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PETITIONER: R.P. BHATT

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT14/12/1986

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1986 AIR 1040            1985 SCR  Supl. (1) 947  1986 SCALE  (1)322

ACT:      The Central  Civil Services Classification, Control and Appeal) Rules 1965. Rule 27(2)-’Consider’-Interpretation of.      Duty  of   appellate  authority-To   consider  relevant factors Set forth in clauses (a) to (c).      Constitution of India 1950: Article 311(2)-Disciplinary proceedings- Appellate  authority-Whether required  to  give reasons for its order.

HEADNOTE:      The Central Civil Services (Classification, Control and Appeal) Rules  1965 by Rule 27 casts a duty on the Appellate Authority in the case of an appeal against an order imposing any of  the penalties  specified in Rule 11 to consider: (a) whether the  procedure laid  down  in  the  rules  has  been complied with:  and if  not, whether such non-compliance has resulted in  violation of  any  of  the  provisions  of  the Constitution or  in the  failure of  justice (b) whether the findings of  the disciplinary authority are warranted by the evidence on  record; and  (c) whether the penalty imposed is adequate and  thereafter pass  orders confirming,  enhancing etc. the  penalty, or  remit back  the case to the authority which imposed the same.      The appellant was appointed as Supervisor in the Border Roads Organisation  on probation  for a period of two years. Before  the  expiry  of  the  probation  period,  the  Chief Engineer terminated  this services. The order of termination however could  not  be  served  as  the  appellant  absented himself without  leave. He  was later  transferred  and  the Officer Commanding  forwarded the  order of  termination  to him. On  his representation  the Director-General  cancelled the order  of termination  on  a  misapprehension  that  the period of  probation having  expired no order of termination could be  made. He,  however, directed  that the  taking  of disciplinary action  against him  as a deserter since he had absconded from  service to  evade service of the termination order. After  a regular  departmental enquiry, he was served with  a   show-cause  notice   under  Art.   311(2)  of  the Constitution and  after consideration of his representation, the Chief  Engineer imposed  the punishment  of removal from service under Rule 12 read with Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules 1965.

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948      The appeal  under Rule 23 of the Rules preferred by the appellant was  dismissed by  the Director-General observing, that ’after thorough examination of the facts brought out in the appeal,  the punishment  imposed upon  the appellant was just and in accordance with the rules’.      The writ  petition having  been dismissed in limine the appellant appealed by special leave to this court.      Allowing the appeal ^      HELD: The  word ’consider’  in Rule  27(2) implies ’due application of mind’. [951A]      In the  instant case,  there is  no indication  in  the order that  the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with. No finding  has been  given on  the crucial  question as  to whether the  findings of  the  disciplinary  authority  were warranted by the evidence on record. [951C]      2. The  Director-General only  applied his  mind to the requirement of  clause (c)  of Rules  27(2) viz. whether the penalty imposed  was adequate  or justified in the facts and circumstances of  the case.  Rule 27(2)  casts a duty on the appellate authority  to consider  the relevant  factors  set forth in clauses (a), (b) and (c) thereof. [951E]      3. There  being non compliance with the requirements of Rule 27(2)  of the  Rules, the order passed by the Director- General is  set aside.  He is  directed to  dispose  of  the appeal afresh after applying his mind to the requirements of Rule 27(2) of the Rules. [951E; 953E]      4. It  is not  the requirement  of Art.  311(2) of  the Constitution of  India or  of the  Rules of  natural justice that in  every case  the appellate  authority should  in its order state  its own  reasons  except  where  the  appellate authority disagrees  with the  findings of  the disciplinary authority. [951F]      State of  Madras v.  A.P. Srinivasan, AIR 1966 SC 1827; Som Datt  Datta v. V.O.I. and Ors. [1969] 2 SCR 176 and Tara Chand Khatri v, Municipal Corporation of Delhi and Ors., AIR 1977 SC 567, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3165 of 1981.      From the  Judgment and  Order dated  20.11.1980 of  the Delhi High Court in Writ Petition No. 1632 of 1980. 949      M.K. Ramamurthy,  M.A.  Krishnamurthy  and  Miss  Kuttu Bansilal for the Appellant.      N.C. Talukdar and M.C. Thinner for the Respondents.      The Judgment of the Court was delivered by      SEN, J.  The short  point involved  in this  appeal  by special leave  from a  judgment and  order of the Delhi High Court dated  November 20, 1980 dismissing in limine the writ petition filed  by the  appellant, is  whether the appellate Order  passed   by  the   Director-General,   Border   Roads Organisation dated  October 14,  1980, is in conformity with the requirements  of r.  27(2) of the Central Civil Services (Classification, Control  & Appeal) Rules, 1965 (’Rules’ for short) which  have been  made applicable to the personnel of the Border Roads Organisation.      The facts  are that  the  appellant  was  appointed  as Supervisor (Barracks  & Stores)  Grade I attached to 60 Road Construction Company,  General Reserve  Engineering Force on

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probation for  a period  of two years by an order dated July 7, 1976.  Before the  expiry of the probationary period, the Chief Engineer  (project) Dante  by an order dated June, 24, 1978 terminated  the services  of appellant.  The  order  of termination however  could not be served on the appellant as he absented  himself without  leave. Thereupon,  the Officer commanding  by   a  movement   order  dated  June  27,  1978 transferred the  appellant to 19 Border Roads Task Force. On July 1,  1978 the  Officer Commanding forwarded the order of termination  issued   by  the   Chief   Engineer,   but   on representation  by   the  appellant,  the  Director-General, Border Roads  Organisation by  order dated November 17, 1978 cancelled  the   order  of   termination  presumably   on  a misapprehension that the period of probation having expired, no order  of termination  could be made. He however directed the taking of disciplinary action against the appellant as a deserter since  he had  absconded from  service to evade the service  of  the  order  of  termination.  After  a  regular departmental inquiry,  the appellant  was served with a show cause notice  under Article  311 (2) of the Constitution and after considering  the representation made by him, the Chief Engineer (Project),  Dante  imposed  on  the  appellant  the punishment of removal from service in exercise of the powers conferred by  r. 12  read with r. 11(VIII) of the Rules with effect from 950 June 10,  1980. Against  the order of removal, the appellant preferred an  appeal under  r. 23  of the  Rules before  the Director-General, Border  Roads Organisation.  The Director- General  by   the  impugned   order  dismissed   the  appeal observing:           "After thorough  examination of  the facts brought      out in  the appeal, the DGBR is of the opinion that the      punishment imposed  by the CE (P) DANTAK vide his Order      No. 10527/762/EIB  dated 24  June 78  was just  and  in      accordance to  the Rules applicable. He has accordingly      rejected the appeal."      Having heard  the parties,  we are  satisfied  that  in disposing of the appeal the Director-General has not applied his mind  to the  requirements of r. 27(2) of the Rules, the relevant provisions of which read as follows:           "27(2). In  the case of an appeal against an order      imposing any  of the  penalties specified in Rule 11 or      enhancing any penalty imposed under the said Rules, the      appellate authority shall consider.      (a)  whether the procedure laid down in these rules has           been  complied  with  and  if  not,  whether  such           noncompliance has resulted in the violation of any           provisions of  the Constitution of India or in the           failure of justice;      (b)  whether the findings of the disciplinary authority           are warranted by the evidence on the record; and      (c)  whether  the   penalty  or  the  enhanced  penalty           imposed is adequate, inadequate or severe;      and pass orders-      (i)  confirming, enhancing,  reducing or  setting aside           the penalty; or      (ii) remitting the  case to the authority which imposed           or enhanced  the penalty or to any other authority           with such  direction as  it may  deem fit  in  the           circumstances of the case." 951      The  word   ’consider’  in  rule  27  (2)  implies  due application of mind’. It is clear upon the terms of r. 27(2) that the  appellate authority  is required  to consider  (1)

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whether the  procedure laid  down  in  the  Rules  has  been complied with;  and if  not, whether such non-compliance has resulted in  violation of any provisions of the Constitution or in  failure of  justice; (2)  whether the findings of the disciplinary authority  are warranted  by  the  evidence  on record; and (3) whether the penalty imposed is adequate; and thereafter  pass   orders  confirming,  enhancing  etc.  the penalty, or  may remit  back the case to the authority which imposed the  same. Rule  27(2) casts a duty on the appellate authority to consider the relevant factors set forth in cls. (a), (b) and (c) thereof.      There is  no indication  in the impugned order that the Director-General was  satisfied as  to whether the procedure laid down  in the  Rules had been complied with; and if not, whether such  noncompliance had resulted in violation of any of the  provisions of  the Constitution  or  in  failure  of justice. We  regret to  find that  the Director-General  has also not  given any  finding on  the crucial  question as to whether the  findings of  the  disciplinary  authority  were warranted by  the evidence  on record. It seems that he only applied his  mind to the requirement of cl. (c) of r. 27(2), viz. whether  the penalty  imposed was adequate or justified in the  facts and  circumstances of  the present case. There being non-compliance  with the  requirements of  r. 27(2) of the Rules, the impugned order passed by the Director-General is liable to be set aside.      It is  not  the  requirement  of  Art.  311(2)  of  the Constitution of  India or  of the  Rules of  natural justice that in  every case  the appellate  authority should  in its order state  its own  reasons  except  where  the  appellate authority disagrees  with the  findings of  the disciplinary authority.  In   State  of  Madras  v.  A.R.  Srinivasan,  a Constitution Bench  repelled the  contention that  the State Government’s order compulsorily retiring the delinquent from service was bad as it did not give reasons for accepting the findings of the inquiring tribunal and observed as follows:           "Mr. Setalvad  for  the  respondent  attempted  to      argue that  the impugned order gives no reasons why the      appellant  accepted   the  findings  of  the  Tribunal.      Disciplinary 952      proceedings taken  against  the  respondent,  says  Mr.      Setalvad,  are   in  the   nature   of   quasi-judicial      proceedings and  when the appellant passed the impugned      order against the respondent, it was acting in a quasi-      judicial character. That being so, the appellant should      have indicated  some reasons  as to why it accepted the      findings of  the Tribunal;  and since  no  reasons  are      given, the  order should  be struck down on that ground      alone.           We are  not prepared  to accept  this argument. In      dealing  with   the  question   as  to  whether  it  is      obligatory on  the State  Government to give reasons in      support  of   the  order  imposing  a  penalty  on  the      delinquent officer,  we cannot  overlook the  fact that      the disciplinary  proceedings against such a delinquent      officer begin  with an  enquiry conducted by an officer      appointed in that behalf. That enquiry is followed by a      report and  the Public  Service Commission is consulted      where necessary. Having regard to the material which is      thus made  available to  the State Government and which      is made  available to  the delinquent  officer also, it      seems to  us somewhat  unreasonable to suggest that the      State Government must record its reasons why it accepts      the findings of the Tribunal. It is conceivable that if

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    the State  Government does  not accept  the findings of      the Tribunal  which may  be in favour of the delinquent      officer, and  propose  to  imposes  a  penalty  on  the      delinquent officer,  it  should  give  reasons  why  it      differs from  the conclusions  of the  Tribunal, though      even in  such a  case, it  is not  necessary  that  the      reasons should  be detailed or elaborate. But where the      State  Government  agrees  with  the  findings  of  the      Tribunal which  are against  the delinquent officer, we      do not  think as a matter of law, it could be said that      the State  Government cannot impose the penalty against      the delinquent  officer in accordance with the findings      of the Tribunal unless it gives reasons to show why the      said findings were accepted by it. The proceedings are,      no doubt,  quasi-judicial; but  having  regard  to  the      manner in  which these  enquiries are  conducted, we do      not think  an obligation  can be  imposed on  the State      Government to record reasons in every case.      In  Som  Datta  Datta  v.  Union  of  India  &  Ors,  a Constitution Bench  of this  court rejected  the  contention that the order of the Chief 953 of the  Army Staff  confirming the proceedings of the Court- Martial under  s. 164  of the  Army Act and the order of the Central Government  dismissing the  appeal of the delinquent under sec.  165 of the Army Act were illegal and ultra vires as the  did not  give reasons  in support of the orders, and summed up the legal position as follows:           "Apart from any requirement imposed by the statute      or statutory  rule either  expressly  or  by  necessary      implication, there  is no  legal  obligation  that  the      statutory  tribunal   should  give   reasons  for   its      decision. There  is also  no general  principle or  any      rule of  natural  justice  that  a  statutory  tribunal      should always and in every case give reasons in support      of its decision."      To the same effect is the decision in Tara Chand Khatri v. Municipal Corporation of Delhi & Ors.      Accordingly, the  appeal must  succeed and  is allowed. The impugned  order passed  by the  Director-General, Border Roads Organization  is set  aside  and  he  is  directed  to dispose of  the appeal afresh after applying his mind to the requirements of  r. 27(2)  of  the  Central  Civil  Services (Classification,  Control   &  Appeal)   Rules,  1965,  with advertence to  the points  raised by  the appellant  in  his petition of leave.      There shall be no order as to costs. N.V.K.            Appeal allowed. 954