SECRETARY, CENTRAL BOARD OF EXCISE AND CUSTOMS & ORS. versus K.S. MAHALINGAM

Citation: [1986] 2 S.C.R. 742 · Decided: 23-04-1986 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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742 
SECRETARY, CENTRAL BOARD OF EXCISE 
AND CIJS'IDtS & OBS. 
v. 
LS. MAllALIHGAM 
APRIL 23, 1986 
[A.P. SEN & MURARI MOHAN DUTr, JJ.] 
Constitution of India, Article 311(2) and Central Civil 
Services (Classification, Control and Appeal) Rules, 1965, 
Rule 15(4) - Punishment - Imposition of - Second opportunity 
to show cause - Whether necessary. 
{-
A charge-sheet was served on the respondent, a Govern-
111ent servant, containing two articles of charges alleging 
misconduct involving lack of integrity and lack of devotion to 
duty and conduct unbecOlling of a Government servant. In his 
defence the respondent denied the charges. The Inquiry Officer 
held that both the articles of charges were established. The 
Disciplinary Authority accepted the report of the Inquiry 
Officer and by his order dated May 15, 1980 dismissed the 
respondent from service. Against the dismissal order, the 
respondent preferred an appeal. The Appellate Authority by its ,i. 
order dated July 8, 
1981 
upheld 
the 
finding 
of 
the 
Disciplinary Authority. It, however, altered the penalty of 
dismissal to one of compulsory retirement of the respondent 
f ro11 service. 
The respondent filed a writ petition in the High Court. + 
The Single Judge quashed the order of dismissal and directed 1 
reinstatement of the respondent in service holding that there , 
was no evidence to substantiate the charges and that as no 
opportunity was given to the respondent to show cause against 
the punishment before the same was imposed the order of 
dismissal was vitiated. 
In the appeal preferred by the Department, the Division 
Bench agreed with the Single Judge that the respondent was 
deprived 
of an opportunity to show 
cause against the ~ 
punishment imposed on him by the Disciplinary Authority, 
modified the order of the Single Judge and directed the 
EXCISE AND CUSTOMS BOARD v. K.S. MAHALINGAM 
743 
~ Disciplinary 
Authority 
to 
proceed 
further 
with 
the 
disciplinary proceedings against the respondent from the stage 
of giving a fresh notice to show cause against the punishment 
to be proposed. 
Allowing the appeal by the Department, 
HELD : (1) Both the Single Judge and the Di vision Bench 
-).,were not justified in holding that the order of dismissal was 
vitiated as the respondent was not given a second opportunity 
to make a representation against the punishment of dismissal 
before the same was imposed on him. (747 F-G] 
~ 
(2) The judgment of the Division Bench is set aside. As 
the Division Bench did not consider the judgment of the Single 
Judge on merits, the case is remanded to the Division Bench 
for disposal of the appeal on merits after giving the parties 
an opportunity of being heard, (747 H; 748 A-Bl 
(3) The Constitution (Forty-second Amendment) Act, 1976 
has deleted from clause (2) of Article 311 of the Constitution 
the 
requirement 
of 
a 
reasonable opportunity of making 
representation on the proposed penalty and, further, it has 
~ been expressly provided in the first proviso to clause (2) 
that "it shall not be necessary to give such person any 
opportunity of making representation on the penalty proposed". 
After the amendment, the requirement of clause (2) will be 
satisfied by holding an inquiry in which the Government 
+ 
servant has been informed of the charges against him and given 
a reasonable opportunity of being heard, (746 C-E] 
In the instant case, such an opportunity has been given 
to the respondent. Undisputedly after the order of dismissal 
was passed, the respondent was supplied with a copy of the 
report of the Inquiry Officer which enabled him r.o pref er an 
appeal to the Appellate Authority against the order of 
dismissal. (746 E-F] 
(4) In view of the amendment of Article 311(2) of the 
~ Constitution, Rule 
15(4) of the Central Civil Services 
(Classification, Control and Appeal) Rules, 1965 was amended, 
which, inter alia, provided that it would not be necessary to 
give 
the Government 
servant 
any opportunity of making 
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SUPREME COURT REPORTS 
[1986] 2 S.C.R. 
representation on 
the penalty proposed to be 
imposed. ·. 
Therefore, the respondent cannot claim a second opportunity to >-
show csuse against the punishllent either under Article 311(2) 
of the Constitution or under Rule 15(4) of the Central Civil 
Services (Classificstion, Control and Appeal), Rules, 1965. 
[746 G; 747 D-E] 
IJn1oa. of India v. Tulai la Patel, [1985] 3 s.c.

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