Case: State Of Orissa Vs. Bidyabhujshan Mohapatra

1. Bidyabhushan Mohapatra - hereinafter called the respondent was a permanent nongazetted employee of the State of Orissa in the Registration Department and was posted at the material time as a Sub-Registrar at Sambalpur. Information was received by the Government of the State of Orissa that the respondent was habitually receiving illegal gratification and that he was possessed of property totally disproportionate to his income. The case of the respondent was referred by order of the Governor of Orissa to the Administrative Tribunal constituted under R. 4 (1) of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 framed in exercise of the powers conferred by Art. 309 of the Constitution. The Tribunal held an enquiry in the presence of the respondent on two charges - (1) relating to five specific heads charging the respondent with having received illegal gratification, and (2) relating to possession of means disproportionate to his income as a Sub-Registrar. The Tribunal held that there was reliable evidence to support four out of the five heads in the first charge of corruption end also the charge relating to possession of means disproportionate to the income and recommended that the respondent be dismissed from service. The finding of the Tribunal was tentatively approved by the Governor Orissa and the respondent was called upon to show cause why he should not be dismissed from service as recommended. The respondent made a detailed submission in rejoinder and contended, inter alia, that the Tribunal held the enquiry in a manner contrary to rules of natural justice. After consulting the Public Service Commission the Governor of Orissa by order dated September 26, 1957 directed that the respondent be dismissed from service. The respondent then applied to the High Court of Orissa by petition under Arts. 226 and 227 of the Constitution, inter alia, for a writ quashing the entire proceedings before the Tribunal beginning from the charges and culminating in the order of dismissal and directing the State of Orissa to forbear from giving effect to the order of dismissal dated September 26, 1957 and for a declaration that he be deemed to have continued in his post as Sub-Registrar.2. In support of his petition the respondent submitted that the order of dismissal was void because the rules relating to the holding of an enquiry against non-gazetted public servants, called the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 - were discriminatory, and that in holding the enquiry against him the Tribunal had violated the rules of natural justice. Following their view in Dhirendranath Das v. State of Orissa, ILR (1958) Cut 11: (AIR 1958 Orissa 96), the High Court held that the impugned rules were discriminatory and on that account void, and that the respondent was entitled to a writ declaring that the order of dismissal was inoperative. As, however, the case of Dhirendranath Das, ILR (1958) Cut 11: (AIR 1958 Orissa 96), was carried in appeal to this Court, the High Court proceeded to deal with the second submission. The High Court held that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated because it had failed to "observe the rules of natural justice", but they held that the findings on charges 1(c), 1(d) and charge (2) were supported by evidence and were not shown to be vitiated because of failure to observe the rules of natural justice. The High Court accordingly directed that if this Court disagreed with the view in Dhirendranath Dass case, ILR (1958), Cut 11: (AIR 1958 Orissa 96) the findings in respect of charges 1 (a) and 1(e) be set aside as being opposed to the rules of natural justice but the findings in respect of charges 1 (c) and 1(d) and Charge (2) need not be disturbed", and "that it would then be left to the Government to decide whether, on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice."3. The State of Orissa has appealed to this Court with certificate of fitness granted by the High Court under Art. 132 of the Constitution The High Court in Dhirendranath Dass case, ILR (1958) Cut 11: (AIR 1958 Orissa 96) had held that at the material time there were in operation two sets of rules governing enquiries against non-gazetted public servants: (i) the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 (called the Tribunal Rules) and (ii) the Civil Services (Classification, Control and Appeal) Rules, 1930 with the subsidiary rules framed thereunder such as the Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935 (collectively called the Classification Rules), and these two sets of rules provided for different punishments and justified commencement of proceedings for different reasons, and whereas there was a right of appeal against the order of a departmental head imposing punishment, under the Classification Rules there was no right of appeal against the order of the Governor, imposing punishment, under the Tribunal Rules. The High Courtmain difference between the two sets of rules arises from (1) the nature of the punishment proposed, and (2) the right of appeal. Under the Tribunal Rules the findings of the Tribunal including the proposed punishment are submitted to Government and are in the nature of a recommendation which the Government may or may not accept. But the Government are bound to consult the public Service Commission before they pass final orders. Government have the power to impose the penalty of compulsory retirement under sub-r. (2) of R. 8 of the Tribunal Rules in addition to the other penalties, described in R. 49 of the Classification Rules. The right of appeal is expressly barred by sub rule (3) of R. 9. The Tribunal Rules do not say that every case against a Government servant, whether gazetted or non-gazetted in which the acts of misconduct alleged are any of those described in sub-rule (1) of R. 4 of the said Rules, should be invariably referred to the Tribunal. Thus, if there are two non- gazetted Government servants both of whom have committed identical acts of misconduct such as failure to discharge duties properly it is left to the unfettered discretion of the Government to refer the case of one of them to the Tribunal for enquiry under the said rules, and to allow the enquiry against the other public servant to be held departmentally by his superior officers under the provisions of the Classification Rules. The former public servant will have no right of appeal, but he will have the satisfaction of his case being enquired into not by his immediate superiors, but by an independent authority, namely, the Member, Administrative Tribunal, whose recommendation will be subjected to further scrutiny by the Public Service Commission and the final authority to pass any order of punishment will be the Government. The latter public servant however, though denied the advantage of having his case investigated by independent authorities, is given a statutory right of appeal. The procedure laid down in the Classification Rules may be described as the normal procedure for taking disciplinary action against the Government servants, whether gazetted or non-gazetted; and the procedure laid down in the Tribunal Rules may be described as a drastic procedure.The High Court then observed after considering the arguments advanced at the BarThat so far as non-gazetted Govt. servants are concerned the provisions of the Tribunal Rules are less advantageous and more drastic than those of the Classification Rules and the conferment of an unfettered discretion on the Executive to apply either of these rules for the purpose of taking disciplinary action against a non-gazetted Government servant would offend Art. 14 of thethe High Court quashed the order of dismissal passed against the public servant concerned. Against the order of the High Court, an appeal was filed to this Court. In this Court counsel for the State of Orissa in that appeal made no attempt to challenge the correctness of the decision of the High Court, on the question of discrimination. The Tribunal Rules and the Classification Rules were not even included in the Books prepared for the use of this Court at the hearing. The only argument in support of the appeal advanced by counsel for the State was that the Classification Rules were not in operation when enquiry was directed against the delinquent public servant and the only rules under which the enquiry could be directed were the Tribunal Rules, and therefore by directing an enquiry against the delinquent public servant the guarantee of the equal protection clause of the Constitution was not violated. This Court held that if two sets of rules were simultaneously in operation at the material time, and by order of the Governor, enquiry was directed against the respondent under the Tribunal Rules which were "more drastic" and "prejudicial to the interests of the public servant", a clear case of discrimination arose, and the order directing the enquiry against the public servant and the subsequent proceedings were liable to be struck down as infringing Art. 14 of the Constitution. This Court accordingly dismissed the appeal of the State. An application for review of judgment was then filed by the State, and it was contended that the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935 were not statutory rules and they did not constitute "law" and that there had been some misapprehension about "the submission made at the Bar which had led to an apparent error on the face of the record." Even at that stage it was not urged that the view taken by the High Court that the Tribunal Rules were "more drastic and prejudicial to a public servant against whom an enquiry was directed to be made" could not on a true interpretation of the rules be sustained. This Court rejected the application for review of judgment.

Reasoning:
8. Under the Classification Rules there is a right of appeal from an order imposing a penalty passed by a departmental head to the latters superior whereas there is no such right of appeal against the order passed by the Governor imposing penalty upon a public servant. But this also cannot be regarded as a ground sustaining a plea of unlawful discrimination.The High Court has held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge (2). In respect of charge 1 (b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed." The recommendation of the Tribunal was undoubtedly founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice." It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1 (a) and 1 (e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1 (a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Art. 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanor established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable" the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction of the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.