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: Appeal (civil) 311 of 1958

Decision Date: 6 May 1960

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

In this matter styled Major U.R. Bhatt versus Union of India, the Supreme Court rendered its judgment on 6 May 1960. The appeal, identified as Civil Appeal No. 311 of 1958, was heard by a bench composed of P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K.C. Das Gupta and J.C. Shah, the judgment being reported in AIR 1962 SC 1344. The petitioner, Major U.R. Bhatt, is referred to in the judgment as the appellant, and the respondent is the Union of India. The judgment was delivered by Justice Shah.

The factual background began with the appellant’s appointment as Senior Inspector (Fruit Products) in the Central Agricultural Marketing Department of the Government of India on 9 April 1946. The appointment was made on a probationary basis for six months, and during the probation period it could be terminated without notice; thereafter either the appellant or the Government could terminate the appointment by giving three months’ notice. The appellant remained in the post until 17 March 1947, when he was served with a charge‑sheet and required to show cause why he should not be dismissed, removed or otherwise punished. He filed a written statement in response on 22 March 1947 and, on 25 March 1947, appeared before the Joint Secretary of the Agricultural Department where his case was heard. The Joint Secretary prepared a report recommending termination of the appellant’s employment in accordance with the contractual notice provisions.

Subsequently, the minister responsible for the portfolio ordered a fresh enquiry, directing that new charges be framed against the appellant and that he be suspended pending the enquiry. On 7 May 1947 a second charge‑sheet was issued, alleging irresponsibility and insubordination and consequently deeming the appellant unfit to continue as senior inspector. The appellant answered these charges in writing. The matter was scheduled 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 protested against the enquiry officer’s use of marginal notes made by Sardar Bahadur Lal Singh on the appellant’s representation. The hearing was adjourned to 10 June 1947. On that date the appellant informed the enquiry officer that he would not participate further in the proceedings and promised to send a letter explaining his reasons for withdrawing. The enquiry was then postponed to 13 June 1947. The appellant’s letter arrived on 11 June 1947. After receiving the letter, the enquiry officer submitted his report, concluding that the charges set out in the charge‑sheet were substantially proved by the evidence on record and that the appellant was “irresponsible, insubordinate and …”

After concluding that the appellant was unreliable, irresponsible and insubordinate, the enquiry officer held that he was unfit to continue in the post of senior inspector. Accordingly, the officer recommended that the appellant be dismissed from service, with the dismissal taking effect from the date on which he had been placed under suspension. The Governor‑General of India accepted this recommendation, issued a formal notice to the appellant requiring him to show cause why he should not be dismissed, and thereafter, in December 1947, ordered the appellant’s discharge from service with effect from the date of his suspension. In response, the appellant served the required statutory notice of suit upon the Government of India and instituted suit No. 442 of 1948 in the appropriate court. The relief claimed in the plaint was a declaration that the discharge order dated 3 December 1947, which purported to terminate his employment, was void and inoperative, and that the appellant should therefore be considered to remain in service. In his plaint the appellant challenged the validity of the discharge on several grounds. He asserted that a fresh enquiry on new charges had been conducted illegally, that he had not been given a reasonable opportunity to show cause or to present his defence at the enquiry, that his suspension itself was unlawful, that the statutory procedure prescribed by law had not been observed, and that the order of discharge was mala fide and therefore void. Moreover, at the hearing of the suit the appellant contended that the Public Service Commission had not been consulted as required by Section 266 of the Government of India Act, 1935, and that this failure rendered the termination order invalid.

The learned Subordinate Judge examined these submissions and held that the appellant could not validly refuse to participate in the enquiry conducted by the enquiry officer. Although the judge noted that the appellant had not been afforded the full opportunity to defend himself as mandated by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, the judge concluded that such non‑compliance with the procedural rule did not, by itself, entitle the appellant to set aside the discharge because the substantive requirements of Section 240, Clause (3) of the Government of India Act, 1935, had been substantially complied with. Nevertheless, the Subordinate Judge found the order of discharge to be void on the specific ground that the Public Service Commission had not been consulted before an order imposing discharge as punishment was passed against the appellant. The appellant appealed this judgment to the District Court at Delhi. The District Judge, reversing the Subordinate Judge, held that the provisions of Section 266 of the Government of India Act, 1935, were directory rather than mandatory, and that the failure to obtain the Commission’s consultation did not make the Governor‑General’s discharge order illegal. On a second appeal, the High Court of East Punjab affirmed the decree of the District Judge, holding that the failure to follow the procedure prescribed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules was directly attributable to the appellant’s conduct and did not, by itself, invalidate the order of discharge.

In this case, the High Court had concluded that the order discharging the appellant from service was not rendered invalid by the failure to consult the Public Service Commission, because the statutory protection afforded to a government servant under section 240 of the Government of India Act required only that a reasonable opportunity to show cause be given, and that protection had been afforded to the appellant. The High Court further held that the procedural requirement in section 266 of the same Act was merely directory, and therefore the absence of consultation did not affect the validity of the order. The appellant subsequently obtained special leave to appeal to this Court under article 136 of the Constitution. The Court observed that the question whether the discharge order dated 3 December 1947 was void for lack of consultation is no longer open for argument, since a prior decision of this Court has already settled that point, and consequently the appellant’s counsel had correctly refrained from raising it.

The Court referred to the earlier decision in State of Uttar Pradesh v. Manbodhan Lal Srivastava (1958 (2) LLJ 273), where it was held that article 320(3)(c) of the Constitution – which corresponds to section 266 of the Government of India Act – is not mandatory and does not create a enforceable right in a public servant; hence, the lack of consultation or any irregularity in that process does not give rise to a cause of action. It was also clarified that the protection contemplated in article 311 of the Constitution is subordinate to article 320, and that the protection under clause (3) of section 240 of the Government of India Act is essentially the same as that provided by article 311.

Counsel for the appellant argued that serious irregularities occurred during the enquiry, alleging that the enquiry officer relied on material that had not been placed before the appellant, thereby depriving him of a reasonable opportunity to defend himself. The appellant’s counsel further contended that the Governor‑General should have ordered a fresh enquiry, allowing both the state’s and the appellant’s witnesses to be examined before any discharge could be effected. The Court found no merit in these submissions. It noted that the appellant had voluntarily ceased to participate in the enquiry after 9 June 1947. Although the appellant had made a representation that the Fruit Development Adviser had acted against his interests, this grievance did not justify his refusal to attend the enquiry. Moreover, the claim that the Fruit Development Adviser was not examined on 9 June 1947 was unsupported; the order dated 10 June 1947 clearly recorded that the adviser had been examined and cross‑examined on that day, and the enquiry officer’s contemporaneous notes corroborated this fact. The appellant’s own petition to the Governor‑General dated 31 October 1947, paragraph 2(h), affirmed that he appeared before the enquiry officer on 9 June 1947 and that the officer recorded the adviser’s statement. While the appellant later asserted at trial that the adviser had not been examined and the adviser himself could not recall the examination, the enquiry officer could not be called to testify because he had died before the trial commenced.

On 10 June 1947 the enquiry officer recorded that the Fruit Development Adviser had been examined and cross‑examined on 9 June 1947, after which the enquiry was adjourned to the following day. A contemporaneous record kept by the enquiry officer supported this finding. In the petition that the appellant filed with the Governor‑General in reply to the notice dated 31 October 1947, paragraph 2(h), the appellant himself stated that he had appeared before the enquiry officer on 9 June 1947 and that on that day the officer had recorded the statement of the Fruit Development Adviser. Later, during his examination before the trial Court, the appellant asserted that the Fruit Development Adviser had not been examined on 9 June 1947; the adviser, Sardar Bahadur Lal Singh, responded in his evidence that he could not recall whether he had been examined on that date. The enquiry officer could not be examined at trial because, as was later informed, he had died before the suit was tried. Nevertheless, the record maintained by the enquiry officer was placed before the Court. In the order dated 10 June 1947 and in the report submitted to the concerned Minister on 11 June 1947, the enquiry officer categorically stated that the Fruit Development Adviser had indeed been examined on 9 June 1947, and that thereafter the appellant declined to participate in the proceedings. On 10 June 1947 two witnesses were specially kept present; because the appellant did not take part, the statements previously made by those witnesses were taken into consideration by the enquiry officer in preparing his report. The enquiry officer was not bound by the strict rules of evidence, and when the appellant refused to cooperate, the officer was free to proceed on the materials that were before him. It may be presumed that the appellant had seen the statements made by these witnesses, but if the appellant’s ignorance of those statements was the direct result of his own non‑co‑operation, the enquiry officer could not be said to have proceeded on material to which the appellant could not have had access, nor could it be said that the officer failed to give the appellant a reasonable opportunity to show cause to establish that the charges against him were unfounded. The appellant’s contention that the Governor‑General, before passing the impugned order, ought to have directed that the witnesses be examined again in the appellant’s presence and that the appellant be afforded another opportunity to lead evidence was found to be without substance. As previously indicated in Khem Chand v. Union of India (1959 (1) LLJ 167), the reasonable opportunity contemplated by Article 311(2) of the Constitution includes the chance to deny guilt, to cross‑examine witnesses, and to make a representation as to why a proposed punishment should not be imposed.

In the judgment, the Court explained that the reasonable opportunity contemplated by the constitutional provision consists of three distinct parts. First, the public servant must be given a chance to deny any guilt and to establish his innocence, which requires that he be informed of the specific charges brought against him and of the factual allegations underpinning those charges. Second, the servant must be allowed to defend himself by cross‑examining the witnesses produced by the State and by presenting his own witnesses, or by examining himself, in support of his defence. Third, the servant must be permitted to make a representation as to why the proposed punishment should not be imposed; this representation can be made only after the inquiry has concluded, when the competent authority has considered the seriousness of the proved charges and has tentatively proposed one of the three punishments authorized by law, and then communicates that proposal to the servant. The Court noted that the substance of this reasonable opportunity under Article 311 of the Constitution mirrors the provision contained in Section 240(3) of the Government of India Act. Counsel for the appellant argued that observations of Das, C.J. required that the three opportunities be afforded both at the stage before the inquiry officer and again before the authority empowered to impose punishment, relying on the precedent set in Khem Chand v. Union of India (1959 (1) LLJ 167). The Court rejected that contention as lacking force. Referring to page 176 of the cited judgment, the Court observed the earlier view of the Privy Council in High Commissioner for India v. I. M. Lall, namely that where a public servant has already undergone an inquiry under Rule 55, it would be unreasonable to demand a repetition of that inquiry; conversely, if no inquiry under Rule 55 or an equivalent rule had been conducted, the servant could reasonably request an inquiry. The Court held that a reasonable opportunity to be heard remains valid even if it does not include an additional chance to examine witnesses, provided that a fair and complete inquiry was held at an earlier stage before the inquiry officer. In the present matter, an inquiry had indeed been held before the inquiry officer, who had allowed the appellant to be present and to make his defence. Although the State’s witnesses were not examined orally, this was attributable to the appellant’s own refusal to participate in the proceedings. Because the appellant chose not to take part, the inquiry officer was justified in proceeding ex parte and in acting upon the material before him. Consequently, the Court concluded that the inquiry made by the inquiry officer could not be challenged on grounds of unfairness or incompleteness.

In this case the appellant was unable to set aside the dismissal on the basis that the proceeding was unfair or that it was incomplete, because he had already been given the protection guaranteed by the Constitution under Section 240, Clause three of the Government of India Act. The order that terminated his service was issued by the Governor‑General, and that order could not be challenged on the ground that the evidence before the authority might have been insufficient to justify the dismissal. The Court held that a civil court does not have the jurisdiction to review the decision of the authority that is lawfully empowered to dismiss a public servant, provided that the servant has been given a reasonable opportunity to defend himself in a manner that is consistent with the constitutional safeguard. Accordingly, the appeal was dismissed. No order as to costs was made.