{"id":152838,"date":"1973-05-02T00:00:00","date_gmt":"1973-05-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-n-dasanna-vs-state-of-andhra-pradesh-on-2-may-1973"},"modified":"2017-11-02T15:10:12","modified_gmt":"2017-11-02T09:40:12","slug":"m-n-dasanna-vs-state-of-andhra-pradesh-on-2-may-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-n-dasanna-vs-state-of-andhra-pradesh-on-2-may-1973","title":{"rendered":"M. N. Dasanna vs State Of Andhra Pradesh on 2 May, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. N. Dasanna vs State Of Andhra Pradesh on 2 May, 1973<\/div>\n
Equivalent citations: 1973 AIR 2275, \t\t 1974 SCR (1)\t 87<\/div>\n
Author: A Grover<\/div>\n
Bench: Grover, A.N.<\/div>\n
           PETITIONER:\nM.   N. DASANNA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF ANDHRA PRADESH\n\nDATE OF JUDGMENT02\/05\/1973\n\nBENCH:\nGROVER, A.N.\nBENCH:\nGROVER, A.N.\nMUKHERJEA, B.K.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1973 AIR 2275\t\t  1974 SCR  (1)\t 87\n 1973 SCC  (2) 378\n\n\nACT:\nAndhra\tPradesh\t Civil\tService\t (Disciplinary\t Proceedings\nTribunal) Act, 1960-Rule 7 read with the proviso-If a report\nsubmitted  by the Chairman who heard only the arguments\t but\ndid not hold the enquiry himself is a valid report under the\nproviso to Sec. 7.\n\n\n\nHEADNOTE:\nThe   appellant\t was  the  officer-incharge   of   Vijaywada\nGovernment  Headquarters  Hospital.  On a reference  by\t the\nGovernment of Andhra Pardesh, the Tribunal under the  Andhra\nPradesh\t Civil Service (Disciplinary  Proceedings  Tribunal)\nAct,   1960,  framed  a\t number\t of  charges  against\thim.\nProceedings by the Tribunal were first conducted before\t one\nK, the Chairman of the Tribunal.  The Tribunal consisted  of\ntwo  members.\tCharges\t were  framed  and,  the  case\t was\ntransferred  to\t the  other member N.  The  case  was  later\nwithdrawn  from him and K continued the enquiry until  March\n21, 1963 and examined certain witnesses.  On the same  date,\nthe  case was transferred to one S, who had succeeded N.  S,\nheld the enquiry for sometime, and examined a number of wit-\nnesses.\t He retired in July 1963.  One G. who succeeded\t him\ncontinued  to hold the enquiry and examined some  witnesses.\nAfter the written statement of the appellant had been  filed\nand his witnesses had been examined, he heard arguments\t but\nbefore\the could submit a report S, was transferred and\t was\nsucceeded  by  one  C,\twho was then  the  Chairman  of\t the\nTribunal.  He submitted a report on July 31, 1964.  He\theld\nthat out of 22 charges only 10 had been proved.\t Thereafter,\na  notice  was sent to the appellant by the  State  to\tshow\ncause  why he should not be dismissed from service,  and  on\nSeptember  3, 1964, the State directed that the\t penalty  of\ndismissal be imposed on the appellant.\nThe appellant moved the High Court challenging the order  of\ndismissal  mainly on the ground that the proceedings  before\nthe Tribunal were vitiated from beginning to end.  While the\nwrit  petition\twas  pending, a decision  was  ,given  by  a\nDivision  Bench\t of  the  High\tCourt  construing  identical\nprovisions  of\tthe  Hyderabad\tPublic\tServices   (Tribunal\nEnquiry)  Act  that  where one\tmember\talone  conducted  an\nenquiry\t and submitted his report, that report was  invalid.\nIn the meantime. an amendment was made in s. 7 of the Andhra\nPradesh Act by adding a proviso, which provided that where a\nsingle\tmember\tof the Tribunal holds an inquiry,  he  alone\nshall  report  his findings and it will be deemed  to  be  a\nreport\tof  the Tribunal for the purposes of the  Act.\t The\nappellant  submitted  that the amendment did  not  make\t any\ndifference  to\this case; but the High Court  negatived\t his\ncontention and dismissed the writ 'Petition.\nAllowing the appeal,\nHELD : (i) According to the substantive Dart of s. 7 of\t the\nAndhra\tPradesh\t Civil\tService\t (Disciplinary\t Proceedings\nTribunal)  Act, 1960, it is the Tribunal which is to  report\nthe  findings  to the Government on the\t conclusion  of\t the\nenquiry.  In other words, even if the enquiry was  conducted\nby  one member, two members have to submit their report,  if\nthe  Tribunal  consists of two members, as  in\tthe  present\ncase.  The proviso only enables the report to he  ,submitted\nby  one\t member\t alone\tif  the\t condition  prerequisite  is\nsatisfied,  namely, that he has held the enquiry himself  in\nthe  matter.   If  he has held the enquiry  instead  of\t two\nmembers,  his report may be deemed to be the report  of\t the\nTribunal.\n In the present case, it is not in dispute that the Chairman\nof the Tribunal never conducted any part of the enquiry\t and\nthat  he  had only heard arguments and\tthen  submitted\t his\nreport\tgiving his findings.  In the judgment of the  Andhra\nPradesh High Court, C. K. Doraiswamy Naidu v. Andhra Pradesh\n173\nI.L.R.\t1967  A.P.  904,  it was laid  down  that  the\tword\n'Enquiry' under s. 8 of the Act does not include a  finding.\nThe  enquiry was stated to cover the hearing of'  the  case.\ni.c., recording evidence, admitting documents and  generally\ncompleting  the records upon which a finding will be  based.\nTherefore,  the stage of enquiry has to be completed  before\nthe  argument is advanced as is clear from Ruler  7(1)(iii).\nThe  net result would be that according to the Act  and\t the\nRules  framed thereunder, arguments would not be a  part  of\nenquiry.   The\tChairman  of the  Tribunal  had\t only  heard\narguments  and\thad  not  held\tany  part  of  the  enquiry.\nTherefore, his report could not be deemed to be a report  of\nthe Tribunal under the Proviso to s. 7 of the Act. [176E]\n(ii) Under  s.\t7 the position is quite clear  that  if\t the\ntribunal consists of more than one member and if the enquiry\nis held by a single member, he alone Tribunal.\tBut where  a\nsingle\tmember\thas not held any enquiry,  then\t his  report\ncannot be deemed to be\t report\t of the Tribunal, an  it  is\nessential that all members of the Tribunal   should   submit\nthe  report.   As  arguments  could not\t form  part  of\t the\nenquiry,  the  conditions of s. 7 could not be- regarded  to\nhave been fulfilled.  The result would be that the order  of\ndismissal  based  on the report submitted by  the  Chairman,\nmust be held to be illegal and void. [177B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1596  of
\n1967.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nJuly  5, 1956 of the Andhra Pradesh High Court in  W.P.\t No.
\n468 of 1965.\n<\/p>\n
A.   K.\t Sen,  A.  V.  Rangwn  and  A.\tSubhashini  for\t the
\nappellant.\n<\/p>\n
P.   Ram Reddy and B. Parthasarathy, for the respondent\t No.\n<\/p>\n
1.
\nThe Judgment of the Court was delivered by
\nGROVER, J. This is an appeal by certificate from a  judgment
\nof them Andhra Pradesh High Court dismissing a writ petition
\nfiled  by the appellant challenging the order  of  dismissal
\nfrom service.\n<\/p>\n
The appellant who has passed the M.B B.S. examination of the
\nMadras\tUniversity in 1940 entered the service of the  State
\nof Madrason August 14, 1941 as Civil Assistant Surgeon.\t  On
\nthe  formation of the State of Andhra Pradesh  his  services
\nwere allotted to’ the new State.  In 1961 he was working  as
\nOfficer-in-charge   of\tVijaywada  Government\tHeadquarters
\nHospital.\n<\/p>\n
On  a  reference by the Government of  Andhra  Pradesh,\t the
\nTribunal,   under   the\t Andhra\t  Pradesh   Civil   Services
\n(Disciplinary  Proceedings) Tribunal Act  1960,\t hereinafter
\ncalled\tthe ‘Act’, framed a number of charges  against\thim.
\nProceedings by the Tribunal were first conducted before Shri
\nK.  Umpathy Rao, the Chairman of the Tribunal, which at\t all
\nmaterial times, consisted of two members.  The charges\twere
\nframed\tby him on August 22, 1962.  On or about\t January  7,
\n1963  the  case\t was transferred to the\t other\tmember\tShri
\nNazimuddin.   On the protest of the appellant that the\tsaid
\nmember\twould be biased against him the case  was  withdrawn
\nfrom him and Shri K. Umpathy Rao continued the enquiry until
\nMarch 21, 1963 and examined certain witnesses.\tOn the\tsame
\ndate  the case was transferred to Shri Shankar\tPershad\t who
\nhad  succeeded Shri Nazimmudin on the latter’s\tappointment.
\nShri  Shanker Pershad held the inquiry until June  20,\t1963
\nand  examined  a number of witnesses.  He  retired  in\tJuly
\n1963.  Shri G. Ramaiah Chowdhary who succeeded him continued
\nto hold the enquiry and examined some witnesses.  After\t the
\nwritten statement of
\n174<\/span>
\nthe  appellant\thad been filed and his\twitnesses  had\tbeen
\nexamined he heard arguments on October 26, 1963.  Before  he
\ncould  submit  a report Shri Chowdhary\twas  transferred  on
\nFebruary   2,\t1964   and  was\t  succeeded   by   Shri\t  C.
\nJaganathacharyulu who was then the Chairman of the Tribunal.
\nHe submitted a report on July 31, 1964.\t He held that out of
\nthe  22 charges only 10 had been proved.  On  September\t 15,
\n1964  a\t notice\t was  sent to the  appellant  by  the  first
\nrespondent  herein  to\tshow  cause why\t he  should  not  be
\ndismissed  from\t service.  On September 3,  1964  the  first
\nrespondent directed that the penalty of dismissal be imposed
\non the appellant.\n<\/p>\n
The  appellant\tmoved the High Court under Art. 226  of\t the
\nConstitution challenging the order of dismissal\t principally
\non the ground that the proceedings before the Tribunal\twere
\nvitiated from beginning to the end.  While the writ petition
\nwas pending a decision was given by the Division Bench(1) of
\nthe  High Court on September- 7, 1965  construing  identical
\nprovisions  of\tthe  Hyderabad\tPublic\tService\t  (Tribunal)
\nEnquiry,  Act  that  where one\tmember\talone  conducted  an
\nenquiry and submitted his report that report was invalid and
\nopposed to the provisions of the Act and the decision of the
\nGovernment on such report would be without jurisdiction.  It
\nis  claimed  on behalf of the appellant that  in  accordance
\nwith that decision the writ petition would have been allowed
\nbut  for an amendment which was made in s. 7 of the  Act  by
\nadding a proviso which may be noticed.\n<\/p>\n
\t      “7.  On  the  conclusion of  an  inquiry,\t the
\n\t      Tribunal\tshall  report its  findings  to\t the
\n\t      Government……\n<\/p><\/blockquote>\n
\t      Provided\tthat where a single  member  of\t the
\n\t      Tribunal\tholds  an  inquiry into\t a  case  as
\n\t      provided\tin sub-section (1) of Section 6,  he
\n\t      alone shall report his findings and  recommend
\n\t      the penalties and his report to the Government
\n\t      in  this\tregard\tshall be deemed\t to  be\t the
\n\t      report  of  the Tribunal for the\tpurposes  of
\n\t      this Act”.\n<\/p><\/blockquote>\n
The appellant submitted to the High Court that the amendment
\ndid  not  make any difference and affect the merits  of\t the
\ncase  in  any  manner  but  the\t High  Court  negatived\t his
\ncontention and dismissed the writ petition.
\nWe  shall presently consider the contentions that have\tbeen
\npressed\t before us on behalf of the appellant but we  cannot
\nhelp observing at the threshold that the manner in which the
\nproceedings were conducted before the Tribunal strikes us as
\nmost  extraordinary.   It is somewhat surprising  that\teven
\nwhen  the  member who was holding the enquiry had  not\tbeen
\ntransferred  or\t had not retired and was in  a\tposition  to
\nconclude the enquiry and make a report the proceedings\twere
\ntransferred  either  to the Chairman or some  other  member.
\nthe relevant provisions of the Act and the rules may now  be
\nnoticed.   Section  3  provided for the\t constitution  of  a
\nTribunal  for disciplinary proceedings consisting of one  or
\nmore members.  Where the Tribunal consists of more than\t one
\nmember the Government has to designate one of the
\n(1)  C. K. Doraiswamy Naidu v. The State of  Andhra  Pradesh
\nI.L.R. [1967] Andhra pradesh. 904.\n<\/p>\n
175<\/span><\/p>\n
members\t as the Chairman.  Under S. 6 (1 ) if  the  Tribunal
\nconsists  of  more than one member an inquiry  into  a\tcase
\nreferred  to the Tribunal shall be held by all\tthe  members
\nsitting\t together or by a single member as the Chairman\t may
\ndirect.\t Under S. 7 the Tribunal has to report its  findings
\nto the Government on the conclusion of the inquiry.  Section
\n7, as it stood before the amendment Act 27 of 1965. provided
\nthat  on  the conclusion of an inquiry\tthe  Tribunal  shall
\nreport its findings to the Government, The proviso which was
\ninserted after the judgment of the Andhra Pradesh High Court
\nmentioned before has already been quoted.
\nRule  7 of the Rules framed under S. 10 of the Act  requires
\nthe  Tribunal  to follow the procedure\tprescribed  thereby.
\nUnder  Rule 7(2)(i) after an inquiry has been completed\t the
\nTribunal  has  to  send\t the  report  of  its  findings\t and
\nrecommendations to the Government together with its opinion.
\nSub-rule 2(iii) says :\n<\/p>\n
\t      “After   the   Government\t have\tarrived\t  at
\n\t      provisional  conclusions\tin  regard  to\t the
\n\t      penalty to be imposed, the Government  servant
\n\t      charged  shall be supplied with a copy of\t the
\n\t      report of Tribunal and he shall be called upon
\n\t      to show cause within a reasonable time against
\n\t      the particular penalty proposed to be imposed”
\n\t      Sub-rule\t6  of  Rule 7  is  material  and  is
\n\t      reproduced below
\n\t      “Where  the  Chairman  or any  member  of\t the
\n\t      Tribunal\tis prevented by death,\ttransfer  or
\n\t      other cause from concluding an enquiry or from
\n\t      reporting his findings in any case referred to
\n\t      the Tribunal, his successor may deal with\t any
\n\t      evidence\ttaken  down by\this  predecessor  in
\n\t      office as if such evidence had been taken down
\n\t      by  him and may proceed with the enquiry\tfrom
\n\t      the  stage at which his predecessor  had\tleft
\n\t      it, or report his findings to the Government.”\n<\/p><\/blockquote>\n
This  sub-rule\t(6) was added by G.O.M. 690 dated  the\t12th
\nJune 1964-\n<\/p>\n
The  High Court was of the view that if Shri Venkatarao\t who
\nmade the report could be said to have held an enquiry  under
\nS.  6(1)  that\this report would be valid  in  view  of\t the
\nproviso to S. 7. It was pointed out that under sub-rule 6 of
\nRule  7\t Shri  Venkata Rao as member  of  the  Tribunal\t was
\ncompetent to lawfully deal with the evidence which had\tbeen
\ntaken  down by his predecessor as if such evidence had\tbeen
\ntaken  down by him.  He proceeded to hear arguments  on\t the
\n9th and 10th July 1964.\t The hearing of arguments was a part
\nof  the\t enquiry  under S. 6(1).   It  was  not,  therefore,
\nnecessary  that\t the  report must have\tbeen  made  by\tboth
\nmembers of the Tribunal.\n<\/p>\n
Now  it is quite clear that Shri Venkata Rao never  examined
\nany  witnesses or took on record any evidence.\tAll that  he
\ndid  was  to  hear arguments afresh.   Under  section  7  on
\nconclusion  of\tan enquiry it is the Tribunal which  has  to
\nreport\tits  findings to the Government.   The\tproviso\t was
\ninserted  as  is  clear from the statement  of\tObjects\t and
\nReasons\t contained  in\tthe Bill which\twas  introduced\t for
\nenacting the amending Act of 1965 because of the decision of
\nthe Andhra
\n176<\/span>
\nPradesh\t High Court referred to before in which It was\theld
\nthat  the  purpose  of having a Tribunal of  more  than\t one
\nmember was that all members should bring to bear their\tmind
\nto the matter in controversy and come to the conclusion that
\nwhere  a single member had held an inquiry the\tfindings  of
\nthe  report  should  be given by all the  members.   It\t was
\npointed\t out  that  the intention was that  where  a  single
\nmember held an inquiry under s. 6(1) he alone should  report
\nhis findings and recommend the penalties in the report to be
\nsubmitted to the Government.  Where a single member held  an
\ninquiry\t it  might not be appropriate to require  the  other
\nmember\twho had not enquired into the case and who  did\t not
\nhave an opportunity of hearing the evidence to take part  in
\nfurther\t proceedings  and recording the findings  and,\tsub-
\nmitting the report to the government.  In order to make\t the
\nintention  clear  and to validate the action  taken  by\t the
\nGovernment  in the past on the findings and the report of  a
\nsingle\tmember\tof the Tribunal, the  Andhra  Pradesh  Civil
\nServices   (Disciplinary  Proceedings)\tTribunal   Amendment
\nOrdinance  1965 had been promulgated by the Governor.\tThat
\nwas later followed by the Amendment Act 1965.
\nAs Rule 7(6) cannot abrogate the provisions contained in the
\nAct  and  the provisions of the Act must prevail,  we  shall
\nhave  to determine what the true import and meaning  of\t the
\nproviso\t to s. 7 is.  It is abundantly clear that  according
\nto the substantive part of s. 7 it is the Tribunal which has
\nto  report the findings to the Government on the  conclusion
\nof the enquiry.\t In other words even if the enquiry is\tcon-
\nducted by one member two members have to submit their report
\nif  the\t Tribunal consists of two members as  was  the\tcase
\nhere.\tThe proviso only enables the report to be  submitted
\nby  one\t member\t alone- if the\tcondition  pre-requisite  is
\nsatisfied, namely, that he has held an inquiry himself\tinto
\nthe matter.  If he has held the enquiry then instead of\t two
\nmembers\t his report shall be deemed to be the report of\t the
\nTribunal,  The crucial question, therefore, in\tthe  present
\ncase is whether the report of Shri Venkata Rao satisfied the
\nconditions  laid down; in s. 7 and the proviso thereto.\t  It
\nis  not in dispute that he had never conducted any  part  of
\nthe  enquiry and that he had only heard arguments  and\tthen
\nsubmitted a report giving his findings.\t In the judgment  of
\nthe Andhra Pradesh High Court (supra) it was laid down\tthat
\nthe  word  “enquiry” in s. 8 of the Act does not  include  a
\nfinding.  The enquiry was stated to cover the hearing of the
\ncase  i.e.  recording  evidence,  admitting  documents\t and
\ngenerally  completing the record upon which a finding  would
\nbe based.  It is only after all the material has been placed
\non the record by both the sides that the stage of  reporting
\na  finding would arise.\t We entirely concur with this  view.
\nin our opinion the stage of enquiry is completed before\t the
\narguments  have\t to  be\t advanced  as  is  clear  from\tRule
\n7(1)(iii) which is in the following terms :-\n<\/p>\n
\t      “As the enquiry, oral and documentary evidence
\n\t      shall be first adduced by the prosecution and
\n\t      the   Government\tservant\t charged  shall\t  be
\n\t      entitled\tto  cross-examine  the\t prosecution
\n\t      witnesses\t  and  to  explain   any   documents
\n\t      produced\t by  the  prosecution.\t After\t the
\n\t      enquiry  is completed, the Government  servant
\n\t      charged  shall  be  entitled  to\tadvance\t the
\n\t      neces-\n<\/p><\/blockquote>\n
\t       177<\/span><\/p>\n
\t      sary arguments and the prosecution shall\thave
\n\t      a right of reply”.\n<\/p><\/blockquote>\n
The  net result would be that according to the Act  and\t the
\nRules  framed  thereunder arguments would not be a  part  of
\nenquiry.   As Shri Venkata Rao had only heard arguments\t and
\nhad  not held any part of the enquiry, his report could\t not
\nbe  deemed  to\tbe the. report of  the\tTribunal  under\t the
\nproviso to s. 7 of the, Act.  As pointed out before sub-rule
\n6 of Rule 7 cannot override s. 7 of the Act.  Under s. 7 the
\nposition  is  quite clear that if the Tribunal\tconsists  of
\nmore than one member and if the enquiry is held by a  single
\nmember ha alone can report his findings and his report shall
\nbe deemed to be a report of the Tribunal but where a single,
\nmember\thas not held any enquiry then his report cannot\t be
\ndeemed to be the report of the Tribunal and it is  essential
\nthat  all  members  of the  Tribunal  should  submit  their’
\nreport.\t As arguments could not form part of the enquiry the
\nconditions  of\ts.  7 could not be regarded  to\t have,\tbeen
\nfulfilled.  The High Court was entirely in error in  holding
\nthat Shri Venkata Rao who had only heard arguments should be
\ntreated\t to have held part of the enquiry and  therefore  Ms
\nreport\tshould be deemed to be the report of  the  Tribunal.
\nThe result would be that the order of dismissal based on the
\nreport\tsubmitted  by Shri Venkata Rao must be\theld  to  be
\nillegal and void.\n<\/p>\n
For  the reasons given above the appeal is allowed  and\t the
\norder  of  the High Court is set aside.\t The  writ  petition
\nshall  stand  allowed  with the result\tthat  the  order  of
\ndismissal  shall  stand\t quashed.   The\t appellant  will  be
\nentitled to his costs in this Court.\n<\/p>\n
S.C.\t\t\t\t       Appeal allowed.\n13-944SupCI\/73\n178<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. N. Dasanna vs State Of Andhra Pradesh on 2 May, 1973 Equivalent citations: 1973 AIR 2275, 1974 SCR (1) 87 Author: A Grover Bench: Grover, A.N. 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-152838","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. N. 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