The State of Madras vs A.R. Srinivasan

Jagadisan, J.—This is an application for leave to appeal to the Supreme Court from the judgment of this Court in W. A. No. 78 of 1961

affirming the judgment in W. P. No. 977 of 1958.

The writ petition was one under Article 226 of the Constitution by an officer in Government service to quash the disciplinary proceedings against

him which culminated in his compulsory retirement. He succeeded before Ramachandra Iyer J., as he then was, and the learned juage issued a

writ. On appeal by the State of Madras we contained the issue of writ, The State now prays for leave to appeal from our judgment.

We may point out at the outset that the respondent officer is now 58 years old and he reached the superannuation limit three years ago. The

order of writ in his favour cannot avail him to get into the office again. This circumstance cannot operate retrospectively to support the correctness

of the judgment now called in question nor to dismiss the application for leave if it is competent under the constitutional provision. But it would be a

relevant circumstance to take into account if the granting of leave in this case were to be a matter of discretion and not in recognition of a right in

the State. The learned Additional Government Pleader appearing for the State made it quite clear that though the application purported to be under

Article 133(1)(a), (b) and (c) of the Constitution he could not contend that it would lie either under Article 133(1)(a) or (b). His limited submission

therefore was that the case was a fit one for this court to grant a certificate under Article 133(1)(c).

The difference between Article 133(1)(a) and (b) on the one hand and Article 133(1)(c) on the other is fairly obvious. A certificate under sub-

clauses (a) and (b) of Article 133(1) may be obtained as of right if the conditions specified therein are fulfilled. But the granting of certificate under

cl. (c) would be completely and solely al the discretion of this court. What we have to consider is whether the facts and circumstances of this case

would warrant our certifying that the case is a fit one for leave to appeal to the Supreme Court under the residuary cl. (c) of Article 133(1).

The facts of the case are fully set out in out judgment in the writ appeal and it is unnecessary to traverse them again. The respondent was found

guilty of some of the charges framed against him. In regard to charges which were held not to have been proved the authorities concerned were

firmly of the opinion that the prosecution evidence as a whole left an impression of ''strong suspicion'' of the officer having been guilty of corrupt

practices. It is in this view of the matter that the punishment of compulsory retirement was imposed upon the officer. The question raised in the

proceedings under Article 226 was whether a Government servant can be found guilty on mere suspicion, however, strong it may be, and: whether

a proceeding in which suspicion takes the place of legal evidence would not amount to violation of Article 311 of the Constitution. We have taken

the view that there was a breach of the constitutional provision having regard to the manner in which the proceeding culminated against the officer

and we accordingly were of the opinion that a writ was properly issued.

The entire argument of the learned Additional Government Pleader was to the effect that our decision was not in accordance with law in view of

a recent decision of the Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, . Whether their Lordships of the Supreme Court have

really taken a view different from the one that we have taken, we shall consider a little later. The scope of an application: for leave to appeal to the

Supreme Court under Article 133(1)(c) of the Constitution is limited to the question whether a substantial question of law of great private or public

importance arises and whether having regard to all the circumstances of the case it is a matter worthy of consideration by the Supreme Court to lay

down an authoritative precedent binding on all the courts. The court dealing with an application for leave is not a court of appeal sitting in judgment

over the judgment from which leave is asked for. It cannot be contended by the applicant that leave should be granted because the impugned

judgment is erroneous in law. It seems to us that such an argument in support of an application for leave would be wholly misconceived if not

irrelevant. What we have now to consider therefore is whether grounds exist for our exercising the discretion to grant leave. In doing this, it would

not be proper to view the application as if it were one for review of the judgment.

It is now fairly well settled that a case giving rise to a question of law of great public or private importance would normally be considered fit for

leave being granted. It is equally well settled that it is not every question of law, however important it may be between the parties inter se, that

would necessarily attract the discretion of the court to grant the necessary certificate. What is a substantial question of law can never be

exhaustively laid down by any court. A conflict of judicial opinion on a question of law, amongst the various High Courts, or an interpretation of

statute affecting the rights of section of the public, or a question of procedural or substantive law which arises frequently, may be considered as

good grounds for leave. No formula can be devised to decide what is and what is not a substantial question of law. The language of Article 133(1)

(c) is indeed very wide and it seems that even if there) is a substantial question of law involved in the case the court might yet refuse leave having

regard to other facts and circumstances arising in the case. Having considered the matter deeply we are unable to say that the present case is a fit

one for leave to appeal under the residuary provision of cl. (c) of Article 133(1).

We shall now refer to the decision of the Supreme Court in order to test the correctness of the submission of the learned Additional Government

Pleader that the view taken by us ,in the writ appeal cannot be sustained as it runs counter to the decision of the Supreme Court. A Government

servant in the State of Orissa was charges with having received an illegal gratification on five specific occasions and was also charged to have been

in possession of means disproportionate to his income. The special tribunal that held an enquiry in respect of these charges held that there was

reliable evidence to support four out of five heads in the first charge of receipt of illegal gratification and also to support the charge relating to

possession of means. The Tribunal recommended that the officer should be, dismissed from service.

The finding of the tribunal was tentatively approved toy the Governor of Orissa and the delinquent officer was called upon to show cause why he

should not be dismissed from service, as recommended. The officer submitted a rejoinder and contended that the tribunal held the enquiry In a

manner contrary to rules of natural justice. After consulting the Public Service Commission the Governor of Orissa directed that the officer be

dismissed from service. He then applied to the High Court of Orissa under Arts. 226 and 227 of the Constitution for a writ quashing the entire

proceedings before the tribunal beginning from the charges and culminating in the order of dismissal and directing the State of Orissa to forbear

from giving effect to the order of dismissal and for a declaration that he be deemed to have continued in his office as Sub-Registrar.

Before the High Court the officer submitted that the order of dismissal was void because the rules relating to the holding of an enquiry against

non-gazetted public servants called the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 were discriminatory, and that in holding the

enquiry against him the Tribunal had violated the rules of natural justice. The High Court held that the findings of the tribunal on charges 1 (a) and 1

(c) were vitiated because it had failed to observe the rules of natural justice, but they held that the findings on charges 1(c), 1(d) (corruption

charges) and charge (2) (relating to possession of means disproportionate to the income) were supported by evidence and were not shown to be

vitiated by non-observance! of rules of natural Justice. The High Court directed that the findings in respect of charges 1 (a) and (e) be set aside as

being opposed to the rules of natural justice, but at the same time observed that the findings in respect of charges 1 (c) and 1 (d) and charge (2)

need not be disturbed. The High Court further observed that it would be left to the Government to decide whether on the basis of those charges

the punishment of dismissal should be maintained or else whether a lesser punishment would suffice.

It is from this decision that the State of Orissa appealed to the Supreme Court, a certificate of fitness having been granted by the High Court under

Article 132 of the Constitution. It is unnecessary to refer to that portion of the judgment of the Supreme Court dealing with the constitutionality of

the rules involved in that case. What is relevant for the present purpose is only the judgment of their Lordships dealing with the question of the

power of the High Court to interfere in matters of disciplinary proceedings. Their Lordships observed that the constitutional guarantee afforded to a

public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not 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. Their Lordships made it clear and have expressly said that the reasons which induce the punishing authority, if there has

been an enquiry consistent with the prescribed rules, are not Justiciable, nor is the penalty open to review by the Court. The following is the

relevant passage:

If the High Court is satisfied that if some but nor all of the findings of the Tribunal were ''unassailable'' the order of the Governor on whose powers

by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the

Government to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if

the conditions of the constitutional protection have been coneplied with, is not justifiable. Therefore if the order may be supported on any finding as

to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would

have weighed with the authority in dismissing the public servant.

The instant case is clearly distinguishable from the case decided by the Supreme Court. The High Court of Orissa directed the State to review the

question of punishment afresh on the ground that the delinquent officer could be found lawfully guilty only in respect of some of the charges against

him and not all. As we understand the decision of the Supreme Court its ratio is that if there is a valid substratum of a finding of guilt upon which the

inflicted punishment may rest it would not be the province of the Court in the exercise of its extraordinary jurisdiction under Article 226 of the

Constitution to weigh the adequacy of the punishment as against the finding of guilt. The question of punishment being one purely within the

exclusive jurisdiction of the Government there should be no transgression of that jurisdiction by the Court. If on certain proved charges a

punishment Is awarded by the Government the Court has no jurisdiction to cancel that punishment only because in its view toe finding on some of

the charges cannot be sustained. The present case is however not one of that description, and, in our opinion, it does not fall within the ambit of the

ruling of the Supreme Court. We have found that the proceedings are vitiated by contravention of Article 311 of the Constitution, We have held

that an officer cannot be punished for suspicious conduct of having received illegal gratification without proof of evidence in support of such

conduct. If we were to accept the contention of the learned Additional Government pleader that disciplinary proceedings should not be quashed

unless and until the officer is acquitted of all the charges framed against him, it might lead to inconvenient results jeopardising the rights of public

servants and depriving them of the constitutional safeguards in their favour. ''

Let us take an example. An officer is charged with having received illegal gratification and is also charged with impropriety in discharging his official

functions by having left the headquarters without the permission of his superior officer. The officer pleads guilty to the second charge and admits

that he acted indiscreetly in going away from headquarters without permission. But, he denies that he received any illegal gratification, me authority

finds that the officer is guilty of corrupt practices not on evidence of payment and receipt of Illegal gratification but upon hearsay and repute

evidence. The officer is dismissed from service on a finding of this twofold charge. Can it be said that the High Court in exercise of its writ

jurisdiction cannot quash the entire proceedings on the ground that the officer has been awarded the extreme punishment of dismissal practically on

a charge of corruption said to have been established by suspicion? It is of course clear that if in such a case the officer had bean charged only with

the minor offence of having departed from the headquarters without permission and found guilty, no reasonable and judicial-minded authority could

have thought of dismissal as a just an* appropriate punishment.

This problem however does not arise here, but we are only mentioning it to emphasise that the contention urged on behalf of the State cannot be

accepted without any qualification or reservation. The Court issuing a writ cannot usurp the functions of the disciplinary jurisdiction of the

Government over their employees, but it cannot be deterred from enforcing the provisions of Article 311, though it might have the indirect

consequence of interfering with something which was within the exclusive competence of the Government.

In the result, the petition fails and is dismissed with costs.