Bimal Kumar Pandit vs State of Assam and Another

G. Mehrotra, C.J.—Petitioner Bimal Kumar pandit after appear-ing in the competitive examinations held by the Assam Public Service Commission in the year 1953 was appointed on probation to the Assam Civil Service � Class I --junior Grade and posted at-Jorhaf by a notification dated the 11th December 1953. By a letter dated the 11th December 1959 the Chief Secretary to the Government of Assam who has been impleaded as opposite party No. 2 to the present petition, asked the petitioner to show cause within fifteen days of the receipt of the communication under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules (hereinafter called the Civil Service Rules) as to why he should not be dealt with under the aforesaid rule. At the time of this communication the petitioner was acting as an Extra-Assistant Commissioner at Shillong.

By the aforesaid communication the Commissioner of Plains Division, Assam was authorised by the Governor to conduct the enquiry and to report to the Chief Secratary his findings. the petitioner was called upon to submit his explanation to the inquiring officer. After the inquiry was completed by the Commissioner of Plains Division the Petitioner .was asked by a letter dated the 1st June 1960 by the opposite party. No. 2 to show cause why the penalty.of removal from service should not be imposed on him and he was further asked to submit his explanation on or before the 18th June 1960. A copy of the report of the inquiring officer was enclosed alongwith the communication. The petitioner filed his written explanation. By a letter''dated the 8th July 1961, the Chief Secretary.passed the following order against the petitioner:�

The Governor of Assam is pleased to reduce in rank Shri Bimal Kumar Pandit Extra Assistant Commissioner, on probation in the Assam Civil Service, Class I, (now under suspension) to the Assam Civil Service Class II, permanently, with effect from the date he takes over as such.

The Governor of Assam is further pleased to direct that Shri Bimal Kumar Pandit, will be on probation in the Assam Civil Service, Class II for two years subject to termination, if his work and conduct be not found satisfactory. The officer will draw his pay in the minimum of the scales of pay A. C. S. Class II and his seniority in the Cadre will be determined with effect from the date of his joining.

The order dated the 8th July 1961 is Impugned by the Present petition under Article 220 of the Constitution. (2) Mr. Lahiri who appears for the petitioner has challenged the order on a number of grounds Firstly he contends that there was no proper delegation of authority to the Commissioner of plains Division to make an inquiry. His second contention is that the order passed does not constitute a reduction in rank as contemplated under the civil Service Rules and thus the punishment awarded is beyond the scope of opposite party No. 2. Thirdly it is urged that it does not appear from the order passed by the Chief Secretary that he applied his mind to the report submitted by the inquiring officer and came to an independent conclusion as to which of the charges according to him have been established against the Petitioner.

Before issuing a notification to show cause against the proposed punishment the punishing authority has to make up its mind as to which of the charges have been established against the Petitioner. Unless the punishing authority has made up its mind about the charges, no show-cause notice against the Petitioner could be issued and thus in the present case there has been a violation of the provisions of Article 311(2) of the Constitution. Lastly it is urged that the notice to show cause against the proposed punishment has not been issued by the punishing authority. Thus the notice was illegal.

The contention of the Petitioner that the delegation of authority to inquire was bad has no substance. In the case of Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, it was held that the exercise of power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power and that a statutory functionary exercising such a power cannot be said to have delegated his function merely because he has deputed a responsible and competent official to enquire and report.

The validity of the notice dated the 1st June 1960, issued under the signature of the Chief Secretary to the Government of Assam calling upon the Petitioner to show cause against the proposed penalty has been challenged on several grounds. It is urged that the notice purports to have been issued under Article 311(2) of the Constitution. Such an Act is an executive act of the Government and under Article 166 of the Constitution all executive action of the Government of a State is to be expressed to be taken in the name of the Governor

Cause (2) of Article 166 provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Clause (3) gives power to the Governor to make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

It is contended that the notice is not expressed in the name of the Governor nor is there proper authentication. Article 166(1) and (2) is only directory. If the order complies with the provisions of Article 166(1) and (2) the validity of the order cannot be called in question on the ground that it is not in order or instrument made or executed by the Governor. If however it does not comply with the provisions of Article 166(1) and (2), the immunity from being questioned on the ground that it was not executed by the Governor does not attach to such an order. But it is open in a proceeding before this Court to show that in fact the order was passed by the Governor.

There is no averment in the petition that the order was no made or executed by the Governor and thus the point cannot be allowed to be raised by the Petitioner at this stage of the proceeding. It was urged in the course of the argument that it does not appear from the record of the Secretariat that at any stage the notice was brought to the notice of the Minister concerned and he passed the necessary order. As I have already indicated above, there is no averment in the petition challenging the validity of the notice on the ground that it was not properly executed by the Governor.

It was then contended that Article 311(2) provides that a member of a civil service can be dismissed or removed or reduced in rank only if he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In the present case it is contended that no reasonable opportunity was given to the Petitioner to show cause against the proposed action. The argument briefly is that by the notice dated the 11th December 1959, the Petitioner was called upon to show cause as to why he should not be dismissed from service or otherwise punished on the charges set out in that notice. By the same letter the Commissioner of Plains Division was authorised to conduct the inquiry. The Petitioner was given an opportunity to give his explanation to the charges before the Commissioner of Plains Division.

In response to the above notice the Petitioner submitted his explanation and the inquiring officer gave his finding and submitted his report to the Government for necessary action. On the receipt of the report the notice dated the 1st June 1960 was issued requiring the Petitioner to show cause against the proposed punishment. From the perusal of that notice it does not appear that the Government which is the punishing authority at all applied its mind to the finding given by the inquiring officer and came to any conclusion as to which of the charges in the opinion of the Government have been established against the Petitioner.

Before issuing a notice under Article 311(2) asking the civil servant to show cause against the proposed punishment the dismissing authority has to make up its mind whether the charges have or have not been established against the civil servant. The dismissing authority has further to indicate the reasons for holding that the proposed punishment should be awarded. In the notice issued by the Government it is not indicated as to which of the findings arrived at by the inquiring officer were accepted by the Government and which have been rejected. In also does not set out the reasons for the proposed Punishment. The punishment awarded to the Petitioner by the final order is not also one against which notice to show cause was issued to the Petitioner.

From all these circumstances it is contended that there has been non-compliance with the provisions of Article 311(2) of the Constitution. Under Article 310 of the Constitution the civil servant holds his office during the pleasure of the President or the Governor as the case may be. The pleasure of the Governor is only subject to the express provision of the Constitution embodied in Article 311 of the Constitution. Article 311 thus embodies the constitutional guarantee and the exercise of pleasure under Article 310 of the Constitution to that extent is subject to the conditions laid down under Article 311. Under Article 311 there are two limitations on the exercise of the powers of the dismissing authority. An authority inferior to the appointing authority has no power to dismiss a civil servant and further no person can 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.

It will be convenient at this stage to refer to some of the authorities cited at the bar.

Reference may be made in the case of Khem Chand Vs. The Union of India (UOI )and Others, It was laid down in this case that:

The reasonable opportunity envisaged to the Government servant by the provision contained in Article 311(2) includes (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and it he allegations on which such charges are based; (b) an opportunity to make his representation as do why the proposed punishment should not be inflicted on him which he can only do if the competent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.

In this case the Petitioner was served with a notice to appear before one J.B. Tandon I.A.S. to show cause against certain charges. Mr. Tandon submitted his report to the Government, after giving notice to the Petitioner. No notice was served by the Deputy Commissioner who was the dismissing authority, asking the Petitioner to show cause why a particular punishment should not be awarded to him and it was held in those circumstances that there was non-compliance with the provision of Article 311(2). It was observed that when the Deputy Commissioner accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the Appellant, it was on that stage being reached that the Appellant was entitled to have a further opportunity given to him to show cause why that particular, punishment should not be inflicted on him.

Reliance is placed on the following passage in the case of D.S. Garewal Vs. The State of Punjab and Another,

Rule 5(9) provides for what is to happen after the enquiry is over, and it lays down that after the enquiry has been completed and after the punishing authority has arrived at a provisional conclusion in regard to the penalty to be imposed, if the penalty proposed is dismissal removal, compulsory retirement or reduction in rank, the member of the service charged shall be supplied with a copy of the report of enquiry and be given a further opportunity to show cause why the proposed penalty should not be imposed on him. The very fact that in this rule the word ''Government'' is not used and instead the words ''punishing authority'' are used show that the question of punishment arises after the enquiry is over and the relevant government would then consider that question; and if punishment is to be one of the three provided in Rule 4(1) the report of the enquiry officer would have to be forwarded to the Central Government so that it may determine the provisional punishment and communicate it to the officer concerned along with the report of the enquiry officer to comply with the provisions of Article 311(2).

This case is not of much assistance to the Petitioner.

Reliance is placed on the case of Joga Rao v. State reported in (S) AIR 1957 AP 197. The facts are that the Appellant was a permanent Tahsildar and it having been brought to the notice of the Government that a prima facie case of corruption was made out against him the matter was entrusted to the Tribunal for disciplinary proceedings and enquiry. The Tribunal framed charges and held an elaborate inquiry. The Tribunal recommended to the Government that the Appellant should be dismissed from the service.

On the receipt of report the Government of Madras issued a notice stating that a copy of the report is being communicated to the Appellant and further that the Government agreed with the findings of the Tribunal in respect of the charges as well as its recommendation regarding the punishment and have arrived at a provisional conclusion that the Appellant should be dismissed from service. He was accordingly asked to show cause within one month from the date of the receipt of notice why he should not be dismissed from service. The Appellant submitted a written explanation challenging the validity of the Tribunal''s finding and also on the quantum of punishment and a final order was made by the Government dismissing him from service.

On these facts the dismissal order was challenged. The petition filed before the single Judge was rejected and an appeal was also rejected by the Bench. Reliance however, is placed on the following passage:

The action proposed to be taken in regard to a civil servant will be known only after the enquiry is held and after the authority concerned comes to a tentative conclusion on the merits, for gun which had resulted in the death of his mother, there is no bar to the Court relying on that part of the statement, even though the explanation given by the accused that the gun went off accidentally may not be acceptable to the Court, having regard to the evidence on the record. There is the evidence of the Doctor also, who recorded the dying declaration. The daughter of the deceased has also corroborated the fact that before the doctor her mother gave out that she was killed by her son. The oral dying declaration is no doubt every weak piece of evidence; but the evidence of the doctor that the mother told him that she had been injured by her son corroborates the statement of the prosecution witnesses that the gun was fired by the Appellant, which resulted in her death.

It is then urged that the doctor in his statement has said that he immediately wrote out the statement made by the deceased on a paper, but that paper has not been produced. As I have already indicated, there is no reason to doubt the statement of the doctor that before him, the deceased stated that it was her son who injured her. If the prosecution has succeeded in proving that the injury was caused by the Appellant that be used his gun and the shot injured the deceased, the only inference which can be drawn is that the Appellant intended to injure his mother unless it is established by the evidence on the record that the gun went off accidentally and that the Appellant was chasing a mad dog when the accident happened. There is no evidence on record to prove this fact, nor can it be inferred from the evidence of the prosecution witnesses that it was a case of accident. The evidence of P.W.11 shows that the trigger was not slack. There was therefore, no chance of the gun going off accidentally. From the evidence, the charge has been fully established against the Appellant.

Dr. Medhi has also contended that the trial by the Deputy Commissioner was without jurisdiction. Reliance is placed on paragraph 5 of the Sixth Schedule to the Constitution, which provides as follows:

Conferment of powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences. -- (1) The Governor may for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor, or for the trial of offences punishable with death, transportation for life, or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable to such district or region, confer on the District Council or the Regional Council having authority over such district or region or on courts constituted by such District Council or on any officer appointed in that behalf by the Governor, such powers under the Code of Civil Procedure, 1908, or, as the case may be, the Code of Criminal Procedure 1898, as he deems appropriate and thereupon the said Council, court or officer shall try the suits, cases or offences in exercise of the powers so conferred.

(2) The Governor may withdraw or (sic) any of the powers conferred on a District. Council, Regional Council, court or officer under sub-paragraph (1) of this paragraph.

(3) Save as expressly provided in this paragraph, the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, shall not apply to the trial of any suits cases or offences in an autonomous district or in any autonomous region to which the provisions of this paragraph apply.

The argument is that sub-para (1) of para 5 gives power to the Governor to confer jurisdiction on the District Council Courts to try cases punishable with death, transportation for life or imprisonment for a term of not less than five years under the Indian Penal Code. The District Council has been formed for the Garo Hills district and unless the Governor confers power on the District Council to try such suits, no Court is competent to try and dispose of such cases. Paragraph 5 only gives power to the Governor to confer jurisdiction on the District Council Courts and the subordinate District Council Courts to try certain classes of cases mentioned therein. Paragraph 4 of the Sixth Schedule to the Constitution provides that the administration of justice in autonomous districts vests in the District Council, and paragraph 5 is an exception to paragraph 4. In respect of the cases mentioned in paragraph 5, the District Council acquires no jurisdiction to try under paragraph 4, unless the power is conferred by the Governor.

This sub-paragraph, to my mind, does not take away the power of the Deputy. Commissioner to try such cases so long as the power has not been conferred on the District Council. If the contention of the Appellant is accepted, then till the power has been conferred on the District Council to try such cases, no Court in the Garo Hills district can try cases, in which death penalty, life imprisonment or imprisonment for more than five years can be awarded. Criminal justice is administered in this area under the Rules for the Administration of Justice and Police in the Garo Hills district, framed by the Governor on the 29th March, 1937. It is not disputed that these Rules in so far as they have not been affected by the provisions of the Sixth Schedule to the Constitution, are still in force. In 1953, the District Council with the previous approval of the Governor of Assam, under sub-para (4) of para 4 of the Sixth Schedule and in the exercise of its powers under para 11 of the Sixth Schedule, framed certain rules called the Garo Hills Autonomous District (Administration of Justice) Rules, 1953. These Rules provide for the constitution of Village Courts and also lay down the powers of the District Council, Subordinate District Council and Village Courts. Rule 23 of the Rules lays down:

(1) A Subordinate District Council Court shall not be competent to try suits and cases

(a) to which the provisions of sub-paragraph (1) of paragraph 5 of the Sixth Schedule to the Constitution apply, unless the Court has been authorised by the Governor to exercise such powers for the trial of particular class or classes of cases and suits specified in that behalf by the Governor as required under the said sub-paragraph (1) of paragraph 5 of the Sixth Schedule;

After the dismissing authority has come to the conclusion that the charges have been proved against the civil servant, the notice to show cause against the proposed punishment is to be issued and the reasons for coming to that conclusion are to be indicated in the notice to enable the delinquent servant to show cause against the proposed punishment.

In the light of the broad principles emerging out of the above decisions the facts of the present case will have to be examined. The letter issued under the signature of the Chief Secretary to the Government of Assam on the 1st June 1960, does not indicate that the dismissing authority applied its mind to the findings of the inquiring officer. In this notice to show cause, the proposed punishment is removal from service but the punishment actually awarded is reduction in rank. A copy of the report of the inquiring officer was no doubt sent to the Petitioner along with the notice but from the perusal of the report it is clear that the inquiring officer had not found all the charges proved against the Petitioner. In the report the charges have been formulated into three heads -- (a) the charge relating to the trial of G.R. Case No. 370(A), 54(b) the charges relating to the explanation called for by the Sub-Divisional Officer and (c) the charges relating to the Purchase of land and construction of a house at Shillong.

Items 1, 2 and 3 of the charges in the statement of allegations attached to the notice dated the 11th December 1959, which is marked as Annexure ''B-2'' to this petition relate to the trial of G.R. Case No. 370(A)54. The inquiring officer has found that item No. (1) of charge (a) has not been proved. Regarding item No. (2) of charge (a) the inquiring officer has found that he is not guilty of deliberately misrepresenting facts to the Deputy Commissioner; but he displayed inadequate sense of responsibility by not personally verifying the exhibits with the affidavit filed.

Regarding item No. (3) of charge (a) he has found that the charge of misconduct is not established. Regarding items (4) and (5) of the statement of allegations relating to charge (b) the inquiring officer has found that item No. (4) is established to the extent of proving that the Magistrate conducted himself irresponsibly in handling the supply matters entrusted to him but that it was difficult for him to say whether the Magistrate did actually exceed the limits of the powers delegated to him by S.D.O. and that item No. (5) has not been established.

Items (6), (7), (8), (9), (10) and (11) mentioned in the statement of allegations relate to charge (c) regarding the purchase of land and construction of a house at Shillong. As to item (6) the finding is that the charge is not established. The inquiring officer has found item No. (7) against the Petitioner. The charge in item No. (8) that the Petitioner purchased the land at a much lower rate than the prevailing market price by exercising his official influence is found not to have been established. Item No. (9) is also not found to be established. The inquiring officer held that this is more a case of distress sale than speculation. Item No. (10) is found against the Petitioner.

The enquiring officer holds that his failure to declare his intentions to Government and to await directions constituted a clear violation of Rule 8 of the Government Servants Conduct Rules. The three charges partially established are items (1), (2) and (4) of the charge sheet. The first two relate to the missing of the exhibits from the record of G.R. No. 370(A)54 and the third to the submission of explanation asked for by the Sub-divisional Officer. He has however, observed that the lapses proved under these charges do not in his opinion cast any serious doubt on the honesty and integrity of the officer, although the evidence considered under items (1) and (2) proves his inexperience and that under (2) and (4) his irresponsibility.

In these circumstances in his view the two charges which deserve consideration for purposes of punishment are items (7) and (10).

It does not appear from the notice served on the Petitioner to show cause against the proposed punishment as to which part of the finding of the inquiring officer has been accepted by the punishing authority.

In paragraph 4 of the counter-affidavit filed on behalf of the State replying to the allegation in paragraph 15 of the petition it is stated that the Petitioner was duly supplied with a statement of allegations brought against him. He was also given a personal hearing by the inquiring officer. Furthermore while asking him to show cause why the punishment of removal from service should not be imposed upon him, he was furnished with a copy of the report of the inquiring officer. The fact that he was supplied with a copy of the report of the enquiring officer while asking to show cause against the proposed punishment of removal only goes to show that Government had nothing to disagree with the findings of the enquiring officer.

In paragraph 10 of the counter-affidavit in reply to paragraphs 25 to 28 of the petition it is stated that the Government accepted the findings of the enquiring officer and accordingly the Petitioner was asked to show cause why he should not be removed from service and after receipt of the cause shown, the Government decided and passed the impugned order. These two paragraphs are verified as being true to the information received from records believed to be true. From the fact that the copy of the report of the enquiring officer was supplied along with the notice it is sought to be inferred that the punishing authority had applied its mind to the report of the enquiring officer and had come 10 its own independent conclusion that the charges were established.

This inference in our opinion, cannot be drawn from the mere fact of sending a copy of the report. In our opinion, therefore, the Petitioner was not given sufficient opportunity to show cause as contemplated under Article 311(2) of the Constitution and the order is thus violative of the provisions of Article 311(2) of the Constitution.

It was contended by Mr. Lahiri that the punishment awarded to the Petitioner does not amount to reduction in rank within the meaning of the Civil Services (Classification, Control and Appeal) Rules. If the punishment awarded to the Petitioner does not constitute reduction in rank Article 311(2) of the Constitution will not be attracted and the Petitioner is not entitled to claim any protection.

Mr. Lahiri contends that although the proposed punishment amounts to a reduction in rank as contemplated by Article 311(2) of the Constitution it does not come within the meaning of the word ''reduction'' as used in the Civil Services (Classification, Control and Appeal) Rules. We do not think that this contention is correct. As however, we have held that the provisions of Article 311(2) of the Constitution were not complied with in the present case the order passed against the Petitioner is illegal and the Petitioner is entitled to a mandamus directing the opposite parties not to give effect to the order dated the 8th July 1961, passed by the Chief Secretary to the Government of Assam with cost which we assess at Rs. 100/ -.

S.K. Dutta, J.

I agree.