State of Mysore v. K. Manche Gowda

' . _' ·./ J,~ .. \"\~.. _ · \' : s4ci - ' ' SUP~ OOURT REPORTS OOURT REPORTS (1964) -, . '\ '. .~ '' ... ' " 1963 . -carefully, and Cxamined it in the light of the criticism of- . " 1963 . '· \,·. \ ; _Noor_ _KAin_ fcrc;d by. counsel for Noor ·Khan, . and after giving due weight to the opinion of 'the High Court and the Trial Court have come to the conclusion on the facts of this case that no prejudice appears to have been cau -- **v.** - _State_ _of_ _Raiiuthan._ _f_ _ _Shah_ /. . . 1963 sed. - . . . _ As we h~ve already pointed out, the plea of prejudice. caused to_ the accused does not appear to have been raised in the High Court, and apart from the general pica of illega - lity of the trial because of the failure to supply the copies of the record of the statements made to Harl Singh, no substantial argument in support of the plea of pi:ejudice has been advanced. STATE OF MYSORE On the view we have taken, this appeal fails and is . dismissed. . . _Appeal dismissed •_ . _v._ K. :MANCHE GOWDA . _ (P. B. GAJENDBAGADW, K. SuBBA RAo, K. N. WANcHoo, - N. RAJAGoPAU AYYANGAR AND J. R, MunHOLKAR, JJ.) _Civil Si:rr:ant-Riuzsonable oppartunity-Dismissal baseJ on_ _prer:iout_ _punithmmts-Whethi:r an opportunity to erplain_ _be_ _givm_ _**in ·second show**_ _**cause**_ _**no!ice-!'Presumptive**_ _**knowledge"**_ _**and**_ _**"rea-**_ _sonaMe_ _opportunity"-Con.rtitution of_ - _lntlia, Art._ 311(2)-G<>_""'"'ment_ _of_ _India Act,_ 1935, _s._ 240(3). . The rcsponclcnt wai holding the post of an Assisunt to the . Additional Development Commissioner, Planning, Bangalore. A d<:partmental enquiry was held against him and the Enquiry Officer n:commended that the respondent be reduced in rank. Aftct considering the n:port of Enquiry Ol!ia:r, the Government . issued a notice calling upon respondent to show cause why he t • dent was that the entire ase had been foisted on him. After con - sicl<:ring his representaiioa, the Government passed an order dis·:·missing him &om service. The reason given for his dismissal .wu . should not be dismissed &om service. The n:ply of the respon . that the respondent · had on two earlier occasions committed cer tain offences and he had been punished ·for the same. How::vcr, those facts were not given as n:asons for the proposed punishment of dismisul from scrvke. 1963 _St11te_ _df_ _Myj'ore_ v. _**K.**_ _Mani:l1e_ _Coi1/la_ # , ### + It S.b.R. '' The respbndent lill!d ~ petii:iori in the High cirurt urider Art. 226 of the Constitution for quashing the ordet of his' dismi;saJ. Tile High Coµrt quashed the order of dismissal on the gri;mnd **that** **the two** **circumstances** **on** **which the Government** **relied** **tor** **thC** **prop?sCd** **lnfliction** **of** punishmC~t **Of** **dismissal** **were** **_not** **put** **to** the respondent for l\cing explained by him in the show cause no tice which was issued to him. The appellant came to this Court by special leave. The contentions di the appellant were that the Government **W?.s** **entitled** **to** **take** **into** **consideration** **the** **previous** **record** **of** **Ge>-** **vernment** **servant** **in** ~warding **punishment** **to** **b.lln** an~ **it** .w~ **not** **irlCumbent** **Of?.** **it** **tO** **bring to the notice of the Government servant** **the** **said** **fact** **in the** **second** **notice.** **Moreover,** **as** **the** **Government** servant in this case had knowledge of his two earlier punishments he was not in ariy Way prejudiced by their non-disclosure ill the **second** **notice. Dismissing** **the** **appeal,** _Held,_ that it was incuml\cnt upon the Government to give the **Government servant** **at** **the. second stage reasonable. opportunity** **to.** snow cause against the proposed punishment and if the proposed **pUnishment** **wa·s** **also** **based** **on** **his** **pre'Vious** **punishments,** **or** **his** previous bad record, that should be included in the second notice so that he may be able to give an explanation. The doctrine of **upresumptive knowledge"** **or** **that of "putposeless enquiry"** **is** **sub·** **versive of** **the** **principle of** **''reasonable** **opportunity".** _Secretary of State_ _for_ _India,_ v. _I._ _M._ _Lal,_ (1945] F.C.R. 103, _Khem Chand_ v. _Union of India,_ [19581 S.C.R. 1080, _Gopalrao_ v. _State,_ l.L.R. [1954] Nag. 90, _Shankar Shukla_ v. _Senior Superinten-_ _Ji:nt_ _of_ _Post_ _Offices, Lucknow Division,_ A.LR. 1959 All. 624 and _State of_ _Auam_ v. _Bimal Kumar Pandit,_ [1964] 2 S.C.R. referred to. C1v1L APPELLATE fuRrsDICTioN : Civil Appeal No. 387 of 1963. Appeal by special leave from the judgment and order dated February 14, 1962, of the Mysore High Court in Writ Petition No. 916 of 1959. C. _K._ _Daphtary,_ _Attorney-General_ _for_ _India,_ _R._ _Go-_ _palakrishnran_ and _B._ _R._ _G._ _K._ _Achar_ for _P._ _D._ _Menon,_ for the appellant. _N aunit Lal,_ for the respondent. August 22, 1963. The Judgment of the Court was delivered by SuBBA RAo J.'"-This appeal by special leave is preferred against the Order of a Division Bmch of the High O>urt of Myliotc at Bangafore ·quashing the ortlcr of the 542 SUPREME COURT REPORTS [1964] 1963 ·~.. _State_ _of_ _Mysore_ _v_ v. _K.Man'che_ _Gowda_ _Subba_ _R•o_ _f._ Government dated March 13, 1957 dismissing the respondent from service. ~: In the year 1957 the respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore. On June 25, 1957, the Gov: ernment of Mysore appointed Shri G. V. K. Rao, I.A.S., Additional Development Commissioner, as the Enquiry Officer to conduct a departmental enquiry against him in respect of false claim for allowances and fabrication of vouchers to support them. After giving the usual notice, the said Enquiry Officer framed four charges against him. After making the necessary enquiry in accordance with law the said Enquiry Officer submitted his report to the Government with the recommendation that the respondent might be reduced in rank. After considering the report of the Enquiry Officer, the Government issued to him a notice calling upon him to show cause why he should not be dismissed from service. The relevant part of the said show cause notice reads as follows : "The Inquiry Authority has recommended that you may be reduced m rank. As the charges proved against you are of a very grave namre and are such as render you unfit to remain in Government Service, and the Government consider that a more severe punishment is called for in the interest of public service, it is proposed to dismiss you from service." The respondent made representation to the effect that the entire case had been foisted on him. After considering the representations of the respondent, the Government passed an order on January 6, 1959 dismissing him from service. As the argument turns upon the terms of this order, it will be convenient to read the material part thereof : "Government have carefully considered the report of the enquiry, the explanation of Shri Manche Gowda and the opinion furnished by the Mysore Public Service Commission. There is no reasonable ground to accept the version of Shri Manche Gowda that the entire case has been deliberately foisted on him. The evidence on record shows conclusively that the char ges framed are fully proved." T " "As regards the quanmm of punishment, Government . 4 S.C.R. SUPREME COURT REPORTS 543 have examined the previous record of the **Officer** 1963 _Sl•te of_ _Myt<Jre_ v. _K._ _Man<he_ _Gowda_ _Subba._ _Rao_ _f._ ##### Service Commission, is no remedy. Having regard to the status of the Officer and the nature of the charges proved against him, Government have come to the conclusion that he is unfit to continue in Government service and direct that he may be dismissed from service forthwith." It will be seen from the said Order that the reason for giving enhanced punishment above that recommended by the Inquiry Officer as well as by the Service Commission was that earlier he had committed similar offences and was punished-once on April 1, 1954 and again on March 13, 1957. In the second notice those facts were not given as reasons for the proposed punishment of dismissal from service. The respondent filed a petition in the High Court under Art. 226 of the Constitution for quashing the said order and the High Court quashed the order of dismissal on the ground that the said two circumstances on which the Government relied for the proposed infliction of punishment of dismissal were not put to the petitioner for being explained by him, in the show cause notice, which was issued to the petitioner on February 4, 1958. The impugned order was accordingly set aside leaving it open to the State Government to dis; pose of the matter afresh if it desired to do so after compliance with the requirements of Art. 311 (2) of the and have given careful consideration to the recommendation of the Public Service Commission. Shri Manche Gowda was recruited directly as a Gazetted Officer. He had been punished twice-first, in Government Order No. SD 19-16/A: 17. 53-12, dated 1-4-1954, for making false claims of T.A. and tampering with the accounts and ledgers of Food De· pot and again, in Government Order No. 40 MSC 57, dated 13th March 1957 for not having credited to Government certain sums of money which he had collected from the Office Staff. Yet he failed to learn a lesson ; he had indulged in similar offences. It is clear that he is incorrigible and no improvement can , be expected in his conduct. In the circumstances a reduction in pay and continuance of the Officer in Government Service, as recommended by the Public 544 SUPREME COURT REPORTS jl964J 1963 ###### " ## .... _State of_ _Mysore_ v. _K._ _Manche_ _Gowda_ _Subba_ _Rao/._ Constitution. Hence the appeal. Learned Attorney General contends that the· Government is entitled to take into consideration the previous record of a Government servant in awarding punishment to him and it is not incumbent on it to bring to the notice of the Government servant the said fact ih ·~he second notice. Alternatively, he argues that whether ir Gov ernment servant has had a reasonable oppottunlty of being heard or not, being a question of· fact in each case, and in the instant case as the Officer concerned had kilowledge of his two earlier punishments which· formed the basis of the enhanced punishment; he •was not in al1y way prejudiced by their non-disclosure to him ·i11 the · 'se~ond notice and, therefore, tire prinCiples of natural justiee were not violated. - - · . Mr. Naunit Lal, ·learned ·counsel for the respondent, says that a Government servant cannot be punished for his acts or omissiohs unless the said acts or omissions are subject of ·specific charges and are enquired into in: ·accordance with law arrd that, in any view, evert if the Government ·could ·take into consideration a Government · servant's previous record in awarding punishment, the facts that form the basis of that punishment should at least be c;!isclosed in the second notice giving thereby an opportu• i;llty to the said Government servant to explain his earlier conduct The material part of Art. 311 (2) of the Constitution which embodies the constitutional protection given to a G.overnment servant reads thus : "No .. such person as aforesaid shall be dismissed or removed .or . reduced in rank until he has been given a. reasonable opportunity of showing cause against the 1 action . proposed· to be taken in regard to him." S~tion 240(3) of '.the .. Government of India l}ct was _pari_ _materia_ with the,.said clause of the Article of the Cons-. tjtution. That section fell to be considered by tpe: Federal Court. in _Secret11ry_ . _of State_ _for_ _India_ v. _I._ _M.: Lall(\)._ \11 coll.jidering th'\t S).!b.'sectioll, Spens C.J,,. speaki,ng,,£.qr the. majoritY; of the . Cour~,, made . the fo!lowiµg remarks rC:lev;int.tothe.present enquiry:,. •i .,., " 1 [1.'.'It. ] [dcxis ] [Jiowever, ] [seem1· ] [t<;>' ] [l!S·: ] [that. the ] [.s·u~secti~ ] ,rf (~} [1~945JCF.!J;J{;. llH, 139 .. - - ; : ·, : ' . ., - • 4 s:c.R. SUPREME cbu'RT REPo'.Rfs 545 requires that as and when an atithority is definitely proposing to dismiss or to reduce ih rank a member 1963 _state_ _i!f_ _Mysdre_ _j_ j of the civil service he shall be so fold and he shall be given an opportunity of putting his case against the proposed action and .as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. .. ............ .. In our judgment each case will have to turn on its own facts, but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts 1>r omissions on his part and must be told the grounds on which it is proposed to take such action and must be given ·a reasonable opportunity of showing cause why such punishment should not be imposed. This judgment was taken in appeal to the Privy Coun cil, and the Judicial Committee, after quoting in extenso the passage just now extracted by us from the Federal Court judgment, expressed its agreement with the view taken by the majority of the Federal Court. This Court in _Khem Chand_ v. _The_ _Union of India(')_ also emphasized upon the importance of giving a reasonable opportunity to a Government servant to show that he does not merit the punishment proposed to be mered out to him. Das C.J., speaking for the Court, observed : v. _K. Manche_ _Gowa•_ _Siibia_ _Rao_ /. "In addition to showing that he has not been guilty of arty misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment ?roposed to be meted out to him. He may say; for mstance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of re---· {') [1958] s.c.R. 1oso; 1096. 1963 _State_ _of_ _Mysore_ v. _K._ _Manche_ _Gowda_ _Subba_ _Rao],_ 546 SUPREME COURT REPORTS [1964] moval or reduction in rank and that any of the lesser punishments ought to be sufficient in his case." The relevant aspect of the case has been neatly brought out by the Nagpur High Court in _Gopalrao_ v. _State(')._ There, as here, the previous record of a Government servant was taken into consideration in awarding punishment without bringing the said fact to his notice and giving him a reasonable opportunity of explaining the same. Sinha, C.J. speaking for the Court, observed : "Normally, the question of punishment is linked up with the gravity of the charge, and the penalty that is inflicted is proportionate to the. guilt. Where the charge is trivial and _prima_ _facie_ merits only a minor penalty, a civil servant may not even care to defend himself in the belief that only such punishment as would be commensurate with his guilt will be visited on him. In such a case, even if in the show cause notice a more serious punishment is indicated tl1an what the finding of guilt warrants, he cannot be left to guessing for himself what other possible reasons have impelled the proposed action. It is not, therefore, sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are sup-. ported by the record of service of the civil servant concerned. In a case where these factors did not form part of any specific charge and did not otherwise figure in the departmental enquiry, it is necessarythat they should be intimated to the civil servant. in order to enable him to put up proper defence against. the proposed action." Randhir Singh J. of tlie Allahabad High Court, in. _Girja Shankar Shukla_ v, _Senior Superintendent of Post_ _Offices, Lucknow Division,_ _Lucknow('),_ distinguished the case thus : "In the'present case, however, those punishments were taken into consideration which are not only within the knowledge of the applicant but which he had suffered earlier .................................. . This is evidently not opposed to ·any principles of (') J.L.R. [1954] Nag. 90, 94. _l_ ( [2] ) A.LR. 1959 All. 624, 625. 19.63 _State_ _of_ _Mys01e_ v. _K._ _Manche_ _Gowda_ _Subba_ _Rao/._ t ' **4 S.C.R.** SUPREME COURT REPORTS 547 narural justice." Multiplication of citation is not necessary, as the aforesaid decisions bring out the conflicting views. Under Art. 311 (2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action : see the decision of this Court in the _State of Assam_ v. _Bimal Kumar_ _Pandit(')._ If the grounds are not given in the notice, it would be well nigh impossible for him to predicate whJt is operating on the mind of the authority concerned in proposing a particular punishment : he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him ; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer -( [1] )[1964] 2 S.C.R. I. 1963 J;...' '\ _)_ _:>tale_ _:of_ _**My'.i&i-e**_ v. _K. Manche_ _Gowda_ _Subba Rao_ _f._ for the alleged remarks or that his cd11<lhct si.ilrsequent to' the remarks had been 'exemplary 'or at any fate apprl>'. ved by the siiperiot bf!itfl'S. · . Even if . ~he authority c6n~ i:e~iied took inti> 'considedtion only tlie fai:ts for 'which he w:fs punished, it woiHd be open to hiln to put forward before the said aUthority niany mitigat,ing circlimsti~~ ces or some . other explanation why those punishments wer~ giveh to hirh Oi: th~t subsequent to the puilishihents' he natl served 'to ·the·. satisfaetion of the authorities _cbri·_ cerried till 'the tiin~ of the ptesent enquiry. He in~y have many citheY explanatiotiS. .· The· point, is not whether his' explaJ!~tion w?uld be acceptable,. but whether he lfa.s· been' given an .opportunity _to_ :give his e'xplariatic;>n., We caiinof accept the doctrine 'bf "presurtfptive knowledge" or iliat"of "puipoodess enquiry';; as ·their acceptance will be 'subver: ~iv.e of the principle o£' "reasonable opportunity"; Vie; therefore; hold that' it iS' incumlierit upon the authotify to give the Government' servant at the secona Stage tea~ s!')nable opportunity to show eai.Jse against the ptop6s~d. punishment and if the proposed punishment is also based· on his previ.ous ptinishments or his preyiofis bad iecord, this .should be 'included in the second notice so that he inay be a\Jle fo give an explanation . . Before we close, .it would be . necessary to make i:iht point ckar. It is suggested that the past record of a Gov: ernment servant, 'if it is intended to. be relied upon for imposing a punishment, should be ma& a. specific charge in the first stage 'of the enquiry . itself and, if it is not so done, it cannot be relied upon .after the enquiry is closed .and the 'report. is stibmitted to the alithority entided to impose the punishment. An enquiry against a. Government ser~ant is one tontiimous ·process, though for convenience it is done in t\vo stages. The repoff sub-· mitted. by the Enquiry Officer i; orily 'recommefiditory iii nature and the final authority which scruliiiizes it and imposes punishment is the.' autllority empowered to impose the sam~. Whether a particular person: ha:s a· reasonable opportunity or rtot depefids, tO' some - exl:e.rit, ?P?n the nature of, t;hi,,~ubjett 1;llatt~~.of qie enquiry: .. But. 1t 1s not necessary m this case to c)eci/le Whether: such previous record can he' ffiade the subject nl.a:fter of diatgl( at the first stage of the enquiry. Btit; riothing· in Jaw .. _Subba_ _Rao_ _f._ 1963 196~ _State_ _of_ _Mysore_ v. _K. Manche_ _Gowda_ ## #### .. 4; s.c.R. SUPREME COURT REPORTS ' . ' . . ; . . prevents the punishing authority from taking th;it fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same. In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said n<r tice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty _of._ dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show eause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art. 311 (2) of the Constitution as interpreted by Courts. This order will not preclude the Government from holding the second stage of the enquiry afresh and in accordance with law. In the result the appeal is dismissed with costs. _Appeal dismissed._ v. PATHAKKALAN NARAVANATH KUMHAMU VALIA PEEDIKAKKANDI KUTHEESSA UMMA AND OTHERS AND OTHERS (A_. K. SARKAR, M. HmAYATULLAH AND J. C. SHAH, JJ.) _Mahammadan_ _Law-Gift-Validity_ _of_ _gift_ _by_ _husband_ _to_ _hts minor wife accepted_ _on_ _her behalf_ _by_ _her mother._ One Mammotty was married to Seinaba and he made a gift