Civil Appeal No 422 of 1980
Appeal by Special Leave from the Judgment and Order dated the 23 8 1979 of the Madhya Pradesh High Court Jabalpur Bench at Gwalior in Second Appeal No 42 of 1979
1246 section K Gambhir for the Appellant
Mr N section Das Bahl for Respondent
The Judgment of the Court was delivered by DESAI J
Respondent Ram Ratan was employed as a Forest Guard in the Forest Department of Madhya Pradesh Government
He was served with a charge sheet dated March 6 1969 in which he was accused of misconduct
Respondent refuted the charges
A departmental enquiry was held by the Divisional Forest Officer Mr Malhotra in respect of the charges framed against the respondent
Charge of misconduct was held proved whereupon the punishing authority served respondent with a second show cause notice dated February 12 1970 as contemplated by Article 3112 of the Constitution as it stood prior to its amendment by the Constitution Fortysecond Amendment Act 1976
The dispute in this appeal centres around the construction of this notice No E12053 dated February 12 1970 and its relevant portion may be extracted 
the Enquiry Officer has concluded in the report that he is guilty of the above mentioned charges
Hence as a result of the above said charges having been established why you shall not be imposed major penalty under the M P Civil Services Act  
Why you will not be removed from the State Service by imposing the abovesaid punishment  After the respondent replied to the notice the disciplinary cum punishing authority imposed the penalty of compulsory retirement on the respondent
The respondent questioned the validity and correctness of the punishment in Civil Suit No 227A73 filed by him in the Court of the Civil Judge Civil Court Class II Sabalgarh
The trial Court decreed the suit and set aside the order imposing the major penalty of compulsory retirement and granted a declaration that respondent continues in service
On appeal by the State of Madhya Pradesh the Second Additional District Judge Morena set aside the decree of the trial court and dismissed the suit of the respondent
On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial court with the result that a declaration was granted that the respondent would continue in service till the date of his superannuation
Hence this appeal by special leave by the State of Madhya Pradesh
1247 The High Court was of the opinion that strict compliance with Art3112 of the Constitution along with rule 154ib of the M P Civil Services Classification Control and Appeal Rules 1966  1966 Rules  for short must be insisted upon because it provides a safeguard against arbitrary removal from service of Government servants
Consistent with this approach and drawing sustenance from the decision of this Court in Union of India  Ors
vs K Rajappa Menon1 it was held that unless the disciplinary or competent authority tentatively determines to inflict a particular penalty and specifies the particular penalty to be inflicted on the delinquent Government servant the show cause notice cannot be sustained without such a particular penalty being specified and the final order cannot be sustained unless the specified and no other penalty is imposed
Article 3112 as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it is proposed after a departmental inquiry to impose on the delinquent Government servant any of the penalties referred to in article 311 so as to give a reasonable opportunity of making representation on the penalty proposed
Rule 154 ib of the 1966 Rules prescribes procedure to be followed by the disciplinary authority before imposing punishment to the effect that the concerned authority should give a notice setting the penalty proposed to be imposed on the concerned government servant calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days as may be allowed such representation as he may wish to make on the proposed penalty on the basis if the evidence adduced during the inquiry held under rule 14
It would thus appear that the punishing authority has in the second show cause notice to specify the punishment which it tentatively or provisionally decides upon to impose looking to the gravity of the charge which is held proved
At that stage the decision of the punishing authority is a tentative decision and in the very nature of things it must be so because an opportunity has to be given to the delinquent government servant to make a representation on the nature of penalty
This would imply that if the delinquent officer in his representation makes out a case for a lesser punishment the disciplinary authority would keep an open mind and after applying its mind to the representation made by the delinquent government servant the authority may either confirm its earlier tentative decision or it would be open to it to award a lesser penalty on them the one tentatively decided
1248 Principle of natural justice and fair play implicit in article 3112 and rule 154 i b would require that the disciplinary authority has to take into consideration the representation made by the delinquent government servant in response to the notice which is a constitutional obligation and if the delinquent officer is in a position to persuade by his representation to so modulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances all of which may enter into the verdict of deciding upon the penalty and consequently the disciplinary authority would be free to impose a lesser penalty than the one proposed in the second notice
This is the constitutional scheme
If the view that the High Court has taken is to be accepted that the disciplinary authority must tentatively decide upon the penalty and specify the penalty in the second show cause notice and after taking into consideration the representation made by the delinquent government servant in response to the notice it can only either confirm the tentative decision but cannot award a lesser punishment the exercise of giving second show cause notice becomes self defeating and giving of the notice inviting the representation on the question of penalty would be an exercise in futility
Such an approach would render a tentative decision as final and the rest being an empty formality
Such could not be the underlying object in enacting a constitutional mandate for the protection of government servants
In service jurisprudence for different types of misconduct various penalties are prescribed in service rules
1966 Rules prescribe as many as 9 penalties which can be awarded for good and sufficient reasons
In the list of penalties the first three are styled as minor penalties  and the remaining six are styled as major penalties 
Compulsory retirement is one of the major penalties
Similarly removal from service which shall not be a disqualification for future appointment in government service and dismissal from service which shall ordinarily be a disqualification for future employment under the government are the other two major penalties
The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the delinquent government servant
Degree of seriousness of misconduct will ordinarily determine the penalty keeping in view the degree of harm that each penalty can inflict upon the government servant
Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty keeping in view the seriousness of misconduct
But this is a tentative decision
On receipt of representation in response to notice the disciplinary authority will apply its mind to it take into account any extenuating or mitigating circumstances pleaded in the representation and finally 1249 determine what should be penalty that would be commensurate with the circumstances of the case
Now if a major penalty was tentatively decided upon and a lesser or minor penalty cannot be awarded on the view taken by the High Court because this was not the specified penalty the government servant to whom a notice proposing major penalty is served would run the risk of being awarded major penalty because it would not be open to award a lesser or a minor penalty than the one specified in the show cause notice
Such a view runs counter to the principle of penology
In criminal and quasi criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend within its fold the minor penalty
If a major penalty is proposed looking to the circumstances of the case at that stage after taking into consideration the representation bearing on the subjects and having an impact on the question of penalty a minor penalty can always be awarded
In penal statute maximum sentence for each offence is provided but the matter is within the discretion of the judicial officer awarding sentence to award such sentence within the ceiling prescribed by law as would be commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court s discretion is by legislation fettered
This is so obvious that no authority is needed for it but if one is needed a constitution Bench of this Court in Hukam Chand Malhotra vs Union of India1 dealt with this very aspect
Relevant portion of the second show cause notice which was before this Court may be extracted 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 major penalty viz dismissal removal or reduction should be enforced on you  Ultimately after taking into consideration the representation made by the concerned government servant penalty of removal from service was imposed upon him
It was contended before this Court that in view of the decision of the Privy Council in High Commissioner for India and High Commissioner for Pakistan vs I M Lall and Khem Chand vs Union of India3 it is well settled that the punishing authority must either specify the actual punishment  or particular punishment  in the second show cause notice otherwise the notice would be bad
Repelling this contention this Court observed as under 1250 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 3112 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 than 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 
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
The High Court in support of its decision has relied upon K Rajappa Menon s case Supra
The High Court appears to be of the view that the decision in Rajappa Menon s case is an authority or the proposition that if the punishing authority fails to specify any particular punishment to be imposed on the Government servant the show cause notice cannot be sustained without such a particular punishment being specified
Such was not the case before this Court in Rajappa Menon s case
The contention canvassed before this Court was that if disciplinary authority specifies the penalty tentatively decided upon by it
it would indicate that the authority has finally made up its mind and therefore the notice would be bad
This contention was in terms negatived relying upon Khem Chand s case Supra and it was observed that the procedure which is to be followed under article 3112 of the Constitution of affording a reasonable opportunity includes giving of two notices one at the enquiry stage and 1251 the other when the competent authority as a result of the enquiry tentatively determines to inflict a particular punishment
It is quite obvious that unless the disciplinary or the competent authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination
This is of no assistance in the case under discussion
It is thus incontrovertible that if any particular penalty is specified as tentatively proposed in the second show cause notice the disciplinary authority after taking into consideration the representation made by the delinquent government servant can award that penalty or any lesser penalty and in so doing article 3112 will not be violated
In fact this leaves open a discretion to the punishing authority which accords with reason fair play and justice
The fact situation in this appeal is that in the notice dated February 12 1970 the disciplinary authority stated that it was tentatively proposed to impose major penalty viz removal from service
Original notice is in Hindi language
Its translation in English language is placed on record
It clearly transpires from the notice that the punishing authority tentatively proposed to impose a major penalty of removal from service
Ultimately after taking into consideration the representation of the respondent the disciplinary authority imposed penalty of compulsory retirement
In relation to penalty of removal from service the penalty of compulsory retirement inflicts less harm and therefore it is a lesser penalty compared to removal from service
Compulsory retirement results in loss of service for certain years depending upon the date of compulsory retirement and the normal age of superannuation but the terminal benefits are assured
In removal from service there is a further disqualification which may have some repercussion on terminal benefits
It was not disputed before us that in comparison to removal from service compulsory retirement is a lesser penalty
Therefore when in the second show notice major penalty of removal from service was tentatively proposed it did comprehend within its fold every other minor penalty which can be imposed on the delinquent government servant
That having been done no exception can be taken to it
The High Court was accordingly in error in holding that the second show cause notice was invalid and on this ground allowing the second appeal of the respondent and decreeing his suit
Accordingly this appeal will have to be allowed
1252 The next question is what order we should make in this appeal
If the appeal is allowed naturally the suit of the respondent will stand dismissed  The respondent was a Forest Guard a petty servant serving in the Forest Department of the State
The charge against him was that he removed some forest wood worth about Rs 31012P
He has been in this litigation for the last 10 years
He won in the trial court and in the High Court
This appeal was preferred by the State for a decision on the question of law which may affect other cases
Allowing the State appeal would clarify the legal position and that would serve the purpose of the State in preferring the appeal
A welfare State would hardly be interested in pursuing its employees serving in the lower echelons of service as would inflict unbearable burden on him
Further if the order by the High Court is not interfered with the respondent would have to be reinstated in service but by the passage of time he would have by now retired on superannuation also and accordingly he would be entitled to his salary for the period commencing from date of his compulsory retirement to the date of his normal retirement on superannuation
Since we are exercising our extraordinary jurisdiction under article 136 of the Constitution we are not bound to set aside the order of the High Court directing reinstatement of the respondent but as he would now only be entitled to his back wages we quantify the same at Rs 10000 and direct that the State shall pay the same with costs quantified at Rs 1000 to the respondent
Such an approach accords with the demands of social justice reason and fair play
See Punjab Beverages Pvt Ltd vs Suresh Chand  Ors1 The State shall pay the amount herein directed to be paid within two months from today and the respondent shall be entitled to his terminal benefits from the date of his retirement on superannuation
This appeal stands disposed of accordingly
SR Appeal allowed


Summary:
Respondent Ram Ratan was employed as a Forest Guard in the Forest Department of Madhya Pradesh Government
He was served with a charge sheet dated March 6 1969 in which he was accused of misconduct
Respondent refuted the charges
A departmental enquiry was held by the Divisional Forest Officer Mr Mathotra in respect of the charges framed against the respondent
Charge of misconduct was held proved whereupon the punishing authority served respondent with a second show cause notice dated February 12 1970 as contemplated by Article 3112 of the Constitution as it stood prior to its amendment in 1976
After the respondent replied to the notice the disciplinary cum punishing authority imposed the penalty of compulsory retirement on the respondent
The respondent questioned the validity and correctness of the punishment in Civil Suit No 227 A73 filed by him in the Court of the Civil Judge Civil Court Class II Sabalgarh
The trial Court decreed the suit and set aside the order imposing the major penalty of compulsory retirement and granted a declaration that respondent continues in service
On appeal by the State of Madhya Pradesh the Second Additional District Judge Morena set aside the decree of the trial Court and dismissed the suit of the respondent
On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court a allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial Court with the result that a declaration was granted that the respondent would continue in service till the date of his superannuation
Hence this appeal by special leave by the State of Madhya Pradesh
Allowing the appeal the Court  HELD 1 Article 3112 as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it was proposed after departmental inquiry to impose on the delinquent Government servant any of the 1244 penalties referred to in article 311 so as to give a reasonable opportunity of making representation on the penalty proposed
Rule 154ib of the 1966 Rules prescribes procedure to be followed by the disciplinary authority before imposing punishment to the effect that the concerned authority should give a notice setting out the penalty proposed to be imposed on the concerned government servant and calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days as may be allowed such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 14
The punishing authority has in the second show cause notice to specify the punishment which it tentatively or provisionally decides upon to impose looking to the gravity of the charge which is held proved
At that stage the decision of the punishing authority is a tentative decision and in the very nature of things it must be so because an opportunity has to be given to the delinquent government servant to make a representation on the nature of penalty
This would imply that if the delinquent officer in his representation makes out a case for a lesser punishment the disciplinary authority would keep an open mind and after applying its mind to the representation made by the delinquent government servant the authority may either confirm its earlier tentative decision or it would be open to it to award a lesser penalty then the one tentatively decided
1247 C H 2
Principle of natural justice and fair play implicit in article 3112 and rule 154ib would require that the disciplinary authority has to take into consideration the representation made by the delinquent government servant in response to the notice which is a constitutional obligation and if the delinquent officer is in a position to pursuade by his representation to so modulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances all of which may enter into the verdict of deciding upon the penalty and consequently the disciplinary authority would be free to impose a lesser penalty than the one proposed in the second notice
This is the constitutional scheme
1248 A B If the view namely that the disciplinary authority must tentatively decide upon the penalty and specify the penalty in the second show cause notice and after taking into consideration the representation made by the delinquent government servant in response to the notice it can only confirm the tentative decision but cannot award a lesser punishment the exercise of giving second show cause notice becomes self defeating and giving of the notice inviting the representation on the question of penalty would be an exercise in futility
Such an approach would render a tentative decision as final and the rest being an empty formality
Such could not be the underlying object in enacting a constitutional mandate for the protection of government servants
1248 C E In service jurisprudence for different types of misconduct various penalties are prescribed in service rules
1966 Rules prescribe as many as 9 penalties which can be awarded for good and sufficient reasons
Compulsory retirement is one of the major penalties
Similarly removal from service which shall not be a disqualification for future appointment in government service and dismissal from service which shall ordinarily be a disqualification for future employment under the government are the other two major penalties
The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the delinquent government servant
Degree of seriousness of misconduct will ordi 1245 narily determine the penalty keeping in view the degree of harm that each penalty can inflict upon the government servant
Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty keeping in view the seriousness of misconduct
But this is a tentative decision
On receipt of representation in response to notice the disciplinary authority will apply its mind to it take into account any extenuating or mitigating circumstances pleaded in the representation and finally determine what should be the penalty that would be commensurate with the circumstances of the case
1248 E H 1249 A It a major penalty was tentatively decided upon and a lesser or minor penalty cannot be awarded because this was not the specified penalty the government servant to whom a notice proposing major penalty is served would run the risk of awarded major penalty because it would not be open to award a lesser or a minor penalty than the one specified in the show cause notice
Such a view runs counter to the principle of penology
In criminal and quasi criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend within its fold the minor penalty
If a major penalty is proposed looking to the circumstances of the case at that stage after taking into consideration the representation bearing on the subject and having an impact on the question of penalty a minor penalty can always be awarded
In penal statute maximum sentence for each offence is provided but the matter is within the discretion of the judicial officer awarding sentence to award such sentence within the ceiling prescribed by law as would be commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court s discretion is by legislation fettered
1299 A D Therefore if any particular penalty is specified as tentatively proposed in the second show cause notice the disciplinary authority after taking into consideration the representation made by the delinquent government servant can award that penalty or any lesser penalty and in so doing article 3112 will not be violated
In fact this leaves open a discretion to the punishing authority which accords with reason fair play and justice
1251 B C Hukam Chand Malhotra vs Union of India1959 Suppl
1 SCR 892 followed
Union of India and Ors
vs K Rajappa Menon1969 2 SCR 343 explained
Supreme Court while exercising its extraordinary jurisdiction under Act
136 of the Constitution is not bound to set aside the order of the High Court directing reinstatement of the employee when he has succeeded in the two courts below
Quantifying the backwages and the costs would accord with the demands of social justice reason and fairplay
1252 D E Punjab Beverages P Ltd vs Suresh Chand and Ors   followed