State of Jammu and Kashmir vs Mohd. Shafi and Another

K.V. Gopalakrishnan Nair, J.—The State of Jammu and Kashmir has preferred this appeal under the Letters Patent against the decision of

Ali, J. granting a writ of certiorari in favour of the first Respondent.

The first Respondent was holding the office of a storekeeper in the Lift Irrigation Division of the Public Works Department of the State. Charge

of embezzlement of a sum of Rs. 75,000/- by making false entries in the registers and bills were levelled against the first Respondent and seven

others including the Divisional Engineer. A Commission of Inquiry was set up by the Government to go into the charges. The Commission found

that the charges were proved and made a report accordingly to the Government. The Government accepted the findings of the Commission and

issued a notice to the first Respondent to show cause why he should not be dismissed from service.

The first Respondent thereupon asked the Government to furnish him with a copy of the report of the Commission and the Government supplied

him with a copy of paragraphs 65 to 70 of the Commission's report which dealt with him. The first Respondent made his representations in answer

to the show-cause notice served on him but complained that the full report of the Commission ought to have been furnished to him. The

Government, however, after considering his representations dismissed him from service.

The first Respondent then moved this Court for a writ of certiorari to quash the order of the Government dismissing him on the ground that a

reasonable opportunity of showing cause against the action proposed to be taken against him by the Government had not been afforded to him.

The writ asked for was granted by Ali, J. The State has, therefore, come up in appeal against the judgment of Ali, J,

The case before us involves an interpreta-on of the following constitutional provision:

No such person as aforesaid shall be dismissed (sic) removed or reduced in rank until he has been (sic) a reasonable opportunity of showing cause

(sic) the action proposed to be taken in regard (sic) him.

(Article 311(2) of the Constitution of India: Section 126(2) of the State Constitution).

This provision is practically a reproduction of Section 240(3) of the Government of India Act, 1935. (sic) AIR 1945 47 (Federal Court) the

majority of the Judges of the Federal Court (Spens C.J. and Zafarulla Khan, J.) construed Section 240(3) as follows:

In our judgment the words ""against the action proposed to be taken in regard to him"" require that there should be a definite proposal by some

authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be

determined upon. It should be noted that the sub-section does not require any inquiry, any formulation of charges, or any opportunity of defence

against those charges. All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given

reasonable opportunity of showing cause against the proposal to dismiss or reduce him. It is also significant that there is no indication as to the

authority by whom the action is to be proposed. It does, however, seem to us that the sub-section 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 bold 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.

It is suggested that in some cases it will be sufficient to indicate the charges the evidence on which those charges are put forward and to make it

clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved,

dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. 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 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. That in our judgment involves in all cases

where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall

be told in full, or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of

showing cause, with that information why he should not suffer the proposed dismissal or reduction of rank.

The matter was carried to the Privy Council by the AIR 1948 121 (Privy Council) observed as follows with reference to Section 240(3).

In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the

charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested

punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-section

(3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than

one stage. If the civil servant has been through an enquiry under Rule 55, if: would not be reasonable that he should ask for a repetition of that

stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed

as the result of the findings of the enquiry.

It will be seen that in the view of the majority of the Judges of the Federal Court Section 240(3) did not require any enquiry or formulation of

charges or opportunity to defend against those charges. According to them all that was necessary under that section was that where it was

proposed to dismiss or to reduce in rank a civil servant he should be given a reasonable opportunity of showing cause against the proposal to

dismiss or reduce him. That opportunity has to be a reason able opportunity and, therefore, the mere notification of the action proposed was not

sufficient; the civil servant had also to be given the grounds on which the action was proposed to be taken against him. The Judicial Committee

agreed with the view taken by the majority of the Judges of the Federal Court but added that no action could be proposed within the meaning of

Section 240(3) until a definite conclusion was reached on the charges against the civil servant and the actual punishment to be followed was

provisionally determined on.

They pointed out that it was only on that stage being reached that Section 240(3) gave the civil servant an opportunity of showing cause against the

action proposed in regard to him. The Judicial Committee did not, however, make it quite clear whether the expression ""reasonable opportunity of

showing cause"" comprehended an earlier stage of the enquiry as well, that is to say, whether it was necessary to formulate charges, to afford an

opportunity to defend against those charges, to cross-examine witnesses called against the civil servant and to adduce evidence in support of his

defence.

The position has now been placed beyond doubt by the authoritative pronouncement of the Supreme Court in Khem Chand Vs. The Union of

India (UOI )and Others, . At p. 306 their Lordships laid down the law in the following words:

In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one it is quite obviously necessary that

the government servant should have the opportunity to say, if that be his case, that he has not been guilty of any misconduct to merit any

punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas

have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment. If this is the

correct meaning of the clause, as we think it is, what consequences follow? If it is open to the government servant under this provision to contend,

if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? If

the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and

the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence.

If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be

a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if

he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All

this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. 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 removal or reduction in rank

and that any of the lesser punishments ought to be sufficient in his case."" The inquiry thus ordinarily comprises of two stages: One stage ends when

the punishing authority comes to a definite conclusion on the charges and provisionally determines on the punishment to be imposed on the

delinquent; the second stage begins when the punishment tentatively proposed is communicated to the delinquent and he is called upon to show

cause against the imposition of the punishment proposed. At the second stage also the delinquent has to be given a reasonable opportunity of

showing cause against the penalty proposed to be inflicted on him.

The question arises what precisely is the scope of the second stage of the inquiry? Should the affected civil servant be given an opportunity even

at the second stage to show that the charges levelled against him are false and that he is therefore, innocent? â€" or is the second stage of the

inquiry to be confined to the question of punishment to be imposed on him? If he is to be allowed not only to show cause against the proposed

punishment but also to prove that the charges against him are not true it will amount to giving him a second opportunity of defending against the

charges levelled against him; that appropriately fell within the purview of the first stage of the proceedings.

After his having been given an opportunity to properly defend himself at the enquiry and to adduce evidence in support of his defence, the enquiring

officer arrived at findings on the charges. Those findings have been accepted by the punishing authority. For the civil servant to be allowed again to

cover the same ground and urge that the charges against him are not true would not be reasonable. As pointed out by the Judicial Committee in

I.M. Lall's case AIR 1948 PC (sic) (Supra):

If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for repetition of that stage, if duly

carried out....

Please see also S. Kapur Singh Vs. Union of India (UOI), .

In our judgment the true ambit of the second stage of the proceedings is only to show cause against the proposed punishment and not against the

truth and validity of the charges on which conclusions have already been reached. If it were otherwise, there would be a repetition at the second

stage of what had already transpired at the first stage. What is more, the proceedings at the second stage would partake of an appeal against the

conclusions already reached on the charges against the delinquent, and such an appeal would be to the same authority who had already arrived at

the conclusions. Such a position, in our opinion, is not contemplated by either the letter or the spirit of the constitutional provision already referred

to.

In our view, the second stage of the proceedings is not an altogether independent stage totally unconnected with the earlier stage. The second stage

on the other hand is only a logical continuation of the proceedings taken at the earlier stage. Therefore, we think that the opportunity afforded at the

second stage cannot be to canvass the correctness of the conclusions arrived at by the punishing authority at the end of the first stage, but only to

make representations against the punishment tentatively suggested by that authority. In this view, whatever be the cause shown by the delinquent at

the second stage against the punishment proposed against him it should not run counter or conflict with the conclusions reached towards the end of

the first stage that the delinquent is guilty of the charges. We need not repeat that the charges should be only those formulated and inquired into in

the presence of the delinquent and the findings on those charges should be arrived at only after giving the delinquents adequate opportunity not only

to examine the material on which the charges are sought to be made out and to cross-examine the witnesses called to prove those charges, but also

to put forward and substantiate the defence.

The findings so reached at the inquiry are then considered in the light of the material on the record and accepted by the punishing authority. If all

this was duly done at the first stage there can, in our opinion, be no case for the delinquent to canvas at the second stage the correctness of those

findings. He can then only seek to show at the second stage that even on the basis of the correctness and validity of those conclusions, the

punishment proposed to be meted out to him is not called for, being too harsh, etc. To enable him a reasonable opportunity to show such cause

against the proposed punishment, he need not be supplied with the entire material which was brought out against him at the first stage of the

proceedings.

It will be sufficient in our judgment if the delinquent is given the findings on the charges against him and also an adequate summary of the grounds

on which those findings are based. As observed by the majority of the Judges of the Federal Court in AIR 1945 47 (Federal Court) , where there

is an inquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, the person concerned shall be told in full or in

adequately summarised form the results of that enquiry and the findings of the inquiring officer and be given an opportunity of showing cause why

he should not suffer the proposed dismissal or reduction in rank.

It is well to remember that in the opinion of the Federal Court this was sufficient even where there was no formulation of charges or opportunity to

defend against those charges; in fact, where there was no first stage of the proceedings as we have indicated above. We are stating this only to

emphasize that in a case where a proper enquiry was held and a reasonable opportunity to defend was afforded at the first stage, it will be

sufficients at the second stage if the results of that enquiry and the findings of the enquiring officer are supplied to the civil servant either in full or in

an adequately summarised form. If this was done, it will not be reasonable for the civil servant concerned to complain that a reasonable opportunity

was not given to him at the second stage because he had not been given a full and complete copy of the report of the enquiring officer.

In the case on hand, the enquiry was conducted against eight persons. The Commission of Enquiry dealt with the cases of all the eight persons in

a single report, devoting separate paragraphs to each of them. The first Respondent who was duly represented by a counsel at the enquiry

practically admitted charges against him. He had no evidence to adduce in his defence. The only plea he took at the enquiry was that he committed

the acts charged against him at the direction of the Divisional Engineer. This plea was obviously insufficient to exonerate him of the charges. At the

second stage he was given a copy of the paragraphs of the report which directly dealt with the case against him.

In these paragraphs the Commission of Enquiry had definitely held that the first Respondent was the villain of the piece, that but for his action and

behavior it would have been impossible for the Divisional Engineer or anybody else to commit the serious acts of fraud and deprive the State of a

sum of Rs. 75,000/-. It was also mentioned that the primary responsibility for recording the correct weights and measurements of the iron goods

received at the stores was that of the storekeeper (first Respondent). All the eight persons against whom the enquiry was conducted have been

punished: some with dismissal; some with reduction in rank and stoppage of increments. The Divisional Engineer himself was admittedly reduced in

rank and his increments stopped for a specified period of time.

As the report dealt with all the eight persons in separate paragraphs and as the charges had been levelled against all of them in respect of the same

transaction of embezzlement, references were made here and there in the report to the narration and discussion of facts in the earlier paragraphs.

This appears to have been done with a view to making the report readable and connected. Such references are to be found in the opening

sentences of paragraphs 66 and 67.

This is seized upon by the first Respondent for showing that the copy of paragraphs 65 to 70 which was furnished to him was not sufficient to

enable him to make an effective representation against the action proposed against him. We have carefully gone through paragraphs 65 to 70 of the

report of the Commission of Enquiry. We find in it ample material to afford a reasonable opportunity to the first Respondent to show cause against

the punishment proposed against him. The main facts and the important grounds on which the Commission based itself, the results of the enquiry,

and the finding of the Commission are all contained in paragraphs 65 to 70. Nothing more was reasonably necessary for the first Respondent to

show cause against the penalty which was proposed to be inflicted on him.

It was also admitted at the bar by both sides that the first Respondent was given a fairly elaborate show-cause notice indicating therein the findings

of the Commission of Enquiry which were accepted by the punishing authority. This notice was accompanied by a memorandum of the punishing

authority setting out the charges against the first Respondent and indicating against each of them the finding of the Commission. It cannot be

doubted that the first Respondent who was through the first stage of the enquiry was conversant with all the facts and circumstances connected

with the charges levelled against him.

This is perhaps an added ground for holding that the material supplied to the first Respondent by the punishing authority at the second stage was

reasonable and sufficient. We are, therefore, unable to agree that in the absence of a copy of the entire report of the Commission of Enquiry the

first Respondent did not get a reasonable opportunity to show cause against the action proposed in regard to him. It is well-established that what is

a reasonable opportunity must depend on the facts and circumstances of each case. It is not possible to lay down any hard and fast rule of

universal application in this regard.

Considering the facts and circumstances of the instant case, we are satisfied that the first Respondent was given a reasonable opportunity of

showing cause against the action proposed to be taken in regard to him within the meaning of Section 126(2) of the State Constitution which

corresponds to Article 311(2) of the Constitution of India.

In the result, we allow this appeal and set aside the judgment of Ali, J. The first Respondent will pay a sum of Rs. 60/- as costs to the

appellant.

J.N. Wazir, C.J.

I agree.