Case: Hukum Chand Malhotra Vs. Union Of India

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. 9. We turn now to certain other decisions on which learned counsel for the appellant has relied. They are: Jatindra Nath Biswas v. R. Gupta, 58 Cal WN 128; (AIR 1954 Cal 383 ); Dayanidhi Rath v. B. S. Mohanty, (S) AIR 1955 Orissa 33 and Lakshmi Narain Gupta v. A. N. Puri, AIR 1954 Cal 535. In the case of Jatindra Nath Biswas 58 Cal WN 128: (AIR 1954 Cal 383 ) 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 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. 10. 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 Raths case, (S) AIR 1955 Orissa 33, proceeded on the footing that if the punishment that is tentatively 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 punishment. What happened in that case was that the show cause notice stated that in view of the Enquiring Officers 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 or 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 Guptas case. AIR 1954 Cal 335 , 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 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 Art. 311(2) 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. 11. 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 Art. 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. 12. 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 II.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. 11 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 the appellant and that was the basis for the order of removal passed against him.

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

Explanation:
0[ds]It is obvious, and Art.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 issuedWe 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 himhave 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 Art. 311(2) of the Constitution. The appellant had a reasonable opportunity of showing cause against the action proposed to be taken in regard to himIn 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. 11 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 the appellant and that was the basis for the order of removal passed against him.