Bangali Ram vs State of H.P. and Others

T.R. Handa, J.—The Petitioner Bangali Ram was working as a conductor in the Himachal Government Transport (hereinafter referred to as H.G.T.) Bilaspur Region. He was appointed to that post by the General Manager H.G.T. in 1968. On 14-3-1970 disciplinary proceedings were initiated against the Petitioner under Rule 14 of the C.C.S. C.C.A. Rules, 1965 by the Regional Manager, Bilaspur who served the Petitioner with a charge sheet containing two articles of charges reading as under:

Articles of Charge No.1: That the said Shri Bangali Ram conductor while functioning as such with Bus No. HIM 4288 (Special Bus booked for marriage party) on 23-2-70 was checked at Bumbleo by Shri Madan Lal Gupta Inspector of H.G.T. (Special duty) and found 11 passengers without proper tickets carried by the said conductor in a Government vehicle. Ticket No. 99132/19 for 11 passengers from Dhundla to Haritalyanger for Rs. 55/- was issued by the said Inspector after checking the vehicle at the spot. Thus it is alleged that the said Shri Bangali Ram conductor has attempted to defraud the department of its legitimate revenue.

Article of Charge No. II: That it was the primary duty of Shri Bangali Ram being a conductor of a bus service to issue tickets to all the passengers as and when they boarded the bus. But he has deliberately failed to issue tickets to 11 passengers on 23-2-1970 as referred to in the article of charge I above. Thus it is alleged that the said Bangali Ram conductor has derelicted in the performance of his legitimate duties.

The Regional Manager himself proceeded to conduct the enquiry as a result of which he came to the conclusion that the charges levelled against the Petitioner had been proved. Since the Regional Manager was of the view that the case involved imposition of a major penalty which he was not himself competent to impose, he forwarded his inquiry report to the General Manager for further action. Agreeing with the report of the Regional Manager, the General Manager issued a notice to the Petitioner calling upon him to show cause as to why the penalty of dismissal from service be not imposed upon him. After considering the explanation submitted by the Petitioner in response to the show cause notice and hearing the Petitioner in person, the General Manager imposed the proposed penalty on the Petitioner and dismissed him from service vide his order dated 17-4-1971. After an unsuccessful appeal to the Governor, the Petitioner approached this Court with the present writ petition under Article 226 of the Constitution praying that the charge sheet (Annexure-A) served on him, the report of the Regional Manager (Annexure-B) and the order of his dismissal (Annesure-F) passed by the General Manager be all quashed on the grounds mentioned hereinafter.

The facts giving rise to this petition may now be narrated in brief. The Petitioner on 22-2-70 was deputed to conduct Bus No. HIM 4288 which had been booked on contract basis for carrying a marriage party from Haritalyangar to Bhanduda and back. This bus was of 33 seats capacity and had been chartered for carrying 33 passengers only. On 23-2-70 when this bus was on its return journey from Bhandudla to Haritalyanger, it was checked enroute at a place known as Bagloor by Inspector Madan Lal of H.G.T. The Inspector on checking the bus detected that it was carrying 44 passengers as against its seating capacity of 33. The Inspector further found that the extra eleven passengers were all travelling without tickets. The Inspector tien himself issued a ticket for these eleven extra passengers and charged from them Rs. 55/- as fare.

On this matter being reported by the Inspector to the Regional Manager, the latter initiated departmental proceedings under Rule 14 of the C.C.A. C.C.S., Rules, 1965, against the Petitioner and served him with a charge sheet containing two articles of charge as reproduced above. A copy of this charge sheet which is dated 14-3-70 is found at Annexure-A.

The Petitioner submitted his reply to this charge sheet on 28-3-1970 denying the allegations made against him. Before any further proceedings in the enquiry could be conducted, the Petitioner on 25-4-70 made an oral statement before the Regional Manager which the latter reduced into writing. Signatures of the Petitioner were also obtained on his statement dated 25-4-70 reduced into writing by the Regional Manager. This statement was recorded in Hindi and its English version reads like this:

Reply to charge sheet No. 16816 dated 14-3-70 has already been submitted by me on 28-3-70.

HIM 4288 is a 33 seater bus. When this bus was checked, it contained in all 44 seats. This was a chartered bus and 33 return tickets had been issued. I had charged no fare for the extra eleven seats. I know that the bus was overloaded by 11 seats. All these 11 seats were of the marriage party.

I understand that I should not have carried more than 33 passengers and in case extra passengers were allowed to board the bus, I should have issued tickets. I confess my guilt.

I do not want to see any document etc. nor I want to produce any witness.

Taking this statement of the Petitioner as his admission of the charges levelled against him, the Regional Manager without conducting any further proceedings in the inquiry, proceeded to draw up his report in which he concluded that in view of the Petitioner''s own admission as contained in his statement recorded on 25-4-70, both the charges against him stood proved. Since, however, the Regional Manager was of the opinion that the case involved imposition of a major penalty, he forwarded his enquiry report to the General Manager for further action in the matter.

At this stage it may be pointed out that in persuance to a direction given by this Court at the instance of the Petitioner, the complete record of the inquiry proceedings was produced by the Respondents in Court and the same was extensively referred to by the Petitioner at the time of hearing. The forwarding letter with which the Regional Manager sent his enquiry report to the General Manager, being of considerable significance, it is considered necessary to reproduce the same in verbatim:

"Confidential

No. HTB-CC/49/70-2637 HIMACHAL GOVERNMENT TRANSPORT Dated Bilaspur, the 21th May, 1970

To,

The General Manager, Himachal Government Transport, Simla.

Sub: Disciplinary proceedings against Shri Bangali Ram Conductor (Under suspension).

Sir,

I have the honour to state that on 23-2-1970 bus No. HIM 4288 catering as a special bus booked from Haritalyanger to Dhundla (on return journey) conducted by Shri Bangali Ram conductor was checked by Shri Madan Lal Gupta Inspector (flying squad Head Office) at Bumbloo and detected carrying 44 seats in the bus whereas the seating capacity of the said bus is 33 only. Ticket No. 99132/19 for 11 seats amounting to Rs. 55/- was issued by the said Inspector after checking the vehicle.

Shri Bangali Ram conductor was placed under suspension vide this office order No. HTB-CC/49/70-6790-95, dated 12th March 1970 (page 2) and was chargesheeted vide No HTB-CC-49/70-16816, dated 14-3-70 under Rule 14 of the CCS. (CCA.) Rules, 1965 (page-3). The conductor submitted his defence statement dated 28-3-70 (page-4) to this office vide which he has accepted the charges levelled against him.

Shri Bangali Ram conductor was appointed in this unit w.e.f. 23-1-68 (A.N.) in the scale of pay of Rs. 50-3-80-4-100 (now revised as 60-4-80/5-120) and is a class III employee. The previous history of the said conductor is as under:

(1) On 26-2-68 bus No. HIM 2688 catering as Solan-Bilaspur service was checked by Shri T.R. Kapoor Chief Inspector at 8 km. from Arki and detected carrying 2 seats without tickets. Ticket for Rs. 1/80 paise was issued after checking. In this case his increment was stopped for one year.

(2) On 21-5-68 he was detected carrying 7 seats without tickets and tickets for Rs. 2/10 paise were issued after checking.

(3) Again on 10-8-68 he was detected carrying 225 kg. load without tickets and tickets for Rs. 5/70 paise were issued after checking. The conductor was placed under suspension w.e.f. 7-10-68 and reinstated in service w.e.f. 26-6-69. His three increments with cumulative effect were stopped in these cases.

(4) On 26-7-69 the said conductor was detected carrying one seat without ticket from Simla to Bilaspur for which ticket for Rs. 10/60 paise (double) was issued by the Inspector after checking.

(5)On 18-8-69 the said conductor was detected carrying 80 kg. load without tickets and ticket for Rs. 5/- was issued after checking and accordingly his two increments with cumulative effect was stopped.

(6) On 10-11-68 the said conductor while conducting bus No. HIM 3538 catering as Dehra-Simla service was checked by Shri Parma Nand Checker of this unit at Ladraur and detected carrying one seat without ticket. In this case his one increment with cumulative effect has been stopped.

Any enquiry reported in respect of ticketless travelling case as indicated in para No. 1 above is enclosed herewith along with the service book, character roll of the said conductor. Since the imposition of major penalty is involved in this case, further action may kindly be taken at your end. File containing 6 pages is enclosed.

Yours faithfully, Encl: S/Book, C/Roll, Sd/- C/Roll, (P. N. SHARMA). E/Report. Regional Manger, HG.T."

As earlier stated the General Manager agreed with the report of the Regional Manager, issued a show cause notice to the Petitioner, considered the reply of the Petitioner to such show cause notice, heard the Petitioner in person and then ultimately passed his order dated 17-4-1971 dismissing the Petitioner from service.

Now the case of the Petitioner is that the charges against him were both false in as much as the 11 extra persons found in the bus at the time of its checking by the Inspector were all babies under the age of three who were not chargeable to fare. He had accordingly denied such charges and once he had done so, it was obligatory on the part of the department to prove such charges in the course of the inquiry in which he should have been allowed an opportunity to defend himself and to prove his ignorance. As regards his alleged admission dated 25-4-70, the Petitioner''s case is that he never made any such statement and that his signature thereon were obtained by the Regional Manager by keeping him in the dark regarding its contents. To put in other words, the Petitioner denied if he ever confessed his guilt and in the absence of his confession the charges against him could not be taken as proved. The enquiry report based on the so-called confession of the Petitioner was thus vitiated.

The second contention of the Petitioner was that the Regional Manager being neither his appointing nor disciplinary authority had no jurisdiction to initiate departmental proceedings against him under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965. Any action taken against the Petitioner on the basis of such an enquiry was bad in law.

The third and the last contention raised on behalf of the Petitioner was that the order of his dismissal passed by the General Manager was illegal and void inasmuch as the same had been passed on the basis of extraneous material regarding which the Petitioner was allowed no opportunity to offer his explanation. The order was thus in violation of the mandatory provisions of Article 311(2) of the Constitution as also the principles of natural justice.

The case for the Respondents on the other hand is that the Petitioner was actually found carrying 44 passengers in the bus as against its seating capacity of 33 and all the 11 extra passengers were travelling without tickets. The plea of the Petitioner that the 11 extra passengers were babies under three years of age and not chargeable to fare was repudiated. The Respondents maintained that after submitting his reply to the charge sheet, the Petitioner on 25-4-70 volunteered to make a statement before the Regional Manager admitting his guilt and that such statement of the Petitioner was recorded by the Regional Manager in the Petitioner''s own language. The Petitioner signed that statement after fully understanding and admitting its contents as true. Since the Petitioner had himself admitted the correctness of the charges levelled against him, it was not necessary for the Regional Manager to conduct any further inquiry into such charges and he was fully justified in holding such charges as proved. No fault thus could be found in the course adopted by the Regional Manager.

In reply to the plea of the Petitioner that the Regional Manager had no jurisdiction to initiate disciplinary proceedings against the Petitioner under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965, the case for the Respondents is that the Regional Manager was the Head of Office and in that capacity he was empowered to impose minor penalties on the Petitioner. He was thus the disciplinary authority qua the Petitioner for imposition of minor penalties. Being the disciplinary authority, the Regional Manager was fully competent to initiate disciplinary proceedings against the Petitioner for the imposition of both minor as well as the major penalties though he himself could impose only the minor penalties.

As regards the contention of the Petitioner that the General Manager took into consideration extraneous material while proposing the punishment of dismissal and afforded the Petitioner no opportunity to offer his explanation with respect to such material before recording his orders of dismissal against the Petitioner, the plea of the Respondents is that the documents referred to in forwarding letter of the Regional Manager the alleged extraneous material, pertained to the service record of the Petitioner which could be legitimately looked into by the General Manager for the purposes of determining the nature of the penalty to be imposed. Such material being already within the knowledge of the Petitioner, it was not necessary to afford the Petitioner any opportunity to offer his explanation with respect thereto.

The first question which thus arises for consideration in this case is whether the Regional Manager was competent to initiate the disciplinary proceedings against the Petitioner under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965.

Now Sub-rule (2) of Rule 13 of the C.C.S. (C.C.A.) Rules in clear terms lays down that ''a disciplinary authority competent under these rules to impose any of the penalties specified in Clauses (i) to (iv) of Rule 11 (Minor penalties) may institute disciplinary proceedings against any Government servant for the imposition of any of penalties-specified in Clause (v) to (ix) of Rule 11 (Major penalties) notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties''. Thus once it is found that the Regional Manager was a "disciplinary authority" qua the Petitioner competent to impose upon him any of the minor penalties specified in Clauses (i) to (iv) of Rule 11, there would be no difficulty in repelling the Petitioner''s contention that the disciplinary proceedings against him had not been initiated by a competent authority. Now disciplinary authority as defined in Rule 2(g) means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11. There is then Rule 12, the relevant portions of which read as under:

Disciplinary Authorities:

(1) The President may impose any of the penalties pecified in Rule 11 on any Government servant.

(2) Without prejudice to the provisions of Sub-rule (1) but subject to the provisions of Sub-rule (4) any of the penalties specified in Rule 11 may be imposed on-

(a) a member of a Central Civil Service other than the General Central Service, by the appointing authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President;

(b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the scheduled in this behalf".

This rule read with the schedule (Part III item No. 4) would show that the ''Head of office'' was competent to impose any of the penalties mentioned in Rule 11 on the Petitioner as specified by the Administrator. By virtue of notification No. A-88-45/56, dated 30-1-62 as published in Himachal Pradesh Rajpatra dated 5-5-62 (page 260), the Administrator Himachal Pradesh had authorised the Heads of Departments to impose any of the penalties specified at No. (i) to (iii) of Rule 11. It follows, therefore, that in case the Regional Manager was the Head of office, he was competent to impose upon the Petitioner the penalties specified at items No. (i) to (iii) of Rule 11 and as such was his disciplinary authority. Now as per Rule 2 (j) ''Head of the office'' for the purpose of exercising the powers as appointing, disciplinary, appellate or reviewing authority, means the authority declared to be the head of the office under the General Financial Rules. There is then notification No. G.M. AGCTTS. B. 8/50 III, dated 31-3-62 issued by the General Manager, H. G.T. in exercise of the powers vested in him under paragraph 3 of the General Financial Rules Volume I declaring that the Regional Manager, Bilaspur, shall continue to function as the Head of office. In the absence of any other material, it can be safely concluded that the Regional Manager had been declared Head of the Office under the General Financial Rules, and hence he was the Head of office competent to impose the penalties mentioned at No. (i) to (iii) of Rule 11. He was thus a disciplinary authority qua the Petitioner competent to institute disciplinary proceedings against him.

The next contention of the Petitioner is that the report of the Inquiry officer (Regional Manager) is vitiated as it is not based on any inquiry and simply relies on an alleged admission of the Petitioner which he never made. According to the learned Counsel of the Petitioner, once the Petitioner had denied the charges in his reply to the charge sheet submitted on 28-3-70, there was no option open to the Regional Manager except to held the full enquiry into the charges. Rule 14(9) specifically provides that ''if the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him weather he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signatures of the Government servant thereon.'' Sub-rule (10) of Rule 14 then provides that the inquiring authority shall return a finding of guilt in respect of those articles of charge to which the Government servant pleads guilty. In recording the statement dated 25-4-70 of the Petitioner and returning a finding of guilt against him on the basis of such statement, the Regional Manager enly complied with the statutory provisions of sub-rules (9) and (10) of Rule 14 and hence no exception can be taken to the course adopted by the Regional Manager. As regards the plea of the Petitioner that he made no statement on 25-4-70 before the Regional Manager and that the latter obtained his signatures without disclosing the contents of that writing, the same just cannot be accepted in face of the counter version of the Respondents. It is not the case of the Petitioner that his signatures on his statement were obtained by the Regional Manager by misrepresentation or fraud. In the absence of such a plea, there is no explanation as to why the Petitioner affixed his signatures on his statement without caring to know the contents or without reading it especially when it is not disputed that the Petitioner can read Hindi in which language the statement is recorded. The second contention of the Petitioner thus also needs to be repelled.

There, however, appears to be considerable force in the next and the last contention put forward on behalf of the Petitioner, namely, that he was not afforded a reasonable opportunity to make representation against the proposed penalty of dismissal from service. In order to appreciate the merit of this contention in its true perspective, it is considered necessary to state a few facts as gathered from the original record of the inquiry proceedings which was produced in Court by the Respondents themselves.

This record reveals that the report of the Regional Manager along with his forwarding letter dated 27-5-70 (reproduced above) was received in the office of the General Manager on 2-6-1970. It was put up before the General Manager on 4-6-70 with an office note wherein the past history of the Petitioner was highlighted and recommendations were made as under:

"Details of cases Penalties imposed (i) On 26-2-68 he was cought car- Increment for one rying 2 passenger without tickets year stopped. involving an amount of Rs. 1.80 his increment for one year was stoppped. (ii) On 21-5-68 he was detected car- Increment for three rying 7 passengers without tickets years stopped with involving an amount of Rs. 2.10. cumulative effect. (iii) On 21-5-68 he was found carrying - 225 kg. load without tickets invol- ving Rs. 5.70. (iv) On 10-8-68 he was found carrying Increment for one one passenger without ticklet. year stopped with cumulative cumulative effect. (v) On 26-7-69 he was found carrying one passenger without ticket in- volving Rs. 10.60 (double fare). Increment for two years stopped with (vi) On 18-8-69 he was detected carry- cumulative effect." ing 80 kg. load without tickets involving Rs. 5/-.

The General Manager then passed the following order on 5-6-70:

"This is eminently a case for major penalty and notice may issue for dismissal".

In pursuance to this order of the General Manager, the show cause notice, copy Annexure C, was issued to the Petitioner. Only a copy of the enquiry report Annexure-A was enclosed with this notice. As is apparent from the language of this show cause notice, all that was conveyed to the Petitioner was that the General Manager agreed with the report of the Enquiry Officer and was satisfied that the charges against the Petitioner stood proved and for that reason alone he had proposed the penalty of dismissal from service against the Petitioner. There was not even a remote hint in this notice that the General Manager in proposing the penalty of dismissal had taken into consideration any past act of omission or commission on the part of the Petitioner or any part of his service record. The Petitioner accordingly submitted his reply to this show cause notice restricting his explanation to the articles of charge contained in the charge sheet with reference to the report of the Enquiry Officer. Since the Petitioner had no knowledge that any material other than the report of the Regional Manager had been considered by the General Manager while proposing the penalty/he confined his representation against this show cause notice to the subject matter of the enquiry only.

The representation submitted by the Petitioner to the General Manager in response to the show cause notice was placed before the General Manager with the office note the concluding portion of which was worded as under:

As a matter of fact, the objections raised by the delinquent in his reply lose force in view of the confessional statement made by him before the inquiring officer, vide his statement at page 5 (slip "B") (linked file), and that being so, the case does not require lenincy on merits. Otherwise too, the delinquent seems to be a habitual offender as would be clear from his past history detailed in N/5. He was found guilty for carrying passengers without tickets at six different occasions previously and penalties by way of stoppage of increments, were imposed.

Superintendent (A) in his concluding para, (vide N/31), has proposed that in view of the young age of the delinquent (being 23 years of age), the penalty of dismissal from service would be too harsh. If approved, we may impose the penalty of ''removal'' from service instead of ''dismissal'' from service as dismissal from service would disqualify him from seeking Government employment.

For orders please.

The General Manager put in a ''X'' mark on the portion of the note commencing from ''Otherwise too'' and ending with ''stoppage of increments, was imposed'' and then passed the following order on 31-7-1970:

"X. In view of this dismissal would be the proper course.

After a draft order in terms of the aforesaid order of General Manager was prepared and placed before the General Manager for his signatures, the latter on 19-11-1970 passed the following order:

"Before orders issue, may I know if personal hearing has been given in this case, if not we may call this man soon.

There is then a note dated 28-11-70 in the hand of the General Manager reading as under:

"I heard Shri Bangali Ram conductor this afternoon. He says that the bus concerned was on a special booking and the passengers detected without tickets were children less than three years old. It was a 33 seater bus and was carrying marriage party. The ticket was issued by the booking office for 33 seats.

Thus it is clear from the office record that the disciplinary authority not only took into consideration the past record of the Petitioner but was greatly influenced by such record in taking its decision with regard to the proposed penalty of dismissal from service. It is also clear that at no point of time, whether while issuing the show-cause notice or while affording him a personal hearing, an indication was given to the Petitioner that his past record was unsatisfactory and the same had been taken into account while deciding the nature of the proposed penalty.

Now sub-Articles (1) and (2) of Article 311 of the Constitution read as:

(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 except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.

The constitutional provisions quoted above which are mandatory in character, provide ample safeguards to the Government servants in the matter of their dismissal, removal and reduction in rank. The very language of Article 311(2) speaks out that a Government servant who is entitled to the protection of Article 311 cannot be dismissed, removed or reduced in rank without his having been afforded two reasonable opportunities to defend himself. The legal process culminating in the dismissal, removal or reduction in rank of such a Government servant must necessarily pass through two stages at either of which the concerned Government servant would be entitled to a reasonable opportunity to defend himself.

At the first stage the Government servant is required to be informed of the details and particulars of the charges against him as also of the evidence both oral and documentary which is intended to be produced in support of such charges and then he is to be given an opportunity, of course a reasonable one, of being heard in respect of such charges. This opportunity in order to be real and reasonable must enable the Government servant to effectively cross examine the witnesses appearing in support of the charges as also to produce his own defence in order to prove his innocence and to show that the charges levelled against him are false.

The second stage would commence when as a result of the inquiry into the charges levelled against the Government servant, his dismissing authority tentatively forms the view that such charges or some of them are prima facie proved and further takes a tentative decision that the case calls for the imposition of one of the three penalties mentioned in Article 311(1), namely dismissal, removal or reduction in rank. At that stage the Government servant is required to be afforded another opportunity which again must be a reasonable one of making representation against the penalty as proposed by the dismissing authority.

The object of affording the Government servant this further opportunity of making representation against the proposed penalty appears to be two fold. The first object is to enable the Government servant to convince or satisfy the dismissing authority that he is innocent and that in forming its view to the contrary, the dismissing authority had failed to appreciate the evidence led in the course of the inquiry, in its true perspective. The second object is to enable the Government servant to satisfy the dismissing authority that even if the charges levelled against him or some of them are taken as proved, the case calls for no penalty or that the proposed penalty is too harsh. Otherwise too since the dismissing authority in arriving at its tentative decision that the charges against the Government servant had been prima facie established and the case called for imposition of a major penalty, had not taken into consideration the view point of the Government servant, it is only fair and in accordance with the principles of natural justice that this second opportunity should be afforded to the Government servant for achieving the aforesaid two objects. Any order passed against the Government servant dismissing, removing or reducing him in rank without affording him either of the aforesaid opportunities to defend himself would be vitiated, being in violation of the provisions of Article 311(2) of the Constitution.

Now in order that the Government servant may effectively avail of the second opportunity guaranted to him under Article 311(2) it is necessary that he should be informed of (i) the reasons which led the dismissing authority in coming to its conclusion that the charges against the Government servant had been pirma facie proved, (ii) the nature of the penalty proposed to be inflicted on the Government servant and (iii) the grounds and factors which weighed with the dismissing authority in taking its tentative decision with regard to the proposed penalty. In case the Government servant is not apprised of the material on the basis of which the dismissing authority came to the conclusion that the charges against the Government servant had been prima facie proved, it would not be possible for him to satisfy the dismissing authority that its conclusion is unjustified and he is innocent. Similarly in case the Government servant is kept in ignorance about the grounds and factors which weighed with the dismissing authority in taking its tentative decision with regard to the nature of the proposed penalty, he would not be in a position to make any effective representation which could satisfy the dismissing authority that the proposed penalty in his case is uncalled for or is too harsh. It, therefore, follows that it is one of the basic requirements of the ''reasonable opportunity'' within the contemplation of Article 311(2) that the Government servant when called upon to make his representation against the proposed penalty is informed of all the factors and grounds which weighed with the dismissing authority while proposing the penalty so that the Government servant can be in a position to meet all such factors and grounds.

In the State of Mysore Vs. K. Manche Gowda, the Respondent Government servant after the completion of the enquiry was served with a show-cause notice reading as follows:

"The Inquiring 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.

After obtaining the explanation of the Respondent Government servant, the disciplinary authority passed order of dismissal against the Respondent Government servant which showed that apart from the report of the Enquiry Officer in that case, the disciplinary authority had taken into consideration the past conduct of the Government servant as well. A Division Bench of the Mysore High Court quashed the order of dismissal passed, against the Respondent Government servant on which the State preferred an appeal in the Supreme Court. The Hon''ble Judge of the Supreme Court while observing that it was not open to the disciplinary authority to take into consideration the past record of the Government servant in deciding the question of quantum of punishment observed as under:

"Under Article 311(2) 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. 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 is mainly based upon the previous record of the Government servant and that is not disclosed in the notice, it would mean that the main reason for the proposed punishment is with-held 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 know as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. 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 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. The Court cannot accept the doctrine of ''presumptive knowledge'' or that of ''purposeless enquiry'', as their acceptance will be subversive of the principle of "reasonable opportunity." Therefore, 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.

The facts of the instant case are also almost similar to the case cited above. In this case as has been shown from a reference to the record of the Enquiry proceedings, the main factor which weighed with the disciplinary authority in proposing and awarding the punishment of dismissal from service on the Petitioner, was the past conduct of the Petitioner regarding which no opportunity had been afforded to the Petitioner to offer his explanation. It cannot, therefore, be said that the Petitioner in this case was afforded a reasonable opportunity within the meaning of Article 311(2) of the Constitution to make his representation against the proposed punishment. The order of the disciplinary authority awarding the punishment of dismissal thus being in violation of the provision of Article 311 of the Constitution, must be quashed.

It was contended on behalf of the Respondents that since both the charges levelled against the Petitioner in the articles of charge served on him, had been proved on the basis of his own admission and inasmuch as the impugned order of the Petitioner''s dismissal could be sustained on the basis of such charges alone, it is not open to this Court to go into the question whether the dismissal authority while passing the impugned order was influenced by any extraneous considerations like the past record of the Petitioner. Reliance in support of this contention was placed in two authorities of the Supreme Court reported as AIR 1964 SC 779 (State of Orissa v. Vidya Bhushan) and Railway Board Representing The Union of India (UOI) Vs. Niranjan Singh, . The question that arose for consideration before their Lordships in these two cases was whether an order of dismissal or removal passed as a result of an enquiry under Article 311 of the Constitution and which is passed on a number of charges taken as proved before the punishing authority, is Liable to be struck down if one or more of such charges are found to be unsustainable. It was in this context that the Supreme Court observed in these two cases that if an order in an enquiry under Article 311 can be supported on any finding as substantial misdemeanour for which the punishment imposed can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question. It may be observed that the order of dismissal/removal which was challenged in these two cases was passed on the basis of a number of charges taken as proved and there was no indication if the punishing authority while passing the impugned order of dismissal/removal was influenced by any particular charge. In the instant case, as already observed, it is manifest from the record of the enquiry which was produced for inspection of the Court by the Respondents, that the main factor which weighed with the General Manager in imposing the penalty of dismissal on the Petitioner was the past record of the Petitioner regarding which admittedly he had been afforded no opportunity to offer his explanation. In basing its order of dismissal against the Petitioner on his past bad record, the dismissing authority can be safely said to have condemned him unheard and thus violated one of the fundamental rules of natural justice. Such an order has got to be struck down and cannot be supported on the ratio of the authorities cited on behalf of the Respondents.

In view of the discussion above, I find that whereas no infirmity can be found with the charge sheet (Annexure-A) and the report of the Enquiry Officer (Annexure-B), the order of dismissal (Annexure-F) passed against the Petitioner is unconstitutional and void. Accordingly I would allow this writ petition and while maintaining the charge sheet, Annexure-A and the report of the Enquiry Officer, Annexure-B, quash the order of dismissal dated 17th April, 1971, passed against the Petitioner, copy Annexure-F. This order, however, will not operate as a bar for the Respondents to impose a fresh penalty as called for on the Petitioner on the basis of the enquiry report Annexure-B after affording him a reasonable opportunity of making representation on the penalty proposed in accordance with law. The parties are left to bear their own costs.