# TI-IE SUPREME COURT REPORTS STATE OF ASSAM & ANOTHER v. BIMAL KUMAR PANDIT

- **Citation:** [1964] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. HIDAYA'.l'ULLAH, K. C. Das Gupta, J. c. SHA.R
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ti-ie-supreme-court-reports-state-of-assam-another-v-bimal-kumar-pandit-2839
- **Pages:** 18

## Headnote

Governnicnt Servant-8u1JjJension, enquiry and de11iol1onRea•onable Oppo1tunity what is-Contents of .econd notice
when Governrnent accept,r.:,
rejects or partly accepts or pa.rt!y
rejects the findings of Enquiry Officer.-Necessity of stating
conclusions of Government in notice-llunction of 1Cn11u..i'.ry
Officer-Constitution of India, Art. 311 (2).
,
The respondent was an Extra
Assistant Com1nissioner.
He was charge-sheeted and he submitted an elahorate explanation in respect of. all the
charges. The enquiry was held by
the Commissioner and a report submitted by him.
After
giving his findings, the
Commis~doner added that the lapses
proved did not cast any serious doubt on the honesty and inte~
grity of the respondent and hence the withholding of three
increments from his pay would meet the ends of justice. The
appellant served a second notice on the responde.nt and the
latter was asked to submit his
explanation why penalty of
removal from service should not be imposed upon him. 'fhe
respondent submitted an explanation and the Governor of
Assam, after considering the explanation, ordered his demotion.
That order was challenged by the respondent by a writ
petition filed
in the High
Court. The writ petition was
allowed by the High Court and a writ of mandamu• was issued
·directing the appellant not to give effect to the order of
demotion. The High Court held that the second notice did
not clearly indicate that the Government had accepted the
findings of Enquiry Officer and as such a statement was not
made in the notice, the respondent could not have known on
what grounds the Government had provisionally decided to
1963
Februor;, 12.
1~63
Statt ef ~rsam
v.
Bimai K11mar Pandit
2 SUPREME COURT REPORTS [1964] VOL.
impose upon him the penalty of removal from service. It
was aho held that the notice must show that the dismissing
authority had applied it• mind to the lindings of the Enquiry
Officer .a.nd had accepted the said findings against the respondent.
I he nollce should cxprcs,.ly stcltc the conclusions of the
dis1nissing authority because unless those conclusions \\:ere
con1municate<l to the respondent, he was not in a position to
rnakc an adecp1atc or effective representation. 'l'he dis1nissing
authority must also indicate the reasnns on whic:h it had C1)1ne
to those couclusions.
A<:, the impugned notice Jid not contain
a specific avermcut that the disrnissing authority had accepted
the findings of the Enquiry OITiccr and other,,·isc gave no
grounds or reasons for the action proposed to be taken against
th~ respondent, it contravened the provisions of 1\11. 311 (2).
·rhe appellant came to this Court by special lca\·c.
lleld, that the 1-Iigh Court \Vas in error in con1i11g to the
conclusion that the order of den1otion
passed against the
res[>Ondent \\'3S in\·ali<l Oil the ground that the respondent had
not hccn given a reasonable opportunity of sho\ving cause
against the action to be taken against him under Art. 311 (2)
of the Constitution.
A public officer against \'.'hotn
disciplinary proceedings
arc intentied to he taken is entitled to ha.ve t\'IO opportunities.
An t>nquiry 1nust be held and it n1ust be conducted according
t<> the rides prescribed in that bc:half and consistently ,,,.iti\ the
rr.quirc1ncnts of natw·al justice.
\Vhen the Enquiry O:Ticcr
subinits his report, the Jis1nissing authority has to consider the
report and decide v.ihether it agrees \Vith the conclusi•>ns of tht.
report or not. If the findings in the report arc against the
public offjcer and the dismissing authority agrees \\'ith them,
another notice has to be given.
In issuing the se~ond notice,
the dismissing authority
has to co:nc to a tentative or provisional conclusion about the guilt of the public officer as \vcll
as about the punishment which \Vould meet the ends of justice.
In response to thi, notice, the
public officer is entitled to
sho\v cause not only against the action proposed to \Je t<tken
against him but also against the validity or corre

## Text

TI-IE SUPREME COURT REPORTS
STATE OF ASSAM & ANOTHER
v.
BIMAL KUMAR PANDIT
(P. B. GAJENDRAGADKAR, K. N. WANCHOO,
M. HIDAYA'.l'ULLAH, K. C. DAS GUPTA and
J. c. SHA.R, JJ.)
Governnicnt Servant-8u1JjJension, enquiry and de11iol1onRea•onable Oppo1tunity what is-Contents of .econd notice
when Governrnent accept,r.:,
rejects or partly accepts or pa.rt!y
rejects the findings of Enquiry Officer.-Necessity of stating
conclusions of Government in notice-llunction of 1Cn11u..i'.ry
Officer-Constitution of India, Art. 311 (2).
,
The respondent was an Extra
Assistant Com1nissioner.
He was charge-sheeted and he submitted an elahorate explanation in respect of. all the
charges. The enquiry was held by
the Commissioner and a report submitted by him.
After
giving his findings, the
Commis~doner added that the lapses
proved did not cast any serious doubt on the honesty and inte~
grity of the respondent and hence the withholding of three
increments from his pay would meet the ends of justice. The
appellant served a second notice on the responde.nt and the
latter was asked to submit his
explanation why penalty of
removal from service should not be imposed upon him. 'fhe
respondent submitted an explanation and the Governor of
Assam, after considering the explanation, ordered his demotion.
That order was challenged by the respondent by a writ
petition filed
in the High
Court. The writ petition was
allowed by the High Court and a writ of mandamu• was issued
·directing the appellant not to give effect to the order of
demotion. The High Court held that the second notice did
not clearly indicate that the Government had accepted the
findings of Enquiry Officer and as such a statement was not
made in the notice, the respondent could not have known on
what grounds the Government had provisionally decided to
1963
Februor;, 12.
1~63
Statt ef ~rsam
v.
Bimai K11mar Pandit
2 SUPREME COURT REPORTS [1964] VOL.
impose upon him the penalty of removal from service. It
was aho held that the notice must show that the dismissing
authority had applied it• mind to the lindings of the Enquiry
Officer .a.nd had accepted the said findings against the respondent.
I he nollce should cxprcs,.ly stcltc the conclusions of the
dis1nissing authority because unless those conclusions \\:ere
con1municate<l to the respondent, he was not in a position to
rnakc an adecp1atc or effective representation. 'l'he dis1nissing
authority must also indicate the reasnns on whic:h it had C1)1ne
to those couclusions.
A<:, the impugned notice Jid not contain
a specific avermcut that the disrnissing authority had accepted
the findings of the Enquiry OITiccr and other,,·isc gave no
grounds or reasons for the action proposed to be taken against
th~ respondent, it contravened the provisions of 1\11. 311 (2).
·rhe appellant came to this Court by special lca\·c.
lleld, that the 1-Iigh Court \Vas in error in con1i11g to the
conclusion that the order of den1otion
passed against the
res[>Ondent \\'3S in\·ali<l Oil the ground that the respondent had
not hccn given a reasonable opportunity of sho\ving cause
against the action to be taken against him under Art. 311 (2)
of the Constitution.
A public officer against \'.'hotn
disciplinary proceedings
arc intentied to he taken is entitled to ha.ve t\'IO opportunities.
An t>nquiry 1nust be held and it n1ust be conducted according
t<> the rides prescribed in that bc:half and consistently ,,,.iti\ the
rr.quirc1ncnts of natw·al justice.
\Vhen the Enquiry O:Ticcr
subinits his report, the Jis1nissing authority has to consider the
report and decide v.ihether it agrees \Vith the conclusi•>ns of tht.
report or not. If the findings in the report arc against the
public offjcer and the dismissing authority agrees \\'ith them,
another notice has to be given.
In issuing the se~ond notice,
the dismissing authority
has to co:nc to a tentative or provisional conclusion about the guilt of the public officer as \vcll
as about the punishment which \Vould meet the ends of justice.
In response to thi, notice, the
public officer is entitled to
sho\v cause not only against the action proposed to \Je t<tken
against him but also against the validity or correctness of the
fi~-1 dings recorded by the Enquiry O!Ticcr
and provisionally
accepted by the disniis~ing authority.
If the dismissing
authority differs fro1n the findings
rccordt'd in the enquiry report, it is nec<:ssary that its provisional conrlusions
should be
specified in the second notice.
If the dismissing authority accepts the findings against the
delinquent olficcr and differs from so1ne or all of those recorded
in his favour and proceeds to specify t!1c nature of the action
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•
2 S.C.R.
SUPREME COURT REPORTS
3
proposed to be taken on its own conclusions, it is necessary
that the said conclusions should be briefly indicated it1 the
notice.
Where the
dismissing authority purports to issue the
notice against the delinquent officer after accepting the enquiry
report in its entirety, it cannot be said that it is essential that
tl:e uismissing authority
must say that it has so accepted the
report.
However, it is desirable that even in such cases a
statement to that effect should be made, but failure to make
such
statement
does not
contravene
the provisions of
Art. 311 (2).
As regards the functions of the Enquiry Officer, unless
there is any rule or statutory provision to the contrary, he is
not required to spedfy the punishment which may be imposed
on the delinquent officer. His task is merely to hold an enquiry
into the charges and make his report staticyg forth his conclusions and findings in respect of the said charges. Sometimes,
the Enquiry Officers do indicate the nature of the action that
may be taken against the delinquent officer, that ordinarily is
outside the scope of the enquiry.
A. N. D'Silva v. Union of India, [1962] Supp. I S. C.R.
968, High
Oommi.<Bioner of
India v. I. M. Lal, (1945]
F. C. R, 103, Khem Chand v. Union of India, [1958] S. C. R.
1080,
The State of Orissa v. Govindadas Panda,
C. A.
No. 412/58, dt.
10-12-1958, State of Andhra v. T. Ramayya
Suri, A. I. R. 1957 Andhra 370, Bimal Charan Mitra v. State
of Orissa A. I. R. 1957 Ori'8a 184, Krishan Gopal Mul:h'erjee
v. The State, A. I. R. 1960 Orissa 37 and State of Bombay v.
Gajnan Mahadev Baldev, A. I. R. 1954 Born. 351, referred to.
CrvrL APPELLATE JURISDICTION: Civil Appeal
No. 832of1962 .
Appeal by special leave from the judgment
and decree dated January 22, 1962, of the Assam
High Court in Gauhati, in Civil Rule No. 369 ofl961.
.,.
JJf.
Q. Setalvad and Naunit
Lal,
for the
appellant.
N. C. Chatterjee and D. N. Mukherjee, for tq<;
respond ent,
/963
St,,.tJ OJ Assam
v.
dimal f(uona1 Pandit
1963
~talt of AJ.tam
v.
Bimai l .. umar Fontiit ·
4 SUPREME COURT REPORTS jl964] VOL.
196;{. February 12. The Judgment of the
Court was delivered by
G.~.JE1'"DHAGADKAH . .J.-This appeal by special
leave raises a
short qu,:stion about the scope and
effect of the provisions contained in Article :.111 (:?)
uf the Constitution.
The: said questiu11 arises in this
way.
The respondent Bunal Kumar Pandit was
serving appellant :\o. I, tl1c State of Assam, as an
E:arn-Assistant
Com111issioncr,
:--hillong.
On
December 11, l!J59, the second appellant, the Chief
Secretary to the Government of Assa·n, scn•ed on the
respondent a charge-sheet containing eleven specific
charges and called upon him to show cause why he
should not i;>e dismissed from
service or otherwise
punisi1cd under Rule ;i5 of the; Civil Services (ClassiIication, Control & Appeal) l{ulrs read with Art. :HI
of the Constitution. The said notice further informed the respondent tl1at tlie Governor of As.sam had
been pleased tu authorise the Commissioner of Plains
Divi,ion, Assam, to conduct
the enquiry and to
report to appellant No. 2.
011 January 13, 1900
the respondent submitted an elaborate explanation in
respect of all the charges. The Commissioner of
Plains Division, Assam, Lllen proceeded to hold an
enquiry and after considering the evidence adduced
before him, he made the report on April 12, 1960.
In this report the Enquiring Olliccr found that out
of the 11 charges drawn up
agains~ the respondent,
6 had not been proved
and of the remaining 5
charges, two had been fully established-they were
charges (7) and (IO); and the other three chargesNos. (I), (~) and (4) had been partially established.
The report made these findings and proceeded to add
that the· lapses proved did uot
cast any serious doubt
on the honesty and integrity of the delinquent officer,
although the
evidence led in respect of charges (I)
and (2) proved his inexperience and that led under
charges (2) and (4) showed his irrespom1bility.
The
report further stated that in the circumstances, the
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2 S.C.R.
SUPREME COURT REPORTS
5
two charges which deserved consideration for purposes of punishment were charges (7) and (10); and it
ended with the recommendation that in view of the
limited scope of the charges proved and of the age
and experience of the delinquent officer, the withholding of three increments from his pay would meet
the ends of justice in this case.
•
After this report was received, appellant No. 2
served a second
notice on the
respondent on
June 1, 1960. This notice referred to the disciplinary proceedings held against the respondent and
added that the respondent was thereby required under
clause (2) of Art. 311 of the Constitution to submit his explanation if any, why the penalty of
removal from service should not be imposed upon
him. The notice further stated that a copy of the
report of the Enquiring Officer in the disciplinary
proceedings drawn up against the respondent was
enclosed.
The respondent was told that he had to
submit his explanation through the Commissioner
of Plains Division, Assam, on or before June 18,
1960.
On receiving this notice, the respondent submitted his explanation on June 21, 1D60 in respect
of the charges which had been held proved by the
Enquiring Officer.
After considering the explanation
thus submitted by the respondent, the Governor of
Assam was pleased to reduce in rank the respondent
who was on probation in the Assam Civil Service,
Class I to the Assam Civil Service Class II, permanently, with effect from the date he takes over as
such.
The Governor of Assam · further ordered th at
<+
the respondent will be on probation in the said
Class II Service for two years, subject to termination.
if his work and conduct were not found satisfactory.
The respondent was to draw his pay in the minimum
of the scale of pay of A. C. S., Class II and his
~eniority in the cadre wm1ld be determined with
1963
Stat, of Assam
v.
Bima/ Kumar Pandit
Gqfendragadkar, J.
1963
Stat1 llf Auo111
v.
Bi:1Ml Kumnr Pow/if
6
SUPREME COURT REPORTS [1964] vot.
effect from the date of his joining. This Order was
made on July 8, 1961.
The respondent thm challenged the validity of
this order by a writ petition in the High Court of
.Judicature at Assam
'.ln
August, 24, l9til.
One
of the points urged by him was that he had not been
given a
reasonable opportunity of showing cause
against the action which was ultimately
taken
against him under Art. 311 (2); and he urged that
the contravention of .\rt. 3ll (2)
rendered
the
impugned order invalid. He urged other contentions
also, but those have beer: rejected by the High Court,
while his main point mder Art. 3ll (2) has been
upheld.
In the result, the High Court has allowed
the writ petition and issued a mandamus directing
the appellants not to
;~ive effect to the order date,-d
8th July, 19Gl.
It is against this order that the
appellants h;1ve come to this Court by special leave .
•
We have already referred to the second notice
served on the respondent under Art. 311 (2).
The
respondent's contention •vhich has been accepted by
the High Court is that in the said notice, appellant
No. l has not clearly indicated that it accepted the
findings of the Enquiring Officer; and since such a
statement is not made in the notice, the respondent
could not have known on what ground appellant
No. 1 provisionally decided to
impose
upon the
respondent the penalty of removal from
service.
The High Court has hel<l that the notice issued under
Art. 31 l (2) must show that the dismissing authority
has applied its mind to the findings of the Enquiring
Officer and has accepted the said findings against
the delinquent oflicer.
In other words the notice
should expressly state th: conclusions of the <lismissing authority, because unless these conclusions are
communicated to the delinquent otficer, he would
not he able to make an ;tdequate or rffective reprcsc11tation.
According tc the High Court, in rccor-
<ling such conclusions, tt e dismissing authority must
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•
2 s.c.R.
SUl>RF.ME COURT REPORTS
7
also indicate the reasons on which it had come to
those conclusions against the delinquent officer and
since the impugned notice did not contain a specific
averment that the dismissing authority had accepted
the findings of the enquiring officer and otherwise
gave no grounds or reasons for the action proposed
to be taken against the respondent, it contravened the
requirements of Art. 311 {2) and so, it must be held
to be void.
Mr. Setalvad for the appellants contends that in coming to this conclusion, the High
Court has mis-interpreted the scope and effect of
Art. 311 (2).
Article 311 (1) provides, inter alia, that no
person covered by the said sub-article shall be dismissed or removed by an authority subordinate to
that by which he was appointed. We are not concerned with this sub-Article in the present appeal.
Article 311 (2) provides that no such person as specified in Art. 311 (1), shall be dismissed or removed
or reduced in rank until he has Leen given a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him.
It is now
well settled that a public officer against whom
disciplinary proceedings are intended to be taken is
entitled to have two opportunities before disciplinary
action is finally taken against him.
An enquiry
must be held and it must be conducted according to
the rules prescribed in that behalf and consistently
with the requirements of natural justice.
At this
enquiry, the public officer concerned would be
entitled to test the evidence adduced against him by
cross-examination, where necessary, and to lead his
'>Wn evidence.
In other words, at this first stage of
the proceedings he is entitled to have an opportunity
to defend himself. When the enquiry is over and
the enquiring officer submits his report, the dismissing authority has to consider the report and decide
whether it agrees with the conclusious of the report
or not. If the findings, in th<" report are against the
I
1963
St'Jte of Assam
v.
Bimal /( umar Pandit
Gajendragudkar, J,
J.Wi.'J
Statt oj A.1·wm
v.
fl i•nal K umnr Pandit
8
SUPREME COURT REPORTS [1964] VOL.
public officer and the dismissing authority agrees
with the said findings, a stage is reached for giving
another opportunity to the public officer to show
why disciplinary action should not be taken against
l1im.
In issuing the second notice, the dismissing
;u:thority naturally has to come to a tentative or
provisional conclusion about the guilt of the public
officer as well as about the punishment which would
meet the requirement of justice in his case, and it
is only after reaching conclusions in both these
matters provisionally that the dismissing authority
issues the second notice.
There is no doubt that in
response to this notice; the public officer is entitled
to show cause not only against the action proposed
to be taken against him, but also against the validity or the corr~ctness of the findings recorded by
the enquiring officer and provisionally accepted by
the dismissing authority. In other words, the second
opportunity enables the public ofiicer to cover the
whole ground and to plead that no case had bi~en
made out against him for taking any disciplinary
action and then to urge that if he fails in substantiating his innocence, the action proposed ta be taken
against him is either uncbly severe or not called for.
This position is not in dispute.
The High Court seems to have taken the view
that in order that the public officer may have a
reasonable opportunity,
the dismissing authority
must indicate its conclusions on the findings recorded by the enquiring officer and must specify reasons
in support of them. According to this view, the fact
that the copy of the report made by the enquiring
officer was sent to the delinquent officer along with
the notice indicating the nature of the action proposed to be taken against him, does not help to meet
the requirement of Art. 311 (2).
The argument is
that unless this course is adopted, it would not be
clear that the dismissing authority had applied its
mind and had provisionally C·Drne to some conclusions
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2 S.C.R. SUPREME COURT REPORTS
9
both in regard to the guilt of the public officer and
the punishment which his misconduct deserved. It
may be conceded that it is desirable that the dismissing authority should indicate in the second notice
its c.mcurrence with the conclusions of the enquiring
officer before it issues the said notice under Art. 311
(2).
But the question which calls for our decision is
if the dismissing authority does not expressly say
that it has accepted the findings of the enquiring
officer against the delinquent officer, does that int:oduce such an infirmity in the proceedings as to make
the final order invalid? We are not prepared to
answer this question in the affirmative.
It seems to
us that it would be plain to the delinquent officer
that the ismance of the notice indicating the provisional conclusions of the dismissing authority as lo the
punishment that should be imposed on him, obviously and clearly implies that the findings recorded
against him by the enquiring officer have been accepted by the dismissing authority;
otherwise there
would be no sense and no purpose in issuing the
notice under Art. 311 (2).
Besides, we may add that
in the present case. the affidavit made by appellant
No. 2 clearly shows that before thr impugned notice
was served on the respondent, the Government bad
accepted the findings of the enquiring officer which
means tbat the Government agreed with the enquiring officer in regard to both sets of findings recorded
by him.
Therefore, we do not think that the failure
to state expre'Ssly that the dismissing a,1thority has
accepted the findings recorded in the report against
the delinquent officer, justifies the conclusion that
the notice given in that behalf does not afford a
reasonable opportunity to the delinquent officer under
Art. 311 (2).
On receiving the notice in the present
case, it must have been obvious to the respondent
that the findings recorded against him by the enquiring officer had been accepted by the appellants and
so, we think it woulcl not be reasonable to accept the
1963
State of Assam
v.
Bimal Kumar Pandit
Gajendragadkar, J
1963
Slate "f A1.uam
v.
Bimal /, 'umo1 Punt/it
':a;tt1d111;adf..ar I.
10 SUPREME COURT REPORts [1964] VOL.
view that in the present case, he had no reasonable
opportunity as required hy Art. 311 (2).
We ought, howcvcr, to add that if the dismissing autl10ritv differ; from the lindin<YS recorded
i~ . the enquiry. ;.cpon, it is necessary
tl~at its prov1s1onal concl11s1011s in th«l behalf should be specified
in the second notice.
It may be that the report
makes findings in favour of the delinquent officer,
but the dismis1ing authC1rity disagrees with the said
findings and proceeds to issue
the notice under
Art. 311 (2).
In such a case, it would obviously be
necessary that the dismissing authority should expressly state that it differs from the findings recorded
in the enquiry report and then indicate the nature of
the action proposed to bt· taken against the delinquent officer.
Without such an express statement in
the notice, it would be imJossible to issue the notice
at all.
There may also n:ay be cases in which the
enquiry report may mal;e findings in favour of the
delinquent officer on somi: issues and against him on
some other issues.
Tha: is
precisely
what has
happened in the present case.
If the dismissing
authority accepts all tht said
findings
in
their
entirety, it is another matter: but if the dismissing
authority accepts the fin:lings recorded against the
delinquenl ofliccr and differs from some or all of
those recorded in his fa\'1Jur and proceeds to specify
the nature of the action proposed to be taken on it1
own conclusions, it would be necessary that lhe said
conclusions should be briefly indicated in the notice.
In this category of cases. the action proposed to be
taken would be based not conly on the findings recorded against the delinquc1t ofliccr in the enquiry
report, but also on the view of the dismissing authority that the other charfCS not held proved by the
enquiring officer arc, acrnrding to the dismissing
authority, proved.
In order to give the delinquent
officer a reasonable opportt:nity tll show cause under
Art. 311 (2), it is essential that the conclusions
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2 S.C.It SUPREME COUR1' REPORTS
11
provisionally reached by the dismissing
authority
must, in such cases, be specified in the notice. But
where the dismissing authority purports to proceed to
i.»ue the notice against the delinquent officer after
accepting the enquiry report in its entiretv, it cannot
be said that it is essential that the dismissing authority must say that it has so accepted the report.
As
we have already indicated, it is desirable that even
in such cases a statement to that effect should be
made.
But we do not think that the words used in
Art. 311 (2) justify the view that the failure to make
such a statement amounts to
contravention of
Art. 311 (2).
In dealing with this point, we must
bear in mind the fact that a copy of the enquiry
report had been enclosed with the notice, and so,
reading the notice in a common sense manner, the
respondent would not have found any difficulty in
1 ealising that the action proposed to be taken against
him proceeded on the basis that the appellants had
accepted the cone lusions of the enquiring officer in
their entirety.
It has, however, been urged by Mr. Chatterjee
for the respondent that in the present case, the appellants must have proceeded to issue the notice against
the respondent after coming to the conclusion that
some of the findings recorded. in the enquiry report
in favour of the respondent were not correct.
His
argument is that the enquiry report had suggested
that the withholding .of three increments would meet
the ends of justice in the present case, nevertheless
the notice issued by the appellants indicated that the
action proposed to be taken was
the respondent's
removal from service.
It is true that the ultimate
action taken against him was not as severe; he has
•
been merely demoted to Class II Service. But it is
suggested that the severity of the punishment proposed to be
inflicted on the 7espondent rather
suggests that the appellants felt that some of the
other charges which the enquiring officer had not
1963
State ef Assam
v.
Bimsl J(tJmar Pandit
Cajenlirag :dkar, J,
1§63
State of Assam
v.
Bimal Kumar Pandit
Gajendragadkar, J.
12
SUPREME COURT REPORTS [1964] VOL.
held proved appeared to be proved to the appellants.
This argument is no doubt ingenious; but in the
circumstances of this case, we do not think it can be
accepted.
As this Court has held in A . • Y. D'Silva
v. Union of Irulia (i), in the absence of rules or any
statutory provisions to the contrary, the enquiring
officer is not required to specify the punishment
which may be imposed on the delinquent officer.
His task is merely to hold an enquiry into the charges
and make his report setting forth his conclusions and
findings in respect of the said charges.
Sometimes
the enquiring officers do indicate the nature of the
action that may be taken against the delinquent
officer, but that ordinarily is outside the scope of the
enquiry. That being so, not much significance can
be attached to the recommendation made by the
enquiring officer in the present case.
Besides, it is
absolutely clear that under the relevant rules, the
punishment proposed to be imposed on the respondent was justified even on the findings recorded
against him by the enquiring officer, and so, it would
be idle to contend that unless the appellant~ had
differed from the conclusi,ms of the enquiring officer
in respect of the charges which he held not proved,
they could not have legitimately thought of imposing the said punishment on him.
Therefore, in our
opinion, the argument that the action proposed to
be taken i tsclf shows th<tt the appel ]ants did not
accept the findings recorded by the enr1uiring officer
in favour nf the respondent must be rejt.~cted.
We will now refer to some of the decisions on
which
~1:r. Chatterjee relied.
[n the case of The
Hiyh Co11,,,1is,£oner of India v. I. 21{. Lr1l ('), the
Federal C<w•t had to consider the scope and effect of
the provisinm of s. 240(:{) of the C'mstitution Act of
19:l:l. Thi, provision is substantially similar to the
provisions <\JOt~ined in Art. :l 11 (2) of the Constitution.
According to the majority view of the Federal
Court in that case, all thats. 240(:J) required was
(I) [1962] Supp. IS. C.R. 968.
(2) (IH!l] F. C, R. I03, 136.
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2 S.C.R. SUPREME COURT REPORTS
13
not only notification of the action proposed bqt of
the grounds on which the authority was proposing
that the action should be taken, and that the person
concerned must then be given reasonable time Lo
make his representations against the proposed action
and the grounds on which it was proposed to be
taken.
Mr. Chatterjee contends that this decision
shows that the notice served on the delinquent officer
must set forth the grounds on which the particular
action was proposed to be taken.
He emphasises
the fact that in the judgment it has been specifically
stated that grounds should be stated on which the
action is proposed to be taken, and that clearly
shows that the dismissing authority must indicate its
reasons in support of the said action. In our opinion,
this argument is not justified, because the context in
which the said observations were 1rntde by the Federal
Court clearly shows that the grounds to which the
judgment refers are the findings
or conclusions
reached by the enquiring officer.
In fact, in the
subsequent passage, it has been expressly observed
that the requirement of s. 240(3) involves "in all
cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or
reduction in rank,
that the
person concerned
shall be told in full. or adequately summarised form,
the results of that. enquiry, and the findings of the
enquiring officer and be given an opportunity of
showing c;iuse with that information why he
should not suffer the proposed dismissal or reduction in rank." It would be noticed that this statement clearly shows that what the Federal Court
held was that the dismissing authority must convey
to the delinquent officer the findings of the enquiring
officer either fully, or adequately summarised, and
state the nature of the action proposed to be taken
against him.
In other words, the officer concerned
ought to know what findings have been recorded
against him and should be given a chance to
challenge those findings and to question the propriety
1963
Stale of AJsam
v.
Bimal Kumar Pandit
G .. f·ndragadhar, 1.
1963
5112·1 of As.um
v.
Himai Krmur Pt1'ldil
Gt1jt11dra;adka1, J.
14 SUPREME COURT REPORTS [1964] VOL.
of the action proposed to be taken against him.
In
this context, therefore, the grounds which, according
to the judgment, have to be stated in the notice do
not indicate grounds or reasons which would show
why the dismissing authority accepts the enquiring
officer's report, but the grounds, reasons, or findings
which have been recorded by the enquiring officer
are required to be stated. Therefore, we do not
think that Mr. Chatterjee is justified in contending
that the decision of the Federal Court in I. M. Lal's
case supports the view taken by the High Court in
the pr~ent proceedings.
It is true that in the case of Kliem Chq,nd v.
The Union of India (' ), this Court has held that :
"Reasonable opportunity envisaged by Art. 311 (2)
includes, inter-alia, an opportunity to make his representation as to why the proposed punishment should
not be inflicted on him, which he can only do if the
competent authority, after the enquiry is over ar:d
after applying his mind to the gravity or otherwise
of the charges proved against the Government servant,
tentatively proposes to inflict one of the threr punish.
ments and communicates the same to the Government
servant." There is no doubt that after the report
is received, the appropriate authority must apply its
mind to the report and must provisionally decide
whether the findmgs recorded in the report should be
accepted or not. It is only if the findings recorded
in the report against the Government servant are
accepted by the appropriate authority that it has to
provision:>lly deride what action should be taken
agaimt him.
But this does not mean that in every
case, the appropriate authority is under a conslitu ·
tional obligation to state in the nolice that it has
accepted the adverse findings recorded by the enquir·
ing officer before it indicates I he nature of the act ion
proposed to be taken against the delinquent officer.
Therefore, we do not think that the
decision of
(1) (1~58] S. O. R. 1080, 1097.
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SUPREME COURT REPORTS
15
this Court
in
Khem
Chand's
case
supprots
Mr. Chatterjee's contention.
On the other hand, the decision of this Court
in The Strite of Orissa v. Govindr;dris Panda (1), shows
that a similar order issued by the Orissa Government
was upheld by this Court. In that case, the notice
issued under Art. 311 (2) did not expressly state that
the State Government had
accepted the findings
recorded by the enquiring officer against the Government servant in question.
In fact, even the nature
of the punishment which was proposed to be inflicted
on him was not specifically and clearly indicated.
The Orissa High Court had struck down the order
of dismissal on the ground that the notice was defective and so, the provisions of Art. 31 l (2) had been
contravened.
This Court in reversing the conclusion
of the Orissa High Court, observed that "in the context, it must have been obvious to the respondent
that the p11n::;i1ment proposed was removal from
service and the respondent was called upon to show
cause against that punishment.
On a reasonable
reading of the notice, the only conclusion at which
one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against
the proposed punishment, namely, that of removal
from service." It may be added incidentally that the
pirnishment
which had
been suggested by the
Tribunal was removal from service, as distinguished
from dismissal, and this Court held that the impugned
notice must be deemed to have referred to that
punishment as the action proposed to be taken
against the Government servant.
Therefore, this
decision, in substance, is against the contention raised
by Mr. Chatterjee.
There are, however, some decisions which seem
to lend support to Mr. Chatte~jee's argument and it
is, therefore, necessary to examine them. In the
(l) Civil Appeal NO, 412/1918 decided on 10th Pee., 1958.
1963
State of Assam
v.
Bimal Kumar Pandit
Gujendragtidkar, J.
1963
s-1i;1e <1f Auom
v.
/l•M1~/ f,11111ur Pandit
16
SUPRE:ME COURT REPORTS [1964] VOL.
case of '!'he State of Andhm v. '1'. Ramayya Suri('),
the Andhra Pradesh High Court has held that "under
Art. 311 (2) the authority concerned should nccessari ·
ly in its order requiring the civil srn·ant to sl10·.-·
cause give not only the punishment proposed to !.Jc
inflicted but als0 the reasons for coming to that conclusion." If this observation is intended to lay dowu
a general rule that in every case the appropriat<.:
authority must state its own grounds or reasons for
proposing to take any specific action against the
delinquent government servant, we must hold that
the said view is not justified by the requirements of
Art. 31 I (2).
We ought, however, to add that in the
case with which the Andhra Pradesh High Court
was dealing, it appeared that the Government did
not agree with the Tribunal in regard to its finding
on the third charge and so, its conclusion on the said
charge which was different from that of the Tribunal,
weighed in its mind in proposing to take the specified
action against the Government servant.
In such a
case, it WG:dd be legitimate to hold that the public
servant did not know what was
weighing in the
mind of the Government and so, did not get an
adequate opportw1ity to challenge the view which
the Government wa, inclined to take in respect of
the third charge framed against him.
On these facts,
we think, the High Court was justified in taking the
view that the Government should have indicated in
the notice its conclusion on the third charge. That,
however, does not mean that in the notice, the
Government ought to state its grounds or reasons in
support of its conclusion.
It is the finding or the conclusion
which is weighing in the mind of the
Government that must, in such a case, be communicated to the public servant.
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In Bi11u1l Chnmn :llitra v. S1<1fr of Orissrt ('),
•
the Orissa High Court has held that "the service of
the copy of the findings of the punishing authority
on the public servant is mandatory and the service
(I) A. I, R. 1957 ADdh. 370.
(2) A. I. R. 1957 Oriua. 184.
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2 S.C.R.
SUPREME COURT REPORTS
17
of the report of the enquiring officer who is not the
punishing authority, when there is no indication at
all in the notice that the authority competent to
punish agrees with those findings, cannot constitute
substantial compliance with the requirements of
Art. 311 ( 2)."
This decision seems to suggest that in
issuing the notice under Art; 311. (2), the appropriate
authority must,
besides serving the copy of the
enquiring officer's report on the government servant,
supply the said officer the findings of the punishing
authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion,
'this view is erroneous.
The same comment falls to be made about
another decision of the said High Court in Krisltan
Gopal J,fukherjee v. The State (1).
The last decision to which reference must be
made is the decision of the Bombay High Court in
the Stc1te of Bombay v. Oajanan Maltadev Badley (').
In this case, Chief Justice Chagla has observed that
under Art. 311 (2) it is not sufficient that the State
should call upon the servant to show cause against
the quantum of punishment intended to be inflicted
upon him; the State must also call upon the servant
to show cause against the decision arrived at by a
departmental enquiry if that decision constitutes the
ground on which the Government proposes to take
action against the servant.
This view is clearly
right. But then in support of this conclusion, the
·learned Chief Justice has observed that the public
servant must have an opportunity to show cause not
only against the punishment but also against the
grounds on which the State proposes to punish him;
and
Mr. Chatterjee relies upon this sentence to
support his argument that the grounds on which the
State proposes to act must be communicated to the
public servant. In our opinion, this statement must
be read along with the conclusion of the High Court
(!) A.LR. 1960 Od"a 37,
(2) A.J.R. 1954 Bom. 351.
1963
Stfl.tt of Assdlm
v.
Bimal llumsr P&ndit
dajendragadtar J.
1963
Sto!lt of Assam
·. v.
Bitnal Kumar PJndit
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18 SUPREMlfCOURT REPORTS [1964] VOL.
and so read, it would clearly ihow that what the C. J.
intended to lay 'down was that the findings recorded
in the enquiry report which constitutes the ground on
which the Government proposes to take action must
be communicated to the public servant. Therefore,
.this decision does not support Mr. Chattcrjee's argument that the notice issued under Art. 311(2) must
expressly state that the appropriate authority accepts
the findings of the enquiry ofiiccr and must give
reasons in support of the action proposed to be 'taken
against him.
In the result, we hold that the High Court was
~n error in coming to the conclusion that the order
of demotion passed against the respondent in the
present case was invalid on the ground that the respondent had not been given a reasonable opportunity
of showing cause against the said action under-Art.
311(2). The appeal accordingly succeeds, the order
passed by the High Court is set aside and the writ
petition filed by the respondent i~ dismissed. There
will be no order as to costs.
Appeal allowed.
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