SECRETARY, CENTRAL BOARD OF EXCISE AND CUSTOMS & ORS.versusK.S. MAHALINGAM

    742

A
                  SECRETARY, CENTRAL BOARD OF EXCISE
                          AND CIJS'IDtS & OBS.
                                   v.
                           LS. MAllALIHGAM

                            APRIL 23, 1986
B
                  [A.P. SEN &MURARI MOHAN DUTr, JJ.]
                                                                    {-
          Constitution of India, Article 311(2) and Central Civil
    Services (Classification, Control and Appeal) Rules, 1965,
    Rule 15(4) - Punishment - Imposition of - Second opportunity
    to show cause - Whether necessary.
c
            A charge-sheet was served on the respondent, a Govern-
    111ent servant, containing two articles of charges alleging
    misconduct involving lack of integrity and lack of devotion to
    duty and conduct unbecOlling of a Government servant. In his
D
    defence the respondent denied the charges. The Inquiry Officer
    held that both the articles of charges were established. The
    Disciplinary Authority accepted the report of the Inquiry
    Officer and by his order dated May 15, 1980 dismissed the
    respondent from service. Against the dismissal order, the
    respondent preferred an appeal. The Appellate Authority by its ,i.
    order dated July 8, 1981 upheld the finding of the
E
    Disciplinary Authority. It, however, altered the penalty of
    dismissal to one of compulsory retirement of the respondent
    f ro11 service.

          The respondent filed a writ petition in the High Court.   +
F
    The Single Judge quashed the order of dismissal and directed
                                                                   1
    reinstatement of the respondent in service holding that there ,
    was no evidence to substantiate the charges and that as no
    opportunity was given to the respondent to show cause against
    the punishment before the same was imposed the order of
    dismissal was vitiated.
G
          In the appeal preferred by the Department, the Division
    Bench agreed with the Single Judge that the respondent was
    deprived of an opportunity to show cause against the ~
    punishment imposed on him by the Disciplinary Authority,
    modified the order of the Single Judge and directed the
H
             EXCISE AND CUSTOMS BOARD v. K.S. MAHALINGAM      743


~ Disciplinary      Authority to proceed further with the             A
    disciplinary proceedings against the respondent from the stage
    of giving a fresh notice to show cause against the punishment
    to be proposed.

          Allowing the appeal by the Department,
                                                                      B
          HELD : (1) Both the Single Judge and the Di vision Bench
-).,were not justified in holding that the order of dismissal was
    vitiated as the respondent was not given a second opportunity
    to make a representation against the punishment of dismissal
    before the same was imposed on him. (747 F-G]

                                                                      c


~
          (2) The judgment of the Division Bench is set aside. As
    the Division Bench did not consider the judgment of the Single
    Judge on merits, the case is remanded to the Division Bench
    for disposal of the appeal on merits after giving the parties
    an opportunity of being heard, (747 H; 748 A-Bl

          (3) The Constitution (Forty-second Amendment) Act, 1976     D
    has deleted from clause (2) of Article 311 of the Constitution
   the requirement of a reasonable opportunity of making
   representation on the proposed penalty and, further, it has
 ~ been expressly provided in the first proviso to clause (2)
   that "it shall not be necessary to give such person any
   opportunity of making representation on the penalty proposed".     E
   After the amendment, the requirement of clause (2) will be
   satisfied by holding an inquiry in which the Government
   servant has been informed of the charges against him and given
 + a reasonable opportunity of being heard, (746 C-E]

           In the instant case, such an opportunity has been given    F
     to the respondent. Undisputedly after the order of dismissal
     was passed, the respondent was supplied with a copy of the
     report of the Inquiry Officer which enabled him r.o pref er an
     appeal to the Appellate Authority against the order of
     dismissal. (746 E-F]
                                                                      G
         (4) In view of the amendment of Article 311(2) of the
 ~ Constitution,  Rule 15(4) of the Central Civil Services
   (Classification, Control and Appeal) Rules, 1965 was amended,
   which, inter alia, provided that it would not be necessary to
   give the Government servant any opportunity of making
                                                                          H
     744                   SUPREME COURT REPORTS          [1986] 2 S.C.R.

A
    representation on the penalty proposed to be imposed. ·.
    Therefore, the respondent cannot claim a second opportunity to >-
    show csuse against the punishllent either under Article 311(2)
    of the Constitution or under Rule 15(4) of the Central Civil
    Services (Classificstion, Control and Appeal), Rules, 1965.
    [746 G; 747 D-E]
B
          IJn1oa. of India v. Tulai l a Patel, [1985] 3 s.c.c. 389,
    relied upon.                                                    .{ -

            CIVIL APPELLATE JURISDICTION   Civil Appeal No. 1279 of
    1986.
c
          From the Judgment and Order dated 30th September, 1985
    of the Madras High Court in W.A. No. 809 of 1985,
                                                                            j
          Anand Prakash, C.V. Subba Rao,           R.D.    Agarwala   and ,
    T.V.S.N. Chari for the Appellants.
D
            K.S. Mahslingam in person.

            The Judgment of the Court was delivered by

          H.K. DO'lT, J. The Special Leave Petition filed by the ;.
E   appellants was heard upon notice to the respondent, who
    appeared. before us in person. As arguments have been made by
    both sides at the hearing of the Special Leave Petition, we
    proceed .to dispose of the appeal after granting such leave.

          The only question thst is involved in this appeal                 +
F   whether it is necessary to give a second show cause notice
    against the punishment .before the same was imposed on the J
    respondent and to furnish him with a copy of the report of the/
    Inquiry Officer in view of the amendment of clause (2) of·
    Article 311 of the Constitution of India by the Constitution
    (Forty-Second Amendment) Act, 1976 and the consequential
G   chsnge brought about in Rule 15(4) of the Central Civil
    Services (Classification, Control and Appeal) Rules, 1965.
    Indeed, the notice of the Special Leave Petition that was
    served on the respondent was confined only to the said -t
    question.

H         The respondent, K.S. Mahalingam, was the Examiner of
    Madras Customs House. While he was acting in that capacity, a
      EXCISE AND CUSTOMS BOARD v. K,S, MAHALINGAM [DUTT, J,]   745

                                                                      A
-..' charge sheet was served on him containing two articles of
   ' charge alleging misconduct involving lack of integrity and
     lack of devotion to duty and conduct unbecoming of a
     Government servant. The respondent submitted his defence,
     inter alia, denying the charges. The Inquiry Officer held that
     both the articles of charge were established. The Disciplinary
                                                                      B
     Authority, namely, the Collector of Customs, Madras, examined
     the report of the Inquiry Officer and by his order dated May
- ~ 15, 1980 came to the finding that both the charges framed
     against the respondent were proved. In view of the said
     finding, the Collector of Customs by his said order dismissed
     the respondent from service. Being aggrieved by the order of
     dismissal, the respondent preferred an appeal against the same
                                                                      c
     to the Chief Vigilance Officer, Central Board of Excise and
     Customs. The Appellate Authority elaborately considered the
     facts and circumstances of the case and by its order dated
     July 8, 1981 upheld the finding of the Disciplinary Authority
     that the charges against the respondent were proved. The
     Appellate Authority, however, altered the penalty of dismissal
                                                                      D
     to one of compulsory retirement of the respondent from
     service.

            The respondent filed a Writ Petition before a learned
. ~ Single Judge of the Madras High Court. The learned Judge, upon
     a review of the materials on record, came t;o the conclusion
                                                                      E
     that there was no evidence of lack of integrity or lack of
     devotion to duty or conduct unbecoming of a Government servant
     as alleged in the charges levelled against the respondent.
     Further, the learned Judge took the view that as no
+    opportunity was given to the respondent to show cause against
.. the punishment before the same was imposed by the ·Disciplinary
                                                                      F
  '\ Authority and as no copy of the Inquiry Of fleer' s report was
     supplied to him, the order of dismissal was vitiated. Accord-
     ingly, the learned Judge by his order dated September 7, 1985
     quashed the order of dismissal and directed reinstatement of
     the respondent in service.
                                                                      G
        The appellants preferred an appeal before a Division
  Bench of the High Court. The Division Bench by its judgment
~ dated September 13, 1985 agreed with the learned Single Judge
  that the respondent was deprived of an opportunity to show
  cause against the punishment imposed on him by the
  Disciplinary Authority. In that view of the matter, the
                                                                      H
    746                SUPREME COURT REPORTS        [1986] 2 S.C.R.

A
    Division Bench did not consider the findings of the learned )-
    Judge on merits. The Division Bench modified the order of the
    learned Single Judge by setting aside the direction for
    reinstatement of the respondent in service and permitting the
    Disciplinary Authority to proceed further with the
    disciplinary proceedings against the respondent from the stage
    of giving a fresh notice to show cause against the punishment
B
    to be proposed by him. Hence this appeal by the appellants.

           It thus appears that the Division Bench as also the        '*-
    learned Single Judge of the High Court took the view that the
    order of dismissal was vitiated as the Disciplinary Authority
    failed to give to the respondent an opportunity to show cause .
c
    against the punishment of dismissal before the same was~
    imposed on him. Both the Division bench and the learned Single
    Judge of the High Court have completely overlooked the fact
    that the Constitution (Forty-Second Amendment) Act, 1976 has
    deleted from clause (2) of Article 311 of the Constitution the
    requirement   of   a    reasonable opportunity of making
D
    representation on the proposed penalty and, further, it has
    been expressly provided inter alia in the first proviso to
    clause (2) that "it shall not be-necessary to give such person
    any opportunity of making representation on the penalty
    proposed". After the amendment, the requirement of clause (2) ..1..
E
    will be satisfied by holding an inquiry in which the
    Government servant has been informed of the charges against
    him and given a reasonable opportunity of being heard. In the
    instant case, such an opportunity has been given to the
    respondent. It is also not disputed that after the order of
    dismissal was passed, the respondent was supplied with a copy     t
    of the report of the Inquiry Officer which enabled him to .
F
    prefer an appeal to the Appellate Authority against the order,J
    of dismissal.

          In this connection, it may be noticed that in view of
    the said amendment of Article 311(2) of the Constitution, Rule
G
    15(4) of the Central Civil Services (Classification, Control
    and Appeal) Rules, 1965 was amended. Rule 15(4) as amended
    provides as follows :

               "15(4). If the disciplinary authority having regard
                                                                      -+
               to its findings on all or any of the articles of
               charge and on the basis of the evidence adduced
H
         EXCISE AND CUSTOMS BOARD v. K.S. MAHALINGAM [DUTT, J.]   747

                                                                           A
                 during the inquiry is of the opinion that any of
                 the penalties specified in clause (v) to (ix) of
                 Rule 11 should be imposed on the Government
                 servant, it shall make an order imposing such
                 penalty and it shall not be necessary to give the
                 Government servant any opportunity of making              B
                  representation on the penalty proposed to be
                  imposed :

                 Provided that in every case where it is necessary
                 to consult the Commission, the record of the
                 inquiry shall be forwarded by the disciplinary
                 authority to the Commission for its advice and such       c
                 advice shall be taken into consideration before
                 making an order imposing any such penalty on the
                 Government servant."



'       Clause (ix) of Rule 11 referred to in Rule 15(4) is the
        penalty of dismissal.

            It is, therefore, clear that the respondent cannot claim
       a second opportunity to show cause against the punishment
                                                                               D



       either under Article 311(2) of the Constitution or tinder Rule
    j_ 15(4) of the Central Civil Services (Classification, Control
       and Appeal) Rules, 1965.                                                E

             The question was also considered by a f ive--Judge Bench of
        this Court in Union of India v. 'Iu.lsi R8ll Patel, [1985] 3
        S.C.C. 398. In that case, it has been observed per majority


    t   that the only right to make a representation on the proposed
        penalty which was to be found in clause (2) of Article 311 of
      \ the Constitution prior to the amendment having been taken, by
         the Constitution (Forty-Second Amendment) Act, there is no
                                                                               F


        provision of law under which a Government servant can claim
         this right. In our view, therefore, both the learned Single
         Judge and the Divis ion Bench of the High Court were not
         justified in holding that the order of dismissal was vitiated         G
         as the respondent was not given a second opportunity to make
         representation against the punishment of dismissal before the
    ,,. sama was imposed on him.

              In the circumstances, we set aside the judgment of the
         Division Bench of the High Court but, as in disposing the             H
    748                SUPREME COURT REPORTS       [1986) 2 S.C.R.


A   appeal the Division Bench has not considered the judgment of
    the learned Single Judge on merits of the case, we send the 'r-
    case back on remand to the Division Bench for the disposal of
    the appeal on merits after giving the parties an opportunity
    of being heard.

         This a'ppeal is allowed, There will, however, be no order
B   as to costs.



    A.,P.J,                                       Appeal allowed.