Government Of A.P. & Anr vs N. Ramanaiah

accordingly framed articles of charges as against the 3

respondent. The Government issued orders appointing a

Member of Commissionerate of Inquiries as the Enquiry

Officer to conduct departmental enquiry against the

respondent and others for the irregularities of large scale

misappropriation of bitumen belonging to Government

valued at about more than Rs. Forty Lakhs. The respondent

was placed under suspension by the order dated

13.08.1998. The Enquiry Officer after making an enquiry as

is required in law has submitted his report in which it is held

that the respondent who was incharge of stores has not

been able to properly account for missing quantities of

bitumen and accordingly held that the charges have been

duly proved against him.

4. The Government having examined the Enquiry Officer's

report and material available on record provisionally decided

to impose a major penalty of dismissal from service on the

respondent. A show cause notice under Rule 21(4) of the

Rules was served on the respondent requiring him to explain 4

as to why the major penalty of dismissal should not be

imposed on him. A copy of the Enquiry Officer's report has

been duly furnished to the delinquent to which he submitted

his written statement. The Government having examined

the written statement of defence found no merit in it. The

Andhra Pradesh Public Service Commission was consulted as

is required in law for its concurrence to impose the major

punishment of dismissal from service on the respondent to

which the Commission expressed its concurrence. The

Government in exercise of the powers conferred by clause

(x) of Rule 9 of the said Rules accordingly passed the orders

in G.O.Ms. No. 58 TR&B(S.I.3) dated 17.04.2001 inflicting

punishment of dismissal from service as against the

respondent.

5. The respondent challenged the said order of dismissal

before the A.P. Administrative Tribunal. The Tribunal vide

its judgment dated 28.06.2002; upheld the order of

dismissal passed by the Government against the respondent 5

and accordingly dismissed the appeal filed by him. Aggrieved

by the said order, the respondent filed Writ petition

No.2121/03 in the High Court of Andhra Pradesh. The High

Court vide its impugned judgment quashed the orders of the

A.P.Administrative Tribunal and accordingly set aside the

order of dismissal passed against the respondent. Hence

this appeal by the Government of Andhra Pradesh.

6. We have elaborately heard the learned senior counsel

appearing for both the parties and perused the impugned

order and the material available on record. The High Court

allowed the Writ Petition only on the ground that the

impugned order of dismissal has been passed by the State

Government imposing the major punishment of dismissal

from service depriving the employee of his right of appeal

provided under the said Rules framed under Article 309 of

the Constitution of India which regulates the service

conditions of the Government employees. The High Court

concluded that a valuable right of appeal has been denied to 6

the respondent delinquent since the appellate authority itself

has passed the impugned order of dismissal instead of

appointing authority prescribed under the Rules.

7. Shri R.Sundaravardhan, learned senior counsel

appearing for the appellant submitted that the impugned

order of the High Court suffers from incurable infirmities

requiring the interference of this court in exercise of its

jurisdiction under Article 136 of the Constitution of India. It

was submitted the order of dismissal passed by the

Government in exercise of its power under clause (x) of Rule

9 of the said Rules does not suffer from any infirmity. The

submission was the order passed by the Government does

not suffer from any jurisdictional error and the question of

depriving the respondent of his right to prefer an appeal

does not arise since there is no appeal provided against the

order passed by the Government. It was further submitted

that there is a right of review provided under the Rules to an 7

aggrieved employee which was not availed of by the

respondent.

8. Shri P.S. Narasimha, learned senior counsel appearing

for the respondent submitted that a public servant cannot be

deprived of his substantive right of appeal. The submission

was when an appeal is provided to the Government against

the order of the disciplinary authority and the Government

passes an order of punishment, the employee concerned is

deprived of the remedy of appeal which is substantive right

given to him under the Rules. It was submitted that the

issue really becomes relevant particularly where there is a

provision for appeal against the order of disciplinary

authority to the higher authority and where there is no

appeal provided against the order of higher authority. It was

submitted that a reasonable opportunity to be afforded to a

Government servant means and includes right of appeal

whenever provided by law and deprivation of such a right to

prefer appeal against the order of appointing authority

dismissing the public servant from service amounts to 8

denial of reasonable opportunity guaranteed under Article

311 (2) of the Constitution.

9. The only question that falls for our consideration in the

instant appeal is whether the impugned order of dismissal

passed by the Government of Andhra Pradesh suffers from

any illegality on the ground that it had deprived the

respondent of his valuable right to prefer an appeal had it

been passed by the disciplinary authority which is

subordinate to the Government. The real point in issue is

whether the impugned order of the Government dismissing

the respondent from service suffers from any jurisdictional

error?

10. The elaborate provisions in Part XIV relating to

services under the Union and the States indicate the

importance which the framers of our Constitution attached

to the Civil Service. The trinity of Articles 309, 310 and 311

deal with the services regulating recruitment, and conditions 9

of service of persons appointed to public services and posts

in connection with the affairs of the Union or any of the

State. Every person who is a member of civil service of a

State or holds any civil post under a State holds office

during the pleasure of the Governor. Article 311 (2) qualifies

the pleasure of the President or the Governor, and the

pleasure cannot be exercised if a Government servant's

service is to be terminated as a punishment for misconduct.

In such a case, Article 311 (2) mandates that a reasonable

opportunity of being heard in respect of the charges must be

given to the Government servant. Any order inflicting the

punishment of dismissal, removal without giving the

opportunities as is required by Article 311 (2) would be null

and void as violative of an express constitutional

requirement. One more aspect that may have to be borne

in mind that Article 311 (1) does not command that the

dismissal must be by the very same authority who made the

appointment or by its direct superior. The dismissal can be

either by the appointing authority or by any other authority 10

to which the appointing authority is subordinate. The

dismissal of a civil servant must comply with the procedure

laid down in Article 311.

In exercise of the powers conferred by the proviso to

Article 309 of the Constitution of India, the Government of

Andhra Pradesh made the Rules known as A.P. Civil Services

(Classification, Control and Appeal) Rules, 1963. These Rules

prescribe the detailed procedure for holding a departmental

enquiry in all cases where the dismissal, removal or

reduction in rank of any government servant was to be

considered. These rules are required to be read so as to be

in conformity with the constitutional provisions. We shall

now proceed to analyse the rules in order to appreciate the

submissions made by both the parties.

11. Rule 2 (a) of the Rules defines appointing authority in

relation to a Government servant as the authority which

actually made the temporary or officiating or substantive

appointment as the case may be, of the Government servant 11

to the post held by him at the time of initiation of

disciplinary proceedings; or the authority which is, under the

rules regulating the recruitment to the post which the

Government servant for the time being holds, competent to

make an appointment, whichever authority is higher. There

is no dispute before us the appointing authority in relation to

the post that was held by the respondent delinquent

employee is the Engineer-in-chief and he is also the

disciplinary authority. For the purposes of Rules the

`disciplinary authority' is defined in Rule 2 (c ) of the Rules

as the authority competent under the Rules to impose on a

Government servant any of the penalties under Rule 9 or

Rule 10 of the Rules. Rule 9 in its turn provides that for

good and sufficient reasons and as further provided in the

Rules; major penalties be imposed on a Government

servant including dismissal from service which shall

ordinarily be a disqualification for future employment under

the Government. Rule 9 itself does not make any provision

as to which authority is authorised to impose the penalties. 12

It is Rule 14 which provides further details of the disciplinary

authorities and authorities competent to impose the

penalties, in respect of Subordinate Services. Rule 14 which

is relevant for our present purposes provides:

"Rule 14. Disciplinary Authorities and Authorities competent to suspend, in respect of Subordinate Services :

(1) (a) - - - - -

(b)- - - - -

(2) The authority which may impose on a member of a Subordinate Service, the penalties specified in [clauses (ii) and (v) to (x)} of Rule 9 shall be the appointing authority or any authority to which it is subordinate."

A plain reading of the Rules aforementioned clearly

suggests the disciplinary authority endowed with the

jurisdiction to impose on a member of subordinate service,

the penalties specified in clause (ii) and (v) to (ix) of Rule 9

includes not only the appointing authority but any authority

to which the appointing authority is subordinate. The power

is concurrently conferred upon the appointing authority and 13

as well as the authority to which the appointing authority is

subordinate. There is no dispute that Engineer-in-chief being

the appointing authority in respect of the post that was held

by the respondent delinquent at the time of initiation of

disciplinary enquiry is undoubtedly subordinate to the

Government. In such view of the matter it cannot be said

that the Government had no jurisdiction or the authority

under the Rules to impose a major penalty on a member of

subordinate service. Sub-rule (2) of Rule 14 clearly enables

not only the appointing authority but any authority to which

the appointing authority is subordinate to impose penalties

including the dismissal of Government servant from service.

There is no provision in the Rules which prohibits the

Government exercising the power of appointing authority in

the matter of imposition of the penalties specified in clauses

(ii) and (v) to (ix) of Rule 9 which includes dismissal from

service. The Constitution being the transcendental law, the

rule making authority by making Rule 14 (2) took care to

see that constitutional guarantee enshrined in Article 311 14

(1) of the Constitution which was available to the

Government servant was protected. That the construction

placed by us on the expression `subordinate' is in

consonance with the meaning and import of the word

`subordinate' occurring in Article 311 (1) of the Constitution

is apparent from many a decisions of this Court. We shall

refer to some of them. In our considered opinion there is

nothing in the Constitution which debars the Government

from exercising the powers of appointing authority to

dismiss a Government servant from service. These Rules

cannot be read as implying that dismissal must be by the

very authority who made the appointment or by his

immediate superior. In Sampuran Singh Vs. Sate of

Punjab [(1982) 3 SCC 200], this Court observed that "in

view of Article 311 (1) of the Constitution the removing

authority cannot be subordinate in rank to the appointing

authority. By necessary implication the removing authority

may be higher in rank to the appointing authority"

(emphasis supplied). There is a compliance with clause (1) 15

of Article 311 if the dismissing authority is not lower in rank

or grade than the appointing authority. [See The State of

U.P. & ors. vs. Ram Naresh Lal (1970 (3) SCC 173) and Jai

Jai Ram and Ors. vs. U.P. State Road Transport

Corporation, Lucknow and ors. (1996 (4) SCC 727].

12. The decision in K.C. Chandrasekharan s/o K.C.

Chamu vs. State of Kerala [AIR (1964) Kerala 87]

supports the submission made by the learned senior counsel

for the appellant that the mere fact that the Rules provided

for an appeal to Government in case the Government

servant is punished by an authority subordinate to it does

not mean that the Government cannot itself undertake the

disciplinary proceedings against its officers. In that case the

Government having received reports that the appellant

therein, while he was Special Forest Officer, received illegal

gratification and helped illicit transport of timber from the

forest areas, conducted a preliminary investigation which

disclosed a prima facie case, placed the public servant under 16

suspension, framed specific charges against him, served

them on him, and finding his explanation thereto

unsatisfactory, ordered an enquiry by the Enquiry Officer,

who submitted his report to Government finding corruption

on the part of the public servant and recommending his

removal from service. Government then consulted the

Public Service Commission and having considered the

explanation of the public servant passed orders dismissing

him from service. The said order was challenged by the

public servant therein on the ground that under Kerala Civil

Services (Classification, Control and Appeal) Rules, 1957,

the Inquiry authority should have submitted its report to the

appointing authority, who, in this case, was the Conservator

of Forest, in which case the public servant would have had a

right of appeal to Government from the penalty that might

have been imposed on him by the appointing authority. The

contention was that he was deprived of right of appeal and

that amounted to denial of reasonable opportunity

guaranteed under Article 311 (2) of the Constitution. The 17

Kerala High Court held :

" 5. The constitutional guarantee a Government servant is entitled to is one of being afforded a reasonable opportunity of the above content in an enquiry under the Civil Services (Classification, control and Appeal) Rules. The complaint here is not that the appellant was not afforded any of the three opportunities mentioned above, but that he had been deprived of the right of appeal to the Government from the order of the appointing authority if it had imposed the penalty on him by the Government having received the report of the Inquiring Authority and passed orders thereon. Whether opportunity afforded to a Government servant in a particular case is reasonable will depend upon the circumstances of each case, me enquiry In this case was held by the Enquiry commissioner and Special Judge, who was a Judge of the High court of Travancore-Cochin mere is no complaint that the appellant had not been given opportunity to participate in the proceeding and vindicate his innocence we do not think that a right of appeal is a necessary postulate of an opportunity of showing cause within the meaning of Article 311 (2) of the Constitution, and do not the any force in the plea that the appellant was deprived of the constitutional protection of that Article because me Government, who is appellate authority, itself scrutinised the report of the Inquiring Authority, consulted the Public Service Commission and imposed the punishment on him.

The fact that the Kerala Civil services (Classification, Control and Appeal) Rules, 1957, provided for as appeal to Government in case the 18

Government servant had been punished by an authority subordinate to it are not mean that the Government could, not itself undertake the disciplinary proceedings against its offices, to fact, Rule 13 of the Kerala Civil services (Classification Control and Appeal) Rules provided that the authority which might impose the penalty of dismissal from the civil service on a member of a subordinate service was the appointing authority or any higher authority, which LATTER must necessarily include the Government. Under Rule 17 (2) the authority concerned, that is to say, either the appointing authority or any higher authority could direct an enquiry to be held by a special officer or tribunal appointed by the Government for the purpose or any other person mentioned, in Sub-rule (3). Rule 17 (5) provided that the report of the Inquiring Authority should be forwarded to the appointing authority, who should proceed to impose the appropriate penalty on the delinquent officer. There was a lacuna in the rules as to whom the report was to be submitted in case the Government Itself had undertaken the disciplinary proceedings and ordered enquiry into the charges transfer against the officer. As the enquiry had been ordered by the Government, the report of the Inquiring Authority should be submitted to the Government itself. The operation of Rule 17 (5) could therefore be confined only to cases where the appointing authority was to imposed the penalty as the sub- rule itself indicated. We do not see any impropriety, much less any illegality, in the Government itself having received the report of findings by the Enquiry Commissioner and Special judge and imposed the penalty on the appellant in this case. As THE proceedings snow that reasonable opportunity to prove his innocence had 19

been afforded to the appellant before the Inquiring Authority and to show cause against me proposed imposition of the penalty of dismissal from service before the Government, no violation of the guarantee or reasonable opportunity provided in Article 311 (2) or the Constitution had occurred in the impugned proceedings.

We approve the said reasoning of the Kerala High

Court.

13. In the State of Madras vs. G.Sundaram [AIR

1965 SC 1103], a Constitution Bench of this court while

interpreting the provisions of the Madras District Police

Act, 1859 and the Madras Police Subordinate Service

(Discipline and Appeal) Rules, 1950, rejected the

contention of the employee therein that an order of

compulsory retirement amounts to an order of

dismissal which could be passed only by one of the

officers specified in Section 10 of the Police Act and not

by the State Government which is not given any power

to pass such order. This Court observed :

20

"12. - - - -If the order of compulsory retirement amounts, in the circumstances of this case, to an order of dismissal, the Constitutional requirement of Article 311 that the respondent could not have been dismissed from service by an authority subordinate to that by which he was appointed has been satisfied. The respondent must have been appointed to the Police Service in 1929 by an authority subordinate to the State Government and, therefore, the State Government was competent to dismiss him.

13. The Police Rules were framed by the State Government in exercise of the powers conferred by Section 10 of the Police Act and by certain other provisions including the proviso to Article 309 of the Constitution. Rule 2 of the Police Rules mentions the various penalties which can be imposed among the members of the service and mentions 'compulsory retirement' in Clause (g) as one such penalty. Rule 4 specifies the authority which may impose any of the penalties prescribed in Rule 2 on a member of the service specified in column 1 of the Schedule to the Rules and states that it shall be the authority specified in the corresponding entry under columns 2 to 8, therefore, whichever is relevant or any higher authority. According to the entry in the Schedule, the authority competent to order compulsory retirement, removal or dismissal of an Inspector of Police in the districts, is the Deputy Inspector- General of Police. The State Government is an authority higher than the Deputy Inspector- General of Police. This cannot be gainsaid. It is, however, urged for the respondent that the higher authority contemplated by Rule 4 is the authority 21

higher in rank according to the provisions of the Police Act and that such an authority could be only the Inspector-General of Police. We do not agree with this contention.

14. The State Government can pass the various orders of punishment dealt with in the schedule and this is clear from Rule 5 which describes the forum to which a member of the Service can appeal from an order imposing any of the penalties specified in Rule 2. According to Clause

(c), an appeal lies to the Governor if such an order imposing a penalty specified in Rule 2 is passed by the State Government. We, therefore, agree with the High Court that the State Government was competent to order the compulsory retirement of the appellant. "

(emphasis supplied)

14. In the present case Rule 33 of the Rules provides right

of appeal against an order imposing any of the penalties

specified in Rule 9 or Rule 10 whether made by the

disciplinary authority or by an appellate authority or revising

authority to the appellate authorities. Rule 34 specifies the

appellate authorities. There is no difficulty to hold that had

the appointing authority, who, in this case was the Engineer-

22 in-chief passed the order of penalty the respondent would

have had a right of appeal to the Government. Rule 32 of

the Rules says that notwithstanding anything contained

therein no appeal shall lie against any order made by the

Governor; in the present case the impugned order of

dismissal was made by the Government in the name of

Governor, therefore there is no right of appeal as such

against the impugned order of dismissal made by the

Government. It is well said and needs no restatement at

our hands that a right of appeal no doubt is a substantive

one but not inherent or fundamental right. No appeal lies to

the higher authority as a matter of right unless provided for

by the law.

It is not as if there is no remedy available against the

order passed by the Government dismissing a Government

servant from its service. Rule 38 of the said Rules confers on

every member of State Service, or a member of Subordinate

Service in whose case the Government have passed original 23

orders, shall not be entitled to appeal but shall be entitled to

make separately and in his own name, within a period of

three months from the date on which the order was

communicated to him, a petition to the Government for

review of the order passed by the Government on any of the

following grounds namely :

(i) that the order against which the petition of review is

made was not passed by the competent authority;

(ii) that a reasonable opportunity was not given to the

petitioner for defending himself;

(iii) that the punishment is excessive or unjust;

(iv) that the petitioner has made a discovery of new matter

or evidence which he proves to the satisfaction of the

Government, was not within his knowledge or could not

be adduced by him before the order imposing the

penalty was passed; and

(v) that there is an evidence error or omission in the order

such as failure to apply the law of limitation or an error

of procedure apparent on the fact of record." 24

The power conferred upon the Government to review

its own order is very wide and that a substantive right of

review has been conferred on every member of a State

Service or a member of Subordinate Service against the

orders passed by the Government. In the present case the

respondent failed to avail the remedy provided for under

Rule 38.

15. Shri P.Narsimha, learned senior counsel appearing for

the respondent relying upon the decision of this court in

Surjit Ghosh vs. Chairman and Managing Director, UCO

Bank and ors. [ (1995) 2 SCC 474] contended that the

respondent employee was denied a right of appeal, since the

order of dismissal against him was passed by the

Government though the disciplinary authority was Engineer-

in-chief. The submission was as per the said Rules, the

disciplinary authority was Engineer-in-chief and if the action

was taken by him, the employee had an opportunity to 25

appeal to the Government. In order to appreciate this

contention it is required to notice that in the said case the

undisputed facts were the disciplinary action against the

bank employee therein was taken by the Deputy General

Manager. In terms of the regulations, the disciplinary

authority of officers in Grade E,D,C and B was the Divisional

Manager/Assistant General Manager(Personnel) and the

appeal against their order was to the DGM or any other

officer of the same rank. This court took the view that if the

action was taken by the disciplinary authority, he had an

opportunity to appeal to the DGM or any other officer of the

same rank. However, since the action was taken by DGM

although the Divisional Manager and AGM (Personnel) were

available for taking the action the employee was denied the

right of an appeal and also the right of review which lay only

against the appellate order. This court took the view that

the order passed by the bank suffered from an inherent

defect. Having said so the Court proceeded to observe that

it is true that an authority higher than the disciplinary 26

authority itself imposes the punishment, the order of

punishment suffers from no illegality when no appeal is

provided to such authority. It is further held:

" 6. - - - However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the power of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while no doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality."

27 The said decision was apparently one where the power

to impose the punishment was not concurrently conferred

upon both the disciplinary authority, viz., the Divisional

Manager/AGM (Personnel) and the Deputy General Manager

under the regulations. The said decision is therefore clearly

distinguishable.

16. In the case on hand the Rules clearly empower not only

the disciplinary authority but as well as the Government to

impose appropriate punishment as against delinquent public

servant for proven charges of misconduct. In our opinion

the judgment is not relevant and in no manner supports the

point urged by the learned senior counsel for the

respondent.

17. It was further submitted that there are no guidelines in

the Rules as to when the Government should exercise the

powers of disciplinary authority. The submission was the 28

Government may choose to exercise the power of the

disciplinary authority in some cases while not doing so in

other cases eventuality resulting in the right of the

Government servant dependant upon the choice of the

Government which patently results in discrimination

between one set up Government servant and another. This

contention does not merit any serious examination by us

since the constitutional validity of Rule 14 (2) which enables

the Government to award punishment apart from the

disciplinary authority is not challenged.

18. The decision in A. Sudhakar vs. Post Master

General, General and anr. [(2006) 4 SCC 348] in no

manner supports the contention urged on behalf of the

respondent. On the other hand this court took the view that

clause (1) of Article 311 of the Constitution puts an embargo

upon passing an order of dismissal, removal or reduction of

rank in services by an authority below the rank of appointing

authority. "There does not appear to be an embargo in 29

terms of the said provision that a higher authority would not

act as a disciplinary authority." The decision in Electronics

Corporation of India vs. G. Muralidhar [ (2001) 10 SCC

43 ] is based on the decision in Surjit Ghosh's case (supra)

about which we have dealt with in the preceding paragraphs.

No further discussion as regards the ratio of the decision in

Electronics Corporation of India (supra) is necessary for the

purposes of disposal of this appeal.

19. It is evident from the record that no other substantial

grounds have been raised or urged by the respondent

employee either in the Tribunal or in the High Court

challenging the order of his dismissal from service. Nothing

was urged even before us on merits. The High Court,

mainly, therefore concentrated on the question as regards

the validity of the impugned order of dismissal passed by

the Government with which we have dealt in this judgment

of ours. Therefore no useful purpose would be served by

remitting the matter for fresh consideration on merits. 30

20. For all the aforesaid reasons, we find it difficult to

sustain the order passed by the High Court interfering with

the order of dismissal passed by the Government. The

judgment of the High Court is accordingly set aside.

21. The appeal is allowed without any order as to costs.

..................................................J. [R.V. RAVEENDRAN ]

...................................................J. [ B.SUDERSHAN REDDY]

New Delhi, May 14, 2009