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Case Number

Misc. Petn. No. 487 of 1966

Advocates

For Appellant : Y.S.Dharmadhikari For State : K.K.Dubey

Judges

P.V Dixit, C.J
R.J Bhave, J.

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Smart Summary

Judgment Summary: Dixit, C.J. — Ghanshyam-das Shrivastava (Writ of Certiorari)

Factual and Procedural Background

The petitioner, Ghanshyam-das Shrivastava, employed as a ranger in the Forest Department, sought a writ of certiorari to quash a Government order dated 8 June 1966 dismissing him from service. The dismissal followed a departmental enquiry on seven charges including misappropriation of Government money amounting to Rs. 1,200, proceeding on leave without prior sanction, failure to submit weekly diaries for certain periods, disobedience of orders relating to construction of a temporary shed, late submission of cash accounts and antedating certain payments.

The Government initiated the enquiry, suspended the petitioner and appointed Shri Ansari, Divisional Forest Officer, South Bastar Division, as Enquiry Officer. The petitioner objected to Shri Ansari's appointment on the ground that Shri Ansari was subordinate to Shri Sur (Conservator of Forests) and that Shri Sur and Shri Kalia (Divisional Forest Officer, Plantation Division) were friendly with one another and not well disposed towards the petitioner. The Government rejected this objection. The petitioner sought appointment of another Enquiry Officer and later said he wished to examine Shri Ansari as a witness; the Government refused that request.

The Enquiry Officer fixed dates (12 January 1965, 15 January 1965 and 9 February 1965) for the petitioner to attend and to file his reply. The petitioner repeatedly failed to attend, stated he would not participate because his request for another Enquiry Officer had been denied and because Shri Ansari was not in the list of defence witnesses, and ultimately communicated that he was withdrawing from the enquiry. As a result the enquiry proceeded ex parte. The Enquiry Officer examined several witnesses (named in the report as Shri Kalia, Shri Masa, Shri Ram Lal, Shri Shyam Singh, Shri Bhim and others) and reported that the seven charges were prima facie established.

On the basis of the report, the Government issued a show-cause notice; after receiving the petitioner's reply (which the Government found unsatisfactory) and consulting the Public Service Commission, the State Government held that all charges except charge No. 7 were fully established, and that charge No. 7 was partly proved to the extent that some payments to five persons were antedated. The Government thereupon passed the impugned order dismissing the petitioner from service.

Legal Issues Presented

Whether the disciplinary enquiry conducted by an Enquiry Officer (Shri Ansari), who was not the disciplinary authority itself, complied with Article 311(2) of the Constitution as amended in 1963.
Whether the petitioner was denied a "reasonable opportunity of being heard" under Article 311(2) because he could not adduce evidence before the disciplinary authority at the second stage or because the disciplinary authority did not itself conduct the enquiry.
Whether the petitioner's objection to the appointment of Shri Ansari on grounds of alleged bias (relationship to Shri Sur and friendship between Shri Sur and Shri Kalia) was sufficient to invalidate the enquiry.
Whether an ex parte enquiry and consequential dismissal were permissible where the delinquent officer had repeatedly failed to participate in the enquiry and had expressly withdrawn from it.

Arguments of the Parties

Petitioner's Arguments

The petitioner objected to the appointment of Shri Ansari as Enquiry Officer on the ground that Shri Ansari was subordinate to Shri Sur and that Shri Sur and Shri Kalia were friendly with each other and not well disposed towards the petitioner, giving rise to a reasonable apprehension of bias.
Learned counsel for the petitioner contended that, under Article 311(2) as amended in 1963, the petitioner was entitled to a reasonable opportunity of being heard by the disciplinary authority itself, which, he argued, meant that the disciplinary authority must hold the enquiry and that appointing an Enquiry Officer to conduct the enquiry did not satisfy Article 311(2). It was submitted that the amended Article envisaged that the disciplinary authority must itself hear evidence or otherwise that the delinquent officer could adduce evidence before the disciplinary authority at the second stage.

Respondent / Government's Position (as reflected in the opinion)

The Government rejected the petitioner's objection to Shri Ansari's appointment and declined the request to appoint another Enquiry Officer, on the ground that it was unnecessary to examine Shri Ansari. The Government proceeded with the enquiry, accepted the Enquiry Officer's report, consulted the Public Service Commission, and concluded most charges were established, resulting in dismissal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Major U.R. Bhatt v. Union of India, AIR 1962 SC 1344	Principle that a Government servant who fails to avail himself of the opportunity afforded to him to show cause or to participate in the enquiry cannot subsequently complain that no opportunity was given.	The court relied on this decision to hold that since the petitioner repeatedly refused to participate and withdrew from the enquiry, he cannot complain of lack of opportunity of hearing at the enquiry stage.
P. Joseph John v. State of Travancore-Cochin, 1955-1 SCR 1011 = AIR 1955 SC 160	Reinforces the principle that a delinquent officer who does not avail himself of an opportunity to be heard cannot later complain of denial of that opportunity.	The court cited this case alongside Major U.R. Bhatt to support the proposition that non-participation precludes complaint about procedural unfairness at the enquiry stage.
Khem Chand v. Union of India, 1958 SCR 1080 = AIR 1958 SC 300	Explains the content and scope of the "reasonable opportunity" under Article 311(2) as it stood before the 1963 amendment, including the right to make representation against a proposed punishment after enquiry.	The court used Khem Chand to interpret the amended Article 311(2), holding that the amendment clarified the position that the delinquent officer is entitled to (i) an inquiry-stage hearing and (ii) an opportunity to make representation on proposed penalty, but that the second stage is confined to the evidence adduced during the enquiry.
Pradyat Kumar Bose v. (Chief Justice of Calcutta High Court), 1955-2 SCR 1331 = AIR 1956 SC 285	Principle that the actual conduct of an enquiry may be carried out by officials deputed by the disciplinary authority; delegation of the conduct of the enquiry does not amount to delegation of the disciplinary power itself.	The court applied this principle to reject the contention that the disciplinary authority must itself conduct the enquiry under the amended Article 311(2). It held that delegation to an Enquiry Officer (Shri Ansari) was permissible.

Court's Reasoning and Analysis

The court addressed two interlinked aspects: (1) whether the enquiry could legitimately be held ex parte when the petitioner declined to participate, and (2) whether the amended Article 311(2) required that the disciplinary authority itself conduct the enquiry or that the delinquent officer be allowed to adduce fresh evidence at the second (penalty) stage.

On the first aspect, the court emphasized the petitioner's repeated failures to attend the enquiry despite multiple adjournments and explicit invitations to appear and file a reply. The petitioner had given reasons linked to his objection to the Enquiry Officer and the asserted omission of Shri Ansari from the defence witness list, and ultimately withdrew from participation. Relying on precedents (Major U.R. Bhatt and P. Joseph John), the court concluded that a government servant who does not avail himself of the opportunity to show cause or to participate cannot later complain that no opportunity was afforded. The court found no evidence that Shri Ansari had a personal interest or hostility that would disqualify him; the mere fact that Shri Ansari was subordinate to Shri Sur did not establish bias. The court also observed that Shri Kalia (a witness the petitioner wanted to examine) had in fact been examined by the Enquiry Officer and that had the petitioner participated he would have had opportunity to cross-examine him. Given these circumstances, holding the enquiry ex parte was justified.

On the second aspect, the court examined Article 311(2) as amended in 1963 and the authorities interpreting the pre-amendment Article. It recalled Khem Chand, which explained that reasonable opportunity under Article 311(2) includes the right to make representations after an enquiry when a tentative proposal for punishment is communicated to the Government servant. The court held that the amendment clarified but did not change the previous position: the disciplinary process has two stages — (a) the enquiry stage where evidence is adduced and (b) the post-enquiry stage where the delinquent officer is entitled to make representations on the proposed penalty, but "only on the basis of the evidence adduced during such enquiry". The words in the amended clause therefore preclude adducing fresh evidence at the second stage.

Further, the court relied on Pradyat Kumar Bose to reaffirm that the disciplinary authority may entrust the actual conduct of an enquiry to an official delegate; such delegation does not amount to delegating the disciplinary power itself. Consequently, the amended Article 311(2) does not mandate that the disciplinary authority must itself conduct the enquiry. The court concluded that the enquiry held by Shri Ansari was not in contravention of Article 311(2) as amended.

Holding and Implications

The petition is dismissed with costs.

Direct consequences and orders made by the court (as stated in the opinion):

Counsel's fee was fixed at Rs. 150.
The outstanding amount of the security deposit, after deduction of costs, was to be refunded to the petitioner.

Implications identified by the court:

The court affirmed that a delinquent Government servant who refuses to participate in an enquiry cannot later challenge the fairness of that enquiry on grounds of non-participation.
The court interpreted the 1963 amendment to Article 311(2) as clarifying existing law: the disciplinary authority need not itself conduct the enquiry; an enquiry may be conducted by an appointed Enquiry Officer and the right to make representation at the post-enquiry stage is confined to the evidence adduced at the enquiry (i.e., no fresh evidence at the second stage).
No new legal principle or departure from cited Supreme Court precedents was announced; the decision applied and reconciled existing authorities to the facts before the court.

This summary is based exclusively on the text of the provided opinion and does not add or infer facts beyond those contained therein.

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Ghanshyamdas Srivastava v. The State Of Madhya Pradesh .

JUDGMENT Dixit, C.J.

1. The petitioner Ghanshyam-das Shrivastava, who was employed as a ranger in the Forest Department, seeks it writ of certiorari for quashing an order passed by the Government on 8th June 1966 dismissing him from service.

2. The applicant's dismissal was as a a sequel to a departmental enquiry on charges of misappropriating Government money to the extent of Rs. 1200, proceeding on leave without obtaining prior sanction, failing to submit weekly diaries during certain periods, disobedience of the orders of the Divisional Forest Officer, Bastar Plantation Division, with regard to the construction of temporary lagour shed, late submission of cash accounts and antedating certain payments. The initiation of the enquiry, the applicant's suspension and the appointment of an Enquiry Officer were all done by the Government. The charges in respect of which the enquiry was held were also authorized by the Goverment. The enquiry was held by Shri Ansari, Divisional Forest Officer. South Bastar Division. When the applicant was informed of the charges and of the appointment of Shri Ansari as the Enquiry Officer.he raised an obiection to the appointment of Shri Ansari as the Enquiry Officer on the ground that Shri Sur. Conservator of Forests, and Shri Kalia, Divisional Forest Officer, Plantation Division who were very friendly with each other, were not well disposed towards him and that Shri Ansari was a subordinate of Shri Sur. This objection was reiected by the Government. The petitioner then again moved the Government for appointment of another Enquiry Officer, this time saying that he wanted to examine Shri Ansari as a witness. The Government turned down this request as, according to it, it was wholly unnecessary to examine Shri Ansari. The Enquiry Officer first asked the applicant to attend the enquiry on 12th January 1665. When he failed to attend, he was directed to appear before the Enquiry Officer on 15th January 1965. This time also the applicant did not attend the enquiry and wrote back to the Enquiry Officer that as his request for the appointment of another Enquiry Officer was not granted and as Shri Ansari was not included "in the list of defence witnesses", he would not attend the enquiry. The Enquiry Officer again fixed a date for the commencement of the enquiry and asked the applicant to appear on 9th February 1965 and file his reply on or before that date. The petitioner again reiterated his obiection to the appointment of Shri Ansari as the Enquiry Officer and ultimately wrote back to him tha he was withdrawine from the enquiry

3. The enquiry was, therefore, held ex parte against the applicant. The Enquiry Officer examined Shri Kalia, Shri Masa, Shri Ram Lal, Shri Shyam Singh, Shri Bhim and some other persons in support of the charges and gave a report to the Government that all the seven charges leveled against the petitioner had been prima facie established On the basis of the Enquiry Officer's report, a notice was issued to the petitioner to show cause why he should not be dismissed from service. The applicant gave his reply which the Government did not find satisfactory. The Government also consulted the Public Service Commission. After considering the petitioner's reply and the advice of the Public Service Commission, the State Government found that all the charges except one. namely charge No. 7, had been fully established. In regard to charge No. 7 the Government came to the conclusion that it was partly Droved to the extent that certain payments made to five persons were antedated The Government, therefore, passed the impugned order dismissing the petitioner from service.

4. Having heard learned counsel for the parties we have reached the conclusion that this application must be dismissed. When the petitioner failed to appear before the Enquiry Officer although the enquiry was adjourned several times in order to enable him to appear and ultimately wrote back to the Enquiry Officer that he would not participate in the enquiry, he cannot now complain that no opportunity of hearing in respect of the charges was given to him at the enquiry. A Government servant who failed to avail himself of the opportunity afforded to him to show cause cannot complain that no opportunity was given to him. This is clear from the decisions of the Supreme Court in Major U.R Bhatt v. Union Of India ., AIR 1962 SC 1344 and P. Joseph John v. State Of Travancore-Cochin ., 1955-1 SCR 1011 = (AIR 1955 SC 160). The petitioner's apprehension that as Shri Ansari was a subordinate of Shri Sur and as Shri Sur and Shri Kalia were friendly with each other and were not well disposed towards him, Shri Ansari would be biassed against him. was altogether unfounded. There is nothing on record to show that Shri Ansari was personally interested in the enquiry or that there was personal hostility on his part in regard to the petitioner. If Shri Ansari was a subordinate of Shri Sur that did not make him a biassed person who could not hold the enquiry against the applicant Learned counsel was unable to show us how Shri Ansari was a material witness in the enquiry. The petitioner wanted to examine Shri Kalia also. But Shri Kalia was examined by the Enquiry Officer and if the petitioner had participated in the enquiry he could have cross-examined Shri Kalia. There is thus no ground whatsoever for holding that the petitioner's non-participation in the enquiry on the ground that Shri Ansari was biassed or that he and Shri Kalia were not going to be examined was justified. In our opinion, in the circumstances narrated earlier, the Enquirv Officer had no other alternative but to hold the enquiry ex parte

5. Shri Dharmadhikaree, learned counsel for the applicant, urged that even if the petitioner did not take part in the enquiry held by Shri Ansari, still under Article 311(2) of the Constitution, as amended in 1963, the petitioner was entitled to a reasonable opportunity of being heard in respect of the charges by the Government and that this meant that he was entitled to adduce evidence before the Government to disprove the charges and also make a representation on the penalty proposed. It was said that the effect of amendment made in 1963 in Article 311(2) is that the disciplinary authority must itself hold the enquiry and that to appoint another person as an Enquiry Officer and to ask the delinquent officer to appear before him is not to give a reasonable opportunity of hearing contemplated by the amended Article 311(2).

6. We are unable to accept this contention. Article 311(2), as it stood before the amendment was in the following terms:

The content and scope of the reasonable opportunity envisaged by Article 311(2), as it was before the amendment, was explained by the Supreme Court in Khem Chand v. Union of India, 1958 SCR 1080= (AIR 1958 SC 300) In that case it was said that reasonable opportunity contemplated by Article 311(2) required that the Government Servant should be given an opportunity:

(c) .....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 and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflirt one of the three punishments and communicates the same to the Government servant."

In Pradyat Kumar Bose v. Honble the Chief Justice of Calcutta High Court 1955-2 SCR 1331=AIR 1956 SC 285 it was held that in the matter of actual conduct of an enquiry, a disciplinary authority could act by officials duly deputed for the purpose and that delegation of the conduct of enquiry did not amount to delegation of the exercise of the disciplinary power itself.

7. In our judgment, the amendment made in Article 311(2) only clarifies the position that existed before the said article was amended. The new Article 311(2) makes it plain that there will be an enquiry stage at which a reasonable opportunity must be given to the delinquent officer of being heard in respect of the charges. It also says that if it is proposed after enquiry to impose on the delinquent officer any penalty, then he shall be given a reasonable opportunity of making representation on the penalty proposed. These are precisely the two opportunities which the Supreme Court said in Khem Chand's Case, 1958 SCR 1080= (AIR 1958 SC 300) (supra) the delinquent officer was entitled to under Article 311(2) as it stood originalllv. The words "but only on the basis of the evidence adduced during such enquiry" occurring at the end of the amended Clause (2) of Article 311 leave no doubt that the Government servant is not entitled to adduce fresh or additional evidence at the second stage. The second stage is confined to making a representation against the proposed punishment on the basis of the evidence adduced during the enquiry at the first stage.

In our opinion, the making of a representation on the penalty proposed at the second stage does not mean that at that stage the Government servant can canvass only the question of the quantum or nature of the punishment At that stage the Government servant can also urge that the charges levelled against him have not been proved or established and that no penalty of any kind should be imposed on him or that on the findings reached at the enquiry the proposed penalty should not be imposed on him. The right of making a representation on the penalty proposed would become meaningless and futile if the right is to be confined only to the quantum or nature of the punishment. It is thus plain that even at the second stage the delinquent Government servant is heard and has to be heard in respect of the charges which formed the subject-matter of investigation at the enquiry.

If, as we think, the delinquent Government servant is given a hearing at the second stage before the disciplinary and punishing authority in respect of the charges which formed the subject-matter of investigation at the enquiry then there can be no basis for contending that as at the second stage a representation is confined only to the quantum of nature of punishment, the disciplinary authority must necessarily itself hold the enquiry contemplated by the amended Article 311(2). The amendment made in Article 311(2) does not in any way dislodge the proposition laid down in Pradyat Kumar's Case, 1955-2 SCR 1331 = (AIR 1956 SC 285) (supra) that the actual conduct of an enquiry can be entrusted by the disciplinary authority to any other official. The contention of the learned counsel for the petitioner that the enquiry held by Shri Ansari was in contravention of the amended Article 311(2) and illegal cannot be accepted.

8. For the foregoing reasons, this petition must be and is dismissed with costs. Counsel's fee is fixed at Rs. 150. The outstanding amount of the security deposit after deduction of costs shall be refunded to the petitioner.

Ghanshyamdas Srivastava v. The State Of Madhya Pradesh .

Judgment Summary: Dixit, C.J. — Ghanshyam-das Shrivastava (Writ of Certiorari)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent / Government's Position (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ghanshyamdas Srivastava v. The State Of Madhya Pradesh .

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