PETITIONER: M. N. DASANNA Vs. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT02/05/1973 BENCH: GROVER, A.N. BENCH: GROVER, A.N. MUKHERJEA, B.K. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 2275 1974 SCR (1) 87 1973 SCC (2) 378 ACT: Andhra Pradesh Civil Service (Disciplinary Proceedings Tribunal) Act, 1960-Rule 7 read with the proviso-If a report submitted by the Chairman who heard only the arguments but did not hold the enquiry himself is a valid report under the proviso to Sec. 7. HEADNOTE: The appellant was the officer-incharge of Vijaywada Government Headquarters Hospital. On a reference by the Government of Andhra Pardesh, the Tribunal under the Andhra Pradesh Civil Service (Disciplinary Proceedings Tribunal) Act, 1960, framed a number of charges against him. Proceedings by the Tribunal were first conducted before one K, the Chairman of the Tribunal. The Tribunal consisted of two members. Charges were framed and, the case was transferred to the other member N. The case was later withdrawn from him and K continued the enquiry until March 21, 1963 and examined certain witnesses. On the same date, the case was transferred to one S, who had succeeded N. S, held the enquiry for sometime, and examined a number of wit- nesses. He retired in July 1963. One G. who succeeded him continued to hold the enquiry and examined some witnesses. After the written statement of the appellant had been filed and his witnesses had been examined, he heard arguments but before he could submit a report S, was transferred and was succeeded by one C, who was then the Chairman of the Tribunal. He submitted a report on July 31, 1964. He held that out of 22 charges only 10 had been proved. Thereafter, a notice was sent to the appellant by the State to show cause why he should not be dismissed from service, and on September 3, 1964, the State directed that the penalty of dismissal be imposed on the appellant. The appellant moved the High Court challenging the order of dismissal mainly on the ground that the proceedings before the Tribunal were vitiated from beginning to end. While the writ petition was pending, a decision was ,given by a Division Bench of the High Court construing identical provisions of the Hyderabad Public Services (Tribunal Enquiry) Act that where one member alone conducted an enquiry and submitted his report, that report was invalid. In the meantime. an amendment was made in s. 7 of the Andhra Pradesh Act by adding a proviso, which provided that where a single member of the Tribunal holds an inquiry, he alone shall report his findings and it will be deemed to be a report of the Tribunal for the purposes of the Act. The appellant submitted that the amendment did not make any difference to his case; but the High Court negatived his contention and dismissed the writ 'Petition. Allowing the appeal, HELD : (i) According to the substantive Dart of s. 7 of the Andhra Pradesh Civil Service (Disciplinary Proceedings Tribunal) Act, 1960, it is the Tribunal which is to report the findings to the Government on the conclusion of the enquiry. In other words, even if the enquiry was conducted by one member, two members have to submit their report, if the Tribunal consists of two members, as in the present case. The proviso only enables the report to he ,submitted by one member alone if the condition prerequisite is satisfied, namely, that he has held the enquiry himself in the matter. If he has held the enquiry instead of two members, his report may be deemed to be the report of the Tribunal. In the present case, it is not in dispute that the Chairman of the Tribunal never conducted any part of the enquiry and that he had only heard arguments and then submitted his report giving his findings. In the judgment of the Andhra Pradesh High Court, C. K. Doraiswamy Naidu v. Andhra Pradesh 173 I.L.R. 1967 A.P. 904, it was laid down that the word 'Enquiry' under s. 8 of the Act does not include a finding. The enquiry was stated to cover the hearing of' the case. i.c., recording evidence, admitting documents and generally completing the records upon which a finding will be based. Therefore, the stage of enquiry has to be completed before the argument is advanced as is clear from Ruler 7(1)(iii). The net result would be that according to the Act and the Rules framed thereunder, arguments would not be a part of enquiry. The Chairman of the Tribunal had only heard arguments and had not held any part of the enquiry. Therefore, his report could not be deemed to be a report of the Tribunal under the Proviso to s. 7 of the Act. [176E] (ii) Under s. 7 the position is quite clear that if the tribunal consists of more than one member and if the enquiry is held by a single member, he alone Tribunal. But where a single member has not held any enquiry, then his report cannot be deemed to be report of the Tribunal, an it is essential that all members of the Tribunal should submit the report. As arguments could not form part of the enquiry, the conditions of s. 7 could not be- regarded to have been fulfilled. The result would be that the order of dismissal based on the report submitted by the Chairman, must be held to be illegal and void. [177B] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1596 of
1967.
Appeal by special leave from the judgment and order dated
July 5, 1956 of the Andhra Pradesh High Court in W.P. No.
468 of 1965.
A. K. Sen, A. V. Rangwn and A. Subhashini for the
appellant.
P. Ram Reddy and B. Parthasarathy, for the respondent No.
1.
The Judgment of the Court was delivered by
GROVER, J. This is an appeal by certificate from a judgment
of them Andhra Pradesh High Court dismissing a writ petition
filed by the appellant challenging the order of dismissal
from service.
The appellant who has passed the M.B B.S. examination of the
Madras University in 1940 entered the service of the State
of Madrason August 14, 1941 as Civil Assistant Surgeon. On
the formation of the State of Andhra Pradesh his services
were allotted to’ the new State. In 1961 he was working as
Officer-in-charge of Vijaywada Government Headquarters
Hospital.
On a reference by the Government of Andhra Pradesh, the
Tribunal, under the Andhra Pradesh Civil Services
(Disciplinary Proceedings) Tribunal Act 1960, hereinafter
called the ‘Act’, framed a number of charges against him.
Proceedings by the Tribunal were first conducted before Shri
K. Umpathy Rao, the Chairman of the Tribunal, which at all
material times, consisted of two members. The charges were
framed by him on August 22, 1962. On or about January 7,
1963 the case was transferred to the other member Shri
Nazimuddin. On the protest of the appellant that the said
member would be biased against him the case was withdrawn
from him and Shri K. Umpathy Rao continued the enquiry until
March 21, 1963 and examined certain witnesses. On the same
date the case was transferred to Shri Shankar Pershad who
had succeeded Shri Nazimmudin on the latter’s appointment.
Shri Shanker Pershad held the inquiry until June 20, 1963
and examined a number of witnesses. He retired in July
1963. Shri G. Ramaiah Chowdhary who succeeded him continued
to hold the enquiry and examined some witnesses. After the
written statement of
174
the appellant had been filed and his witnesses had been
examined he heard arguments on October 26, 1963. Before he
could submit a report Shri Chowdhary was transferred on
February 2, 1964 and was succeeded by Shri C.
Jaganathacharyulu who was then the Chairman of the Tribunal.
He submitted a report on July 31, 1964. He held that out of
the 22 charges only 10 had been proved. On September 15,
1964 a notice was sent to the appellant by the first
respondent herein to show cause why he should not be
dismissed from service. On September 3, 1964 the first
respondent directed that the penalty of dismissal be imposed
on the appellant.
The appellant moved the High Court under Art. 226 of the
Constitution challenging the order of dismissal principally
on the ground that the proceedings before the Tribunal were
vitiated from beginning to the end. While the writ petition
was pending a decision was given by the Division Bench(1) of
the High Court on September- 7, 1965 construing identical
provisions of the Hyderabad Public Service (Tribunal)
Enquiry, Act that where one member alone conducted an
enquiry and submitted his report that report was invalid and
opposed to the provisions of the Act and the decision of the
Government on such report would be without jurisdiction. It
is claimed on behalf of the appellant that in accordance
with that decision the writ petition would have been allowed
but for an amendment which was made in s. 7 of the Act by
adding a proviso which may be noticed.
“7. On the conclusion of an inquiry, the
Tribunal shall report its findings to the
Government……
Provided that where a single member of the
Tribunal holds an inquiry into a case as
provided in sub-section (1) of Section 6, he
alone shall report his findings and recommend
the penalties and his report to the Government
in this regard shall be deemed to be the
report of the Tribunal for the purposes of
this Act”.
The appellant submitted to the High Court that the amendment
did not make any difference and affect the merits of the
case in any manner but the High Court negatived his
contention and dismissed the writ petition.
We shall presently consider the contentions that have been
pressed before us on behalf of the appellant but we cannot
help observing at the threshold that the manner in which the
proceedings were conducted before the Tribunal strikes us as
most extraordinary. It is somewhat surprising that even
when the member who was holding the enquiry had not been
transferred or had not retired and was in a position to
conclude the enquiry and make a report the proceedings were
transferred either to the Chairman or some other member.
the relevant provisions of the Act and the rules may now be
noticed. Section 3 provided for the constitution of a
Tribunal for disciplinary proceedings consisting of one or
more members. Where the Tribunal consists of more than one
member the Government has to designate one of the
(1) C. K. Doraiswamy Naidu v. The State of Andhra Pradesh
I.L.R. [1967] Andhra pradesh. 904.
175
members as the Chairman. Under S. 6 (1 ) if the Tribunal
consists of more than one member an inquiry into a case
referred to the Tribunal shall be held by all the members
sitting together or by a single member as the Chairman may
direct. Under S. 7 the Tribunal has to report its findings
to the Government on the conclusion of the inquiry. Section
7, as it stood before the amendment Act 27 of 1965. provided
that on the conclusion of an inquiry the Tribunal shall
report its findings to the Government, The proviso which was
inserted after the judgment of the Andhra Pradesh High Court
mentioned before has already been quoted.
Rule 7 of the Rules framed under S. 10 of the Act requires
the Tribunal to follow the procedure prescribed thereby.
Under Rule 7(2)(i) after an inquiry has been completed the
Tribunal has to send the report of its findings and
recommendations to the Government together with its opinion.
Sub-rule 2(iii) says :
“After the Government have arrived at
provisional conclusions in regard to the
penalty to be imposed, the Government servant
charged shall be supplied with a copy of the
report of Tribunal and he shall be called upon
to show cause within a reasonable time against
the particular penalty proposed to be imposed”
Sub-rule 6 of Rule 7 is material and is
reproduced below
“Where the Chairman or any member of the
Tribunal is prevented by death, transfer or
other cause from concluding an enquiry or from
reporting his findings in any case referred to
the Tribunal, his successor may deal with any
evidence taken down by his predecessor in
office as if such evidence had been taken down
by him and may proceed with the enquiry from
the stage at which his predecessor had left
it, or report his findings to the Government.”
This sub-rule (6) was added by G.O.M. 690 dated the 12th
June 1964-
The High Court was of the view that if Shri Venkatarao who
made the report could be said to have held an enquiry under
S. 6(1) that his report would be valid in view of the
proviso to S. 7. It was pointed out that under sub-rule 6 of
Rule 7 Shri Venkata Rao as member of the Tribunal was
competent to lawfully deal with the evidence which had been
taken down by his predecessor as if such evidence had been
taken down by him. He proceeded to hear arguments on the
9th and 10th July 1964. The hearing of arguments was a part
of the enquiry under S. 6(1). It was not, therefore,
necessary that the report must have been made by both
members of the Tribunal.
Now it is quite clear that Shri Venkata Rao never examined
any witnesses or took on record any evidence. All that he
did was to hear arguments afresh. Under section 7 on
conclusion of an enquiry it is the Tribunal which has to
report its findings to the Government. The proviso was
inserted as is clear from the statement of Objects and
Reasons contained in the Bill which was introduced for
enacting the amending Act of 1965 because of the decision of
the Andhra
176
Pradesh High Court referred to before in which It was held
that the purpose of having a Tribunal of more than one
member was that all members should bring to bear their mind
to the matter in controversy and come to the conclusion that
where a single member had held an inquiry the findings of
the report should be given by all the members. It was
pointed out that the intention was that where a single
member held an inquiry under s. 6(1) he alone should report
his findings and recommend the penalties in the report to be
submitted to the Government. Where a single member held an
inquiry it might not be appropriate to require the other
member who had not enquired into the case and who did not
have an opportunity of hearing the evidence to take part in
further proceedings and recording the findings and, sub-
mitting the report to the government. In order to make the
intention clear and to validate the action taken by the
Government in the past on the findings and the report of a
single member of the Tribunal, the Andhra Pradesh Civil
Services (Disciplinary Proceedings) Tribunal Amendment
Ordinance 1965 had been promulgated by the Governor. That
was later followed by the Amendment Act 1965.
As Rule 7(6) cannot abrogate the provisions contained in the
Act and the provisions of the Act must prevail, we shall
have to determine what the true import and meaning of the
proviso to s. 7 is. It is abundantly clear that according
to the substantive part of s. 7 it is the Tribunal which has
to report the findings to the Government on the conclusion
of the enquiry. In other words even if the enquiry is con-
ducted by one member two members have to submit their report
if the Tribunal consists of two members as was the case
here. The proviso only enables the report to be submitted
by one member alone- if the condition pre-requisite is
satisfied, namely, that he has held an inquiry himself into
the matter. If he has held the enquiry then instead of two
members his report shall be deemed to be the report of the
Tribunal, The crucial question, therefore, in the present
case is whether the report of Shri Venkata Rao satisfied the
conditions laid down; in s. 7 and the proviso thereto. It
is not in dispute that he had never conducted any part of
the enquiry and that he had only heard arguments and then
submitted a report giving his findings. In the judgment of
the Andhra Pradesh High Court (supra) it was laid down that
the word “enquiry” in s. 8 of the Act does not include a
finding. The enquiry was stated to cover the hearing of the
case i.e. recording evidence, admitting documents and
generally completing the record upon which a finding would
be based. It is only after all the material has been placed
on the record by both the sides that the stage of reporting
a finding would arise. We entirely concur with this view.
in our opinion the stage of enquiry is completed before the
arguments have to be advanced as is clear from Rule
7(1)(iii) which is in the following terms :-
“As the enquiry, oral and documentary evidence
shall be first adduced by the prosecution and
the Government servant charged shall be
entitled to cross-examine the prosecution
witnesses and to explain any documents
produced by the prosecution. After the
enquiry is completed, the Government servant
charged shall be entitled to advance the
neces-
177
sary arguments and the prosecution shall have
a right of reply”.
The net result would be that according to the Act and the
Rules framed thereunder arguments would not be a part of
enquiry. As Shri Venkata Rao had only heard arguments and
had not held any part of the enquiry, his report could not
be deemed to be the. report of the Tribunal under the
proviso to s. 7 of the, Act. As pointed out before sub-rule
6 of Rule 7 cannot override s. 7 of the Act. Under s. 7 the
position is quite clear that if the Tribunal consists of
more than one member and if the enquiry is held by a single
member ha alone can report his findings and his report shall
be deemed to be a report of the Tribunal but where a single,
member has not held any enquiry then his report cannot be
deemed to be the report of the Tribunal and it is essential
that all members of the Tribunal should submit their’
report. As arguments could not form part of the enquiry the
conditions of s. 7 could not be regarded to have, been
fulfilled. The High Court was entirely in error in holding
that Shri Venkata Rao who had only heard arguments should be
treated to have held part of the enquiry and therefore Ms
report should be deemed to be the report of the Tribunal.
The result would be that the order of dismissal based on the
report submitted by Shri Venkata Rao must be held to be
illegal and void.
For the reasons given above the appeal is allowed and the
order of the High Court is set aside. The writ petition
shall stand allowed with the result that the order of
dismissal shall stand quashed. The appellant will be
entitled to his costs in this Court.
S.C. Appeal allowed.
13-944SupCI/73
178