B. Varadarajulu Chettiar vs The State of Madras

Rajamannar, C.J.—This is an appeal against the judgment of Rajagopalan J. dismissing the petition filed by the appellant under Art. 226 of

the Constitution for the issue of a writ of certiorari to quash the order of the Government of Madras, namely, G. O. Ms. 1683 (Home Department)

dated 11-6-1954. In and by that order, the Government directed that the appellant be dismissed from service with effect from 20-3-1953.

The appellant was the Official Receiver, Coimbatore. He also held other offices, namely, the office of the Additional Judge of the Court of Small

Causes and the office of Rent Controller. Several charges were framed against him, relating to discharge of his functions as Official Receiver. The

Additional District Judge of Coimbatore conducted the enquiry and he submitted a report, holding that two of the charges had been fully proved

and two others had been proved in part.

Subsequently, three further charges were framed by the District Judge, one of which related to his work as Rent Controller. The District Judge

himself held the enquiry into these charges and found that all the three charges had been proved. After receipt of the reports of the learned

Additional District Judge and the learned District Judge, the Government issued a notice on 30-9-1953 to the petitioner to show cause why he

should not be dismissed from service.

Along with this notice, copies of the findings embodied in the reports of the Additional District Judge and District Judge, were also furnished to the

appellant. The appellant submitted his representation on 19-10-1953. Meanwhile, the Government consulted the Public Service Commission in the

matter, as required by Art. 320(3) of the Constitution. The Public Service Commission sent their views to the Government in their communication

dated 15-3-1954. Subsequently, on 11-6-1954, after taking into consideration the opinion of the Public Service Commission the Government

passed the order dismissing the appellant from service.

Two grounds which were raised before Rajagopalan J. who heard and disposed of the writ petition, and which did not find favour with him,

were again pressed before us by learned counsel for the appellant. The first ground urged was that the provisions of Art. 311(2) were not

complied with in this case, as the appellant was not given a reasonable opportunity of showing cause against the action proposed to be taken

against him, because the opinion of the Public Service Commission was not communicated to him. In other words, the argument was that the notice

issued to the appellant to show cause against the action proposed to be taken against him should have been issued after the expression of opinion

by the Public Service Commission.

We do not see any substance in this ground. Article 320(3) of the Constitution provides inter alia that the State Public Service Commission shall be

consulted on all disciplinary matters affecting a person serving under the Government of the State in a civil capacity and it shall be the duty of the

Public Service Commission to advise on any matter so referred to them. It was not contended that the advice tendered by the Public Service

Commission should invariably be accepted by the Government.

Admittedly, there is no rule which makes it incumbent on the Government to issue a notice to the Government servant, against whom disciplinary

action is proposed to be taken, to give him an opportunity of commenting on the advice given by the Public Service Commission. The enquiry into

the charges is made by a judicial officer or Head of the Department, and it is on the basis of the report after such enquiry that the Government issue

the notice to show cause why a particular punishment should not be imposed. The fact that a particular punishment is proposed does not certainly

preclude the Government from imposing a lesser punishment.

This may be because of the explanation or representation submitted by the Government servant, or it may be because of the advice tendered by

the Public Service Commission. In any event, what the Government servant has got to meet is the findings submitted by the enquiring officer. Of

course, he can also submit that the proposed punishment is more drastic than necessary. Once the Government servant is given this opportunity,

we think that the requirement of Art. 311(2) is satisfied. We agree with the learned Judge, Rajagopalan J. that there was no violation of the

guarantee provided by Art. 311(2) of the Constitution.

There is, however, substance in the second ground pressed upon us. It is clear from the order of the Government that the basic foundation of

their ultimate decision is the fact that, of the 12 charges enquired into by the Additional District Judge, four were established and the charges so

established we find set out expressly by the Government in their order. It is true that, besides these four, the Government also referred to three

other charges which were found to have been proved by the District Judge, Coimbatore.

It cannot be denied that the Government erred in assuming that all the four charges set out by them in their order, that is, four of the charges

enquired into by the Additional District Judge, were established. Two of them were certainly established; but the other two were established only in

part. Rajagopalan J. himself says that learned counsel for the petitioner (appellant) was well founded in his contention that the Government set out

two items which were at variance with the findings recorded by the Additional District Judge.

The question then is whether the order passed by the Government on an assumption which, in part, is found to be not correct, can be allowed to

stand. We agree with the learned Judge that it is not for this court to delete the erroneous portion of the order of the Government and come to a

conclusion on the balance of the material available that the punishment actually awarded by the Government was adequate and appropriate.

The learned Judge, however, refused to interfere, because, apart from the charges held proved by the Additional District Judge, as regards which

the Government made a mistake there were other charges which were held to have been proved by the learned District Judge, and those charges

which were charges of dishonesty would be sufficient to support the order of dismissal passed by the Government. As we have already said--and

Rajagopalan J. does not hold a different view--It is not for this court to say what would be the proper or adequate punishment on proof of

particular charges. It is a matter entirely for the Government.

It may be that the Government might have come to the same conclusion as to punishment even if they had not made the error pointed out above.

Equally, it may be that the Government might have imposed a lesser punishment. This is not a matter for discussion by this court. As the matter

relates to the punishment of a Government servant, we think that we should exercise our jurisdiction under Art. 226 of the Constitution to quash

the order of the Government which is based in part at least on an erroneous assumption of fact. We allow the appeal and quash he orders of the

Government dated 11-6-1954. Of course, this order of ours will not prevent the Government from taking further disciplinary proceedings against

the appellant. There will be no order as to costs.

Appeal allowed.