P. Joseph John vs The State Of Travancore-Cochin

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 90 of 1953

Decision Date: 25 November, 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Natwarlal H. Bhagwati, B. Jagannadhadas

In this case the Supreme Court recorded that an enquiry was instituted against the petitioner under the Travancore Public Servants (Inquiries) Act, Act XI of 1132, following a resolution of the Council of Ministers. The petitioner participated in the proceedings and contested the charges, asserting that the Enquiry Commission lacked authority to conduct the enquiry. While some of the allegations were affirmed, the Chief Secretary subsequently required the petitioner to show cause why he should not be removed from his position. The petitioner’s request for an extension of time to file his response was granted on two occasions but was denied on a third request. After the petitioner failed to take the final opportunity to answer the proposed removal, the Enquiry Commissioner’s report was forwarded to the Public Services Commission, which approved the recommended action. The matter was then placed before the Rajpramukh, who issued an order in the proper form for the petitioner’s removal, and the order was authenticated by the Chief Secretary to the Government.

The Court held that, under Article 311 of the Constitution, a civil servant is entitled to a reasonable opportunity to defend himself and to show cause both at the stage of enquiry into the charges and at the stage when a definitive conclusion on the charges is reached and a provisional punishment is proposed. The Court explained that when a statute provides for a reasonable opportunity at more than one stage, the situation is not anomalous. In the present case the petitioner was afforded reasonable chances to present his defence at both stages. He fully utilized the first opportunity but declined the second one that was offered to him. Consequently, the Court concluded that all rules of natural justice had been observed.

Furthermore, the Court observed that the provisions of Article 166(1) and (2) are directory rather than mandatory. To determine whether compliance with those provisions has been achieved, it is sufficient to ascertain that the substantive requirements of the subsections have been met. The Court also noted that the Constitution’s Article 166 deals with the appointment of the Governor and the Ministerial Council, and its compliance is judged by the substance of the actions rather than a strict formalistic approach.

After the two former States of Travancore and Cochin were merged, the term “Our Government” was understood to refer to the Council of Ministers that formed the new democratic government of the United State. The Rajpramukh, who served as the constitutional head of the State, was required to act on the advice of these Ministers and had no independent executive authority. The Court further explained that the consultation required by Article 320(3) of the Constitution did not include a duty to consider any number of review petitions that a petitioner might file repeatedly. Moreover, the Court held that a sanction from the Rajpramukh, as mandated by Article 20 of the Covenant of the United State of Travancore-Cochin, was needed only before the commencement of civil or criminal proceedings; departmental proceedings were not covered by that provision. The Court cited the decision in Dattatreya Moreshwar Pangarkar v. The State of Bombay, reported in 1952 S.C.R. 612, as relevant authority.

The appeal that was before the Court was Civil Appeal No. 90 of 1953, filed under Article 132(1) of the Constitution of India. The appeal arose from a judgment and order dated 29 August 1952 of the High Court of Travancore-Cochin at Ernakulam, which had been passed in the original petition numbered 51 of 1952. Counsel for the appellant were the legal representatives of the petitioner, while counsel for the respondent were the legal representatives of the State of Travancore-Cochin. The judgment was delivered on 25 November 1954 by the Chief Justice, Mehr Chand Mahajan. The appeal was taken on a certificate of leave granted by the High Court of Judicature of Travancore-Cochin at Ernakulam and challenged the decision of a Full Bench of that High Court, which had dismissed an application for a writ of certiorari. The application sought to set aside the order issued by the Government of the United State of Travancore-Cochin that removed the appellant from State service and permanently barred him from any future reappointment.

The factual background set out in the judgment traced the petitioner’s career from his entry into the service of the former Travancore State in 1928. He was promoted to Executive Engineer of the Electricity Department in August 1937 and later became Electrical Engineer to the Government in October 1944. On 1 July 1949, when the two States were united by a Covenant between their rulers, he held the position of Electrical Engineer to the Government. By an order dated 11 August 1949 of the Government of the United State of Travancore-Cochin, he was appointed officiating Chief Engineer (Electricity). In September 1949, the United State Government received serious complaints concerning the conduct of several senior officers, including allegations of corruption and communalism. In December 1949, the Council of Ministers resolved to take action against the petitioner on several charges enumerated in its resolution. Consequently, on 22 December 1949, immediately after the resolution was passed, the petitioner was informed that he was suspended from service pending an enquiry and was instructed to hand over charge to Sri K. P. Sridharan Nair without delay. The petitioner complied with this directive.

After receiving the order to hand over his charge, the petitioner complied and surrendered the responsibilities as directed. On 21 March 1950, the Government issued a notification stating that it considered there were sufficient grounds to conduct a formal and public inquiry into the alleged misconduct of certain officers, including the petitioner. The notification invoked section 3 of the Travancore Public Servants (Inquiries) Act, XI of 1122, and appointed Sri K. Sankaran, a Judge of the High Court, as the Commissioner to conduct the inquiry. Under section 4 of the same Act, the Government nominated Sri T. R. Balakrishna Ayyar, the Government Pleader of the High Court, to prosecute the inquiry on the Government’s behalf. The notice listed the officers to be investigated, naming the petitioner as “Sri P. Joseph John.” The petitioner was formally informed of this inquiry by a notice dated 24 April 1950, which was signed by Shri K. G. Menon, the Chief Secretary to the Government.

Justice Sankaran assumed the role of Enquiry Commissioner and, on 11 May 1950, forwarded to Shri K. S. Raghavan, Secretary to the Government, the charge sheet, the list of witnesses, and the list of documents that were to be placed before the Commissioner. He also included the notice regarding the commencement of the inquiry so that these materials could be served on the petitioner. Shortly before the scheduled start of the inquiry, the petitioner applied to the Enquiry Commissioner for an order directing the Prosecutor to produce the files and papers relating to the various charges in the Commissioner’s office and for permission for the petitioner and his counsel to inspect them. The Commissioner granted this application, allowing the petitioner and his counsel to examine the relevant files in the presence of the Prosecutor or his deputy.

The inquiry officially began on 20 May 1950. On that day the petitioner entered a written statement pleading not guilty to all the charges. He was represented during the proceedings by counsel for the petitioner, a prominent member of the Bar. At the outset, a preliminary objection was raised to the jurisdiction of the tribunal. The objection relied on Article 20 of the Covenant between the rulers of Travancore and Cochin, arguing that the proceedings before the Commissioner were criminal in nature and could not be instituted without the sanction of the Rajpramukh, and that the lack of such sanction rendered the inquiry invalid. The Enquiry Commissioner did not decide this objection immediately but eventually rejected it, allowing the inquiry to proceed.

On 22 November 1950 the petitioner submitted detailed written answers to each of the charges. The inquiry concluded on 27 December 1950, and the Commissioner prepared a report which was submitted to the Government on 17 February 1951. The report found that some of the charges were proved, while others were not established. Subsequently, on 5 July 1951, the Chief Secretary to the Government sent a communication to the petitioner attaching a copy of the Commissioner’s report and indicating the Government’s concurrence with the findings and conclusions contained therein.

The Government stated that it accepted the conclusions reached by the Inquiring Commissioner concerning the several charges that had been brought against the petitioner. It further declared that it also accepted the Commissioner’s view that the objections raised by the petitioner, which challenged the validity of the inquiry itself, were untenable. Regarding the twenty-six charges that had been framed, the Government noted that nine of those charges, which were indicated in the margin of the report, had not been proved and were therefore dismissed. In particular, for Charge No. IX, the Government observed that, because of certain extenuating circumstances, the irregularity identified therein was to be condoned. The Government then explained that, based on the remaining charges that had been substantiated, the petitioner had abused his official position as Electrical Engineer to the Government. He was found to have exercised undue favouritism to private firms at the expense of State revenues, to have issued materials from Government stores to private companies and individuals in contravention of all applicable rules (see List A), and to have diverted departmental stores and departmental lorries for his personal use in several instances (see List B). Moreover, the petitioner was held guilty of defiance and insubordination towards the Government’s authority by refusing, in the matter of power supply to the Nagercoil Electric Supply Corporation, to provide certain particulars that were required of him and by refusing to withdraw an objectionable statement in his reply to the Government despite a direct order to do so.

The Government consequently proposed to remove the petitioner from service, to take effect from the date on which he had been placed under suspension, and to impose a permanent bar against any future reappointment. The petitioner was therefore directed to file a show-cause statement within fifteen days of receipt of the notice, together with any supporting documents, stating why the proposed action should not be taken. Upon receiving the notice, the petitioner applied for an extension of time until 10 September 1951 to file his show-cause statement, and this request was granted. When that deadline approached, he sought a further extension until 10 November 1951; the Government allowed an additional extension only until 24 September 1951. On 24 September 1951 he again requested more time, this time until 31 October 1951, but the request was refused. Despite having been given the original period he requested and an additional fortnight, the petitioner failed to submit any explanation or any show-cause statement. Because the petitioner did not take advantage of the opportunity to contest the proposed action, a draft of the proceedings concerning the inquiry was submitted to His Highness the Rajpramukh on 30 September 1951. Accordingly, an order was issued by His Highness the Rajpramukh effecting the petitioner’s removal from service from the date of suspension and barring him from future reappointment; the order was properly executed by the Rajpramukh and duly authenticated by the Chief Secretary to the Government.

The order removing the petitioner from service was authenticated by the Chief Secretary to the Government and bore the date 1 October 1951. Before the documents were presented to His Highness the Rajpramukh, the report prepared by the Commissioner had been forwarded to the Public Services Commission for its review. The Commission examined the report and expressed its support for the action that the Government intended to take against the petitioner. Consequently, on 9 October 1951 the petitioner was formally removed from service, the removal being made effective retrospectively from 26 December 1949. Two months after the removal order, the petitioner filed an application seeking a reconsideration of that order. The request for reconsideration was denied by an order dated 25 January 1952. In response to these developments, the petitioner filed an application before the High Court of Travancore-Cochin at Ernakulam on 2 June 1952. The petition prayed that the court issue a writ of certiorari or any other appropriate writ, directions or orders directing that the records relating to the orders dated 9 October 1951 and 25 January 1952 be produced, that those orders be set aside, and that the respondent be directed to restore the petitioner to the office to which he was legally entitled. The petitioner contended that he had not been afforded a reasonable opportunity to show cause against his removal, asserting that he should have been given a chance to be heard both after the finding of guilt and again after the punishment had been decided, and that the denial of these opportunities rendered the dismissal illegal, void, and contrary to the principles of natural justice. He further argued that the required consultation with the Public Services Commission had not been carried out in accordance with the procedural provisions for disciplinary action against Government servants prescribed in Article 320, sub-section 3(c) of the Constitution of India, and he raised a number of additional grounds challenging the dismissal order. The High Court dismissed the petition, rejecting all of the petitioner’s contentions, but it certified that the case raised substantial questions of law concerning the interpretation of the Constitution and therefore constituted a fit matter for appeal to this Court.

On behalf of the appellant, counsel appeared and raised several points attacking the validity of the order that removed the appellant from service, contending that the enquiry into the charges against him was wholly illegal and void. The Court observed that none of the points raised by counsel possessed substantial merit; they were matters of mere form and did not provide any valid reason to disturb the High Court’s decision. The Court noted that the fundamental issue concerning the validity of a removal order of a person employed in a civil capacity under the Union or a State must be determined according to the provisions of Article 311 of the Constitution of India. The Court then quoted the relevant part of Article 311, which provides that no person who is a member of a civil service of the Union, an All-India service, a civil service of a State, or who 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, and that no such person shall be dismissed, removed, or reduced in rank until he has been given a reasonable opportunity of showing cause against the proposed action.

In this matter the Court observed that Article 311 of the Constitution sets out two essential conditions for the dismissal or removal of any person who is a member of the Union civil service, an all-India service, a State civil service, or who holds a civil post under either the Union or a State. The first condition requires that the dismissal or removal be made by an authority that is not subordinate to the authority which originally appointed the person. The second condition requires that the person be given a reasonable opportunity to show cause before any such action is taken. The Court noted that the petitioner was not removed by a subordinate authority; the order of removal was issued by the Rajpramukh and was made in accordance with the provisions of Article 166 of the Constitution. Consequently, the requirement of sub-clause (1) of Article 311 had been satisfied. Regarding the requirement of sub-clause (2), the Court referred to the legal position articulated by the Privy Council in High Commissioner for India v I. M. Lall, where it was held that a reasonable opportunity must be afforded to the civil servant at the stage when definitive conclusions about the charges have been reached and the nature of the prospective punishment is provisionally determined. The Court further explained that the statute contemplates that such an opportunity may arise at more than one stage of the proceedings. In the present case, the petitioner was afforded a reasonable opportunity at both stages. He fully utilized the first opportunity by inspecting the relevant files, filing a comprehensive written statement, and presenting a defence before the Enquiry Commissioner, who allowed him to examine and cross-examine all witnesses. Although the petitioner succeeded in showing that several of the charges were not established, he did not make use of the second opportunity that was also offered to him. The Court therefore held that the petitioner could not now contend that the requirements of clause (2) of Article 311 had been breached. The Court also emphasized that the Enquiry Commissioner had provided the petitioner with all facilities necessary for the defence, including access to the charge files, the chance to submit a written statement, and the right to be represented by counsel and to question witnesses, thereby satisfying the constitutional demand for a reasonable opportunity to be heard.

The enquiry commissioner found that the petitioner had not been able to satisfy him on the remaining charges after he had successfully disproved several of the allegations. Consequently, the commissioner concluded that the outstanding charges were proved and recorded them as such in his report. When the enquiry was terminated, the petitioner was provided with a full copy of the commissioner’s report and was served with a notice requiring him to show cause why the contemplated action against him should not be taken. The petitioner requested a period of two months in order to prepare his response, and the authorities granted this request. He subsequently asked for an additional extension of time, which was partially approved, and later made another application for further time that was ultimately refused. The court observed that the period allotted to the petitioner was reasonable because he had taken an active part in the enquiry before the commissioner, all the evidence had been taken in his presence, and he had been given the fullest opportunity to defend himself. Moreover, every piece of material upon which the commissioner based his findings of fact was contained in the report that accompanied the show-cause notice. In the court’s view, the time granted was more than sufficient for the petitioner to mount his defence, and his failure to do so precludes him from alleging that he was denied a reasonable opportunity to show cause against the proposed action.

Mr. Thomas contended that the show-cause notice did not comply with the requirements of Article 166 of the Constitution because it was not expressed to have been issued in the name of the Rajpramukh. The court noted, however, that the notice had been issued on behalf of the Government and signed by the Chief Secretary of the United State of Travancore-Cochin, who, under the rules of business framed by the Rajpramukh, held the portfolio of “service and appointments” at the secretariat level. This, the court held, amounted to substantial compliance with the directory provisions of Article 166. The court relied on the precedent set in Dattatreya Moreshwar Pangarkar v. The State of Bombay, where it was held that clauses (1) and (2) of Article 166 are merely directory and that non-compliance with their precise wording does not render an order invalid so long as substantial compliance is demonstrated. In the present case, there was no doubt that the notice signed by the Chief Secretary, expressed to be on behalf of the Government and granting the petitioner an opportunity to show cause, satisfied the requirements of Article 166 in substantial terms. The petitioner himself accepted the notice and, in accordance with it, applied for further time to prepare his defence, an application that was granted on two occasions. Accordingly, the argument advanced by Mr. Thomas that the notice was invalid and that the requirements of Article 311 had therefore not been fulfilled must be rejected as without merit.

In this case, the Court found that the argument that the notice was invalid because it did not follow the exact form required by Article 166 and therefore the conditions of Article 311 were not met had no merit. The Court was satisfied that every requirement of Article 311 had been fully complied with. The Court also noted that the High Court had held that the Rajpramukh had been informed of the Council of Ministers’ decision and of the action proposed against the petitioner, and that the Rajpramukh had in fact approved that action. Mr. Thomas further argued that the first-stage enquiry was invalid and irregular, contending that the order appointing the Enquiry Commissioner was not in the proper form and that the Commissioner had not conducted the enquiry according to the Act. The Court observed that the notification ordering an enquiry was issued after the Council of Ministers passed a resolution, and it must be presumed that, in the normal course of business, that resolution was communicated to the Rajpramukh. Accordingly, the order substantially complied with legal requirements, and the lack of exact wording prescribed by Article 166 did not defeat the validity of the notification. The appellant had participated in the enquiry, defended himself and contested every point; therefore the Court held that he had been given a reasonable opportunity to defend himself at the first stage. The petitioner's counsel also contended that under the Travancore Public Servants (Inquiries) Act, 1122, only the Maharaja could make an order, and that the Ministers were powerless, emphasizing the phrase “Our Government” in the Act. The Court rejected this contention. It explained that “Our Government” in the pre-integration legislation meant the Maharaja’s Government, i.e., the Government of the State of Travancore. After the merger of Travancore and Cochin and the creation of the United State of Travancore-Cochin, the phrase had to be interpreted in the context of the new constitutional arrangement, where the Council of Ministers constituted “Our Government.” The Court reiterated the democratic principle that the Rajpramukh or Governor is a constitutional head who must act on the advice of his Ministers; therefore the order appointing the Enquiry Commissioner could not be said to be ultra vires or without jurisdiction. Another point raised by Mr. Thomas was that, without the Rajpramukh’s sanction, proceedings could not be initiated against the petitioner. The Court noted that this argument relied on Article 20 of the Covenant, which requires prior sanction of the Rajpramukh only for civil or criminal proceedings before courts. The High Court had held that the enquiry before the Commissioner was not a civil or criminal proceeding, and therefore the requirement of Article 20 did not apply.

In this case the contention of the petitioner was based upon Article 20 of the Covenant of the United State of Travancore and Cochin. Article 20 reads: “Except with the previous sanction of the Raj-pramukh, no proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of either Covenanting State before the appointed day.” The High Court rejected this contention and observed that the terms “civil or criminal proceedings” are technical expressions that refer specifically to proceedings before civil or criminal courts. The Court pointed out that those two categories do not exhaust every matter that may be described as a proceeding, and that the requirement of prior sanction of the Raj-pramukh applies only to genuine civil or criminal proceedings within the meaning of Article 20. The Court further noted that the petitioner did not claim that the enquiry before the Commissioner was a criminal proceeding; the petitioner merely alleged that the enquiry possessed a character akin to criminal proceedings. Consequently the Court held that Article 20 does not extend to proceedings that are not criminal but only resemble criminal proceedings. The present judgment fully agrees with that observation and holds that departmental enquiries fall outside the scope of Article 20. The petitioner also argued that there was a breach of Article 320, clause 3(c) of the Constitution, which requires that the Union or State Public Service Commission be consulted on all disciplinary matters affecting a civil servant, including any memorials or petitions relating to such matters. In the present circumstances the Commission was indeed consulted before the proposed removal of the petitioner, and it gave its approval to the proposed action. That consultation and approval occurred before the petitioner was called upon to show cause as to why he should not be removed. The petitioner’s complaint is that the consultation should have taken place after the show-cause notice, and that because he did not respond to the notice, there was no need for a second consultation. He further contended that the Commission should have been consulted again on his review petition. The Court observed that accepting this argument would obligate the State to consult the Commission each time a review petition is filed, which is not intended by Article 320. Accordingly, the Court holds that the statutory consultation required by Article 320 does not extend to repeated consultations for subsequent review petitions. In the present case the Commissioner’s report was placed before the Commission, the Commission approved the proposed action, and the appellant was again given an opportunity to show cause, which he failed to avail himself of.

In the present case the petitioner had been given a second chance to present any explanation or to show cause, which could have prompted further consultation with the Public Service Commission. Because the order of dismissal was already pronounced, the Court found that there was no longer any requirement to refer the matter to the Commission. Accordingly the Court held that the petitioner’s contention that another consultation was necessary had no merit. After considering all submissions made by counsel for the petitioner, the Court concluded that every rule of natural justice had been observed during the enquiry. The petitioner had been allowed to defend himself both before the Enquiry Commissioner and against the proposed disciplinary action. The Court noted that the petitioner himself failed to take advantage of the second opportunity because of his own default. The petitioner subsequently filed a belated review application, but the Court observed that such a review was not provided for under the applicable rules and that, even if it were permissible, the circumstances did not require a further reference to the Public Service Commission. The Court further observed that petitions of this character were not contemplated by the Constitution. For these reasons the Court dismissed the appeal. No order as to costs was made, and the appeal was dismissed in its entirety.