LawDistill
Supreme Court of India

TARA CHANDKHATRI vs MUNICIPAL CORPORATION OF DELHI & ORS on 26 November, 1976

Cites 3 provisionsCites 11 judgmentsCited by 7
Official PDFBench Ajit Nath Ray (presiding), Mirza Hameedullah Beg, Jaswant Singh
PETITIONER:
TARA CHANDKHATRI
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF DELHI & ORS.
DATE OF JUDGMENT26/11/1976
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 567 1977 SCR (2) 198
1977 SCC (1) 472
CITATOR INFO :
RF 1986 SC1040 (8)
R 1986 SC1173 (8)
D 1987 SC 294 (39)
RF 1990 SC1984 (32)
ACT:
Service matter--Disciplinary Authority--Recording,
reasons--When obligatory.
High Court--If under a duty to enquire into allegations of
mala fides.
HEADNOTE:
The appellant, a school teacher under the Delhi Munici-
pal Corporation. was dismissed from service by the Deputy
Commissioner (Education) after following the procedure
prescribed under the Regulations. His appeal to the Commis-
sioner of the Corporation was dismissed and his writ peti-
tion was dismissed in limine by the High Court. On further
appeal to this Court it was contended that (I ) the order of
"Regulation 8: ................
(9) The Disciplinary Authority, shall,
if it is not the Inquiring Authority,
consider the record’ of inquiry and record its
findings on each charge.
(10) If the Disciplinary Authority,
having regard to its findings on the charges,
is. of the opinion that any of the penalties
specified in regulation 6 should be imposed,
it shall :--
(a) furnish to the municipal officer or
other municipal employee a copy of the report
of the Inquiring Authority and, where the
Disciplinary Authority is not the Inquiring
Authority, a statement of its findings
together with brief reasons for disagreement,
if any, with the findings of the Inquiring
Authority; and,
(b) give him a notice stating the action
proposed to. be taken in regard to him and
calling upon him to submit within a specified
time such representation as he may wish to
make against the proposed action.
(11) The Disciplinary Authority shall
consider the representation, if any, made by
the municipal officer or other municipal
employee in response to the notice under
subregulation (10) and determine what penalty,
if any, should be imposed on the municipal
officer or other municipal employee and pass
appropriate orders on the case.
(12) Orders passed by the Disciplinary
Authority shall be communicated to the
municipal officer or other municipal employee
who shall also be supplied with a copy of the
report of the Inquiring Authority and where
the Disciplinary Authority is not the
Inquiring Authority, a statement of its
findings together with brief reasons for
disagreement, if any, with the findings of the
Inquiring Authority, unless they have already
been supplied to him."
Having noticed the relevant provisions, we now pass on
to. consider the contentions raised on behalf of the appel-
lant. Adverting to the first two contentions raised before
us on behalf of the appellant, it may be stated that neither
of them appear from the record to have been raised before
the High Court. It was not the case of the appellant in
the petition filed, by him under Article 226 of the Consti-
tution that since his appointment as an Assistant Teacher
was actually made by the Commissioner, the Deputy Commis-
sioner was. not competent to dismiss him from service.
What was asserted by him at that stage is contained in
ground No. VI of the petition and’ may be reproduced below
for facility of reference:--
"Because in any. case, respondent No. 3 has no
jurisdiction to hear the appeal. Under
section 92 of the Delhi Municipal Corporation
Act, 1957, the petitioner could be
appointed only by the Commissioner and under
section 95 of the said Act, he should be the
dismissing authority. In the present case,
however, the Commissioner had by notification
under section 491 of the said Act, delegated
his power to the Deputy Commissioner under
Circular NO. 4(1)/8-Law Corp. 1 dated
7.4.1958. The dismissing order was made by
the Deputy Commissioner as delegatee i.e. as
exercising the powers of the Commissioner.
The Commissioner, therefore, could not sit in
appeal on such an order. Only the Standing
Committee of the Corporation could have heard
the appeal."
The omission to make the aforesaid averments in the writ
petition regarding the incompetence of the Deputy Commis-
sioner to pass the impugned order of dismissal from service
and invalidity. of regulation 7 of the Regulations appears
to be due to the. fact that the appellant fully realised
that none of these pleas could be tenable in view of the
aforesaid order No. (1) 58 Law Corp. 1 dated April 7, 1958
made by the Commissioner delegating all his powers to the
Deputy Commissioner his actual appointment as an Assistant
Teacher by the Deputy Commissioner and regulation 7 of the
Regulations which far from being repugnant to section,, 95
of the Act is perfectly consistent with it as sub-section (1
) of that section itself makes a municipal employee liable
to be compulsorily retired, removed or dismissed etc. by
such authority as may be prescribed by the Regulation. The
prohibition contained in the first proviso to this Sub-
section is confined in its operation only to a case where
an officer or employee of the Corporation is retired, re-
moved or dismissed by an authority subordinate to that by
which he was appointed. In the instant case, ’the appel-
lant’s appointment having been made by the Deputy Commis-
sioner, who possessed plenary powers in., that behalf by
virtue of the aforesaid delegation order, there was; neither
any legal bar to the appellant’s dismissal from service by
that very authority nor a breach of the first proviso to
sub-section (1 ) of section 95 of the Act.
The decision of this Court in The Management of D.T.U.v.
Shri B.B.L. Halelay & Anr.(1) sought to be relied upon by
Mr. Ramamurthi related to an appointment which rested on a
deeming provision and is not at all helpful to the appel-
lant. Rospondent No. 2 in that case was Originally employed
as a driver in the Delhi Road Transport Authority which had
been constituted under the Delhi Road Transport Authority
Act, 1950. By section 516(1)(a) of the Delhi Municipal
Corporation Act,1957 which came into force in January, 1958,
the Delhi Road Transport Authority Act, 1950, was repealed
and the functions of the Delhi Road Transport Authority were
taken over by the Corporation by virtue of several other
provisions of the Act. Under section 511 of that Act i.e.
the Delhi Municipal Corporation Act, 1957, every officer and
employee of the Transport Authority including respondent
No,. 2 stood transferred and become an officer and employee
of the Corporation and under section 92(1) (b) read with
section 516(2) (a) of the Act, the said respondent was
(1) [1973] 2 S.C.R. 114.
to be deemed to have been appointed by the General Manager
(Transport). The respondent in that case thus being re-
quired by fiction of law to b,e taken to have been appointed
by the General Manager, he could not have been removed from
service in May, 1963 by the Assistant General Manager--an
authority subordinate to the General Manager--in view of the
first.proviso to sub-section (1) of section 95 of the Act
despite the fact that the functions of the General Manager
had been delegated to the Assistant General Manager in May,
1961. In that case, it was made clear by this Court that the
only consequence of the delegation order was that if after
1961, the Assistant General Manager had made the appointment
of respondent No. 2, he would have no doubt been entitled to
remove him from service but the position had to be deter-
mined with reference to the time, when he was absorbed in
the Corporation which was in January, 1958.
The judgment of this Court in. Municipal Corporation of
Delhi v. Ram Pratap Singh(1) is also not helpful to the
appellant as in that case, the appointment was in fact made
by the Commissioner white the dismissal was by the Deputy
Commissioner.
In view of the foregoing discussion, the first two
contentions raised on behalf of the appellant which are
totally misconceived are repelled.
The third contention advanced by Mr. Ramamurthi that the
impugned order of the appellant’s dismissal from service is
vitiated ’as the disciplinary authority has neither recorded
its findings with respect to the charge drawn up against the
appellant as required by regulation 8(9) of the Regulations
nor has it given its reasons for passing the order cannot
also, be countenanced as. it overlooks the decisions of this
Court, which fully cover the case.
Regarding the first limb of the contention, it may be
stated that although it may be necessary for the discipli-
nary authority to record. its provisional conclusions in
the notice calling upto the delinquent officer to, show
cause why the. proposed punishment be not imposed upon him
if it differs from the findings arrived at b,y the enquiring
officer with regard to the charge, it is not obligatory to
do so in case the disciplinary authority concurs with the
findings of the enquiring officer. We are supported in this
view by two decisions of this Court in State of Orissa v.
Govinddas Panda(2)-and State of Assam & Anr. v. Bimal Kumar
Pandit(3). In Govinddas Panda’s case (supra) where the
notice issued under’ Article 311(2) did not expressly state.
that the State Government had accepted the findings record-
ed by the enquiring officer against the Government servant
in question and where even the nature of the punishment
which was proposed to be inflicted on. him was not specifi-
cally and clearly indicated, this Court while reversing
the conclusions of the Orissa, High Court that the notice
was defective and so that provisions of Article 311(2) had
been contravened observed:--
(1) C.A. No. 2249 (N.) of 1969 decided on 8-1-1976.
(2) C.A. No. 412 of 1958 decided on 10-12-1962.
(3) A.I.R. 1963 S.C. 1612.
"In the context, it must have been obvious to
the respondent that the punishment proposed
was removal from service and the respondent
was called upon to show cause against that
punishment. On a reasonable reading of the
notice, the only conclusion at which one can
arrive is that the appellant (the State)
accepted the recommendation of the
Administrative Tribunal and asked the
respondent to show cause against the proposed
punishment, namely, that of removal from
service."
In Bimal Kumar Pandit’s case (supra) while, reversing
the judgment and order of the High Court allowing the writ
petition filed by the respondent against his reduction in
rank on the ground that the notice served upon him under
Article 311 (2) of the Constitution was void as it did not
expressly and specifically indicate either the conclusions
of the dismissing authority or the findings recorded by the
enquiring officer or that the dismissing authority accepted
the findings of the enquiring officer and unless that course
was adopted, it would not be clear that the dismissing
authority had applied its mind and had provisionally come to
some conclusion both in regard to the guilt of the public
officer and the punishment which his misconduct deserved the
Constitution Bench of this Court observed:
"It may be conceded that it is desirable
that the dismissing authority should indicate
in the second notice its concurrence with the
conclusions of the enquiring officer before it
issues the said notice under Article 311(2).
But the question which calls for our decision
is it the dismissing authority does not
expressly say that it has accepted the
findings of the enquiring officer against the
delinquent officer, does that introduce such
an infirmity in the proceedings as to make the
final order invalid ? We are not prepared to
answer this question in the affirmative. It
seems to us that it would be plain to the
delinquent officer that the issuance of the
notice indicating the provisional conclusions
of the dismissing authority as to the
punishment that should be imposed on him

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2471 of 1972.

Appeal by Special Leave from the Judgment and Order dated the 28th March 1972 of the Delhi High Court in Civil Writ No. 179/72.

M.K. Ramamurthi, K.B. Rohatagi, V.K. Jain and M.M. Kashyap, for the Appellant.

S.N..Andley, B.P. Maheshwari and Suresh Sethi, for the Respondents. The Judgment of the Court was delivered by

JASWANT SINGH, J. This appeal by special leave is directed against the judgment and order dated March 28, 1972 of the High Court of Delhi dismissing in limine the writ petition filed by the appellant herein.

The facts essential for the purpose of this appeal are: The appellant was appointed as an Assistant Teacher on temporary basis in the pay scale of Rs. 68-170, which was subsequently revised to Rs. 118-225, in the Primary School, Northern Railway Colony II run by the Education Department of the Municipal Corporation of Delhi, with effect from October 1, 1958. He was confirmed on the said post on September 30, 1959. On August 28, 1964, he was transferred to the Senior Basic Middle School of the Corporation in Panna Mamirpur, Narela 11. In September, 1967, he was assigned the work of teaching certain subjects to both the sections of Class V. In section A of Class V, there was at that time a student named Surinder Kumar, son of Dhan Raj. On September 6, 1967, Dhan Raj made a written complaint to the Education Officer of the Corporation, a copy of which he endorsed to the Head Master of the School, alleging therein that the appellant bad sensually misbehaved with his son, Surinder Kumar in the School Premises during the recess time on 2nd and 4th September, 1967. On October 5, 1967, the Education Officer suspended the appellant. On April 15, 1968, the Assistant Education Officer, Rural North Zone, was directed by his superior to prepare a charge sheet against the appellant whereupon a charge sheet was drawn up and served on the latter on November ’16, 1968. Therefore, the Director of Inquiries, who was deputed to enquire into the matter proceeded to hold the enquiry and on consideration of the evidence adduced before him, he submitted a report on May 20, 1969, holding that the charge levelled against the appellant had been established. On receipt of the report and perusal thereof, the Deputy Commissioner, Education of the Corporation passed the following order on May 20, 1969:

"I have gone through the report of the

Inquiry Officer and agree with his findings.

The Inquiry Officer has held the charge of

committing an immoral act with a student of

Class V, levelled against Shri Tara Chand

Khatri, A/T (Respondent) as proved. Such an

act on the part of a teacher is most

unbecoming, serious and reprehensible. I

propose to impose the penalty of ’dismissal’

from service which shall be a disqualification

for future employment on the respondent."

Consequent upon the passing of this order, a notice was issued to the appellant requiring him to show cause why the penalty of dismissal from service be not imposed on him. On July 11, 1969, the appellant submitted his representation in reply to the show cause notice. By order dated July 30, 1968, the Deputy Commissioner, rejected the representation of the appellant and imposed the penalty of dismissal from service upon him. Aggrieved by this order, the appellant preferred an appeal to the Commissioner of the Corporation on August 29, 1969, under regulation 11 of the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as ’the Regulations’) Which was rejected by the Commissioner on September 13, 1969. On October 11, 1971, the appellant filed Civil Writ Petition No. 1032 of 1969 in the High Court of Delhi challenging the aforesaid order of his dismissal from service. ’The High Court allowed the petition on the ground that the order of the Appellate Authority was made in violation of the requirements of regulation 15 of the Regulations and directed the Appellate’ Authority to dispose of the appeal afresh on merits keeping in view all the facts and circumstances of the case as also the requirements of Regulation 15 of’ the Regulation. While disposing of the writ petition, the learned Judge added that if the appellant still felt aggrieved by the decision of the Appellate Authority he would be at liberty in appropriate proceedings not only to challenge the order of the Appellate Authority but the order of the disciplinary authority as well. On remand, the Commissioner of the Corporation who happened to be an officer different from the. one who rejected the appellant’s appeal on the former occasion heard the appellant at considerable length but rejected the appeal by an elaborate order dated January 5, 1972. The appellant thereupon filed writ petition No. 179 of 1972 in the High Court of Delhi challenging the order dated July 30, 1969 of the Deputy Commissioner, Education, as well as the order of the Appellate Authority dated January 5, 1972. This petition was, as already stated, summarily dismissed without the issue of a notice to the respondents. The appellant then made an application to the High Court for leave to appeal to this Court but the same was also rejected.

Appearing in support of the appeal, Mr. Ramamurthi has vehemently contended that the appointing authority of the appellant being the Commissioner under section 92 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act’), his dismissal from service by the Deputy Commissioner (Education)--an authority subordinate to the Commissioner is illegal. The counsel has next urged that regulation 7 of the Regulations and the Schedule referred to therein conferring power on the Deputy Commissioner to dismiss a municipal officer or other employee drawing a monthly salary of less than Rs. 350/- being inconsistent with section 95 of the Act is void and consequently the impugned order of the appellant’s dismissal from service passed in exercise of that power is also illegal and invalid. The counsel has further contended that the impugned order of the appellant’s dismissal from service being a quasi-judicial order is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order. The counsel has lastly urged that the High Court ought not. to have dismissed the petition in limine without calling upon the respondents to file the return as it raised not only arguable points of law but also contained allegations of male fides against the respondents. We shall deal with these points seriatim. But before embarking on that task, we consider it apposite to, refer to a few provisions of the Act and regulations which have an important bearing on the case.

Under section 92(1)(b) of the Act, as in force at the relevant time the power of appointing municipal officers and other municipal employees whether temporary or permanent, to posts carrying a minimum monthly salary (exclusive of allowances) of less than three hundred and fifty rupees was vested in the Commissioner. Subsection (1)of section 95 of the Act provided that every municipal officer or other municipal employee shall be liable ......... to be censured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be. prescribed by regulations. The first proviso. to this subsection, however, contained the following rider:--

"Provided that no such officer or other

employee as aforesaid shall be reduced in

rank, compulsorily retired, removed or

dismissed by any authority subordinate to that

by which he was appointed."

Section 491 of the Act which is in the

nature of an enabling provision provided as

under:--

"The Commissioner may by order direct that any

power conferred or any duty imposed on him by

or under this Act shall, in such

circumstances and under such conditions, if

any, as may be specified in the order, be

exercised and performed also by any officer

or other municipal employee specified in the

order."

It is admitted by the appellant that in: exercise of the power conferred on him under section 491 of the Act, the Commissioner had vide his order No. (1)58 Law Corp-1 dated April 7, 1958, directed that all the powers conferred on him under the various provisions of. the Act would be exercised also by the Deputy Commissioner subject to his supervision, control and revision.

Regulation 7 of the Regulations and the

Schedule referred to therein read as under:--

"Regulation 7: The authority specified in

column 1 of the Schedule may impose on any of

the municipal officers. or other municipal

employees specified there against in column 2

thereof any of the penalties specified there

against in column 3 thereof. Any such

officer or employee may appeal against the

order imposing upon him any of those penalties

to the authority specified in column 4 of the

said Schedule." SCHEDULE Description of posts Authority Penalties Appellate

competent Authority

to impose

penalties Posts whose minimum Deputy All Commissioner monthly salary (exclu- Commissioner sive of allowances) is less than three hundred and fifty rupees.

Do. Any municipal

officer (i) & (ii) Deputy Co-

or employee mmissioner

to whom po-

wers to im-

pose penal-

ties is de-

legated under

section 491.

It would also be advantageous to refer to regulation 8 of the Regulations in so far as it is relevant for the purpose of this appeal.

(9) The Disciplinary Authority, shall,

if it is not the Inquiring Authority,

consider the record’ of inquiry and record its

findings on each charge.

(10) If the Disciplinary Authority,

having regard to its findings on the charges,

is. of the opinion that any of the penalties

specified in regulation 6 should be imposed,

it shall :--

(a) furnish to the municipal officer or

other municipal employee a copy of the report

of the Inquiring Authority and, where the

Disciplinary Authority is not the Inquiring

Authority, a statement of its findings

together with brief reasons for disagreement,

if any, with the findings of the Inquiring

Authority; and,

(b) give him a notice stating the action

proposed to. be taken in regard to him and

calling upon him to submit within a specified

time such representation as he may wish to

make against the proposed action.

(11) The Disciplinary Authority shall

consider the representation, if any, made by

the municipal officer or other municipal

employee in response to the notice under

subregulation (10) and determine what penalty,

if any, should be imposed on the municipal

officer or other municipal employee and pass

appropriate orders on the case.

(12) Orders passed by the Disciplinary

Authority shall be communicated to the

municipal officer or other municipal employee

who shall also be supplied with a copy of the

report of the Inquiring Authority and where

the Disciplinary Authority is not the

Inquiring Authority, a statement of its

findings together with brief reasons for

disagreement, if any, with the findings of the

Inquiring Authority, unless they have already

been supplied to him."

Having noticed the relevant provisions, we now pass on to. consider the contentions raised on behalf of the appellant. Adverting to the first two contentions raised before us on behalf of the appellant, it may be stated that neither of them appear from the record to have been raised before the High Court. It was not the case of the appellant in the petition filed, by him under Article 226 of the Constitution that since his appointment as an Assistant Teacher was actually made by the Commissioner, the Deputy Commissioner was. not competent to dismiss him from service. What was asserted by him at that stage is contained in ground No. VI of the petition and’ may be reproduced below for facility of reference:--

"Because in any. case, respondent No. 3 has no

jurisdiction to hear the appeal. Under

section 92 of the Delhi Municipal Corporation

Act, 1957, the petitioner could be

appointed only by the Commissioner and under

section 95 of the said Act, he should be the

dismissing authority. In the present case,

however, the Commissioner had by notification

under section 491 of the said Act, delegated

his power to the Deputy Commissioner under

Circular NO. 4(1)/8-Law Corp. 1 dated

7.4.1958. The dismissing order was made by

the Deputy Commissioner as delegatee i.e. as

exercising the powers of the Commissioner.

The Commissioner, therefore, could not sit in

appeal on such an order. Only the Standing

Committee of the Corporation could have heard

the appeal."

The omission to make the aforesaid averments in the writ petition regarding the incompetence of the Deputy Commissioner to pass the impugned order of dismissal from service and invalidity. of regulation 7 of the Regulations appears to be due to the. fact that the appellant fully realised that none of these pleas could be tenable in view of the aforesaid order No. (1) 58 Law Corp. 1 dated April 7, 1958 made by the Commissioner delegating all his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regulation 7 of the Regulations which far from being repugnant to section,, 95 of the Act is perfectly consistent with it as sub-section (1 ) of that section itself makes a municipal employee liable to be compulsorily retired, removed or dismissed etc. by such authority as may be prescribed by the Regulation. The prohibition contained in the first proviso to this Subsection is confined in its operation only to a case where an officer or employee of the Corporation is retired, removed or dismissed by an authority subordinate to that by which he was appointed. In the instant case, ’the appellant’s appointment having been made by the Deputy Commissioner, who possessed plenary powers in., that behalf by virtue of the aforesaid delegation order, there was; neither any legal bar to the appellant’s dismissal from service by that very authority nor a breach of the first proviso to sub-section (1 ) of section 95 of the Act.

The decision of this Court in The Management of D.T.U.v. Shri B.B.L. Halelay & Anr.(1) sought to be relied upon by Mr. Ramamurthi related to an appointment which rested on a deeming provision and is not at all helpful to the appellant. Rospondent No. 2 in that case was Originally employed as a driver in the Delhi Road Transport Authority which had been constituted under the Delhi Road Transport Authority Act, 1950. By section 516(1)(a) of the Delhi Municipal Corporation Act,1957 which came into force in January, 1958, the Delhi Road Transport Authority Act, 1950, was repealed and the functions of the Delhi Road Transport Authority were taken over by the Corporation by virtue of several other provisions of the Act. Under section 511 of that Act i.e. the Delhi Municipal Corporation Act, 1957, every officer and employee of the Transport Authority including respondent No,. 2 stood transferred and become an officer and employee of the Corporation and under section 92(1) (b) read with section 516(2) (a) of the Act, the said respondent was (1) [1973] 2 S.C.R. 114. to be deemed to have been appointed by the General Manager (Transport). The respondent in that case thus being required by fiction of law to b,e taken to have been appointed by the General Manager, he could not have been removed from service in May, 1963 by the Assistant General Manager--an authority subordinate to the General Manager--in view of the first.proviso to sub-section (1) of section 95 of the Act despite the fact that the functions of the General Manager had been delegated to the Assistant General Manager in May, 1961. In that case, it was made clear by this Court that the only consequence of the delegation order was that if after 1961, the Assistant General Manager had made the appointment of respondent No. 2, he would have no doubt been entitled to remove him from service but the position had to be determined with reference to the time, when he was absorbed in the Corporation which was in January, 1958.

The judgment of this Court in. Municipal Corporation of Delhi v. Ram Pratap Singh(1) is also not helpful to the appellant as in that case, the appointment was in fact made by the Commissioner white the dismissal was by the Deputy Commissioner.

In view of the foregoing discussion, the first two contentions raised on behalf of the appellant which are totally misconceived are repelled.

The third contention advanced by Mr. Ramamurthi that the impugned order of the appellant’s dismissal from service is vitiated ’as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order cannot also, be countenanced as. it overlooks the decisions of this Court, which fully cover the case.

Regarding the first limb of the contention, it may be stated that although it may be necessary for the disciplinary authority to record. its provisional conclusions in the notice calling upto the delinquent officer to, show cause why the. proposed punishment be not imposed upon him if it differs from the findings arrived at b,y the enquiring officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer. We are supported in this view by two decisions of this Court in State of Orissa v. Govinddas Panda(2)-and State of Assam & Anr. v. Bimal Kumar Pandit(3). In Govinddas Panda’s case (supra) where the notice issued under’ Article 311(2) did not expressly state. that the State Government had accepted the findings recorded by the enquiring officer against the Government servant in question and where even the nature of the punishment which was proposed to be inflicted on. him was not specifically and clearly indicated, this Court while reversing the conclusions of the Orissa, High Court that the notice was defective and so that provisions of Article 311(2) had been contravened observed:--

(1) C.A. No. 2249 (N.) of 1969 decided on 8-1-1976.

(2) C.A. No. 412 of 1958 decided on 10-12-1962.

(3) A.I.R. 1963 S.C. 1612.

"In the context, it must have been obvious to

the respondent that the punishment proposed

was removal from service and the respondent

was called upon to show cause against that

punishment. On a reasonable reading of the

notice, the only conclusion at which one can

arrive is that the appellant (the State)

accepted the recommendation of the

Administrative Tribunal and asked the

respondent to show cause against the proposed

punishment, namely, that of removal from

service."

In Bimal Kumar Pandit’s case (supra) while, reversing the judgment and order of the High Court allowing the writ petition filed by the respondent against his reduction in rank on the ground that the notice served upon him under Article 311 (2) of the Constitution was void as it did not expressly and specifically indicate either the conclusions of the dismissing authority or the findings recorded by the enquiring officer or that the dismissing authority accepted the findings of the enquiring officer and unless that course was adopted, it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusion both in regard to the guilt of the public officer and the punishment which his misconduct deserved the Constitution Bench of this Court observed:

"It may be conceded that it is desirable

that the dismissing authority should indicate

in the second notice its concurrence with the

conclusions of the enquiring officer before it

issues the said notice under Article 311(2).

But the question which calls for our decision

is it the dismissing authority does not

expressly say that it has accepted the

findings of the enquiring officer against the

delinquent officer, does that introduce such

an infirmity in the proceedings as to make the

final order invalid ? We are not prepared to

answer this question in the affirmative. It

seems to us that it would be plain to the

delinquent officer that the issuance of the

notice indicating the provisional conclusions

of the dismissing authority as to the

punishment that should be imposed on him

obviously and clearly implies that the

findings recorded against him by the enquiring

officer have been accepted by the dismissing

authority; otherwise there would be no sense

or purpose in issuing the notice under Article

311(2)."

At another place, the Court observed:

"We ought, however, to all that if, the

dismissing authority differs from the findings

recorded in the enquiry report, it is

necessary that its provisional conclusions in

that behalf should be specified in the second

notice. It may be that the report makes

findings in favour of the delinquent officer,

but the dismissing authority disagrees with

the said findings and proceeds to issue the

notice under Article 311 (2). In

such a case, it would obviously be necessary

that the dismissing authority should expressly

state that it differs from the findings

recorded in the enquiry report and then

indicate the nature of the action proposed to

be taken against the delinquent officer.

Without such an express statement in the

notice, it would be impossible to issue the

notice at all. There may also be cases in

which the enquiry report may make findings in

favour of the delinquent officer on some

issues and against him on other issues. That

is precisely what has happened in the present

case. If the dismissing authority accepts all

the said findings in their entirety, it is

another matter; but if the dismissing au-

thority accepts the findings recorded against

the delinquent officer and differs from some

or all of those recorded in his favour and

proceeds to specify the nature of the action

proposed to be taken on its own conclusions,

it would be necessary that the said

conclusions should be briefly indicated in the

notice. In this category of cases, the action

proposed to be taken would be based not only

on the findings recorded against the

delinquent officer in the enquiry report, but

also on the view of the dismissing authority

that the other charges not held proved by the

enquiring officer are according to the

dismissing authority, proved. In order to

give the delinquent officer a reasonable

opportunity to show cause under Art. 311(2),

it is essential that the conclusions

provisionally reached by the dismissing

authority must, in such cases, be specified in

the. notice. But where the dismissing

authority purports to proceed to issue the

notice against the delinquent officer after

accepting the enquiry report in its entirety,

it cannot be said that the dismissing

authority must say that it has so accepted the

report. As we have already indicated, it is

desirable that even in such. cases a statement

to that effect should be made. But we do

not think that the words in Art. 311 (2)

justify the view that the failure to make

such a statement amounts to. contravention of

Art. 311(2) ....... There is no doubt that

after the report is received, appropriate

authority must apply its mind to the report

and must provisionally decide whether the

findings recorded in the report should be

accepted or not. It is only if the findings

recorded in the report against the Government

servant are accepted by the appropriate

authority that it has to provisionally decide

what action should be taken against him. But

this does not mean that in every case, the

appropriate authority is under a

constitutional obligation to state in the

notice that it has accepted the adverse

findings recorded by the enquiring officer

before it indicates the nature of the action

proposed to be taken against the delinquent

officer."

In the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the aforesaid order passed by the Deputy Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer. Reading the order as a whole, it becomes crystal clear that the disciplinary authority held the charge drawn up against the appellant as proved.

The second limb of the third contention raised on behalf of the appellant which also overlooks the decisions of the Constitution Bench this Court does not commend itself to us. In this connection, we would like to make it clear that while it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non-speaking order simply because it is brief and not daborate. Every case, we think, has to be judged in the light of its own facts and circumstances. Reference in this connection may be made with advantage to a catena of decisions. In Bimal Kurnar Pandit’s case (supra) it was categorically laid down by the Constitution Bench of this Court that it was not a requirement of Article 311(2) that in every case, the punishing authority should in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted on him but also the reasons for coming to that conclusion. In that case, it was clarified that the view is not justified that the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delinquent Government servant. In State of Madras v. A.R. Srinivasan(1) the Constitution Bench this Court while repelling the contention advanced on behalf of the respondent that the State Government’s order compulsorily retiring him from service was bad as it did not give reasons for accepting the findings. of the enquiring tribunal and imposing the penalty of compulsory retirement observed as follows:--

"Mr. Setalvad for the respondent attempted to

argue that the impugned order gives no

reasons why the appellant accepted the

findings of the Tribunal. Disciplinary

proceedings taken against the respondent, says

Mr. Setalvad, are in the nature of quasi-

judicial proceedings and when the appellant

passed the impugned order against the

respondent, it was acting in a quasi-judicial

character. That being so, the appellant

should have indicated some reasons as to why

it accepted the findings of the Tribunal, and

since no reasons are given, the order should

be struck down on that ground alone.

We are not prepared to accept the

argument. In dealing with the question as to

whether it is obligatory on the

(1) A.I.R. 1966 S.C. 1827=(1966) 2 S.C.W.R.

524.

State Government to give reasons in support

of the order imposing a penalty on the

delinquent officer, we cannot overlook the

fact that the disciplinary proceedings

against such a delinquent officer begin with

an enquiry conducted by an officer appointed

in that behalf. That enquiry is followed by a

report and the Public Service Commission is

consulted where necessary. Having regard to

the material which is thus made available to

the State Government and which is made

available to the delinquent officer also, it

seems to us somewhat unreasonable to suggest

that the State Government must record its

reasons why it accepts the findings of the

Tribunal. It is conceivable that if the

State Government does not accept the findings

of the Tribunal which may be in favour of the

delinquent officer and proposes to impose a

penalty on the delinquent officer, it should

give reasons why it differs from the

conclusions of the Tribunal, though even in

such a case, it is not necessary that the

reasons should be detailed or elaborate. But

where the State Government agrees with the

findings of the Tribunal which are against the

delinquent officer, we do not think as a

matter of law, it could be said that the State

Government cannot impose the penalty against

the delinquent officer in accordance with the

findings of the Tribunal unless it gives

reasons to show why the said findings were

accepted by it. The proceedings are, no doubt,

quasi-judicial, but having regard to the

manner in which these enquiries are conducted,

we do not think an obligation can be imposed

on’ the State Government to record reasons in

every case." In Som Datt Datta v. Union of India & Ors. (1) while approving the English law and practice and overruling 1he contention advanced on behalf of the petitioner that the orders of the Chief of the Army Staff confirming the proceedings of the Court-Martial under section 164 of the Army Act and the order of the Central Government dismissing the appeal of the petitioner under section 165 of the Army Act were illegal and ultra vires as they did not give reasons in support Of the orders, the Constitution Bench of this Court summed up the legal position as follows :-

Apart from any requirement imposed by

the statute or statutory rule either

expressly or ’by necessary implication, there

is no legal obligation that the statutory

tribunal should give reasons for its decision.

There is also no general principle or any rule

of natural justice that a statutory tribunal

should always and in every case give reasons

in support of its decision.

In Madhya Pradesh Industries Ltd. v. Union of India & Ors.(2) this Court repelled the contention of counsel for the appellant that every order appealable under Article 1,36 of the Constitution must be a speak(1) [1969] S.C.R. 176. S.C.R. 466-A.I.R. 1966 S.C. 671. --1458SCI/76 ing order and the omission to give reasons for the decision is of itself a sufficient ground for quashing it and held that an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for rejection. While distinguishing the case of Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala(1) where the Central Government reversed the decision of the State Government without giving reasons for reversal, this Court pointed out that there was a vital difference between the order of reversal by the appellate authority and the order of affirmance by the revising authority and that if the revising authority rejects a revision application stating that there was no valid ground for interference with the order of the subordinate authority in such a case, it could not be held that the order was arbitrary or that there was no trial of the revision application. Subba Rao, J. (as he then was) speaking for himself in that case observed :-

"Ordinarily, the appellate or revisional

tribunal shall give its own reasons

succinctly; but in a case of affirmance where

the original tribunal gives adequate reasons,

the appellate tribunal may dismiss the appeal

or the revision, as the case may be, agreeing

with those reasons."

In Judicial Review of Administrative

Action (Second Edition), Prof. S.A. de Smith

has observed at page 418 as follows :-

"If the record is incomplete (e.g.

because reasons or findings of material fact

are omitted), has the court power to order

the tribunal to complete its record? It is

common ground that the court has no inherent

power to compel a tribunal to give reasons for

its decisions ........ If, of course, a

tribunal is required by statute to declare its

reasons or its findings on the material facts,

an order of mandamus may be obtained to compel

the tribunal to perform its legal duty ....

Where a tribunal that is not expressly obliged

to give reasons for its decisions chooses not

to give any reasons for a particular decision,

it is not permissible to infer on that ground

alone that its reasons for that decision were

bad in law. Even if it gives reasons, which

are ex facie insufficient in law to support

its decision, the court will not necessarily

assume that these are the sole reasons on

which the tribunal has based its decision.

(See Cf. Davies v. Price [1958] 1 Y.L.R. 434

at 440 and R.v. Minister of Housing and Local

Government, ex. P. Chichester R.D.C. [1960] 1

W.L.R. 587)."

Before concluding the discussion in regard to the third contention, we may point out that none of the decisions viz. Sardar Govindrao & Ors. v. State of Madhya Pradesh(2) Bhagat Raja v. The Union of India & Ors. (3) Travancore Rayon Ltd. v. Union of India(4) Mahabir Prasad Santosh Kumar v. State of U.P. & Ors.(5)Rangnath v. Daulat Rao & Ors. (6) and Siemens Engineering & Manufacturing Company of India Ltd. v. The Union of India(7) on which Mr. Ramamurthi has

(1) [1962] 2 S.C.R. 339. (2) [1965] 1 S.C.R.678.

(3) [1967] 3 S.C.R. 302. (4) [1970] 3 S.C.R. 40.

(5) [1971] 1 S.C.R. 201. (6) [1975] 1 S.C.C. 686.

(7) [1976] 2 S.C.C 981. heavily leaned has anything to do with disciplinary proceedings. At such, they have little bearing on the point with which we are at present concerned.

We would also like to point out that the observations in Travancore Rayon Ltd. v. Union of India (supra) that in Bhagat Raja v. The Union of India & Ors. (supra)., this Court in effect overruled the judgment of the majority in Madhya Pradesh Industries Ltd. v. Union of India & Ors. (supra) seem to have crept therein through some oversight. A careful perusal of the decision in Bhagat Raja v. The Union of India & Ors. (supra) would show that this Court did not make any observations therein which can be interpreted as overruling the. majority judgment in Madhya Pradesh Industries Ltd. v. Union of1 India & Ors. (supra). It is also worthy of note that in Bhagat Raja’s case (Supra), the amendment of rule 55 of the Mineral Concession Rules,1960 introduced in July, 1965 laid down a special procedure in regard to revisions. It required the Central Government to send copies of the application for revision to all the impleaded parties including the person to whom a lease had been granted calling upon them to make such comments as they might like to make within three months from the date of the issue of the communication and on receipt of the comments from any party to send copies thereof to the other parties calling upon them to make further comments as they might like to make within one month from the date of the issue of the communication. It also provided that the revision application, the communications containing comments and counter comments referred to above would constitute the record of the case. Thus under the amended rule, the party whose application was rejected got an ample opportunity of showing to the Central Government by reference not only to the record which was before the State Government but by reference to the fresh material as well that the State Government was misled in its consideration of the matter or that its decision was based on irrelevant considerations. This is evident from the following observations made in Bhagat Raja v. The Union of India & Ors. (supra):

"The old rule 55 was replaced by a new

rule which came into force on 19th July, 1965.

Whereas the old rule directed the Central

Government to consider comments on the

petition of review by the State Government or

other authority only, the new rule is aimed at

calling upon all the parties including the

State Government to make their comments in the

matter and the parties are given the right to

make further comments on those made by the

other or others. In effect, the parties are

given a right to bring forth material which

was not before the State Government. It is

easy to see that an unsuccessful party may

challenge the gram of a lease in favour of

another by pointing out defects or demerits

which did not come to the knowledge of the

State Government. The order in this case does

not even purport to’ show that the comments

and counter comments which were before the

Central Government in this case, had been

considered."

The above observations leave no manner of doubt that it was in view of the amendment in rule 55 of the Mineral Concession Rules, 1960 that the decision in Bhagat Raja v. The Union of India & Ors. (supra) was different from Madhya Pradesh Industries Ltd. v. Union of India & Ors. (supra) which had been rendered on the unamended rule 55 of the said Rules. In our opinion, therefore, the observations made in Madhya Pradesh Industries Ltd. v. Union of India & Ors. (supra) contain a correct statement of law.

In view of the foregoing, we do not find any merit in the third contention raised on behalf of the appellant.

This brings us to the last contention raised by Mr. Ramamurthi that the writ petition should not have been dismissed by the High Court in limine in view of the fact that it contained allegations of mala fides against the respondents. We are unable to accept this contention. It has been held time and again by this Court that the High Court would be justified in refusing to carry on investigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the writ petition. Keeping in view the well established rule that the burden of establishing mala fides lies very heavily on the person who alleges it and considering all the allegations made by the appellant in regard thereto, we do not think that they could be considered as sufficient to establish malus animus. The High Court was, therefore, not wrong in dismissing the petition in limine on seeing that a prima facie case requiring investigation had not been made out.

In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs. P.B.R. Appeal dismissed.