# RAM CHANDER v. U.O. I

- **Citation:** [1986] 2 S.C.R. 980
- **Court:** Supreme Court of India
- **Decided:** 1986-05-02
- **Bench:** A.P. Sen, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-chander-v-u-o-i-9346
- **Pages:** 21

## Headnote

Railway Servants (Discipline & Appeal) Rules, 1968, Rule
22(2) - "Consider" - Interpretation of - Duty of Railway Board f'
to record its findings and pass reasoned order.
Constitution of India, Art. 311(2) -
Tulsiram Patel's
case -
Effect of - Appellate Authority -
Duty of -
To give
hearing to delinquent servant - Pass a reasoned order in the
departmental appeal.
The appellant who was employed as Shunter, Grade 'B' was
removed from service. The charge against him was that he was
D
guilty of misconduct in that he had assaulted his illllll!diate
superior. As he did not appear at the enquiry, the Enquiry
Officer proceeded ex-parte and examined witnesses and found
the charge proved. 'nle General Manager agreed with the report
of the Enquiry Officer and came to the provisional conclusion
that the penalty of removal from service should be inflicted, •
E
issued
a
show
cause
notice to the appellant,
who
in
compliance, showed cause but his explanation was not accepted ••
'nle General Manager by an order dated August 24, 1971 imposed
-
the penalty of removal from service.
The appellant preferred an appeal before the Railway -t rF
Board under rule 18(ii) of the Railway Servants (Discipline
and Appeal) Rules, 1968 but the Railway Board dismissed the +
appeal. 'nle High Court also dismissed the writ petition of the
appellant holding that since the Railway Board agreed w,1.th the
findings of the General Manager, there was no duty cast on the
Railway
Board to record
reasons for its decision. 'nle
G
appellant's Letters Patent Appeal before a Division Bench was
also dismissed in limine.
H
Allowing the appeal and remanding the matter to the
,.._
Railway Board,
...
RAM CHANDER v. U.O. I.
981
-1
HELD: 1. The judgment and order of the Single Judge and
that of the Division Bench are both set aside, so also the
impugned order of the Railway B9ard dated March 11, 1972. The
Railway Board is directed to hear and dispose of the appeal
after affording a personal hearing to the appellant on merits
A
by a reasoned order in conformity with the requirements of
B
Rule 22(2) of the Railway Servants (Discipline and Appeal)
Rules, 1968. [999 H; 1000 A-B]
i
2. Rule 22(2) of the Railway Servants Rules in express
terms requires the Railway Board to record its finding on the
three aspects stated therein. It provides that in the case of
an appeal against
an order imposing any of the penalties
)' specified in rule 6 or enhancing any penalty imposed under the
said rule, the Appellate Authority shall 'consider' as to the
r matters indicated therein. [989 E-F]
2.1 The word 'consider' has different shades of meaning
c
and 1D1st in rule 22(2), in the context in which it appears,
D
mean an objective consideration by the Railway Board after due
application of mind which implies the giving of reasons for
its decision. [989 F-G]
In the instant case, the impugned order is just a
mechanical
reproduction of
the phraseology of rule 22(2)
without any attempt on the part of the Railway Board either to
marshall the evidence on record with a view to decide whether
the finding arrived at by the Disciplinary Authority could be
sustained or not. There is also no indication that the Railway
+ ·Board applied its mind as to whether the act of misconduct
with which the appellant was charged together with the
1 .. attendant circumstances and the past record of the appellant
-r were such that he should have been visited with the extreme
penalty of removal from service for a single lapse in a span
F
of 24 years of service. There being non-compliance with the
requirements of Rule 22(2) of the Railway Servants Rules, the
impugned order passed by the Railway Board is liable to be set
G
aside. [987 A-D]
3. Dismissal or removal from service is a matter of
grave concern to a civil servant, who after such a long period
of service may not deserve such a harsh punishment. [987 C-D]
H
A
B
c
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982
SUPREME COURT REPORTS
[1986] 2 S,C.R.
State of Madras v. A.R. Srinivasan, A.I.R. [1966 S.C.
1827, Som Datt D

## Text

_Characters 0–39,905 of 43,513. This is a partial read: ask again with offset=39905 for what follows._

A
B
c
980
v.
UNION OF INDIA & ORS.
MAY 2, 1986
[A.P. SEN AND B.C. RAY, JJ.)
Railway Servants (Discipline & Appeal) Rules, 1968, Rule
22(2) - "Consider" - Interpretation of - Duty of Railway Board f'
to record its findings and pass reasoned order.
Constitution of India, Art. 311(2) -
Tulsiram Patel's
case -
Effect of - Appellate Authority -
Duty of -
To give
hearing to delinquent servant - Pass a reasoned order in the
departmental appeal.
The appellant who was employed as Shunter, Grade 'B' was
removed from service. The charge against him was that he was
D
guilty of misconduct in that he had assaulted his illllll!diate
superior. As he did not appear at the enquiry, the Enquiry
Officer proceeded ex-parte and examined witnesses and found
the charge proved. 'nle General Manager agreed with the report
of the Enquiry Officer and came to the provisional conclusion
that the penalty of removal from service should be inflicted, •
E
issued
a
show
cause
notice to the appellant,
who
in
compliance, showed cause but his explanation was not accepted ••
'nle General Manager by an order dated August 24, 1971 imposed
-
the penalty of removal from service.
The appellant preferred an appeal before the Railway -t rF
Board under rule 18(ii) of the Railway Servants (Discipline
and Appeal) Rules, 1968 but the Railway Board dismissed the +
appeal. 'nle High Court also dismissed the writ petition of the
appellant holding that since the Railway Board agreed w,1.th the
findings of the General Manager, there was no duty cast on the
Railway
Board to record
reasons for its decision. 'nle
G
appellant's Letters Patent Appeal before a Division Bench was
also dismissed in limine.
H
Allowing the appeal and remanding the matter to the
,.._
Railway Board,
...
RAM CHANDER v. U.O. I.
981
-1
HELD: 1. The judgment and order of the Single Judge and
that of the Division Bench are both set aside, so also the
impugned order of the Railway B9ard dated March 11, 1972. The
Railway Board is directed to hear and dispose of the appeal
after affording a personal hearing to the appellant on merits
A
by a reasoned order in conformity with the requirements of
B
Rule 22(2) of the Railway Servants (Discipline and Appeal)
Rules, 1968. [999 H; 1000 A-B]
i
2. Rule 22(2) of the Railway Servants Rules in express
terms requires the Railway Board to record its finding on the
three aspects stated therein. It provides that in the case of
an appeal against
an order imposing any of the penalties
)' specified in rule 6 or enhancing any penalty imposed under the
said rule, the Appellate Authority shall 'consider' as to the
r matters indicated therein. [989 E-F]
2.1 The word 'consider' has different shades of meaning
c
and 1D1st in rule 22(2), in the context in which it appears,
D
mean an objective consideration by the Railway Board after due
application of mind which implies the giving of reasons for
its decision. [989 F-G]
In the instant case, the impugned order is just a
mechanical
reproduction of
the phraseology of rule 22(2)
without any attempt on the part of the Railway Board either to
marshall the evidence on record with a view to decide whether
the finding arrived at by the Disciplinary Authority could be
sustained or not. There is also no indication that the Railway
+ ·Board applied its mind as to whether the act of misconduct
with which the appellant was charged together with the
1 .. attendant circumstances and the past record of the appellant
-r were such that he should have been visited with the extreme
penalty of removal from service for a single lapse in a span
F
of 24 years of service. There being non-compliance with the
requirements of Rule 22(2) of the Railway Servants Rules, the
impugned order passed by the Railway Board is liable to be set
G
aside. [987 A-D]
3. Dismissal or removal from service is a matter of
grave concern to a civil servant, who after such a long period
of service may not deserve such a harsh punishment. [987 C-D]
H
A
B
c
D
982
SUPREME COURT REPORTS
[1986] 2 S,C.R.
State of Madras v. A.R. Srinivasan, A.I.R. [1966 S.C.
1827, Som Datt Datta v. Union of India & Ora., [1969) 2 S.C.R. ~
176, Tara Qiand Khatri v. Municipal Corporation of Delhi &
Ora., [1977) 2 s.c.R. 198 and Madhya Pradesh Industries Ltd.
v. Union of India, [1966) 1 s.c.R. 466, referred to.
4.1 After the constitutional change brought about by the
Forty-Second Amendment the only stage at which
now a civil
servant can exercise this valuable right is by enforcing his~
remedy by way of a departmental appeal or revision, or by way
of judicial review. [997 E-F)
4.2 A civil servant who has been dismissed, removed or
reduced in rank by applying to his case one of the clauses of -(
the second proviso to Art. 311(2) or the analogous Service
Rule has two remedies available to him. These remedies are :1
(i) the appropriate departmental appeal provided for in the
relevant Service Rules ; and (ii) if still dissatisfied,
invoking the Court's power of judicial review. [997 G-H)
4. 3 It is of utmost importance after the Forty-Second
Amendment as interpreted by the majority in Tulsi Baa Patel's
case that the Appellate Authority 1111st not only give a hearing
to the government servant, but also pass a reasoned order •
dealing with the contention raised by him in the appeal. The
E
duty to give reasons is an incident of the Judicial process.
[999 E-F)
F
-
4.4 Reasoned decisions by Tribunals, such as the Railway
Board in the present case, will promote public confidence in + "'
the administrative process. As objective consideration is
possible only if the delinquent servant is heard and given a
chance to satisfy the authority regarding the final orders +
that may be passed on his appeal. Considerations of fairplay
and justice also require that such a personal hearing should
be given. [999 F-G]
G
R.P. Bhatt v. Union of India & Ors., (C.A.No. 3165/81
H
decided on Dec. 14, 1982), Union of India & Anr. v. Tulsir ..
Patel, [1985) 3 s.c.c. 398, Secretary, Central Board of kclse ~
& llJsto.i & Ors. v. K.S. lfahalingaa (C.A. No. 1279/86 decided
on April 24, 1986 and Satyavir Singh & Ors. v. Union of India
& Ors., (1985] 4 s.c.c. 252, relied upon.
r
RAM CHANDER v. U.O.I. [SEN, J.]
983
I,
5. High Camlssioner for India v. I.M. Lall, L.R.
~ 48) 75 I.A. 225, Kha Qiand v. Union of India & Ors.,
S.C.R. 1080 and Swadeshi Cotton Ml.Us v. Union of
[1981] 2 s.c.R. 533, referred to.
(1947-
(1958]
India,
'
l
The majority decision in Tulsiraa Patel's case seeks to
justify the amendment effected by the Forty-Second Amendment
of cl.(2) of Art. 311 by observing that 'cl.(2) of Art. 311 as
~originally enacted and the legislative history of that clause
wholly rule out the giving of any opportunity'. The Court
expressed its reservations about the correctness of this
proposition. [992 C-E]
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1621 of
'r 1986.
~
"
From the Judgment and Order dated 15th February, 1984 of
the Delhi High Court in L.P.A. No. 178 of 1983.
M.K. Ramamurthi, M.A. Krishnamoorthy and Mrs. Chandan
for the Appellant.
O.P. Sharma, P.P. Singh and C.V. Subba Rao for the
Respondent.
The Judgment of the Court was delivered by
SEN, J. The central question in this appeal is whether
the impugned order passed by the Railway Board dated March 11,
~ 1972 dismissing the appeal preferred by the appellant, was not
in conformity with the requirements of r.22(2) of the Railway
servants (Discipline & Appeal) Rules, 1968. At the hearing on
-+-February 13, 1986, learned counsel for the Union of India took
time to enable the Railway Board to reconsider its decision as
to the quantum of punishment. At the resumed hearing on March
13, 1986 we were informed by the learned counsel that there
was no question of the Railway Board reconsidering its decision. Arguments were accordingly heard on the question as to
whether the impugned order of the Railway Board was sustain-
, able in law. We heard the parties and allowed the appeal by
"'I order dated March 13, 1986 directing the Railway Board to hear
and decide the appeal afresh on merits in accordance with
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984
SUPREME COURT REPORTS
[1986] 2 s.c.R.
law in conformity with the requirements of r.22(2) of the
Rules. We now proceed to give reasons therefor.
'r
The facts, the appellant Ram Chander, Shunter, Grade B
at Loco Shed Ghaziabad was inflicted the penalty of removal
from
service
under
r. 6( viii)
of
the
Railway
Servants
(Discipline & Appeal) Ruls, 1968 by order of the General
Manager, Northern Railway dated August 24, 1971. The gravamen
of the charge was that the appellant was guilty of misconduct
in that he had October 1, 1969 at 7.30 p.m. assaulted his ,.
illDllediate superior Banarsi Das, Assistant Loco Foreman while
he was returning after performing his duties. The illDllediate
cause for the assault was that the appellant had on September
30, 1969 applied for medical leave for one day i.e. for
October 1, 1969. On that day there was a shortage of Shunters,
he accordingly asked Banarsi Das for the cancellation of leave
and permit the appellant to resume his duties but Banarsi Das 1
refused to cancel the leave. It is said that the appellant
nursed a grouse against Banarsi Das because his refusal to
permit him to resume his duties deprived him of the benefit of
one day's additional wages for October 2, 1969 which was a
national holiday. The Enquiry Officer fixed the date of
enquiry on
May 11, 1970 at Ghaziabad. The enquiry could not
be held on that date due to some administrative reasons and
was then fixed for the July 11, 1970. The appellant was duly
informed of t'e date but he did not appear at the enquiry. The
Enquiry Officer accordingly proceeded ~ parte and examined
witnesses. By his report dated May 26, 1971, the Enquiry
Officer found the charge proved. The General Manager agreed
with the report of the Enquiry Officer and came
to the
provisional conclusion that the penalty of removal from
service should be inflicted and issued a show
cause notice
dated May 26, 1971. In compliance the appellant showed cause
but his explanation was not accepted. The General Manager,
however, by order dated August 24, 1971 imposed the penalty of
removal from service. The appellant preferred an appeal before
the Railway Board under r.18(ii) of the Railway Servants
(Discipline & Appeal) Rules, 1968 but the Railway Board by the
impugned order dated March 11, 1972 dismissed this appeal.
Thereafter, the appellant moved the High Court by a petition
under Art. 226 of the Constitution. A learned Single Judge by
his order dated August 16, 1983 dismissed the writ petition
holding that since the Railway Board agreed with the findings
+
+
RAM CHANDER v. u.o.I. [SEN, J. 1
985
of the General Manager there was no duty cast on the Railway
-1 Board to record reasons for its decision. The appellant
therefore preferred a Letter Patent Appeal, but a Di vision
Bench by its order dated February 15, 1984 dismissed the
appeal in in limine.
Rule 22(2) of the Railway Servants Rules provided as
follows
"22(2) In the case of an appeal against an order
imposing any of the penalties specified in Rule 6
or enhancing any penalty imposed under the said
rule, the appellate authority shall consider -
(a) Whether the procedure laid down in these rules
has been complied with, and if not, whether such
non-compliance has resulted in the violation of any
provisions of the Constitution of India or in the
failture of justice ;
(b)
whether
the
findings
of
the disciplinary
authority are warranted by the evidence on the
record; and
A
B
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D
(c) whether the penalty or the enhanced penalty
E
imposed is adequate, inadequate or severe ;
and pass orders -
(i) confirming,
enhancing,
reducing or setting
aside the penalty, or
F
(ii) remitting the case to the authority which
imposed or enhanced the penalty or to any other
authority with such directions as it may
deem fit
in the circumstances of the case : "
G
The duty to give reasons is an incident of the judicial
process. So, in LP. Bhatt v. Union of India & Ors.• (C.A.
No.
3165/81 decided on December 14, 1982) this Court, in
1 somewhat similar circumstances, interpreting r.27(2) of the
Central Civil Services (Classification, Control & Appeal)
Rules, 1965 which provision ts in pari materia. with r.22(2) of
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986
SUPREME COURT REPORTS
[1986] 2 s.c.R.
the Railway Servants (Discipline & Appeal)
rules,
observed :
1968, )-
I
"It is clear upon the terms of r. 27(2) that the
appellate authority is required to consider (1)
whether the procedure laid down in the rules has
been complied with; and if not, whether such noncompliance has resulted in violation of any of the
provisions of the Constitution of India or in the ~
failure of
justice ; (2) whether
the findings of
the disciplinary authority are warranted by
the
evidence on record ; and (3) whether the penalty
imposed is adequate, inadequate or severe, and pass
orders confirming, enhancing, reducing or setting ,_;
aside the penalty, or remit back the case to the l'
authority which imposed or enhanced the penalty, -{
etc."
It was held that the word 'consider' in r.27(2) of the Rules
imp lied 'due application of mind'. The Court emphasized that
the Appellate Authority discharging quasi-judicial functions
in accordance with natural justice must give reasons for its
decisions. There was in that case, as here, no indication in
the impugned order that the Director-General, Border Road
Organisation, New Delhi was satisfed as to the aforesaid
requirements. The Court observed that he had not recorded any
finding on the crucial question as to whether the findings of
the disciplinary authority were warranted by the evidence on
record. In the present case, the impugned order of the Railway
Board is in these terms :
"(l) In terms
of rule 22(2) of
the Railways
Servants (Discipline
& Appeal) Rules, 1968, the
Railway Board have carefully considered your appeal
against the orders of the General Manager, Northern
Railways, new Delhi imposing on you the penalty of
removal from service and have observed as under
(a) by the evidence on record, the findir.Js of the
disciplinary authority are warranted ; and
~
(b) the penalty of removal from service imposed on
you is merited.
RAM CHANDER v. u.o.r. [SEN, J.]
987
(2) The Railway Board have therefore rejected the
appeal preferred by you."
To say the least, this is just a mechanical reproduction
A
of the phraseology of r.22(2) of the Railway Servants Rules
without any attempt on the purt of the Railway Board either to
B
marshall the evidence on record with a view to decide whether
the findings arrived at by the disciplinay authority could be
-1sustained or not. There is also no indication that the Railway
Board applied its mind as to whether the act of misconduct
with which the appellant was
charged together with the
attendant circumstances and the past record of the appellant
were such that he should have been visited with the extreme
c
\..penalty or removal from service for a single lapse in a span
r of 24 years of service. Dismissal or removal from service is a
\matter of grave concern to a civil servant who after such a
long period of service,
may
not deserve such a harsh
punishment. There being non-compliance with the requirements
of r.22(2) of the Railway Servants Rules, the impugned order
D
passed by the Railway Board is liable to be set aside.
It was not the requirement of Art.
311(2) of the
Constitution
prior
to
the
Constitution
(Forty-Second
AAmendment) Act, 1976 or of the rules of natural justice, that
in every case the appellate authority should in its order
state its reasons except where
the appellate authority
disagreed with the findings of the disciplinary authority. In
State of Madras v. A.R. Srinivasan, A.I.R. [1966] s.c. 1827 a
Constitution
Bench
of
this
Court
while
repelling
the
t contention that the impugned order by the State Government
accepting the findings being in the nature of quasi-judicial
+
proceedings was bad as it did not give reasons for accepting
1:he findings of the Tribunal, observed as follows :
"In dealing with the question as to whether it is
obligatory on the State Government to give reasons
in support of the order, imposing a penalty on the
delinquent officer, we canaot overlook the fact
that the discipline proceedings against such a
delinquent officer begin with an enquiry coaducted
by an officer appointed in that behalf. That
enquiry is ,followed by report aad the Public
Service Commissioa is consulted where necessary.
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988
SUPREME COURT REPORTS
(1986] 2 s.c.R.
Having regard to the material which is thus made ~
available to the State Government and which is made
available to the delinquent officer also, it seems
to us somewhat unreasonable to suggest that the
State Government must record its reasons why it
accepts
the
findings
of the Tribunal.
It is
conceivable that if tl.e State Government does not
accept the findings of the Tribunal which may be in
favour of the delinquent officer and proposes to )-
impose a penalty on the delinquent officer, it
should give
reasons
why it differs from
the
conclusion of the Tribunal, though even in such a
case, it is not necessary that the reasons would be
detailed
or
elaborate.
But
where
the
State {
Government agrees with the findings of the Tribunal
which are against the delinquent officer, we do not~
think as a matter of law, it could be said that the
State Government cannot impose the penalty against
the delinquent officer in accordance with
the
findings of the Tribunal unless it gives reasons to
show why the said findings were accepted by it. The
proceedings are, no doubt, quasi-judicial; but
having
regard
to
the
manner
in which
these
enquiries are conducted,
we
do
not
think an
k
obligation can be imposed on the State Government
to record reasons in every case."
Again, in Som Datt Oat ta v. Union of India & Ors., [ 1 96 9]
2 S.C.R. 176 a Constitution Bench of this Court rejected the
:ontention that the order of the Chief of the Army Staff +
:onfirming the proceedings of the General Court Martial under
3, 164 of the Army Act, 1950 and the order of the Central
'.;overnment dismissing the appeal of the delinquent officer +
Jnder s. 165 of the Act were illegal and ultra vires as they
iid not give reasons in support of the orders, and summed up
the legal position in these words :
"Apart from any requirement imposed by the statute
or statutory rules either expressly or by necessary
implication, there is no legal obligation that the
~
statutory tribunal should give reasons for its
decision. There is also no general principle or any
RAM CHA.NDER v. u.o.I. [SEN, J.]
989
rule of natural justice that a statutory tribunal
should always and in every case give reasons in
support of its decision."
A
So also in Tara a.and Khatri v. ~cipal Corporation of
Delhi & Ors., [1977] 2 S.C.R. 198 this Court observed that
B
there was a vital difference between an order of reversal by
the appellate 11Uthority and an order of affirmance and the
omission to give reasons for the decision may not by itself be
'\a sufficient ground for passing such order, relying on the
test laid down by Subba Rao, J, in Madhya Pradesh Industries
Ltd. v. Union of India [1966] 1 S.C.R. 466.
"Ordinarily, the appellate or revisional authority
shall giv, its own reasons succinctly; but in a
case of affirmance where the original tribunal
gives adequate reasons, the APpellate Tribunal may
dismiss the appeal or the revision, as the case may
c
be, agreeing with those reasons."
D
These authorities proceed upon the principle that in the
absence of a requirement in the statute or the rules, there is
no duty cast on an appellate authority to give reasons where
the order is one of affirmance. Here, r. 22(2) of the Railway
~Servants Rules in express terms requires the Railway Board to
record its findings on the three aspects stated therein.
Similar are the requirements under r. 27(2) of the Central
Civil Services (Classification, Control & Appeal) Ruls, 1965.
R. 22(2) provides that in the case of an appeal against an
+order imposing any of the penalties specified in r. 6 or
enhancing any penalty imposed under the said rule,
the
appellate authority shall
'consider' as
to the matters
~ndicated therein. The word 'consider' has different shades of
meaning and must in r. 22(2), in the context in which it
appears, mean an objective consideration by the Railway Board
after due application of mind which implies the giving of
reasons for its decision.
After the amendment of cl.(2) of Art.
311
of the
Constitution by the Constitution (Forty-Second Amendment) Act,
-1.1976 and the consequential change brought about in r.10(5) of
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the Railway
~crvants (Disciplince & Appeal) Rules, 1968,
substituted by the Railway Servants (Discipline & Appeal)
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SUPREME COURT REPORTS
[1986] 2 S.C,R.
(Third Amendment) Rules, 1978, it is no longer necessary to
afford a second opportunity to the delinquent servant to show ¥-
cause against the punishment. The Forty-Second Amendment has
deleted from cl.(2) of Art.
311
the requirement of a
reasonable opportunity
of
making
representation on
the
proposed penalty and, further, it has been expressly provided
B
inter alia in the first proviso to cl.(2) that :
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"Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such ~
penalty may be imposed on the basis of the evidence
adduced during such enquiry and it shall not be
necessary to give such person any opportunity of
making representation on the penalty proposed."
After the amendment, the requirement of cl. (2) will be
satisfied by holding an inquiry in which the Government 1
servant has been informed of the charges against him and given
a reasonable opportunity of being heard. But the essential
safeguard of showing his innocence at the second stage i.e.
after the disciplinary authority has come to a tentative
conclusion of guilt upon a perusal of the findings reached by
the Inquiry Officer on the basis of the evidence adduced, as
also against the proposed punishment, has been removed to the
detriment of the delinquent officer. In view of the said "'
amendment of Art. 311(2) of the Constitution, r.10(5) of the
Railway Servants Rules has been substituted to bring it in
conformity with cl.(2) of Art. 311, as amended. R. 10(5), as
substituted, provides as follows :
"10(5). If the disciplinary authority, having t
regard to its findings on all or any of the
articles of charge and on the basis of the evidence l
adduced drulng the inquiry, is of the opinion that 'T
any of the penalties specified in clauses (v) to
(ix) of rule 6 should be imposed on the railway
servant, it shall make an order imposing such
penalty and it shall not be necessary to give
railway
servant
any
opportunity
of
making
representation on
the penalty proposed to be
~M~!
~
RAM CHANDER v. U.O. I. (SEN, J,]
991
A
Provided that in every case where it is necessary
to consult the Colllllission,
the record of the
inquiry shall be forwarded by the disciplinary
authority to the Colllllission for its advice
and
such advice shall be taken into consideration
B
before making an order imposing any such penalty on
the railway servant."
We may here mention that a corresponding change in the
~ Central Civil Services (Classification, Control & Appeal)
Rules, 1965 has been brought by substituting r.15(4) taking
away the procedural safeguard of making a representation at
c
the second stage i.e. before imposing punishment on the basis
'r
of the evidence at the inquiry.
In Union of India & Am. v. Tulsir .. Patel, [ 1985] 3
t s.c.c. 398 a five-judge Bench by a majority of 4: 1 held that
where a departmental inquiry was wholly dispensed with in the
n
three situations under the second proviso ttl Art. 311(2), the
only right to make a representation on the proposed penalty
which was
to be
found in cl. (2) of Art.
311
of the
Constitution prior to its amendment having been taken away by
the Constitution (Forty-Second Amendment) Act, 1976, there is
no provision of law under which a Government servant can claim
E
-" this right. This Court lllst week in the Secretary, Central
Board of Excise & <mitmm & Ors. v. LS. Kahalingaa (C.A.No.
1279/86 decided on April 24, 1986) after referring to the
constitutional changes brought about observed :
+
"After the amendment, the requirement of cl. (2)
F
will be satisfied by holding an inquiry in which
the Government servant has been informed of the
charges
against
him
and
given
a
reasonable
opportunity of being heard."
After the majority decision in Tulsiraa Patel's case, it
G
can
no
longer
be
disputed
that
the
right
to make
a
representation on the proposed penalty which was to be found
in cl.(2) of Art. 311 of the Constitution having been taken
~ away by the Forty-Second Amendment, there is no provision of
law under which a Government servant can claim this right.
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It seems to be purely academic to refer to the vintage·~
decisions of the Privy Council in IH.gh Coumlssioner for India
v. I.M. Lall, L.R. (1947-48]
75 IA 225 and that of this Court
in IChem Qiand v. Union of India & Ors., (1958] S.C.R. 1080
following it or the plethora of decisions thereafter which
have now become otiose after the Forty-Second Amendment by
which the words ' a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him' were
deleted a~ the end of cl. (2) of Art. 311 and proviso to cl.~
(2) substituted, with the object of doing away with the second
opportunity of making representation at the stage of imposing
penalty i.e. at the conclusion of the inquiry. It is however
necessary to
refer to these two decisions briefly with the
object of showing the prejudicial effect on such delinquent-{
Government servants. More so, because the majority decision in
Tulsiraa Patel's case seeks to justify the amendment effectedi
by the Forty-Second Amendment of cl. (2) of Art. 311 by
observing that 'cl. (2) of Art. 311 as originally enacted and
the legislative history of that clause wholly rule out the
giving of any opportunity'. We have our own reservations about
the correctness of this proposition. It is not quite accurate
to suggest that the opportunity of showing cause before a
Government servant was dismissed, removed or reduced in rank
was not contemplated by law nor justified by the legislative il
history.
In I.M. I.all's case, Lord Thankerton while interpreting
the words ' a reasonable -0pportunity of showing cause against
the action proposed to be taken in regard to him' in sub-s.
(3) of s. 240 of the Government of India Act, 1935 speaking+
for the Judicial Committee of the Privy Council, observed :
"In the opinion of their Lordships, no actioo is+ -
proposed within the IE3lling of the snMectioo
until a definite conclusioo has been come to oo the
charges, and the actual punishment to follOil is
provisionally determined on. Before that stage, the
charges are unproved and the suggested punishments
are merely hypothetical."
~
(Emphasis supplied)
RAM CHANDER v. u.o.I. [SEN, J.]
993
~That very distinguished Judge went on to say
"It is on that stage reached that the statute gives
the civil servant the opportunity for which sun.
(3) makes provision."
And then added :
"Their Lordships would only add that they see no
difficulty in the statutory opportunity being
reasonably afforded at .:ire than one stage. If the
civil servant has been through an enquiry under
Rule SS, it would not be reasonable that he should
ask for a repetition of that stage, if duly carried
out but that would not exhaust his statutory right,
and he would still be entitled to represent against
the punishment proposed as
the result of the
findings of the inquiry."
The phrase ' a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him'
appearing in sub-s. (3) of s. 240 of the Government of India
Act,
193S was reproduced in cl. (2) of Art. 311 of the
Constitution as originally enacted i.e. prior to its amendment
-"by the Constitution (Fifteenth Amendment) Act, 1963. It would
appear that in the original Art. 311(2) as it stood before the
Fifteenth Amendment, the obligation to afford an opportunity
at two stages, namely, at the stage of inquiry into the
charges and, again, at the stage of awarding punishment, was
+not explicitly stated in the Article itself. It merely
required that opportunity must be given to show cause against
_i_;,he 'action propposed'. As already stated, the obligation to
f;ffer such opportunity at two stages was however deduced
judicially by the Privy Council in I.M. I.all's case.
In Kbea Oiand's case, the Court following the judgment of
the Privy Council in I.M. I.all's case came to the same
conclusion from the word 'reasonable'. The Government servant
llllst not only be given an opportunity but sueh opportunity
-{llllst be a reasonable one. In order that the opportunity to
show cause against the proposed action may be regarded as a
reasonable one, it is quite necessary that the Government
servant should have the opportunity, to say, if that be his
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case, that he has not been guilty of any misconduct to merit
any punishment at all and also that the particular punishment'r
proposed to be given is lll.lch more drastic and severe than he
deserves. It referred to the above passages from the judgment
of the Privy Council in I.M. I.all's case, and observed :
"Further
opportunity is
to
be
given to
the
Government servant after the charges have been
established against him and a particular punishment
is proposed to be meted out to him."
~
In short, the substance of the protection provided by Rules,
like r. 55 referred to above, was bodily lifted out of the
rules and together with an additional opportunity embodied in;
s.240(3) of the Government of India Act, 1935 so as to give a1
statutory protection to the Government servants and had n~
been incorporated in Art.
311(2) so as to convert the
protection
into
a
constitutional
safeguard.
The
legal
consequence therefore was that :
"At the second stage, the delinquent Government
servant was therefore entitled to contend -
(a) that the inquiry at which the findings were
arrived at was
vitiated by
a breach of
the"'
principles of natural justice.
(b) That the findings were not supported by the
evidence in the proceedings, or that the evidence
against him was not worthy of credence or that h~
was not guilty of any misconduct to merit . and
punishment at all.
(c) That the punishment proposed could not ~
properly awarded on the findings arrived at, that
is to say, the charges proved did not require the
particular punishment proposed to be awarded."
After Parliament frustrated the attempt of the Government
to delete the constitutional safeguard as evolved by thiit
Court in Kliem Qiand's case following the principles laid dowif'
in the Privy Council decision in I.M. I.all's case by deletion
of the words ' a reasonable opportunity of showing cause
RAM CHANDER v. U.O, l. [SEN, J,]
995
against the action proposed to be taken in regard to him'
by
-<f the Constitution (Fifteenth Amendment) Act, 1963, tt seems
somewhat strange that after more than a decade the Government
of the day thought it fit to remove this valuable safeguard by
the Forty-Second Amendment. It is particularly important to
notice how closely Members of Parliament scrutinised the
motives of the Government while discussing the Fifteenth
Amendment Bill and it is profitable to read the debates
leading to the passsng of the Fifteenth Amendment. 'nlere could
·-..\ scarcely be a better example of the principle that the
constituent
powers
to
amend
the
Constitution,
however
permissible, 11J.1St be used with scrupulous attention to their
true purpose and for reasons that are relevant and proper. A
determined attempt on the part of the Government to unsertle
~ the law as laid down by this Court was successfully frustrated
on that occasion. Although the clause as orl.ginally drafted in
·~ the Amendment Bill was deficient insofar as it conferred no
express protection as regards the second stage i.e. the stage
of punishment, but the Fifteenth Amendment Act as passed,
introduced the requirement of giving a reasonable opportunity
on the penalty proposed, after the conclusion of the inquiry
into the charges and after a penalty had been provisionally
determined. After considerable debate in Parliament, Shri
Ashok Sen, Law Minister, intervened, in deference to the
~ concern expressed by Members representing all sections of the
House over the Amendment Bi 11 by which the Government was
seeking to remove the opportunity at the second stage, and
gave an assurance that he would move an amendment, making it
clear that the second opportunity in regard to the punishment
, + proposed would be retained, but such opportunity shall be only
on the basis of the evidence adduced during the inquiry. ni.e
Government accordingly moved the following amendment :
t
"And where it ts proposed, after such inquiry, to
impose on him any such penaltty, until he has been
given
a
reasonable
opportunity
of
making
representation on the penalty proposed, but only on
the basis of the evidence adduced during such
inquiry."
-1
We may recall the words of the law Minister on that
occasion while intervening in the debate on the original
draft:
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"Now, Sir, as I explained, when the motion was
first before the House and before it went to the
~
Joint Committ;ee it was never the intention of the
Government to vary rule 25 of the civil service
rules which provided for representation by the
civil servant against the penalty proposed. The
point taken was that in future some irresponsible
Government might do way with rule 25 ignoring the
assurance given to Parliament. Well, then, I told
the representatives of the civil servants and other ~
representatives of the INTUC who had come to see me
to give me a draft which would make it quite clear
that
the
representation
against
the
penalty
proposed would not include any right to insist on
further hearing and further evidence being given. 1
They gave me that draft which I have accepted with
a slight modlf ication.
~
I, therefore, dispel any idea, if there ls any,
that there has been any deviation from the ideals
of democracy and preservation of the vital rights
not only of civil servants but of the citizens. I
hope we shall never deviate from that course
because it is our great strength and it is through
the processes of democracy that we are functioning,
•
not through the processes of fear or force. (Lok
Sabha Debates, 3rd Series, Vol. XVIII, 1963,
4th
Session, p. 13152~54),
The Fifteenth Amendment, in fact, clarified the legal
position under the existing law by requiring that opportunity i
1111st be given to the delinquent Government servant not only at
the first stage to be heard in respect of the charges but also f
at the second stage i.e. after the disciplinary authority had
come to a tentative conclusion of guilt at the conclusion of
the inquiry and had decided upon the punishment proposed to be
inflicted. It was a necessary and sufficient safeguard against
arbitrary and excessive executive action written into the
Constitution. Unfortunately, now the Forty-Second Amendment
has achieved what the Fifteenth Amendment could not. By the
constitutional amendment, the Government has taken away the
~
essential Constitutional safeguard.
RAM CHANDER v. U.O.I. [SEN, J.]
997
It is a fundamental rule of law that no decision 1111st be
j taken which will affect the rights of any person without first
giving him an opportunity of putting forward his case. Both
the Privy Council as well as this Court have in a series of
cases required strict adherence to the rules of natural
justice where a public authority or body has to deal with
rights. Unfortunately the first proviso to cl. (2) of Art. 311
has eliminated the rule audi alteram partem at the second
stage i.e. observance of the rules of natural justice and the
~ requirement
of
a
reasonable
opportunity
of
making
representation on the proposed action. The question still
remains as to the stage when the delinquent Government servant
would get the opportunity of showing cause against the action
taken against him. Where does he get an opportunity to
'~ exonerate hi1111elf from the charge unless he is allowed to show
that the evidence adduced at the inquiry is not worthy of
\ credence or consideration ? Does he ever get a right to show
that he has not been guilty of any misconduct so as to deserve
any punishment, or that the charges proved against him are not
of such a character as to merit the extreme penalty of
dismissal or even of removal or reduction in rank and that any
of the lesser punishments ought to have been sufficient in his
case ? But we are bound by the majority decision in 'IUlsiram
Patel's case.
After the constitutional change brought about it see111S
that the only stage at which now a civil set"1ant can exercise
this valuable .right is by enforcing his remedy by way of a
departmental appeal or revision, or by way of judicial review.
In 'IUlsira Patel's case, -the majority decision has pointed
f- out that even after the Forty-Second Amendment, the inquiry
required by cl. (2) of Art. 311 would be the same except that
\ it would not be ·necessary to give to a civil servant an
-"t opportunity to make representation with respect to the penalty
proposed to be imposed on him. In such a case, a civil servant
who has been dismissed, removed or reduced in rank by applying
to his case one of the clauses of the second proviso to Art.
311
(2) or the analogous Service Rule has two remedies
available to him. These remedies are : ( i) the appropriate
departmental appeal provided for in the relevant Service
i
Rules, and (ii) if still dissatisfied, invoking the Court's
power of judicial review. In Satyavir Singh & Ors. v. Union of
India & Ors., [1985) 4 s.c.c. 252 there is an attempt made to
analyse the ratio of the majority decision in 'l\llsiraa Patel's
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case and the nature of the remedies left to the civil servant
at pp.276-281 of the report. If that be so, in a case governed ~
by one of the clauses of the second proviso to Art. 311(2) or
an analogous Service Rule, there is still all the more reason
that in cases · not governed by the second proviso, a civil
servant subjected to disciplinary punishment of dismissal,
removal or reduction in rank under cl. (2) of Art. 311 would
have these remedies left to him. Virtually this is tantamount
to a post-decisional hearing. There has been considerable
fluctuation of judicial opinion in England as to whether a ~
right of appeal is really a substitute for the insistence upon
the requirement of a fair hearing or the observance of natural
justice which implies 'the duty to act judicially'. Natural
justice does not require that there should be a right of
appeal from any decision. This is an inevitable corollary of -{
the fact that there is no right of appeal against a statutory
authority unless the statute so provides. Professor H.W.R. 1
Wade in his Administrative Law, 5th edn., at P• 487 observed:
''Whether a hearing given on appeal is an acceptable
substitute for a hearing not given, or not properly
given, before the initial decision is in some cases
an arguable question. In principle there ought to
be an observance of natural justice equally at both
stages •••• If natural justice is violated at the ,l..
first stage, the right of appeal is not so llllCh a
true right of appeal as a corrected initial
hearing: instead of fair trial followed by appeal,
~
the procedure is reduced to unfair trial followed
by fair trial."
'+
After referring to Megarry, J.