SHADI LAL GUPTA versus STATE OF PUNJAB

SHADI LAL GUPTA

STATE OF PUNJAB March 7, l 973

VAIDIALHiGAM JJ.J

[A. ALAGIRISWAMI, I. D. DUA AND C. A.

Punjab Civil Service (Punishment and Appeal) Rules 1952-Rule 8-Appellant charge sheeted for disobedience to superiors and ft~r negligence of duty-Personal hearing was given' to him but no copy of the enquiry officer's report given 1-0 appellant-whether the Rule was ritiated and the principle of natural justice violated.

Appellant was Clerk in the Treasury at Ludhiana. He filod suit for three different reliefs to which only one that now survives is regarding the order withholding his increment for one year with cumulati\·e effect. On I(}ll-61 he was charged sheeted on the ground that he was disobedient to his superior and negligent in the discharge of his duties and ·J. few specific instances of his carelessness and negligence were mentioned in the charge· sheet. Thereafter the appe11ant submitted. his explanation and personal hearing was also given to him by the authorities. The appellant com4 plained that he was not given any opportunity to adduce any evidence in defence and no prosecution witnesses were examined in his presence. The contentions of the appel~ant are that (i) by the failure to give him copy of the report df the Treasury Officer who made local inquiry, and taking it into consideration behind his back, he has been prejudiced and (ii) Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules 1952 has been contravened.

Rule 8 provides, inter alia, that no order for censurei \\"ithholding of increments, recovery from pay of any pecuniary Joss to the Govt., shall be passed imposing penalty on Govt. Servant, unless he has been given an adequate opportunity of making any representation that he may desire to make, and such representation has been taken into consideratign. Dismissing the· appeal.

HELD : (i) Under Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules 1952, the only requrement is that the officer con-cerned should be given an adequate opportunity of making any represen-tation th.at he may desire to make. There is no provision for examina-tion of witnesses, cross examination of witnesses and furnishing copy of the report of the enquiry officer etc. He need not be told about the punishment which is sought to be imposed on him, either at the time the chargesheet was .served on him or at any other stage. In the present case, these \Vas, no failure to 'foilow the relevant rules, which only require that the officer concerned should have an opportunity of making a. repreSenta-tion in respect of the char~es made against him and the officer. coricerned had an opportunity to 1nake representation and his representation was considered by tlie authorities in taking Jisc~plinary action against him.

(ii) The rules of natural justice have also not been Yiolated in the present case. The requirements of the rules of natural justice arc :-(a) the person accµsed should know the nature of the accusation made; (b) that he should be given an opportu"ity to state his case; and (iii) that the tribunal should act in good faith Byrne & another v. Kinematograp/1 Rentery Society Ltd .. [1958) A.E.R. 579. referred to. [646 A·Bl

(iii) In any proceedings even by domestic tribunal. the rules of natural justice would have to be observed; but the principles to be appli-ed would depend upon the circuinstances of each case.

(iv) };-, the present case, the principle of natural justice had not been violated because the appellant \Vas not given an opportunity to make representation in respect of the Treasury Officer's report. When the authorities \\'anted local enquiry to be made, it \\.-as with view to check up with records the representation made by the appellant. The report does not ac!J one single instance more than what is already found in the allegations. If the report had contained anv material extraneous to the charges aga;:ist the appellant, then· only he· could be said to have been prejudil.-ed. The report merely sets up the evidence in support of the allegations There'fore, the appellant has not been prejudiced by the Tr~asury Officer's report being taken into consideration before the order of punishn1ent was passed against the petitoner. [6..t6 H: 647 A-BJ

CIVIL APPELATE JURISDICTION: Civil Appeal No. 1527 of 1971.

Appeal by special leave frctm the judgment and order dated October 12. 1970 ol' the Punjab and Haryana High Court at Chandigarh in Regular S.A. No. 1370 of 1969.

G. L. Sanghi, for the appellant.

V. C. Mahajan and R. N. Sachthey, for the Respondent.

The Judgment of the Court was delivered by-

ALAGIRJSWAMI. J.-This appeal is by way of special leave against the judgment of the High Court of Punjab and Haryana dismissing the Second Appeal filed by the appellant. He was clerk in the Treasury at Ludhiana. He filed the suit out of which this appeal arises for three different reliefs out of which the only one that now survives is regarding the order withholding his in-crement for one year with cumulative effect.

The sole point raised on behalf. of the appellant before the High Court was overruled by it on the basis of the full bench decision of the High Cour>t in Malvinderjit Singh v. The State of Punjab & Ors.(') which overruled the decision in Kal;van Singh v. The State of Punjab(').

This is perhaps the first case that comes to this Court in the matter of minor punishment. The appellant relied upon the decision of this Court in B. D. Gupta v. State of Haryana('), the facts c[ which art ra'lher complicated, and are unnecessary for the purpose of this case. One of the points that arose in that case was regarding the mingr punishment of censure, though it was an incidental one in an appeal which involved much more important question. Itwas held that the show cause notice in that case did

(2) (1967) 21.L.R. (Punjab) 471.

(I) (1970) 2 I.LR. (Punjab) 580.

(3) A.LR. 1972 (S.C.) 2472.

not give the ·appellant (the aggrieved Government servant) any· real opportunity to defend himself. That -is not the case here. . .

The charge-sheet served on the appellant on 10-11-61 was. to the follow.ing effect : .

"(i) That you have been careless and negligent in

the performance of your duties at Sub-Treasury, Sirhind, · as per concrete instances mentioned in the enclosed state-. ment bf allegations. ·

· (ii) That-you have been disobedient to the Assistant Treasury Officer, Sirhind."

and an elaborate statement of allegations was enclosed alongwith; the charge-sheet, which is set out below :

STATEMENT OF ALLEGATIONS

"While Shri Shadi, Lal Gupta, Clerk, Sangrur Trea-sury, was working ·as Routine Clerk, Sifhind Sub-Trca- · sury, he had been disobedient to the Assistant Treasury Officer, Sirhirid and negligent in the ·discharge of his duties, and few instances of his carelessness, negligence and disobedience are given below :-

1. Shri Shadi Lal Gupta was allotted the work of passing Deposit Repayment Orders issued by the Courts and it was found vide some instances quoted below that he calculated wrong balances in the· Deposit Receipt Registers which were likely to . cause over-payment in certain cases ;md refusal to make payment in other cases at some later stage.

(a) .While passing DRO No. 17, .dated 15th November, 1960 on 18-11-1960 the balance-was calculated by him as Rs. 327 .60 in-. stead of Rs. 317.60 N.P. ·

(b) While passing DRO 15 dated 10-11-1960 on 25th November, 1960, the balance was calculated by'him as Rs. 56.44 N.P. instead of Rs. 56.33 N.P.

(c) In the said DRO 15 dated 10-11-1960 pas-sed on 25-11-1960 the amount to be paid was entered by him as Rs. 7 4 /- only instead of Rs. 74.11 N.P.

(d) While passing payment of Rs. 131.06 N.P. in respect of DRO 17 dated 15-11-1960 on 18-11-1960 the tialance in the deposit receipt Register was calculated by him as · Rs. 595.23 N.P. instead of Rs. 495.23 N.P'.

The carelessness, negligence and disobedience of the official has rendered him liable to disciplinary action."

Thereafter the appellant seems to have submitted his explanation and the then Deputy Secretary, Shri Banwari Lal seems also to have given him personal hearing. The appellant complained that he was not given any opportunity to adduce any evidence in defence and no prosecution witnesses were examined in his pre-sence. Shri Banwari Lal seems to have fch it necessary to have local enquiry and, therefore, asked the Treasury Officer to send report after local enquiry. One of the complaints of the appellant was that these proceedings were started because one Yash Pa} Kaura, the Treasury Officer was inimically disposed to-c wardf. him. But we consider that point irrelevant l:lecause how the proceedings came to be initiated would not in any way affected the validity or otherwise of the disciplinary proceedings. The Treasury Officer who sell'! up the report, after the local enquiry, was another person.

Two contentions were urged on behalf of the appellant :

(I) that by the failure to give him copy of the report of the Treasury Officer and taking it into consi-deration behind his back, he has been prejudiced; and

( 2) Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules 1952 has been contravened,

l'nder Rule 4 of the above rules the following penalties may,. for good and sufficient reason be imposed :

\i) Censure;

(ii) Withholding of increments or promotion, includ-ing s1opp3ge at an efficiency bar, if any;

(iii) Reduction to lower post or time-scale, or to lower stage in time scale; (iv) Recovery from pay of the whole or part ci any pecuniary loss caused to Government by negh-gence of breach or order;

( v) ~uspension;

(vi) Removal from the Civil Service of the Govern-ment which does not disqualify from future employment.

(vii) Dismissals from the Civil Service of the Govern-ment which ordinarily disqualifies from future employment;

Rule 8 is to the following effect :

"8. Without prejudice to the provisions of Rule 7. no order under clauses (i), (ii), or (iv) of Rule 4 shall be passed imposing penalty on Government servant, .unless he has been given an adequate opportunity or )naking any representation that he may desire to make, and such representation has been taken into considera-tion."

There are two provisos to the rule which it is unnecessary to set out for •the purposes of this case. Under this rule the only requirement is that the officer concerned should be give_n an ade-quate opportunity of making any representation that he may desire to make. There is no provision for examination of witnesses, cross examination of witnesses and furnishing copy of the report, all requirements which we find in Rule 7. Therefore, in this case if the punishment had been imposed after the charge-sheet had been served on the appellant and he had made his representation and also been personally heard by Banwari Lal, it would have been perfectly legal. Rule 8 does not require anything more than that the allegations on the basis of which the officer concerned 1s charged should be made known to him and he should be given an opportunity to make any representation with regard to them. He need not be told the punishment which is sought to be imposed on him, either at the time tile chargesheet is served on him or any other stage. There is no question of his being given an opportunity second time after the enquiry is. completed in respect of the punishm~nt sought to be imposed on him unlike in case covered by Rule 7.

Rule 7 of these Rules deals with cases whi!re the major punish-ment of dismissal, removal or reduction in rank are proposed to be imposed and sub-rule 6 of that rule specifically provides that fa such case after the pµnishing authority has arrived at pro-visional conclusion in regard to the penalty to 1?e imposed, the accused officer shall be supplied with copy of the report of the enquiry1ng authority and be c.illed upon to show cause against the particular penalty proposed to be infiicted on him. The words "without prejudice to the provisions of rule 7" occurring at the beginning of. Rule 8 are sought to be taken advantage of to contend that even in the case of minor punishments referred to in that rule, of censure, withholding of increments and recovery from pay, an opportunity should be given to show cause against the punishment proposed to be imposed. Those words do not fit in in the context and cannot mean that in case of minor punishpient not only the -provisions of rule 8 but also the provisions of rule 7 should be followed. · The rules must be interpreted in their proper setting and if so interpreted, those words would not bear the interpretation

sought to be placed on them. The provisions oJ' rule 7 are neces-sitated by the provisions of Article 3 U ( 2) of the Constitution. As far as other punishments are concerned, the only right which Government servant is entitled to is that the action proposed should be in accordance with the rules made under the proviso to Article 309. That rule, rule 8 does not contemplate anything more than an adequate opportunity of making representation. We are, therefore, unable to accept this contention.

We shall now consider some of the decisions cited befo_re us. It is first necessary to refer to the decision in Ka/Jan Singh v. The State of Punjab (supra) which has been overruled by the Full Bench in Malvinderjit Singh v. The State of Punjab & Anr. (supra). The High Court was not quite right in dismissing the appellant's appeal on the basis of Malvinderjit Singh's case. Kalyan Singh's case was overruled only as regards the question whether copy of the report of the Vigilance Department on the basis of which proceedings were initiated, should be given to the concerned officer or not. We are not cqncerned with that question 0 in this case. But the Full Bench also dealt with the question of the procedure to be adopted in the case of imposition of minor punishments and it held :

"(a) that for the minor punishment to _public ser-vants for their J)lisconduct the autltorities have designedly provided for simple and summary prqcec!t1re of repre-E sentations only, untrammalled by any furnishing of copies of documents or material on which the allegations are based or the right of cross-examination or the right of leading defence evidence which are all provided in the case of enquiries qua major punishments. The fur-nishing of doc.uments as provided for in rules 7 ancl 9 of the Punjab Civil Services (Punishment and Appeal) Rul\:S, 1952, stands excluded under rule 8. Basically the right to secure copies of documellts or other specific material is r.roce<jural right which accrues if it is so granted in express terms by a'\statute. Nobody can be said to have any inherent right~ secure copies or to have any access to confidential State records. Such right can only be creature of statute. On an overall view of the specific language of rule 8 of the Rules, its setting in the relevant rules and the scope and ambit thereof, all collectively tend to negative .any such procedural right. R (b!) That the words 'adequate opportunity' in the context of rule 8 of the Rules may mean_no more than an adequacy of time to make representation which alone is guaranteed by rule 8. It is possible to place

such limited meaning upon these words, but even if more liberal construction is placed, these words cannot be elongated enough to cn:>ate specific procedural right to secure copies and materials. Moreover, the ade-quacy of opportunity to make repr~sentation under rule 8 cannot possibly imply larger right than what has been judicially interpreted 10 be the basic requirements of reasonable opportunity of being heard or to show cause again9t specific allegations.

( J That under rule 8 of the Rules, unlike rule 7, the employee has only one opportunity of making re-presentation. No enquiry need be conducted as under rule 7 and no evidence need be recorded in the presence of the employee. .It is open to the punishing authority to collect any material either itself or through any specia-lised a2ency like the Vigilance Department to acquaint itself with the real facts in order to take decision whether any action is to b~ taken against 'the employe.e, and, if so, what action is to be taken. But if such an enquiry is made and material is collected on the basis of which prejudicial view is taken against the employee ·and he is chargesheeted under rule 8 with view to im-pose one of the three minor punishments, then the em-ployee is entitled to an adequate opportunity to make representation to show that ( 1) he is not guilty and (2) that "he proposed punishment should not be imposed on him, being excessive. It would be impossible for an employee to make such representation unless it is made known to him the material on the basis of which it has been decided that he is gnilty and that the particular punishment be imposed on him ...... Without being supplied with such material he cannot make an effective and real representation. The only case in which the punishing authority would be justified in withholding such material, would be where under the second pro-viso to rule 8. sufficient reasons are recorded in writin~ to the effect that it is not practicable to observe the re-quirements of the rule and .that this can be done without injustice to the officer concerned.

( d) Thait the words 'adequate opportunity in the context of rule 8 of the Rules connote "reasonably suffi· cient opportunity" in every respect, to make representa-tion against the action sought to be taken against the employee. Before an employee can be said to have had this 'adequate opportunity', the employee has to be told the charges of misconduct ·and then he must have an opportunity tci be heard in answer to those charges."

SHAD! LAL v. PUNJAB (Alagiriswami; J.)

The ~ase in R. D. Raw v. State ( [1]) was also noticed in the above Full Bench decision. In that case two charges were made against Rawal and one of the c)).arges was held not established. Another charge was on the basis that certain action takcm by him was ma/afide. The ma/afides were held not estaW.ished but the im-pugned order withholding one· increment was passed on the grow1d that some lapses on his part had resulted in excess payment t6 contractor. This order was set aside by the High Court. That decision could be explaine<.l on the basis that the officer concerned did not have an opportunity ol showing that there was no lapse on his part.

We may also refer to the decision in Roop Lal v. State of

Punjab(') of the Punjab and Haryana High Court.

The ratio of decision in that case is stated as follows : "In the present case if the procedure under rule 7 of the Rules had been. followed and instead of ma.ior punishment minor punishment had been inflicted, no fault could be found therewith but if no enquiry was held as envisaged under rule 7 ibid and the minor punishment was proposed to be inflicted under rule 8 thereof, then the procedure prescribed under rule 8 had to be fo.llow-ed."

We lhus come to the conchl$ion that there was no failure in this case to follow the relevant rules, which, as we have already indicated, only require that the officer concerned should have an opportunity of making representation in resp~t of the charges made against him. This leaves the question of whe1."'<ler any prin-.ciples of natural justice have bjeen violated in this case.

The r)lles of natural justice would undoubtedly have to be observed in any proceedings even by domestic tribunal. But the principles of mrtural justice to be applied would depend upon the circumstances of each case. In Suresh v. Kera/a U11ivmll)'([8]) this Court pointed out that the question whether the requirements of natural justice have been met by the procedure adopted must depend to great exten~ on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. After referring to the decisions in Russel v.Duke of Norfolk & Ors.,(') Local Government Board v. Alridge([1]) and De Verteuil v. Knaggs &·Anr.(•) this Court also referred to the observations of Lord Harman, J. in Byme & Anr. v. Kinemato-graph Renters Satiety Ltd.(') to the following effect :

(I) 1967 C.L.J. 439. (3) [1969] l S.C.R. 3i7. (5) [19151A.C.120. (7) [1958] All B.R .. 579 ..

(2) 1971 (I) S.L.R. 41. (4) 19491 All E.R. 108 at Ill.

(61 [1918] A.C. 557.

9~L761Sup.C.IJ:73

SUPREME COURT RBPOR'l'.S

"What, then, are the r~uirements of natural justice in case of this kind 7 FIISt, I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to s~ his case; and thirdly, of course, that the tn'bunal.should act in good faith. I do not think that there really is any-thing more."

and went on to lay down the same principle in its own words :

"Suffice it to say that in the case l:lefore us there was fair inquiry against the appeUant; the officer appointed to inquire was an impartial person; he cannot be said to have been biassed against the appellant; the charge against the appellant was made known to him before the commencemQ!lt of the inquiry; the wi'lnesses who gave evidence against him were examined in his presence and he was allowed to cross-examine them and lastly he was given every opportunity to present his case before the In-quiry Officer. Hence we see no merit in the conte\lltion that there was any breach of the principles of natural justice. It is true that the Vice-Chancellor did not make availaQle to the appellant c91iy of the ~eport submitted by the Inquiry Officer. Admittedly the appellant did not ask for copy of the report. There is no rule requir-ing the Vice-Chancellor to provide the appellant with copy o( the report of the Inquiry Officer before he was called upon to make his representation against the provi-sional decision taken by him. If the appellant felt any difficulty in making his representation without looking into the report of the Inquiry Officer, he could have very well asked for copy of that report. His present grie-va.nce appears to be an after thought and we !!CC no subs· tance in it." ·As we have indicated earlier, if Shri Banwari Lal had impi>sed the punishment after he had given hearing to the appellant, the order would have been perfectly legal and it could not have been . said that any principle of natural justice had been violated. The criteria indica1ed above would have been satisfied. But what is urged before us in this case is that as the report of the Treasury Officer, which we have already referred to earlier, was taken into consideration without showing it to the appellant he has been seriously prejudiced and the principles of natural justice have been violated in so far ·as he has not had an opportunity of making his representation in respect of 1hat report. We find no substance in this ci>ntention. When Shri Banwari Lal wanted local enquiry to be made he apparently wanted the representations made by the anpellant to be checked up wi1h the records and that is what has

been done as is clear from comparison of the allegations on the basis oi which the chargesheet was served on the petitioner, and the report of the Treasury Officer. We have carefully gone through it and it does not add one single instance more than what is already found in the allegations. It merely sets out the evidence 8 in support of these allegations. We are, therefore, of the opinion that the appellant has not been in any w a.y prejudiced by the Trea-sury Officer's report being taken into consideration before the order of punishment was passed against the petitioner. If before the Treasury Officer had sent his report he had ·associated the appellant in the enquiry he held it would not have been necessary to give him copy of the report he sent. I! the report had con-tained any material extraneous to the charges against the appel-lant, or any thing in addition to what is found in the original alle-gations against him then only he could be said to have been pre-judiced. In the decision of the Judicial Committee in B. Surinder Singh Kanda v. Government of the Federation of Malaya(') noticed in Suresh v. Kera/a University (Supra) report ma.de by the Board, which held the preliminary inquiry, which was highly prejudicial to Kanda had been placed in the hands of the officer who held the formal enquiry was not made available to Kanda. That report was likely to have prejudiced the Inquiry' Officer and the Judicial Committee held that the enquiry was not fair. There is no question in this case of the Treasury Officer's report having prejudiced the punishing officer, Mr. D. D. Sharma. The applica-tion of the principles of natural justice is not question of obser-vance of formula or mere technicality. In essence it is meant to assure that the party concerned has an opportunity of being heard, the principle of audl alteram partam. Whether in any parti· cular case it has been violated will depend on the facts and circums-tances of that case. It is not to be considered that unless all the procedure of the courts are observed it would mean failure to observe the principles of natural justice. We are of the opinion that no principles of natural justice have been violated in this case. We' think it useful in the circumstances of this case to refer to the observations made by this Court in Suresh's case to the effect :

'There seems to be an erroneous impression in cer. tain quarters evidently influenced by the provisions in An. 311 of the Constitution particularly as Ibey stood

(I) [1962] A.C. 332.

before the amendment of that article that every discipli-nary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not pres-cribe such course. Even if show cause notice is pro-B vided by law from that it does not follow that copy of the report on the basis of which the show cause notice is issued should be made available to the person proceed-ed against or that another inquiry should be held thereafter."

In the result this appeal is dismissed.

Appeal dismissed