IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 WA.No. 1319 of 2009() --------------------- AGAINST THE JUDGEMENT IN OP.18977/2002 Dated 01/01/2009 .................... APPELLANT(S): RESPONDENTS: -------------------------- 1. UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, (MINISTRY OF HOME AFFAIRS), VSSC, THUMBA, THIRUVANANTHAPURAM 695 022. 3. THE DEPUTY INSPECTOR GENERAL, OFFICE OF THE DIG (CISF), D.O.S.,HEADQUARTERS, ANTHARIKSH BHAVAN, NEW BEL ROAD, BANGALORE-94. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR GENERAL RESPONDENT(S): PETITIONER: -------------------------- M.A.ANTHONY, AYYANGAIL HOUSE, CITY GARDEN, P.O.PATTIKKAD, THRISSUR DISTRICT, KERALA-680 652. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. ````````````````````````````````````````````````````````````` W.A. No. 1319 of 2009 ````````````````````````````````````````````````````````````` Dated this the 26th day of May, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J.Chelameswar, C.J. Aggrieved by the judgment dated 01.01.2009 in O.P.No.18977/2002, the Union of India and two others, the respondents therein, preferred the instant appeal. The sole respondent herein, who was the petitioner in the above mentioned original petition, was a member of the Central Industrial Security Force. He filed the above mentioned original petition with the following prayers:- “ (i) To issue a writ of certiorari or other appropriate writ order or direction to quash Exts.P4, P6 & P8; (ii) To issue a writ of mandamus or other appropriate writ order direction directing the respondents to revoke the order of dismissal and order to reinstate the petitioner to the services.” W.A. No.1319/2009 : 2 : 2. By an order dated 10.01.2002, marked as Ext.P6 in the original petition, the respondent was dismissed from Government service with effect from 10.01.2002 AN. Such an order was preceded by a departmental enquiry on specific charges. 3. Aggrieved by the above mentioned order of dismissal from service, the respondent carried the matter in a departmental appeal. Ext.P8 dated 22.03.2002 is the communication by which the respondent was informed that his appeal was rejected. Hence, the writ petition. 4. From the judgment under appeal, it appears that the respondent raised three contentions. The first and the third contentions did not find favour with the learned Judge, who heard the matter. However, the second contention found favour with the learned Judge. The contention is that the respondent ought to have been given a further opportunity of making a representation against the proposed punishment, even if the appointing authority came to the W.A. No.1319/2009 : 3 : conclusion that the material gathered in the enquiry fully established the charges levelled against the respondent and such charges justify the imposition of the penalty of dismissal from service. Accepting the said submission, by the judgment under appeal, the learned Judge held as follows:- “ 3. But I find considerable merit in the second contention of the petitioner to the effect that before passing an order of punishment the petitioner was not afforded an opportunity of being heard on the proposed punishment. In Ext.P3 there is no mention of any proposed punishment. It confines merely to the findings of the enquiry officer. Ext.P6 order refers only to Ext.P3 and no other subsequent communication giving the petitioner an opportunity to show cause against the proposed punishment. Straight away, after agreeing with the findings of the enquiry officer, the disciplinary authority had proceeded to W.A. No.1319/2009 : 4 : impose punishment of the dismissal from service on the petitioner, without giving a chance to the petitioner to represent against the punishment. Going by the decisions of the Supreme Court on the subject this is clearly unsustainable. The Supreme Court has held that a delinquent employee is entitled to a chance to represent against the proposed punishment in addition to a chance to represent against the findings in the enquiry. Therefore Ext.P6 to that extent is unsustainable. Consequently Ext.P8 also is unsustainable to that extent.” Hence the appeal. 5. The learned Assistant Solicitor General, Sri.P.Parameswaran Nair, appearing for the appellants, argued that the conclusion reached by the judgment under appeal is not tenable in law in view of the amendment of the Constitution by the Constitution (Forty-second Amendment) Act. The learned counsel for the appellants submitted that the question is no more res integra and squarely covered by W.A. No.1319/2009 : 5 : the judgment of the Supreme Court reported in Union of India and another Vs. Tulsiram Patel [AIR 1985 SC 1416]. In paragraph 68 of that judgment, Supreme Court, after taking note of the language of Article 311 as it stood prior to the Forty-second Amendment as well as subsequent to the amendment, held as follows:- “ 68. The question which then arises is, “Whether the Constitution (Forty-second Amendment) Act, 1976, which further amended substituted clause (2) of Article 311 with effect from 1st January, 1977, has made any change in the law?” The amendments made by this Act are that in clause (2) that portion which required a reasonable opportunity of making representation on the proposed penalty to be given to a government servant was deleted and in its place the first proviso was inserted, which expressly provides that it is not necessary to give to a delinquent government servant any opportunity of W.A. No.1319/2009 : 6 : making representation on the proposed penalty. Does this affect the operation of the original proviso which, by the Constitution (Forty-second Amendment) Act, became the second proviso? Such obviously was not and could not have been the intention of Parliament. The opening words of the second proviso remain the same except that the word 'further' was inserted after the word 'Provided', because the original proviso by reason of the insertion of another proviso before it became the second proviso. It should be borne in mind that the show- cause notice at the punishment stage was originally there as a result of the interpretation placed by the Judicial Committee in Lall's Case (AIR 1948 SC 121) and by this Court in Khem Chand's Case (AIR 1958 SC 300) upon the phrase “a reasonable opportunity of showing cause against the action proposed to be taken in regard to him”. Clause (2) as substituted by the Constitution (Fifteenth Amendment) Act W.A. No.1319/2009 : 7 : merely reproduced the substance of what was held in Khem Chand's Case. The words which originally found a place in clause (2), “a reasonable opportunity of showing cause against the action proposed to be taken in regard to him”, do not any more feature in clause (2). All that clause (2) now provides is an inquiry in which the government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (2) taken by itself even without the first proviso does not provide, expressly or impliedly, for any opportunity to make a representation against the proposed penalty. After the Constitution (Fifteenth Amendment) Act this second opportunity formed a separate part of clause (2), which part was deleted by the Constitution (Forty- second Amendment) Act. Thus, when the second proviso states in its opening words that “Provided further that this clause shall not apply”, it means that whatever W.A. No.1319/2009 : 8 : safeguards are to be found in clause (2) are wholly taken away in a case where any of the three clauses of the second proviso is attracted. In this connection, the following observations of this Court in the case of Suresh Koshy George Vs. University of Kerala (1969) 1 SCR 317 at pages 326-7 : (AIR 1969 SC 198 at P.204) are pertinent: “There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Art.311 of the Constitution particularly as they stood before the amendment of that article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course.” In Associated Cement Companies Ltd. Vs. T.C.Shrivastava (1984) 3 SCR 361, 369 : (AIR 1984 SC 1227 at P.1230), this Court W.A. No.1319/2009 : 9 : held that “neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary”. Since a right to such opportunity does not exist in law, it follows that the only right which the government servant had to make a representation on the proposed penalty was to be found in clause (2) of Article 311 prior to its amendment by the Constitution (Forty- second Amendment) Act, there is no provision of law under which a government servant can claim this right.” 6. It is obvious from the above extracted portion that an employee of the State has no such right to claim a further opportunity of making representation against the proposed penalty once the appointing authority comes to the conclusion otherwise in accordance with law that the employee is guilty of charges will justify the imposition of penalty, such dismissal, etc. W.A. No.1319/2009 : 10 : In the circumstances, we are of the opinion that the judgment under appeal cannot be sustained. The same is set aside. Writ appeal is allowed. Writ petition stands dismissed. Sd/- (J.CHELAMESWAR, CHIEF JUSTICE) Sd/- (ANTONY DOMINIC, JUDGE) aks/27.05 // True Copy // P.A. To Judge