Madras High Court
The State Of Madras Through The ... vs T.K. Gopala Iyer on 13 December, 1961
JUDGMENT Anantanarayanan, J.
1. This appeal is by the State of Madras from the order of a learned Judge of this Court (Ramachandra Ayyar, J., as he then was) in Appeal No. 112 of 1955 : we may succinctly state that, by virtue of this judgment, the learned Judge held that the State had no right to order the compulsory retirement of Sri T. K. Gopala Ayyar (respondent), who was an Assistant Regional Malariologist at Pattukottai in June, 1947. In effect, the learned Judge granted a declaration in favour of the respondent that the order of the Government in G.O. Ms. No. 3919, Health, dated 17th November, 1960 was illegal and without jurisdiction.
2. The broad facts of the disciplinary proceedings against the delinquent officer (respondent), which culminated in his compulsory retirement by the Government, (appellant) are not in dispute. In 1947, upon a departmental; report, the Assistant Director of Public Health (Epidemics and Vital Statistics) was deputed to conduct disciplinary proceedings against the officer. Six charges formed the subject of the proceeding, and the Assistant Director of Public Health held that all of them were substantiated (vide Exhibit A-14). Admittedly, the authority competent to punish the respondent-officer on these charges was the Director of Public Health, the head of the department. The Director of Public Health, after reviewing the material, decided to abandon five charges, and he found that charge No. 6 alone was proved. Finally, after the proceedings for obtaining an explanation from the officer with regard to the proposed penalty, the Director of Public Health ordered the permanent stoppage of one increment in the pay of the respondent.
3. Purporting to be aggrieved by this punishment, the respondent filed an appeal to the Government under Rule 19 of Part IV of Madras Civil Services (Classification, Control and Appeal) Rules. Admittedly, the Government referred the appeal for advice to the Madras Public Service Commission, and it is the confidential report of the Commission, which was the substratum of the later developments. For reasons stated in this report, the Commission was of the view that all the charges had been proved, except charge No. 5, and that the Director of Public Health was in error in holding Charge No. 6 alone proved, and basing his disciplinary action thereon. The Commission considered the punishment quite inadequate, and recommended the compulsory retirement of the officer. The Government then scrutinised the matter, agreed with the opinion of the Commission and by an order, dated 1st August, 1950 (Exhibit A-29), called upon the respondent to show cause why he should not be compulsorily retired. The respondent submitted an explanation and, after considering his explanation and the further views of the Public Service : Commission, the Government directed the compulsory retirement of the respondent in G.O. Ms. No. 3919, Health, dated 17th November, 1950.
4. There are several questions of interest and significance arising in the appeal. Actually, the appeal can be disposed of upon three of them alone, and the remaining question is academic. Nevertheless, in view of its importance, we propose to dilate upon that aspect also, after a discussion of the points which arc vital for a disposal of the appeal. The four questions may be formulated in this form. (1) Did the appellate authority (Government) act within its jurisdiction, when it purported to revive the charges abandoned by the Director of Public Health, to find the respondent-officer guilty thereof, and to award him the far heavier punishment of compulsory retirement? This would depend upon the scope of Rule 23 of Madras Civil Services (Classification, Control and Appeal) Rules which defines and limits the powers of an appellate authority. (2) Docs Article 311 (2) of the Constitution apply to this case of compulsory retirement, and is the delinquent officer entitled to plead that he was not given an adequate opportunity to show cause against the action taken by Government? (3) Assuming that Article 311 does apply, is it justifiable to hold, on the facts, that the officer did not hate a reasonable opportunity to show cause against the resuscitation of the charges; and the punishment of compulsory retirement? (4) In a given case, does the State have the power to revive charges abandoned by an authority competent to hold the enquiry, and to punish the delinquent officer upon such charges? This is the question of academic importance that we have earlier referred to.
5. We shall first deal with the second and third points, in that order, for they are sufficient to dispose of the appeal. The matter here teems to us to be so clear and free from doubt, that it is not necessary to discuss there issue at any great length.
6. The learned Government Pleader argues that Article 311 of the Constitution will not apply to a care of compulsory retirement. He purports to justify this contention upon certain observations in Shyam Lal v. The State of Uttar Pradesh and the Union of India . Their Lordships of the Supreme Court have pointed out, in this passage in the decision, that compulsory retirement does not involve any loss of any part of the benefit earned by an officer, and that there " is no diminution of the accrued benefit. " For this reason, the loss of future prospects being too uncertain their Lordships have taken the view that this element for determining whether this termination of service amounts to dismissal or removal, within the scope of Article 311 of the Constitution, is absent in the case of a compulsory retirement. But it is clear enough, from the very context of the discussion, that this is only one of the criteria applicable. Another one is whether the compulsory retirement is a step taken by Government in terms of the actual contract, or the conditions of service namely, where an officer is, liable to be retired at the pleasure of the Government after completing a particular period of service, though he may also be regained thereafter. It is clear enough that the conditions of compulsory retirement may vary considerably, and that the nature of the action will be very different, where it is in exercise of a power stemming from the contract itself, from the case, where the action springs from charges levelled against the servant and held established, the misdemeanour being the foundation for the action. The matter was clarified and placed beyond doubt by the Supreme Court in P. L. Dhingra v. Union of India (1958) S.C.J. 217 : (1958) S.C.R. 828 : A.I.R. 1958 S.C. 36 at 49:
The use of the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests, mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind herein before referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service....
It is indisputable in the present case that the delinquent officer had not completed that term of service which would entitle the Government to retire him compulsorily and that he had been so retired on the proved charges, purely as a measure of punishment. As learned Counsel for the officer (Sri Mohan Kumaramangalam) stresses, any other view would involve the anomaly that an officer compulsorily retired, as a measure of punishment, when his contract did not render him liable to be retired, would be unable to invoke the protection of Article 311 of the Constitution, while an officer reduced in rank, which is a lesser penalty, could do so. There can be no doubt, therefore, that Article 311 applies to the case of the present respondent.
7. We propose to deal quite briefly with the further question, on the facts, whether this officer had reasonable opportunity to show cause against the revival of the charges, and the punishment imposed on him upon the revived charges by Government. The learned Government Pleader contends that the officer had asked for a fresh enquiry, in his explanation in response to the notice Exhibit A-29, and that he was not entitled to any such further, or de novo enquiry. The learned Government Pleader relies for this position upon the dicta in Lull's case (1948) 2 M.L.J. 55 : (1948) F.C.R. 44 : (1948) F.L.J. 23 : L.R. 75 I.A. 225, and also the observations of the Supreme Court in Khem Chand's case (1958) 1 M.L.J. (S.C.) 169 : (1958) S.C.J. 497 : (1958) 1 An.W.R. (S.C)169. The point, in this form, is not sought to be refuted by the other side. But learned Counsel for the respondent-officer strenuously contends that, if regard is had to the spirit and substance of the protection afforded by Article 311, apart from a mere letter or form, the proceedings were vitiated by a failure to afford a reasonable opportunity.
8. On the facts, we entirely agree with this contention. Actually, the dropped charges were revived by Government on a confidential report by the Public Service Commission, which gave reasons for its view. The officer had no access to this report. Even if he was not entitled to such access, he was at least entitled to know the grounds upon which the Government disagreed with the explicit findings of the head of the department (the Director of Public Health) and desired to press home the charges which had been relinquished by the proper authority. But the notice (Exhibit A-29) contains no hint whatever of such grounds or of such reasoning.. It merely states that the Government felt inclined to agree rather with the original, findings of the Assistant Director of Public Health who had made the report. Not only is this. In his reply to the notice Exhibits A-30 and A-32, the delinquent officer made certain specific submissions. He desired to have a copy of the findings of the Director of Public Health in respect of the dropped charges, so that he could argue upon the reasoning of that exoneration. The learned Government Pleader concedes that nothing was done about this request, and that these findings were not furnished. It is true, as the learned Government Pleader argues, that the reasoning of the Director of Public Health is contained in cryptic memoranda on the margin of the report of the officer who held the enquiry; but there are such reasons based on the merits, and indisputably the delinquent officer was entitled to know them. We do not find the officer was given any reasonable opportunity to show cause against not merely the enhancement of the penalty, but also the revival and the pressing home by Government of charges which had been abandoned as either too trivial, or as not made out, by the head of the department. On this ground alone, the order of the learned Judge will have to be supported, and the appeal will have : to fail.
9. We are also of the view that the order of the learned Judge can be supported on another short ground. This is dealt with by the learned Judge himself in the portion of his judgment where he discusses the scope and applicability of Rule 23 of the Madras Civil Services (Classification, Control and Appeal) Rules which provides for appeals. As Rule 23 (1) explicitly states, the appellate authority has three functions and powers defined in this rule, including the power to take action with regard to an excessive or an inadequate penalty. But no power is given to resuscitate the charges which had not been held proved, within the scope of the appeal. The argument here is against the State (appellant), and almost incontrovertible. For it cannot be disputed that a delinquent officer, upon whom a punishment has been imposed by the proper authority, may not appeal at all. He may suffer the punishment in silence. If he does appeal, the hazards that he runs are limited by the powers, of the appellate authority. Irrespective of those powers, the appellate authority cannot bring to life an area of the enquiry which has been concluded in favour of the appellant, and purport to penalise him upon new findings with respect to that area. At least if the appellate authority does so, it must derive its power to do so from the rules providing for appeals. There is no such power, and, on this ground also, the appeal by the State will have to fail.
10. Lastly there is the question which might be purely academic at this stage, but which is of great importance. That question is whether, where the authority dealing with an officer, has dropped certain charges, which may be not merely erroneous but from corrupt motive or under some improper influence, the State-does not have the power, in the interests of the purity of the administration, to revive those charges and to come to a new or different finding on that enquiry. Some light will be found thrown on this matter, both in Rangachari v. Secretary of State (1937) 1 M.L.J. 515 : I.R. 64 I.A. 40 : I.L.R. (1937) Mad. 517 (P.C.) and in Dwarakchand v. State of Rajasthan , which have been discussed by the learned Judge (Ramachandra Ayyar, J., as he then was) in his judgment. The former decision related to a revival of an enquiry against a Sub-Inspector of Police, who had actually retired, by a successor to the office of the District Superintendent of Police. The dicta of the Judicial Committee against the propriety of any such step are subject to one condition, in the very words of the Committee, that " the Government officials duly competent and duly authorised in that behalf have arrived honestly at one decision." But what happens where the Government is satisfied that the decision, namely, the relinquishment of the charges, has not been honest, but has been improperly influenced or corrupt? In Dwarakchand v. State of Rajasthan , will be found several grounds or reasons, relating to the public interest, in support of the decision of the learned Judges of that Court that, under those circumstances, a fresh enquiry could not be made. We are not dissenting from the conclusion of that decision nor is it necessary for the present purpose to do so. But, with great respect to the learned Judges, we may observe that equally powerful reasons can be shown for the contrary view, namely, that, in the interests of the purity of administration, particularly in relation to the democratic process, it is atleast desirable, if not, essential, that there should be a reserve power vested in the Government to review such action as the dropping of charges against a delinquent officer by a concerned authority, where the State is satisfied that that decision was not merely unjustified, but was improper or corrupt. Even if this power need not be permitted to the length of holding a fresh enquiry altogether, which may involve certain undesirable consequences to the rights of an individual as pointed out by the learned Judges in Dwarakchand v. State of Rajasthan , there would appeal to be a good case for at least the exercise of power of review for just cause, with regard to the total dropping of charges or to perverse findings opposed to the manifest evidence. It Is here of great interest to point out that Rule 14 (2) (c) of the Rules in force in this State (also extracted by the learned Judge), specifically provides for the exercise of jurisdiction by a higher authority where the lower authority has "declined to impose a penalty in any case." As we stressed earlier, the question is of academic importance and we have dilated on this aspect only as a matter of public interest, and as the arguments submitted before us touched upon this aspect also.
11. Under the circumstances, the Letters Patent Appeal fails and is dismissed. The parties will bear their own costs throughout.