TaxTMI 
TaxTMI 
1963 (2) TMI 45
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.... respondent that the Governor of Assam had been pleased to authorise the Commissioner of Plains Division, Assam, to conduct the. enquiry and to report to appellant No. 2. On January 13, 1960 the respondent submitted an elaborate explanation in respect of all the charges. The Commissioner of Plains Division, Assam, then proceeded to hold an enquiry and after considering the evidence adduced before him, he made the report on April 12, 1960. In this report the Enquiry officer found that out of the 11 charges drawn up against the respondent, 6 had not been proved and of the remaining 5 charges, two had been fully established-they were charges (7) and (10) ; and the other three charges Nos. (1), (2) and (4) had been partially established. The report made these findings and proceeded to add that the lapses proved did not cast any serious doubt on the honesty and integrity of the delinquent officer, although the evidence led in respect of charges (1) and (2) proved his inexperience and that led under charges (2) and (4) showed his irresponsibility. The report further stated that in the circumstances, the two charges which deserved consideration for purposes of punishment were charges (7) ....
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.... Court has allowed the writ petition and issued a mandamus directing the appellants not to give effect to the order dated 8th July, 1961. It is against this order that the appellants have come to this Court by special leave. We have already referred to the second notice served on the respondent under Art. 311 (2). The respondent's contention which has been accepted by the High Court is that in the said notice, appellant No. 1 has not clearly indicated that it accepted the findings of the Enquiring officer; and since such a statement is not made in the notice, the respondent could not have known on what ground appellant No.1 provisionally decided to impose upon the respondent the penalty of removal from service. The High Court has held that the notice issued under Art. 311 (2) must show that the dismissing authority has applied its mind to the findings of the Enquiring officer and has accepted the said findings against the delinquent officer. In other words the notice should expressly state the conclusions of the dismissing authority, because unless these conclusions are communicated to the delinquent officer, he would not be able to make an adequate or effective representation.....
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....the public officer as well as about tile punishment which would meet the requirement., of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice; the public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for. This position is not in dispute. The High Court seems to have taken the view that in order that the public officer may have a reasonable opportunity, tile dismissing authority must indicate its conclusions on the findings recorded by the enquiring officer and must specify reasons in supports of them. Acc....
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.... been accepted by the appellants and so, we think it would not be reasonable to accept the view that in the present case, he had no reasonable opportunity as required by Art. 311 (2). We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes -findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Art. 311 (2). ID such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also may be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. It' the dism....
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....ess the notice issued by the appellants indicated that the action proposed to be taken was the respondent's removal from service. It is true that the ultimate action taken against him was not as severe; he has, been merely demoted to Class II Service. But it is suggested that the severity of the punishment proposed to be inflicted on the Respondent rather suggests that the appellants felt that some of the other charges which the enquiring officer had not held proved appeared to be proved to the appellants. This argument is no doubt ingenious; but in the circumstances of this case, we do not think it can be accepted. As this Court has held in A. N. D'Silva v. Union of India ([1962] Supp. 1 S. C. R. 968), in the absence of rules or any statutory provisions to the contrary, the enquiry officer is not required to specify the punishment which may be imposed on the delinquent officer. His task is merely to hold an enquiry into the charges and make his report setting forth his conclusions and findings in respect of the said charges. Sometimes the enquiring officers do indicate the nature of the action that may be taken against the delinquent officer, but that ordinarily is outside....
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....nvolves "in. all cases where there is an enquiry and as a result, thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why lie should not suffer the proposed dismissal or reduction in rank." It would be noticed that this statement clearly shows that what the Federal Court held was that the dismissing authority must convey to the delinquent officer the findings of the enquiring officer either fully, or adequately summarised, and state the nature of the action proposed to be taken against him. In other words, the officer concerned ought to know what findings have been recorded against him and should be given a chance to challenge those findings and to question the propriety of the action proposed to be taken against him. In this context, therefore, the grounds which, according to the judgment, have to be stated in the notice do not indicate grounds or reasons which would show. why the dismissing authority accepts the enquiring officer's report, ....
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....ssal on the ground that the notice was defective and so, the provisions of Art. :II 1 (2) had been contravened. This Court in reversing the concision of the Orissa High Court, observed that "in the context, it Must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service." It may be added incidentally that the punishment which had been suggested by the Tribunal was removal from service, as distinguished from dismissal, and this Court held that the impugned notice must be deemed to have referred to that punishment as the action proposed to be taken against the Government servant. Therefore, this decision, in substance, is against the contention raised by Mr. Chatterjee There are, however, some decisions which seem to lend support to Mr. Chatterjee's argument and it is, therefore, necessary to e....
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....uthority must, besides serving the copy of the enquiring officer's report on the government servant, supply the said officer the findings of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion, this view is erroneous. The same comment falls to be made 'about another decision of the said High Court in Krishan Gopal Mukherjee v. The State (A.I.R. 1960 Orissa 37). The last decision to which reference must be made is the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley (A.I.R. 1954 Bom. 351) . In this case, Chief justice Chagla has observed that under Art. 311 (2) it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take, action against the servant. This view is clearly right. But then in support of this conclusion, the learned Chief justice has observed that the public servant must have an opportun....