# J,lha Naad v. Tb. Hon' bit Jud11s of the PURjab Hith Co111I DasJ

- **Citation:** [1962] Supp. 1 S.C.R. 968
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. Wanchoo, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-lha-naad-v-tb-hon-bit-jud11s-of-the-purjab-hith-co111i-dasj-2580
- **Pages:** 13

## Headnote

Government S.rvant-Disciplinary proceedings-Punishment-Proposal by enquiry officer, if binding on the punishing
authority-Powers of President-Union Publio Service Oommi&-
sion-Whether an appelliite authority over E"'IJUiry OfficerAdvice, if binding on Preaident-Oomtitution of India, Art..
811, 320:
D, a Divisional Engineer of Po•ts and Telegraphs was
suspended from service for
irre~ularities in the matter of
allotment of telephones. The charges were firstly, that irregularities were committed by him with a view to secure illegal
gratification for himself and others and secondly, that he
was a party to the commission of irregularities having thereby facilitated acceptance of illegal gratification by his subordinates.
The enquiry officer found him guilty of misdemeanour by disobeying orders expressly issued. The report
of the Enquiry Officer was sent by the President to the Union
Public Service Commission for their recommendations.
In
the meantime D was informed that the Government of India
tiad dec\ped tp di•idss him subject to the advice of the Unio11
•
~
(l)S.C.R.
SUPREME COURT REPORTS
969
•
•
•
•
Public Service Commi"ion, and that he should show cause
why he should not be dismis;rd. The Public Service Commission agreed with the view of the Enquiry Officer that there
was contravention of th' specific orders issued by granting
''casual connections" from time to time, but the Commissivn
was of the opinion th~t this may amount to neglect to open
defiance of the order of his superior and though there may
be suspicion, there was nothing on the record to connect D
with rrcriving illegal gratification, and advised that D •be
retired compulsorily'. The appellant was informed that the
P1 esident 11ad come to the conclusion that he was guilty of
gross negligence and disobedience of orders, and though the
Union Public Service Commission had advised that he be retired
compulsorily as it was not a permi,sible punishment under the
rules, the President had decided that D should be removed
from service with immediate effect. The appellant's writ
petition to the High Court of the Punjab for mandamus and
certiorari was dismissed and thereafter he came up by special
leave to this Court .
Held, that the Civil Service Rules merely prescribe
diverse punishments which may be imposed upon a delinquent
public servant ; the rules do not provide for specific punish·
ments for different misdemeanours. The Rules leave it to the
discretion of the punishing authority to select the appropriate
punishment having regard to the gravity of the misdemeanour.
It is not for the enquiry authority to propose punishment.
The
power
of the
Prtsident to
impose punish·
mcnt
for
misdcmeanour
found
proved
against
a
delinquent publio servant, is unrestricted and is not circum·
scribed by the proposal about punishment by the enquiry
officer which the latter was incompetent to make. It was
for the President to arrive at a tentative conclusion as to the
guilt of the delinquent public servant and
to propose
the appropriate
punishment. The Constitution
merely
guarantees the protection of a reasonable opportunity of
showing canse against
the action proposed ; it does not
guarantee that the punishment sha!I not be more severe than
a prescribed punishment.
The President is by Art. 320 of the Constitution required
to consult the Union Public Service Commission in disciplinary matters but the President is not bound by the advice of
the Commission. The Union Public Service Commission is
not an appellate authority over an Enquiry Officer.
In the present case, in imposing punishment of removal from service the President did not violate the guarantee
of reasonable opportunity to show cause against the ar.tiol)
proposed to be taken against the appellant.
lHl
A. JI. D' SilVI
••
Uniun of India
1961
A. N. D' Silva
T.
Union of India
Shah J.
970
SUPREME COURT REPORTS (1962] SUPP.
C1vrL APPELLATE JURISDICTION : Civil Appeal
No. 322 of 1959.
Appeal by special leave from the judgment
and order d

## Text

1151
J,lha Naad
v.
Tb. Hon' bit Jud11s
of the PURjab
Hith Co111I
DasJ.
1961
Dec,,,,ber f.
968 SUPREME COURT REPORTS (1962] SUPP. ,,...
earlier, that each High Court in the country should
have disciplinary jurisdiction over the Advocates
on its rolls.
'fhe provisions of the Adaptation
order have maintained this position.
In our opinion, the High Court rightly rejected the appellant's applicatiou. The appeal is acoor·
dingly dismissed.
In the circumstances of the case we make no •
order as to costs. But the appellant who has filed
the appeal as a pauper is directed to pay the
court-fees which would have been paid by him
if he had not been permitted to appeal as a
pauper.
Appeal dismissed.
A. N. D' SILVA
"·
UNION OF INDIA
(K. N. WANCHOO and J.C. SHAH, JJ.)
Government S.rvant-Disciplinary proceedings-Punishment-Proposal by enquiry officer, if binding on the punishing
authority-Powers of President-Union Publio Service Oommi&-
sion-Whether an appelliite authority over E"'IJUiry OfficerAdvice, if binding on Preaident-Oomtitution of India, Art..
811, 320:
D, a Divisional Engineer of Po•ts and Telegraphs was
suspended from service for
irre~ularities in the matter of
allotment of telephones. The charges were firstly, that irregularities were committed by him with a view to secure illegal
gratification for himself and others and secondly, that he
was a party to the commission of irregularities having thereby facilitated acceptance of illegal gratification by his subordinates.
The enquiry officer found him guilty of misdemeanour by disobeying orders expressly issued. The report
of the Enquiry Officer was sent by the President to the Union
Public Service Commission for their recommendations.
In
the meantime D was informed that the Government of India
tiad dec\ped tp di•idss him subject to the advice of the Unio11
•
~
(l)S.C.R.
SUPREME COURT REPORTS
969
•
•
•
•
Public Service Commi"ion, and that he should show cause
why he should not be dismis;rd. The Public Service Commission agreed with the view of the Enquiry Officer that there
was contravention of th' specific orders issued by granting
''casual connections" from time to time, but the Commissivn
was of the opinion th~t this may amount to neglect to open
defiance of the order of his superior and though there may
be suspicion, there was nothing on the record to connect D
with rrcriving illegal gratification, and advised that D •be
retired compulsorily'. The appellant was informed that the
P1 esident 11ad come to the conclusion that he was guilty of
gross negligence and disobedience of orders, and though the
Union Public Service Commission had advised that he be retired
compulsorily as it was not a permi,sible punishment under the
rules, the President had decided that D should be removed
from service with immediate effect. The appellant's writ
petition to the High Court of the Punjab for mandamus and
certiorari was dismissed and thereafter he came up by special
leave to this Court .
Held, that the Civil Service Rules merely prescribe
diverse punishments which may be imposed upon a delinquent
public servant ; the rules do not provide for specific punish·
ments for different misdemeanours. The Rules leave it to the
discretion of the punishing authority to select the appropriate
punishment having regard to the gravity of the misdemeanour.
It is not for the enquiry authority to propose punishment.
The
power
of the
Prtsident to
impose punish·
mcnt
for
misdcmeanour
found
proved
against
a
delinquent publio servant, is unrestricted and is not circum·
scribed by the proposal about punishment by the enquiry
officer which the latter was incompetent to make. It was
for the President to arrive at a tentative conclusion as to the
guilt of the delinquent public servant and
to propose
the appropriate
punishment. The Constitution
merely
guarantees the protection of a reasonable opportunity of
showing canse against
the action proposed ; it does not
guarantee that the punishment sha!I not be more severe than
a prescribed punishment.
The President is by Art. 320 of the Constitution required
to consult the Union Public Service Commission in disciplinary matters but the President is not bound by the advice of
the Commission. The Union Public Service Commission is
not an appellate authority over an Enquiry Officer.
In the present case, in imposing punishment of removal from service the President did not violate the guarantee
of reasonable opportunity to show cause against the ar.tiol)
proposed to be taken against the appellant.
lHl
A. JI. D' SilVI
••
Uniun of India
1961
A. N. D' Silva
T.
Union of India
Shah J.
970
SUPREME COURT REPORTS (1962] SUPP.
C1vrL APPELLATE JURISDICTION : Civil Appeal
No. 322 of 1959.
Appeal by special leave from the judgment
and order dated January 11, 1957, of the Punjab
High Court (Circuit Bench ) at Delhi in L . .I:'. A.
No. 2~-D of 1955.
B. G. Misra, for the appellant.
S. P. Varma, ,and T. M. Sen, for the respondent.
1961. December, 6.
The Judgment of the Court
was delivered by
SHAH, J.-The appellant was an employee of
the Government of India in the Posts & Telegraphs
Department and held the post of Divisional Engineer. Telegraphs at Agra in 1947. In June, i948,
he was transferred to New Delhi as Divisional Engineer, Telegraph Developing Branch, Posts & Telegraphs Directorate. On l:ieptember 18, l948, the
appellant was suspended from service and a chargesheet ccintaining the following two charges was
delivered to him :--
"(i)
That he, with a view to secure
illegal gratification for himself and/or for
others, committed serious irregularities. in the
matter of allotment of Telephones in Agra
during the period he was Divisional Engineer,
Telegraphs, Agra, and
(ii) That by being a party to commission
of gross irregularities in the matter of allotment of telephones in Agra, .!J.e facilitated
acceptance of illegal gratification by his subordinates."
An appendix setting out the allegations on the
basis of which the charges had been framed was also
enclosed, and the appellant was called upon to
submit his defence to the charges to the Enquiry
Officer named therein. The appellant was further
•
•
•
( 1) S.C.R. SUPREME COURT REPORTS
971
asked to show cause why, in the event of charge ( i)
being proved, ha should not be dismissed from
Government Service and, in the event of charge
(ii) being proved, he should not be permaueutly
degraded to the rank of the Electrical Supervisor or
awarded any other lesser penality. The appendix
consisted of three heads which a.re as follows :-
"( 1) Contrary to the order contain~d in
letter No. Eng. P. 768 of 7th February, 1948
from the Post Master General, Lucknow, that
no connection, not even a casual connection,
should be given out of turn, the following
casual connections were opened and in some
oases extended and even ma.de permanent:-
(Then were set out 11 instances (a) to (k)
of such casttal connections given by the
appellant.)
(2) Transfers of telephones virtually
amounted to allotment of telephones out of
·turn was allowed in the following cases :-
\a) .............. .
(b) ...... . : . ..... .
(3) Statements given in
writing by
Khiali Rl!<m and Shyam Lal relating to ille·
gal gratification given to Ml'.. Ghambir and
Ka.naya Lal Sharma respectively.''
The appellant submitted his explanation relating
to these charges. .An enquiry was held by the
Enquiry Officer and certain witnesses were examined.
The Enquiry Officer held that allegations I (b) to
1 (k), 2 (a) and 2 (b) and 3 were established. He observed that the proof in respect of allegation ·( 3)
was not suoh as would be acceptable in a court of
law, but there was sufficient evidence to show that
the appellant suddenly changed his attitude towards
one Khia.li Ram and went so far as to argue the
case on his behalf and favoured him with a permanent connection and in the case of Shya.m Lal he
J9aJ
A. N. D' Si/Va
v.
~Jnion of India
~hak J.
1961
..4. N. D' .Vi/va
v.
Union of India
Shah J.
97! SUPREME COURT REPORTS [1962) SUPP .
sanctioned an out-of-tum extension. He accordingly
made a report that charges(i) r.nd(ii)in the chargesheet were proved. The report together with the
record of the Enquiry Officer was sent by the President of India to the Union Public Service Commission under Art. 320 (3) ( c) of the C011Htitution
for their recommendations. The Commission agreed
with the view of the Enquiry Officer that the appellant had contravened specific orders issued by the
Postmaster General by granting "casual connections"
from time to time as shown in the report of the
Enquiry Officer.
But in the view of the Commission
this was at the most either neglect on the part of
the appellant in complying with the orders of his
superiors, or open defiance as he was not prepared
to accept the instructions issued by his superiors.
The Commission, however, observed that "The
crux of charges against Mr. D' Silva was, however,
not that he allowed these connections in defiance
of these orders but that he had a motive in
doing
so.
The only evidence that has been given relates
to connection No. 283 for Messrs. Khiali Ram
Amolak Chanel.
There may be ground for suspicion
but there is nothing on the record to connect Mr.
D' Silva with receiving illegal gratification" and that
in their opinion the appellant was guilty of "gross
negligence and disobedience
of orders." They
accordingly advised that the appellant "be retired
compulsorily."
Notice had already been issued to the appellant informing him that the Government of India
had subject to the advice of the Union Public
Service Commission proviRionally come to the conclusion that the appropriate punishment on the
charges is dismissal and that he was required to
show cause within 15 days of the papers received
by him as to why he should not be dismfased from
Government service. The appellant submitted his
explanation to the notice. By order da1 od January
25, 1951, the appellant was informed th:..t:
•
~,
.
-
•
(i) S.C.R. SUPREME COURT REPORTS
973
" ............... after careful consideration of
the record of the case the explanation submitted by Mr. D'Silva and the opinion of the
Union Public Service Cc,nunission, the President has come to the cunclusion that the
officer is guilty of gross negligence and disobedience of orders.
Althoui;:h the Commission
have advised that Mr. D'Silva
should be
retired compulsorily, it is not possible to do so
as compulsory retirement is not a permissible
punishment under the rules. The President
has accordingly decided that Mr. D'Silva
should be removed from service with imme·
diate effect. .............. "
The appellant then moved the High Court of Judi ca-
• ture for Punjab for a writ of certiorari or mandamus
and directionR, order or writs in the nature of
mandamus and certiorari or other appropriate orders
setting aside the order passed on November 18,
1948, suspending the appellant from service and the
order passed on January 25, 1951, removing him
from
service
and for an
order
directing
the Union of India to reinstate him to the
• post which he
was
holding at the time of
suspension, with all rights, privileges and emoluments pertaining to the said post. The application
wns dismissed by G. D. Khosla J., and the order
was confirmed in appeal by a Division Bench. With
special leave the appellant has appealed to this
Court against the order of the High Court.
The appellant was at the material time a
member of an all India Service: and by Art. 310 of
the Constitution he held office during the pleasure
of the President.
But by Art. 311, the tenure of
his office was protected by certain guarantees.
By cl.(l) of Art. 31 l the appellant was not liable
to be dismissed or removed by an authority subordinate to that by which he was appointed, and by
cl. (2) he could not be dismissed or removed or reduced in rank until he had been given a reasonable
opportunity of showing cause against the action
1961
A, N. D' Sit.a
v.
Union of [nJia
Shah J.
19'1
A. N, D' Silva
v.
Union of India
S>•h.I,
974 SUPREME COURT REPORTS [1962] SUPP.
propoRed to be taken in regard to him. The appellant
was removed from service by the President and no
question of breach of the constitutional guarantee
unrler cl.(]) of Art. 311 therefore arises. But
counsel for the appellant contended that there was
a breach of the guarantee under cl.(2) in that (1) the
PreRident had imposed punishment of rtemoval for
.•
"gross negligence and ;disobedience of orders", •
when the appellant had not been charged in the
enquirv held by the Enquiry Officer with miFdemeanour of that character; (2) that the punishment proposed in
the
charge shetet was not removal
for the charge for which he bad in truth been
found guilty and thterefore the order or punishment
amounted to imposing a punishment different from
...
the one which it was originally contemplated to pass ,
al!'Hnist him ; and (3) that the statement of Mr.
Bhashyam-Postmastter General, Lucknow Division
-was recorded by the Union Public Service
Commission in the absence of the appellant and
without giving him an opportunity to cross-examine
that witness and the Preside.nt took that statement
into consideration, in imposin!!' the penalty of removal from service. By adopting this procedure the •
constitutional guarantee of affording a reasonable
opportunity to the appellant of showing cause was
violated.
In our view, there is no substance in any of
the three contentionR. The Civil Services Rules
merely prescribe the diverse punishments which
may be imposed upon delinquent public servants ;
i.
~
the rules do not provide for specific punishments for
different misdemeanours. The rules leave it to
the discretion of the punishing authority to select
the appropriate punishment having regard to the
gravity of the misdemeanour. The power of the
President to impose any punishment for any misdemeanour found proved against a delinquen~ public
servant iR unrestricted. The Constitution merely guarantees the protection of a reasonable opportunity
•
•
•
(l) S.C.R. SUPREME COURT REPORTS
975
of showing cause against the action proposed : it
does not guarantee that the punishment shall not
be more
severe than a prescribed punishment.
The charge a~ainst the appellant fell under two
heads, but each .head charged the appellant with
irregularities in the matter of allotment or te~e
phones. Under the first head the charge was that
irregularities were committed by him with a view
to secure illegal gratification for himself or for
others. The second charge was in respect of a
comparatively less serious misdemeanour, namely,
that the appellant was a party to the commission of
irregularities having thereby facilitated acceptance
of illegal gratifications by his subordinates. Counsel
for the appellant submitted that under the first head
of the charj!e the appellant was, in substance,
charged with having received illegal gratification
for himself or for others, and invited our attention
to the letter of the Enquiry Officer dated December
31, 1948; in which it was stated "that two specific
allegations relating to illegal gratification given to
your subordinates have already been mentioned
in the annexure to the charge sheet. .As regards
the other cases mentioned by you, the irregularities
committed in thes.e cases are similar to the cases in
which illegal gratification is alleged. It is for you
to prove that though the irregularides are similar
no illegal gratification has taken place in these
cases." This letter expreBBly states that telephone
connections were granted to Khiali Ram
and
Shyam Lal after receiving illegal gratification and
that other instances referred to in the appendix were
similar to those cases in which illegal gratificatien
was alleged. This letter, in our judgment, does not
justify the inference that the Enquiry Officer regarded the charges as primarily of illegal gratification
or corruption: nor is it poBBible to accept the submission that the charges were so framed that the
appellant was misled into believing that the charges
primarily were of obtaining illegal gratification.
19~1
A.N.D' Siioa
••
U11ion of India
Shah J.
1961
.I. J{. D' Silva
v,
Uniln of India
Sn.Ji J,
976 SUPREME COURT REPORTS [1962] SUPP.
AB already observed, the charges were of irregularities committed by the appellant, the first being
with the object of securing illegal gratification and
the second substantially of negligence and thereby
acting so as to enable his subordinates to receive
illegal gratification.
It is also clear from the
Appendix which sets out the allegations and especially heads ( l) and ( 2) that the charges against the
appellant were that he had committed irregularities
by granting, contrary to the orders passed by the
Postmaster General, telephone connections out-of:
turn to certain applicants. The Enquiry Officer
found ten out of the eleven instances set out in
head No. 1 ani both the instances under head No. 2
proved. The Union Public Service Commission
a.greed with that view.
The charge of irregularities
was therefore established against the appellant.
In the view of the Enquiry Officer the motive for
granting irregular connections was also established,
but the Onion Public Service Commission expressed
a different view. By Art. 320(3) of the Constitution it is provided that the Union Public Service
Commission shall be consulted in all disciplinary
matters affecting a person serving under the
Government of India in a civil capacity, but the
Union Public Service Commission is not an appellate
authority over the Enquiry Officer. It is unnecessary
for the purpose of this case to consider whether in
making their recommendations or tendering their
advice the Union Public Service Commission may
express a conclusion on the merits of the case as
to the misdemeanour alleged to have been commit~d by a public servant different from the conclusion of the Enquiry Officer.
The President had before him the Enquiry
Officer's report, the record of the case, the explanation submitted by the appellant and the opinion of the
Union Public Service Commission. On a consideration of all these materials the President came to the
. '
" .
•
•
•
(1) S.C.R. SUPREME COURT REPORTS
977
conclusion that the appellant was guilty of gross
negligence and disobedience of orders. It is true
that there is no record of the President having
come to a conclusion whether in committing irregu·
larities the object of the appellant was to receive
illegal gratification for himself or for others within
the meaning of the first charge. It is also true that
the President has, in recording his conclusion, used
the same phraseology as was used by the Public
Service Commission in making its recommendation
but on that ground we are unable to hold that the
President has accepted the conclusion of the Union
Public Service Commission that the irregularities
were not proved to have been committed with a
view to secure illegal gratification for himself or
for others. The President is by Art. 320 of the
Constitution required to consult the Public Service
Commission (except in certain cases, which are not
material) but the President is not bound by the
advice of the Commission. The President found the
appellant guilty of disobedience of orders and also
of gross neglige11ce. The
charge
against the
appellant was disobedience of orders and that is the
charge of which the Enquiry Officer held him guilty .
The Union Public Service Commieaion also agreed
with this view. It cannot therefore be said that the
misdemeanour of which the appellant was charged
was different from the misdemeanour for commission of which he had been found guilty. The misdemeanour charged consisted of commission of irregularities by disobeying orders expressly issued and
that is the misdemeanour of which the appellant
has been found guilty.
In the communication addressed by the Enqui~y
Officer the punishment proposed to be imposed
upon the appellant if he was found guilty of the
charges could not properly be set out. The question
of imposing punishment can only arise ~fter enquiry'
is made and the report of the Enqmry Officer 18
received.
It is for the punishing authority to
1151
A. N. D'Silua
v.
Uni.,n of India
Shah J.
1961
A. N. D' Silva
v.
Union of [nJia
Shah J,
978 SUPREME COURT REPORTS [1962] SUPP.
propose the punishment and not for the enquiring
authority. The latter has, when so required, to
itppraise the evidence, to record its conclusion and
if it thinks proper to suggest the appropriate punishment. But neither the conclusion on the evidence nor
the punishment which the enquiring authority may
regard as appropriate is binding upon the punishing authority. In the present case after the report
of the Enquiry Officer was received the appellant
was called upon to show cause against his proposed
dismissal
from
service.
After
considering
the
representation made
by the
appellant
the President came to the conclusion that not dismissal but removal from service was the appropriate punishment. In imposing punishment of
removal the President did not violate the guarantee
of reasonable opportunity to show cause against
the action proposed to be taken against the appellant. The appellant was told a.bout the action
proposed to be takim and he was afforded an
opportunity to make hie defence.
Thereafter a
lighter punishment was imposed. There is nothing
on the record to show that the President found the
appellant guilty of the second charge and imposed
punishment proposed by the Enquiry Officer for
the first charge.
The contention that the evidence
of
Mr. Bhashyam, Postmaster General Lucknow Range
was recorded in the absence of the appellant and
that the same was utilised by the President in
coming to the conclusion that the appellant be
removed from service has no warrant. It appears
that the Postmaster General by his letter dated
February 7, 1948, directed the appellant not to issue
telephone connections out·of-tum even if the connection was casual. Thie letter was produced b&-
fore the Enquiry Officer. The contention of the
appellant before the Enquiry Officer was that lie
had made a representation to the Postmaster
General that it was "impracticable to put person•
•
..
_,
I
--... _.
(1) S.C.R. SUPREME COURT REPORTS
979
" •
asking for 'casual connections' in the same list as those
that were asking for permanent connections" and
that thereafter he had received a telephonic message
from Mr. Bhashyam asking him to proceed according to rules, and accordingly he continued to follow
the prevailing practice of maintaining two separate
lists, one of regular connections and the othet for
A
casual connections. In the view1 of the Enquiry
• Officer this defence was not established. It appears,
however, that the Union Public Service Commission
ascertained from Mr. Bhashyam his version in regard
to the alleged instructions given by him to the
appellant about restoring t.he original practice and
the Postmaster General denied the telephonic conversation.
The appellant submitted that Mr.
..
Bhashyam was not examined in his presence and he
,.
was not permitted to cross-examine Mr. Bhashyam
on the alleged denial of telephonic instructions.
It is admitted that Mr. Bhashyam was not examined
before the Enquiry Officer. The Commission, it appears, obtained information from Mr. Bhashyam. But
as we may again observe the Union Public Service
Commission is not constitutfld an appellate authority
over an Enquiry Officer. The Commission is required
• to be consulted by the Conl!titution in ·disciplinary
matters. The action of the Commission may be
irregular but there is nothing to show that the
President took into consideration the statement of
Mr. Bhashyam which is referred to by the Commission in their
report
and relying upon that
statement imposed the punishment upon the appellant which is impugned. The mere fact that the
"""" '\
same phraseology has been used by the President
in imposing the punishment does not justify the
inference that the President took into consideration
the alleged denial of Mr. Bhashyam. We are of
the view, therefore, that there has been no breach
of the constitutional guarantee under Art. 311 of
giviQg the appellant a reasonable opportunityof
showing ca.use against the action proposed to be
ta.ken against him.
1961
A. N. D' Silv•
v •
Union of lnii•
Shall J.
1961
A. N. D'Si/va
Y.
Union of India
Shah J.
980 SUPREME COURT REPORTS [1962) SUPP. 1-,..._
One more argument raised on behalf of the
appellant may be referred to. It is urged that the
President having accepted the advice oftbe Commission could not remove the appellant from service
but could only impose the punishment which was
proposed in the charge served by the Enquiry
Officer in respect of the second bead. There is
nothing, however, in the impugned order to show
"
that the President acl!iepted the advice of the Com- •
mission in its entirety. As we have already observed
the proposed punishment could not be properly
incorporated in the charge served upon the appellant by the Enquiry Officer. The notice served
•
by the Secretary to the Government of India on
November 3, 1949, required the appellant to show
I
cause why the punishment which the Government
< ,
regarded as appropriate, namely, dismissal should
not be imposed. Action proposed to be taken by •
President is clearly set out in that notice. There
is no provision which compels the President to
impose only the sentence proposed by the Enquiry
Officer. It was for the President to arrive at a tentative conclusion as to the guilt of the appellant
and to propose the appropriate punishment. This the
President did ; and in imposing the punishment • '
having regard to the gravity of the misdemeanour
found proved, the powers, of the President were
not circumscribed by the proposal as to punishment by the Enquiry Officer which the latter was
incompetent to make.
The appeal therefore fails and is dismissed
with costs.
Appeal dismissed.
•