Major U.R. Bhatt 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: 6 May, 1960

Coram: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K.C. Das Gupta, J.C. Shah

In this matter, the record showed that Major U.R. Bhatt, who is hereinafter called the appellant, had been appointed as Senior Inspector (Fruit Products) in the Central Agricultural Marketing Department of the Government of India on 9 April 1946. His appointment was initially made on a probationary basis for a period of six months, and the terms of his engagement provided that his service could be terminated without notice during the probationary period and thereafter by giving three months’ notice on either side. The appellant continued to serve in the position of Senior Inspector until 17 March 1947, when he was served with a charge‑sheet and was asked to show cause why he should not be dismissed, removed from service, or otherwise punished. He filed a written statement in response on 22 March 1947 and personally appeared before the Joint Secretary of the Agricultural Department on 25 March 1947, where his case was heard. The Joint Secretary prepared a report recommending that the appellant’s employment be terminated in accordance with the contractual terms by serving him notice. However, the Minister responsible for the portfolio ordered that an enquiry be initiated after framing fresh charges against the appellant, and directed that the appellant be suspended pending the enquiry. Subsequently, on 7 May 1947, a second charge‑sheet was served on the appellant, alleging irresponsibility and insubordination and declaring him unfit to hold the post of Senior Inspector. The appellant replied to these fresh charges, and the matter was set for a hearing on 9 June 1947 before the Joint Secretary of the Ministry of Agriculture, who acted as the Enquiry Officer. At that hearing, Sardar Bahadur Lal Singh, the Fruit Development Adviser, was present and was examined. The appellant objected to the Enquiry Officer’s use of marginal notes made by Sardar Bahadur Lal Singh on the appellant’s written representation. The hearing was adjourned to 10 June 1947. On that day, the appellant met the Enquiry Officer, informed him that he would not take any further part in the proceeding, and promised to send a letter explaining the reasons for his withdrawal. The enquiry was further adjourned to 13 June 1947. The appellant’s promised letter was received on 11 June 1947. The Enquiry Officer then submitted his report, concluding that the charges set out in the charge‑sheet were substantially proved by the evidence on record. He held that the appellant was irresponsible, insubordinate and unreliable, and therefore unfit to retain the post of Senior Inspector, and recommended that the appellant be dismissed from service with effect from the date he was placed under suspension. The Governor‑General of India accepted the Enquiry Officer’s report and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service.

The Governor General issued a notice requiring the appellant to show cause why he should not be dismissed from service. The appellant responded by making his representation on 10 November 1947. By an order dated 3 December 1947, the Governor General discharged the appellant from service, back‑dating the termination to the date on which he had been placed under suspension. Following the discharge, the appellant served the statutory notice of suit on the Government of India and instituted Suit No. 442 of 1948 before the Senior Subordinate Judge at Delhi. In that suit the appellant sought a decree declaring that the discharge order of 3 December 1947, which purported to terminate his employment, was void and inoperative and that he therefore remained a government servant. In his plaint the appellant attacked the validity of the discharge on several grounds. He claimed that a fresh enquiry on new charges had been conducted illegally, that he had not been afforded a reasonable opportunity to show cause or to present a defence at the enquiry, that his suspension itself was illegal, that the statutory procedure prescribed by law had not been followed, and that the discharge order was mala fide and consequently void. At the hearing, the appellant further contended that the Public Service Commission had not been consulted, contrary to the requirement of Section 266 of the Government of India Act, 1935, and that this failure rendered the termination order invalid.

The learned Subordinate Judge observed that the appellant could not justify his refusal to participate in the enquiry before the Enquiry Officer. Although the judge noted that the appellant had not been given the full opportunity to defend himself as mandated by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, the judge held that such non‑compliance with the procedural rule did not give the appellant a right to declare his discharge void, because the substantive provisions of Section 240, clause (3) of the Government of India Act, 1935, had been substantially complied with. Nevertheless, the judge concluded that the discharge order was void because the Public Service Commission had not been consulted before the order imposing dismissal was issued. The appellant appealed this decision to the District Court at Delhi. The District Court set aside the Subordinate Judge’s decree, holding that Section 266 of the Government of India Act, 1935, was merely directory and not mandatory, and that the failure to consult the Public Service Commission did not render the Governor General’s discharge order illegal. The appellant then appealed to the High Court of East Punjab. The High Court affirmed the District Court’s decree, finding that the breach of the procedure prescribed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules was attributable to the appellant’s own conduct and therefore did not invalidate the discharge. The High Court also held that the lack of consultation with the Public Service Commission did not invalidate the order, because Section 266 of the Act was not a mandatory requirement.

In this case, the Court observed that the Government of India Act contained only directory provisions, and that the sole statutory safeguard for a Government servant lay in Section 240 of the same Act, which required that the servant be given a reasonable opportunity to show cause against any proposed punishment; the appellant had been granted that safeguard. The appellant had subsequently filed an appeal before this Court, obtaining special leave under Article 136 of the Constitution. The Court noted that the question of whether the order dated 3 December 1947, which discharged the appellant from service, was void for lack of prior consultation with the Public Service Commission could no longer be urged, because earlier rulings of this Court had settled the issue, and consequently the appellant’s counsel had not raised it. The Court referred to the decision in State of U.P. v. Manbodhan Lal Srivastava, where it was held that Article 320(3)(c) of the Constitution—substantially equivalent to Section 266 of the Government of India Act—is not a mandatory requirement and does not create any enforceable right in a public servant; therefore, any failure to consult the Commission or any irregularity in such consultation could not give rise to a cause of action in a court of law. The Court further explained that Article 311 of the Constitution is not subordinate to Article 320, and that the protection accorded to civil servants under Section 240, Clause (3) of the Government of India Act corresponded precisely with the protection afforded by Article 311 to civil servants. Counsel for the appellant contended that serious procedural irregularities had occurred during the enquiry conducted by the Enquiry Officer, alleging that the Officer had acted on material that had not been produced to the appellant, thereby depriving him of a reasonable chance to make a defence. Counsel also argued that, before issuing the order of discharge, the Governor‑General should have ordered a fresh enquiry in which witnesses for both the State and the appellant were examined, and that only after such a fresh enquiry could a valid discharge order be passed. The Court, however, found no merit in these submissions. It observed that the appellant had voluntarily ceased to participate in the proceedings before the Enquiry Officer after 9 June 1947. While it accepted that the appellant had made a representation that resulted in certain remarks by the Fruit Development Adviser and that the appellant felt aggrieved because his representation was shown to that Adviser, the Court held that such grievance did not justify his refusal to continue with the enquiry. The appellant’s claim that the Fruit Development Adviser had not been examined on 9 June 1947 was dismissed as unfounded. The Court pointed out that the order dated 10 June 1947 clearly recorded that the Fruit Development Adviser had been examined and cross‑examined on the preceding day, after which the enquiry was adjourned to the following day. Contemporary records kept by the Enquiry Officer corroborated this account. The Court further noted that even in the petition submitted by the appellant to the Governor‑General, the appellant had acknowledged his appearance before the Enquiry Officer on 9 June 1947 and the recording of the Adviser's statement on that day.

In response to the notice dated 31 October 1947, the appellant, in paragraph 2(h), asserted that he had personally appeared before the Enquiry Officer on 9 June 1947 and that on that same day the Enquiry Officer had formally recorded the statement of the Fruit Development Adviser. The appellant later maintained, during his examination before the trial court, that the Fruit Development Adviser had not been examined on 9 June 1947; consequently, the Fruit Development Adviser, identified as Sardar Bahadur Lal Singh, testified that he could not recall whether he had been examined on that date. The Court was informed, through counsel, that the Enquiry Officer could not be examined at trial because he had died before the suit was heard, yet the written record prepared by the Enquiry Officer remained before this Court. In his order dated 10 June 1947 and in the report he submitted to the concerned Minister on 11 June 1947, the Enquiry Officer unequivocally stated that the Fruit Development Adviser had indeed been examined on 9 June 1947 and that, subsequent to that examination, the appellant had refused to continue participating in the proceedings. On 10 June 1947, two witnesses were specially retained in the place of the appellant; because the appellant chose not to attend, the Enquiry Officer considered the statements previously given by those witnesses while drafting his report. The Court noted that the Enquiry Officer was not bound by the strict rules of evidential law, and that the appellant’s refusal to remain present gave the Officer discretion to rely upon the material that had been placed before him. The Court is prepared to assume that the appellant had the opportunity to review the statements tendered by the two witnesses, but if the appellant’s ignorance of those statements was a direct result of his own non‑co‑operation, the Court cannot hold that the Enquiry Officer acted on material inaccessible to the appellant or that the Officer failed to give the appellant a reasonable chance to contest the charges.

The appellant further contended that the Governor‑General, before issuing the impugned order, should have mandated a fresh examination of the witnesses in the appellant’s presence and should have provided the appellant with another opportunity to lead evidence. The Court found no merit in that contention. Referring to its earlier decision in Khem Chand v. Union of India, the Court explained that the “reasonable opportunity” envisaged by Article 311(2) of the Constitution comprises three distinct elements: first, an opportunity for the servant to deny guilt and establish innocence, which is possible only when the servant is informed of the exact charges and the factual allegations underlying them; second, an opportunity to defend himself by cross‑examining the witnesses who have produced evidence against him; and third, an opportunity to make a representation as to why the proposed punishment should not be imposed, which requires the competent authority, after completing the enquiry and considering the gravity of the proved charges, to communicate its tentative punitive proposal to the servant. The Court emphasized that the content of this reasonable opportunity under Article 311 mirrors the provisions of Section 240(3) of the Government of India Act. Consequently, the Court concluded that the appellant’s argument that the Governor‑General ought to have ordered a re‑examination of witnesses and a fresh hearing lacks any substantive basis.

The Court explained that the reasonable opportunity to show cause under Article 311 of the Constitution consists of three parts. First, the public servant must be permitted to deny his guilt and to establish his innocence by being informed of the charges and the factual basis of those charges. Second, he must be allowed to defend himself by cross‑examining the witnesses produced against him and by examining himself or any other witnesses who may support his defence. Third, he must be given a chance to make a representation as to why the proposed punishment should not be imposed; this representation can be made only after the enquiry has concluded, the competent authority has considered the seriousness of the charges proved against the Government servant, tentatively proposes one of the three punishments envisaged by law, and communicates that proposal to the servant. The Court noted that this content of the reasonable opportunity is identical to the provision contained in Section 240(3) of the Government of India Act. Counsel for the appellant argued that the observations of Chief Justice Das required that the public servant must be afforded these three opportunities both before the Enquiry Officer and before the authority competent to impose punishment, as set out in the judgment of Khem Chand’s case. The Court rejected this contention, holding it to be without force. Referring to page 1099 of the Supreme Court Reports, the learned Chief Justice had endorsed the Privy Council’s view in High Commissioner for India v I.M. Lal that if a public servant has undergone an enquiry under Rule 55, it would not be reasonable to demand a repetition of the enquiry at the later stage, provided the enquiry was duly carried out. Conversely, if no enquiry under Rule 55 or a similar rule had been held, it would be reasonable for the servant to request an enquiry. The Court observed that a reasonable opportunity to show cause remains valid even where it does not include a further chance to examine witnesses, provided that a fair and complete enquiry was previously conducted before the Enquiry Officer.

Applying these principles to the present case, the Court found that an enquiry had indeed been held before the Enquiry Officer. The Enquiry Officer had given the appellant the opportunity to be present and to make his defence. Although the State’s witnesses who could have been examined in support of the State’s case were not heard, this was attributable to the appellant’s own conduct, as he declined to participate in the enquiry and refused to take part in the proceedings. The Court held that, in view of the appellant’s refusal, the Enquiry Officer was justified in proceeding on the basis of the material placed before him. Once the appellant expressed his desire not to continue participation, the Officer was entitled to act upon the available materials. Consequently, the enquiry conducted by the Enquiry Officer could not be challenged on the grounds of unfairness or incompleteness, since the appellant had been afforded the constitutional protection guaranteed under Section 240, Clause 3 of the Government of India Act. Accordingly, the order of discharge from service issued by the Governor General could not be said to be liable to be set aside.

In this case the Court observed that the question of whether the documentary material placed before the authority could adequately justify the issuance of the dismissal order could not be entertained. The Court explained that a civil court did not possess the jurisdiction to review or pass judgment on the decision taken by the authority that was legally empowered to dismiss a public servant, so long as that servant had been given a proper opportunity to present his defence in accordance with the constitutional guarantee protecting such a right. The Court emphasized that the legal competence of the dismissing authority derived from the statutory provisions and that the procedural safeguard of allowing the servant to defend himself satisfied the essential requirement of the constitution. On the basis of this reasoning, the Court concluded that the appeal did not have any merit and therefore it was dismissed. The Court further ordered that no costs would be awarded in respect of the proceedings.