M VENOGOPAL CHETTY Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff in O.S. No. 18 of 1960 on the file of the Court of the Third Additional Judge, City Civil Court, Hyderabad, is the appellant in this appeal. On 31st March, 1943, he was appointed as an inspector, Central Excise. On 17th February, 1954, he was promoted as Selection Grade Inspector, Central Excise. On 15th November, 1954 he was further promoted as an Officiating Deputy Superintendent of Central Excise. In 1956, he was severd with a memorandum of charges dated 22nd March, 1956 and was asked to show cause why disciplinary action should not be taken against him. There were four charges mentioned in the memorandum. The first charge was in two parts. The first part was that he received a sum of Rs. 5 as bribe on 14th September, 1953, from one Meka Nagi Reddy for bonding tobacco without weighment. The second part was that he received a sum of Rs. 50 as a bribe from the said Meka Nagi Reddy on or about 1st November, 1954, promising to help him in the case of illicit transport of tobacco in which the said Nagi Reddy was involved. Charge No. 2 related to the destruction or the disappearance of the case file relating to Meka Nagi Reddy. Charge No. 3 related to the falsification of records to cover up the disappearance of the case file. Charge No. 4 related to the bonding of tobacco belonging to Nagi Reddy on 13th September, 1953, without weighment. The appellant submitted his explanation denying the charges and thereafter there was an enquiry by the Assistant Collector of Central Excise. On the conclusion of the enquiry the Assistant Collector submitted his findings to the Collector. On charge No.1 he found that the evidence was inconclusive "for want of corroborative evidence", though there was circumstantial evidence showing that in all probability the appellant received illegal gratification. He found that charge Nos. 2, 3 and 4 had been established beyond reasonable doubt. On a perusal of the finding of the Assistant Collector, the Collector of Central Excise disagreed with the finding of the Assistant Collector on charge No.1 He found that charge No.1 was also established. He communicated the findings of the enquiry officer and his own findings to the appellant on 23rd August, 1956, and asked him to show cause why his rank should not be reduced to that of a Supervisor. The appellant submitted his explanation on 5th September, 1956. The Collector by his order dated 22nd September, 1956, confirmed his provisional findings on the charges and taking into account the long service to the credit of the appellant he directed that he should be reduced in rank from Selection Grade Inspector to an ordinary inspector for a period of three years. He fixed his salary at Rs.168 per month in the grade of Rs.120-8-200-10-2-220. He directed that the appellant should not be considered for promotion to Selection Grade for a minimum period of three years. Against the order of the Collector the appellant, on nth March, 1957, preferred an appeal to the Central Board of Revenue. While his appeal was pending before the Central Board of Revenue the Government of India, Ministry of Finance (Department of Revenue) by its memorandum dated 30th August, 1957, informed the appellant that on a review of the case in accordance with rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, the President was provisionally of the view that the punishment awarded to him by the Collector was inadequate having regard to the seriousness of the offences disclosed in the Collector's order and that the President proposed to enhance the punishment to one of dismissal from service and called upon the appellant "to show cause as required by Article 311 (2) of the Constitution why the proposed punishment should not be imposed on him". We think that it will be useful to extract the whole of the memorandum which was marked as Exhibit A-3 in the lower Court. It was as follows : "The undersigned is directed to refer the order C.N.II/10A/46/56 D-5 dated the 22nd September, 1956 (copy enclosed) passed by the Collector of Central Excise, Hyderabad, awarding to Shri M. Venugopal Chetty an Inspector of Central Excise, the punishment of reduction from Selection Grade Inspector to the Ordinary Grade of Inspector for a period of 3 years for the charges held proved against him. On a review of the case in accordance with rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, the President is provisionally of the view that having regard to the seriousness of the offence and disclosed in the Collector's order the punishment awarded to him by the Collector as inadequate and that no punishment other than his "dismissal from service" will meet the disciplinary needs of the case. The President therefore, proposed to enhance the punishment imposed by the Collector as indicated above. Before however a final decision is taken Shri N. Venugopala Chetty is called upon to show cause as required by Article 311 (2) of the Constitution why the proposed punishment should not be imposed on him. Any representation that he may like to make should be submitted through the Collector of Central Excise, Hyderabad, within one month of the date of receipt of this memorandum. If no reply is received within the specified time-limit it will be presumed that he has no grounds to urge against the proposed punishment and the case will be decided on its merits." The appellant submitted his explanation. Thereafter the appellant was informed by the Collector by a communication dated 5th September, 1958, that the President had accepted the advice of the Union Public Service Commission and enhanced the punishment already imposed on the appellant by the Collector to one of dismissal from service. The communication is in the following terms: " The President has accepted the advice of the Union Public Service Commission contained in the enclosed copy of their letter F. No. 3/28/58 S.I. dated 4th July, 1958 and has accordingly enhanced punishment of 'Reduction to the grade of ordinary Inspector for a period of 3 years' inflicted by the Collector of Central Excise, Hyderabad, on Shri Venugopal Chetty to one of his ' dismissal from service.' (2) Sri M. Venugopala Chetty is accordingly dismissed from service from the date he is relieved of his duties." A copy of the advice tendered by the Union Public Service Commission was enclosed. The Commission found that charge No.1 was not proved beyond doubt but charge Nos. 2, 5 and 4 were established. Accordingly to the Commission the charges established were serious enough to justify the punishment of dismissal from service. They accordingly advised that the appellant should be dismissed from service. On the same day as when the President's order was communicated to the appellant, he was also informed by the Collector that his appeal to the Central Board of Revenue was rejected. Thereafter, after giving the statutory notice under section 80, Civil Procedure Code, the appellant filed the suit out of which the appeal arises. He sought a declaration that the order dated 22nd September, 1956, reducing him in rank and the order dated 5th August, 1958, dismissing him from service were void and illegal, for recovery of arrears of salary and allowances and for future salary and allowances. Two of the main grounds stated in the plaint were : (1) The President had no jurisdiction to review the order, dated 22nd September, 1956, of the Collector of Central Excise as the Rules under which he purported to exercise the power of review came into force on 28th February, 1957, i.e., five months after the order of the Collector. (2) The order of the President was void and illegal as the appellant's case received no consideration from the President and the representation submitted by the appellant was treated as a mere formality. The question of appropriate punishment was never considered independently by the President or the Government after receipt of the advice of the Union Public Service Commission. Other grounds were also stated in the plaint but we are not concerned with them in this appeal. In the written statements filed on behalf of the defendants it was pleaded that the dismissal of the plaintiff from service was just and legal and that rule 32 of the Classification, (Control and Appeal) Rules of 1957, was restrospective in operation and, therefore, applied to the case of the plaintiff. It was not averred that the President or the Government considered the representation of the plaintiff or that the question of the appropriate punishment to be imposed considered independently after receipt of the advice of the Union Public Service Commission. It was, however, stated that the Union Public Service Commission considered all the relevant factors and records and came to the conclusion that the charges held proved were sufficient for the imposition of the sentence of the dismissal from service. No oral evidence was adduced by the parties. Both parties were content to file certain documents.

(2.) The learned Additional Judge dismissed the suit holding that the orders dated 22nd September, 1956 and 5th August, 1958, were not vitiated by any illigality. The learned Judge held that Rule 32 was retrospective and that the President had the power to review the order, dated 22nd September, 1956, of the Collector. The learned Judge also held that it was not necessary for the President to state his reasons for enhancing the punishment. It was enough if he had before him all the relevant records.

(3.) Sri K. Venkataramaiah, learned Counsel for the plaintiff-appellant faintly suggested that the findings of the enquiry officer on charge Nos. 2, 3 and 4 were unsustainable in view of his finding on charge No.1, since according to him charge Nos. 2, 3, and 4 were mere offshoots of charge No.1. Realising that consideration of the merits of the case would be beyond the scope of the suit, Sri Venkataramiah wisely refrained from pursuing the argument. He confined his attack to two grounds, both directed against the President's order. We will presently deal with both the grounds urged by Sri Venkataramaiah.