PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
S.N. NIZAMUDDIN ALl KHAN
DATE OF JUDGMENT05/08/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SINGH, JASWANT
CITATION:
1976 AIR 1964 1977 SCR (1) 128
1976 SCC (4) 745
ACT
Constitution of India, Article 311(2), violation
of--Penalty of compulsory retirement--Hyderabad Civil Serv-
ice (Classification, Control and Appeal) Rules---Reasona-
ble opportunity of defence at the stages of enquiry and
punishment--Consideration of extraneous matters in recommen-
dation of penally by High Court Chief Justice, whether
valid.
HEADNOTE
The respondent, Munsiff Magistrate, was found guilty in
an enquiry held by a High Court Judge, regarding serious
allegations against him. The Chief Justice of the High
Court also examined the evidence on his own, and confirming
the findings of the Enquiry Officer, recommended compulsory
retirement. Both reports were sent to the Government, and a
show-cause notice with the Enquiry Officer’s report was
issued to the respondent. Later, with the Public Service
Commission’s approval, the respondent was compulsorily
retired. His appeal to the Rajpramukh was dismissed, but
the City Civil Court and High Court decided in his favour.
The question before this Court was, whether the Chief Jus-
tice’s report was in accordance with the Hyderabad Civil
Service (Classification, Control and Appeal) Rules and the
High Court Act, and whether the failure to communicate it to
the respondent, amounted to a denial of reasonable opportu-
nity for defending himself at the stages of enquiry and
punishment.
Dismissing the appeal, the Court,
HELD: (1) The report of the Chief Justice of the pro-
posed punishment of compulsory retirement took into consid-
eration extraneous matters, and he was not authorised to do
so under the Rules, or the High Court Act. The report was
based, to a large extent, oh secret information which the
respondent had no opportunity of meeting. [132 D-E]
(2) The Government accepted the Chief Justice’s report
and took action on it. The report was not given to the
respondent. He was denied the opportunity of being heard at
that stage of enquiry. The respondent was denied a reasona-
ble opportunity of making a representation against the
penalty proposed by the Government. [132 E-F]
JUDGMENT
CIVIL APPELLATE JURISDICTION:CIVIL Appeal No. 1863 of
1968.
P. Ram Reddy, K. Jayaram and A. V. V. Nair, for the appel-
lant.
T.C. Raghavan, B. Parthasarathi and S. Shaukat Hussain,
for the respondent.
The Judgment of the Court was delivered by
RAY, C.J. This appeal by special leave is against the
judgment dated 3 April, 1967 of the High Court of Andhra
Pradesh.
The respondent filed this suit to set aside the order of
compulsory retirement on the ground that it was illegal,
wrongful, ultra vires and inoperative. The respondent al-
leged that the departmental enquiry was initiated by the
Chief Justice and not by the Administrative Bench of the
High Court which alone could do so under the Hyderabad High
Court Act. The respondent alleged that he was not given a
reasonable opportunity inasmuch as the report of the Enquiry
Officer was submitted
129
to the Chief Justice and not to the Administrative Bench and
that the Public Service Commission was not consulted. The
respondent further alleged that the Chief Justice added his
own findings to the report of the Enquiry Officer while
sending it to the Government and in doing so he took extra-
neous matters which had not been the subject matter of the
enquiry. The respondent alleged that he had no opportunity
to defend himself with reference to the findings of the
Chief Justice.
The High Court held that the report of the High Court
took into consideration extraneous matters and thus deprived
the respondent from giving a reasonable opportunity. The
High Court, therefore, held that Article 311(2) was violat-
ed. The High Court confirmed the decree of the trial Court
but modified the order to the extent that the respondent was
entitled to arrears of salary.
The Hyderabad Civil Services (Classification, Control
and Appeal) Rules referred to as the Rules contain in Part
III the following relevant provisions. Rule 9(b) states
that compulsory retirement before completion of 30 years or
25 years of qualifying service is one of the penalties.
Rule 12 provides that the Government may impose any of the
penalties mentioned in items (ii) to (viii) of Rule 9 on
members of the State Services after consultation with the
Public Service Commission where such consultation is neces-
sary. Rule 17(b) provides that in every case where it is
proposed to impose on a member of a Service any of the
penalties mentioned in items (iv), (vi), (vii) and (viii) of
rule 9. the grounds shall be communicated. The.charges are
to be communicated together with the statement of the alle-
gations on which each charge is based. A written statement
is required to be filed by the officer and an enquiry shall
be held. After the enquiry has been completed, the person
charged shall be entitled to put in, if he so desires. any
further written statement in his defence. After the enquiry
has been completed and after the authority competent to
impose the penalty mentioned in that clause has arrived at
provisional conclusions, the person charged shall be sup-
plied with the copy of the report of the enquiring authority
and be called upon to show cause within a reasonable time
against the particular penalty proposed to be inflicted.
Rule 14 states that after completing the oral enquiry,
if any, and giving the person charged an opportunity of
making a written statement, the inquiry officer should
record his, findings on each charge, the reason for such
findings and recommendations as regards the penalty on each
of the charges. Rule 16 states that on receipt of the report
of the enquiry officer the punishing authority should arrive
at a provisional conclusion in regard to the penalty to be
imposed and the person charged shall be supplied with a copy
of the report of the enquiry officer and be called upon to
show cause within a reasonable time why the particular
penalty or penalties should not be inflicted upon him. Any
representation submitted by the person charged in this
behalf shall be duly taken into consideration by the punish-
ing authority before final orders are passed.
The Rules further provide that in a case in which it is
necessary to consult the Public Service Commission according
to the provisions of
130
the Public Service Commission Regulations, the complete
papers of the case should be sent to the Commission for
their advice as regards the action to be taken without any
observation on the merits of the case. On receipt of the
advice of the Commission, if it be found that the Commission
have agreed with the provisional conclusion reached by the
punishing authority as regards the penalty to be inflicted,
final orders should be issued to the person Charged. If,
however, it be found that there has been disagreement on
this point and the punishing authority has no objection to
accept the advice of the Commission, final orders should be
issued to the person charged. If, however, the punishing
authority does not consider it feasible to accept the advice
of the Commission another reference on this point should be
made to the Commission and if they still adhere to their
views the case should be submitted through the Services
Branch of the General Administrative Department for the
orders of the Chief Minister showing reason for the proposal
and such orders as may be passed by the Chief Minister shall
be communicated to the person charged.
Uuder the Hyderabad High Court Act 3 of 1337 fasli
corresponding to the year 1937 section 12 provides for the
Administrative Bench consisting of at least two Judges
appointed by the Chief Justice. The Chief Justice may
constitute more than one Administrative Bench. Every ques-
tion before the Administrative Bench shall be decided either
by a consensus or by majority of opinion. But where a
disagreement does not produce a majority of opinion, action
shall be taken in accordance with the view with which the
Chief Justice might concur. If the Chief Justice does not
join the Bench and there is no majority of opinion all
opinions shall be placed before the Chief Justice and the
opinion concurred by him shall be given effect to.
Section 13 of the Hyderabad High Court Act deals with powers
of Administrative Bench of the High CoUrt. The Administra-
tive Bench shall have power inter alia to sanction, suspen-
sion, fines, dismissal.
The respondent was appointed as Munsiff Magistrate in
the year 1948. Sometime in 1951 and 1952 a preliminary
enquiry by the District and Sessions Judge was made. The
Administrative Bench consisting of the Chief Justice of the
High Court and another learned Judge deputed Justice Manohar
Prasad to conduct the enquiry in accordance with the Rules.
On 16 April, 1953 the respondent was suspended. A charge-
sheet was served on the respondent along with the statements
of four persons. On the following charges it was proposed
to remove the respondent from service namely (1) Communal
bias in deciding case, (2) disregarding judicial orders, (3)
suggesting names of Muslim lawyers to Muslim parties and (4)
inefficiency.
On 3 August, 1953 the Enquiry Officer Justice Manohar
Prasad submitted a report finding the respondent guilty of
charges numbered 1 and 3 and he recommended a warning. On
25 August, 1953 the report of the Chief Justice on his own
examination of the evidence confirmed the findings of the
enquiry officer and he recommended compulsory retirement.
On 5 September, 1953 the Administrative Bench the High Court
sent both the reports to the Government.
131
On 14 October, 1953 a show cause notice was issued from
the Government for compulsory retirement of the respondent.
The Government show cause notice enclosed the report of
Justice Manohar Prasad. The respondent answered the find-
ings of the enquiry report and also protested against the
report of the Chief Justice saying that the Chief Justice
had no authority to add his own remarks and his findings
were arrived at without hearing the respondent.
On 22 December, 1953 the matter was referred to the
Public Service Commission. On 27 February, 1954 the Public
Service Commission approved compulsory retirement. On 8
April, 1954 the respondent was compulsorily retired.
On 28 June, 1954 the respondent preferred an appeal to
the Rajpramukh. On 4 November, 1954 the Rajpramukh dis-
missed the appeal. In 1957 the respondent filed this suit.
The City Civil Court found that the respondent did not
have a chance to meet some of the allegations referred to by
the Chief Justice. The City Civil Court also found that the
report of the Chief Justice weighed with the Government.
The City Civil Court also found that the respondent had no
reasonable opportunity for defending himself against the
imposition of penalty of compulsory retirement.
The High Court held that the findings of the Chief
Justice were based to a considerable extent on material
which was not produced before the High Court. The High
Court also held that the Government had accepted the report
of the Chief Justice both with regard to the guilt and
punishment. The High Court held that since the report of
the Chief Justice formed an integral part of the enquiry,
the respondent was denied reasonable opportunity at both the
stages of enquiry and punishment and, therefore, the compul-
sory retirement was bad.
On behalf of the appellant it was contended that assum-
ing the report of the Chief Jusitce was taken into consider-
ation by the Government the findings of the Chief Justice
were based on evidence let in before the Enquiry Officer and
not any extraneous circumstances. It was also submitted
that it was open to the Government to accept or reject the
recommendation of the Chief Justice on the question of
punishment. The further submission was that the respondent
was given a reasonable opportunity at both the stages of the
enquiry and punishment, and, therefore, the order of compul-
sory retirement, is good.
In the alternative it was submitted on behalf of the
appellant that the Government of .its own came to the con-
clusion that compulsory retirement was the proper punish-
ment, and, therefore, the Government did not act on the
recommendation of the Chief Justice.
The report of the Chief Justice referred to the report
of the Enquiring Judge. The Enquiring Judge held that
charges relating to the communal bias of the respondent and
charges relating to unbecoming conduct of the respondent in
relation to engagement of counsel in pending cases were
proved. The Chief Justice in his report said that he was
flooded with complaints from lawyers, litigants and from all
sides
132
which emanated not only from the members of the Bar but also
from responsible officers. The Chief Justice said in his
report that on consideration of all the facts he had not the
slightest doubt that in this case leniency would be mis-
placed and in the interest of purity of services such prac-
tices, when proved, as they have been proved, must be dealt
with firmly. He, therefore, expressed the opinion that the
respondent should be compulsorily retired and he concluded
with the observation "let the Government be moved according-
ly".
Under the Rules the Government has power under rule 12
to impose, inter alia, the penalty of compulsory retirement
after consultation with the Public Service Commission where
such consultation is necessary. The Chief Justice recom-
mended compulsory retirement. He took note of complaints
received by him from lawyers and other persons. The Chief
Justice took note of insubordination which charge was re-
jected by the Enquiry Officer. Rule 17(e) of the Rules
requires that all orders of punishment shall state the
grounds on which they are based and shall be communicated to
the person against whom they are passed. The report of the
Chief Justice was not given to the respondent. The High
Court Act did not authorise the Chief Justice to send a
supplementary report with his own findings. The respondent
had no reasonable opportunity of making any representation
against the report of the Chief Justice of the proposed
punishment of compulsory retirement.
The High Court rightly held that the report of the Chief
Justice took into consideration extraneous matters, and he
was not authorised to do so under the Rules of the High
Court Act. The report submitted by the Chief Justice is not
the report of the Administrative Bench. The High Court
rightly held that the Government accepted the Chief Jus-
tice’s report and took action on it. The High Court was
right in holding that the report of the Chief Justice was
based to a large extent on secret information which the
respondent had no opportunity of meeting. The respondent
was denied the opportunity of being heard at that stage of
enquiry. The respondent was denied a reasonable opportunity
of making a representation against the penalty proposed by
the Government.
For these reasons the appeal is dismissed. The respond-
ent is entitled to costs.
M.R. Appeal
dismissed
133