1. Government servant removed from service for accepting private employment without sanction — challenge to the validity of the removal order under Article 311(2) of the Constitution. (Para 1 , 2 )
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1958 Supreme(SC) 171
SUPREME COURT OF INDIA
12th December, 1958
S.R. DAS, C.J.I., S.K. DAS, P.B. GAJENDRAGADKAR, K.N. WANCHOO AND M. HIDAYATULLAH, JJ.
Hukum Chand Malhotra, Appellant
Versus
Union of India, Respondent.
Civil Appeal No. 288 of 1958.
Advocates Appeared
Mr. N. C. Chatterjee, Senior Advocate (Mr. R. S. Narula, Advocate with him), for Appellant; Mr. M. C. Setalvad, Attorney-General for India and Mr. B. Sen, Senior Advocate, (Mr. T. M. Sen, Advocate, with him), for Respondent. 538
Advocates:
B.SEN, M.C.SETALVAD, N.C.CHATTERJI, R.S.NARULA, T.M.SEN
B.SEN, M.C.SETALVAD, N.C.CHATTERJI, R.S.NARULA, T.M.SEN
A show cause notice under Article 311(2) of the Constitution is valid even if it proposes multiple punishments in the alternative, provided the authority has applied its mind and tentatively concluded that the charges merit any of those penalties, as this provides a fuller opportunity for representation.
Headnote:(A) Constitution of India - Article 311(2) - Government Servants Conduct Rules - Rule 15 - Fundamental Rule 11 - Removal from service - Reasonable opportunity to show cause - Validity of show cause notice mentioning multiple punishments in the alternative - If the punishing authority has applied its mind and tentatively concluded that the charges merit any one of the major penalties, specifying more than one punishment in the alternative does not invalidate the notice - On the contrary, it provides a fuller opportunity to the government servant to show cause why none of the proposed punishments should be inflicted. (Paras 6, 8)
(B) Reasonable Opportunity - Scope of Article 311(2) - The reasonable opportunity envisaged includes: (a) an opportunity to deny guilt and establish innocence, (b) an opportunity to defend oneself, and (c) an opportunity to make representations as to why the proposed punishment should not be inflicted, provided the competent authority has tentatively proposed a punishment after applying its mind to the gravity of the proved charges. (Para 6)
Facts of the case:
A government servant accepted private employment without prior sanction while still in service, violating conduct rules and fundamental rules. Following an enquiry, a show cause notice was issued stating that the competent authority was provisionally of the opinion that a major penalty, namely dismissal, removal, or reduction, should be enforced. The servant was subsequently removed from service. The servant challenged the removal on the ground that the show cause notice did not specify the exact punishment to be imposed, thereby violating the requirement of reasonable opportunity under Article 311(2) of the Constitution.
Findings of Court:
The show cause notice did not contravene the provisions of the Constitution. The mention of three possible punishments in the alternative gave a better and fuller opportunity to the servant to show cause. The notice was not vague and clearly indicated that the authority had applied its mind to the gravity of the charges and reached a tentative conclusion regarding the appropriate range of penalties.
Issues: Whether a show cause notice issued under Article 311(2) of the Constitution is invalid if it lists multiple potential punishments in the alternative instead of specifying one exact punishment.
Ratio Decidendi: The requirement of "reasonable opportunity" under Article 311(2) is satisfied if the punishing authority, after the enquiry, tentatively proposes a punishment and communicates it. Specifying more than one punishment in the alternative does not make the action indefinite; rather, it enhances the opportunity for the employee to represent against each potential penalty. It is not mandatory to state the "exact" or "particular" punishment if the authority has clearly indicated the range of major penalties it considers appropriate based on the proved charges.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether a show cause notice mentioning multiple potential major penalties instead of one specific punishment fails to provide a reasonable opportunity under Article 311(2) of the Constitution. (Para 5 )
3. A show cause notice mentioning alternative major penalties provides a fuller opportunity for representation and is valid if the authority has tentatively applied its mind to the charges. (Para 6 , 7 , 8 , 10 )
4. Specifying multiple punishments in the alternative in a second show cause notice does not invalidate the notice or violate the reasonable opportunity requirement of Article 311(2). (Para 8 , 11 )
5. Appeal dismissed with costs. (Para 13 )
6. What constitutes a reasonable opportunity under Article 311(2) of the Constitution?
It includes an opportunity to deny guilt and establish innocence, an opportunity to defend oneself, and an opportunity to represent against the tentatively proposed punishment after the authority has applied its mind to the gravity of the proved charges. (Para 6 )
7. Does a show cause notice need to specify the exact punishment to be imposed to satisfy Article 311(2)?
No. Specifying more than one punishment in the alternative does not make the action indefinite; rather, it provides a fuller opportunity for the government servant to show cause against each potential penalty. (Para 7 , 8 )
8. When is a show cause notice considered vague or invalid under Article 311(2)?
A notice is invalid if it is issued before charges are established, if it is so vague that it suggests the authority did not apply its mind, or if it contains contradictory proposed punishments. (Para 6 , 10 )
Judgment
S. K. DAS, J. : This is an appeal by special leave and the only question for decision is if the order of the President dated October 1, 1954 removing the appellant from service with effect from that date is invalid, as claimed by the appellant, by reason of a contravention of the provisions of Art. 311 (2) of the Constitution.
2. The short facts are these. The appellant stated that he joined permanent Government service, on April 4, 1924. In 1947, before partition, he was employed as Assistant Secretary, Frontier Corps of Militia and Scouts in the then North -Western Frontier Province, under the administrative control of the External Affairs Department of the Government of India. The appellant stated that the post which he held then was a post in the Central Service, Class II. After partition, the appellant opted for service in India and was posted to an office under the Ministry of Commerce in the Government of India in October, 1947. In December, 1949 he was transferred to the office of the Chief Controller of Imports, New Delhi, to clear off certain arrears of work. In August 1951 he was posted as Deputy Chief Controller of Imports, Calcutta, and continued to work in that post till September, 1952. He then took four months leave on average pay and on the expiry of his leave on January 24, 1953, he was transferred as Section Officer in the Development Wing of the Ministry of Commerce. The appellant thought that the order amounted to a reduction of his rank and he made certain representations. As these representations bore no fruit, he applied for leave preparatory to retirement on February 6, 1953. In that application the appellant stated:
"Normally I am due to retire in April 1956 but I find it difficult to reconcile myself to the new conditions of service under which I am now placed to work. I find that I would not be wasting only myself but I would also not be doing full justice to the interest of my Government and country in my present environment. Under the circumstances, I pray that I may be permitted to retire from the 1st May 1953."
On February 14, 1953, the appellant amended his leave application and said that he had been informed by the Administrative Branch of the Development Wing that the question of permission to retire was under consideration, because of some difficulty with regard to the inclusion in the service of the appellant the period during which he held the post of Assistant Secretary, Frontier Corps; therefore he said that he might be granted leave on full average pay for four months with effect from February 15, 1953, if the decision to give him permission to retire was likely to be postponed beyond May 1, 1953. He amended his leave application by making the following prayer:
"Leave may be sanctioned for four months from the 15th February, 1953 or up to the date from which I am permitted to retire whichever may be earlier."
On March 10, 1953, the appellant was informed that he could not be allowed to retire at that stage, but the Ministry had agreed to grant him leave from February 16, 1953 to April 30, 1953. The appellant then went on leave and on February 1953, he wrote to Government to say that he was contemplating to join the service of Messrs. Albert David & Co. Ltd., Calcutta, and for that purpose he was accepting a course of training in that Company for two months. In April, 1958, the appellant accepted service under Messrs. Albert David & Co. Ltd., and he wrote to Government to that effect on April 6, 1953. On June 16, 1958, the appellant was charged with having violated R. 15 of the Government Servants Conduct Rules and Fundamental Rule 11 . Rule 15 of the Government Servants Conduct Rules states, inter alia, that a Government servant may not without the previous sanction of Government engage in any trade or undertake any employment other than his public duties. Fundamental Rule 11 says in effect that unless in any case it be otherwise distinctly provided, the whole time of a Government
