A.N. D'Silva vs Union Of India (Uoi)

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 6 December, 1961

Coram: J.C. Shah, K.N. Wanchoo

The matter concerned a petition filed by A.N. D Silva, who was then serving as a civil servant in the Posts and Telegraphs Department of the Government of India. He had been appointed as Divisional Engineer, Telegraphs at Agra in the year 1947. In June 1948 he received a transfer order that moved him to New Delhi, where he assumed the post of Divisional Engineer in the Telegraph Developing Branch of the Posts and Telegraphs Directorate. On 18 September 1948 the appellant was placed under suspension and a formal chargesheet was served upon him. The chargesheet set out two distinct allegations: first, that with the intention of obtaining illegal gratification for himself or for others, he had committed serious irregularities in the allotment of telephone connections in Agra during his tenure as Divisional Engineer, Telegraphs, Agra; and second, that by participating in gross irregularities concerning the same telephone allotments, he had facilitated the receipt of illegal gratification by his subordinates.

Along with the chargesheet, an appendix was annexed which stipulated the specific allegations that formed the basis for framing the charges. The appellant was required to file his defence before the designated Enquiry Officer and was also asked to demonstrate why, if the first charge were proved, he should not be dismissed from Government service, and why, if the second charge were proved, he should not be permanently degraded to the rank of Electrical Supervisor or subjected to any other lesser penalty. The appendix comprised three separate heads. The first head identified a violation of the order contained in letter No Eng P 768 dated 7 February 1948, issued by the Postmaster General, Lucknow, which expressly prohibited the granting of any telephone connection, even a casual one, out of turn. The appendix listed eleven instances, labelled (a) through (k), of casual connections that the appellant had allegedly opened, some of which were later extended or made permanent. The second head dealt with transfers of telephone connections that were, in effect, allocations made out of turn; two categories, labelled (a) and (b), were enumerated to describe such instances. The third head reproduced written statements made by two individuals, Khiali Ram and Shyam Lal, which alleged that illegal gratification had been given to a Mr Ghambir and to Kanaya Lal Sharma respectively.

The appellant submitted a written explanation addressing each of the charges. The Enquiry Officer subsequently conducted an enquiry, examined several witnesses, and recorded the proceedings. After evaluating the evidence, the Enquiry Officer concluded that the allegations identified as 1 (b) through 1 (k), as well as the allegations labelled 2 (a) and 2 (b), and also the allegation numbered 3, were established. While the Officer observed that the proof adduced for allegation 3 did not rise to the level of evidence that would be acceptable in a court of law, he nonetheless found sufficient material to infer that the appellant had abruptly altered his attitude towards Khiali Ram, had taken up the defence of Khiali Ram in a dispute, and had favoured Khiali Ram by granting him a permanent telephone connection. This change of stance, according to the Officer, indicated a bias that supported the conclusion that the appellant had participated in the alleged irregularities.

In the matter involving Shyam Lal, the officer authorized an out‑of‑turn extension of service contrary to normal procedures. He then prepared a report stating that charges (i) and (ii) in the charge‑sheet had been proved by the enquiry. The President of India forwarded that report together with the enquiry officer’s record to the Union Public Service Commission under Article 320(3)(c) of the Constitution for its recommendation. The Commission concurred with the enquiry officer’s view that the appellant had violated specific orders of the Postmaster General by intermittently granting casual connections, as detailed in the enquiry report. However, the Commission characterized the breach as at most negligence in obeying superior orders or, alternatively, open defiance because the appellant refused to accept the instructions issued by his superiors. The Commission further observed that the essential accusation against Mr D’Silva was not merely the unauthorized granting of connections but the motive behind such acts. It noted that the only evidence presented related to connection number 283 for Messrs Khiali Ram and Amolak Chand, which raised suspicion but did not link the appellant to any illegal gratification. Consequently, the Commission concluded that the appellant was guilty of gross negligence and disobedience of orders, and it recommended that he be retired compulsorily. The Commission’s recommendation reflected its view while the motive for the connections could not be proven, the appellant’s conduct warranted the severest disciplinary action available. It therefore advised that the appropriate punitive measure should be the compulsory retirement of the appellant, even though the Commission noted the lack of direct evidence of personal gain.

A formal notice had already been issued to the appellant informing him that, based on the Union Public Service Commission’s advice, the Government of India had provisionally concluded that dismissal was the appropriate penalty. The notice also 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. The appellant responded to the notice by submitting a written explanation of his conduct that addressed the charges. By an order dated 25 January 1951, the President communicated that after careful consideration of the case record, the appellant’s explanation, and the Commission’s opinion, the officer was found guilty of gross negligence and disobedience of orders. Although the Commission had advised compulsory retirement, the President noted that such a penalty was not permissible under the service rules. Consequently, the President decided to remove the appellant from service with immediate effect as the appropriate disciplinary action. Following this removal, the appellant filed an application before the High Court of Judicature for Punjab seeking a writ of certiorari, a writ of mandamus, or any other appropriate order to set aside both the suspension order of 18 November 1948 and the removal order of 25 January 1951. The petitioner also requested that the Union of India be directed to reinstate him to the post he had been holding at the time of his suspension, together with all rights, privileges and emoluments attached to that position. In his written submissions, the appellant contested the findings of negligence, arguing that he had acted within the scope of his authority and that the alleged connections were regular administrative matters. He further asserted that the procedural requirements for dismissal had not been fully complied with, invoking the protections afforded to members of the All‑India Services under Articles 310 and 311 of the Constitution. The petitioner therefore prayed that the Court set aside the adverse orders and restore him to his former position without loss of seniority or benefits.

At the time the appellant was suspended, he was entitled to retain all the rights, privileges and emoluments that ordinarily attached to the post he occupied. He filed an application seeking relief, but the application was dismissed by Justice G. D. Khosla. The dismissal was subsequently affirmed by a Division Bench on appeal. By way of special leave, the appellant then approached the Supreme Court, challenging the order of the High Court that had upheld the dismissal of his application.

The appellant, during the relevant period, was a member of an All‑India Service and, under Article 310 of the Constitution, held his office at the pleasure of the President. However, Article 311 afforded him certain safeguards. Clause (1) of Article 311 barred his dismissal or removal by any authority subordinate to the one that 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. The appellant’s removal was effected directly by the President, and therefore no violation of the protection guaranteed by clause (1) arose. Counsel for the appellant nevertheless argued that clause (2) had been breached on three grounds. First, the President had imposed the penalty of removal on the basis of “gross negligence and disobedience of orders,” yet the enquiry officer’s investigation had never charged the appellant with misconduct of that description. Second, the punishment recorded in the charge sheet did not correspond to the specific offence for which the appellant had actually been found guilty; consequently, the order imposed a penalty different from the one originally contemplated. Third, the statement of Mr Bhashyam, the Postmaster General of the Lucknow Division, was taken by the Union Public Service Commission in the appellant’s absence, without giving him a chance to cross‑examine the witness, and the President relied upon that statement when deciding to remove the appellant. According to counsel, this procedure denied the appellant a reasonable opportunity to show cause, thereby violating the constitutional guarantee.

The Court found no merit in any of the three submissions. It observed that the Civil Services Rules merely enumerate a range of punishments that may be imposed on errant public servants and do not prescribe a fixed penalty for each specific misdeed. The Rules leave it to the competent authority to select a punishment that is appropriate to the seriousness of the misconduct. Accordingly, the President’s power to impose any punishment for any offence proven against a delinquent servant is unrestricted. The Constitution guarantees only that a person will be afforded a reasonable opportunity to be heard before an adverse action is taken; it does not guarantee that the punishment will be limited to a particular severity. The charge against the appellant comprised two distinct heads, each head constituting a separate allegation.

In this case the appellant was charged with irregularities in the allotment of telephones. The first charge alleged that he had committed irregularities with the intention of obtaining illegal gratification for himself or for others. The second charge, described as a comparatively less serious misdemeanor, alleged that the appellant was a party to the commission of irregularities that had enabled his subordinates to accept illegal gratifications. Counsel for the appellant argued that, under the first charge, the appellant was in substance accused of having received illegal gratification for himself or for others. To support this contention, counsel referred to a letter dated 31 December 1948 issued by the Enquiry Officer. The letter stated that two specific allegations of illegal gratification given to the appellant’s subordinates had already been mentioned in the annexure to the charge sheet and that the other cases raised by the appellant were similar to those in which illegal gratification was alleged. The letter further directed the appellant to prove that, despite the similarity, no illegal gratification had taken place in those other cases. The letter explicitly mentioned that telephone connections had been granted to Khiali Ram and Shyam Lal after the receipt of illegal gratification and that the other instances listed in the appendix were comparable to those cases. The Court held, however, that this letter did not justify the inference that the Enquiry Officer regarded the charges primarily as matters of illegal gratification or corruption, nor could the submission be accepted that the charges were framed so as to mislead the appellant into believing they mainly concerned the receipt of illegal gratification. As previously observed, the charges were of irregularities committed by the appellant: the first charge involved an objective of securing illegal gratification, while the second charge essentially involved negligence that enabled his subordinates to obtain illegal gratifications. The Appendix, particularly heads (1) and (2), set out the allegation that the appellant had granted telephone connections out‑of‑turn to certain applicants contrary to the orders of the Postmaster General. The Enquiry Officer found ten of the eleven instances listed under head 1 and both instances under head 2 to be proved. The Union Public Service Commission concurred with this finding, leading to the conclusion that the charge of irregularities was established against the appellant. Although the Enquiry Officer also concluded that the motive for granting the irregular connections had been established, the Union Public Service Commission expressed a different view on that point. Article 320(3) of the Constitution provides that the Union Public Service Commission shall be consulted in all disciplinary matters affecting a person serving under the Government of India in a civil capacity, but the Commission does not function as an appellate authority over the Enquiry Officer. The Court held that further consideration of the Commission’s view on the merits of the case was unnecessary for the purpose of the present proceedings.

In this case the Court examined whether, when the Union Public Service Commission gave its recommendations or advice, it could reach a conclusion on the merits of the alleged misconduct that differed from the conclusion reached by the Enquiry Officer. The President, before making his decision, had before him the Enquiry Officer’s report, the complete case record, the explanation submitted by the appellant, and the opinion of the Union Public Service Commission. After reviewing all of these materials, the President concluded that the appellant was guilty of both gross negligence and disobedience of orders. The record did not show that the President had formed any view on whether the appellant’s irregular actions were motivated by a desire to obtain illegal gratification for himself or for others, which was the essence of the first charge. Although the President used the same wording as the Commission had employed in its recommendation, the Court could not infer that the President had accepted the Commission’s conclusion that the irregularities were not proved to have been committed with a view to securing illegal gratification. Article 320 of the Constitution obliges the President to consult the Commission, except in certain situations that are not relevant here, but it does not make the President bound by the Commission’s advice. Consequently, the President found the appellant guilty of disobedience of orders and gross negligence. The charge against the appellant was disobedience of orders, which was the same charge for which the Enquiry Officer held him guilty, and the Union Public Service Commission also concurred with that view. Therefore, it could not be said that the misdemeanour for which the appellant was charged differed from the misdemeanour for which he was found guilty. The charge consisted of committing irregularities by willfully disobeying expressly issued orders, and that is precisely the misdemeanour that the appellant was found to have committed.

The Court then addressed the issue of punishment. In the communication sent by the Enquiry Officer, the specific punishment to be imposed on the appellant if found guilty of the charges could not be definitively stated. The authority to impose punishment arises only after an enquiry has been completed and the Enquiry Officer’s report has been received. It is the responsibility of the punishing authority to decide the appropriate punishment, not the enquiring authority. The enquiring authority’s role, when required, is to assess the evidence, record its conclusions, and, if it considers it appropriate, suggest a suitable punishment. However, neither the enquiring authority’s conclusions on the evidence nor any suggested punishment are binding on the punishing authority. In the present case, after the Enquiry Officer’s report was received, the appellant was called upon to show cause against a proposed dismissal from service. Following the appellant’s representation, the President considered the submissions before determining the appropriate disciplinary action.

After the appellant had presented his representation, the President examined the material and reached the conclusion that removal from service, rather than dismissal, was the proper sanction. The Court observed that the President’s decision did not contravene the constitutional guarantee of a reasonable opportunity to be heard because the appellant had been expressly informed of the proposed action and had been given a chance to make his defence. Subsequently, a punishment that was less severe than removal was imposed on the appellant. The record contains no evidence that the President found the appellant guilty of the second charge, nor does it show that the President adopted the punishment recommended by the Enquiry Officer for the first charge.

The appellant argued that the testimony of Mr Bhashyam, the Postmaster General of the Lucknow Range, had been recorded in his absence and that the President relied upon this testimony to decide on removal. The Court found this claim unsupported. It noted that a letter dated 7 February 1948 from the Postmaster General directed the appellant not to issue out‑of‑turn telephone connections, even for casual requests, and that this letter was produced before the Enquiry Officer. The appellant’s contention before the Enquiry Officer was that he had informed the Postmaster General that it was impracticable to place persons seeking casual connections on the same list as those seeking permanent connections. He further claimed that he subsequently received a telephonic message from Mr Bhashyam instructing him to follow the rules, after which he continued the practice of maintaining separate lists for regular and casual connections. The Enquiry Officer rejected this defence. The Union Public Service Commission later obtained Mr Bhashyam’s version of the alleged instructions and noted that the Postmaster General denied any such telephonic conversation. The appellant pointed out that Mr Bhashyam was not examined in his presence and that he was denied the opportunity to cross‑examine Mr Bhashyam. It is admitted that Mr Bhashyam was not examined before the Enquiry Officer. Although the Commission collected information from Mr Bhashyam, it is not an appellate body over the Enquiry Officer; its role is merely consultative as required by the Constitution in disciplinary matters. Even if the Commission’s action was irregular, there is no indication that the President relied on Mr Bhashyam’s statement, as referenced in the Commission’s report, when imposing the impugned punishment. The mere similarity of language used by the President does not prove that he considered the alleged denial by Mr Bhashyam. Consequently, the Court is of the view, therefore, that

In this case, the Court found that no violation of the constitutional guarantee contained in article 311 occurred, because the appellant was afforded a reasonable opportunity to show cause against the proposed action. The Court also considered another argument advanced by the appellant. The appellant contended that, having accepted the advice of the Commission, the President was authorised only to impose the punishment that had been set out in the charge framed by the Enquiry Officer with respect to the second allegation, and that the President could not dismiss the appellant from service. The Court observed that the impugned order contains no indication that the President accepted the Commission’s advice in its entirety. Moreover, the Court reiterated that the punishment suggested 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 Government‑considered appropriate punishment, namely dismissal, should not be imposed. That notice clearly set out the action that the President might take. There is no statutory provision that obliges the President to impose only the sentence proposed by the Enquiry Officer. Accordingly, the President was free to reach a provisional finding on the appellant’s guilt and to determine the appropriate punishment. The President did so, and in imposing dismissal, taking into account the seriousness of the proven misconduct, the President’s powers were not limited by the Enquiry Officer’s proposal, which the officer was not competent to make. Consequently, the Court held that the appeal failed, ordered its dismissal, and awarded costs. The appeal was dismissed.