# 648 SUPREME COURT REPORTS [1963] SUPP. Jj62 ST ATE OF ORISSA Octoh,,, 19 v. BIDY ABHUSHAN MOHAPATRA

- **Citation:** [1963] Supp. 1 S.C.R. 648
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. P. Sinha, P. B. Ga.Jendragadkar, K. N. Wanchoo, K. c. DAS GUPTA, ]. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/648-supreme-court-reports-1963-supp-jj62-st-ate-of-orissa-octoh-19-v-bidy-2736
- **Pages:** 19

## Headnote

Public Servant-Disciplinary proceedinf!s-Two pamlttl
procedures arailable-Rigkt of appeal under one but not under
the otlier-1/ discriminatory-Punishment-·lf conrt can inttrfere wifk-Ori8sa Disciplinary Proceedings (Adtnini.•trative Tri·
bunal) Rn/es; 1951-Civil Sen·ices (C/a.ss(fication, Control
and .4JlPeal) RuleR, 1930-CnMtitution o' lndin Art• • ' •on
311.
'I
'
~ .... ~, .-i "'
The responclcnt, a non-gazetted permanent employee of
the State, was charged with (i) having received- iJlegal gratifi •
cation on five occasions and (ii) heing in possession of propert)'
disproportionate to his income. The Governor referred hi•
case to the Administrative Tribunal constituted under s. 4 I l)
of the Disciplinary Proceeding• (Administrative Tribunal) Rules
which had been framed under Art. 309 of the Constitution. The
Tribunal found four out of the five heads under the first charge
and the second charge proved and recommended the dismissal of
the respondent. The Go\'ernor, after giving the respondent a reasonable opportunity to show cause against the proposed punishment, dismissed him. The respondent filed a \\Tit petition
before the Hivh Court challenging the order of dismissal on
the ground that the Tribunal Rules were discriminatory and
that in holding the enquiry the Tribunal had violated the rules
of natural justice. Following a previous decision the Hith
Court held that the Tribunal Rules were diocriminatory but
since that decision was under appeal before the Supreme Court,
it proceeded to deal with the second ground. It held that the
second charge and only two head• of the first charge were
established and directed the Governor to reconsider whether on
the basis of these charges the punishment of dismissal should be
maintained.
Held, that the Tribunal Ru\es ~cr4 not disGtim.Uiatory,
There were simultaneously in existence two sets of parallel rules,
viz the Tribunal Rules and the Classification Rules and proceeding. could be taken against the respond~nt under either of
them at the discretion of the Governor. But m substance there
I S.C.R.
SUPREME COURT REPORTS
649
is no difference in the procedures prescribed by the tw~ sets of
rules.
Mere adoption of one procedure in preference to another
permissible procedure does not justify an inference of unlawful
discrimination. The fact that under the Classification Rules
there is a right of appeal from an order imposing a penalty
whereas there is no such right of appeal under the Tribunal
Rules against the order passed by the Governor was not a
ground for sustaining the plea of unlawful discrimination.
Sarilar Kapur Singh v. Union of India, (1960] 2 S. C. R.
569 and Jagannath Prasad v. State of U. P., A I. R. 1961 S. C.
1245, followed
State of Orissa v. Dhirendranath Das, A. I. R. ( 1961)
S. C. 1 715, distinguished .
•
HeW., further that the High Court had no power to direct
the Governor to re-consider the question of punishment. The
High Court has only to see whether the constitutional guarantees have been violated; but it is not concerned with the penalty
imposed, provided it is justified by the rules. The reasons
which induce the punishing authority are not justiciable nor
is the penalty open to review by the Court. If the order can
be supported on any finding as to substantial misdemeanour
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 dismissing the public servant.
CIVIL AYPELLATEjURISDICTION: Civil Appeal
No. 213 of 1962.
Appeal from the judgment and order dated
February 17, 1959, of the Orissa High Court, Cut·
tack in O. J.C. No. 216 of 1957.
R. Ganapathy Iyer and P. D. Menon, for the
appellants.
G. B. Pai, B. Parthasarthy, J. B. Dadachanji
and 0. C. Mathur, for the respondent.
1962. October 19. The Judgment of the Court
was delivered by
SHAH, J.--Bidyabhushan Mphapatra-hereinafter called
'the respondent'-was a permanent
1962
State of OriHa
v.
BiJycjhush1n
M4h•P«tr_1
S/uJA, J.
196

## Text

648 SUPREME COURT REPORTS [1963] SUPP.
Jj62
ST ATE OF ORISSA
Octoh,,, 19.
v.
BIDY ABHUSHAN MOHAPATRA
(B. P. SINHA, C. J., P. B. GA.JENDRAGADKAR,
K. N. WANCHOO, K. c. DAS GUPTA
and ]. c. SHAH, JJ.)
Public Servant-Disciplinary proceedinf!s-Two pamlttl
procedures arailable-Rigkt of appeal under one but not under
the otlier-1/ discriminatory-Punishment-·lf conrt can inttrfere wifk-Ori8sa Disciplinary Proceedings (Adtnini.•trative Tri·
bunal) Rn/es; 1951-Civil Sen·ices (C/a.ss(fication, Control
and .4JlPeal) RuleR, 1930-CnMtitution o' lndin Art• • ' •on
311.
'I
'
~ .... ~, .-i "'
The responclcnt, a non-gazetted permanent employee of
the State, was charged with (i) having received- iJlegal gratifi •
cation on five occasions and (ii) heing in possession of propert)'
disproportionate to his income. The Governor referred hi•
case to the Administrative Tribunal constituted under s. 4 I l)
of the Disciplinary Proceeding• (Administrative Tribunal) Rules
which had been framed under Art. 309 of the Constitution. The
Tribunal found four out of the five heads under the first charge
and the second charge proved and recommended the dismissal of
the respondent. The Go\'ernor, after giving the respondent a reasonable opportunity to show cause against the proposed punishment, dismissed him. The respondent filed a \\Tit petition
before the Hivh Court challenging the order of dismissal on
the ground that the Tribunal Rules were discriminatory and
that in holding the enquiry the Tribunal had violated the rules
of natural justice. Following a previous decision the Hith
Court held that the Tribunal Rules were diocriminatory but
since that decision was under appeal before the Supreme Court,
it proceeded to deal with the second ground. It held that the
second charge and only two head• of the first charge were
established and directed the Governor to reconsider whether on
the basis of these charges the punishment of dismissal should be
maintained.
Held, that the Tribunal Ru\es ~cr4 not disGtim.Uiatory,
There were simultaneously in existence two sets of parallel rules,
viz the Tribunal Rules and the Classification Rules and proceeding. could be taken against the respond~nt under either of
them at the discretion of the Governor. But m substance there
I S.C.R.
SUPREME COURT REPORTS
649
is no difference in the procedures prescribed by the tw~ sets of
rules.
Mere adoption of one procedure in preference to another
permissible procedure does not justify an inference of unlawful
discrimination. The fact that under the Classification Rules
there is a right of appeal from an order imposing a penalty
whereas there is no such right of appeal under the Tribunal
Rules against the order passed by the Governor was not a
ground for sustaining the plea of unlawful discrimination.
Sarilar Kapur Singh v. Union of India, (1960] 2 S. C. R.
569 and Jagannath Prasad v. State of U. P., A I. R. 1961 S. C.
1245, followed
State of Orissa v. Dhirendranath Das, A. I. R. ( 1961)
S. C. 1 715, distinguished .
•
HeW., further that the High Court had no power to direct
the Governor to re-consider the question of punishment. The
High Court has only to see whether the constitutional guarantees have been violated; but it is not concerned with the penalty
imposed, provided it is justified by the rules. The reasons
which induce the punishing authority are not justiciable nor
is the penalty open to review by the Court. If the order can
be supported on any finding as to substantial misdemeanour
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 dismissing the public servant.
CIVIL AYPELLATEjURISDICTION: Civil Appeal
No. 213 of 1962.
Appeal from the judgment and order dated
February 17, 1959, of the Orissa High Court, Cut·
tack in O. J.C. No. 216 of 1957.
R. Ganapathy Iyer and P. D. Menon, for the
appellants.
G. B. Pai, B. Parthasarthy, J. B. Dadachanji
and 0. C. Mathur, for the respondent.
1962. October 19. The Judgment of the Court
was delivered by
SHAH, J.--Bidyabhushan Mphapatra-hereinafter called
'the respondent'-was a permanent
1962
State of OriHa
v.
BiJycjhush1n
M4h•P«tr_1
S/uJA, J.
1962
SttJte •f Oriss5
v.
Bidyabhushan
Mohapatra
Sh•h, J.
650
SUPREME COURT REPORTS [1963] SUPP.
non-gazetted 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' and 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. of
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
te 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 res·
pondent then applied to the High Court of Orissa by
petition under Arts. 226 and 227 of the Constitutiov,
inter alia, for a writ quashing the "entire proceed·
ings before the Tribunal beginning from the charges
and culminating in the order of dismissal" and directt
ing the State of Orissa to forbear from giving e:ffecto the order of dismissal dated September 26, 1957,
l S.C.R. SUPREME COURT REPORTS
651
and for a declaration that he be deemed to have continued in his post as Sub-Registrar.
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 aizainst
non-gezetted public servants, called the Disciplinary
Proceedings (Administrative Tribunal) Rules, 1951were 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('), 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(') was carried in appeal to this Court, the Hich
Court proceeded to deal with the second submission.
The High Court held that the findings of the Tribu·
nal on charges l(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 l(c}, l(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
Dhirendranath Das' s case('), "the findings in respect
of charges l(a) and l(e) be set aside as being opposed
to the rules of natural justice but the findings in res·
pect of charges l(c) and l(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".
.
"T~e 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 Das's case(') had held that at the
material time there were in operation two sets of
(I) I. L. R. (1958) Cuttack 11,
19{2
St•ll ttf Oriss.1
Y.
Bidμbh•slutn
Mof;.p.lro
Sh<h, J.
1962
Sl4t1 of Oriss•
v
/JiJJ.iltushan
M.olt.p.tr•
Sia,/.
652 SUPREME COURT REPORTS [1963] SUPP.
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 Orisrn
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 proceedmgs 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 Court observed "the
main 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 < nd 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
l S.C.R.
SUPREME COURT REPORTS
653
Tribunal for enquiry under the said
rule~, and to
allow the enquiry against the other public servant to
be h ~Id dep:i.rtmentally by his superior Officers under
the provisions of the Classification Rules. The former
publi: 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 a'uthority, 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
Bar "that so far as non-gazetted Government 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 the Constitution". Accordingly the 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
1962
Stou of Orissa
v.
Bid1ahhush1n
Moupctr•
Shnh. J.
Slr1• ef OtiisO
v.
lfid)althushan
M•haJT••ra
Sh•h, J.
654 SUPREME COURT REPORTS [1963) SUPP.
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 respon·
dent 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 as the Bihar & Orissa Subordinate
Services Discipline & 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.
In this appeal copies of the Bihar & Orissa
Subordinate Services Discipline
& Appeal Rules,
1935 and the Disciplinary Proceedings (Administra·
tive Tribunal) Rules, Hl51 are nroduced. Under the
latter rules which were referr~d to as the Tribunal
Rules 'misconduct in the discharge of official
dutie~
1 S.C.R.
SUPREME COURT REPORTS
655
is defined in Rule 2(c), 'failure to discharge duties
properly' in Rule 2(d) and 'personal immorality' in
Rule, 2(e). By Rule 3(4) the Tribunal constituted by
the Governor is authorised subject to the directions
of the Governor to co-opt an Assessor to assist it, such
Assessor being a departmental officer higher in rank
in the department to the official charged.
By Rule 4
the Governor is authorised to refer to the Tribunal
cases relating to public servants in respect of matters
involving-
( a) misconduct in the discharge of official
duties;
(b) failure to discharge duties properly;
(c) irremediable general inefficiency in a public
servant of more than ten years' standing ;
and
(d) personal immorality.
By Rule 7 the Tribunal is required to make such
enquiry as may be deemed appropriate and in conducting the enquiry the Tribunal is to be guided by
rules of equity and natural justice and not by formal
rules relating to procedure and evidence. Clause (3)
of Rule 7 provides that before formulating its recommendations the Tribunal shall give a summary of the
charges aP"ainst the official and shall if he is not
absconding :ir untraceable, give him an opportunity
orally or in writing, within the time to be specified
by the Tribunal to offer his explanation in respect
of the charges. Rule 8 provides that after completing its proceedings the Tribunal shall make a record
of the case in which it shall state the charges, the
explanation and its own findings, and it shall, where
satisfied, that punishment be imposed, also formulate
its recommendations about the punishment.
Rule 9
provides that the Governor may, after considering the
recommendations of the Tribunal, pass such order of
1962
State of OTissa
v.
Bidyabhushan
Mahapatra
Shah, J.
1'62
Sltl(• of01in1J
v.
B iJy•ihusluit•
Muh•P•lra
Shoh, J.
656 SUPREME COURT REPORTS [1963] SUPP·
punishment as he may deem appropriate. By cl. (3)
of Rule 9 an appeal against the order of the Governor
is expressly prohibited.
By cl. (iii) of Ruic l of the
Bihar and Orissa Subordinate Services Discipline &
Appeal Rules, 1935 it is provided that the Rules
shall apply to all members of Subordinate Services
under the administrative control of the Government
of Bihar and Orissa, except those for whose appointments and conditions of employment special provision
was made by or under any law for the time being in
force.
By Rule 2 the penalties specified in the order
may be imposed "for good and sufficient reasons".
The procedure to be followed before an order of
dismissal, removal or reduction is passed, is the same
as is set out in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It is further
directed that in drawing up proceedings and conducting departmental enquiries, the instructions contained
in rr. 172 to 178 of the Bihar and Orissa Board's
Miscrllaneous Rules, 1928, are to be followed except
where more detailed instructions have been framed by
the Department concerned. Rule 4 of the Rules
provides a right to appeal to every member of a
Subordinate Service, to the authority immediately
superior to the authority imposing any of the penalties
specified in Rule 2 and terminating his app::lintment
otherwise than on the expiry of the period of his
appointment or on his reaching the age of superannuation. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules which is referred to
in the note to Rule 2, in so far as it is material, provides for information being given in writing of the
grounds on which it is proposed to take action against
the public servant and to afford him an ad~quate
opportunity of defending himself: the grounds on
which it is proposed to take action are to be reduced
to the form of a definite charge or charges, which
have to be communicated to the person charged
together with a statement of any allegation on which
each charge is based and of any other circumstances
l S.C.R. SUPREME COURT REPORTS
657
which it is proposed to take into consideration in
passing orders on the case : the public servant concerned has within a reasonable time, to put in his
written statement of his defence and to state whether
he desires to be heard in person; if he so desirrs, or if
the authority concerned so directs, an oral inquiry is
to be held, at which inquiry oral evidence as to such
of the allegations as are not admitted is to be led and
the person charged is entitled to cross-examine the
witnesses, to give evidence in person and to have such
witnesses called as he may desire, provided that the
officer conducting the inquiry may, for special and
sufficient reasons to be recorded in writing, refuse to
call a witness. Rule 55 further provides that the
proceedings shall contain a sufficient record of the
evidence and a statement of the findings and the
grounds thereof and that all or any of the provisions
of the rule, may in exceptional cases, for special and
sufficient reasons to be recorded in writing, be waived
where there is difficulty in observing the requirements
of the rule and those requirements can be waived
without injustice to the person charged.
It is manifest that whereas detailed provisions
are made in the Tribunal Rules as to the grounds on
which an enquiry may be directed against a public
servant for misconduct in the discharge of official
?uties'. failure to disch_arge
du~ies properly, general
me~c1ency or personal 1mmorahty, under the Classi-
~catJon Rules ~or 'good and sufficient reasons' penalties may be imposed. The expression used in the
Classification _Rules i~ somewhat vague, but whatever
?ther ground It may mclude, it does in our judgment
Include charges described in Rule 4 of the Tribunal
Rules. The p_rocedure to be . followed in the enquiry
und~r the T:1b~nal Rules is not described in any
detail. But It 1s ~!early indicated, that the public
serv_ant '!lust be given a summary of the charges
aga1'?st ~1m and he. must be given an opportunity to
submit his ex:planat10n orally or in writing, in respect
1962
Stat1 of Ori.Ila
v.
Bid71JbAwhan
Mo/iopatro
Shah, J.
l!Jli2
State of Orissa
v.
Bitlyabhushan
Mohapatra
Shah, J.
658 SUPREME COURT REPORTS [1963] SUPP.
of the charges, and that the Tribunal must in holding
the enquiry be guided by rules of natural justice and
equity,
in the matter of procedure and evidence.
The procedure prescribed by Rule 55 of the Civil
Services (Classification, Control and Appeal) Rules
which is assimilated by virtue of the note under Rule
2 into the Classification Rules, is set out in greater
detail, but is in substance not different from the proce·
dure under Rule 7 or the Tribunal Rules.
It is true that the Tribunal Rules do not set out
the purushments which may be imposed whereas the
Classification Rules set out the various punishments
such as censure, withholding of increments or promo·
tion, including stoppage at an efficiency bar, reduc·
tion to a lower post or time-scale or to a lower stage
in a time·scale, recovery from pay of the whole or
part of any pecuniary Joss caused to Government by
negligence or breach of order, fine, suspension, remo·
val from the Civil Service, which does not disqualify
from future employment and dismissal from the Civil
Service which ordinarily disqualifies from future
employment. But failure to enumerate the penalties which may be imposed also does not indicate any
variation between the Tribunal Rules and the Classi·
fication Rules.
Rule 2 of the Classification Rules
merely enumerates the diverse punishments which may
be imposed. This list is exhaustive, and no penalties
other than those enumerated are ever imposed upon
delinquent public servants. Under the Tribunal Rules
there is no enumeration of penalties, but it is left
to the Governor in his discretion, after considering the
report of the Tribunal to select the appropriate punishment having regard to the gravity of the delinquency.
This Court in Sardar Kapur Singh v. The
Union of India(') has held that even if the procedure
prescribed under a particular method adopted for
enquiry is more detailed than that prescribed by Rule
55 of the Civil Services (Classification, Control and
(I) [I960J 2 S.C.R, 569.
1 S.C.R.
SUPREME COURT REPORTS
659
Appeal) Rules, if in accordance with both the sets of
rules notice has to be given of charges and the mate·
rials on which the charges are sought to be sustained
and if the public servant so desires he can demand an
oral hearing and examination of witnesses, it cannot
be said that there is any discrimination.
In Sardar
Kapur Singh's case(') it was contended that an enquiry under the procedure prescribed by Public Servants (Inquiries) Act, 1850 was void as discriminatory
when an enquiry could have been made under the
procedure prescribed by rule 55 of the Civil Services
(Classification, Control
and Appeal) Rules. This
Court held that the procedure under Rule 55 of the
Civil Services (Classification, Control and Appeal)
Rules was described in terms elastic, but the procedure under the Public Servants (Inquiries) Act, 1850
not being substantially different, an enquiry directed
under the latter procedure and not under Rule 55 of
the Civil Services (Classification, Control and Appeal)
Rules did not result in any discrimination leading to
the invalidation of proceedings started against the
public servant under the Public Servants (Inquiries)
Act, 1850. It was observed in that case that in the
absence of proof of any prejudice to the public servant
concerned, mere adoption of one procedure in preference to another permissible procedure will not justi·
fy an inference of unlawful discrimination.
Under the Classification Rules there is a right
of appeal from an order imposing a penalty passed
by a depart~ental head. to the latter's superior
whereas there 1s no such nght of appeal against the
order l?assed by the Gove~nor imposing penalty upon
a pubhc servant .. ~ut this also cannot be regarded
a;; a ground sustammg a plea of unlawful discrimination .. In Jaganrwth Pra:sad y. State of p. P.('), the
question whether an enqmry d1rected agamst a public
s~l>'.ant under th~ Rules of the State of Uttar Pradesh
s1m1!ar to the Onssa Tribunal Rules which provided
no nght of appeal from the order of the Governor
01 Cll60J 211. a. R, 569.
c2i [19olJ 1 s. a. a. u1.
1'i2
Stat1 of Oriss!J
v.
Bidy•bhusll4n
Mfl~apotrd
Shah, J.
1962
Stat1 of Orissa
v.
Bidyabkushan
Mo~apatra
Shah, .I.
660 SUPREME COURT REPORTS [1963] SUPP.
imposing punishment and not under Rules similar
to the Orissa Classification Rules which provided a
right of appeal against an order dismissing a public
servant in the employment of the State of Uttar
Pradesh, was discriminatory fell to be considered, and
it was held that the enquiry under the Tribunal
Rules was not discriminatory. The public servant
concerned in that case was a pohce officer against
whom an enquiry was commenced before the Constitution, which resulted after the commencement of
the Constitution in an order of dismissal. The enquiry
against the public servant was directed under the
U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 194 7 by a Tribunal appointed by the
Governor of Uttar Pradesh.
At this tim·e there were
in operation also the U. P. Police Regulations which
were framed under the Indian Police Act, which
authorised the ('.overnor to dismiss a ·Police Officer
employed in the State. The Tribunal Rules of the
State of U. P. were framed in exercise of the
powers
vested
under s. 7 of the
Police Act.
The Police Regulations framed by the Government ofU. P. and Tribunal Rules in so far as they
were not inconsistent with the provisions of the Consti -
tution remained in operation by virtue of Art. 313
even after the commencement of the Constitution.
Therefore at the material time there were two sets of
rules for holding an enquiry against a police officer.
The Police authorities could direct an enquiry under
the Police Regulations and the procedure in that
behalf was prescribed by Regulation 490; it was also
open to the Governor of the State to direct an enquiry against a public servant under Rule 4 of the
U. P. Disciplinary Proceedings (Administrative Tri·
bunal) Rules.
Relying on the existence of the two
distinct sets of rules simultaneously, and the power
vested in the State authorities to commence enquiry
against the Police Officer under either of these two
sets of rules in respect of charges set o_ut in Rule 4. of
the Tribunal Rules, it was urged that m commencmg
•r
"
1 S.C.R.
SUPREME COURT REPORTS
661
an enquiry against the public servant concerned under
the Tribunal Rules discrimination was practised and
he was deprived of the guarantee of equal protection
of laws.
It was held that even after the commencement of .the Constitution, continuation of the enquiry
against the delinquent public servant under the U. P.
Disciplinary Proceedings (Administrative Tribunal)
Rules, 194 7 did not result in any unlawful discrimination infringing the protection of Art. 14 of the Constitution. Under the Police Regulation an appeal did
lie from a subordinate police authority to a superior
authority whereas no appeal Jay from the order passed
by the Governor .accepting the recommendations of
Tribunal In considering the effect of the decision
in St,ate of Orissn v. Dhirendmnath Dns(') on which
reliance was placed on behalf of the appellant in
that case, it was observed that the case was not an
authority for the proposition that where out of the
two sets of rules in force it is open to the authorities
to resort to one for holding an enquiry against a
public servant charged with misdemeanour and if one
of such set of rules does not provide for a right of
appeal against an order passed against the public servant and the other set provides for a right of appeal,
unlawful discrimination results: the only point decided in State of Orissa v. Dhirendranath Das case(')
was that at the material time there were in existence
two sets of rules simultaneously in operation, it being
accepted that the Tribunal Rules under which the
enquiry was made against the public servant were
"more drastic" and "prejudicial to the public servant".
The Court then proceeded to hold that the procedure
under the U. P. Disciplinary Proceedings (Administrative Tribun:iIJ Rules, 194 7 and the procedure
under the enqurry commenced under the U. P. Police
Regulations were substantially the same and the mere
fact that there w:is a right of appeal against the
order ?f penalty nnposed by a subordinate police
authonty and there was no. such right against the
order of the Governor acceptmg the recommendations
(I) A. I. R., (1961),S. C, 1715.
1962
Stt'.U of Orissa
v.
Bidvahluu/u,.
MDlcopatra
SMh, J.
Stai. •f Or;ssa
v.
Bidyabhtahan
Mohapatra
Sh•h, J,
662 SUPREME COURT REPORTS [1963] SUPP.
of the Tribunal did not make any discriminations
justifying this Court in striking down the Tribunal
Rules as being discriminatory under Art. 14 of the
Constitution. It was observed in Jagannath Prasad's
case (1):
"Regulation 490 of the Police Regulations sets
out the procedure to be followed in a11 enquiry
by the police functionaries, and rr. 8 and 9 of
the Tribunal Rules set out the procedure to be
followed by the Tribunal. There is no substantial difference between the procedure pres·
cribed for the two forms of enquiry. The
enquiry in its true nature is quasi-judicial. It
is manifest from the very nature of the enquiry
that the approach to the materials placed before
the enquiring body should be judicial. It is
true that by Regulation 490, the oral evidence
is to be direct, but even under r. 8 of the
Tribunal Rules, the Tribunal is to be guided by
rules of equity and natural justice and is not
bound by formal rules of procedure relating to
evidence. It was urged that whereas the Tribunal may admit on record evidence which is
hearsay, the oral evidence under the Police
Regulations must be direct evidence and hearsay is excluded. We do not think that any
such distinction was intended. Even. though the
Tribunal is not bound by formal rules relating
to procedure and evidence, it cannot rely on
evidence which is purely hearsay, because to do
so in an enquiry of this nature would be contrary to rules of equity and natural justice. The
provisions for maintaining the record and calling upon the delinquent public servant to submit his explanation are substantially the same
under Regulation 490 of the Police Regulations
and r. 8 of the Tribunal Rules. It is urged that
under the Tribunal Rules, there is a departure
(1) [11162) I S. C, R.. 151.
'
' ,_
I
I
I S.C.R.
SUPREME COURT REPORTS
663
in respect of important matters from the
Police Regulations which render the Tribunal
Rules prejudicial to tl!.e person against w~9m
enquiry is held under those rules.
Firstly, it is
submitted that there is no right of appeal under
the Tribunal Rules as is given under the Police
Regulations; secondly, that the Governor is
bound to act according to the recommendations
of the Tribunal and thirdly, that under the
Tribunal
Rules, even if the
complexity
of a case under enquiry justifies engagement
of counsel to assist the person charged, assistance
by counsel may ncit be permitted at the enquiry.
These three variations, it is urged, make the
Tribunal Rules not .only discriminatory
but
prejudicial as well to the person against whom
enquiry is held under these Rules. In our
view, this plea cannot
be sustained. The
Tribunal Rules and the Police Regulations in
so far as they deal with enquiries against police
officers are promulgated under s. 7 of the Police
Act, and neither the Tribunal Rules nor the
Police Regulations provide an appeal a3ainst an
order of dismissal or reduction .in rank which
the Governor may pass.
The fact that an order
made by a police authority is made appealable
whereas the order passed by the Governor is
not made appealable is not a ground on which
the validity of the Tribunal Rules can be challenged. In either case, the final order rests
with the Governor who has to decide the matter
hi~elf. Equal prote~tion of the laws does not
postulate equal trea~nt.of all per8ons without
discrimination to all persons similarly si tua,ted.
The power of the Legislature to make a distinction
between persons or transactions based on a real
differentia is not taken away by the equal protec:tion clause.
Therefore by providing a right
of appeal. against the order of police authorities
acting under the Police ,Regulations imposing
1962
Slal1 of Orissa
v.
BiJ,ahlt.urh2n
Mohapatra
Shah, J.
1962
Stt.t1 of Orissa
v.
B!Jyabhushot1
Mo ha pair•
Shah, J,
664 SUPREME COURT REPORTS [1963) SUPP.
penalties upon a member of the police force,
and by providing no such right of appeal when
the order passed is by the Governor, no discrimination inviting the application of Art. 14 is
practised."
The plea that there was discrimination because there
was a right of appeal against an order imposing
penalty under one set ·of rules, and no such right
under the other, was rejected in Jagannath Prasad v.
Stare of U. P. (1). It must therefore be held that the
existence of a right of appeal again~t the order of an
administrative head imposing penalty and absence of
such a right of appeal against the order of the
Governor under the Tribunal Rules, does not result
in discrimination contrary to Art. 14 of the Constitution.
The High Court !:as held that there was evidence
to support the findings on heads ( c) & ( d) of Charge
(1) and on Charge (2). In respect of charge l(b) the
respondent was acquitted by the Tribunal and it did
not fall to be considered by the Governor. In respect
cif charges l(a) and l(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 l(a), l(e), l(c),
l(d) and Charge (2). The High Court was of the
opinion that the findings on two of the heads under
Charge (I) could not be sustained, because in arriving
at the findings the Tribunal had violated rules of
natural jU:Stice.
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 l(a) and l(e) were vitiated for
reasons set out by it, because in our judgment the
(I) (1962] 1 S, C. R. 151.
1 S.C.R.
SUPREME COURT REPORTS
665
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 findiugs on charg~s
l(a) and l(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 fac1:e 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 guar<1ntee 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 misdemeanour established. The reasons
which induce the punishing authority, if there has
been an enquiry consistent with the prescribed rules,
is 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
19i2
Stf'Jt1 ef Orisso1
••
BiJyabhush4n
M1hap.1ra
Shah, J.
1962
Statt of OrUsa
v.
Bidyabhushan
Afohapatrtt
Shah, J.
666 SUPREME COURT REPORTS [1963] SUPP.
conditions of the con.~titutional protection have been
complied with, is not justiciable. Therefore if the
order may be supported on any finding as to substantial misdemeanour 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 if the findings of the
enquiry officer or the Tribunal prima f aeie make out
a case of misdemeanour, 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.
The appeal must therefore be allowed and the
order passed by the High Court set aside.
Having
regard to the circumstances of the case, there will be
no order as to costs in this Court and the High Court.
Appeal allou·c1l.