B.D.GUPTA versus STATE OF HARYANA

MuKHERJEA, J. This appeal on special leave is from an 01der of the Division Bench of the Punjab and Haryanr. High Court dismissing summarily an appeal directed against a judgment and order of a Single Judge of that Court by which a petition of the appellant under Art. 226 of the Constitution of India was dismissed. The matter arises in connection with a disciplinary proceeding under the Punjab Civil Services (Punishment and Appeal) Rules, 1952 which had a very chequered career.

p. 324, margin C

For a proper appreciation of the points raised in this case it is necessary to set out so1ae of the salient facts. The appellant joined the Punjab Irrigation Department as a temporary Engineer in 1939 and in course of time became an Executive Engineer in that department. In December, 1954 he was arrested in connection with a case under Sec. 5 ( 2) of the Prevention of Corruption Act which had been registered against one K. R. Sharma, Superintending Engineer, with whom the appellant had been working as a Personal Assistant. The appellant was, however, enlarged on bail. About the same time the appellant was suspended with effect from 13 December 1954 and certain departmental proceedings were started against him. In November, 1956 the appellant was served with a chargesheet under Rule 7.2 of the Punjab Civil SeFVices (Punishment and Appeal) Rule~ 1952. There were two distinct charges made against the appel - !ant which will, for the sake of convenience, be described her~­ inafter as Charge No. I (a) and Charge No. 1 (b). Both the charges were based on allegations that the appellant had takrn illegal gratification. We are not concerned for the purposes of this appeal with the details of the charges. On 18 December 1956 the appellant submitted a reply to the chargesheet to which he added certain supplementary replies between May and July,. 1957. Government, it appears, appointed an Enquiry Officer as. late as October, 1957. On 18 February 1958 the appellant was reverted from the post of Executive Engineer (under suspension)to that of an Assistant Engineer (under suspension). In May. 1958 Government decided to defer the enquiry in respect of Charge 1 ( b) until there was a decision in regard to Cl.arge 1 (a). In October, 1958 the Enquiry Officer submitted to Government a report in respect of Ch~rge I (a) which exonerated the appellant completely. The Government then waited for another six months before appointing another Enquiry Officer to conduct the· enquiry in regard to Charge 1 (b). The appellant, it appears. asked Government on inore than one occasion to supply him with· a copy -of the report of the first Enquiry Officer in respect of Charge 1 (a). Government, however, declined to supply any copy. In December, 1960 the criminal case which had been started against the appellant in 1954 ended in discharge of the· appellant. On 19 April 1961 the appellant was dismissed from service on the basis of a report of the second Enquiry Officer regarding Charge 1 (b). This order of dismissal was, however, quashed in March, 1963 by the High Court of Punjab ard Haryana. The appellant was, thereafter, reinstated and forthwith placed under another order of suspension in May, 1963. A third Enquiry Officer was appointed simultaneously for a fre1h enquiry into Charge l(b). In February, 1965 the appellant got a decree in a civil suit by which he was allowed to recover the balance of his pay and allowances for the period of suspension and for quashing the order of reversion. Between 1963 and 1965 the appellant made various attempts through what was apparently a high-powered board called the Establishment Board to ~ring ~bout a cl?sure of the enquiry proceedings initiated against him. Nothrng happened unit! 15 December 1965 when oiice again Gg~emment appointed a new Enquiry Officer t~ replace the earher officer who had been appointed in February, 1.965. ~n January: 1966 the appellant was reinstated as Executive. Engmeer and m October, the same ye:ir. the entire enquiry agamst. the appellant was withdrawn. One would have thought !hat this. would be the end of the unusually protracted proceedmgs agamst the a;>pellant. On the contrary however on 26 October 1966 Government served a fresh "Show Ca~se notice" ~n the appellant by which the appellant was told that his explanation of 18 J?ecem!'er 1956 in reply to the i:harges and allegations levelled against him had been found unsatisf~ctory by Government and that Government proposed to censure his conduct.

pp. 324–325, margin D

.Tmmediately upon rec~ipt of the said "Show Cause notice" the appellant asked for a copy of the statement made by one S. D. :Khanna, Sub-Divisional Officer under Sec. 164 of the Code of Crimin1l Procedure. The appellant justified his demand for a copy of S. D. Khanna's statement by 'reference to two facts. First, Charge No. 1 (b) related to an alleged demand by the appellant far illegal gr~tification in the presence of S. D. Khanna and he was, therefore, entitled to have a copy of the statements made by S. D. Khanna before the police and the magistrate. Secondly, the appellant pointed out, under the orders of the High Court be was expecting a copy of Khanna's statement to be supplied to him on 27 October 1966. He did not, however, receive a copy because the Government withdrew the chargesheet against him

pp. 325–326, margin H

I 8 October 1966. If, therefore, by a fresh "Show Cause notice" the appellant was called upon to vindicate his earlier reply to the chargesheet, he was, he claimed, entitled to a copy of the statement of S. D. Khanna. On 24 Novemoor 1966, however, Secretary to the Government of Haryana turned down the appellant's request for a copy of Khanna's statement. Thereafter, on 16 December I 966 the appellant submitted a reply to the "Show Cause notice".

p. 326, margin B

On 27 February 1967 the Government passed an order imposing the penalty of censure on the appellant. The substantive part of the order is in the following terms :

p. 326, margin D

"Your ex!Jlanation has been duly considered and the same has been found to be unsatisfactory. The Governor of Harayana is accordingly pleased to order that the penalty of censure be imposed on you. Your

p. 326, margin D

conduct, is therefore, censured." On the same day another order was communicated to the appellant by which the Governor of Haryana had directed that under Rule 7.3(3) of the Punjab Civil Services Rules, Volume J, Part I, the appellant should not be allowed anything more than what had already been paid to him as subsistence allowance during the period of his suspension frop1 31 May 1963 to 6 January 1966. The order included also a direction that the entire period of absence from duty of the appellant.on account o!_ suspension from 31 May 1963 to 6 January 1966 was to be treated as a period ·spent on duty for all other purposes.

p. 326, margin E

In June, 1967 the appellant was given a notice of compulsory retirement which was subsequently withdrawn. In Octobt:r, 1968, however, the appellant was compulsorily retired. In the meantime, however, in November, 1967 the appellant had filed a writ petition in the High Court of Punjab and Haryana challenging the validity of the two orders dated 27 February 1967~ne inflicting on him the punishment of censure and the other withholding from him his usual pay and allowances beyond what had

p. 326, margin G

v, (Mukherjea, /.) 321 been paid to him as subsistence allowance during the period of suspension. The writ petition was dismissed by a Single Judge of the High Court on 6 November 1968. The appellant tlten went on appeal before a Division Bench of the High Court. The appeal was, however, dismissed in limine. Upon being refused a certificate for appeal to this Court, the appellant asked for special leave which was granted to him on 3 October 1969.

p. 327

Only two contentions were raised o.n behalf of the appellant before us. First, it was contended that the appellant did not get a reasonable opportunity to reply to the "Show Cause notice" dated 26 October 1966 on the basis of which he had been cen· sured by the Government inasmuch as the notice was too vague to enable him to give an effective reply. Secondly, it was contended that the order of 27 February 1967 which withheld from the appellant any payment in excess of the subsistence allowance he had drawn during the period of his suspension was liable to be struck down on the ground that it had been passed without giving him any opportunity to make a representation against it. We shall now deal with these contentions one by one.

p. 327, margin B

The appellant's complaint about the "Show Cause notice" of 26 October 1966 is one that has to be accepted as substantial. For a proper appreciation of the appellant's contention, the Memorandum containing the "Show Cause notice" may be set out in extenso. It was in the following terms :-

p. 327, margin D

"Your explanation dated the 18th December, 1956, in reply to the statements of charges and allegations has been considered and found to be unsatisfactory. The President of India, after taking a lenient view, has tentatively decided to censure your conduct and also to place a copy thereof on your personal file.

p. 327, margin D

2. Before the proposed punishment is inflicted, you are given an opportunity of making representation against the action proposed to be taken. Any representation which you make in this connection will be considered before taking the proposed action. Such representation, if any, should be made in writing and submitted so as to reach me not later than the 7th day from the receipt of this communication by you. In c~se no reply is received within the aforesaid period it will be presumed that you have no explanation to offer."

p. 327, margin F

The. only ground on which the Government proposed to censure the appellant is the fact that the appellant's explanation dated 18 December 1956 in reply to the statement of charges and

p. 327, margin G

[1973) 2 .allegations bad been found unsatisfactory by Government. By the expression "Charges and allegations" in this "Show Cause .notice', reference obviously is to the letter of 22 October 1956. That letter, it will be remembered, contains two charges, namely, .Charge l(a) and Charge l(b). The appellant's explanation of 18 December 1956 which is said to have been found unsatisfactory by Government was a reply not only to Charge l(a) but also to Charge 1 ( b) . Of these two charges, so far as Charge 1 (a) is concerned the appellant had been completely exonerated in October, 1958. There is nothing, however, in the "Show Cause notice" of 26 October 1966 to indicate clearly that the dissatisfaction of Government with the appellant's reply of 18 December 1956 had nothing to do with Charge 1 (a). The "Show Cause notice" merely states in vague general terms that the appellant's reply to the charges and allegations was unsatisfactory. Even if we were to assume, though tliere is no reasonable ground for tltis assumption, that Government did not have in mind the contents of Charge 1 (a) while serving this "Show Cause notice", there is nothing in the "Show Cause notice" to give any indication that the particular allegations regarding which the appellant had failed to furnish a satisfactory explanation were referable only to Charge 1 (b). The notice is vague on other grounds as well. As one reads the first paragraph of the notice, the questions that at -0nce assail one's mind are many : In what way was the explanation of the appellant unsatisfactory ? Which part of the appellant's explanation was so unsatisfactory ? On what m~terials did the Government think that the appellant's explanation was unsatisfactory. It is to our mind essential for a "Show Cause notice" to indicate the precise scope of the notice and also to indicate the points on which the officer concerned is expected to give a reply. We have no manner of doubt that the "Show Cause notice" in the instant case did not give the · appellant any real opportunity to defend himself against the complaint that bis previous explanation of 18 December 1956 had been unsatisfactory. The appellant did not, therefore, get any chance at all to sl!ow that he did not deserve a censure upon his conduct.

p. 328

We were told that since the appellant was aware of the charge and also aware of the reply he had given to the charges made against him, it was enough for Government to tell him that his answer was unsatisfactory. It was argued that since the "Show Cause notice" really pointed this o•" and mentioned that the very lenient sentence of censure upon the appellant's conduct was going to be imposed, there was nothing further that Government could be expected to do in this case. We have no hesitation in rejecting this contention made out on behalf of lhe State. It is manifestly clear that the "Show Cause notice" was too vague to permit the appellant to deal with it elfectively and that c~­ qucntly the Oidcr o( censure passed on him is bad and lia~ to be struck. down.

pp. 328–329, margin E

We now ccmc to the second contention raised on behalf of the appellant that the order passed by the Governor of Haryua which directed the withholding from the appellant any payment in excess of the subsistence allowance he had already received during the period of his suspension between 31 May 1963 and 6 January 1966 was bad in so far as the appellant had not been given a prior opportunity to mak.e a representation against such order.

p. 329

The relevant order· was passed under Rule 7 .3 of the Puajiab Civil Services Rules (Vol. I, Part I) which is in the foll-mg terms:-

p. 329

"7. 3 ( I ) When a Government servant, who bas been dismissed, removed, or suspended, is reinstated, the authority competent to order the reinstatement shall consider and mak.e a specific order :- (a) regarding the pay and allowances to be paid ta the Government servant for the period of his

p. 329, margin C

absence from duty; and ( b) whether or not the said period shall be treated

p. 329, margin D

as a period spent on duty.

p. 329, margin D

( 2) Where the authority mentioned in Sub-rule ( 1) is of opinion that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be.

p. 329, margin D

( 3) In other cases, the Government servant shall be given such proportion of such pay and allowance> as such competent authority may prescribe :

p. 329, margin E

Provided that the payment of allowances under claus~. (2) or claus<: (3) shall be subje~t to all other cond1t1ons under which such allowances are admissible.

p. 329, margin E

( 4) In a case falling under clause ( 2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

p. 329, margin G

( 5) In a case falling under clause ( 3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authoritv specifically directs that it shall be so treated for any specified purpose.

p. 329, margin G

-,

p. 329, margin H

Provided that if the Government serVant so desires, such a'tithority may direct that ~he period of ab.ence ffom duty shall be converted into leave of any kind due and admissible to the Government servant."

p. 330

It is clear that before passing an order under Rule 7 autlttirity concerned has to form an opinion as to whetner Govemmentservant bas been fully exonerated and, also, iii the case of suspension, the order of suspension was unjtrstilied.

p. 330

It was urged on behalf of the appellant that before the rity formed such an opinion, it was incumbent upo11 it to him an opportunity to make suitable representations in this Reliance was placed upon the Judgment of this Court Gopa/a Krishna Naidu v. State of Madhya Pradesh('). appellant in that case had been exonerated of the charges . against him in a departmental enquiry. Government held, ever, that the appellant's suspension and the departmental enquiry instituted against him "were not wholly unjustified". relevant order, after reinstating the appellant with effect date of the order and directing the appellant's retirement same date on the ground that he had already attained the superannuation contained a further direction that the period of the appellant's absence from duty should be treated a period spent on duty under Fundamental Rule .54 ( 5) purpose of pension only, but that "he should not be allowed pay beyond what he had actually received or were allowed by way of subsistence allowance during the period of his sion"'. The appellant in that case contended that his case came under Fundamental Rule 54(2) and not under Fundamen· ta! Rule 54(5) and that the Government should have granted an opportunity to be heard before deciding as to the rule applied to his case. It was contended on behalf of the ment that the order regarding allowances was a mere consequential order and in passing such an order it was not necessary give a hearing to the party affected by the order. This however, held that an order passed under Fundamental is not always a consequential order or a mere continuation departmental proceeding taken against the employee. Since sideration under Fundamental Rule 54 depends on facts cumsta'nces in their entirety and since the order may result pecuniary loss to the Government servant. consideration the Rule "must be held to be an objective rather than a subjective fuucuon". Sneiar, J. wno oenvereo tne 1uogment of the went on to observe : "The very nature of the function implies duty ·to act judicially. In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice'".

pp. 330–331

We have no doubt in our minds that in this case also justice and fair play demand that the Government should have given the appellant a reasonable opportunity to show cause why an order affecting his pay and emoluments to his prejudice should not be made.

p. 331

The decision in M. Gopa/a Krishna Naidu's(') case had been cited before the High Court. The High Court, however, sought to distinguish that case from the instant case on facts. The High Court held that since in M. Gopala Krishna Naid1ls( case the proceedings had been dropped and the officer concerned reinstated, he never got an opportunity to show to the appointing authority that his suspension had been unjustified and that he was entitled to full pay and allowances, while in the instant case the appellant has alreaJy. according to the High Court, received all reasonable opportunity to show cause against the punishment that has been. meted out against him. With respect, we do not think that there: is any real difference in substance between the facts of the instant case and those in M. Gopala Krishna Naidu's(') case. The appellant in the instant case did not really get an opportunity to defend himself against Charge I (b). It will be remembered that ir. this case also the Government abandoned the proceedings against the appellant with regard to Charge 1 (b). Had the pro· ceedings been completed, it is not altogether impossible that the appellant would have been exonerated also of that charge just as he had been exonerated of Charge (a) earlier. To that extent the appellant did not get any opportunity to show that the suspension order against him had been unjustified and that he was, therefore, entitled to full pay and allowances. From this. point of view there is really no difference between the instant case and the case of M. Gopala Krishna Naidu(').

p. 331

Besides, the real ratio in M. Gopa/a Krishna NaidU:s( case was that if an order affects the employee financially, it must be passed after an objective consideration and assessment of all relevant facts and circumstances and after giving the person concern· ed full opportunity to make out his own case about that order. In the instant case the order unquestionably is one that seriously prejudices the appellant. We would further like to add that the fact that even the order of punishment was made without giving the appellant a real opportunity to make an effective representation against it makes the second order affecting his pay and allowance' still more vulnerable.

pp. 331–332, margin G

Mr. Mahajan appearing for the State sought to rely in this connection upon an unreported decision of this Court in the Staie of Assam and Anr. v. Raghava Rajagopalachari( That case was a case dealing with Fundamental Rule 54 which is more or Jess similar to Rule 7 .3 of the Punjab Civil Services Rules, under which this second order of 27 February 1967 had been passed by the Governor. The relevant portion of Fundamental Rule 54 is in the following terms :-

p. 332

"F.R. 54. When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or

p. 332, margin C

When a Government servant who has been dismissed, removed or suspended is reinstated;

p. 332, margin C

the revising or appellate authority may grant to him for the period of his absence from duty-

p. 332, margin C

( a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or

p. 332, margin D

i(b) if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe.

p. 332, margin E

In a case falling under clause (a) the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will n;)t be treated as a period spent on duty unless the revising or appellate authority so direct."

p. 332, margin E

This Court held that cl. ( b) of the Fundamental Rule 54 would be applicable in all cases where the officer concerned is not honourably acquitted. Since in that case the Government servant had clearly not been fully exonerated of the charges levied against him, it was open to Government to decide what period of absence from duty during the period of suspension should be treated as period spent on duty and, also, what proportion of pay and allowances should be given to him. This decision cannot apply to the instant case for the simple reason that Government, by withdrawing the proceedings initiated against the appellant in respect of Charge I (b), made it impossible for the appellant to get himself fully exonerated. Since the appellant had been ~xonerated of Charge 1 (a) and since Charge 1 ( b) was withdrawn, it is impossible for Government to proceed on the basis as if the appellant has not been fully exonerated or to assume that the order of suspension was one which was not wholly unjustified. In that view of the matter, we do not think that case of the State of A£~am and Anr. v. Raghava Rajagopa/achari (supra) can be of any assistance to the respondents.

pp. 332–333, margin F

In the result this appeal succeeds. The judgment and order of the High Court are set aside. The orders dated 27 February 1967 impugned in the appellant's petition before the High Court are quashed. The appellant will get the costs of this appeal as well as the costs incurred below. S.B.W. Appeal allowed .

p. 333