Case: Hukum Chand Malhotra Vs. Union Of India

2. The short facts are these. The appellant stated that he joined permanent Government service, on April 4, 1924. In 1947, before partition, he was employed as Assistant Secretary, Frontier Corps of Militia and Scouts in the then North -Western Frontier Province, under the administrative control of the External Affairs Department of the Government of India. The appellant stated that the post which he held then was a post in the Central Service, Class II. After partition, the appellant opted for service in India and was posted to an office under the Ministry of Commerce in the Government of India in October, 1947. In December, 1949 he was transferred to the office of the Chief Controller of Imports, New Delhi, to clear off certain arrears of work. In August 1951 he was posted as Deputy Chief Controller of Imports, Calcutta, and continued to work in that post till September, 1952. He then took four months leave on average pay and on the expiry of his leave on January 24, 1953, he was transferred as Section Officer in the Development Wing of the Ministry of Commerce. The appellant thought that the order amounted to a reduction of his rank and he made certain representations. As these representations bore no fruit, he applied for leave preparatory to retirement on February 6, 1953. In that application the appellant stated:Normally I am due to retire in April 1956 but I find it difficult to reconcile myself to the new conditions of service under which I am now placed to work. I find that I would not be wasting only myself but I would also not be doing full justice to the interest of my Government and country in my present environment. Under the circumstances, I pray that I may be permitted to retire from the 1st May 1953On February 14, 1953, the appellant amended his leave application and said that he had been informed by the Administrative Branch of the Development Wing that the question of permission to retire was under consideration, because of some difficulty with regard to the inclusion in the service of the appellant the period during which he held the post of Assistant Secretary, Frontier Corps; therefore he said that he might be granted leave on full average pay for four months with effect from February 15, 1953, if the decision to give him permission to retire was likely to be postponed beyond May 1, 1953. He amended his leave application by making the following prayer:Leave may be sanctioned for four months from the 15th February, 1953 or up to the date from which I am permitted to retire whichever may be earlierOn March 10, 1953, the appellant was informed that he could not be allowed to retire at that stage, but the Ministry had agreed to grant him leave from February 16, 1953 to April 30, 1953. The appellant then went on leave and on February 1953, he wrote to Government to say that he was contemplating to join the service of Messrs. Albert David and Co. Ltd., Calcutta, and for that purpose he was accepting a course of training in that Company for two months. In April, 1958, the appellant accepted service under Messrs. Albert David and Co. Ltd., and he wrote to Government to that effect on April 6, 1953. On June 16, 1958, the appellant was charged with having violated R. 15 of the Government Servants Conduct Rules and Fundamental Rule 11. Rule 15 of the Government Servants Conduct Rules states, inter alia, that a Government servant may not without the previous sanction of Government engageI am directed to say that the Enquiry Officer appointed to enquire into certain charges framed against you has submitted his report; a copy of the report is enclosed for your information2. 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. Before he takes that action, he desires to give you an opportunity of showing cause against the action proposed to be taken. Any representation which you may make in that connection will be considered by him before taking the proposed action. Such representation, if any, should be made, in writing, and submitted so as to reach the undersigned not later than 14 days from the receipt of this letter by youPlease acknowledge receipt of this letterJoint Secretary to the Government of India3. The appellant then moved the Punjab High Court by a petition under Art. 226 of the Constitution in which his main contentions were (a) that he had no opportunity of showing cause against the action proposed to be taken in regard to him within the meaning of Art. 311(2) of the Constitution and (b) that he had asked for leave preparatory to retirement and accepted service under Albert David and Co. Ltd., in the bona fide belief that Government had no objection to his accepting such private employment. Dulat J., who dealt with the petition in the first instance, held against the appellant on both points. He found that there was no contravention of the provisions of Art. 311(2) of the Constitution and on the second point, he held that on the facts admitted in the case there was no doubt that the appellant had accepted private employment in contravention of the rules governing the conditions of his service and there was little substance in the suggestion of the appellant that he had no sufficient opportunity to produce evidence.

Reasoning:
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.