Appeal No 832 of 1962
Appeal by special leave from the judgment and decree dated January 22 1962 of the Assam High Court in Gauhati in Civil Rule No 369 of 1961
M C Setalvad and Naunit Lal for the appellant
N C Chatterjee and D N Mukherjee for the respondent 4 1963
February 12
The judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave raises a short question about the scope and effect of the provisions contained in Article 311 2 of the Constitution
The said question arises in this way
The respondent Bimal Kumar Pandit was serving appellant No 1 the State of Assam as an Extra Assistant Commissioner Shillong
On December 11 1959 the second appellant the Chief Secretary to the Government of Assam served on the respondent a charge sheet containing eleven specific charges and called upon him to show cause why he should not be dismissed from service or otherwise punished under Rule 55 of the Civil Services Classification Control  Appeal Rules read with article 311 of the Constitution
The said notice further informed the respondent that the Governor of Assam had been pleased to authorise the Commissioner of Plains Division Assam to conduct the
enquiry and to report to appellant No 2
On January 13 1960 the respondent submitted an elaborate explanation in respect of all the charges
The Commissioner of Plains Division Assam then proceeded to hold an enquiry and after considering the evidence adduced before him he made the report on April 12 1960
In this report the Enquiry officer found that out of the 11 charges drawn up against the respondent 6 had not been proved and of the remaining 5 charges two had been fully established they were charges 7 and 10  and the other three charges Nos
1 2 and 4 had been partially established
The report made these findings and proceeded to add that the lapses proved did not cast any serious doubt on the honesty and integrity of the delinquent officer although the evidence led in respect of charges 1 and 2 proved his inexperience and that led under charges 2 and 4 showed his irresponsibility
The report further stated that in the circumstances the 5 two charges which deserved consideration for purposes of punishment were charges 7 and 10 aid it ended with the recommendation that in view of the limited scope of the charges proved and of the age and experience of the delinquent officer the with
holding of three increments from his pay would meet the ends of justice in this case
After this report was received appellant No 2 served a second notice on the respondent on June 1 1960
This notice referred to the disciplinary proceedings held against the respondent and added that the respondent was thereby required under clause 2 of article 311 of the Constitution to submit his explanation if any why the penalty of removal from service should not be imposed upon him
The notice further stated that a copy of the report of the Enquiring officer in the disciplinary proceedings drawn up against the respondent was enclosed
The respondent was told that he had to submit his explanation through the Commissioner of Plains Division Assam on or before June 18 1960
On receiving this notice the respondent submitted his explanation on June 21 1960 in respect of the charges which had been held proved by the Enquiring officer
After considering the explanation thus submitted by the respondent the Governor of Assam was pleased to reduce in rank the respondent who was on probation in the Assam Civil Service Class I to the Assam Civil Service Class Il perma nently with effect from the date he takes over as such
The Governor of Assam further ordered that the respondent will be on probation in the said Class 11 Service for two years subject to termination if his work and conduct were not found satisfactory
The respondent was to draw his pay in the minimum of the scale of pay of A C section Class 11 and his seniority in the cadre would be determined with 6 effect from the date of his joining
This Order was made on July 8 1961
The respondent then challenged the validity of this order by a writ petition in the High Court of Judicature at Assam on August 24 1961
One of tile points urged by him was that he had not been given a reasonable opportunity of showing cause against the action which was ultimately taken against him under article 311 2 and he urged that the contravention of article 311 2 rendered the impugned order invalid
He urged other contentions also but those have been rejected by the High Court while his main point under article 311 2 has been upheld
In the result the High Court has allowed the writ petition and issued a mandamus directing the appellants not to give effect to the order dated 8th July 1961
It is against this order that the appellants have come to this Court by special leave
We have already referred to the second notice served on the respondent under article 311 2
The respondent s contention which has been accepted by the High Court is that in the said notice appellant No 1 has not clearly indicated that it accepted the findings of the Enquiring officer and since such a statement is not made in the notice the respondent could not have known on what ground appellant No1 provisionally decided to impose upon the respondent the penalty of removal from service
The High Court has held that the notice issued under article 311 2 must show that the dismissing authority has applied its mind to the findings of the Enquiring officer and has accepted the said findings against the delinquent officer
In other words the notice should expressly state the conclusions of the dismissing authority because unless these conclusions are communicated to the delinquent officer he would not be able to make an adequate or effective representation
According to the High Court in recording such conclusions the dismissing authority must 7 also indicate the reasons on which it had come to those conclusions against the delinquent officer and since the impugned notice did not contain a specific averment that the dismissing authority had accepted the findings of the enquiring officer and otherwise gave no grounds or reasons for the action proposed to be taken against the respondent it contravened the requirements of article 311 2 and so it must be held to be void
Mr Setalvad for the appellants contends that in coming to this conclusion the High Court has misinterpreted the scope and effect of article 311 2
Article 311 1 provides inter alia that no person covered by the said sub article shall be dismissed or removed by an authority subordinate to that by which he was appointed
We are not concerned with this sub Article in the present appeal
Article 311 2 provides that no such person as specified in article 311 1 shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
It is now well settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him
An enquiry must be held and it must be conducted according to the rules prescribed in that behalf and consistently with the requirements of natural justice
At this enquiry the public officer concerned would be entitled to test the evidence adduced against him by cross examination where necessary and to lead his own evidence
In other words at this first stage of the proceedings he is entitled to have an opportunity to defend himself
When the enquiry is over and the enquiring officer submits his report the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not
If the findings in the report are against the 8 public officer and the dismissing authority agrees with the said findings a stage is reached for giving another opportunity to the public officer to show will disciplinary action should not be taken against him
In issuing the second notice the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about tile punishment which would meet the requirement
 of justice in his case and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice
There is no doubt that in response to this notice the public officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority
In other words the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence the action proposed to be taken against him is either unduly severe or not called for
This position is not in dispute
The High Court seems to have taken the view that in order that the public officer may have a reasonable opportunity tile dismissing authority must indicate its conclusions on the findings recorded by the enquiring officer and must specify reasons in supports of them
According to this view the fact that the copy of the report made by the enquiring officer was sent to the delinquent officer along with the notice indicating the nature of the action proposed to be taken against him does not help to meet the requirement of  article 311 2
The argument is that unless this course is adopted it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusions 9 both in regard to the guilt of the public officer and the punishment which his misconduct deserved
It may be conceded that it is desirable that the dismissing authority should indicate in the second notice its concurrence with the conclusions of the enquiring officer before it issues the said notice under article 311 2
But the question which calls for our decision is if the dismissing authority does not expressly say that it has accepted the findings of the enquiring officer against the delinquent officer does that introduce such an infirmity in the proceedings as to make the final order invalid  We are not prepared to answer this question in the affirmative
It seems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authority as to the punishment that should be imposed on him obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority otherwise there would be no sense and no purpose in issuing the notice under article 311 2
Besides we may add that in the present case the affidavit made by appellant No 2 clearly shows that before the impugned notice was served on the respondent the Government had accepted the findings of the enquiring officer which means that the Government agreed with the enquiring officer in regard to both sets of findings recorded by him
Therefore we do not think that the failure to state expressly that the dismissing authority has accepted the findings recorded in the report against the delinquent officer justifies the conclusion that the notice given in that behalf does not afford a reasonable opportunity to the delinquent officer under article 311 2
On receiving the notice in the present case it must have been obvious to the respondent that the findings recorded against him by the enquiring officer had been accepted by the appellants and so we think it would not be reasonable to accept the 10 view that in the present case he had no reasonable opportunity as required by article 311 2
We ought however to add that if the dismissing authority differs from the findings recorded in the enquiry report it is necessary that its provisional conclusions in that behalf should be specified in the second notice
It may be that the report makes findings in favour of the delinquent officer but the dismissing authority disagrees with the said findings and proceeds to issue the notice under article 311 2
ID such a case it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer
Without such an express statement in the notice it would be impossible to issue the notice at all
There may also may be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues
That is precisely what has happened in the present case
It  the dismissing authority accepts all the said findings in their entirety it is another matter  but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions it would be necessary that the said conclusions should be briefly indicated in the notice
In this category of cases the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are according to the dismissing authority proved
In order to give the delinquent officer a reasonable opportunity to show cause under article 311 2 it is essential that the conclusions 11 provisionally reached by the dismissing authority must in such cases be specified in the notice
But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report
As we have already indicated it is desirable that even in such cases a statement to that effect should be made
But we do not think that the words used in article 311 2 justify the View that the failure to make such a statement amounts to contravention of article 311 2
In dealing with this point We must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice and so reading the notice in a common sense manner the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in their entirety
It has however been urged by Mr Chatterjee for the respondent that in the present case the appellants must have proceeded to issue the notice against the respondent after coming to the conclusion that some of the findings recorded in the enquiry report in favour of the respondent were not correct
His argument is that the enquiry report had suggested that the withholding of three increments would meet the ends of justice in the present case nevertheless the notice issued by the appellants indicated that the action proposed to be taken was the respondent s removal from service
It is true that the ultimate action taken against him was not as severe he has been merely demoted to Class II Service
But it is suggested that the severity of the punishment proposed to be inflicted on the Respondent rather suggests that the appellants felt that some of the other charges which the enquiring officer had not 12 held proved appeared to be proved to the appellants
This argument is no doubt ingenious but in the circumstances of this case we do not think it can be accepted
As this Court has held in A N D Silva vs Union of India 1 in the absence of rules or any statutory provisions to the contrary the enquiry officer is not required to specify the punishment which may be imposed on the delinquent officer
His task is merely to hold an enquiry into the charges and make his report setting forth his conclusions and findings in respect of the said charges
Sometimes the enquiring officers do indicate the nature of the action that may be taken against the delinquent officer but that ordinarily is outside the scope of the enquiry
That being so not much significance can be attached to the recommendation made by the enquiring officer in the present case
Besides it is absolutely clear that under the relevant rules the punishment proposed to be imposed on the respondent was justified even on the findings recorded against him by the enquiring officer and so it would be idle to contend that unless the appellants had differed from the conclusions of the enquiring officer in respect of the charges which he held not proved they could not have legitimately thought of imposing the said punishment on him
Therefore in our pinion the argument that the action proposed to be taken itself shows that the appellants did not accept the findings recorded by the enquiring officer favour of the respondent must be rejected
We will now refer to some of the decisions on which Mr Chatterjee relied
In the case of The High Commissioner of India vs I M Lal  2   the Federal Court had to consider the scope and effect of he provisions of section 2403 of the Constitution Act of 1935 This provision is substantially similar to the provisions contained in article 3112 of the Constitution
According to the majority view of the Federal Court in that case all that section 2403 requited was 1 1962 Supp 1 section C R 968
2 136 13 not only notification of the action proposed but of the grounds on which the authority was proposing that the action should be taken and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it was proposed to be taken
Mr Chatterjee contends that this decision shows that the notice served on the delinquent officer must set forth the grounds on which the particular action was proposed to be taken
He emphasises the fact that in the judgment it has been specifically stated that grounds should be stated on which the action is proposed to be taken and shows that the dismissing authority must its reasons in support or the said Section
In our opinion this argument is not justified because the context in which the said observations were made by the Federal Court clearly shows that the grounds to the judgment refers are the findings or conclusions reached by the enquiring officer
In fact in tile subsequent passage it has been expressly observed that
the requirement of section 2403 involves in
all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank that the person concerned shall be told in full or adequately summarised form the results of that enquiry and the findings of the enquiring officer and be given an opportunity of showing cause with that information why lie should not suffer the proposed dismissal or reduction in rank
 It would be noticed that this statement clearly shows that what the Federal Court held was that the dismissing authority must convey to the delinquent officer the findings of the enquiring officer either fully or adequately summarised and state the nature of the action proposed to be taken against him
In other words the officer concerned ought to know what findings have been recorded against him and should be given a chance to challenge those findings and to question the propriety 14 of the action proposed to be taken against him
In this context therefore the grounds which according to the judgment have to be stated in the notice do not indicate grounds or reasons which would show
why the dismissing authority accepts the enquiring officer s report but the grounds reasons or findings which have been recorded by the enquiring officer are required to be stated
Therefore we do not think that Mr Chatterjee is justified in contending that the decision of the Federal Court in 1
M Lal s case supports the view taken by the High Court in the present proceedings
It is true that in the case of Khem Chand vs The Union of India 1 this Court has held that  Reasonable opportunity envisaged by article 311 2 includes internal 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
 There is no doubt that after the report is received the appropriate authority must apply its mind to the report and must provisionally decide whether the findings recorded in the report should be accepted or not
It is only if the findings recorded in the report against the Government servant are accepted by the appropriate authority that it has to provisionally decide what action should be taken against him But this does not mean that in every case the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer
Therefore we do not think that the decision of 1   1097 15 this Court in Khem Chand s case supports Mr Chatterjee s contention
On the other hand the decision of this Court in The State of Orissa vs Govindadas Panda 1 shows that a similar order issued by the Orissa Government was upheld by this Court
In that case the notice issued under article 311 2 did not expressly state that the State Government had accepted the findings recorded by the enquiring officer against the Government servant in question
In fact even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicted
The Orissa High Court had struck down the order of dismissal on the ground that the notice was defective and so the provisions of article II 1 2 had been contravened
This Court in reversing the concision of the Orissa High Court observed that in the context it Must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment
On a reasonable reading of the notice the only conclusion at which one can arrive is that the appellant the State accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment namely that of removal from service
 It may be added incidentally that the punishment which had been suggested by the Tribunal was removal from service as distinguished from dismissal and this Court held that the impugned notice must be deemed to have referred to that punishment as the action proposed to be taken against the Government servant
Therefore this decision in substance is against the contention raised by Mr Chatterjee There are however some decisions which seem to lend support to Mr Chatterjee s argument and it is therefore necessary to examine them
In the 1 Civil Appeal NO 4121958 decided on 10th Dec 1958 16 case of The State o Andhra vs T Ramayya Suri the Andhra Pradesh High Court has held that under article 311 2 the authority concerned should necessarily in its order requiring the civil servant to show cause give not only the punishment proposed to lie inflicted but also the reasons for coming to that conclusion
 If this observation is intended to lay down a general rule that in every case the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delinquent government servant we must hold that the said view is not justified by the requirements of article 311 2
We ought however to add that in the case with which the Andhra Pradesh High Court was dealing it appeared that the Government did not agree with the Tribunal in regard to its finding on the third charge and so its conclusion on the said charge which was different from that of the Tribunal weighed in its mind in proposing to take the specified action against the Government servant
In such a case it would be legitimate to hold that the public servant did not know what was weighing in the mind of the Government and so did not get an adequate opportunity to challenge the view which the Government was inclined to take in respect of the third charge framed against him
On these facts we think the High Court was justified in taking the view that the Government should have indicated in the notice its conclusion on the third charge
That however does riot mean that in the notice the Government ought to state its grounds or reasons in support of its conclusion
It is the finding or the conclusion which is weighing in the mind of the Government that must in such a case be communicated to the public servant
In Bimal Charan Mitra vs State of Orissa 2 the Orissa High Court has held that the service of the copy of the findings of the punishing authority on the public servant is mandatory and the service 1 A I R  2 A I R 1957 Orissa
184 17 of the report of the enquiring officer who is not the punishing authority when there is no indication at all in the notice that the authority competent to punish agrees with those findings cannot constitute substantial compliance with the requirements of article 31 1 2
 This decision seems to suggest that in issuing the notice under article 311
2 the appropriate authority must besides serving the copy of the enquiring officer s report on the government servant supply the said officer the findings of the punishing authority and this requirement is treated as a mandatory requirement under article 3112
In our opinion this view is erroneous
The same comment falls to be made about another decision of the said High Court in Krishan Gopal Mukherjee vs The State 1
The last decision to which reference must be made is the decision of the Bombay High Court in the State of Bombay vs Gajanan Mahadev Badley 2 
In this case Chief justice Chagla has observed that under article 311 2 it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against the servant
This view is clearly right
But then in support of this conclusion the learned Chief justice has observed that the public servant must have an opportunity to show cause not only against the punishment but also against the grounds on which the State proposes to punish him and Mr Chatterjee relies upon this sentence to support his argument that the grounds on which the State proposes to act must be communicated to the public servant
In our opinion this statement must be read along with the conclusion of the High Court 1 AIR 1960 Orissa 37
2 AIR 1954 Bom
351 18 and so read it would clearly show that what the C J intended to lay down was that the findings recorded in the enquiry report which constitutes the ground on which the Government proposes to take action must be communicated to the public servant
Therefore this decision does not support Mr Chatterjee s argument that the notice issued under article 3112 must expressly state that the appropriate authority accepts the findings of the enquiry officer and must give reasons in support of the action proposed to be taken against him
In the result we hold that the High Court was in error in coming to the conclusion that the order of demotion Passed against the respondent in the present case was invalid on the ground that the respondent had not been given a reasonable opportunity of showing cause against the said action under article 3112
The appeal accordingly succeeds the order passed by the High Court is set aside and the writ petition filed by the respondent is dismissed
There will be no order as to costs
Appeal allowed


Summary:
The respondent was An Extra Assistant Commissioner
He was charge sheeted and lie submitted an elaborate explanation in respect of all the charges
The enquiry was held by the Commissioner and a report submitted by him
After giving his findings the Commissioner added that the lapses proved did not cast any serious doubt on the honesty arid integrity of the respondent and hence the withholding of three increments from his pay would meet the ends of justice
The appellant served a second notice on the respondent and the latter was asked to submit his explanation wiry penalty of removal from service should not be imposed upon him
The respondent submitted an explanation and the Governor of Assam after considering the explanation ordered his demotion
That order was challenged by the respondent by a writ petition filed in the High Court
The writ petition was allowed by the High Court and a writ of mandamus was issued directing the appellant not to give effect to the order of demotion
The High Court held that the second notice did not clearly indicate that the Government had accepted the findings of Enquiry officer and as such a statement was not made in the notice the respondent could not have known on what grounds the Government had provisionally decided to 2 impose upon him the penalty of removal from service
It was also held that the notice must show that the dismissing authority had applied its mind to the findings of the Enquiry officer and had accepted the said findings against the respondent
The notice should expressly state the conclusions of the dismissing authority because unless those conclusions were communicated to the respondent he was not in a position to make an adequate or effective representation the dismissing authority must also indicate the reasons on which it bad come to those conclusions
As the impugned notice did not contain a specific averment that the dismissing authority had accepted the findings of the Enquiry officer and otherwise gave no grounds or reasons for the action proposed to be taken against the respondent it contravened the provisions of article 311 2
The appellant came to this Court by special leave
Held that the High Court was in error in coming to the conclusion that the order of demotion passed against the respondent was invalid on the ground that the respondent had not been given a reasonable opportunity of showing cause against the action to be taken against him under article 311 2 of the Constitution
A public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities
Ali enquiry must be held and it must be conducted according to the rules prescribed in that behalf and consistently with tile requirements of natural justice
When the Enquiry Officer submits his report the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not
If the findings in the report are against the public officer and the dismissing authority agrees with them another notice has to be given
In issuing the second notice the dismissing authority has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the ends of justice
in response to this notice the public officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity or correctness of the findings recorded by tile Enquiry officer and provisionally accepted by the dismissing authority
If the dismissing authority differs from the findings recorded in the enquiry report it is necessary that its provisional conclusions should be specified in the second notice
If the dismissing authority accepts the findings against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action 3 proposed to be taken on its own conclusions it is necessary that the said conclusions should be briefly indicated in the notice
Where the dismissing authority purports to issue the notice against the delinquent officer after accepting the enquiry report in its entirety it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report
However it is desirable that even in such cases a statement to that effect should be made but failure to make such statement does not contravene the provisions of article 311 2
As regards the functions of the Enquiry officer unless there is any rule or statutory provision to the contrary he is not required to specify the punishment which may be imposed on the delinquent officer
His task is merely to hold an enquiry into the charges and make his report stating forth his con clusions and findings in respect of the said charges
Sometimes the Enquiry officers do indicate the nature of the action that may be taken against the delinquent officer that ordinarily is outside the scope of the enquiry
AN D Silva vs Union of India 1962 Supp
1 section C R 968 High Commissioner of India vs I M Lal  Khem Chand vs Union of India   The State of Orissa vs Govindadas Pahda C A No 41258 dt 10 12 1958 State of Andhra vs T Ramayya Suri A 1
R 1957 Andhra 370 Bimal Charan Mitra vs State of Orissa A 1
R 1957 Orissa 184 Krishan Gopal Mukherjee vs The State A 1
R 1960 Orissa 37 and State of Bombay vs Gajnan Mahadev Baldev A 1
R  referred to