L.R. Bhandari vs State of Punjab and Others

V.K. Mehrotra, J.

THE BACKGROUND

Appellant L.R. Bhandari joined the service of the Punjab Government on August 24, 1935. In 1956 he was posted as Textile Officer at Amritsar for the entire State of Punjab. He was entrusted with the duty of organising the sale of handloom cloth when the Punjab Government observed the Third All India Handloom Week between February 19 and February 25, 1956, at various places in the State. To popularise Khadi, the Government had directed the grant of rebate in the case of sale by wholesale of handloom weavers to the Co-operative Societies of handloom dealers, consumers and the Government depots dealing in handloom cloth. The Appellant was to ensure that concession of rebate was allowed only in genuine cases and to make proper arrangements in this behalf so that no leakage of rebate took place. The version of the Appellant is that he organised the sales at various places including Amritsar.

THE BEGINNING:

After sometime the Government received a complaint from one Shri Ram Lubhaya of Amritsar that the sales at Amritsar during the Handloom Week were of bogus character and the concession of rebate was allowed in respect of sales which were only paper transactions. This had resulted in pecuniary loss to the Government.

After a preliminary probe by an official of the Punjab Vigilance Department, a charge sheet was served upon Appellant Bhandari and also upon one P.N. Kapahi, who was working as Supervisor under the Appellant. The charges that were framed against the Appellant were these:

That while employed as Textile Officer Department of Industries, Punjab, Amritsar, and deputed to organise sales of handloom cloth during the observance of the Third All India Handloom Week at Amritsar from 19-2-1956 to 25-2-1956 by abuse of his position Shri L.R. Bhandari permitted firms of factory owners to partake in the rebate scheme in contravention of instructions contained in Government of India, Ministry of Commerce and Industry letter No. 48 (II) C.T. (a)/53, dated 30-8-1954 limiting the benefit of rebate to sales of handloom cloth by Weavers Co-operative Societies to consumers Co-operative Societies, State owned depots, Fair Price Shops and/or to other wholesalers and Punjab Government Industries Department Programme circulated vide letter No. 1825-1&C-56/ 9757 dated 10-2-1956. He also displayed grave dereliction of duty in not exercising proper check and control over the wholesale transactions of handloom cloth conducted by Shri Krishan Lal Chawala Salesman. In addition with a view to prevent leakage of rebate he failed to adopt an adequate procedure for ensuring that the goods were produced at the exhibition and defaced with stamps and for determining the identity of the parties selling and purchasing cloth and the genuiness of their transactions. He thereby enabled the under mentioned firms to o'' tain undue pecuniary advantage of rebate noted against each on the basis of bogus sale transactions shown in Annexure ''A'' with consequential wrongful loss to Government.

Vide Punjab Government Industries Department circular letter No. 1825-56/9757, dated 10-2-1956 Shri L.R. Bhandari, Textile Officer, Punjab, was detailed to organise sales of handloom cloth at an exhibition at Amritsar during the observance of the Third All India Handloom Week from 19-2-1956 to 25-2-1956. The Government of India, vide letter No. HB/10-55 (Rebate)/329, dated 13-1-1956 had allowed a rebate of 1-1/2 annas per rupee on wholesale transactions of handloom cloth sold by Weaver''s Co-operative Societies to consumers Co-operative Societies, State owned Depots, Fair Price Shops and/or other wholesalers under certain conditions. Shri L.R. Bhandari in contravention of instructions contained in the above letters permitted factory owners to partake in the rebate scheme. He did not exercise proper check and control over wholesale transactions of handloom cloth conducted by Shri Krishan Lal Chawala Salesman and supervised by Shri P.N. Kapahi Weaving Master. He further failed to adopt an adequate procedure for ensuring that the cloth was produced at the exhibition and defaced with stamps, and that the identity and bonafides of the firms selling and purchasing cloth were verified. As a result of this dereliction of duty, by Shri L.R. Bhandari, the following firms of factory owners obtained undue pecuniary advantage of receiving rebate shown against each on the basis of bogus sales transactions detailed in Annexure ''A'' with consequential loss to Government.

The amounts mentioned in Annexure ''A'' to each of the charges (which are not being reproduced) totalled to a sum of Rs. 44,119-15-0.

Enquiry was initially made into the matter by one Shri Gobinder Singh, IAS, who made a report to the Government on the basis whereof a show cause notice was given to Appellant Bhandari. On his representation, the Enquiry Report was set-aside on the ground that he had been prejudiced in his defence during the enquiry on account of irregularities committed by the Inquiry Officer. A fresh enquiry was then held by Anr. officer, Shri R.L. Narula, IAS, who was Secretary, Council of State.

After holding detailed enquiry, Shri Narula submitted his report to the Government. He came to the conclusion that of the charges that were framed against Appellant Bhandari what stood proved was that all the transactions of sale were mere paper transactions, shown as such, with a view to obtain benefit of the rebate. The sales, except in the case of a sale by Om Textile Mills in favour of M/s Roshan Lal Girdhari Lal, were made between February 19 and February 23, 1956, when Appellant Bhandari was present in Amxitsar and the payment of rebate in all these cases was made by Appellant Bhandari himself. The manner in which the concession of rebate was abused by the firms specified in the charge sheet showed that Appellant Bhandari displayed gross dereliction of duties in not exercising proper check and control over the wholesale transactions of the handloom cloth conducted by Shri Krishan Lal Chawla, salesman. On the basis of the aforesaid conclusions recorded by the Inquiry Officer, a show cause notice was issued to Appellant Bhandari. He filed a detailed reply. On consideration, the reply was not found satisfactory by the Government. The State of Punjab was under the President''s rule at that time. An order was made on August 11,1966, dismissing Appellant Bhandari from service. At that time Bhandari was posted as District Industries Officer at Dharamshala. The order, as communicated to Appellant Bhandari on August 17, 1966, read thus:

The President of India in consultation with the Punjab Public Service Commission is pleased to dismiss Shri L.R. Bhandari, former Textile Officer, Industries Department now District Industries Officer, Dharamshala from service with immediate effect.

THE QUEST FOR RELIEF:

On February 22, 1967, civil suit No. 50 of 1967 was filed by Bhandari assailing the order of his dismissal. He sought a declaration to the effect that the order was null and void and without jurisdiction and that he continued to '' e in service of the Punjab State/Himachal Pradesh State without any break and was entitled to all the rights, privileges and emoluments attached to the post.

After reciting antecedent facts, leading to the aforesaid order, the principal pleas which were taken in the plaint (which alone need to be noticed in view of the submissions made in this Court on behalf of the Appellant) were stated as under:

PARAGRAPH 15:

That after the President''s Rule, there should have been a fresh enquiry initiated against the Plaintiff which was not done. The show cause notice and the order of dismissal were not issued by the competent authority i.e. by the appointing and punishing authority and are in no way speaking and proper orders and as such the order of dismissal is liable to be quashed.

PARAGRAPH 18:

That it was sufficiently proved before the Enquiry Officer, that there was no infringements of instructions or rules and that proper procedure as laid down by the Department was duly enforced, there could not be any dereliction of duty for this extreme punishment of dismissal from service which also does not co-relate with the charge. The Plaintiff had never been imposed even a minor penalty during his period of service of about past 30 years.

In its written statement to the amendment plaint which the State of Punjab filed, it gave the following reply to the aforesaid paragraphs:

PARAGRAPH 15:

That para 15 of the plaint is not admitted. It is stated that order of dismissal Annexure Dl /H is perfectly valid, legal and in accordance with the provisions of the Constitution of India and the President of India was competent to pass the order of dismissal against the Plaintiff on the basis of evidence already on file.

In reply to the added contents of para 15 of the plaint it is stated that the contents thereof are denied as being incorrect. It is stated that the show cause notice and the order of dismissal were issued by the competent authority and the same were duly authenticated by the Secretary to Government Punjab Vigilance Department, who is authorised under Business of the Punjab Government (Allocation) Rules.

PARAGRAPH 18 ;

That para 18 of the plaint is denied. It is further added that the order of dismissal was passed by the competent authority on merits and full consideration of evidence on record and circumstances of the case.

The trial Judge considered the evidence brought on the record by the parties but dismissed the suit by his judgment of July 31, 1972. The appeal which the Appellant (Plaintiff Bhandari) filed against this decree was also dismissed by the learned Addl. District Judge, Dharamshala, on December 31, 1975. Thereafter, the present second appeal was filed in this Court on March 29, 1976.

THE SUBMISSIONS IN THIS COURT.

Several grounds have been taken in the memorandum of appeal. Of them, what was actually urged on behalf of Appellant Bhandari in this Court by his learned Counsel Shri Chhabil Dass was, firstly, that the order of dismissal dated August 11,1966, was vitiated in law as it does not contain any reasons whatsoever for rejecting the detailed explanation submitted by the Appellant to the show cause notice; secondly, that even on the findings recorded by the Inquiry Officer no reasonable person could take the view that Appellant Bhandari was guilty of any misconduct within the meaning of the relevant Service Rules and; thirdly, that the punishment of dismissal awarded to Appellant Bhandari was out of proportion to the charge levelled against him and found to be proved. On these submissions, it has been urged, the Appellant was entitled to the decree prayed for by him in the suit.

THE FIRST QUESTION, first:

The trial Judge was invited to go into this aspect and has dealt with it by saying that " Anr. point may also be discussed here which has been argued by the learned Counsel for the Plaintiff and that is that the dismissal order is not a speaking order and accordingly the same is illegal and cannot have any force whatsoever. Under this point the Id. counsel for State has stressed that as this particular allegation has not been taken in the plaint and. accordingly the Defendants could not produce evidence on record by which it could be ascertained that before the order of dismissal, mind has been sufficiently applied in arriving at the proposed order. I think the contention put forward by the Id. counsel for the States, is a genuine one. A party cannot place on record evidence beyond the pleadings The submission was reiterated before the lower appellate court. It has been dealt with by that Court in paragraphs 19 and 20 of its judgment. Without reproducing what it said in these paragraphs, it may be observed that two decisions were cited before that Court in support of the submission. They were: Guranditta Mal v. The State of Haryana, through Secretary, Transport Department, Chandigarh, and Ors. 1969 S.L.R. 191, and Rajinder Pal Abrol v. State of Punjab through the Secretary, Irrigation and Power (PWD), Chandigarh and Ors. 1971 (2) S.L.R. 130 . Both these decisions were found distinguishable on facts. Relying upon the decision of the Supreme Court in State of Madras Vs. A.R. Srinivasan, the court below felt that the legal position was that reasons need not be given while dismissing a public servant when the punishing authority agrees with the report of the Enquiry Officer.

Shri Chhabil Dass has laid great emphasis on the invalidity of the order, dismissing the Appellant, for lack of reason. He has placed reliance upon several decisions in sup-part of his submission. The first of these is of the Gujarat High Court in the case of V.D. Kothari v. The State of Gujarat and Ors. 1976 SLR 621 . The submission which was made was that the Enquiry Officer had submitted his report of which a copy had been given to Petitioner Kothari along with show cause notice. In reply, he had set out a number of contentions challenging the findings of the Enquiry Officer and also several draw-backs and lacunae in the enquiry. The learned Judge felt that if such contentions are taken, at is for the Disciplinary Authority to record its finding as to why it rejected the contentions. The Supreme Court decision in State of Madras Vs. A.R. Srinivasan, was distinguished by saying that the observation that "having regard to the material which the Government has, namely, (i) the report of the Enquiry Officer and (ii) the opinion of the Public Service Commission, wherever it is necessary, it is unreasonable to suggest that the State Government must record its reasons as to why it accepted the findings of the Enquiry Officer", were to be understood in the background of the facts of the case. What the learned Judge felt was that the argument before the Supreme Court was that the State Government should have set out its reasons for acceptance of the findings of the Tribunal and that in the absence of the reasons, the order was bad and that it was this argument which was negatived.

The decision in the case of Hardyal Singh v. The State of H.P. and Ors. 1977 (1) S.L.R. 327, is of this Court. In paragraph 14 of the report what was said by a learned Single Judge was that "...neither the punishing authority nor the appellate authority nor the revising authority has applied its mind to the facts of the case with a view to determine what would be the correct punishment which would meet the ends of justice as well as the interest of administration...The order does not show what facts weighed with the authority concerned to resort to the extreme punishment of this type of (removal from service). The result, therefore, would be that the impugned order should be set-aside...". In this case Petitioner Hardyal Singh had been removed from service as at Dak Runner in the Forest Department on the ground that he had been convicted under sections 147, 147 and 149 of the Indian Penal Code.

The third decision again is of the Gujarat High Court in Chandra skanker Chuni Lal Vyas v. State of Gujarat 1977 (2) S.L.R. 270 where again the same learned Judge, who decided the case of V.D. Kothari, upheld the view taken in the earlier case. In paragraph 12 of the report the learned Judge noticed that the final order disclosed complete non-application of mind as was evident from the fact that the second part of charge No. 1 which had been held as not proved both by the Enquiry Officer as well as the Disciplinary Authority before giving the second show cause notice, had been held proved at the final stage and that on this ground alone the impugned order was illegal and invalid. The learned Judge then proceeded to examine the legal aspect of this submission in greater detail in paragraph 13 and 14 of the report. He held that that it was settled by a catena of decisions that both stages envisaged by Article 311 are quasi-judicial. Further hat it was well settled that the administrative authority discharging quasi-judicial functions must give reasons in support of it conclusion or decision and that there were a number of decisions on this point but the learned Judge referred to the latest decision on the subject then available which was the decision of the Supreme Court in The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another, . He also referred to the judgment of the Supreme Court in Madhya Pradesh Industries Ltd. Vs. Union of India and Others (UOI), and concluded that when it is held that the second stage is equally judicial as the first one even, according to the decision of the Supreme Court in Srinivasan, the duty to give reasons must be read as per Seiman''s case and that reasons must be such as would show application of mind. The learned Judge further observed that the impugned order in the case before him suffered from non-application of mind and the authority having not given reasons failed to make a speaking order so that the final order had to be quashed.

The next decision upon which reliance was placed by Shri Chhabil Dass is of this Court. It was rendered in Prem Singh v. The Himachal Pradesh Road Transport Corporation Hon and Anr. ILR 1984 H.P. 466, A Division Bench was examining the validity of the order of the Disciplinary Authority (Annexure ''C '') as well as the Appellate Order (Annexure ''F''). It found that Annexure-C contained no more than a general description of the process adopted in arriving at the conclusion when it stated that the disciplinary authority agreed with the findings of the Enquiry Officer upon a careful consideration of the Enquiry Report and the relevant records of the case, while the appellate order, Annexure-F, was merely a terse and laconic communication stating that the appeal was considered by the appropriate authority and that it was rejected. The Bench found that apart from the fact that no reasons, if any, were communicated, the vital defect was that the order in original was not annexed to the communication. The Bench noticed the decisions of the Supreme Court in Siemens Engineering and Mfg. Co. v. Union of India A.T.R. 1976 S.C. 1785 , Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, and Mahindra and Mahindra v. Union of India AIR 1979 S.C. 798, and concluded that it appeared to be a proposition which was beyond any doubt or dispute that administrative authorities, and Tribunals exercising quasi-judicial power are required to make speaking orders and that such requirement must be observed in letter and spirit and not merely by rendering a lip-service. In the penultimate paragraph (being paragraph 6 of the report) the Bench said:

In the present case, as earlier pointed out, the disciplinary authority and the appellate authority have both failed to record reasons. The order of the appellate authority is, in fact, not even communicated to the Petitioner which is yet Anr. parent error. Under ordinary circumstances, the Court would have quashed the order at Annexure-C as well as that at Annexure-F. However, since this is the first case of its kind, which has come to our notice, arising out of the disciplinary proceedings instituted by the Respondent-Corporation, we are inclined to give an opportunity to the said Respondent to place on the record of the case the reasons, if any, recorded by the disciplinary authority in support of the order at Annexure-C and the formal reasoned order, if any, passed by the appellate authority on the appeal preferred by the Petitioner. Let the Respondent-Corporation avail of the opportunity on or before September 3, 1984. The original record of the disciplinary and of the appellate authority will also be produced on the next day of hearing.

The Bench was examining the matter in a writ petition under Article 226 of the Constitution.

In R.P. Bhatt Vs. Union of India and Ors (UOI) ., the Supreme Court was considering Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 relating to an appeal against an order imposing any of the penalties, specified: in Rule 11, where it was provided that the Appellate Authority is to consider (a) whether the procedure laid down in the rules had'' been complied with; (b) whether the findings of the disciplinary authority were warranted by the evidence on the record; and (c) whether the penalty imposed was adequate, inadequate or severe and then pass an order of the nature referred to later. The Supreme Court said that the word ''consider'' in Rule 27(2)implied ''due application of mind'' and that the rule cast a duty on the appellate authority to consider-the relevant factors set forth in Clauses (a), (b) and (c) thereof. On that facts of the case before it, the Supreme. Court found that there was no indication in the impugned order that the Director General applied his mind to the relevant consideration. The order was quashed.

The Supreme Court referred to its earlier decision in the case of State of Madras Vs. A.R. Srinivasan, and after noticing the submission made on behalf of Srinivasan by Shri Setalvad observed thus:

...In dealing with the question as to whether it is obligatory on the 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 dose 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 shovd 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.

The Supreme Court also referred to its earlier decision in Som Datt Datta Vs. Union of India (UOI) and Others, : Som Datt Datta Vs. Union of India (UOI) and Others, wherein it had said (in regard to proceeding under Sections 164. and 165 of the Army Act) that "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." Som Datt''s case was decided by a Constitution Bench of the Supreme Court. The challenge to the order being invalid for want of reasons was negatived. The Supreme Court also said that to the same effect was the decision in Tara Chand Khatri Vs. Municipal Corporation of Delhi and Others, .

In Ram Chander Vs. Union of India (UOI) and Others, the Supreme Court was dealing with Rule 22(2) of the Railways Servants (Discipline and Appeal) Rules, 1968. This Rule is in parimateria with Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

After referring to many of its earlier judgments, inculding the one in the case of R.P. Bhatt, it observed (in paragraph 9 of the report) that:

these authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, Rule 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Rule 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall ''consider'' as to the matters indicated therein. The word ''consider'' has different shades of meaning and must in Rule 22(2) in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision.

The principle discernible form the various decisions is clear. The principle is that unless there is a requirement imposed by a statute or a rule statutorily framed, either expressly or by necessary implication, there is no legal obligation that the Disciplinary Authority, where it agrees with the conclusions recorded by the Enquiry Officer, should give reasons for its decisions. This was said by a Constitution Bench of the Supreme Court in State of Madras Vs. A.R. Srinivasan, and Som Datt Datta Vs. Union of India (UOI) and Others, . This is what, according to the Supreme Court itself in R.P. Bhatt Vs. Union of India and Ors (UOI) ., and Ram Chander Vs. Union of India (UOI) and Others, , is the real legal position laid down earlier by two Constitution Benches of the Court.

Do the service rules applicable to Appellant Bhandari cast an obligation upon the Disciplinary Authority to record reasons for the order passed by it, where it agrees with the findings recorded by the Enquiry Officer, may now be examined.

The rules are the "Punjab Civil Services (Punishment and Appeal) Rules, 1952". Of them, only Rules 7,10 and 11 need notice. In their relevant parts these Rules say:

Rule 7:

7(1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1950, no order of dismissal, removal or reduction, shall be passed against a person to whom these rules are applicable, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

(2) ....

(3) ....

(4) ....

(5) ....

(6) After the enquiry against a Government servant has been completed, and after the punishing authority has arrived at a provisional conclusion in regard to the penalty to be imposed, the accused officer shall, if the penalty proposed is dismissal, removal or reduction in rank be supplied with a copy of the report of the enquiring authority and be called upon to show cause within reasonable time, not ordinarily exceeding one month, against the particular penalty proposed to be in flicted upon him. Any representation submitted by the accused in this behalf shall be taken into consideration before final orders are passed:

Provided that if the punishing authority disagrees with any part or whole of the findings of the enquiring authority the point or points of such disagreement, together with a brief statement of the grounds thereof, shall also be supplied to the Government servant.

Rule 10:

10(1) Every person to whom these rules apply, shall be entitled to appeal, as hereinafter provided, to such superior authority as may be prescribed by Government in the rules regulating his conditions of service against an order, not being an order of Government:

(a) ....

(b) ....

(c) ....

(d) ....

(2) Every person to whom these rules apply shall be entitled to free supply of the copies of the order against which he intends to file an appeal or revision under the rules.

11(1) In the case of an appeal against an order under Rule 10..., the appellate authority shall consider:

(a) whether the facts on which the order was based have been established;

(b) whether the facts established afford sufficient ground for taking action; and

(c) whether the penalty is excessive, adequate, or in-adequate; and after such consideration, shall pass such order as it thinks proper;

Provided that no penalty shall be increased unless opportunity is given to the person concerned to show cause why such penalty should not be increased.

(2) ....

A reading of these rules would show that the obligation which is cast upon the punishing authority is to take any representation, submitted by the delinquent officer to the show cause notice, into considerations before passing final orders. It is not required to record its reasons for the order passed except where it disagrees with any part or whole of the findings of the enquiring authority as contemplated by the proviso. In the case of disagreement, the grounds upon which it disagrees with the findings recorded by the enquiring authority are also to be supplied to the Government servant. Expressly, therefore, Sub-rule (6) of Rule 7 requires recording of reasons only in a case where the punishing authority disagrees with any part of the findings of the enquiring authority. The provision contained in the proviso to Sub-rule (6) in regard to recording of a brief statement of grounds for disagreement rules out, by necessary implication, similar recording of the grounds on the basis whereof the ultimate order of punishment is passed by the punishing authority whereof it does not disagree with the findings recorded by the enquiring authority.

The submission, vehemently made on behalf of Appellant Bhandari, that rules of natural justice require that the order of the punishing authority should contain the reasons for which it does not accept the explanation offered by the delinquent officer in reply to the show cause notice issued to him overlooks the scheme of the statutory rules under consideration. It will be clear when one looks at Rule 11. An obligation has been cast upon the appellate authority to apply its mind to the three considerations mentioned in Clauses (a), (b) and (c) of Rule 11(1) and after consideration thereof pass such order as it thinks proper. In the case of an order disposing of an appeal under Rule 11, it is implicit in the requirement of consideration of the specific matters mentioned in the various clauses that the process of consideration should be reflected in the order itself. It should be clear from the appellate order that the appellate authority had applied its mind to the requirements of Rule 11(1). If the order does not reveal application of mind to the requirements of the various clauses it is liable to be set-aside.

While framing Rules 7(6) and 11(1), the rule making authority clearly indicated its mind. Wherever it required the authority to come out with reasons, an indication to that effect was given in the rule itself. That is evident from the proviso to Rule 7(6). It is also implicit in Rule 11(1). In the face of the clear scheme of the rule it is not possible to take the view, as canvassed on behalf of Appellant Bhandari, that even where the punishing authority does not disagree with any part of the findings of the enquiring authority, it must record its own reasons for coming to its ultimate conclusion merely because the representation made by the delinquent official against the show cause notice is to be taken into consideration by it before passing final orders. Such a conclusion is not supportable on precedent or on principle.

The trial court was plainly right when it said that Appellant Bhandari did not assert that the representation made by him against the show cause notice had not been taken into consideration by the punishing authority before final orders were passed. The relevant portion of the plaint, even after its amendment, has been extracted earlier. It clearly shows that it was not the plea of Appellant Bhandari that the representation submitted by him was not taken into consideration. If it had been, the Respondent-State may have placed material before the Court to show that it had been properly considered. The plea which Appellant-Bhandari took, as the Plaintiff, was only one of law, namely, that the order of dismissal was not a speaking order and as such deserved to be quashed. The plea, as discussed earlier, is not tenable.

now, THE SECOND QUESTION:

It was urged that even on the findings recorded by the Enquiry Officer no reasonable person could take the view that Appellant Bhandari was guilty of any misconduct within the meaning of the relevant Service Rules.

The submission has to be judged in the light of the "Government Employees (Conduct) Rules, 1966", framed by the Punjab Government, Rule 2(b) defines a ''government employee'' to mean a person appointed to any civil service or post in connection with the affairs of the State of Punjab. Rule 3, in its material part, reads thus:

General.--(1) Every Government employee shall at all times-

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government employee.

(2)(i) Every Government employee holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government employees for the time being under his control and authority;

(ii) No Government employee shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior and shall, where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible.

Explanation.--Nothing in Clause (ii) of Sub-rule (2) shall be construed an empowering a Government employee to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities.

Explanation-II....

The submission which was made, on behalf of the Appellant, in regard to this aspect, was that Appellant Bhandari was a supervising officer for the entire State of Punjab and had, in that capacity, issued suitable directions, from time to time, to his subordinate officials to exercise due care while dealing with the matter of grant of rebate. He had also been working under the directions of the then Director of Industries and, on that basis, extended the benefit of rebate even to those categories which'' were excluded by the specific directions made by the Government of India, The action which Appellant Bhandari took was taken in his best judgment, consistent with the directions of his superior officer, and he had taken all possible steps, as a supervisory officer, to ensure the integrity and devotion to duty of the officials working under him. These aspects do not appear to have been taken into account by the punishing authority. At best, he could held to be negligent in the performance of his duties. Every negligence, however, cannot be termed as "misconduct" attracting punishment of the nature meted out to him particularly when the rules do not prescribe negligence attributable to Appellant Bhandari as a misconduct. Nor is there any finding of lack of bona fides or integrity on the part of Appellant Bhandari.

Support for the above submissions was sought from some decisions. Hem Raj v. the Delhi Administration and Ors. 1973 (1) S.L.R. 349 was the first of these. In this case what was observed was that the action of Petitioner Hem Raj, while working as A.S.I. Police, in prosecuting the car driver, whose car had collided with a cow which had been slightly injured in the accident, was treated as improper and made subject matter of departmental enquiry against Hem Raj, resulting in minor penalty to him, could not be upheld because public servants, however low in the hierarchy, have to discharge their duties as they honestly conceive them to be, fearlessly and further that as long as a public servant''s action is bona fide and with diligence in the discharge of his duties, he should not be unjustly criticised but should be supported by his superiors. Relying upon the decision it was held by the Punjab and Haryana High Court in Rampal Singh Uppal v. The Financial Commissioner, Revenue Haryana 1982 (2) S.L.R. 129 that where there was bona fide error of judgment by a public servant who was not found lacking in bona fides, the action could not be treated to be misconduct.

Safdar Husain Vs. The Union of India (UOI), was a case where a delinquent Railway Official, while performing the functions of the Chief Booking Clerk, had kept the cash in hand in the iron safe of his office room, placed the key of the safe in a hidden place inside the wooden almirah and locked it with his own lock, according to the consistent practice of the Chief Booking Clerks, and had thus exercised all the care which was expected of a prudent and reasonable person in the circumstances. The fact that the cash was found missing the next day from the safe, was held not to mean that his conduct in leaving the key in a hidden place in the wooden almirah in his own office amounted to such gross negligence on his part as to be equated with want of adequate care and amounting to "misconduct" for which he could be punished.

In Union of India (UOI) and Others Vs. J. Ahmed, one of the questions which was examined by the Supreme Court was as to what would constitute "misconduct" within the meaning of All India Services (Conduct) Rules, 1954, for purposes of imposition of penalty under the All India Services (Discipline and Appeal) Rules, 1955. The Supreme Court noticed the charges levelled against Ahmed, who was Respondent before the Supreme Court as his petition under Article 226 of the Constitution had been allowed by the High Court of Assam and Nagaland, and came to the conclusion that they gave an impression that Ahmed was not a very efficient officer and lacked qualities expected of an officer of the rank of Deputy Commissioner. After noticing the various provisions of the Conduct Rules it observed (in paragraph 11 of the report) that:

Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence...But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.

Following this judgment it was held in Vishwanath Mishrav. U.P. Public Service Tribunal and Ors. 1985 (2) S.L.R. 708 by a learned Single Judge of the Allahabad High Court that there was no charge against Petitioner Vishwanath that he had not maintained absolute integrity. What had been found was that the Petitioner was guilty of ''remissness and negligence of duties'' as he did not take proper steps to see that the consignment of Urea received under the R.Rs, which he had endorsed in favour of Shri B.P. Upadhaya, were not actually taken into Stock." According to the learned Judge, it was negligence all right but it was not possible to hold that it amounted to misconduct within the meaning of Discipline and Appeal Rules.

Conduct which is not consistent with ''due and faithful discharge of duty'' would amount to a misconduct. This is what the Supreme Court has laid down in J. Ahmed. The Punjab Government Employees (Conduct) Rules, 1966, clearly lay down in Rule 3 that apart from maintaining absolute integrity and devotion to duty every employee, holding a supervisory post, shall take all possible steps to ensure the integrity and devotion to duty of all Government employees for the time being under his control and authority. He shall not act otherwise than in his best judgment and it would not be open to him to evade his responsibilities by seeking instructions or approval of a superior officer when such instructions are not necessary under the scheme of distribution of powers and responsibilities. It is implicit in these rules that where a Government employee is found to act without due care in discharge of his duties, it would amount, in law, to failure by him to maintain devotion to duty and, thus, a ''misconduct''.

In Om Parkash Bindal v. Union of India and Ors. 1984 (2) S.L.R. 391, this question was considered by me at some length. The erring official was a Railway servant. Rule 3 of the Railway Services (Conduct) Rules, 1966 was almost in the same terms as Rule 3 of the Punjab Government Employees (Conduct) Rules, 1966, framed by the State of Punjab. Placing reliance, inter alia, on the decision of the Supreme Court in J. Ahmed, I said (in paragraph 12 of the report) that:

There can be hardly any doubt that an order (error) of judgment or some shortcoming in the personal capacity or degree of efficiency of an employee, may by itself, not normally amount to misconduct but then if the servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it would amount to a misconduct. Likewise, a gross or habitual negligence in performance of duty even without a guilty mind and not involving Mens rea may still constitute misconduct for disciplinary proceedings. This is what the Supreme Court itself recongised in the case of J. Ahmad.

Learned Counsel for Appellant Bhandari attempted to distinguish this decision on facts.

The finding of the Enquiry Officer accepted by the punishing authority, against Appellant Bhandari has been noticed earlier. What was found, on facts, was that all the transactions of sale were mere paper transactions. The sales, except in the case of one by Om Textile Mills in favour of M/s Roshan Lal Girdhari Lal, were made, when Bhandari was present in Amritsar and the payment of rebate in all these cases was made by Appellant Bhandari himself. The manner in which concession of rebate was abused by the firms showed that Appellant Bhandari displayed gross dereliction of duties in not exercising proper check and control over the wholesale transactions of the handloom cloth conducted by Shri Krishan Lal Chawala.

If the lapse aforesaid does not amount to a failure on the part of Appellant Bhandari to maintain devotion to duty in the sense of not being a conduct consistent with due and faithful discharges of duty and his failure, as a Government employee holding a supervisory post, in not taking all possible steps to ensure the integrity and devotion to duty of all Government employees for the time being under his control and authority, one is left to wonder as to what else would amount to a ''misconduct'' for purposes of Rule 3.

On the facts of the present case it cannot be said that the lapse found to have been committed by Appellant Bhandari did not constitute a misconduct on the basis whereof action could be taken against him. The facts found unmistakably established that the conduct of Appellant Bhandari was inconsistent with due and faithful discharge of duty by him and that Bhandari cannot be permitted to say that in law he would be deemed to have acted in his best judgment and to have taken all possible steps to ensure that the concession of rebate was not misused.

THE LAST SUBMISSION, last:

The submission is that even on assumption that Appellant Bhandari was guilty of the misconduct attributed to him, the penalty of dismissal from service was out of proportion to the act of misconduct committed by him.

Rule 4 of the Punjab Civil Services (Punishment and Appeal) Rules, 1982, permits the punishing authority to impose, inter alia, the penalty of dismissal from civil service, for good and sufficient reasons upon a member of the service to whom the rules are applicable. The choice of penalty is left to the punishing authority. Ordinarily, therefore, the appropriateness of the penalty imposed upon the delinquent officer will not be open to judicial review. This would appear to be the intendment of the observations made by the Supreme Court in A.N. D''silva Vs. Union of India (UOI), when it said (in paragraph 4 of the report) that:

...The Civil Services Rules merely prescribe the diverse punishment which may be imposed upon delinquent public servants; the rules do not provide for specific punishment for different misdemeanours. The rules leave it to the discretion of the punishing authority to select the appropriate punishment having regard to the gravity of the misdemeanour. The power of the President to impose any punishment for any misdemeanour found proved against a delinquent public servant is unrestricted. The Constitution merely guarantees the protection of a reasonable opportunity of showing cause against the action proposed; it does not guarantee that the punishment shall not be more severe than a prescribed punishment....

Of course, if the punishment awarded to a delinquent government servant is arbitrary in the sense that no reasonable person would award that punishment on the facts found, the Court may intervene, by setting aside the punishment and requiring the punishing authority again to go into the matter. Where, however, the court finds, on a prima-facie examination of the matter, that the view taken by the punishing authority in regard to the actual punishment awarded by it was a possible view, it cannot be held that the decision to award that particular penalty was arbitrary so as to enable the Court to interfere with it. The protection in the matter is founded upon the principle enshrined in Article 14 of the Constitution. To borrow he words of Shah J, speaking for a Constitution Bench of the Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, (in paragraph 4 of the report) that:

...The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Article 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable; nor is the penalty open to review by the Court, (emphasis supplied)....

In Rama Kant Misra Vs. The State of Uttar Pradesh and Others, the Supreme Court was dealing with a case under the Industrial Disputes Act when it held that the extreme penalty of dismissal from service was not justified in the facts and circumstances of the case before it and set-aside the punishment while hearing an appeal under Article 136 of the Constitution against the dismissal by the High Court of a petition under Article 227 of the Constitution upholding the award of the Labour Court, which did not interfere with the punishment of dismissal.

In Bhagat Ram Vs. State of Himachal Pradesh and Others, the Supreme Court came to the conclusion that Appellant Bhagat Ram who was a Forest Guard had not been afforded a reasonable opportunity to defend himself in the departmental enquiry so that the enquiry and the consequential order of his removal from service is vitiated It then proceeded to consider the question about the relief to be granted in the case. Instead of leaving it open to the Disciplinary Authority to hold the enquiry afresh which, according to the observation made by the Supreme Court (in paragraph 13 of the report) "would be the normal consequence", the Supreme Court directed the reinstatement of Appellant Bhagat Ram in service and withholding of two increments with future effect. The case had gone before the Supreme Court in appeal by special leave against an order by a Division Bench of this Court dismissing the petition of Bhagat Ram under Article 226 of the Constitution in limine. In that petition Bhagat Ram had assailed the order of removal from service passed against him in disciplinary proceedings which had been upheld in departmental appeal and revision petition.

In Jaswant Singh Vs. Pepsu Roadways Transport Corporation and Another, the Supreme Court was dealing with a case of industrial dispute. The Labour Court had taken the view that the punishment of dismissal imposed by the employer of Jaswant Singh, was uncalled for in the circumstances of the case. It was reduced to mere refusal of backwages, while reinstating Jaswant Singh in service. The employer filed a writ petition against the award. The High Court set-aside the direction made by the Labour Court for reinstatement of Jaswant Singh. It confirmed the punishment of dismissal from service. The matter went before the Supreme Court in an appeal by special leave at the instance of Jaswant Singh. The Supreme Court allowed the appeal in part. It upheld the view of the Labour Court in so far as it had directed reinstatement of Jaswant Singh in service. It, however, said that a further punishment was also called for so that Jaswant Singh did not repeat his intemperate performance of consuming intoxicating liquor while on duty. It directed that Jaswant Singh should not be given three increments in the time scale in which he was to be reinstated, for the next three years.

In Ambalika Sharma v. H.P. University and Anr. ILR 1984 H.P. 155 , a Division Bench of this Court was considering the case of a student of the University who had instituted a writ petition challenging the decision of the Examination Discipline Committee of the University under which the entire result of the 1982 examination, in which she had appeared, had been ordered to be cancelled and she was also disqualified for a period of four years from appearing at any University examination. When the writ petition was entertained, an interim order was passed on January 6, 1984, following the decision in Siddharth Mohanlal Sharma Vs. South Gujarat University, wherein also the question of imposition of penalty in a case where a candidate, at an examination, was found to have committed a misconduct, was considered. This Court made an interim order to the effect that the Respondent-University will review the question of penalty bearing in mind the principles laid down in Section M. Sharma''s case and applying the same to the facts of the (present) case including the circumstance that the delinquent candidate (herein) is a female who at the material time was aged only about 16 years and who in all probabilities was innocent about the consequences of her action, within a period of 15 days. The writ petition was, however, rejected by the Bench on March 28, 1984.

Ranjit Thakur Vs. Union of India (UOI) and Others, was a case in which the Supreme Court was called upon to examine a question about the scope and compliance of the procedural safeguards in Section 130 of the Indian Army Act, 1950, in the conduct of court-martial. The Appellant had been awarded the punishment of dismissal from service and sentence of a year''s rigorous imprisonment in proceedings before the Summary Court Martial. He challenged the proceedings in a petition under Article 226 of the Constitution before the High Court of Patna. The petition was dismissed in limine. Ranjit Thakur approached the Supreme Court in an appeal by special leave. The Supreme Court (in paragraph 25 of the report) observed that:

Judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review....

In paragraph 27 of the report the Supreme Court further observed that:

In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.

The decisions aforesaid do not, in essence militate against what was said by the Supreme Court in A.N. D'' Silva and Bidyabhushan Mohapatra. Arbitrariness, in the sense of the view taken being perverse and of a nature that no reasonable person would take it, may invite interference by the Court, even in the matter of quantum of punishment. Ultimately, it is a question to be answered on the facts of a particular case.

In the present case it is not possible to take the view that on the misconduct found to have been committed by Appellant Bhandari, the punishment of dismissal from service was such as to be "outrageous defiance of logic" or was "vindictive or unduly harsh" and was "so disproportionate to the offence as to shock the conscience". Nor was it "so strikingly disproportionate (to the misdemeanour)" as to call for and justify interference.

THE RESULT:

In conclusion, the appeal must be held to be devoid of merit. It deserves to be and is dismissed.

Parties are, however, left to bear their own costs throughout.