed  punishment are all parts  of  his  " statutory  right  "  and  are  implicit  in  the  reasonable opportunity   provided  by  the  statute  itself   for   the protection of the government servant.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14  

 The  learned Solicitor General appearing for the Union  of India,  then,  contends that assuming  that  the  government servant is entitled to have an opportunity not only to  show cause  against  his guilt but also an  opportunity  to  show cause  against  the punishment proposed to be  inflicted  on him,  the  appellant in the present case has had  both  such opportunities,  for by the notice served on him on  July  9, 1949,  the appellant was called upon to show  cause  against the  charges as well as against the punishment of  dismissal in case the charges were established.  He points out that in I. M. Lall’s case (1) the notice given to I. M. Lall did not specify  dismissal  as the only  and  particular  punishment proposed  to be imposed on him, but called upon him to  show cause why he should not be dismissed, removed or reduced  or subjected to such other disciplinary action as the competent authority,  might  think  fit to  enforce,  whereas  in  the present case the notice referred to above clearly  indicated that  the punishment of dismissal alone was proposed  to  be inflicted. L.R. (1948) 75 1. A. 225. 140 1100 The  learned Solicitor General in support of his  contention relies  on the observations of the majority of  the  Federal Court  quoted above and in particular on the  passage  where their  Lordships  stated " that in some cases  it  would  be quite  sufficient to indicate the charges, the  evidence  on which  those  charges are put forward and to make  it  clear that  unless  the person can on that information  show  good cause  against being dismissed or reduced in rank if all  or any  of  the charges are proved, dismissal or  reduction  in rank would follow and that this would be sufficient in  some cases."  He  also strongly relies on the  circumstance  that their Lordships of the Judicial Committee, after quoting the above  passage, stated that they agreed with the view  taken by  the  majority  of the Federal Court.   But  as  we  have already explained, the other observations of their Lordships of  the Judicial Committee, which follow immediately,  quite clearly  indicate  that  what they agreed with  was  that  a second opportunity was to be given to the government servant concerned after the charges had been brought home to him  as a result of the enquiry.  Their Lordships made it clear that no  action  could,  in their view, be said  to  be  proposed within   the  meaning  of  the  section  until  a   definite conclusion  had been come to on the charges and  the  actual punishment  to follow was provisionally determined  on,  for before  that  stage the charges remained  unproved  and  the suggested  punishments were merely hypothetical and that  it was  on that stage being reached that the statute  gave  the civil  servant  the opportunity for which  sub-s.  (3)  made provision.  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 had been reached where the charges  had  been established and the competent authority had applied its mind to the gravity or otherwise of the                             1101 proved   charge  tentatively  and  proposed   a   particular punishment.   There  is  as  the  Solicitor-General   fairly concedes,   no  practical  difficulty  in   following   this procedure  of  giving two notices at the two  stages.   This

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14  

procedure also has the merit of giving some assurance to the officer concerned that the competent authority maintains  an open  mind with regard to him.  If the  competent  authority were  to determine, before the charges were proved,  that  a particular  punishment would be meted out to the  government servant  concerned,  the  latter  may  well  feel  that  the competent  authority  had  formed an  opinion  against  him, generally  on  the subject matter of the charge or,  at  any rate,  as  regards the punishment itself.   Considered  from this  aspect also the construction adopted by us appears  to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen  to have been done.    It  is  on the facts quite clear that, when  Shri  J.  B. Tandon  concluded  his  enquiry  and  definitely  found  the appellant  guilty of practically all the charges he for  the first time suggested that the punishment of dismissal should be  the proper form of punishment in this case.  Shri J.  B. Tandon was not, however, the competent authority to  dismiss the appellant and, therefore, he could only make a report to the  Deputy  Commissioner who was the  person  competent  to dismiss the appellant.  When the Deputy Commissioner accept- ed the report and confirmed the opinion that the  punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled  to have  a further opportunity given to him to show  cause  why that  particular punishment should not be inflicted on  him. There is, therefore, no getting away from the fact that Art. 311(2)  has not been fully complied with and  the  appellant has not had the benefit of all the constitutional protection and  accordingly  his dismissal cannot  be  supported.   We, therefore,  accept this appeal and set’ aside the  order  of the Single Judge and decree the appellant’s suit by making a declaration that the order of dismissal passed by the Deputy Commissioner on 1102 December  17,1951, purporting to dismiss the appellant  from service was inoperative and that the appellant was a  member of  the service at the date of the institution of  the  suit out of which this appeal has arisen.  The appellant will get costs throughout in all courts.  He must pay all court  fees that  may be due from him.  Under order XIV, Rule 7  of  the Supreme Court Rules were direct that the appellants could be paid his fees which we assess at Rs. 250.                                            Appeal allowed.