State of Andhra Pradesh v. S. N. Nizamuddin Ali Khan

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 vir.es and inoperative. The respondent alleged that the depa~~enta~ enquiry was initiated by the Chief Justice and not by the Adm1mstrat1ve Bench. of the High Court which alone could do so under the Hyderabad High Court Act. The respondent alleged that he wa.s not given a reason~ble opportunity inasmuch as the report of the Enqurry Officer was submitted 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 extraneous matters which had not been the subiect matter of the enquiry. The respondent alleged that he had no opportunity to de-fend himself \Wth 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 -L that Article 311 ( 2) was violated. The High Court confirmed the de-

cree of the trial Court but modified the order to the extent that the res-pondent was entitled to arrears of salary.

The Hyderabad Civil ServJces (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 com-pletion of 30 years or 25 years of qualifying service is one of the penal-ties. 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 necessary. 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 communi-cated together with the statement of the allegations on which each charge is based. A written statement is required to be filed by the offi-cer and an enquiry shall be held. After the enquiry has been com-pleted, the person charged shall be entitled tel 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 penal-ty mentioned in that clause has arrived at provisional conclusions,· the person charged shall be supplied with the copy of the report of the en-quiring authority and be called upon, to show cause within a reasonable time aga.rinst the particula~ 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 §hoajd record his. findings on each charge, the reason for such findings and recomniendations as regards the penalty on each of the charges. Rule 16 states that on receipt of the report of the en-quiry officer the punishing authority should arrive at a provisional con-clusion 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 represoota-tion submitted by the person charged in this behalf shall be duly taken into consideration by the punishing 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 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 or-ders should be issued to the person charged. If, however, it be found that there has been disagreement on thi~ point and the punishing au-thority has no objection to accept the advice of the Commission, final orders should be issued to the person charged. If, however, the punish-ing 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 th~ 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 correspond-ing to the year 1937 section 12 provides for the Administrative Bench consisl!ing of at least two Judges appointed by the Chief Justice. The Chief Justice may constitute more than one Administrative Bench. Every question b~forc thtt 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 ac-cordance 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 Adminis-trative Bench of the High Court. The Administrative Bench shall have power inter alia to sanction, suspension, fines, dismissal.

The respondent was appointed as Munsiff Magistrate in the year 1948. Sometime in 1951 and 1952 a preliminary enquirv by the Dis-trict and Sessions Judge was made. The Administrative Bench consis-ting 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 AuITTJst. 1 Q<:3 the re-port of the Chief Justice on his own examination of the evidence con-firmed the findings of the enquiry officer and he recommended comoul-sory retirement. On 5 September, 1953 the Administrative Bench of the High Court sent both the reports to the Government.

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 findings 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 Ser-vice Commission. On 27 February, 1954 the Public Service Commis-sion approved compulsory retirement. On 8 April, 1954 the respondent was compulsorily retired.

On 28 June, 1954 the respondent preferred an appeal to the Raj-pramukh. On 4 November, 1954 the Rajpramukh dismissed the ap-peal. In 1957 the respondent filed this suit.

The Oity 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 be-fore the High Court. The High Court also held that the Government had accepted the report -of the Chief Justice both with reg;ud 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 compulsory retirement was bad.

On behalf of the appellant it was contended that assuming the report of the Chief Jusitce was taken into consideration by the Govern-ment 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 compulsory retirement, is good.

In the alternative it was submitted on behalf of the appellant that the Government of its own came to the conclusion that compulsory retirement was the proper punishment, and, therefore, the Govern-ment did not act on the recommendation of the Chief Justice.

The report of the Chief Justice referred to the report of the En-quiring 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 pend-ing cases were proved. The Chief Justice in his report said that he was flooded with complaints from lawyers, litigants and from all sides which emanated not only from the members of the Bar but also from respo.nsible officers. The Chief Justice said in his report that on consi-deration of all the facts he had not the slightest doubt that in this case leniency "'.ould be mispli,!ced and in the interest of purity of services such practices, when proved, as they have been proved, must be dealt with firmly. He, therefote, expressed the opinion tha~ the respondent should be compulsorily retired and he concluded with the observation "let the Government be moved accordingly".

Under the Rules the Government has power under rule 12 to Im-pose, inter alia, the penaJty of compulsory retirement after consultation with the Public Service Commission where such consultation is neces-sary. The Chief Justice recommended 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 grouds on which they are based and shall be cq_mmunicated 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 supple-mentary report with his own findings. The respondent had no rea-sonable opportunity of making any representation against the report of the Chief Justice of the pJ_'oposed 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 dOI so under the Rules of the f!igh 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 Govern-ment.

For these reasons the appeal is dismissed. The respondent is en-titled to costs.

CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1863 of 1968.

P. Ram Reddy, K. Jayaram and A. V. V. Nair, for the appellant. T. C. Raghavan, B. Parthasarathi and S. Shaukat Hussain, for the respondent.