S.K Pandey v. State Of Bihar And Others

Narasimham, C.J and Sahai, J.:— This is an application under Arts. 226 and 227 of the Constitution to quash the order dated March 23, 1965 (Annexure H) passed by the Managing Director, Bihar State Small Industries Corporation Ltd., dismissing the petitioner from service of the said Corporation. The Corporation is admittedly a Government of Bihar undertaking (see Annexure F.). The petitioner was working as the Manager, Radio Component Scheme, Industrial Estate, Patna, when he was called upon to face a departmental proceeding on July 26, 1961 in connection with various allegations of misconduct (Annexure B). The departmental proceedings were actually conducted by a Special Officer of the Political and Appointment Department, named Sri R.P Singh, who in his report (Annexure E) dated September 28, 1962 suggested that the petitioner should be discharged from service and further stated that the charges were proved. On receipt of his report, the Managing Director of the said Corporation by his notice dated February 1, 1964 (Annexure F) called upon the petitioner to show cause as follows:—

“You are required to show cause within a fortnight of the receipt of this letter as to why you should not be discharged from services under this Corporation, in view of the charges proved against you in the findings mentioned above”.

2. A copy of the findings of the Special Officer was also sent to the petitioner with a view to enable him to show cause.

3. The petitioner showed cause. This notice was obviously issued under Art. 311(2) of the Constitution as suggested in the report of the Special Officer himself. The petitioner's explanation to this show cause notice was not accepted and the Managing Director passed orders to the effect that the petitioner should be dismissed from service with immediate effect.

4. The main point urged by Mr. Ghosh for the petitioner is that when the authority concerned tentatively decided to impose the lesser punishment of discharge from service, it was not open to that authority in passing the final order to impose a graver punishment of dismissal from service. It is well known that in service rules the punishment of discharge is considered to be lesser than the punishment of dismissal (see clauses (vi) and (vii) of Rule 49 of the Civil Service—Classification, Control and Appeal—Rules, 1930). It has been held in Dayanidhi Rath v. B.S Mohanty (1) that there will be contravention of Art. 311(2) of the Constitution if the punishment actually imposed on a public servant is graver than the punishment that was tentatively decided to be imposed on him and in respect of which he was called upon to show cause. That judgment was noticed by their Lordships of the Supreme Court in Hukum Chand Malhotra v. Union of India (2) and was not dissented from so far as this aspect is concerned. Following the said principle, we must, therefore, hold that the order of dismissal from service (Annexure H) is invalid having been passed in contravention of Art. 311(2) of the Constitution.

5. The petition is allowed and the order of dismissal from service (Annexure H) is quashed. There will be no order for costs.

6. Petition allowed.