KHEM CHAND v. THE UNION OF INDIA AND OTHERS

Citation: [1958] 1 S.C.R. 1080; 1957 INSC 114

Court: Supreme Court of India

Bench: SUDHI RANJAN DAS , VIVIAN BOSE, T.L. VENKATARAMA AIYYAR, S.K. DAS, A.K. SARKAR

Judgment date: 1957-12-13

Case summary

1957 INSC 114. Supreme Court of India judgment dated 1957-12-13. KHEM CHAND v. THE UNION OF INDIA AND OTHERS. Read the judgment and case details on LawSphereX.

Judgment text

1! JfJ1 Jagannath B~litra nnd Otliers v. Raja Harihar Singh Mardaraj BAramarbaro Ro, . 1Ihtv,;umt1 J. 19. il Doc•mlw J. j 1080 SUPRE. ME UOURT REPORTS [1958] Act which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc. , contain- ed in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties. This contention of the respondent also therefore fails. We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside. We accordingly allow the appeal, set aside the order made by the High Court, and restore the orders passed by the Revenue Officer in the O. T. P. Act Cases Nos. 21 to 25 of 1952, 26 to 28 of 1952, 29 to 32 of 1952 and 33 to 41 to 1952. The respondent will pay the appellants' costs of this appeal as also of the writ petition in the High Court.

The State of Orissa will, of course. bear and pay its own costs. Appeal allowed. KHEMCHAND v. THE UNION OF INDIA AND OTHERS (S. R. DAS C. J. , VENKATARAMA A. IYAR, S. K. DAS, A K. SARKAR and VIVIAN BOSE JJ . ) Constitution, InterpTetation of-'Reasonable opportunity of shoiving cause', Meaning of-Punishment of dismissai on Gov- ernment Servant-Constitutional Protection-Procedure-Con- stitution of India, Art. 311(2). 'Reasonable opportunity to show cause' in Art. 311(2) of the Constitution contemplates not merely the opportunity to do so at the enquiry stage but also when the competent autho- rity, as a result of the enquiry, proposes to inflict one of the three punishments mentioned in the Article on the delinquent servant. Such reasonable opportunity must, therefore, in- clude,- (1) opportunity to deny his guilt and establish his inno- cence, which means that he must be told what the charges S. C. R.

SUPREME COURT REPORTS 1081 against him are and the allegations on which such charges are based; (2) oppcrtunity to cross-examine the witnesses produced against him and examine himself or other w~tnesses on his be- half and. (3) opportunity to show that the proposed punishment would not be the proper punishment to inflict, which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him. High Commissioner for India v. I. M. Lall, L. R. (1948) 75 I. A. 225, explained and relied on. Secretary of State for India v. I. M. Lall, (1945) F. C. R. 103, not followed. Parshotam Lal Dhingra v. The Union of India, Civil Appeal No. 65 of 1957, decided on November 1, 1957. and R. Venkata Rao v. Secretary of State for India, L. R. (1936) 64 I. A. 5, refer- red to.

The procedure followed in such cases must, therefore, in- clude the giving of two notices to the servant, one at the en- quiry stage and the other when the competent authority, as a result of the enquiry, tentatively determines to inflict a parti· cular punishment on him. Consequently, in a case where the Government Servant sought to be proceeded against for misconduct was served w~th a charge-sheet and appeared before two officers conducting the enquiry, one after the other, l:ut no notice waii served upon him when the competent authority accepted the report and confirmed the opinion ·that the punishment of dismissal should be inflicted on him, and no cause could. therefore. be shown by him, the provision of Art. 311(2) had not been fully com- plied with and the order of dismissal passed against him must be declared void and inoperative. CIVIL APPELLATE JuR1sorcnoN: Civil Appeal No. 353 of 1957.

Appeal by special leave from the judgment and decree dated November l, 1955, of the Punjab High Court (Circuit Bench) at Delhi in Regular Second Appeal No. 28-D of 1955, arising out of the judgment and decree dated December 31, I 954, of the Court of the Senior Subordinate Judge at Delhi in Regular Civil Appeal No. 685 of 1954, affirming the judg- ment and decree of Subordinatet Judge Third Class Delhi in Suit No. 273/213 of 1953. Janardhan Sharma, for the appellant. C. K. Daphtary, Solicitor-General of India, R. Ga11a- pathy Iyer and R. fl. Dl1ebar, for the respondents, J,/P(D)3SCI--4 195'! Khem O/wnt>. v. 'l'lle Union of India and Other. • 1082 SUPREME COURT REPORTS [1958 19ii1 Khem 0Mnd 1957. December 13. The following Judgment of the Court was delivered by v. 'l'Ac Union of India and Otliers Dai 0 J. DAS C. J.

-This appeal by special leave granted by this Comt to the plaintiff-appellant is directed against the judg- ment and decree passed on November I, 1955, by a single Judge of the Punjab High Court sitting in the Circuit Bench at Delhi in regular second appeal No. 28-D of 1955. The facts leading up to the present appeal are shortly as • follows: On April 6, 1943, the appellant was appointed a sub-inspector under the Delhi Audit Fund. In February 1947, he was transferred to the Co-operative Societies De- partment and posted as sub-inspector in the Milk Scheme. On July 3, 1947, the appellant was confirmed by the then Deputy Commissioner of Delhi who was also the ex-officio Registrar of Co-operative Societies. On August 1, 1948, the appellant was transferred to the Rehabilitation Department of the Co-operative Societies and posted as sub-inspector. On July I, 1949. the appellant was suspended by the then Deputy Commissioner, Delhi.

On July 9, 1949, the appellant was served with a charge sheet under r. 6(1) of the Rules which had been framed by the Chief Cmmuissioner, Delhi to provide for the appointment to the subordinate services un- der his administrative control and the discipline and rights of appeal of members of those services. After formulating eight several charge> the document concluded as follows: "You are, therefore, called upon to show cause why you should not be dismissed from the service. You should also state in your reply whether you wish to be heard in person or whether you will produce defence. The reply should reach the Asst. Registrar, Co-operative Societies, Delhi. with- in ten days from the receipt of this charge sheet". The charge sheet was signed· by Shri Rameshwar Dayal who was at that time. the Deputy Commissioner of Delhi and was ad- mittedly the authority competent lo dismiss the appellant. The appellant duly submitted his explanation in writiog.

One Shri Mahipal Singh, Inspector, Co-operative Sockties S. C. R. . SUPREME COURT REPORTS 1083 was appointed by the Deputy Commissioner, Delhi the officer to hold the enquiry. The appellant attended two sittings before the Enquiry Officer and then applied to the Deputy Commissioner to entrust the enquiry to some Gazetted Officer under him. This request of the appellant was rejected and he was informed accordingly. Indeed, the appellant was warned that the Enquiry Officer had been authorised to pro- ceed with the enquiry ex parte if the appellant failed to attend the enquiry. The appellant, however, did not, after October 20, 1949, attend any further sittings before the En- quiry Officer.

The Enquiry Officer thereupon framed four additional charges against the appellant, namely, (1) for his refusal to attend the enquiry, (2) for his refusal to accept the service of the order of the Enquiry Officer, (3) for his absence without permission and (4) for his misconduct in snatching away papers from one Mohd. Ishaq and using unparliamen- tary and threatening language. It appears that at or about this time the appellant be- came involved in li criminal case Oil a charge under S. 307 of the Indian Penal Code and on October 30, 1949, he was actually arrested but was released on bail two or three days later. Eventually on May 20, 1950. the appellant was dis- charged from the criminal charge. On November 14, 1951, the appellant was served with a notice signed by one Shri Vasudev. Taneja, Superintendent. The notice was in the following terms : "Please note that you are to appear before Shri J. B. Tandon, I. A. S.

, Additional District Magistrate, on the 24th November, 1951, at 10-30 a. m .. in his court room in connection with the departmental enquiry pending against you". The language employed in the notice does lend some support to the contention that the Enquiry Officer, Shri Mahipal Singh. had not concluded the enquiry entrusted to him and that the departmental enquiry was still pending. Pursuant to the notice the appellant appeared before Shri J. B. Tandon and urged two points, namely, (1) that the LiP(D)~SCI-4(a) 1957 KhemOhand. v. The. Union of India aml Others DasO. J. 19! :J1 Ki.. m Chand Y. The Union of I mli11 and OtJierR Da• o. J. 1084 SUPREME COURT REPORTS. [1958] enquiry of the t·harger. framed against him ought to have been held by a Gazetted Officer of the District Court and (2) that the crn-1uiry should have been held in his presence. It will be noticed that both the points related to the enquiry before Shri Mahipal Singh. On December 13, 1951, Shri J. B. Tandon made a report.

After reciting the charge sheet containing the notice calling upon the appellant to show cau'c why lie should not be dismissed from service and set- ting out the charges contained in the 11otice and summarising the explanation submitted by the appellant with regard to each of the charges and reciting the prayer of the appellant that the Enquiry Officer should be changed· and the rejection thereof and the framing of additional charges and the appel- lant's «hsence from the enquiry with effect from October 20, 1949, the report proceeded to set out the actual charges which Shri Mahipal Singh was appointed to enquire into. The report then stated that the enquiry with regard to the first two charges had been held in the presence of the appel- lant and the rest were enquired into ex parte as •he appellant had absented· himself from the enquiry. Then the report recited that twelve charges had been proved against the appellant and he was given the benefit of doubt in respect of charge No.

(iii) and that no charge sheet had been given with regard to charges Nos. (xiii) and (xivi and that no enquiry had been held on those charges. Out of the twelve charges said to have been proved a~ainst the appellant. Shri J. B. Tandon found that no charce had been actually framed in one case and, therefore, he reduced the number of proud charges to eleven and proceeded to base his recommendation on them. After stating that the charges of embezzlement. acceptance of illegal gratification and borrowing of money frnrn societies were so serious that even one of them alone was sufficient to demand the appellant's dismissal and that the entries made in his character roll disclosed tliat his work and con- duct had not been satisfactory and explaining that the enquiry had been held up by reason of the appellant having been challaned under s. 307, Indian Penal Code, Shri J. B. Tan- S. C. R.

SUPREME COURT REPORTS 1085 don, in his report, formulated the, following points for con· 1967 sideration: namely, (l) what penalty should be imposed on Kliem Okand Shri Khem Chand for the eleven charges proved against him? The Un~~ of India (2) Whether his gun licence should be cancelled and (3) whe- and Olhera ther the dues of societies, which had been proved, might be v;;;o. J. realised: out of the security deposit furnished by him? Then, after stating that a personal hearing was given to the appel- lant who raised the two points mentioned above and hold- ing that there was no substance in either of them, paragraph 16 of the report ran as follows: "The charges of embezzlement, acceptance of illegal gratification, making wrong statement, misbehaviour at the time of enquiry and refusal to receive orders to attend en- quiry which had been proved against him are so serious that, I am sorry, I cannot suggest lesser punishment than dismis- sal from service and he may be dismissed.

" The report also recommended that the appellant's gun licence be cancelled and that he be directed to surrender his licence and deposit the gun in the district Malkhana and that the money, which had been proved to have been taken by the appellant from various societies, might also be recovered from the security deposit furnished by him. There is no posi- tive and definite statement in Shri J. B. Tandon's report that Shri Mahipal Singh had concluded the enquiry or submitted a formal report. The general tenor of Shri J. B. Tandon's report, however· suggests that Shri Mahipal Singh did arrive at definite findings on twelve charges. The appellant's grievance is that he was not given a copy of the report of Shri Mahipal Singh, if any had been made, and no such report has been exhibited in this case. · At the foot of Shri J. B. Tandon's report the following endorsement appears over the signature of the Deputy Com- missioner, Delhi under date December 14, 1951: "The report is approved.

Action accordingly. " Thereupon on December 17, 1951, a formal order was issued over the signature of the Deputy Commissioner, Delhi. It was in the following tenns:- ' 1086 SUPRE;\Il Ui inoperative and tha. t the appellant was a member of the scr- v. vice at the date of the institution of the suit out of which this Th, Union~ India appeal has arisen. The appellant wi! I get costs throughout in and 0 er• all courts. He must pay all court foes that may be due from Da• o. J. him. Under order XIV, Rule 7 of the Supreme Court Rules were direct that ! he appellants could be paid his fees which we assess at Rs. 250. 1961 Deumber, 1. S Appeal allowed. THE CENTRAL INDIA SPINNING AND WEAVING AND MANUFACTURING COMPANY, LIMITED, THE EMPRESS MILLS, NAGPUR v. THE MUNICIPAL COMMITTEE, WARDHA (BH,\GWATI, 13. P. SINHA, JAFER IMAM, J. L. KAPUR and GAJENDRAGADKAR JJ. ) Terminal tax-Goods in transit passing through Municipal limits-If can be taxed-Impo~'. ed into and exported from- Connotation of-C. P.

& Berar Municipalities Act, 1922 (C. P. II of 1922). s. 66(1)(0). Section 66(I)(o) of the C. P. and Berar Municipalities Act, 1922, empowered the municipalities to impose "a terminal tax on goods or animals imported into or exported from the limits of a municipality". The respondent framed rules for the impo- sition of terminal tax. The appellant transported bales of cot- ton from Yeotmal to Nagpur by road and the vehicles carrying the goods passed through the limits of respondent municipality. The goods were neither unloaded nor reloaded at Wardha but \Vere merely carried across through the munic~pal area. The respondent col1ected terminal tax on these goods on the ground that they were exported by the appellant from the limits of the respondent municipality. The appellant disputed his liability to pay terminal tax, and claimed a refund: Held, that the goods which were in transit and were merely carried pcross the limits of the municipality were not liatle to terminal tax.

Terminal tax on goods imported into or exported from the limit~ of a municipality was payable on goods on their journey ending within 1hc municipal limits or commencjng therefrom and not where the goods were merely •

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