Case: State Of Assam &amp; Another Vs. Bimal Kumar Pandit

in question. In fact, even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicated. The Orissa High Court had struck down the order of dismissal on the ground that the notice was defective and so, the provisions of Art. 311 (2) had been contravened. This Court in reversing the conclusion 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 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.14. There are, however, some decisions which seems to lend support to Mr. Chatterjees argument and it is, therefore, necessary to examine them. In the case of The State of Andhra v. Ramayya Suri, AIR 1957 Andhra 370 the Andhra Pradesh High Court has held that "under Art 311(2) the authority concerned should necessarily in its order requiring the civil servant to show cause give not only the punishment proposed to be 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 note justified by the requirements of Art. 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 not 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.15. In Bimal Charan Mitra v. State of Orissa (5) AIR 1957 Orissa 184 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 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 Art. 311 (2)." This decision seems to suggest that in issuing the notice under Art. 311(2) the appropriate authority must, besides serving the copy of the enquiring officers report on the government servant supply the said officer the finding of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion this view is erroneous.16. The same comment falls to be made about another decision of the said High Court in Krishan. Gopal Mukherjee v. The State, AIR 1960 Orissa 37.17. The last decision to which reference must be made in the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley AIR 1954 Bom 351 . In this case, Chief Justice Chagla has observed that under Art. 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, the statement must be read along with the conclusion of the High Court and so read it would clearly show that what the Chief Justice intended to lay down was that the findings recorded in the enquiry report which constitute the ground on which the Government proposes to take action must be communicated to the public servant. Therefore, this decision does not support Mr. Chatterjees argument that the notice issued under Art. 311 (2) 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.18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 ownother 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 or not. If the findings in the report are against the 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 why disciplinary actions 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 the 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 inseems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authoring 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 Art. 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 Art. 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 view that in the present case, he had no reasonable opportunity as required by Art. 311order to give the delinquent officer a reasonable opportunity to show cause under Art. 311 (2), it is essential that the conclusions 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 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 Art. 311(2) justify the view that the failure to make such a statement amounts to contravention of Art. 311(2).In dealing with this point we must bear in mind the fact that a cony 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 theirdoes 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 this Court in Khem Chands case, 1958 SCR 1080: (AIR 1958 SC 300  ) supports Mr. Chatterjees contention.In Bimal Charan Mitra v. State of Orissa (5) AIR 1957 Orissa 184 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 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 Art. 311 (2)." This decision seems to suggest that in issuing the notice under Art. 311(2) the appropriate authority must, besides serving the copy of the enquiring officers report on the government servant supply the said officer the finding of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). 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 v. The State, AIR 1960 Orissa 37.The last decision to which reference must be made in the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley AIR 1954 Bom 351  . In this case, Chief Justice Chagla has observed that under Art. 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, the statement must be read along with the conclusion of the High Court and so read it would clearly show that what the Chief Justice intended to lay down was that the findings recorded in the enquiry report which constitute the ground on which the Government proposes to take action must be communicated to the public servant. Therefore, this decision does not support Mr. Chatterjees argument that the notice issued under Art. 311 (2) 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.