25 November 1954
Supreme Court


Case number: Appeal (civil) 90 of 1953






DATE OF JUDGMENT: 25/11/1954


CITATION:  1955 AIR  160            1955 SCR  (1)1011

ACT: Constitution  of India, Arts. 166, 311,  320-Opportunity  to show  cause-Consultation  with Public  Services  Commission- Extent  of Travancore Public Servants (Inquiries) Act,  (Act XI  of 1132)-"Our Government"-Meaning of-Covenant of  United State of Travancore-Cochin-Article 20-Application of. 130 1012

HEADNOTE: An  enquiry  under the provisions of the  Travancore  Public Servants (Inquiries) Act, (Act XI of 1132) was held  against the  petitioner in pursuance of a resolution passed  by  the Council  of  Ministers.   The petitioner took  part  in  the proceedings,  denied the charges and raised legal  objection to  the  competence of the Enquiry Commission  to  hold  the enquiry.   Some  of  the  charges  were  held  proved.   The petitioner  was asked by the Chief Secretary to  show  cause why be should not be removed from service.  The petitioner’s request  for  extension of time to show  cause  was  granted twice  but  refused a third time.  On his failure  to  avail himself of the opportunity to show cause against the  action proposed to be taken against him, the report of the  Enquiry Commissioner was submitted to the Public Services Commission and  the latter approved of the action proposed to be  taken against  the  petitioner.  The proceedings relating  to  the enquiry  were submitted to the Rajpramukh and  thereupon  an order in proper form for the removal of the petitioner  from service was made by the Rajpramukh and authenticated by  the Chief Secretary to Government. Held,  (i)  that  under the provisions of Art.  311  of  the Constitution   a  civil  servant  is  entitled  to  have   a reasonable  opportunity  to defend himself and  show  cause, both at the time of enquiry into the charges brought against him  and  at the stage when definite conclusions  have  been come  to on the charges and the actual punishment to  follow is  provisionally determined upon.  The position  cannot  be



characterised  as  anomalous if the statute  contemplates  a reasonable opportunity at more than one stage. In   the   present  case  the  petitioner   had   reasonable opportunity  to enter upon his defence at both  the  stages. He  fully  availed  himself of the  first  opportunity,  but refused to avail himself of the second opportunity which was offered  to  him.   All the rules of  natural  justice  were observed in the case. (ii) The  provisions of Art. 166(1) and (2)  are  directory, not mandatory; and, in order to determine whether there  has been  compliance  with  the said  provisions,  all  that  is necessary  to  see  is that the  requirements  of  the  sub- sections are met in substance. (iii)     After  the  integration  of  the  two  States   of Travancore  and  Cochin, the expression  "  Our  Government" means  "The  Council of Ministers" under the new set  up  of democratic  Government in the United State.  The  Rajpramukh as  the head of the State is merely at  constitutional  head and is bound to accept the advice of his Ministers. (iv) The  consultation  envisaged by Art.  320(3)  does  not extend  to review petitions which the petitioner may  choose to file as many times as he likes. (v)  The  sanction of the Rajpramukli under Art. 20  of  the Covenant  of  the  United  State  of  Travancore-Cochin   is necessary  only before the institution of civil or  criminal proceedings.   Departmental proceedings do not  fall  within the ambit of the said Article. 1013 Dattatreya  Moreshwar  Pangarkar  v.  The  State  of  Bombay ([1952] S.C.R. 612), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 90 of 1953. Appeal  under  Article 132(1) of the Constitution  of  India from the Judgment and Order dated the 29th August, 1952,  of the High Court of TravancoreCochin at Ernakulam in  Original Petition No. 51 of 1952. K.Thomas and M. R. Krishna Pillai, for the appellant. Mathew  P.  Muricken,  Advocate-General  for  the  State  of Travancore-Cochin   (T.   R.  Balakrishna  Ayyaiand   Sardar Bahadur, with him), for the respondent. 1954.  November 25.  The Judgment of the Court was delivered by MEHR  CHAND MAHAJAN C. J.-This appeal by leave of  the  High Court  of  Judicature of TravancoreCochin  at  Ernakulam  is directed  against  an order of a Full Bench  of  that  court dismissing  an  application  for  the issue  of  a  writ  of certiorari  quashing  the  order of the  Government  of  the united State of TravancoreCochin removing the appellant from service  of  the State and permanently  debarring  him  from reappointment in service. The  facts  giving rise to the petition and the  appeal  are these:  The petitioner entered the service of the  erstwhile Travancore  State in the year 1928.  By promotion he  became the  Executive  Engineer, Electricity Department  in  August 1937  and subsequently Electrical Engineer to Government  in October 1944.  He was the Electrical Engineer to  Government on  the 1st July 1949 when the States of Travancore and  Co- chin were integrated by a Covenant entered into between  the rulers of the two States.  By an order of the Government  of the united State of Travancore-Cochin dated the 11th  August 1949,  he  was appointed as the officiating  Chief  Engineer (Electricity) in the State.  In or about September 1949  the



Government of the 1014 united  State received serious complaints about the  conduct and   dealings  of  some  of  their  senior   officers   and allegations  of  corruption,  communalism,  etc.  were  made against  them.   In December 1949 the Council  of  Ministers decided to take action against the appellant on a number  of charges  indicated in the resolution.  On the 22nd  December 1949,  immediately  after this resolution  was  passed,  the petitioner  was informed that he was suspended from  service pending enquiry and he was requested to hand over charge  to Sri K. P. Sridharan Nair forthwith.  The petitioner complied with this order and handed over charge as directed.  On  the 21st March 1950 the following notification was issued:- "Whereas Government are of opinion that there are sufficient grounds  for  making a formal and public  inquiry  into  the truth  of  the  imputation of  misconduct  of  the  officers mentioned below: Government,  under  section  3  of  the  Travancore   Public Servants (Inquiries) Act, XI of 1122, hereby commit the said inquiry  to  Sri K. Sankaran, Judge, High  Court,  appointed Commissioner for the purpose. Government  are further pleased under section 4 of the  said Act  to  nominate Sri T. R.  Balakrishna  Ayyar,  Government Pleader,  High  Court, to prosecute the inquiries  on  their behalf. The inquiries shall be conducted as early as possible. The officers referred to in para. 1 supra are: I.......................................... 2. Sri P. Joseph John". The petitioner was informed by notice of the 24th April 1950 about this inquiry.  The notification was signed by Shri  K. G. Menon, Chief Secretary to Government. Mr. Justice Sankaran took charge as Enquiry Commissioner and on  the  11th  May 1950 forwarded the  articles  of  charges against  the petitioner, the list of witnesses and the  list of  documents  placed before him together  with  the  notice regarding  the  commencement of the enquiry to  Shri  K.  S. Raghavan, Secre-                             1015 tary  to Government, for service on the petitioner.   A  few days  before  the  date fixed for the  commencement  of  the enquiry  the petitioner made an application to  the  Enquiry Commissioner  for a direction to the Prosecutor  to  produce the files and papers relating to the various charges in  the office of the Commissioner and for permission to him and his counsel  to inspect the same.  This application was  allowed and he and his advocate were allowed to inspect the relevant files  in the presence of the prosecutor or his deputy.   On the 20th May 1950 when the enquiry commenced, the petitioner pleaded  not guilty to the charges by a  written  statement. He was defended during the enquiry by Shri K. P. Abraham,  a leading  member  of the Bar.  A  preliminary  objection  was taken to the Tribunal’s jurisdiction on the basis of Article 20  of the Covenant entered into between the rulers of  Tra- vancore and Cochin and it was contended that the proceedings before  the Commissioner were criminal in nature  and  could not be commenced without the sanction of the Rajpramukh  and that  its absence was fatal to the enquiry.  This  objection was  not  immediately decided by the  Commissioner  but  was ultimately  overruled.  On the 22nd November 1950 the  peti- tioner submitted detailed answers in writing to the  various charges.   The enquiry concluded on the 27th  December  1950 and  the Commissioner submitted his report to Government  on the  17th  February  1951.  Some of  the-charges  were  held



proved, while others were held not established.  On the  5th July  1951  the  following communication  was  sent  to  the petitioner by the Chief Secretary to Government:- "I am to enclose here with a copy of the above report and to point out that the Government agree with the findings of the Inquiring  Commissioner on the several charges against  you. Government  also  agree  with  the  Commissioner  that   the objections raised by you challenging the validity of the en- quiry itself are not tenable. 2.   As against the 26 charges framed 1016      against you, the nine charges noted in the   margin have not been established and they      are      accordingly dropped.  As regards Charge   No.   IX   in  view   of   the extenuating circumstances, the irregularity is condoned. 3. It is evident from the remaining charges, which have been established, that you have misused your official position as Electrical   Engineer   to  Government   and   shown   undue favouritism  at  the expense of State revenues,  to  private firms and issued materials from Government stores to private companies  and individuals in violation of all  rules  (vide List  A).  It is also evident that departmental  stores  and departmental  lorries have been diverted for  your  personal use in a number of cases. (Vide List B).  You are also found guilty of having shown defiance and insubordination  towards the  authority  of  the  Government  by  your  refusal,   in connection  with  the  supply  of  power  to  the  Nagercoil Electric  Supply Corporation, to supply certain  particulars which were called for and which it was your duty to  furnish and by your refusal to withdraw the objectionable  statement in  your reply to the Government in spite of the  Government order directing you to withdraw the same. 4.  The  Government  therefore propose to  remove  you  from service  from  the  date  on which  you  were  placed  under suspension  with permanent bar against future  reappointment in service. 5.  You  are requested to show cause within 15 days  of  the date  of receipt of this notice with enclosures  why  action should  not be taken against you as proposed in paragraph  4 above". The  petitioner on receipt of this notice applied  for  time till  the  10th September 1951 for showing cause.   Time  as prayed for was allowed.  On the 10th September 1951 when the time granted at his own request 1017 was  due to expire, he again applied for further  time  till the  10th November 1951.  He was allowed further  time  till the  24th September 1951.  On that date he again  asked  for further  time till the 31 st October 1951 but  this  request was  not granted.  In spite of the fact that the  petitioner was granted the time which he originally asked for and  this was  further  extended  by  a  fortnight,  he  furnished  no explanation  and did not show any cause against  the  notice issued  to  him.   The petitioner  having  failed  to  avail himself of the opportunity to show cause against the  action proposed against him, a draft of the proceedings relating to the  enquiry was submitted to H. H. the Rajpramukh  oil  the 30th  September 1951 and thereupon an order was  issued  for his  removal  from service from the date of  suspension  and debarring him from reappointment to service.  The order  was in  proper form as having been made by H. H. the  Rajpramukh and was authenticated by the Chief Secretary to  Government. This  order  is  dated  the 1st October  1951.   It  may  be mentioned that before the papers were submitted to H. H. the Rajpramukh, the report of the Commissioner was submitted  to



the Public Services Commission for their consideration.  The Public  Services Commission supported the action  which  the Government proposed to take against the petitioner.  On  the 9th  October  1951 the petitioner was removed  from  service with  effect from the 26th December 1949.  Two months  after the  order of his removal, the petitioner submitted  an  ap- plication  for a reconsideration of the order  removing  him from service.  This was rejected by an order dated the  25th January 1952. On these facts and in these circumstances an application was made   before  the  High  Court  of  Travancore-Cocliin   at Ernakulam on the 2nd June 1952 praying that the court may be pleased  to issue a writ in the nature of certiorari or  any other  writ,  directions or orders calling for  the  records relating  to the orders dated the 9th October 1951  and  the 25th  January  1952  and to quash the same  and  direct  the respondent to restore the petitioner to the office which  he was lawfully to hold.  It was contended in the application 1018 that the applicant had no reasonable opportunity of  showing cause  against his removal and that he was entitled to  show cause  twice, once after he was found guilty and next  after the punishment had been decided and that the denial of  this right  rendered the order of dismissal illegal and void  and that it offended against the principles of natural  justice. It  was  further contended that the  consultation  with  the Public  Services  Commission was not held in  terms  of  the provisions  of  procedure for  disciplinary  action  against Government  servants  and prescribed in  Article  320,  sub- section  3(c)  of the Constitution of India.   A  number  of other   grounds  were  also  taken  against  the  order   of dismissal.  The High Court negatived all the contentions  of the  petitioner  and  dismissed the  petition.   It  however certified  that the case involved substantial  questions  of law  as to the interpretation of the Constitution and was  a fit one for appeal to this Court. Mr. Thomas who argued the appeal on behalf of the  appellant raised a number of points against the validity of the  order removing  the appellant from service and contended that  the enquiry  conducted  into the charges made  against  him  was wholly  illegal  and  void.  In our judgment,  none  of  the points  urged  by the learned counsel was of  a  substantial character and all of them concerned matters of mere form and no valid reasons have been shown for disturbing the decision of the High Court. The  question  of the validity of an order of removal  of  a person  employed  in a civil capacity under the Union  or  a State  falls to be determined on the provisions  of  Article 311 of the Constitution of India.  This Article is in  these terms: "  (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 1019 against  the  action  proposed  to be  taken  in  regard  to him.................................................. It  is  not  said  that the petitioner  was  removed  by  an authority  subordinate  to that by which he  was  appointed. There was no occasion to raise this issue because the  order of removal had been made by the Rajpramukh and was expressed



according   to  the  provisions  of  Article  166   of   the Constitution.   The requirement therefore of sub-clause  (1) of Article 311 was fully satisfied. As  regards  the question whether the petitioner  was  given reasonable  opportunity of showing cause against the  action proposed to be taken in regard to him, the legal position in that respect and the nature of opportunity to be granted was stated by the Privy Council in the case of High Commissioner for India v. I. M. Lall(1) and it was held that when a stage is reached when definite conclusions have been come to as to the  charges,  and  the  actual  punishment  to  follow   is provisionally  determined  on, that the  statute  gives  the civil  servant  an opportunity for which subsection  (3)  of section  240  of the Government of India  Act,  1935  (which corresponds  to  Article 311) makes provision, and  that  at that  stage a reasonable opportunity has to be  afforded  to the civil servant concerned. It was also held that there was no  anomaly  in  the view that the  statute  contemplates  a reasonable  opportunity  at  more than one  stage.   In  our opinion,  in the present case the petitioner had  reasonable opportunity  at both stages to enter upon his  defence.   He fully availed himself of the first opportunity and though  a reasonable  opportunity was also given to him at the  second stage,  he failed to avail himself of it and it is not  open to  him  now to say that the requirements of clause  (2)  of Article 311 have not been satisfied.  It was not denied that the  petitioner  was given by the Enquiry  Commissioner  all facilities  for entering on his defence.  Before filing  his written  statement  before  the  Enquiry  Commissioner   the petitioner and his counsel were afforded facility to inspect the (1)  [1948] F.C.R. 44. 131 1020 various  files concerning the charges which he had to  meet. After  inspecting  those  files  he  filed  a  full  written statement explaining those charges.  He was defended in  the enquiry  by  a  leading  lawyer  and  was  afforded  fullest opportunity  to  examine  and  cross-examine  the  witnesses examined  by the Commissioner.  He was able to  satisfy  the Enquiry  Comniissioner  that  out of  the  charges  levelled against  him a number of them were not established;  but  he failed  to satisfy the Commissioner as regards the rest  and the  Enquiry  Commissioner  held  them  proved.   After  the enquiry  was concluded the petitioner was furnished  with  a copy of the report of the Commissioner and was asked to show cause  against the action proposed to be taken against  him. He  applied  for two months’ time to show cause.   This  was granted.   He made a further application for  further  time. This was also partially granted.  He again asked for further time  which  was refused.  It is difficult to say  that  the time  allowed to him was not reasonable in view of the  fact that  be  bad taken part in the enquiry before  the  Commis- sioner  and all the evidence had been taken in his  presence and  he  had full opportunity to defend  himself.   All  the material on which the Commissioner had reported against  him on the charges found proved, was given in the report of  the Commissioner and that was supplied to him with a show  cause notice.   The  time allowed, in our opinion, was  more  than sufficient for him to enter on his defence and having failed to do so, he cannot be heard to say that he was not given  a reasonable  opportunity of showing cause against the  action proposed to be taken in regard to him. Mr.  Thomas  argued that the show cause notice  was  not  in accordance  with  the  provisions  of  Article  166  of  the Constitution  inasmuch as it was not expressed to have  been



made  in  the name of the Rajpramukh.  As  above  mentioned, this  notice was issued on behalf of the Government and  was signed by the Chief Secretary of the united State of Travan- core-Cochin  who had under the rules of business  framed  by the  Rajpramukh the charge of the portfolio of "service  and appointments" at the Secretariat level 1021 in  this  State.   This  was  in  our  opinion   substantial compliance  with the directory provisions of Article 166  of the  Constitution.  It was held by this court in  Dattatreya Moreshwar Pangarkar v. The State of Bom. bay(1) that clauses (1)  and  (2) of Article 166 are direc- tory only  and  non- compliance  with  them does not result in  the  order  being invalid,  and  that in order to determine whether  there  is compliance with these provisions all that is necessary to be seen  is whether there has been substantial compliance  with those  requirements.   In the present case there can  be  no manner  of  doubt  that  the  notice  signed  by  the  Chief Secretary of the State and expressed to be on behalf of  the Government and giving opportunity to the petitioner to  show cause  against the action proposed to be taken  against  him was  in  substantial compliance with the provisions  of  the article.   The  petitioner  accepted  this  notice  and   in pursuance  of  it  applied for further time to  put  in  his defence.   He  was  twice  granted  this  time.   In   these circumstances,  the  contention of Mr. Thomas  that  as  the notice  was not expressed as required under Article  166  it was  invalid and therefore the requirements of  Article  311 were not satisfied in this case must be held to be devoid of force.   We  are  satisfied that  all  the  requirements  of Article 311 have been fully complied with in this case.   It may  also be mentioned that the High Court held that  H.  H. the Rajpramukh had intimation of the decision of the Council of Ministers and the action proposed to be taken against the petitioner  and  that in fact His Highness approved  of  the proposed action. Mr.  Thomas further contended that the enquiry at the  first stage  also was invalid and irregular.  He argued  that  the order appointing the Enquiry Commissioner was not  expressed in proper form and that the Commissioner did not conduct the enquiry in accordance with the provisions of the Act.   ’The notification  ordering an enquiry set out above  was  issued after  the Council of Ministers had passed a  resolution  to that effect.  It must be presumed that in (1)  [1952] S.C.R. 612. 1022 the   normal  course.  of  business  that   resolution   was communicated   to   the   Rajpramukh.    The   order    thus substantially  complies with the requirements of law and  in any  case the effect of its not being expressed as  directed by  Article  166  does not vitiate  the  notification.   The appellant,  as  already stated, took part  in  the  enquiry, defended himself and fought every inch of the ground.   That being  so, it is not possible to hold that he was not  given reasonable opportunity at the first stage to defend himself. It  was contended that under the Travancore Public  Servants (Inquiries)  Act, 1122) it was only the Maharaja  who  could make an order under the provisions of that Act, and that the Ministers  could not take any action.  Emphasis was  lai  on the expression "Our Government" in the different  provisions of  the  Act.   We  are unable to  see  any  force  in  this contention.   The  expression  "Our  Government"  means  the Maharaja’s Government, in other words, the Government of the State  of  Travancore.   After the integration  of  the  two States  of  Travancore and Cochin and the formation  of  the



United  State  of  Travancore-Cochin  the  expression   "Our Government" has to be construed according to the new  set-up of  Government  and when the Council of Ministers  had  come into  being, it is obvious that the expression "our  Govern- ment"  as adapted to fit in with the new Constitution  means "The  Council of Ministers".  It is an elementary  principle of  democratic Government prevailing in England and  adopted in  our Constitution that the Rajpramukh or the Governor  as head of the State is in such matters merely a constitutional head and he is bound to accept the advice of his  Ministers. In  this situation it cannot be held that the order  of  the Government  appointing  the Enquiry Commissioner  *as  ultra vires and without jurisdiction. Another  point  taken  by Mr. Thomas was  that  without  the sanction  of  the Rajpramukh the proceedings  could  not  be started  against  the  petitioner  and  reliance  for   this contention  was placed on Article 20 of the Covenant of  the united  State of Travancore and Cochin.  This article is  in these terms: "Except with the previous sanction of the Raj- 1023 pramukh,  no  proceedings,  civil  or  criminal,  shall   be instituted against any person in respect of any act done  or purporting  to  be done in the execution of his  duty  as  a servant  of  either Covenanting State before  the  appointed day". The High Court negatived this contention with the  following observations: "Article 20 refers to the institution of civil and  criminal proceedings,  two well-known expressions which are terms  of art  and  clearly relate to civil and  criminal  proceedings before  civil  and criminal courts.  The said two  kinds  of proceedings do not exhaust the totality of matters which can be  called  proceedings.  is only in respect  of  civil  and criminal  proceeding that the sanction of the Rajpramukh  is required  under  Article  20 of the  Covenant.   It  is  not contended  on behalf of the petitioner that the  proceedings before the Commissioner are criminal proceedings.  The  only contention  is that they partake of the nature  of  criminal proceedings.   In our judgment, Article 20 of  the  Covenant does  not apply to proceedings which are not  -criminal  but merely partake of that character". In  these  observations  we  fully  concur.   In  our   view departmental proceedings do not come within the ambit of the Article. Lastly  it was urged that there was non-compliance with  the provisions  of Article 320, clause 3(c) of the  Constitution which provides that on all disciplinary matters affecting  a person  serving  under  the  Government  of  India  or   the Government  of  a  State  in  a  civil  capacity,  including memorials  or petitions relating to such matters, the  Union Public  Service  Commission.  or the  State  Public  Service Commission, as the case may be, shall be consulted.  In this case the Public Service Commission was in fact consulted  in the matter of the action proposed against the petitioner  by removing  him.  The Public Service Commission agreed to  the proposed  action.  This consultation and the  agreement  was before the petitioner was asked to show cause why he  should not   be  removed  from  service.   The  complaint  of   the petitioner is that the 1024 consultation  with the Public Service Commission sould  have been after he was asked to show cause but the petitioner did not  show  cause and that being  so, no  question  arose  of consulting the Public Service Commission over again.  It was



contended  that  the Public Service Commission  should  have been  consulted on the review petition.  To accede  to  this argument  will mean that the State will have to consult  the Public Service Commission as many times as he may  choose to file  review  petitions.  In our  opinion  the  consultation envisaged by Article 320 does not extend  so, far.  In  this case  the report of the Commissioner was placed  before  the Public  Service  Commission and the latter approved  of  the action  proposed  to  be taken.   The  appellant  was  given another  opportunity  to  show cause but he  did  not  avail himself  of  that opportunity or submit any  explanation  or show any cause on which the Public Service Commission  could be consulted.  The order of dismissal having been made there was in the circumstances no further necessity to consult the Public Service Commission. in our opinion therefore there is no force in this contention as well. After  having examined all the arguments of Mr.  Thomas,  we are  of  the opinion that all the rules of  natural  justice were fully observed during the enquiry in this case, and the petitioner had the fullest opportunity to put in his defence both before the Enquiry Commissioner and against the  action proposed  to be taken against him.  It was by reason of  his own  default that he failed to avail himself of  the  second opportunity.   He put in a belated review but such a  review is  not provided for under the rules and in our opinion,  it was  not necessary to consult the Public Service  Commission at   that  stage.   Such  petitions  are  not   within   the contemplation of the Constitution. For  the  reasons  given above this  appeal  fails  and   is dismissed.   In  the circumstances of the case  we  make  no order as to costs. Appeal dismissed. 1025