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TMI Blog1962 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. The Tribunal held an enquiry in the presence of the respondent on two charges (1) relating to five specific heads charging the respondent with having received illegal gratification and (2) relating to possession of means disproportionate to his income as a Sub-Registrar. The Tribunal held that there was reliable evidence to support four out of the five heads in the first charge 'of corruption' and also the charge relating to possession of means disproportionate to the income and recommended that the respondent be dismissed from service. The finding of theTribunal was tentatively approved by the Governor of Orissa and the respondent was called upon to show cause why he should not be dismissed from service as recommended. The respondent made a detailed submission in rejoinder and contended, inter alia, that the Tribunal held the enquiry in a manner contrary to rules of natural justice. After consulting the Public Service Commission the Governor of Orissa by order dated September 26, 1957, directed that the respondent be dismissed from service. The respondent then applied to the High Court of Orissa by petition under Arts. 226 and 227 of the Constitution. inter alia, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants : (i) the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 (called the Tribunal Rules) and (ii) the Civil Services (Classification, Control and Appeal) Rules, 1930 with the subsidiary rules framed thereunder such as the Bihar and Orisa Subordinate Service Discipline and Appeal Rules, 1935 (collectively called the Classification Rules), and these two sets of rules provided for different punishments and justified commencement of proceedings for different reasons, and whereas there was a right of appeal against the order of a departmental head imposing punishment, under the Classification Rules there was no. right of appeal. against the order of the Governor, imposing punishment, under the Tribunal Rules. The High Court observed "'the main difference between the two sets of rules arises from (1) the nature of the punishment proposed, and (2) the right of appeal. Under the Tribunal Rules the findings of the Tribunal including the proposed punishment are submitted to Government are in the nature of a recommendation which the Government may or may not accept. But the Government are bound to consult the Public Service Commission before they pass final orders. Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic servant concerned. Against the order of the High Court, an appeal was filed to this Court. In this Court counsel for the State of Orissa in that appeal made no attempt to challenge the correctness of the decision of the High Court, on the question of discrimination. The Tribunal Rules and the Classification Rules were not even included in the Books prepared for the use of this Court at the hearing. The only argument in support of the appeal advanced by counsel for the State was that the Classification Rules, were not in operation when enquiry was directed against the delinquent public servant and the only rules under which the enquiry could be directed were the Tribunal Rules and therefore by directing an enquiry against the delinquent public servant the guarantee of the equal protection clause of the Constitution was not violated. This Court held that if two sets of rules were simultaneously in operation at the material time, and by order of the Governor, enquiry was directed against the respondent under the Tribunal Rules which were "more drastic" and "Prejudicial to the interests of the public servant", a clear case of discrimination arose, and the order directing the enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riting, within the time to be specified by the Tribunal to offer his explanation in respect of the charges. Rule 8 provides that after completing its proceedings the Tribunal shall make a record of the case in which it shall state the charges, the explanation and its own findings, and it shall, where satisfied, that punishment be imposed, also formulate its recommendations about the punishment. Rule 9 provides that the Governor may, after considering the recommendations of the Tribunal, pass such order of punishment as he may deem appropriate. By el. (3) of Rule 9 an appeal against the order of the Governor is expressly prohibited. By el. (iii) of Rule 1. of the, Bihar and Orissa Subordinate Services Discipline & Appeal Rules, 1935 it is provided that the Rules shall apply to all members of Subordinate Services under the administrative control of the Government of Bihar, and Orissa, except those for whose appointments and conditions of employment special provision was made by or under any-law for the time being in force. By Rule 2 the penalties specified in the order may be imposed "for good and sufficient reasons". The procedure to be followed before an order of dismissal, removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is difficulty in observing the requirements of the rule and those requirements can be waived without injustice to the person charged. It is manifest that whereas detailed provisions are made in the Tribunal Rules as to the grounds on which an enquiry may be directed against a public servant for misconduct in the discharge of official duties, failure to discharge duties properly, general inefficiency or personal immorality, under the Classification Rules for "good and sufficient reasons' penalties may be imposed. The expression used in the Classification Rules is somewhat vague, but whatever other ground it may include, it does in our judgment include charges described in Rule 4 of the Tribunal Rules. The procedure to be followed in the enquiry under the Tribunal Rules is not described in any detail. But it is clearly indicated, that the public servant must be given a summary of the charges against him and he must be given an opportunity to submit his explanation orally or in writing, in respect of the charges, and that the Tribunal must in holding the enquiry be guided by rules of natural justice and equity, in the matter of procedure and evidence. The procedure prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Classification, Control and Appeal) Rules. This Court held that the procedure under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules was described in terms elastic, but the procedure under the Public Servants (Inquiries) Act, 1850 not being substantially different, an enquiry directed under the latter procedure and not under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules did not result in any discrimination leading to the invalidation of proceedings started against the public servant under the Public Servants (Inquiries) Act, 1850. It was observed in that case that in the absence of proof of any prejudice to the public servant concerned, mere adoption of one procedure in preference to another permissible procedure will not justify an inference of unlawful discrimination. Under the Classification Rules there is a right of appeal from an order imposing a penalty passed by a departmental head to the latter's superior whereas there is no such right of appeal against the order passed by the Governor imposing penalty upon a public servant. But this also cannot be regarded as a ground sustaining a plea of unlawful discrimination. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practised and he was deprived of the guarantee of equal protection of laws. It was held that even after the commencement of the Constitution, continuation of the enquiry against the delinquent public servant under the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 did not result in any unlawful discrimination infringing the protection of Art. 14 of the Constitution. Under the Police Regulation an appeal did lie from a subordinate police authority to a superior authority whereas no appeal lay from the order passed by the Governor accepting the recommendations of Tribunal. In considering the effect of the decision in State of Orissa v. Dhirendranath Das(1) on which reliance was placed on behalf of the appellant in that case, it was observed that the case was not an authority for the proposition that where out of the two sets of rules in force it is open to the authorities to resort to one for holding an enquiry against a public servant charged with misdemeanor and if one of such set of rules does not provide for a right of appeal against an order passed against the public servant and the other set provides for a right of appeal, unlawful discrimination results: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d calling upon the delinquent public servant to submit Is explanation are substantially the same under Regulation 490 of the Police Regulations and r. 8 of the Tribunal Rules. It is urged that under the Tribunal Rules, there is a departure in respect of important matters from the Police Regulations which render the Tribunal Rules prejudicial to the person against whom enquiry is held under those rules. Firstly, it is submitted that there is. no. right of appeal under the Tribunal Rules as is given under the Police Regulations; secondly, that the Governor is bound to act according to the recommendations of the Tribunal and thirdly, that under the Tribunal Rules, even if the complexity of a case under enquiry justifies engagement of counsel to assist the person charged, assistance by counsel may not be permitted at the enquiry. These three variations, it is urged, make the Tribunal Rules not only discriminatory but prejudicial as well to the person against whom enquiry is held under these Rules. In our view, this plea cannot be sustained. The Tribunal Rules and the Police Regulations in so far as they deal with enquiries against police officers are promulgated under s. 7 of the Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice". It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court Directing the Government to reconsider the question of punishment cannot, for reasons we Will Presently set out,, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdictions declare the order of dismissal illegal but when the findings the Tribunal relating to the two of five a of the first charge and the second charge was found, not liable to be interfered. with by the ,High 'Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view , the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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