Appeal No 288 of 1958
Appeal by Special Leave from the judgment and order dated December 3 1956 of the Punjab High Court Circuit Bench at Delhi in Letters Patent Appeal No 25 D of 1956 arising out of the judgment and order dated April 9 1956 of the said High Court Circuit Bench at Delhi in Civil Writ No 8 D of 1955
N C Chatterjee and R section Narula for the appellant
M C Setalvad Attorney General for India B Sen and T M Sen for the respondent 1958
December 12
The Judgment of the Court was delivered by section 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 article 3112 of the Constitution
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 be held then was a post in the Central Service Class 11
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 894 and 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 lie 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 I 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 be 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 19 3 to April 30 1953
The appellant then went on leave and on February 25 1953 he 895 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 1953 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 1953 the appellant was charged with hav ing 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 servant is at the disposal of the Government which pays him
A P Mathur Joint Chief Controller of Imports was asked to hold an enquiry against the appellant on the charge mentioned above
The appellant submitted an explanation and an enquiry was held by A P Mathur in due course
The Enquiring Officer submitted his report on September 12 1953 in which he found that the appellant had contrary to the rules governing the conditions of his service accepted private employment without previous sanction of Government during the period when he was still in Government service
On April 14 1954 the appellant was asked to show cause in accordance with the provisions of article 3112 of the Constitution
As the whole of the argument in this case centres round this show cause notice it is necessary to set it out in full Sir I am directed to say that the Enquiry Officer appointed to enquire into certain charges framed against you has submitted his report  a copy of the report is enclosed for your information
On a careful consideration of the report and in particular of the conclusions reached by the Enquiry Officer in respect of the charges framed against you the President is provisionally of opinion that a 896 major penalty viz dismissal removal or reduction should be enforced on you
Before he takes that action he desires to give you an opportunity of showing cause against the action proposed to be taken
Any representation which you may make in that connection will be considered by him before taking the proposed action
Such representation if any should be made in writing and submitted so as to reach the undersigned not later than 14 days from the receipt of this letter by you
Please acknowledge receipt of this letter
Yours faithfully Sd
section Bhoothalingam Joint Secretary to the Government of India
 The appellant then showed cause and on October 1 1954 the President passed an order in which it was stated that after taking into consideration the report of the Enquiring Officer and in consultation with the Public Service Commission the President found that the charge had been proved against the appellant and the appellant was accordingly removed from service with effect from that date
The appellant then moved the Punjab High Court by a petition under article 226 of the Constitution in which his main contentions were a that he had no opportunity of showing cause against the action proposed to be taken in regard to him within the meaning of article 311 2 of the Constitution and b that he had asked for leave preparatory to retirement and accepted service under Albert David  Co Ltd in the bona fide belief that Government had no objection to his accepting such private employment
Dulat J who dealt with the petition in the first instance held against the appellant on both points
He found that there was no contravention of the provisions of article 311 2 of the Constitution and on the second point he held that on the facts admitted in the case there was no doubt that the appellant had accepted private employment in contravention of the rules governing the conditions of his service and there was little substance 897 in the suggestion of the appellant that he had no sufficient opportunity to produce evidence
The second point no longer survives and the only substantial point for our consideration is the alleged contravention of article 3112 of the Constitution
Mr N C Chatterjee who has appeared on behalf of the appellant has submitted before us that the show cause notice dated April 14 1954 stated all the three punishments mentioned in article 311 2 and inasmuch as it did not particularise the actual or exact punishment proposed to be imposed on the appellant the notice did not comply with the essential requirements of article 311 2 of the Constitution therefore the final order of removal passed on October 1 1954 was not a valid order
In the recent decision of Khem Chand vs Union of India 1 this Court explained the true scope and effect of article 311 2 of the Constitution
It was stated in that decision that the reasonable opportunity envisaged by article 311 2 of the Constitution included a an opportunity to the Government servant to deny his guilt and establish his innocence b an opportunity to defend himself 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 its 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
It is no longer in dispute that the appellant did have opportunities a and b referred to above
The question before us is whether the show cause notice dated April 14 1954 gave the appellant a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
Mr N C Chatterjee has emphasised two observations made by this Court in Khem Chand s case 1
He points out that in connection with opportunity c aforesaid this Court observed that a Government 1  113 898 servant can only make his representation if the competent authority after the enquiry is over and after applying its 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
Mr Chatterjee emphasises the observation  one of the three punishments 
Secondly he has drawn our attention to the observations made in the judgment of the Judicial Committee in High Commissioner for India and High Commissioner for Pakistan vs I M Lall 1 which observations were quoted with approval in Khem Chand s case 2
One of the observations made was  In the opinion of their Lordships no action is proposed within the meaning of the sub section  their Lordships were dealing with sub section 3 of section 240 of the Government of India Act 1935  until a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined on Mr Chatterjee emphasises the expression  actual punishment  occurring in the said observations
It is to be remembered however that both in I M Lall s case 1 and Khem Chand s case 1 the real point of the decision was that no second notice had been given to the Government servant concerned after the enquiry was over to show cause against the action proposed to be taken in regard to him
In I M Lall s case 1 a notice was given at the same time as the charges were made which directed the Government servant concerned to show cause  why he should not be dismissed removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce etc
 In other words the notice was what is usually called a combined notice embodying the charges as well as the punishments proposed
Such a notice it was held did not comply with the requirements of sub section
3 of section 240
In Khem Chand s case 2 also the report of the Enquiring Officer was approved by the Deputy Commissioner Delhi who imposed the 1 1948 LR 75 IA 225242
2  899 penalty of dismissal without giving the Government servant concerned an opportunity to show cause against the action proposed to be taken in regard to him
In Khem Chand s case 1 the learned SolicitorGeneral appearing for the Union of India sought to distinguish the decision in I M Lall s case 2 on the ground that the notice there asked the Government servant concerned to show cause why he should not be dismissed removed or reduced or subjected to any other disciplinary action whereas in Khem Chand s case1 the notice issued to the Government servant before the enquiry mentioned only one punishment namely the punishment of dismissal
Dealing with this argument of the learned Solicitor General this Court said at p 1100  A close perusal of the judgment of the Judicial Committee in I M Lall s case will however show that the decision in that case did not proceed on the ground that an opportunity had not been given to 1
M Lall against the proposed punishment merely because in the notice several punishments were included but the decision proceeded really on the ground that this opportunity should have been given after a stage bad been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the proved charge tentatively and proposed a particular punishment
 Therefore the real point of the decision both in I M Lall s case 2 and Khem Chand s case 1 was that no opportunity had been given to the Government servant concerned to show cause after a stage had been reached when the charges had been established and the competent authority bad applied its mind to the gravity or otherwise of the charges proved and tentatively proposed the punishment to be given to the Government servant for the charges so proved
It is true that in some of the observations made in those two decisions the words  actual punishment  or particular punishment  have been used but those 1  2 1948 LR 75 IA 225 242
900 observations must however be taken with reference to the context in which they were made
Let us examine a little more carefully what consequences will follow if article 3112 requires in every case that the  exact  or  actual  punishment to be inflicted on the Government servant concerned must be mentioned in the show cause notice issued at the second stage
It is obvious and article 311 2 expressly says so that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity of showing cause why the proposed punishment should not be inflicted on him for example if the proposed punishment is dismissal it is open to the Government servant concerned to say in his representation that even though the charges have been proved against him he does not merit the extreme penalty of dismissal but merits a lesser punishment such as removal or reduction in rank
If it is obligatory on the punishing authority to state in the show cause notice at the second stage the  exact  or  particular  punishment which is to be inflicted then a third notice will be necessary if the State Government accepts the representation of the Government servant concerned
This will be against the very purpose for which the second show cause notice was issued
Then there is another aspect of the matter which has been pointedly emphasised by dulat J
If in the present case the show cause notice had merely stated the punishment of dismissal without mentioning the other two punishments it would still be open to the punishing authority to impose any of the two lesser punishments of removal or reduction in rank and no grievance could have been made either about the show cause notice or the actual punishment imposed
Can it be said that the enumeration of the other two punishments in the show cause notice invalidated the notice  It appears to us that the show cause notice in the present case by mentioning the three punishments gave a better and fuller opportunity to the appellant to show cause why none of the three punishments should be inflicted on him
We desire to 901 emphasise here that the case before us is not one in which the show cause notice is vague or of such a character as to lead to the inference that the punishing authority did not apply its mind to the question of punishment to be imposed on the Government servant
The show cause notice dated April 14 1954 stated in clear terms that  the President is provisionally of opinion that a major penalty namely dismissal removal or reduction should be enforced on you
 Therefore the President had come to a tentative conclusion that the charge proved against the appellant merited any one of the three penalties mentioned therein and asked the appellant to show cause why any one of the aforesaid three penalties should not be imposed on him
We see nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him
To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite on the contrary it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on him
We turn now to certain other decisions on which learned counsel for the appellant has relied
They are Jatindra Nath Biswas vs R Gupta 1 Dayanidhi Rath vs B section Mohanty 2 and Lakshmi Narain Gupta vs A N Puri 3
In the case of Jatindra Nath Biswas 1 no second show cause notice was given and the decision proceeded on that footing
Sinha J observed however Where there is an enquiry not only must he have an opportunity of contesting his case before the 1 2 AIR 1955 Orissa 33
3 AIR 1954 Cal
335 902 enquiry but before the punishment is imposed upon him he must be told about the result of the enquiry and the exact punishment which is proposed to be inflicted Mr Chatterjee has emphasised the use of the word  exact 
As we have pointed out the decision proceeded on a different footing and was not rested on the ground that only one punishment must be mentioned in the second show cause notice
The decision in Dayanidhi Rath s case 1 proceeded on the footing that if the punishment that is tenatively proposed against a civil servant is of a graver kind he can be awarded punishment of a lesser kind but if the punishment that is tentatively proposed is of a lesser kind there will be prejudice in awarding a graver form of punish ment
What happened in that case was that the show cause notice stated that in view of the Enquiring Officer s findings contained in the report with which the Secretary agreed and in consideration of the past record of the Government servant concerned it was proposed to remove him from Government service in another part of the same notice however the Government servant concerned was directed to show cause why the penalty of dismissal should not be inflicted for the charges proved against him
Thus in the same notice two punishments were juxtaposed in such a way that it was difficult to say that the punishing authority had applied its mind and tentatively come to a conclusion as to what punishment should be given
It was not a case where the punishing authority said that either of the two punishments might be imposed in the alternative on the contrary in one part of the notice the punishing authority said that it was proposed to remove the Government servant concerned and in another part of the notice it said that the proposed punishment was dismissal
In Lakshmi Narain Gupta s case 2 the notice called upon the petitioner to show cause why disciplinary action such as reduction in rank withholding of increments etc should not be taken against him
The learned Judge pointed out 1 AIR 1955 Orissa 33
2 AIR 1954 Cal 335
903 that there were seven items of penalties under r 49 of the Civil Service Classification Control and Appeal Rules and the notice did not indicate that the punishing authority had applied its mind and come to any tentative conclusion as to the imposition of any of the punishments mentioned in that rule
On that footing it was held that there was no compliance with the provisions in article 3112 of the Constitution
We do not therefore take these decisions as laying down that whenever more than one punishment is mentioned in the second show cause notice the notice must be held to be bad
If these decisions lay down any such rule we must hold them to be incorrect
We have come to the conclusion that the three decisions on which learned counsel for the appellant has placed his reliance do not really support the extreme contention canvassed for by him and we are further of the view that the show cause notice dated April 14 1954 in the present case did not contravene the provisions of article 311 2 of the Constitution
The appellant had a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
This disposes of the principal point in controversy before us
Mr Chatterjee referred to certain mistakes of reference in the order of the President dated October 1 1954
Instead of referring to r 15 of the Government Servants  Conduct Rules r 13 was referred to
There was also a reference to para
5 of a particular Government order which prohibited Government servants from taking up commercial employment within two years of retirement
Mr Chatterjee submitted that this particular order did not apply to Government servants in Class 11
We do not think that the inaccurate references were of any vital importance
In effect and substance the order of removal dated October 1 1954 was based on the ground that the appellant violated r 15 of the Government Servants  Conduct Rules and r II of the Fundamental Rules he accepted private employment without sanction of Government while he was still in Government service
That was the basis for the enquiry against 904 the appellant and that was the basis for the order of removal passed against him
For these reasons we hold that there is no merit in the appeal which must accordingly be dismissed with costs
Appeal dismissed


Summary:
By an order dated 1331990 the Supreme Court directed the Delhi Development Authority DDA to grant conditional approval to the respondent Company s DCM scheme pertaining to the development of mills land measuring 63 acres for construction of flatted factories and residential complex subject to removal of objections raised by Municipal Corporation of Delhi and Delhi Development Authority
The matter could not be finalised by the parties since the DDA took certain objections to the schemea that the Delhi Cloth Mills should file a modified plan so as to conform to the Master Plan of the year 2001 b the legal proceedings before the High Court and the Supreme Court proceeded on the wrong assumption that the entire 63 acres of land was owned by the Delhi Cloth Mills whereas the DCM owns only 52 acres of land while the balance 11 acres was owned by the DDA which is partly on lease and partly in trespass with the Delhi Cloth Mills and c the grant of permission by the DDA vide its resolution No 26 dated 1283 does not ipso facto mean that it had given up its rights or title to the lease hold lands or that it had regularised the possession of the trespassed upon land with the Delhi Cloth Mills
The respondent Company filed applications for direction in this Court
Disposing the applications this Court HELD 1
The DDA stands directed by this Court to grant to the DCM approval even though conditional and the DCM stands impliedly directed and is duty bound to remove the objections raised by the DDA
This Court had endorsed by means of this directive the already known views of the Delhi High Court towards restoring resolu 591 tion of the DDA dated February 1 1983 whereby the scheme as given by the Delhi Cloth Mills was approved in terms thereof
The approval came from the DDA at a time when the Master Plan of the year 1962 was operative and the one of the year 2001 was not existent and if at all existent in an embryonic stage
The law governing the subject and the rules and regulations then in vogue and applicable were deemingly kept in view and applied by the DDA in the approval of the scheme
To whittle down the effect of that resolution on the emergence of the new Master Plan of the year 2001 made applicable after the orders of this Court would at the present stage if insisted upon be spelled out as a step to undermine the orders of this Court
Such an objection by the DDA when raised before March 13 1990 the day when the Supreme Court passed its judgment was untenable in law and the DDA should have known it before putting such on objection to use
Therefore the first objection of the DDA is repelled and it is directed to stick to the position as per Master Plan as existing on February 1 1983
594 D G 2
The objection of the DDA with regard to the wrong impression of the ownership of the land is valid substantially
It is the admitted case of the parties that the scheme pertains to 63 acres of land which the Delhi Cloth Mills while applying for sanction claimed to own and one of the considerations in passing the resolution dated February 11983 ex facie was the DDA being impressed by a private entrepreneur coming forward with a scheme with such a large chunk of land
The DDA when engaged in examining and sanctioning the proposal was justified on proceeding on the supposition of facts given by the Delhi Cloth Mills as true and in processing the same cannot be said to have surrendered its ownership rights qua land measuring 11 acres
It cannot be assumed that by upholding the resolution dated February 1 1983 the Delhi High Court or Supreme Court had acknowledged Delhi Cloth Mills as the owner of 63 acress of land involved in the scheme or that the right of ownership of the DDA over about 11 acres of land stood extinguished by such exercise
Therefore the said resolution cannot trample the rights of DDA as owner over 11 acres of land when the respective leases reserve to the DDA the right of resumption and in lease expiring by efflux of time the option not to renew
The scheme approved must thus of necessity be denoted to that effect as the objection of the DDA in that regard and to that extent is valid and tenable
But the Delhi Cloth Mills can still steer through its project in its owned 52 acres even though in a truncated form and submit an amended plan
The scheme in the modified form would have to be brought in not a new but as a substitute for the original scheme and that scheme would register its birth legitimacy and binding force as of the original 592 scheme594H 595 A D E F D 3
Respondent Company s relationship with the DDA is that of a lessee and lessor
Out of 10 leases one is perpetual in nature and the remaining leases are short durated
Under the terms of the perpetual lease unless the DDA grants approval to the change of user as asked and reconstruction the Delhi Cloth Mills has no such deemed right or privilege ignoring the covenants and the terms of the lease
Therefore it cannot be said that the resolution has the automatic effect of the DDA having granted change of user consciously or impliedly or vesting any right in that regard to the Delhi Cloth Mills
597 D F 596 E