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

The respondent Bimal Kumar Pandit was serving appellant No. 1, the State of Assam, as an Extra-Assistant Commissioner, Shillong. on December 11, 1959, the second appellant, the Chief Secretary to the Government of Assam, served on the respondent a charge-sheet containing eleven specific charges and called upon him to show cause why he should not be dismissed from service or otherwise Punished under R. 55 of the Civil Services (Classification, Control and Appeal) rules read with Art. 311 of the Constitution. The said notice further informed the respondent that the Governor of Assam had been pleased to authorise the Commissioner of Plains Division, Assam, to conduct the enquiry and to report to appellant No. 2. On January 13,1960 the respondent submitted an elaborate explanation in respect of all the charges. The Commissioner of Plains Division. Assam, then proceeded to hold an enquiry and after considering the evidence adduced before him, he made the report on the 12th April, 1960. In this report the Enquiring officer found that out of the 11 charges drawn up against the respondent, 6 had not been proved and of the remaining 5 charges, two had been fully established-they were charges (7) and (10); and the other three charges-Nos. (i). (2) an (4) had been Partially established. The report made these findings and proceeded to add that the lapses proved did not cast any serious doubt on the honesty and integrity of the delinquent Officer, although the evidence led in respect of charges (1) and (2) proved his inexperience and that led under charges (2) and (4) showed his irresponsibility. The report further stated that in the circumstances, the two charges which deserved consideration for purposes of punishment were charges (7) and (10); and it ended with the recommendation that in view of the limited scope of the charges proved and of the age and experience of the delinquent officer, the withholding of three increments from his pay would meet the ends of justice in this case.2. After this report was received, appellant No. 2 served a second notice on the respondent on the 1st of June, 1960. This notice referred to the disciplinary proceedings held against the respondent and added that the respondent was thereby required under cl. (2) of Art. 311 of the Constitution to submit his explanation if any, why the penalty of removal from service should not be imposed upon him. The notice further stated that a copy of the report of the Enquiring officer in the disciplinary proceedings drawn up against the respondent was enclosed. The respondent was told that he had to submit his explanation through the Commissioner of Plains Division, Assam, on or before June 18, 1960.3. On receiving this notice, the respondents submitted his explanation on June 21, 1960 in respect of the charges which had been held proved by the Endearing officer. After considering the explanation thus submitted by the respondent, the Governor of Assam was pleased to reduce in rank the respondent who was on probation in the Assam Civil Service, Class I to the Assam Civil Service Class II, permanently, with effect from the date he takes over as such. The Governor of Assam further ordered that the respondent will be on probation in the said Class II Service for two years, subject to termination if his work and conduct were not found satisfactory. The respondent was to draw his pay in the minimum of the scale of pay of A.C.S., Class II and his seniority in the cadre would be determined with effect from the date of his joining. This order was made on July 8, 1961.4. The respondent then challenged the validity of this order by a writ petition in the High Court of Judicature at Assam on the 24th August, 1961. One of the points urged by him was that he had not been given a reasonable opportunity of showing cause against the action which was ultimately taken against him under Art. 311(2); and he urged that the contravention of Art. 311(2) rendered the impugned order invalid. He urged other contentions also, but those have been rejected by the High Court, while his main point under Art. 311(2) has been upheld. In the result, the High Court has allowed the writ petition and issued a mandamus directing the appellants not to give effect to the order dated 8th July, 1961. It is against this order that the appellants have come to this Court by special leave.

Reasoning:
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.