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Secretary, Central Board Of Excise And Customs And Others v. K.S Mahalingam .
Factual and Procedural Background
K.S. Mahalingam, serving as an Examiner in the Madras Customs House, was issued a charge-sheet alleging (i) lack of integrity, (ii) lack of devotion to duty, and (iii) conduct unbecoming of a government servant. After a full departmental inquiry in which he denied the charges, the Inquiry Officer found both articles proved. On May 15, 1980 the disciplinary authority (Collector of Customs, Madras) ordered his dismissal from service.
Mahalingam appealed to the Chief Vigilance Officer, Central Board of Excise and Customs. On July 8, 1981 the appellate authority confirmed the findings but reduced the penalty to compulsory retirement.
Mahalingam then filed a writ petition before a Single Judge of the Madras High Court. On September 7, 1985 the Single Judge quashed the dismissal, holding both that (a) the evidence did not prove misconduct, and (b) the employee had not been given a further opportunity to show cause against the proposed punishment nor supplied the Inquiry Officer’s report before penalty was imposed; reinstatement was directed.
The Union of India appealed. A Division Bench on September 13, 1985 agreed only that no second show-cause notice had been given and, without examining the merits, set aside reinstatement and permitted the disciplinary authority to restart proceedings from the stage of issuing a fresh penalty notice. The Union of India sought special leave before the Supreme Court; leave was granted and the matter converted into the present appeal.
Legal Issues Presented
- Whether, after the Constitution (Forty-Second Amendment) Act, 1976—specifically the amendment to Article 311(2)—and the corresponding amendment to Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, a disciplinary authority is required to:
- (a) furnish a government servant with a copy of the Inquiry Officer’s report before imposing penalty, and
- (b) issue a second show-cause notice inviting representation on the proposed punishment.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. Tulsiram Patel, (1985) 3 SCC 398 (Five-Judge Bench) | The deletion by the 42nd Amendment of the right to make a representation on proposed penalty eliminates any legal basis for claiming a second show-cause notice. | The Court relied on the majority view to hold that no second opportunity is required under Article 311(2) or Rule 15(4). |
Court's Reasoning and Analysis
The Supreme Court noted that both the Single Judge and the Division Bench overlooked the constitutional and statutory changes wrought by the Forty-Second Amendment. After 1976, Article 311(2) expressly states that “it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.” Parallel language was incorporated into Rule 15(4) of the CCS (CCA) Rules.
Because Mahalingam had been informed of the charges and afforded a full opportunity to defend himself during the inquiry, the constitutional requirement of reasonable opportunity had been met. The subsequent supply of the Inquiry Officer’s report, although furnished only after dismissal, enabled him to file an appeal and therefore did not vitiate the proceedings.
Citing Tulsiram Patel, the Court reaffirmed that, post-amendment, no independent right to a second show-cause notice survives. Consequently, the High Court erred in annulling the dismissal solely on that ground without examining substantive findings.
Holding and Implications
Appeal Allowed; Division Bench judgment set aside; matter remanded to the High Court Division Bench for determination on merits.
Immediate Effect: The High Court must now adjudicate the disciplinary appeal on evidentiary merits rather than procedural grounds. No costs were awarded.
Broader Implications: The decision reinforces that, following the Forty-Second Amendment and amended Rule 15(4), government servants are not entitled to a second show-cause notice or pre-penalty copy of the inquiry report. The ruling applies existing Supreme Court precedent and does not create new law.
M.M Dutt, J.— The special leave petition filed by the appellants was heard upon notice to the respondent, who appeared before us in person. As arguments have been made by both sides at the hearing of the special leave petition, we proceed to dispose of the appeal after granting such leave.
2. The only question that is involved in this appeal is whether it is necessary to give a second show-cause notice against the punishment before the same was imposed on the respondent and to furnish him with a copy of the report of inquiry officer in view of the amendment of clause (2) of Article 311 of the Constitution of India by the Constitution (Forty-Second Amendment) Act, 1976 and the consequential change brought about in Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Indeed, the notice of the special leave petition that was served on the respondent was confined only to the said question.
3. The respondent, K.S Mahalingam, was the Examiner of Madras Customs House. While he was acting in that capacity, a charge-sheet was served on him containing two articles of charge alleging misconduct involving lack of integrity and lack of devotion to duty and conduct unbecoming of a government servant. The respondent submitted his defence, inter alia, denying the charges. The inquiry officer held that both the articles of charge were established. The disciplinary authority, namely, the Collector of Customs, Madras, examined the report of the inquiry officer and by his order dated May 15, 1980 came to the finding that both the charges framed against the respondent were proved. In view of the said finding, the Collector of Customs by his said order dismissed the appellant from service. Being aggrieved by the order of dismissal, the respondent preferred an appeal against the same to the Chief Vigilance Officer, Central Board of Excise and Customs The appellate authority elaborately considered the facts and circumstances of the case and by its order dated July 8, 1981 upheld the finding of the disciplinary authority that the charges against the respondent were proved. The appellate authority, however, altered the penalty of dismissal to one of compulsory retirement of the respondent from service.
4. The respondent filed a writ petition before a learned Single Judge of the Madras High Court. The learned Judge, upon a review of the materials on record, came to the conclusion that there was no evidence of lack of integrity or lack of devotion to duty or conduct unbecoming of a government servant as alleged in the charges levelled against the respondent. Further, the learned Judge took the view that as no opportunity was given to the respondent to show cause against the punishment before the same was imposed by the disciplinary authority and as no copy of the inquiry officer's report was supplied to him, the order of dismissal was vitiated. Accordingly, the learned Judge by his order dated September 7, 1985 quashed the order of dismissal and directed reinstatement of the respondent in service.
5. The appellants preferred an appeal before a Division Bench of the High Court. The Division Bench by its judgment dated September 13, 1985 agreed with the learned Single Judge that the respondent was deprived of an opportunity to show cause against the punishment imposed on him by the disciplinary authority. In that view of the matter, the Division Bench did not consider the findings of the learned Judge on merits. The Division Bench modified the order of the learned Single Judge by setting aside the direction for reinstatement of the respondent in service and permitting the disciplinary authority to proceed further with the disciplinary proceedings against the respondent from the stage of giving a fresh notice to show cause against the punishment to be proposed by him. Hence this appeal by the appellants.
6. It thus appears that the Division Bench as also the learned Single Judge of the High Court took the view that the order of dismissal was vitiated as the disciplinary authority failed to give to the respondent an opportunity to show cause against the punishment of dismissal before the same was imposed on him. Both the Division Bench and the learned Single Judge of the High Court have completely overlooked the fact that the Constitution (Forty-second Amendment) Act, 1976 has deleted from clause (2) of Article 311 of the Constitution the requirement of a reasonable opportunity of making representation on the proposed penalty and, further, it has been expressly provided inter alia in the first proviso to clause (2) that “it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”. After the amendment, the requirement of clause (2) will be satisfied by holding an inquiry in which the government servant has been informed of the charges against him and given a reasonable opportunity of being heard. In the instant case, such an opportunity has been given to the respondent. It is also not disputed that after the order of dismissal was passed, the respondent was supplied with a copy of the report of the Inquiry Officer which enabled him to prefer an appeal to the appellate authority against the order of dismissal.
7. In this connection, it may be noticed that in view of the said amendment of Article 311(2) of the Constitution, Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was amended. Rule 15(4) as amended provides as follows:
“15. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the government servant, it shall make an order imposing such penalty and it shall not be necessary to give the government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the government servant.”
Clause (ix) of Rule 11 referred to in Rule 15(4) is the penalty of dismissal.
8. It is, therefore, clear that the respondent cannot claim a second opportunity to show cause against the punishment either under Article 311(2) of the Constitution or under Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
9. The question was also considered by a five-Judge Bench of this Court in Union of India v. Tulsiram Patel (1985) 3 SCC 398. In that case, it has been observed per majority that the only right to make a representation on the proposed penalty which was to be found in clause (2) of Article 311 of the Constitution prior to the amendment having been taken, by the Constitution (Forty-second Amendment) Act, there is no provision of law under which a government servant can claim this right. In our view, therefore, both the learned Single Judge and the Division Bench of the High Court were not justified in holding that the order of dismissal was vitiated as the respondent was not given a second opportunity to make representation against the punishment of dismissal before the same was imposed on him.
10. In the circumstances, we set aside the judgment of the Division Bench of the High Court but, as in disposing the appeal the Division Bench has not considered the judgment of the learned Single Judge on merits of the case, we send the case back on remand to the Division Bench for the disposal of the appeal on merits after giving the parties an opportunity of being heard.
11. This appeal is allowed. There will, however, be no order as to costs.
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