http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

PETITIONER:

P. JOSEPH JOHN

Vs.

RESPONDENT:

THE STATE OF TRAVANCORE-COCHIN.

DATE OF JUDGMENT:

25/11/1954

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

BHAGWATI, NATWARLAL H.

JAGANNADHADAS, B.

AIYYAR, T.L. VENKATARAMA

CITATION:

1955 AIR 160 1955 SCR (1)1011

ACT:

Constitution of India, Arts. 166, 311, 320-Opportunity to

show cause-Consultation with Public Services Commission-

Extent of Travancore Public Servants (Inquiries) Act, (Act

XI of 1132)-"Our Government"-Meaning of-Covenant of United

State of Travancore-Cochin-Article 20-Application of.

130

1012

HEADNOTE:

An enquiry under the provisions of the Travancore Public

Servants (Inquiries) Act, (Act XI of 1132) was held against

the petitioner in pursuance of a resolution passed by the

Council of Ministers. The petitioner took part in the

proceedings, denied the charges and raised legal objection

to the competence of the Enquiry Commission to hold the

enquiry. Some of the charges were held proved. The

petitioner was asked by the Chief Secretary to show cause

why be should not be removed from service. The petitioner's

request for extension of time to show cause was granted

twice but refused a third time. On his failure to avail

himself of the opportunity to show cause against the action

proposed to be taken against him, the report of the Enquiry

Commissioner was submitted to the Public Services Commission

and the latter approved of the action proposed to be taken

against the petitioner. The proceedings relating to the

enquiry were submitted to the Rajpramukh and thereupon an

order in proper form for the removal of the petitioner from

service was made by the Rajpramukh and authenticated by the

Chief Secretary to Government.

Held, (i) that under the provisions of Art. 311 of the

Constitution a civil servant is entitled to have a

reasonable opportunity to defend himself and show cause,

both at the time of enquiry into the charges brought against

him and at the stage when definite conclusions have been

come to on the charges and the actual punishment to follow

is provisionally determined upon. The position cannot be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

characterised as anomalous if the statute contemplates a

reasonable opportunity at more than one stage.

In the present case the petitioner had reasonable

opportunity to enter upon his defence at both the stages.

He fully availed himself of the first opportunity, but

refused to avail himself of the second opportunity which was

offered to him. All the rules of natural justice were

observed in the case.

(ii) The provisions of Art. 166(1) and (2) are directory,

not mandatory; and, in order to determine whether there has

been compliance with the said provisions, all that is

necessary to see is that the requirements of the sub-

sections are met in substance.

(iii) After the integration of the two States of

Travancore and Cochin, the expression " Our Government"

means "The Council of Ministers" under the new set up of

democratic Government in the United State. The Rajpramukh

as the head of the State is merely at constitutional head

and is bound to accept the advice of his Ministers.

(iv) The consultation envisaged by Art. 320(3) does not

extend to review petitions which the petitioner may choose

to file as many times as he likes.

(v) The sanction of the Rajpramukli under Art. 20 of the

Covenant of the United State of Travancore-Cochin is

necessary only before the institution of civil or criminal

proceedings. Departmental proceedings do not fall within

the ambit of the said Article.

1013

Dattatreya Moreshwar Pangarkar v. The State of Bombay

([1952] S.C.R. 612), referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 90 of 1953.

Appeal under Article 132(1) of the Constitution of India

from the Judgment and Order dated the 29th August, 1952, of

the High Court of TravancoreCochin at Ernakulam in Original

Petition No. 51 of 1952.

K.Thomas and M. R. Krishna Pillai, for the appellant.

Mathew P. Muricken, Advocate-General for the State of

Travancore-Cochin (T. R. Balakrishna Ayyaiand Sardar

Bahadur, with him), for the respondent.

1954. November 25. The Judgment of the Court was delivered

by

MEHR CHAND MAHAJAN C. J.-This appeal by leave of the High

Court of Judicature of TravancoreCochin at Ernakulam is

directed against an order of a Full Bench of that court

dismissing an application for the issue of a writ of

certiorari quashing the order of the Government of the

united State of TravancoreCochin removing the appellant from

service of the State and permanently debarring him from

reappointment in service.

The facts giving rise to the petition and the appeal are

these: The petitioner entered the service of the erstwhile

Travancore State in the year 1928. By promotion he became

the Executive Engineer, Electricity Department in August

1937 and subsequently Electrical Engineer to Government in

October 1944. He was the Electrical Engineer to Government

on the 1st July 1949 when the States of Travancore and Co-

chin were integrated by a Covenant entered into between the

rulers of the two States. By an order of the Government of

the united State of Travancore-Cochin dated the 11th August

1949, he was appointed as the officiating Chief Engineer

(Electricity) in the State. In or about September 1949 the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

Government of the

1014

united State received serious complaints about the conduct

and dealings of some of their senior officers and

allegations of corruption, communalism, etc. were made

against them. In December 1949 the Council of Ministers

decided to take action against the appellant on a number of

charges indicated in the resolution. On the 22nd December

1949, immediately after this resolution was passed, the

petitioner was informed that he was suspended from service

pending enquiry and he was requested to hand over charge to

Sri K. P. Sridharan Nair forthwith. The petitioner complied

with this order and handed over charge as directed. On the

21st March 1950 the following notification was issued:-

"Whereas Government are of opinion that there are sufficient

grounds for making a formal and public inquiry into the

truth of the imputation of misconduct of the officers

mentioned below:

Government, under section 3 of the Travancore Public

Servants (Inquiries) Act, XI of 1122, hereby commit the said

inquiry to Sri K. Sankaran, Judge, High Court, appointed

Commissioner for the purpose.

Government are further pleased under section 4 of the said

Act to nominate Sri T. R. Balakrishna Ayyar, Government

Pleader, High Court, to prosecute the inquiries on their

behalf.

The inquiries shall be conducted as early as possible.

The officers referred to in para. 1 supra are:

I..........................................

2. Sri P. Joseph John".

The petitioner was informed by notice of the 24th April 1950

about this inquiry. The notification was signed by Shri K.

G. Menon, Chief Secretary to Government.

Mr. Justice Sankaran took charge as Enquiry Commissioner and

on the 11th May 1950 forwarded the articles of charges

against the petitioner, the list of witnesses and the list

of documents placed before him together with the notice

regarding the commencement of the enquiry to Shri K. S.

Raghavan, Secre-

1015

tary to Government, for service on the petitioner. A few

days before the date fixed for the commencement of the

enquiry the petitioner made an application to the Enquiry

Commissioner for a direction to the Prosecutor to produce

the files and papers relating to the various charges in the

office of the Commissioner and for permission to him and his

counsel to inspect the same. This application was allowed

and he and his advocate were allowed to inspect the relevant

files in the presence of the prosecutor or his deputy. On

the 20th May 1950 when the enquiry commenced, the petitioner

pleaded not guilty to the charges by a written statement.

He was defended during the enquiry by Shri K. P. Abraham, a

leading member of the Bar. A preliminary objection was

taken to the Tribunal's jurisdiction on the basis of Article

20 of the Covenant entered into between the rulers of Tra-

vancore and Cochin and it was contended that the proceedings

before the Commissioner were criminal in nature and could

not be commenced without the sanction of the Rajpramukh and

that its absence was fatal to the enquiry. This objection

was not immediately decided by the Commissioner but was

ultimately overruled. On the 22nd November 1950 the peti-

tioner submitted detailed answers in writing to the various

charges. The enquiry concluded on the 27th December 1950

and the Commissioner submitted his report to Government on

the 17th February 1951. Some of the-charges were held

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

proved, while others were held not established. On the 5th

July 1951 the following communication was sent to the

petitioner by the Chief Secretary to Government:-

"I am to enclose here with a copy of the above report and to

point out that the Government agree with the findings of the

Inquiring Commissioner on the several charges against you.

Government also agree with the Commissioner that the

objections raised by you challenging the validity of the en-

quiry itself are not tenable.

2. As against the 26 charges framed

1016

against you, the nine charges noted in the margin

have not been established and they are accordingly

dropped. As regards Charge No. IX in view of the

extenuating circumstances, the irregularity is condoned.

3. It is evident from the remaining charges, which have been

established, that you have misused your official position as

Electrical Engineer to Government and shown undue

favouritism at the expense of State revenues, to private

firms and issued materials from Government stores to private

companies and individuals in violation of all rules (vide

List A). It is also evident that departmental stores and

departmental lorries have been diverted for your personal

use in a number of cases. (Vide List B). You are also found

guilty of having shown defiance and insubordination towards

the authority of the Government by your refusal, in

connection with the supply of power to the Nagercoil

Electric Supply Corporation, to supply certain particulars

which were called for and which it was your duty to furnish

and by your refusal to withdraw the objectionable statement

in your reply to the Government in spite of the Government

order directing you to withdraw the same.

4. The Government therefore propose to remove you from

service from the date on which you were placed under

suspension with permanent bar against future reappointment

in service.

5. You are requested to show cause within 15 days of the

date of receipt of this notice with enclosures why action

should not be taken against you as proposed in paragraph 4

above".

The petitioner on receipt of this notice applied for time

till the 10th September 1951 for showing cause. Time as

prayed for was allowed. On the 10th September 1951 when the

time granted at his own request

1017

was due to expire, he again applied for further time till

the 10th November 1951. He was allowed further time till

the 24th September 1951. On that date he again asked for

further time till the 31 st October 1951 but this request

was not granted. In spite of the fact that the petitioner

was granted the time which he originally asked for and this

was further extended by a fortnight, he furnished no

explanation and did not show any cause against the notice

issued to him. The petitioner having failed to avail

himself of the opportunity to show cause against the action

proposed against him, a draft of the proceedings relating to

the enquiry was submitted to H. H. the Rajpramukh oil the

30th September 1951 and thereupon an order was issued for

his removal from service from the date of suspension and

debarring him from reappointment to service. The order was

in proper form as having been made by H. H. the Rajpramukh

and was authenticated by the Chief Secretary to Government.

This order is dated the 1st October 1951. It may be

mentioned that before the papers were submitted to H. H. the

Rajpramukh, the report of the Commissioner was submitted to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

the Public Services Commission for their consideration. The

Public Services Commission supported the action which the

Government proposed to take against the petitioner. On the

9th October 1951 the petitioner was removed from service

with effect from the 26th December 1949. Two months after

the order of his removal, the petitioner submitted an ap-

plication for a reconsideration of the order removing him

from service. This was rejected by an order dated the 25th

January 1952.

On these facts and in these circumstances an application was

made before the High Court of Travancore-Cocliin at

Ernakulam on the 2nd June 1952 praying that the court may be

pleased to issue a writ in the nature of certiorari or any

other writ, directions or orders calling for the records

relating to the orders dated the 9th October 1951 and the

25th January 1952 and to quash the same and direct the

respondent to restore the petitioner to the office which he

was lawfully to hold. It was contended in the application

1018

that the applicant had no reasonable opportunity of showing

cause against his removal and that he was entitled to show

cause twice, once after he was found guilty and next after

the punishment had been decided and that the denial of this

right rendered the order of dismissal illegal and void and

that it offended against the principles of natural justice.

It was further contended that the consultation with the

Public Services Commission was not held in terms of the

provisions of procedure for disciplinary action against

Government servants and prescribed in Article 320, sub-

section 3(c) of the Constitution of India. A number of

other grounds were also taken against the order of

dismissal. The High Court negatived all the contentions of

the petitioner and dismissed the petition. It however

certified that the case involved substantial questions of

law as to the interpretation of the Constitution and was a

fit one for appeal to this Court.

Mr. Thomas who argued the appeal on behalf of the appellant

raised a number of points against the validity of the order

removing the appellant from service and contended that the

enquiry conducted into the charges made against him was

wholly illegal and void. In our judgment, none of the

points urged by the learned counsel was of a substantial

character and all of them concerned matters of mere form and

no valid reasons have been shown for disturbing the decision

of the High Court.

The question of the validity of an order of removal of a

person employed in a civil capacity under the Union or a

State falls to be determined on the provisions of Article

311 of the Constitution of India. This Article is in these

terms:

" (1) No person who is a member of a civil service of the

Union or an all India service or a civil service of a State

or holds a civil post under the Union or a State shall be,

dismissed or removed by an authority subordinate to that by

which he was appointed.

(2) No such person as aforesaid shall be dismissed or

removed or reduced in rank until he has been given a

reasonable opportunity of showing cause

1019

against the action proposed to be taken in regard to

him..................................................

It is not said that the petitioner was removed by an

authority subordinate to that by which he was appointed.

There was no occasion to raise this issue because the order

of removal had been made by the Rajpramukh and was expressed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

according to the provisions of Article 166 of the

Constitution. The requirement therefore of sub-clause (1)

of Article 311 was fully satisfied.

As regards the question whether the petitioner was given

reasonable opportunity of showing cause against the action

proposed to be taken in regard to him, the legal position in

that respect and the nature of opportunity to be granted was

stated by the Privy Council in the case of High Commissioner

for India v. I. M. Lall(1) and it was held that when a stage

is reached when definite conclusions have been come to as to

the charges, and the actual punishment to follow is

provisionally determined on, that the statute gives the

civil servant an opportunity for which subsection (3) of

section 240 of the Government of India Act, 1935 (which

corresponds to Article 311) makes provision, and that at

that stage a reasonable opportunity has to be afforded to

the civil servant concerned. It was also held that there was

no anomaly in the view that the statute contemplates a

reasonable opportunity at more than one stage. In our

opinion, in the present case the petitioner had reasonable

opportunity at both stages to enter upon his defence. He

fully availed himself of the first opportunity and though a

reasonable opportunity was also given to him at the second

stage, he failed to avail himself of it and it is not open

to him now to say that the requirements of clause (2) of

Article 311 have not been satisfied. It was not denied that

the petitioner was given by the Enquiry Commissioner all

facilities for entering on his defence. Before filing his

written statement before the Enquiry Commissioner the

petitioner and his counsel were afforded facility to inspect

the

(1) [1948] F.C.R. 44. 131

1020

various files concerning the charges which he had to meet.

After inspecting those files he filed a full written

statement explaining those charges. He was defended in the

enquiry by a leading lawyer and was afforded fullest

opportunity to examine and cross-examine the witnesses

examined by the Commissioner. He was able to satisfy the

Enquiry Comniissioner that out of the charges levelled

against him a number of them were not established; but he

failed to satisfy the Commissioner as regards the rest and

the Enquiry Commissioner held them proved. After the

enquiry was concluded the petitioner was furnished with a

copy of the report of the Commissioner and was asked to show

cause against the action proposed to be taken against him.

He applied for two months' time to show cause. This was

granted. He made a further application for further time.

This was also partially granted. He again asked for further

time which was refused. It is difficult to say that the

time allowed to him was not reasonable in view of the fact

that be bad taken part in the enquiry before the Commis-

sioner and all the evidence had been taken in his presence

and he had full opportunity to defend himself. All the

material on which the Commissioner had reported against him

on the charges found proved, was given in the report of the

Commissioner and that was supplied to him with a show cause

notice. The time allowed, in our opinion, was more than

sufficient for him to enter on his defence and having failed

to do so, he cannot be heard to say that he was not given a

reasonable opportunity of showing cause against the action

proposed to be taken in regard to him.

Mr. Thomas argued that the show cause notice was not in

accordance with the provisions of Article 166 of the

Constitution inasmuch as it was not expressed to have been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

made in the name of the Rajpramukh. As above mentioned,

this notice was issued on behalf of the Government and was

signed by the Chief Secretary of the united State of Travan-

core-Cochin who had under the rules of business framed by

the Rajpramukh the charge of the portfolio of "service and

appointments" at the Secretariat level

1021

in this State. This was in our opinion substantial

compliance with the directory provisions of Article 166 of

the Constitution. It was held by this court in Dattatreya

Moreshwar Pangarkar v. The State of Bom. bay(1) that clauses

(1) and (2) of Article 166 are direc- tory only and non-

compliance with them does not result in the order being

invalid, and that in order to determine whether there is

compliance with these provisions all that is necessary to be

seen is whether there has been substantial compliance with

those requirements. In the present case there can be no

manner of doubt that the notice signed by the Chief

Secretary of the State and expressed to be on behalf of the

Government and giving opportunity to the petitioner to show

cause against the action proposed to be taken against him

was in substantial compliance with the provisions of the

article. The petitioner accepted this notice and in

pursuance of it applied for further time to put in his

defence. He was twice granted this time. In these

circumstances, the contention of Mr. Thomas that as the

notice was not expressed as required under Article 166 it

was invalid and therefore the requirements of Article 311

were not satisfied in this case must be held to be devoid of

force. We are satisfied that all the requirements of

Article 311 have been fully complied with in this case. It

may also be mentioned that the High Court held that H. H.

the Rajpramukh had intimation of the decision of the Council

of Ministers and the action proposed to be taken against the

petitioner and that in fact His Highness approved of the

proposed action.

Mr. Thomas further contended that the enquiry at the first

stage also was invalid and irregular. He argued that the

order appointing the Enquiry Commissioner was not expressed

in proper form and that the Commissioner did not conduct the

enquiry in accordance with the provisions of the Act. 'The

notification ordering an enquiry set out above was issued

after the Council of Ministers had passed a resolution to

that effect. It must be presumed that in

(1) [1952] S.C.R. 612.

1022

the normal course. of business that resolution was

communicated to the Rajpramukh. The order thus

substantially complies with the requirements of law and in

any case the effect of its not being expressed as directed

by Article 166 does not vitiate the notification. The

appellant, as already stated, took part in the enquiry,

defended himself and fought every inch of the ground. That

being so, it is not possible to hold that he was not given

reasonable opportunity at the first stage to defend himself.

It was contended that under the Travancore Public Servants

(Inquiries) Act, 1122) it was only the Maharaja who could

make an order under the provisions of that Act, and that the

Ministers could not take any action. Emphasis was lai on

the expression "Our Government" in the different provisions

of the Act. We are unable to see any force in this

contention. The expression "Our Government" means the

Maharaja's Government, in other words, the Government of the

State of Travancore. After the integration of the two

States of Travancore and Cochin and the formation of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

United State of Travancore-Cochin the expression "Our

Government" has to be construed according to the new set-up

of Government and when the Council of Ministers had come

into being, it is obvious that the expression "our Govern-

ment" as adapted to fit in with the new Constitution means

"The Council of Ministers". It is an elementary principle

of democratic Government prevailing in England and adopted

in our Constitution that the Rajpramukh or the Governor as

head of the State is in such matters merely a constitutional

head and he is bound to accept the advice of his Ministers.

In this situation it cannot be held that the order of the

Government appointing the Enquiry Commissioner *as ultra

vires and without jurisdiction.

Another point taken by Mr. Thomas was that without the

sanction of the Rajpramukh the proceedings could not be

started against the petitioner and reliance for this

contention was placed on Article 20 of the Covenant of the

united State of Travancore and Cochin. This article is in

these terms:

"Except with the previous sanction of the Raj-

1023

pramukh, no proceedings, civil or criminal, shall be

instituted against any person in respect of any act done or

purporting to be done in the execution of his duty as a

servant of either Covenanting State before the appointed

day".

The High Court negatived this contention with the following

observations:

"Article 20 refers to the institution of civil and criminal

proceedings, two well-known expressions which are terms of

art and clearly relate to civil and criminal proceedings

before civil and criminal courts. The said two kinds of

proceedings do not exhaust the totality of matters which can

be called proceedings. is only in respect of civil and

criminal proceeding that the sanction of the Rajpramukh is

required under Article 20 of the Covenant. It is not

contended on behalf of the petitioner that the proceedings

before the Commissioner are criminal proceedings. The only

contention is that they partake of the nature of criminal

proceedings. In our judgment, Article 20 of the Covenant

does not apply to proceedings which are not -criminal but

merely partake of that character".

In these observations we fully concur. In our view

departmental proceedings do not come within the ambit of the

Article.

Lastly it was urged that there was non-compliance with the

provisions of Article 320, clause 3(c) of the Constitution

which provides that on all disciplinary matters affecting a

person serving under the Government of India or the

Government of a State in a civil capacity, including

memorials or petitions relating to such matters, the Union

Public Service Commission. or the State Public Service

Commission, as the case may be, shall be consulted. In this

case the Public Service Commission was in fact consulted in

the matter of the action proposed against the petitioner by

removing him. The Public Service Commission agreed to the

proposed action. This consultation and the agreement was

before the petitioner was asked to show cause why he should

not be removed from service. The complaint of the

petitioner is that the

1024

consultation with the Public Service Commission sould have

been after he was asked to show cause but the petitioner did

not show cause and that being so, no question arose of

consulting the Public Service Commission over again. It was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

contended that the Public Service Commission should have

been consulted on the review petition. To accede to this

argument will mean that the State will have to consult the

Public Service Commission as many times as he may choose to

file review petitions. In our opinion the consultation

envisaged by Article 320 does not extend so, far. In this

case the report of the Commissioner was placed before the

Public Service Commission and the latter approved of the

action proposed to be taken. The appellant was given

another opportunity to show cause but he did not avail

himself of that opportunity or submit any explanation or

show any cause on which the Public Service Commission could

be consulted. The order of dismissal having been made there

was in the circumstances no further necessity to consult the

Public Service Commission. in our opinion therefore there is

no force in this contention as well.

After having examined all the arguments of Mr. Thomas, we

are of the opinion that all the rules of natural justice

were fully observed during the enquiry in this case, and the

petitioner had the fullest opportunity to put in his defence

both before the Enquiry Commissioner and against the action

proposed to be taken against him. It was by reason of his

own default that he failed to avail himself of the second

opportunity. He put in a belated review but such a review

is not provided for under the rules and in our opinion, it

was not necessary to consult the Public Service Commission

at that stage. Such petitions are not within the

contemplation of the Constitution.

For the reasons given above this appeal fails and is

dismissed. In the circumstances of the case we make no

order as to costs.

Appeal dismissed.

1025