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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: K. MANCHE GOWDA

DATE OF JUDGMENT: 22/08/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1964 AIR  506            1964 SCR  (4) 540  CITATOR INFO :  D          1969 SC1020  (8,10)

ACT: Civil  Servant--Reasonable  opportunity--Dismissal based  on previous punishments--Whether an opportunity  to explain  be given  in second show cause notice--"Presumptive  knowledge" and "reasonable  opportunity"--Constitution of  India,  Art. 311 (2)--Government of India Act, 1935, s. 240(3).

HEADNOTE:     The  respondent was holding the post of an Assistant  to the   Additional    Development   Commissioner,    Planning, Bangalore.  A departmental enquiry was held against him  and the Enquiry Officer  recommended  that  the  respondent   be reduced   in  rank. After considering the report of  Enquiry Officer,  the  Government  issued  a  notice  calling   upon respondent to show cause why he should not be dismissed from service.   The reply of the respondent was that  the  entire case  had  been  foisted  on  him.   After  considering  his representation,  the Government passed an  order  dismissing him  from service.  The reason given for his  dismissal  was that  the respondent had on two earlier occasions  committed certain  offences  and he had been punished  for  the  same. However,  those  facts  were not given as  reasons  for  the proposed punishment. of dismissal from service. 541     The respondent filed a petition in the High Court  under Art.  226 of the Constitution for quashing the order of  his dismissal. The High Court quashed the order of dismissal  on the   ground  that  the  two  circumstances  on  which   the Government relied for the proposed infliction of  punishment of  dismissal  were  not put to  the  respondent  for  being explained  by him in the show cause notice which was  issued to him.  The appellant came to this Court by special leave.     The   contentions  of  the  appellant  were   that   the Government  was  entitled  to take  into  consideration  the previous record of Government servant in awarding punishment to him and it was not incumbent on it to bring to the notice of  the  Government  servant the said  fact  in  the  second

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notice.   Moreover, as the Government servant in  this  case had  knowledge of his two.earlier punishments he was not  in any  way  prejudiced by their non-disclosure in  the  second notice.  Dismissing the appeal,     Held, that it was incumbent upon the Government to  give the  Government  servant  at  the  second  stage  reasonable opportunity  to show cause against the  proposed  punishment and  if  the  proposed  punishment was  also  based  on  his previous punishments or his previous bad record, that should be  included in the second notice so that he may be able  to give   an   explanation.   The  doctrine   of   "presumptive knowledge" or that of "purposeless enquiry" is subversive of the principle of "reasonable opportunity". Secretary  of State for India, v. I. M. Lal,  [1945]  F.C.R. 103,  Khern  Chand v. Union of India,  [1958]  S.C.R.  1080, Gopalrao v. State, I.L.R. [1954] Nag. 90, Shankar Shukla  v. Senior  Superintendent  of Post Offices,  Lucknow  Division, A.I.R.  1959  All.  624 and State of Assam  v.  Bimal  Kumar Pandit, [1964] 2 S.C.R. referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  387  of 1963.     Appeal  by  special leave from the  judgment  and  order dated February 14, 1962, of the Mysore  High Court  in  Writ Petition No. 916 of 1959.     C.K.   Daphtary,   Attorney-General   for   India,    R. Gopalalkrishnan  and B.R.G.K. Achar for P.D. Menon, for  the appellant. Naunit Lal, for the respondent. August 22, 1963. The Judgment of the Court was delivered by       SUBBA   RAO  J.--This  appeal  by  special  leave   is preferred against the Order of a Division Bench of the  High Court of Mysore at Bangalore quashing the order of the 542 Government  dated March 13, 1957 dismissing  the  respondent from service.     In the year 1957 the respondent was holding the post  of an  Assistant  to the Additional  Development  Commissioner, Planning,  Bangalore.  On June 25, 1957, the  Government  of Mysore   appointed  Shri  G.V.K.  Rao,  I.A.S.,   Additional Development  Commissioner, as the Enquiry Officer to conduct a departmental enquiry against him in respect of false claim for  allowances and  fabrication vouchers to  support  them. After  giving  the usual notice, the  said  Enquiry  Officer framed four charges against him. After making the  necessary enquiry  in  accordance with law the  said  Enquiry  Officer submitted   his   report   to  the   Government   with   the recommendation that the respondent might be reduced in rank. After  considering  the report of the Enquiry  Officer,  the Government  issued to him a notice calling upon him to  show cause  why  he  should not be dismissed  from  service.  The relevant  part  of  the  said show  cause  notice  reads  as follows:               "The  Inquiry Authority has  recommended  that               you  may be reduced in rank.  As  the  charges               proved against you are of a very grave  nature               and are such as render you unfit to remain  in               Government   Service,   and   the   Government               consider  that  a more  severe  punishment  is               called for in the interest of public  service,               it is proposed to dismiss you from service." The  respondent made representation to the effect  that  the

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entire case had been foisted on him.  After considering  the representations of the respondent, the Government passed  an order  on January 6, 1959 dismissing him from  service.   As the argument turns upon the terms of this order, it will  be convenient to read the material part thereof:               "Government  have  carefully  considered   the               report  the enquiry, the explanation  of  Shri               Manche Gowda and the opinion furnished by  the               Mysore Public Service Commission.  There is no               reasonable  ground  to accept the  version  of               Shri  Manche  Gowda that the entire  case  has               been deliberately foisted on him. The evidence               on record shows conclusively that the  charges               framed are fully proved."               "As   regards  the  quantum   of   punishment,               Government               543               have  examined  the  previous  record  of  the               Officer  and have given careful  consideration               to  the  recommendation of the Public  Service               Commission.   Shri Manche Gowda was  recruited               directly  as a Gazetted Officer.  He had  been               punished  twice--first,  in  Government  Order               No.  SD 19-16/A:17.  53-12,  dated  1--4-1954,               for making false claims of T.A. and  tampering               with  the accounts and ledgers of  Food  Depot               and again, in Government Order No. 40 MSC  57,               dated 13th March 1957 for not having  credited               to  Government certain sums of money which  he               had  collected from the Office Staff.  Yet  he               failed  to learn a lesson; he had indulged  in               similar  offences.   It is clear  that  he  is               incorrigible   and  no  improvement   can   be               expected in his conduct.  In the circumstances               a  reduction  in pay and  continuance  of  the               Officer  in Government Service, as recommended               by  the  Public  Service  Commission,  is   no               remedy.   Having regard to the status  of  the               Officer  and the nature of the charges  proved               against  him,   Government have  come  to  the               conclusion  that  he is unfit to  continue  in               Government  service and direct that he may  be               dismissed from service forthwith." It  will  be seen from the said Order that  the  reason  for giving  enhanced  punishment above that recommended  by  the Inquiry  Officer  as well as by the Service  Commission  was that  earlier  he  had committed similar  offences  and  was punished--once on April 1, 1954 and again on March 13, 1957. In  the second notice those facts were not given as  reasons for the proposed punishment of dismissal from service.   The respondent  filed a petition  in the High Court  under  Art. 226 of the Constitution  for quashing the said order and the High Court quashed the order of dismissal on the ground that the  said  two circumstances on which the Government  relied for  the proposed infliction of punishment of dismissal were not  put  to the petitioner for being explained by  him,  in the show cause notice, which was issued to the petitioner on February  4, 1958.  The impugned order was  accordingly  set aside leaving it open to the State Government to dispose  of the  matter afresh if it desired to do so  after  compliance with the requirements of Art. 311(2) of the 544 Constitution. Hence the appeal.     Learned Attorney General contends that the Government is entitled to take into consideration the previous record of a

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Government  servant in awarding punishment to him and it  is not incumbent on it to bring to the notice of the Government servant the said  fact in the second notice.  Alternatively, he  argues  that  whether a Government  servant  has  had  a reasonable  opportunity  of  being heard  or  not,  being  a question  of fact in each case, and in the instant  case  as the  Officer  concerned  had knowledge of  his  two  earlier punishments   which  formed  the  basis  of   the   enhanced punishment,  he was not in any way prejudiced by their  non- disclosure  to him in the second notice and, therefore,  the principles of natural justice were not violated.     Mr. Naunit Lal, learned counsel for the respondent, says that a Government servant cannot be punished for his acts or omissions  unless the said acts or omissions arc subject  of specific  charges and are enquired into in  accordance  with law and that, in any view, even if the Government could take into  consideration a Government  servant’s previous  record in  awarding  punishment, the facts that form the  basis  of that  punishment should at least be disclosed in the  second notice giving thereby an opportunity to the said  Government servant to explain his earlier conduct. The  material part of Art. 311(2) of the Constitution  which ’embodies   the  constitutional  protection  given   to    a Government servant reads thus: "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." Section  240(3)  of  the Government of India  Act  was  pari materig  with  the  said  clause  of  the  Article  of   the Constitution.  That  section fell to be  considered  by  the Federal  Court  in  Secretary of State for India  v.  I.  M. Lall(1).  In  considering  that  sub-section,  Spens   C.J-, speaking  for the majority of the Court, made the  following remarks relevant to the present enquiry:               "It  does  however seem to us  that  the  sub-               section               (1) [1945] F.C.R. 103, 139.                     545               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  which  the   authority   is               proposing  that the 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  ................. 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 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.

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This judgment was taken in appeal to the Privy Council,  and the Judicial Committee, after quoting in extenso the passage just  now extracted by us from the  Federal Court  judgment, expressed  its  agreement  with   the   view  taken  by  the majority of the Federal Court. This  Court Khem Chand v. The Union  of  India(1) also emphasized upon the  importance  of giving  a reasonable opportunity to a Government servant  to show  that he does not merit the punishment proposed  to  be meted  out  to  him.  Das  C.J.,  speaking  for  the  Court, observed:               "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 re-                (1) [1958] S.C.R. 1080, 1096.               546               moval or reduction in rank and that any of the               lesser  punishments ought to be sufficient  in               his case." The relevant aspect of the case has               been  neatly  brought out by the  Nagpur  High               Court in Gopalrao v. State(1). There, as here,               the  previous record of a  Government  servant               was  taken  into  consideration  in   awarding               punishment  without bringing the said fact  to               his  notice  and   giving  him  a   reasonable               opportunity of explaining  the   same.  Sinha,               C.J. speaking for the Court, observed:               "Normally,  the  question  of  punishment   is               linked up with the gravity of the charge,  and               the penalty that is inflicted is proportionate               to the guilt.  Where the charge is trivial and               prima  facie merits only a minor  penalty,,  a               civil  servant  may not even  care  to  defend               himself   in   the  belief  that   only   such               punishment  as would be commensurate with  his               guilt will be visited on him.  in such a case,               even  if  in  the show  cause  notice  a  more               serious punishment is indicated than what  the               finding  of guilt warrants, he cannot be  left               to  guessing for himself what  other  possible               reasons have impelled the proposed action.  It               is   not,  therefore,  sufficient  that  other               considerations on which a higher punishment is               proposed  are  present  in the  mind   of  the               competent  authority  or are supported by  the               record  of  service  of  the  civil    servant               concerned.  In a case where these factors  did               not  form part of any specific charge and  did               not  otherwise  figure  in  the   departmental               enquiry,  it is necessary that they should  be               intimated  to  the civil servant in  order  to               enable  him to put up proper  defence  against               the proposed action."               Randhir Singh J. of the Allahabad High  Court,               in    Girja   Shankar   Shukla    v.    Senior               Superintendent   of   Post  Offices,   Lucknow               Division,  Lucknow(2), distinguished the  case               thus:

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             "In   the   present   case,   however,   those               punishments  were  taken  into   consideration               which are not only within the knowledge of the               applicant   but   which   he   had    suffered               earlier    ...................................               This   is   evidently  not  opposed   to   any               principles of                  (1) I.L.R. [1954] Nag. 90, 94.                (2) A.I.R. 1959 All. 624, 625.                     547                   natural justice." Multiplication  of  citation  is  not   necessary,  as   the aforesaid decisions bring out the conflicting views.     Under Art. 311(2) of the Constitution, as interpreted by this  Court,  a Government servant must  have  a  reasonable opportunity  not only to prove that he is not guilty of  the charges levelled against him, but also to establish that the punishment  proposed to be imposed is either not called  for or  excessive.  The said opportunity is to be  a  reasonable opportunity  and,  therefore,  it  is  necessary  that   the Government servant must be told of the grounds  on which  it is  proposed to take such action: see the decision  of  this Court  in the State of Assam v. Bimal Kumar  Pandit(1).   If the  grounds are not given in the notice, it would  be  well nigh  impossible for him to predicate what is  operating  on the   mind  of  the  authority  concerned  in  proposing   a particular  punishment:  he would not be in  a  position  to explain  why  he does not deserve any punishment at  all  or that the punishment proposed is excessive.  If the  proposed punishment  was mainly based upon the previous record  of  a Government  servant   and  that was  not  disclosed  in  the notice, it would mean that the main reason for the  proposed punishment was withheld from the knowledge of the Government servant.  It  would  be  no answer  to  suggest  that  every Government servant must have had knowledge of the fact  that his   past   record   would  necessarily   be   taken   into consideration by the Government in inflicting punishment  on him; nor would it be an adequate answer to say that he  knew as  a  matter  of fact that  the  earlier  punishments  were imposed   on   him  or  that  he  knew of his  past  record. This  contention misses the real point, namely,   that  what the Government servant is entitled to is not the   knowledge of certain facts but the fact that those facts will be taken into   consideration   by  the  Government   in   inflicting punishment on him.  It is not possible for him to know  what period  of his past record or what acts or omissions of  his in  a  particular  period  would  be  considered.  If   that fact  .was brought to his notice, he might explain  that  he had  no knowledge of the remarks of  his superior  officers, that he had adequate explanation to offer (1) [1964] 2 S.C.R. 1. 548 for  the alleged remarks or that his conduct  subsequent  to the  remarks had been exemplary or at any rate  approved  by the superior officers.  Even if the authority concerned took into  consideration  only  the  facts  for   which  he   was punished, it would be open to him to put forward before  the said  authority many mitigating circumstances or some  other explanation why those punishments were given to him or  that subsequent   to  the  punishments  he  had  served  to   the satisfaction  of the authorities concerned till the time  of the  present enquiry. He may have many  other  explanations. The   point  is  not  whether  his  explanation   would   be acceptable, but whether he has been given an Opportunity  to give  his  explanation.  We cannot accept  the  doctrine  of

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"presumptive knowledge" or that of "purposeless enquiry", as their  acceptance  will be subversive of  the  principle  of "reasonable   opportunity".  We, therefore, hold that it  is incumbent upon the  authority to give the Government servant at  the  second stage reasonable opportunity to  show  cause against   the  proposed  punishment  and  if  the   proposed punishment is also based on his previous punishments or  his previous  bad record, this should be included in the  second notice so that he may be able to give an explanation.     Before  we  close, it would be necessary  to  make   one point  clear.  It  is suggested that the past  record  of  a Government servant, if it is intended to be relied upon  for imposing  a punishment, should be made a specific charge  in the  first stage of the enquiry itself and, if it is not  so done,  it cannot be relied upon after the enquiry is  closed and  the report is submitted to the authority   entitled  to impose  the  punishment.  An enquiry against   a  Government servant is one continuous process, though for convenience it is done in two stages.  The report submitted by the  Enquiry Officer  is  only  recommendatory in nature  and  the  final authority which scrutinizes it and  imposes  punishment   is the   authority  empowered to impose the  same.   Whether  a particular  person  has  a  reasonable  opportunity  or  not depends,  to  some extent, upon the nature  of  the  subject matter of the enquiry. But it is not necessary in this  case to  decide  whether  such previous record can  be  made  the subject matter of charge at the first stage of the  enquiry. But, nothing in law  549 prevents the punishing authority from taking that  fact into consideration  during the second stage of the  enquiry,  for essentially  it,  relates more to the domain  of  punishment rather than to that of guilt.  But what is essential is that the   Government  servant  shall  be  given   a   reasonable opportunity to know that fact and meet the same.     In  the present case the second show cause  notice  does not  mention  that  the  Government  intended  to  take  his previous  punishments  into consideration  in  proposing  to dismiss him from service.  On the contrary, the said  notice put  him  on the wrong scent, for it told him  that  it  was proposed  to dismiss him from service as the charges  proved against  him were grave.  But, a comparison of paragraphs  3 and  4  of  the order of dismissal shows that  but  for  the previous  record of the Government  servant, the  Government might  not have imposed the penalty of dismissal on him  and might  have  accepted  the recommendations  of  the  Enquiry Officer  and  the Public Service  Commission.   This  order, therefore, indicates that the show cause notice did not give the  only reason which influenced the Government to  dismiss the   respondent   from  service.    This   notice   clearly contravened the provisions of Art. 311(2)of the Constitution as interpreted by Courts.     This order will not preclude the Government from holding the  second  stage of the enquiry afresh and  in  accordance with law. In the result the appeal is dismissed with costs. Appeal dismissed.