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SUPREME COURT OF INDIA
6th May, 1960
P.B. GAJENDRAGADKAR, K.N. WANCHOO, M. HIDAYATULLAH, K.C. DAS GUPTA AND J.C. SHAH, JJ.
Major U. R. Bhatt, Appellant
Versus
Union of India, Respondent.
Civil Appeal No. 3ll of 1958.
Advocates appeared
M/s. S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co. for Appellant; Mr. C. K. Daphtary, Solicitor General of India (M/s. R. Ganapathy Iyer and T. M. Sen, Advocates with him), for Respondent.
PUBLIC SERVICE - Termination of employment - Enquiry - Opportunity to show cause - Reasonable opportunity - Scope and content - Government of India Act, 1935, S. 240(3).
Fact of the Case:
Appellant, a Senior Inspector in the Central Agricultural Marketing Department, was served with a charge-sheet and called upon to show cause why he should not be dismissed or removed from service. He submitted his written statement and appeared before the Joint Secretary of the Agricultural Department, who recommended termination of his employment. The Minister Incharge directed an enquiry after framing fresh charges, and the appellant was suspended. Another charge-sheet was served, and an enquiry was held before the Joint Secretary Ministry of Agriculture. The appellant objected to the procedure adopted by the Enquiry Officer and withdrew from the proceeding. The Enquiry Officer submitted his report holding the appellant guilty of the charges and recommending his dismissal. The Governor General of India accepted the report and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. The appellant made his representation, and the Governor General discharged him from service with effect from the date of suspension. The appellant filed a suit challenging the validity of the order of discharge, contending that the enquiry was illegal, he was not given adequate opportunity to show cause or to put in his defence, his suspension was illegal, the procedure prescribed by law was not followed, and the order of discharge was mala fide and void. The trial court held that the appellant was not justified in refusing to take part in the enquiry and that non-compliance with the rules did not confer a right upon him to claim that his discharge from service was void and inoperative. However, the court held that the order discharging the appellant from service was void because the Public Service Commission was not consulted before the order was passed. The District Court set aside the decree of the trial court, holding that the provisions of S. 266 of the Government of India Act 1935, was only directory and not mandatory and failure to consult the Public Service Commission did not render the order passed by the Governor General illegal. The High Court confirmed the decree passed by the District Judge.
Finding of the Court:
The Supreme Court held that the order of discharge from service passed against the appellant by order of the Governor General is not liable to be questioned on the ground that the materials may not have justified the passing of that order. It is not within the competence of the civil court to sit in judgment over the decision of the authority who is competent by law to dismiss a public servant provided he has been afforded an opportunity to defend himself consistently with the substance of the constitutional guarantee.
Issues: 1. Whether the order of discharge from service was void because of failure to consult the Public Service Commission? 2. Whether the appellant was deprived of a reasonable opportunity to make his defence? 3. Whether the Governor General ought to have held a fresh enquiry before passing an order of discharge?
Ratio Decidendi: 1. The court held that the question of whether the order of discharge from service was void because of failure to consult the Public Service Commission is not open to be canvassed in view of the decision of this court in State of U. P. v. Manbodhan Lal Srivastava, 1958 SCR 533, which held that Art. 320 (3) (c) of the Constitution of India (which is substantially the same as S. 266 of the Government of India Act) is not mandatory and that it does not confer any rights on the public servant, and the absence of consultation or any irregularity in consultation does not afford him a cause of action in a court of law. 2. The court held that there is no substance in the contention of the appellant that he was deprived of a reasonable opportunity to make his defence. The appellant declined to take part in the proceedings before the Enquiry Officer after June 9, 1947. The Enquiry Officer is not bound by the strict rules of the law of evidence and when the appellant declined to take part in the proceedings and failed to remain present it was open to the Enquiry officer to proceed on the materials which were placed before him. 3. The court held that there is no substance in the contention of the appellant that the Governor General before passing the impugned order ought to have directed that witnesses be examined again in the presence of the appellant and that the appellant be afforded another opportunity to lead evidence. The reasonable opportunity envisaged of the provision under consideration 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 the allegations on which such charges are based ; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to 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.
Final Decision: The appeal was dismissed.
Judgment
SHAH, J. : Major U. R. Bhatt, who will hereinafter be referred to as the appellant was appointed Senior Inspector, (Fruit Products) in the Central Agricultural Marketing Department of the Government of India on April 9, 1946. The appellant was initially employed on probation for six months and his appointment was liable to be terminated without notice during probation and thereafter by notice of three months duration on either side. The appellant continued to work as Senior Inspector till March 17, 1947. He was then served with a charge-sheet and called upon to show cause why he should not be dismissed or removed from service or otherwise punished. The appellant submitted his written statement on March 22, 1947. On March 25, 1947, he appeared before the Joint Secretary of the Agricultural Department and he was heard in person. The Joint Secretary made a report recommending that the appellant s employment be terminated according to the terms of the contract by giving him notice. The Minister Incharge of the portfolio concerned, however, directed an enquiry after framing fresh charges against the appellant and that in the meanwhile, he be suspended. On May 7, 1947, another charge-sheet was served upon the appellant. By that charge-sheet, he was charged with irresponsibility and insubordination and accordingly unfit to hold the post of Senior Inspector. The appellant submitted a reply to the charges. The case was then posted for hearing on June 9, 1947, before the Joint Secretary Ministry of Agriculture, who was appointed the Enquiry Officer. On that day, Sardar Bahadur Lal Singh, the Fruit Development Adviser was present at the hearing and was examined. The appellant objected to the procedure adopted by the Enquiry Officer in using marginal notes made by Sardar Bahadur Lal Singh on the representation made by the appellant. The case then stood adjourned to June 10, 1947. On that day, the appellant met the Enquiry Officer and intimated that he (the appellant) would not take further part in the proceeding, and promised the Enquiry Officer to send a letter explaining his reasons for withdrawing from the proceeding. The proceeding was then adjourned till June 13. The promised letter of the appellant was received on the 11th of June. The Enquiry Officer then submitted his report holding that the charges incorporated in the charge-sheet were substantially proved by the evidence on the record. The Holding that the appellant was "irresponsible, insubordinate and unreliable, and as such unfit to be kept in the post of the Senior Inspector" the Enquiry Officer recommended that he be dismissed from service from the date on which he was placed under suspension. The Governor General of India accepted the report and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. The appellant made his representation on November 10, 1947. The Governor General by order dated December 3, 1947, discharged the appellant from service with effect from the date of suspension. The appellant then served the statutory notice of suit upon the Government of India and filed Suit No. 442 of 1948 in the court of the Senior Subordinate Judge at Delhi for a decree for a declaration that the order of discharge dated December 3, 1947, purporting to terminate the employment of the appellant was void and inoperative and that the appellant continued to remain in service. The appellant by his plaint challenged the validity of the order of discharge on the ground that enquiry on fresh charges against him was illegal, that he was not given adequate opportunity to show cause or to put in his defence at the enquiry, that his suspension was illegal, that the procedure prescribed by law was not followed and that the order of discharge was mala fide and therefore void. At the hearing of the suit, the appellant also contended that the Public Service Commission not having been consulted as enjoined by S. 266 of the Government
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