Hukum Chand Malhotra vs Union Of India

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 12 December 1958

Coram: M. Hidayatullah, P.B. Gajendragadkar, S.K. Das, K.N. Wanchoo

In this case, the matter came before the Supreme Court on an appeal filed by special leave, and the sole issue for determination was whether the order issued by the President on 1 October 1954, which removed the appellant from service with effect from that date, was void because it violated the provisions of Article 311(2) of the Constitution. The appellant, Hukum Chand Malhotra, recounted that he had entered permanent Government service on 4 April 1924. In 1947, prior to the partition of the country, he was employed as Assistant Secretary of the Frontier Corps of Militia and Scouts in the then North-Western Frontier Province, a post that was administered by the External Affairs Department of the Government of India and was classified as a Central Service, Class II position. After the partition, the appellant chose to continue his career in India and, in October 1947, he was assigned to an office that functioned under the Ministry of Commerce of the Government of India. In December 1949, he was transferred to the office of the Chief Controller of Imports in New Delhi in order to clear certain arrears of work. Subsequently, in August 1951, he was posted as Deputy Chief Controller of Imports in Calcutta, and he served in that capacity until September 1952. Following that, he took a leave of four months on average pay; on the expiry of this leave, on 24 January 1953, he was transferred to the position of Section Officer in the Development Wing of the Ministry of Commerce. The appellant perceived this transfer as a demotion of his rank and therefore made representations to the authorities, but those representations did not produce any relief. Consequently, on 6 February 1953, he applied for leave preparatory to retirement, stating in his application that his normal retirement was scheduled for April 1956, but that he found it difficult to accept the new conditions of service under which he was placed, and that continuing in such a position would not serve either his personal interests or the interests of the Government and the country; he therefore requested permission to retire effective 1 May 1953. On 14 February 1953, the appellant amended his leave application, indicating that he had been informed by the Administrative Branch of the Development Wing that the request for retirement permission was still under consideration because of a difficulty concerning the inclusion of the period during which he held the post of Assistant Secretary, Frontier Corps; consequently, he indicated that he might be granted leave on full average pay for four months starting 15 February 1953, if the decision to give him

On February 14, 1953, the appellant altered his leave application to state that, if permission to retire was likely to be postponed beyond May 1, 1953, he should be granted leave on full average pay for four months starting February 15, 1953. He subsequently prayed that leave be sanctioned for four months from February 15, 1953, or until the date on which he might be permitted to retire, whichever occurred earlier. On March 10, 1953, the appellant received a communication informing him that retirement could not be granted at that stage, but that the Ministry would allow him leave from February 16, 1953, to April 30, 1953. The appellant then proceeded on leave and, on February 25, 1953, wrote to the Government indicating that he was contemplating joining the service of Messrs. Albert David & Co. Ltd., Calcutta, and that he would accept a two-month training course with that company. In April 1953, he accepted employment with Messrs. Albert David & Co. Ltd. and sent a letter to the Government on April 6, 1953, confirming his acceptance of that service.

On June 16, 1953, the appellant was charged with violating Rule 15 of the Government Servants' Conduct Rules and Fundamental Rule 11. Rule 15, inter alia, prohibits a government servant from engaging in any trade or undertaking any employment other than his public duties without prior government sanction. Fundamental Rule 11 essentially provides that, unless expressly provided otherwise, the whole time of a government servant is at the disposal of the government that pays him. The appellant was directed to appear before A. P. Mathur, Joint Chief Controller of Imports, who was tasked with conducting an inquiry into the charge. The appellant submitted an explanation, and an inquiry was held by the Enquiring Officer. The officer submitted his report on September 12, 1953, concluding that the appellant had, contrary to the service rules, accepted private employment without prior government sanction while still in government service. Consequently, on April 14, 1954, the appellant was served with a show-cause notice in accordance with Article 311(2) of the Constitution. The notice, reproduced in full, informed the appellant that the Enquiry Officer’s report had been considered, that the President was provisionally of the opinion that a major penalty such as dismissal, removal, or reduction should be imposed, and that the appellant was being given an opportunity to show cause in writing within fourteen days of receipt of the notice.

The show cause notice dated 14 April 1954 required the appellant to submit any written representation within fourteen days of receipt and asked him to acknowledge the letter. The notice was signed by the Joint Secretary to the Government of India. The appellant complied with the requirement and submitted his representation. On 1 October 1954 the President issued an order stating that, after considering the Enquiry Officer’s report and consulting the Public Service Commission, the charge against the appellant had been proved and, consequently, the appellant was removed from service effective that date. The appellant then filed a petition before the Punjab High Court under Article 226 of the Constitution. In that petition he asserted two main points: first, that he had not been afforded a reasonable opportunity to show cause as mandated by Article 311(2); and second, that he had taken leave preparatory to retirement and accepted employment with Albert David & Co. Ltd. in the genuine belief that the Government did not object to such private employment. The learned judge, Dulat, J., dismissed the petition on both grounds. He held that there was no breach of Article 311(2) because the procedural requirements had been satisfied, and he found that, on the facts admitted, the appellant had indeed taken private employment in violation of the service rules, rejecting the appellant’s claim that he had been denied an adequate chance to present evidence.

The court thereafter limited the enquiry to the remaining issue, namely the alleged contravention of Article 311(2). Counsel for the appellant submitted that the show cause notice of 14 April 1954 enumerated all three punishments contemplated by Article 311(2) but failed to specify which particular punishment was intended to be imposed. Accordingly, counsel argued that the notice did not meet the essential requirements of Article 311(2) and that the removal order of 1 October 1954 was therefore legally invalid. The court referred to its earlier decision in Khem Chand v. Union of India, where it clarified the scope of Article 311(2). That precedent explained that the “reasonable opportunity” required by the provision comprises three distinct elements: (a) an opportunity for the government servant to deny his guilt and prove his innocence; (b) an opportunity to defend himself against the charges; and (c) an opportunity to make a representation as to why the proposed punishment should not be inflicted. The present case was consequently examined in the light of these three elements to determine whether the show cause notice had satisfied the constitutional requirement.

The Court explained that a government servant may make a representation on the proposed punishment only after the enquiry has been completed, after the competent authority has considered the seriousness of the charges proved against the servant, and only after that authority has tentatively decided to impose one of the three punishments prescribed in Article 311(2) and has communicated that tentative decision to the servant. The Court noted that it was no longer contested that the appellant had been afforded the first two opportunities identified earlier, namely the chance to deny guilt and the chance to defend himself. The remaining issue for determination was whether the show-cause notice dated 14 April 1954 provided the appellant with a reasonable opportunity to show cause against the contemplated action.

Mr N. C. Chatterjee drew attention to two observations made by this Court in Kemm Chand’s case ([1958] S.C.R. 1080). He pointed out that, with respect to the third opportunity—the right to make a representation—the Court had observed that such a representation is permissible only after the enquiry is over, after the authority has weighed the gravity of the proven charges, after it has tentatively proposed to inflict one of the three punishments, and after it has communicated that proposal to the government servant. Mr Chatterjee stressed the wording “one of the three punishments” in that observation. He also referred to the judgment of the Judicial Committee in High Commissioner for India and High Commissioner for Pakistan v. I. M. Lall ((1948) L.R. 75 I.A. 225, 242), whose observations were quoted with approval in Kemm Chand’s case ([1958] S.C.R. 1080). One passage from that judgment stated: “In the opinion of their Lordships no action is proposed within the meaning of the sub-section … until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on.”

Mr Chatterjee further highlighted the expression “actual punishment” in the cited passage. The Court reminded that, in both I. M. Lall’s case ((1948) L.R. 75 I.A. 225, 242) and Kemm Chand’s case ([1958] S.C.R. 1080), the essential point of the decisions was that no second notice had been served to the government servant after the enquiry’s conclusion to allow him to show cause against the proposed action. In I. M. Lall’s case, a notice was issued simultaneously with the charges, directing the servant to show cause why he should not be dismissed, removed, reduced, or subjected to any other disciplinary action that the competent authority might deem appropriate. That notice combined the charge and the contemplated punishments in a single document. The Judicial Committee held that such a combined notice did not satisfy the requirements of sub-section (3) of section 240 of the Government of India Act, 1935. The Court then turned to the facts of Kemm Chand’s case, noting the relevance of the same principle regarding the necessity of a separate notice after the enquiry.

In the matter before the Court, it was observed that the report prepared by the Enquiring Officer received the approval of the Deputy Commissioner of Delhi, who then imposed the penalty of dismissal without affording the Government servant concerned an opportunity to show cause against the proposed action. The learned Solicitor-General for the Union of India attempted to distinguish this situation from the decision in I. M. Lall’s case, arguing that the notice in that earlier case required the servant to show cause why he should not be dismissed, removed, reduced or subjected to any other disciplinary action, whereas the notice in Khem Chand’s case mentioned only dismissal as the contemplated punishment. In addressing this submission, the Court referred to the judgment of the Judicial Committee in I. M. Lall’s case and clarified that the earlier decision was not predicated on the presence of multiple punishments in the notice. Rather, the decisive factor was that the servant had not been given a chance to respond after the stage at which the charges had been established, the competent authority had considered the seriousness of those charges, and a specific punishment had been tentatively proposed. Consequently, the essential point of both I. M. Lall’s case and Khem Chand’s case was that the Government servant was denied the opportunity to show cause after the charges were proved and the authority had deliberated on the appropriate penalty. Although some passages in those judgments use the terms “actual punishment” or “particular punishment,” the Court held that such language must be understood in its contextual setting. The Court then examined the implications of interpreting Article 311(2) to require that the “exact” or “actual” punishment be specified in the show-cause notice issued at the second stage. It noted that the purpose of the second-stage notice is to give the servant a reasonable chance to argue why the proposed punishment, for example dismissal, should not be imposed, and to suggest a lesser penalty such as removal or reduction in rank. If the statute obliged the authorities to state the precise punishment in that notice, any acceptance of the servant’s representation would necessitate issuing a third notice, thereby defeating the very objective of the second notice. Moreover, as emphasized by Justice Dulat, even if the notice only mentioned dismissal, the punishing authority would remain free to impose a lesser punishment, and no grievance could arise regarding the content of the notice or the actual penalty imposed.

In this case, the Court observed that a Government servant may submit a representation contending that, although the charges against him have been proved, he does not deserve the extreme penalty of dismissal and should instead receive a lesser punishment such as removal or reduction in rank. The Court explained that if the law required the punishing authority to state the exact or particular punishment in the second-stage show-cause notice, the authority would have to issue a third notice whenever the State Government accepted the servant’s representation. Such a requirement would defeat the very purpose of the second-stage notice, which is to give the servant a reasonable opportunity to show cause why the proposed punishment should not be imposed.

The Court then considered an additional aspect emphasized by Justice Dulat. It noted that even if the show-cause notice in the present case had mentioned only dismissal and omitted the two lesser punishments, the authority would still have been free to impose removal or reduction in rank, and no grievance could have been lodged either against the notice or against the actual punishment imposed. The Court rejected the proposition that enumerating the three possible punishments in the notice invalidated it. On the contrary, the Court held that by listing dismissal, removal and reduction, the notice gave the appellant a fuller and better opportunity to show cause why none of the three punishments should be inflicted. The Court stressed that the notice was not vague nor did it suggest that the punishing authority had failed to consider the appropriate penalty.

The Court pointed out that the show-cause notice dated 14 April 1954 expressly stated: “the President is provisionally of opinion that a major penalty, namely, dismissal, removal or reduction, should be enforced on you.” This language showed that the President had reached a tentative conclusion that the proved charge could merit any one of the three penalties and that the appellant was invited to show cause against each of them. The Court found nothing improper in principle with the authority tentatively forming the opinion that the charges could justify any of the three major penalties and, on that basis, asking the servant to show cause against the alternative punishments. Specifying more than one punishment in the alternative, the Court explained, does not make the proposed action any less definite; rather it provides the servant a better chance to contest each possible sanction, a chance that would be unavailable if only the severest penalty had been mentioned and a lesser one subsequently imposed without prior notice.

Having dealt with these points, the Court proceeded to consider certain other decisions cited by counsel.

The counsel for the appellant placed reliance on three earlier decisions, namely Jatindra Nath Biswas v. R. Gupta ([1953] 58 C.W.N. 128), Dayanidhi Rath v. B. S. Mohanty, and Lakshmi Narain Gupta v. A. N. Puri. In the Biswas case, the Court noted that no second show-cause notice had been issued and the judgment proceeded on that basis. Justice Sinha, however, emphasized that when an enquiry is conducted, the employee must not only be given an opportunity to contest the case before the enquiry, but also, prior to the imposition of any penalty, must be informed of the enquiry’s result and of the precise punishment that is proposed to be inflicted. Counsel for the appellant highlighted the use of the term “exact” in this observation. The present case, however, was decided on a different ground and was not predicated on the requirement that a single punishment be specified in a second show-cause notice.

The decision in Dayanidhi Rath’s case was founded on the principle that when a more severe punishment is tentatively proposed against a civil servant, the authority may, at its discretion, impose a lesser punishment; conversely, if the tentative proposal is for a lesser penalty, it would be prejudicial to later impose a harsher one. In that matter, the show-cause notice stated that, in view of the Enquiring Officer’s findings as reflected in the report approved by the Secretary and taking into account the servant’s past record, it was proposed to remove the servant from Government service. In another part of the same notice, the servant was directed to show cause why the penalty of dismissal should not be imposed for the proved charges. Thus, the notice juxtaposed two punishments—removal and dismissal—in a manner that made it difficult to conclude that the punishing authority had carefully considered and arrived at a tentative decision as to which punishment should be applied. The authority did not simply present the two penalties as alternatives; rather, one segment of the notice indicated a proposal to remove the servant, while another segment indicated a proposal to dismiss him.

In the Lakshmi Narain Gupta case, the notice required the petitioner to show cause why disciplinary actions such as reduction in rank, withholding of increments, and similar measures should not be taken against him. The learned judge observed that Rule 49 of the Civil Service (Classification, Control and Appeal) Rules enumerates seven possible penalties, and the notice failed to demonstrate that the authority had exercised its mind and reached any tentative conclusion regarding the imposition of any specific penalty under that rule. On that basis, the court held that the notice did not satisfy the requirements of Article 311(2) of the Constitution.

The Court noted that there was no compliance with the provisions of Article 311(2) of the Constitution as required. Consequently, the Court declined to interpret the earlier decisions as establishing a rule that any second show-cause notice containing more than one possible punishment must be considered invalid. The Court further stated that if those earlier decisions were read to create such a rule, that interpretation would be incorrect. The Court then explained that the three decisions cited by counsel for the appellant did not, in fact, support the appellant’s extreme contention. Moreover, the Court held that the show-cause notice dated 14 April 1954 in the present case did not violate Article 311(2). The Court found that the appellant had been given a reasonable opportunity to present his case against the proposed action.

The Court also addressed the objections raised by counsel regarding erroneous references in the order of the President dated 1 October 1954. It observed that the order mistakenly cited rule 13 of the Government Servants’ Conduct Rules instead of the correct rule 15. Additionally, the order referred to paragraph 5 of a Government order that barred civil servants from taking commercial employment within two years after retirement. Counsel argued that this particular provision did not apply to Class II government servants. The Court concluded that these inaccurate citations were not of substantial importance to the final decision. In substance, the Court explained, the removal order dated 1 October 1954 was grounded on the appellant’s breach of rule 15 of the Government Servants’ Conduct Rules and rule 11 of the Fundamental Rules. The breach consisted of the appellant accepting private employment without obtaining the required sanction while still in government service. This violation formed the basis for both the enquiry and the removal order issued against the appellant. For these reasons, the Court held that the appeal possessed no merit and therefore dismissed it, ordering the appellant to bear costs. The Court formally recorded that the appeal was dismissed.