Citation Codes

Equivalent Citations

citation codes

Case Number

O.J.C No. 84 of 1953

Attorney(S)

V.Pasayat

Judges

Hon'ble Mr. Justice Lingaraj Panigrahi
Hon'ble Mr. Justice Paramkusam Venkata Balakrishna Rao

Acts

provisions of R. 49 of the Civil Services (Classification, Control and Appeal) Rules
SECTION 240 GOVERNMENT OF INDIA ACT 1935
provisions of Sections 240 and 241 of the Government of India Act,
55 of the Civil Services (Classification, Control and Appeal) Rules
provisions (Section 240(2)) of the Government of India Act,
Civil Services (Classification, Control and Appeal) Rules
provisions of Cl. (2) of Article 311 of the Constitution
provisions of Article 311(2) of the Constitution.
provisions of Article 311 of the Constitution
Section 240(2) of the Government of India Act,
GOVERNMENT OF INDIA ACT
provisions of Article 311(2)

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Smart Summary

Structured Summary of the Opinion (Narasimham, J.)

Factual and Procedural Background

The petitioner, a temporary Grade II Upper Division Assistant in the Development Department of Orissa, challenged by Article 226 petition an order (No. 17886.D dated 24-10-1952) of dismissal from service passed by the Secretary to the Government, Development Department (Sri B.S. Mohanty). Early in 1952 three specific charges of insubordination and misbehaviour were framed against the petitioner by the Secretary (order No. 13752 dated 24-7-1952) and the petitioner was directed to show cause. A departmental enquiry was conducted. On 2-9-1952 the Under-Secretary issued Memo No. 15833.D informing the petitioner that, in view of the Enquiring Officer's findings (with which the Secretary agreed) and taking into account past service, "it is proposed to remove him from Government service" and calling upon him to show cause within a week why the penalty of dismissal should not be inflicted; a further opportunity for personal hearing before the Secretary was offered. The petitioner submitted representations; the order of dismissal was ultimately passed on 24-10-1952. The petitioner's memorial to the Governor against the dismissal was rejected.

Legal Issues Presented

Whether inflicting the greater penalty of "dismissal from service" when the departmental communications had proposed only "removal from service" amounted to a contravention of Article 311(2) of the Constitution (i.e., whether the civil servant was given a reasonable opportunity to show cause against the action proposed).
Whether the State's contention that the terms "removal" and "dismissal" were used synonymously in the departmental proceedings — and thus the petitioner was not misled — is tenable when measured against the Service Rules and Article 311.

Arguments of the Parties

Petitioner's Arguments

The memo notified the petitioner that "it is proposed to remove him from Government service", which is a lesser penalty than dismissal; accordingly the petitioner could reasonably believe no grave penalty beyond removal would be imposed.
The eventual imposition of dismissal (a graver penalty) violated the protection in Article 311(2), because the petitioner was not specifically informed he faced dismissal and therefore was prejudiced.
The petitioner pursued available avenues, including submitting a memorial to the Governor (which was rejected), but challenged the Secretary's order by way of writ petition under Article 226.

State's Arguments (Respondent)

The Government Advocate contended that the expressions "removal from service" and "dismissal from service" were used as synonymous in the departmental proceedings and in the memo dated 2-9-1952, so the petitioner was not misled by any verbal defect.
Implicitly, the State relied on the argument that the opportunities afforded to the petitioner (including being called upon to show cause against "dismissal" in the memo and the petitioner's subsequent representation dated 9-9-1952) cured any defect.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Aezalur Rahman v. King-Emperor, AIR 1943 FC 15	That in construing provisions like Sections 240 and 241 of the Government of India Act, the long-standing practice and the rules regulating conditions of service should be looked into.	The court relied on this Federal Court observation to support the view that the Constitution-makers, by using both "dismissed" and "removed" in juxtaposition, were thinking of the distinct classes of penalties described in Rule 49 of the Civil Services Rules.
High Commissioner for India v. I.M. Lal, AIR 1948 P.C. 121 (Privy Council)	After coming to a definite conclusion on charges and provisionally determining the actual punishment, the civil servant should be given an opportunity to show cause against the action proposed — i.e., he must be informed of the punishment proposed so he can represent against that punishment.	The court treated this authority as establishing the requirement that before passing an order of punishment such as "dismissal" or "removal" the civil servant must be told of the punishment proposed and be allowed to make representations. The opinion also notes that, for the purposes of that case, the Privy Council accepted the terms "dismissal" and "removal" as synonymous, but distinguished that situation from the present one under the Constitution and service rules.

Court's Reasoning and Analysis

The court began by observing that Article 311 of the Constitution substantially reproduces Section 240 of the Government of India Act, 1935, and that prior decisions construing Section 240 and the service rules are therefore applicable. The Civil Services (Classification, Control and Appeal) Rules (Rule 49) classify penalties and distinguish expressly between (vi) "Removal from the civil service of the Crown, which does not disqualify from future employment" and (vii) "Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment." From this the court concluded that "removal" is a lesser penalty than "dismissal."

The court reviewed the procedural history: the petitioner received a first show-cause direction on 24-7-1952 when charges were framed (under Rule 55). After the departmental enquiry, the petitioner received a second opportunity in the Under-Secretary's memo dated 2-9-1952 which explicitly stated "it is proposed to remove him from Government service" and invited representations and a request for personal hearing. The court relied on the Privy Council's decision in I.M. Lal to emphasize that once the authority has reached a definite conclusion on charges and provisionally determined punishment, the accused must be informed of the punishment proposed and given a chance to represent against it.

The court applied the principle that if a graver punishment is proposed and a lesser is ultimately imposed, there is normally no prejudice (the greater contains the less). Conversely, if a lesser penalty is proposed and a graver one is imposed after representations, the civil servant is prejudiced because he was not given a fair opportunity to meet the more severe case against him. The court found that the memo led the petitioner reasonably to believe that the maximum penalty likely to be imposed would be "removal" (the lesser penalty). The subsequent imposition of "dismissal" (the greater penalty) therefore amounted to contravention of the mandatory requirement of Article 311(2).

The State's contention that "removal" and "dismissal" had been used interchangeably was rejected. The court said senior gazetted officers conducting the proceedings should have known the distinction in Rule 49 and could not justify confusing the two expressions. The court noted that in I.M. Lal the terms had been accepted as synonymous for the facts of that case, but distinguished that decision because the Constitution expressly places both words in juxtaposition and the service rules maintain a clear distinction.

Having found that the departmental communications proposed removal (a lesser penalty) and that dismissal (a graver penalty) was eventually imposed without giving an opportunity to meet that specific penal consequence, the court concluded there was non-compliance with Article 311(2). For that reason the order of dismissal was held void and inoperative.

Holding and Implications

Holding: Petition allowed; the order of dismissal (No. 17886.D dated 24-10-1952) is void and inoperative.

Direct consequences for the parties:

The petitioner is declared to be still a temporary Grade II Upper Division Assistant in the Secretariat.
The petitioner is awarded costs of the petition assessed at Rs. 100/-.

Broader implications: The court applied established principles (Article 311 read with the service rules and relevant authorities) to hold that a civil servant must be informed of the specific penalty proposed after conclusion of an enquiry; imposing a graver penalty than that proposed without giving a fair opportunity to meet it contravenes Article 311(2). The opinion does not purport to lay down a new legal doctrine beyond applying these established authorities; its practical effect is to enforce strict compliance with Article 311(2) in relation to the distinction between "removal" and "dismissal."

Disposition: Petition allowed. (Panigrahi, C.J. agreed.)

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Dayanidhi Rath v. B.S Mohanty Opposite Party.

Narasimham, J.:— This is a petition under Article 226 of the Constitution by a ministerial officer of the Orissa Secretariat against an order of dismissal from service passed by Sri B.S Mohanty, Secretary to the Government, Development Department by his order No. 17886.D, dated 24-10-1952. The petitioner submitted a memorial to the Governor against the order of dismissal; but it was rejected.

2. Early in 1952, the petitioner was working as a temporary Grade II Upper Division Assistant in the Development Department. On 24-7-1952, the Secretary of that Department (Sri B.S Mohanty) framed three specific charges against the petitioner of insubordination, misbehaviour etc., and directed him by his order (No. 13752) “to show cause why he should not be dismissed or otherwise punished”.

3. The petitioner showed cause and the usual departmental enquiry was held. After the termination of the enquiry the Under-Secretary of the Development Department issued the following Memo No. 15833.D, dated 2-9-1952 to the petitioner:

“Government of Orissa

Development Department.

Memo No. 15833.D. Dated Bhubanswar, 2-9-1952

Sri Davanidhi Rath

Grade II U.D Assistant (Under suspension), Development Department.

With reference to the explanation dated 26-8-1952, submitted by Sri D. Rath on the charges framed against him a copy of the remarks of the Enquiring Officer on all the charges is forwarded to him and he is informed that in view of the Enquiring Officer's findings contained in the report with which Secretary agrees and in consideration of his past records of services it is proposed to remove him from Government service. He is therefore hereby directed to show cause within a week from the date of receipt of this memo why the penalty of dismissal should not be inflicted on him for the charges proved against him. Any representation submitted by him to the Secretary on this behalf in time will be duly taken into consideration. He is also called upon to say if he would like to have any personal hearing in the matter by the Secretary to Government, Development Department.”

4. In this memo the petitioner was informed that in view of the findings arrived at by the Enquiring Officer during the departmental enquiry with which the Secretary agreed, “it was proposed to remove him from Government service”. He was, however, called upon to show cause why the penalty of dismissal may not be inflicted on him. He submitted a further representation which was fully considered but eventually the Secretary of the Development Department passed the order of dismissal (No. 17886.D.) dated 24-10-1952.

5. The main ground urged on behalf of the petitioner is that the penalty of ‘removal from service’ is lesser than the penalty of ‘dismissal from service’ and that having inflicted the first, the Secretary acted in contravention of Article 311(2) of the Constitution by passing the major penalty of dismissal.

6. Article 311 reproduces substantially the provisions of Section 240 of the Government of India Act, 1935 and the decisions of the Federal Court and the Privy Council regarding the construction of that section of the Government of India Act would therefore, apply with full force. Prior to the passing of the Government of India Act, 1935 the Secretary of State had made the rules known as the Civil Services (Classification, Control and Appeal) Rules in which various classes of penalties that may be imposed on a civil servant (Rule 49), the authorities competent to impose such penalties and the procedure to be followed (Rule 55) in a departmental enquiry that may precede the imposition of such penalties were fully described. These rules were kept alive by the Government of India Act, 1935 and also by the Constitution, subject of course to certain adaptations which are not material for our present discussion.

7. In Rule 49, seven classes of penalties have been described and the last two which are relevant for our purpose may be quoted:

“(vi) Removal from the civil service of the Crown, which does not disqualify from future employment.

(vii) Dismissal from the civil service of the-Crown, which ordinarily disqualifies from, future employment.”

8. Hence, there is no doubt that ‘removal’ from service is a lesser penalty than ‘dismissal’ and that in the Service Rules the distinction between the two penalties is clearly maintained. Sub-secs. (2) and (3) of Section 240 of the Government of India Act, 1935 are as follows:

“Sub-s. (2) — No such person as aforesaid shall, be dismissed from the service of his Majesty by any authority subordinate to that by which he-was appointed.

Sub-s. (3) — No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken, in regard to him.”

9. The corresponding provisions of Article 311 of the Constitution are, however, as follows:

“Article 311(1) — No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) — 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 action proposed to be taken in regard to him.”

10. It will be noticed that though in the Government of India Act the expression ‘removal from service’ was not used, that expression was specially inserted in Article 311 of the Constitution so as to make it abundantly clear that even if the penalty that is intended to be inflicted on a civil servant is ‘removal from service’ the mandatory provisions of Article 311 of the Constitution should be complied with. It was pointed out by the Federal Court in an earlier decision reported in — ‘Aezalur Rahman v. King-Emperor*’, AIR 1943 FC I5 (A) that in construing the provisions of Sections 240 and 241 of the Government of India Act, the long standing practice based on the rules regulating the conditions of service of various classes of Government servants should be looked into. This observation would apply with equal force in construing Article 311 and it may, therefore, be reasonably held that when the Constitution makers used the expressions ‘dismissed’ and ‘removed’ in juxtaposition they were thinking of the two classes of penalties referred to in cls. (vi) and (vii) of R. 49 of the Civil Services (Classification, Control and Appeal) Rules.

11. The petitioner was undoubtedly given opportunities at two different stages of the departmental enquiry to submit his representations to the Secretary. The first one was on 24-7-1952 when specific charges were framed and he was called upon ‘to show cause why he should not be dismissed or otherwise punished’. This opportunity was given under R. 55 of the Civil Services (Classification, Control and Appeal) Rules and at that stage the charges against him remained unproved and the suggested punishment was also indefinite and somewhat hypothetical. After the termination of the departmental enquiry, however, he was rightly given another opportunity on 2-9-1952 to show cause against the action that was proposed to be taken against him.

12. This second opportunity was given in view of the decision of the Privy Council in — ‘High Commr. for India v. I.M Lal’, AIR 1948 P.C 121 (S), where on a construction of the corresponding provisions (Section 240(2)) of the Government of India Act, their Lordships laid down that after coming to a definite conclusion regarding the charges and provisionally determining the actual punishment to follow, the civil servant concerned should be given an opportunity to show cause against the action proposed to be taken against him so as to give him an opportunity to represent against the punishment proposed as a result of the findings of the departmental enquiry. It is thus well-settled by authority that before passing an order of punishment against a civil servant such as ‘dismissal’ or ‘removal’ from service he should be informed about the punishment that was proposed to be passed against him and given an opportunity to make his representations against that punishment. Doubtless, if the punishment that is proposed against him is of a graver kind but after hearing his representation he is awarded a lesser kind of punishment there may be no question of prejudice and a Court would hold that there was compliance with the provisions of Article 311(2) of the Constitution. In that case the well-known principle that ‘the greater contains the less’ (‘Omne majus continet in se minus’) would apply. But if the punishment that is tentatively proposed against a civil servant is of a lesser kind, but after hearing his representation he is awarded a graver form of punishment he would be highly prejudiced and there would be non-compliance with the provisions of Article 311(2) of the Constitution.

13. This seems to have happened in the present case. I have already quoted the memo of the Under-Secretary of the Development Department dated 2-9-1952 in which it is categorically stated ‘it is proposed to remove him from Government service’. The petitioner can reasonably say that he was under the impression that no penalty graver than removal from service would be passed against him and that the subsequent order of the Secretary dismissing him from service was not only prejudicial to him but would amount to contravention of constitutional safeguard provided in Article 311(2).

14. On behalf of the State, however, it was urged by the Government Advocate that the expressions ‘removal from service’ and ‘dismissal from service’ were used as synonymous expressions in the departmental proceedings as well as in the memo issued to the petitioner on 2-9-1952 and that the petitioner was, therefore, not misled by the slight verbal defect in that memo. I am, however, unable to accept this argument. The proceedings against the petitioner were instituted and conducted by senior gazetted Government servants who may be presumed to have known the provisions of R. 49 of the Civil Services (Classification, Control and Appeal) Rules making a sharp distinction between ‘removal’ on the one hand and ‘dismissal’ on the other. There could be no justification for such senior gazetted officers to make confusion between the two expressions and to use them indiscriminately in the proceeding. I do not know if the confusion was partly due to their misconstruing the observations of the Privy Council in AIR 1948 P.C 121 at p. 124 (para 13) (B), where for the purpose of that case the terms ‘dismissal’ and ‘removal’ were accepted as synonymous. That case dealt with the construction of Section 240(2) of the Government of India Act, where, as already pointed out, there was no express provisions dealing with ‘removal from Government service’. Their Lordships, however, held that the safeguard against dismissal from Government service of a civil servant provided in that section would equally apply when he is removed from Government service. But in the Constitution both the expressions have been put in juxtaposition and in the Civil Services (Classification, Control and Appeal) Rules the essential distinction between the two classes of penalties was clearly maintained. Hence, I cannot accept the Government Advocate's argument that when the petitioner was informed that it was proposed to remove him from service he should have known that the penalty that was intended to be passed against him was dismissal from service.

15. It is true that in the memo dated 2-9-1952, the petitioner was called upon to show cause why the penalty of dismissal may not be passed against him and in the further representation dated 9-9-1952, made by the petitioner to the Secretary, he purported to show cause against the passing of the penalty of ‘dismissal’. But these should be viewed against the background of the action that was proposed to be taken against him, namely, removal from service, A scrutiny of the relevant papers leads to the inference that though all concerned had overlooked the essential distinction between the two classes of penalties, yet the petitioner was led to believe that the extreme penalty that may be ultimately passed against him would be only removal from service. There can be no strict compliance with Cl. (2) of Article 311 unless the penalty that is eventually passed is either the same, or lesser in degree than that which was proposed to be passed against a civil servant. I am satisfied that there has been contravention of the mandatory provisions of Cl. (2) of Article 311 of the Constitution in consequence of which the order of dismissal (no. 17886.D.) dated 24-10-1952, should be held to be void and inoperative. The petitioner is hereby declared to be still a temporary Grade II Upper Division Assistant in the Secretariat. He is entitled to costs of this petition which are assessed at Rs. 100/-.

Panigrahi, C.J:— I agree.

K.S.B

16. Petition allowed.

Dayanidhi Rath v. B.S Mohanty Opposite Party.

Structured Summary of the Opinion (Narasimham, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

State's Arguments (Respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dayanidhi Rath v. B.S Mohanty Opposite Party.

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