A. N. D'Silva vs Union Of India
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Civil Appeal No. 322 of 1959
Decision Date: 6 December 1961
Coram: J.C. Shah, K.N. Wanchoo
In the matter titled A. N. D'Silva versus Union of India, the judgment was delivered on 6 December 1961 by a bench consisting of Justice J. C. Shah and Justice K. N. Wanchoo. The official citation of the decision appears in the 1962 All India Reporter at page 1130 and in the 1962 Supreme Court Reports Supplement (1) at page 968, with subsequent references in later law reports. The issues addressed concerned the disciplinary powers of the President under the Government Servant – Disciplinary Proceedings regulations, the nature of punishments that may be imposed, the role of the Union Public Service Commission, and the constitutional guarantees under Articles 311 and 320 of the Constitution of India.
The respondent, D, held the position of Divisional Engineer in the Posts and Telegraphs Department. He was suspended from service on accusations that he had engaged in irregularities relating to the allocation of telephone connections. The first allegation asserted that D had participated in wrongdoing intended to secure illegal gratification for himself and for others. The second allegation alleged that D was complicit in the commission of irregularities by facilitating the acceptance of illegal gratification by his subordinates. An enquiry officer was appointed to investigate these charges. After conducting the enquiry, the officer concluded that D was guilty of misdemeanor for disobeying orders that had been expressly issued to him.
The enquiry officer’s report was forwarded by the President of India to the Union Public Service Commission (UPSC) for its recommendation. While the case was pending before the UPSC, D received a communication indicating that the Government of India had resolved to dismiss him, subject to the advice of the UPSC, and that he was required to show cause why dismissal should not be imposed. The UPSC, after reviewing the report, concurred with the enquiry officer that D had contravened specific orders concerning the granting of “casual connections.” However, the Commission expressed the view that the misconduct amounted only to neglect and defiance of a superior’s order, and it noted that there was no evidence linking D to the receipt of any illegal gratification. Consequently, the UPSC advised that D be compulsorily retired, observing that retirement was not a permissible punishment under the existing disciplinary rules.
Following the UPSC’s advice, the President reached the conclusion that D was guilty of gross negligence and disobedience of orders. Although the UPSC had recommended compulsory retirement, the President elected to remove D from service with immediate effect, stating that the removal was the appropriate punishment. D filed a writ petition in the High Court of Punjab seeking mandamus and certiorari against the President’s order. The High Court dismissed the petition. D then obtained special leave to appeal to the Supreme Court.
The Supreme Court held that the Civil Service Rules merely enumerate the various categories of punishments that may be imposed on a delinquent public servant; the Rules do not prescribe a fixed punishment for each specific misdemeanor. The Rules entrust the punishing authority with discretion to select a punishment that is commensurate with the gravity of the misconduct. Accordingly, it is not the function of the enquiry officer to propose a specific punishment, and the President’s power to impose punishment is not limited by any proposal made by the enquiry officer, which the enquiry officer is not empowered to make. The Court further explained that the Constitution guarantees only a reasonable opportunity to show cause before a disciplinary action is taken; it does not guarantee that the punishment will be no more severe than the maximum permitted by the Rules. While Article 320 requires the President to consult the UPSC in disciplinary matters, the President is not bound by the Commission’s advice, and the UPSC is not an appellate authority over the enquiry officer. In the present case, the President’s decision to remove D from service did not infringe the constitutional guarantee of a reasonable opportunity to be heard, and the removal was within the President’s unrestricted disciplinary powers.
The Court explained that the power of the President to punish a delinquent public servant is not limited by any suggestion of punishment made by the enquiry officer, because the enquiry officer lacks competence to determine punishment. It is the President who must first form a provisional view on the servant’s guilt and then recommend the appropriate sanction. The Constitution, while guaranteeing that a person must be given a reasonable chance to show cause before any disciplinary action is taken, does not guarantee that the sanction imposed will be no harsher than any prescribed penalty. Under Article 320 of the Constitution the President is required to consult the Union Public Service Commission in matters of discipline, yet the President is not bound by the Commission’s advice. Moreover, the Union Public Service Commission does not function as an appellate authority over the enquiry officer. Applying these principles to the present matter, the Court held that the President’s decision to remove the appellant from service did not offend the constitutional guarantee of a reasonable opportunity to be heard, and therefore the removal was lawful.
The appeal arose from a civil appellate jurisdiction in Civil Appeal No. 322 of 1959, which was taken by special leave from the judgment of the Punjab High Court dated 11 January 1957. The appellant had been employed by the Government of India in the Posts and Telegraphs Department, serving as Divisional Engineer, Telegraphs at Agra in 1947 and later transferred in June 1948 to New Delhi as Divisional Engineer, Telegraph Developing Branch, Posts and Telegraphs Directorate. On 18 September 1948 he was suspended and served with a chargesheet containing two specific accusations: first, that he had, with the intention of obtaining illegal gratification for himself or others, committed serious irregularities in the allocation of telephone connections in Agra during his tenure as Divisional Engineer; and second, that by participating in gross irregularities in the same telephone allocations, he had facilitated the receipt of illegal gratification by his subordinates. An accompanying appendix set out the detailed allegations forming the basis of the charges, and the appellant was required to present his defence before the designated enquiry officer. He was also directed to show cause why, if the first charge were proven, he should not be dismissed from government service, and why, if the second charge were proven, he should not be permanently degraded to the rank of Electrical Supervisor or subjected to any other lesser penalty. The appendix listed three heads of specific instances, beginning with violations of a February 1948 order from the Post Master General, Lucknow, which prohibited the provision of any telephone connection, even a casual one, without authorization.
In the chargesheet the enquiry framed three categories of allegations against the appellant. The first category alleged that, contrary to an order dated 7 February 1948 issued by the Postmaster General of Lucknow which expressly forbade any “casual” telephone connection being granted out of turn, the appellant had nevertheless opened a number of such connections and, in certain cases, had extended them or even made them permanent. The record listed eleven separate instances of these casual connections, identified by the letters (a) through (k). The second category concerned the transfer of telephone lines, which the charge‑sheet described as effectively amounting to the allotment of telephones out of turn. Two specific instances, labelled (a) and (b), were cited in the record. The third category comprised written statements made by two individuals, Khiali Ram and Shyam Lal, in which they alleged that illegal gratifications had been given to Mr Ghambir and to Kanaya Lal Sharma respectively. After the charges were framed, the appellant was asked to submit his explanation in response to each of these allegations.
An enquiry was thereafter conducted by the appointed Enquiry Officer, during which several witnesses were examined. After considering the evidence, the Enquiry Officer held that the allegations identified as 1(b) through 1(k), as well as 2(a), 2(b) and the entire third category, were established. He noted, however, that the proof concerning the third category – the alleged illegal gratification – did not meet the standard of evidence that would be acceptable in a criminal trial, but nevertheless was sufficient to demonstrate that the appellant had abruptly altered his attitude toward one Khiali Ram, had argued the case on Khiali Ram’s behalf and had favoured him by granting a permanent telephone connection. In the matter of Shyam Lal, the officer found that the appellant had authorised an out‑of‑turn extension of a telephone connection. Based on these findings the Enquiry Officer reported that both charges (i) and (ii) contained in the chargesheet were proved. The report, together with the complete enquiry record, was then forwarded by the President of India to the Union Public Service Commission for its recommendation, in accordance with Article 320(3)(c) of the Constitution.
The Union Public Service Commission examined the enquiry report and concurred with the Enquiry Officer’s conclusion that the appellant had contravened the specific orders issued by the Postmaster General by granting casual connections from time to time, as documented in the enquiry report. The Commission, however, qualified its view by stating that such conduct could be characterised at most as either neglect in complying with the orders of his superiors or an open defiance of those orders, since the appellant had not shown willingness to accept the instructions that had been issued to him. The Commission further observed that “the crux of the charges against Mr D’ Silva was not that he allowed these connections in defiance of the orders but that he had a motive in doing so.” It noted that the only concrete piece of evidence related to connection No. 283 for Messrs Khiali Ram Amolak Chand, and while this might give rise to suspicion, there was nothing on the record linking Mr D’ Silva to the receipt of any illegal gratification. In its opinion, the Commission held that the appellant was guilty of “gross negligence and disobedience of orders” and accordingly advised that he be retired compulsorily.
Following the Commission’s advice, a notice had already been issued to the appellant informing him that, pursuant to the Commission’s recommendation, the Government of India had provisionally concluded that the appropriate punishment on the charges was dismissal. The notice required the appellant to show cause within fifteen days of receipt of the papers as to why he should not be dismissed from Government service.
In this matter, the appellant received a notice requiring him to show cause within fifteen days as to why he should not be dismissed from Government service. The appellant responded to the notice by submitting his explanation. By an order dated 25 January 1951, the appellant was informed that, after a careful review of the case record, the explanation he had filed, and the opinion of the Union Public Service Commission, the President had concluded that the officer was guilty of gross negligence and disobedience of orders. Although the Commission had advised that the appellant should be retired compulsorily, the President observed that compulsory retirement was not a permissible punishment under the applicable rules. Consequently, the President decided that the appellant should be removed from service with immediate effect.
Following this removal, the appellant filed an application before the High Court of Judicature for Punjab seeking a writ of certiorari or mandamus, together with any other appropriate orders, to set aside the order of 18 November 1948 that had suspended him and the order of 25 January 1951 that had removed him. He also requested that the Union of India be directed to reinstate him to the post he held at the time of suspension, together with all the rights, privileges and emoluments attached to that position. The High Court, presided over by Justice G D Khosla, dismissed the application, and the Division Bench of that court affirmed the dismissal on appeal. With special leave, the appellant then appealed to the Supreme Court against the decision of the High Court.
The appellant was, at the relevant time, a member of an All‑India Service and, under Article 310 of the Constitution, held office at the pleasure of the President. Nevertheless, Article 311 afforded him certain procedural guarantees. Clause (1) of Article 311 barred dismissal or removal by any authority subordinate to the one that had appointed him, while clause (2) required that he be given a reasonable opportunity to show cause before any dismissal, removal, or reduction in rank could be effected. Because the removal had been ordered directly by the President, clause (1) was not at issue. The appellant’s counsel argued, however, that clause (2) had been violated on three grounds: first, that the President had imposed removal for “gross negligence and disobedience of orders” without the appellant having been charged with such misconduct in the enquiry conducted by the Enquiry Officer; second, that the punishment imposed differed from the one originally contemplated in the charge sheet, thereby constituting an unauthorized alteration of the penalty; and third, that a statement made by Mr Bhashyam, Postmaster General of the Lucknow Division, had been recorded by the Union Public Service Commission in the appellant’s absence and without affording him an opportunity to cross‑examine the witness, yet the President had considered that statement in deciding to remove the appellant. The appellant contended that this procedure breached his constitutional right to a reasonable opportunity to show cause.
In the case, the President considered a statement made by a witness and imposed the penalty of removal from service while the appellant was absent and without granting him any chance to cross‑examine that witness. The Court observed that by following this procedure the constitutional guarantee that a public servant must be given a reasonable opportunity to show cause before a punitive action is taken had been breached. The Court then examined the three contentions raised by the appellant and held that none of them possessed any substance. It explained that the Civil Services Rules only enumerate the range of punishments that may be inflicted on delinquent servants and do not assign particular punishments to specific misdemeanours. Accordingly, the Rules leave it to the discretion of the authority imposing the penalty to select a punishment that corresponds to the seriousness of the offence. The Court further stated that the President’s power to mete out any punishment for any proven misconduct by a delinquent servant is not limited. While the Constitution secures a reasonable opportunity to be heard before a sanction is proposed, it does not assure that the sanction will not be more severe than the punishment originally envisaged by the Rules.
The Court noted that the charge against the appellant was framed under two separate heads, each alleging irregularities in the allocation of telephone connections. The first head alleged that the appellant had committed irregularities with the intention of obtaining illegal gratification for himself or for others. The second head alleged a comparatively lesser misconduct, namely that the appellant had participated in irregularities which enabled his subordinates to receive illegal gratification. Counsel for the appellant argued that, under the first head, the appellant was essentially accused of receiving illegal gratification and cited a letter dated 31 December 1948 from the Enquiry Officer. That letter said that two specific allegations of illegal gratification to the appellant’s subordinates were already mentioned in the annexure to the charge‑sheet and that other cases mentioned by the appellant involved similar irregularities, placing the burden on him to prove that no illegal gratification occurred. The Court observed that the letter expressly mentioned telephone connections granted to Khiali Ram and Shyam Lal after illegal gratification and that other instances in the appendix were similar. However, the Court held that this letter did not justify concluding that the Enquiry Officer regarded the charges primarily as offences of corruption, nor could it be accepted that the charge‑sheet was framed so as to mislead the appellant into believing that the main allegation was receipt of illegal gratification. As previously pointed out, the charges were for irregularities committed by the appellant: the first involving the purpose of securing illegal gratification and the second essentially based on negligence that enabled such gratification by his subordinates.
In this case the Court observed that the appellant had been charged with having committed irregularities by granting telephone connections out of turn to certain applicants, an act that contravened the specific orders issued by the Postmaster General. The charge sheet and the accompanying Appendix set out the allegations in detail, particularly under heads (1) and (2). The Enquiry Officer examined the factual matrix and found that ten of the eleven instances listed under head No. 1 were proved, and that both instances enumerated under head No. 2 were also proved. On the basis of this inquiry the Union Public Service Commission concurred with the Enquiry Officer’s findings, thereby establishing the charge of irregularities against the appellant. The Enquiry Officer further concluded that the motive for granting those irregular connections was to facilitate illegal gratification, although the Union Public Service Commission expressed a divergent view on the motive.
The Court then explained the constitutional framework governing disciplinary proceedings. Article 320(3) of the Constitution provides that the Union Public Service Commission must be consulted in all disciplinary matters concerning a person who serves the Government of India in a civil capacity. However, the Commission does not function as an appellate authority over the findings of an Enquiry Officer. The Court held that, for the purposes of the present case, it was unnecessary to decide whether the Commission, when making its recommendations or giving its advice, could reach a conclusion on the merits of the alleged misconduct that differed from the Enquiry Officer’s conclusion.
The President, before rendering his decision, had before him the report of the Enquiry Officer, the complete case record, the appellant’s explanation, and the opinion of the Union Public Service Commission. After considering all these materials, the President concluded that the appellant was guilty of both gross negligence and disobedience of orders. The Court noted that the record does not show that the President reached a specific conclusion on whether the appellant’s irregularities were undertaken with the purpose of securing illegal gratification for himself or for others, as alleged in the first charge. Although the President’s wording echoed the language used by the Commission in its recommendation, the Court could not infer that the President had adopted the Commission’s view that the irregularities were not proved to have been committed with a view to obtain illegal gratification.
The Court emphasized that, while Article 320 obliges the President to consult the Union Public Service Commission (subject to certain exceptions which were not material in this case), the President is not bound by the Commission’s advice. Accordingly, the President was free to form his own conclusion. He ultimately found the appellant guilty of disobedience of orders and of gross negligence. The charge against the appellant was specifically disobedience of orders, and that was the charge on which the Enquiry Officer had held him liable. The Union Public Service Commission also agreed with this finding. Consequently, the Court concluded that the misdemeanour for which the appellant was convicted was the same as the misdemeanour that had been charged, namely the commission of irregularities by willfully disobeying expressly issued orders.
The Court observed that the appellant had been found guilty of the very commission that formed the basis of the charge against him. The charge described the misconduct as the commission of irregularities by willfully disobeying orders that had been expressly issued, and this was precisely the misconduct for which the appellant was held accountable. The Court noted that in the communication prepared by the Enquiry Officer, the specific punishment that might be imposed if the appellant were found guilty could not be properly set out at that stage. It was explained that the question of imposing a penalty could arise only after a full enquiry had been conducted and the Enquiry Officer’s report had been received by the authority responsible for punishment. The authority that imposes punishment, the Court held, is distinct from the authority that conducts the enquiry. The enquiring authority, when required, must evaluate the evidence, record its conclusions, and, if it deems it appropriate, suggest a suitable punishment. However, the Court emphasized that neither the enquiring authority’s findings on the evidence nor its suggested punishment are binding on the punishing authority, which retains the discretion to decide the ultimate sanction.
In the facts of the present case, after the Enquiry Officer’s report was received, the appellant was summoned to show cause against a proposed dismissal from service. The appellant submitted a representation, and after considering that representation, the President concluded that removal from service, rather than dismissal, was the appropriate penalty. The Court found that, in imposing removal, the President did not breach the appellant’s right to a reasonable opportunity to be heard. The appellant had been informed of the proposed action and had been given a chance to present his defence. Subsequently, a lighter punishment was imposed. The record, the Court observed, contained no indication that the President had found the appellant guilty of a second charge or that the President had adopted the punishment proposed by the Enquiry Officer for the first charge. The appellant’s allegation that evidence from Mr Bhashyam, the Postmaster General of the Lucknow Range, had been recorded in the appellant’s absence and used by the President to reach the decision of removal was rejected as unsupported. According to the Court, a letter dated 7 February 1948 from the Postmaster General directed the appellant not to issue telephone connections out‑of‑turn, even when the connection was casual, and this letter was produced before the Enquiry Officer. The appellant had contended before the Enquiry Officer that he had informed the Postmaster General that it was impracticable to place persons requesting “casual connections” on the same list as those seeking permanent connections, and that thereafter he received a telephonic message from Mr Bhashyam instructing him to act in accordance with the rules, leading him to continue the practice of maintaining two separate lists—one for regular connections and another for casual connections. The Enquiry Officer found that this defence was not established. Nonetheless, the Court noted that the Union Public Service Commission had later obtained Mr Bhashyam’s version regarding the alleged instructions given to the appellant about restoring the original practice.
In this case, the Postmaster General denied that any telephonic conversation had ever taken place with the appellant. The appellant argued that Mr Bhashyam was never examined while the appellant was present and that he was therefore denied the opportunity to cross‑examine Mr Bhashyam on the alleged denial of any telephonic instructions. It is admitted that Mr Bhashyam was indeed not examined before the Enquiry Officer. The Union Public Service Commission, however, obtained information from Mr Bhashyam and placed it in its report. The Court noted that the Commission is not constituted as an appellate authority over an Enquiry Officer and that its role under the Constitution is limited to being consulted in disciplinary matters. Although the Commission’s action in taking information from Mr Bhashyam may be described as irregular, there is no material showing that the President actually considered the statement of Mr Bhashyam when imposing the punishment on the appellant. The fact that the President used the same wording as appeared in the Commission’s report does not, by itself, demonstrate that the President relied on Mr Bhashyam’s alleged denial. Consequently, the Court held that there was no violation of the constitutional guarantee under Article 311, which requires the appellant to be given a reasonable opportunity to show cause against the proposed action.
The appellant also contended that, having accepted the advice of the Commission, the President could not lawfully remove him from service but could only impose the punishment recommended in the charge framed by the Enquiry Officer concerning the second charge. The Court observed that the impugned order contains no indication that the President accepted the Commission’s advice in its entirety. Moreover, the punishment proposed by the Enquiry Officer could not be properly incorporated into the charge served on the appellant. The notice issued by the Secretary to the Government of India on 3 November 1949 required the appellant to show cause why the dismissal, which the Government deemed appropriate, should not be imposed. That notice clearly set out the action proposed to be taken by the President. No statutory provision obliges the President to impose only the sentence suggested by the Enquiry Officer. It was, therefore, the President’s responsibility to reach a preliminary conclusion on the appellant’s guilt and to determine the appropriate punishment. The President performed this function and, after considering the seriousness of the proved misdemeanour, imposed a punishment that was not limited by the Enquiry Officer’s proposal, which the Officer was not competent to make. Accordingly, the Court dismissed the appeal, ordered the appellant to bear costs, and recorded that the appeal was dismissed.