Service matter - Non supply of UPSC Advise report before imposing penalty is void - charges framed against delinquent - denied - Enquiry found no charges proved and send the report - Disciplinary Authority not satisfied the report and formed opinion to punish the delinquent - issued show cause notice - explanation submitted - Disciplinary authority send the same for opinion of UPSC - advise of U.P.S.C - not furnished and not asked for explanation from the delinquent - challanged - tribunal dismissed - High court set aside the both orders and direct to furnish report of UPSC and to give an opportunity to submit explanation before imposing penalty - Apex court confirmed the same and dismissed the appeal =
Rule 32 of the
Central Civil Services (Classification, Control and Appeal) Rules,
1965 (for brevity “the CCS Rules”). The said Rule reads as under:
"32.Supply of copy of Commission's advice.- Whenever the
Commission is consulted as provided in these rules, a copy of
the advice by the Commission and where such advice has not been
accepted, also a brief statement of the reasons for such non-
acceptance, shall be furnished to the Government servant
concerned along with a copy of the order passed in the case, by
the authority making the order."
The respondent while serving as an Assistant Engineer (Civil) in
the Central Public Works Department (CPWD) was proceeded in a
departmental proceeding in respect of two charges which read as
follows:
"(a) 540 bags of cement were got issued for the above stated
work from the Central Stores on 31.3.97. The said Shri
R.P.Singh allowed Shri N.K.Sarin, Junior Engineer to issue 89
bags of cement within 24 hours of receipt of the cement from the
Central Stores without giving any written permission to the
Junior Engineer and without authenticating the said issue of
cement, thereby violating the instructions contained in Para
3(d) of memorandum No.DGW/CON/67 dated 6.5.94.
(b) Out of the above stated lot of 540 bags of cement of
"Superplus Jaypee" brand, 82 bags of cement were found short,
which had been pilfered with connivance of the said Shri
R.P.Singh, Assistant Engineer."
As the delinquent officer refuted the charges, an Inquiry
Officer was appointed to conduct the inquiry and in the inquiry, he
found the charges levelled against the delinquent officer were not
proven and, accordingly, he submitted the Inquiry Report. The
disciplinary authority after expressing the disagreement, called for a
representation from the respondent communicating the Inquiry Report as
well as the opinion for disagreement requiring him to submit his
explanation.
After obtaining the advice from the UPSC, the disciplinary authority
accepted the same, passed an order of punishment and communicated the
same to the respondent along with the advice of UPSC.
4. The said order of punishment was assailed by the respondent
before the tribunal on many a ground and the principal ground
propounded was that the advice of the UPSC was not furnished to him
before imposing the penalty and, therefore, there had been violation
of principles of natural justice. The tribunal negatived the said
stand on the ground that no prejudice was caused to him.
5. Being dissatisfied with the said order, the respondent preferred
the writ petition and the High Court placing reliance mainly on the
decision in State Bank of India and others vs. D.C.Aggarwal and
another[1] came to hold that
non-supply of the copy of advice of UPSC
at the pre-decisional stage did tantamount to violation of principles
of natural justice for making effective representation. It further
observed that non-supply of such material could amount to denial of
fair opportunity of being heard. -
and held that
"We direct the respondents to allow the petitioner to make his
representation in respect of the UPSC advice, which was made
available to him along with the order dated 28.1.2003 imposing
punishment. The representation of the petitioner be duly
considered and the Disciplinary Authority to take a decision
afresh, taking into account the representation with regard to
the disciplinary proceedings within a period of two months."
=
In the case of S.K.Kapoor, the Court accepted the ratio laid
down in the case of T.V.Patel as far as the interpretation of Article
320(3)(c) is concerned and, in that context, it opined that the
provisions contained in the said Article 320(3)(c) of the Constitution
of India are not mandatory. While distinguishing certain aspects, the
Court observed as follows:
"7. We are of the opinion that although Article 320(3)(c) is
not mandatory, if the authorities do consult the Union Public
Service Commission and rely on the report of the commission for
taking disciplinary action, then the principles of natural
justice require that a copy of the report must be supplied in
advance to the employee concerned so that he may have an
opportunity of rebuttal. Thus, in our view, the aforesaid
decision in T.V.Patel's case is clearly distinguishable."
DIPAK MISRA, N.V. RAMANA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6717 OF 2008
UNION OF INDIA & ORS. .......APPELLANTS
VERSUS
R.P.SINGH
......RESPONDENT
J U D G M E N T
Dipak Misra, J.
Calling in question the legal defensibility of the judgment and
order dated 19.01.2007 passed by the High Court of Delhi in
W.P.(C)No.16104 of 2004 whereby it has annulled the judgment and order
dated 28.06.2004 passed by the Central Administrative Tribunal,
Principal Bench, New Delhi (for short “the tribunal”) in O.A.No.1977
of 2003 and the order dated 19.08.2004 declining to entertain the
review, the present appeal has been preferred by special leave.
2. The respondent while serving as an Assistant Engineer (Civil) in
the Central Public Works Department (CPWD) was proceeded in a
departmental proceeding in respect of two charges which read as
follows:
"(a) 540 bags of cement were got issued for the above stated
work from the Central Stores on 31.3.97. The said Shri
R.P.Singh allowed Shri N.K.Sarin, Junior Engineer to issue 89
bags of cement within 24 hours of receipt of the cement from the
Central Stores without giving any written permission to the
Junior Engineer and without authenticating the said issue of
cement, thereby violating the instructions contained in Para
3(d) of memorandum No.DGW/CON/67 dated 6.5.94.
(b) Out of the above stated lot of 540 bags of cement of
"Superplus Jaypee" brand, 82 bags of cement were found short,
which had been pilfered with connivance of the said Shri
R.P.Singh, Assistant Engineer."
3. As the delinquent officer refuted the charges, an Inquiry
Officer was appointed to conduct the inquiry and in the inquiry, he
found the charges levelled against the delinquent officer were not
proven and, accordingly, he submitted the Inquiry Report. The
disciplinary authority after expressing the disagreement, called for a
representation from the respondent communicating the Inquiry Report as
well as the opinion for disagreement requiring him to submit his
explanation. The respondent submitted his explanation and thereafter
the disciplinary authority sought advice from the Union Public Service
Commission (UPSC) by proposing to impose penalty of reduction of pay
by two stages in the time scale of pay of the charged officer for a
period of two years without cumulative effect. The UPSC vide letter
No. F.3/144/2002-SI dated 20.11.02 gave the advice to impose penalty
of reduction of pay by two stages in the time scale of pay of the
charged officer for a period of two years without cumulative effect.
After obtaining the advice from the UPSC, the disciplinary authority
accepted the same, passed an order of punishment and communicated the
same to the respondent along with the advice of UPSC.
4. The said order of punishment was assailed by the respondent
before the tribunal on many a ground and the principal ground
propounded was that the advice of the UPSC was not furnished to him
before imposing the penalty and, therefore, there had been violation
of principles of natural justice. The tribunal negatived the said
stand on the ground that no prejudice was caused to him.
5. Being dissatisfied with the said order, the respondent preferred
the writ petition and the High Court placing reliance mainly on the
decision in State Bank of India and others vs. D.C.Aggarwal and
another[1] came to hold that non-supply of the copy of advice of UPSC
at the pre-decisional stage did tantamount to violation of principles
of natural justice for making effective representation. It further
observed that non-supply of such material could amount to denial of
fair opportunity of being heard. Being of this opinion, the High Court
directed as follows:-
"We direct the respondents to allow the petitioner to make his
representation in respect of the UPSC advice, which was made
available to him along with the order dated 28.1.2003 imposing
punishment. The representation of the petitioner be duly
considered and the Disciplinary Authority to take a decision
afresh, taking into account the representation with regard to
the disciplinary proceedings within a period of two months."
6. We have heard Mr.K.Radhakrishnan, learned counsel assisted by
Mr.W.A.Qadri and Ms.Rekha Pandey for the appellant and Mr.Vasudevan
Raghavan, learned counsel for the respondent.
7. At the very outset, we may state that the facts relating to
seeking of advice from UPSC and the stage of furnishing the same to
the delinquent employee are not in dispute. Thus, the singular
question that emanates for determination is whether the High Court is
justified in issuing the directions which have been reproduced
hereinabove solely on the ground that non-supply of the advice
obtained by the disciplinary authority from the UPSC and acting on the
same amounts to violation of principles of natural justice. Learned
counsel for the appellants has placed reliance on Rule 32 of the
Central Civil Services (Classification, Control and Appeal) Rules,
1965 (for brevity “the CCS Rules”). The said Rule reads as under:
"32.Supply of copy of Commission's advice.- Whenever the
Commission is consulted as provided in these rules, a copy of
the advice by the Commission and where such advice has not been
accepted, also a brief statement of the reasons for such non-
acceptance, shall be furnished to the Government servant
concerned along with a copy of the order passed in the case, by
the authority making the order."
8. Relying upon the aforesaid Rule, it is contended that when the
only prescription in the Rule is that a copy of the advice is to be
furnished at the time of making of the order, it is not obligatory in
law to supply it prior to imposition of punishment requiring a
representation or providing an opportunity of hearing to the
delinquent officer. In support of the said submission, our attention
has been drawn to the decision in Union of India and another vs.
T.V.Patel[2] wherein a two-Judge Bench, appreciating the Rule
position, has held as follows:
"Rule 32 of the Rules deals with the supply of a copy of
Commission's advice. Rules as read as it is mandatory in
character. Rule contemplates that whenever a Commission is
consulted, as provided under the Rules, a copy of the advice of
the Commission and where such advice has not been accepted, also
a brief statement of the reasons for such non-acceptance shall be
furnished to the Government servant along with a copy of the
order passed in the case, by the authority making the order.
Reading of the Rule would show that it contemplates two
situations; if a copy of advice is tendered by the Commission,
the same shall be furnished to the government servant along with
a copy of the order passed in the case by the authority making
the order. The second situation is that if a copy of the advice
tendered by the Commission has not been accepted, a copy of which
along with a brief statement of the reasons for such non-
acceptance shall also be furnished to the government servant
along with a copy of the order passed in the case, by the
authority making the order. In our view, the language employed
in Rule 32, namely "along with a copy of the order passed in the
case, by the authority making the order" would mean the final
order passed by the authority imposing penalty on the delinquent
government servant."
9. Be it noted, in the said case, interpretation placed by this
Court under Article 320(3)(c) of the Constitution in State of U.P.
v. Manbodhan Lal Srivastava[3] has been placed reliance upon and, in
that context, it has been opined thus: -
"In view of the law settled by the Constitution Bench of this
Court in the case of Srivastava (supra) we hold that the
provisions of Article 320(3)(c) of the Constitution of India are
not mandatory and they do not confer any rights on the public
servant so that the absence of consultation or any irregularity
in consultation process or furnishing a copy of the advice
tendered by the UPSC, if any, does not afford the delinquent
government servant a cause of action in a court of law."
10. It is also necessary to mention here that the learned Judges
distinguished the pronouncements in D.C.Aggarwal and another (supra)
and MD, ECIL vs. B.Karunakar[4].
11. Mr.Vasudevan Raghavan, learned counsel for the respondent has
submitted that the said decision has been treated as a per incuriam in
Union of India and others vs. S.K.Kapoor[5] in one aspect as it has
not taken note of the earlier decision in S.N.Narula vs. Union of
India and others[6]. Learned counsel while clarifying the position
has submitted that the decision in Narulas's case has been rendered on
30.01.2004 which is prior to the decision in T.V.Patel's case though
it has been reported later on.
12. In the case of S.N.Narula, the Court took note of the fact that
the proceedings therein were sent for information of the UPSC and the
UPSC had given the advice indicating certain punishment and the said
advice was accepted by the disciplinary authority who, on that basis,
had imposed punishment. Thereafter the Court took note of the factual
score how the disciplinary authority had acted. We think it seemly to
reproduce the same: -
“3. It is to be noticed that the advisory opinion of the Union
Public Service Commission was not communicated to the appellant
before he was heard by the disciplinary authority. The same was
communicated to the appellant along with final order passed in
the matter by the disciplinary authority.”
After so stating, the two-Judge Bench proceeded to opine thus: -
"6. We heard the learned counsel for the appellant and the
learned counsel for the respondent. It is submitted by the
counsel for the appellant that the report of the Union Public
Service Commission was not communicated to the appellant before
the final order was passed. Therefore, the appellant was unable
to make an effective representation before the disciplinary
authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative
Tribunal was correct and the High Court was not justified in
interfering with the order. Therefore, we set aside the
judgment of the Division Bench of the High Court and direct that
the disciplinary proceedings against the appellant be finally
disposed of in accordance with the direction given by the
Tribunal in Paragraph 6 of the order. The appellant may submit
a representation within two weeks to the disciplinary authority
and we make it clear that the matter shall be finally disposed
of by the disciplinary authority within a period of 3 months
thereafter."
13. We will be failing in our duty if we do not take note of the
submission of Mr.W.A.Qadri that the decision is not an authority
because the tribunal had set aside the order of the disciplinary
authority on the ground that it was a non-speaking order. Be that as
it may, when the issue was raised before this Court and there has been
an advertence to the same, we are unable to accept the submission of
Mr. Qadri. The said decision is an authority for the proposition that
the advice of UPSC, if sought and accepted, the same, regard being had
to the principles of natural justice, is to be communicated before
imposition of punishment.
14. In the case of S.K.Kapoor, the Court accepted the ratio laid
down in the case of T.V.Patel as far as the interpretation of Article
320(3)(c) is concerned and, in that context, it opined that the
provisions contained in the said Article 320(3)(c) of the Constitution
of India are not mandatory. While distinguishing certain aspects, the
Court observed as follows:
"7. We are of the opinion that although Article 320(3)(c) is
not mandatory, if the authorities do consult the Union Public
Service Commission and rely on the report of the commission for
taking disciplinary action, then the principles of natural
justice require that a copy of the report must be supplied in
advance to the employee concerned so that he may have an
opportunity of rebuttal. Thus, in our view, the aforesaid
decision in T.V.Patel's case is clearly distinguishable."
15. After so stating the two-Judge Bench opined that when the
disciplinary authority does not rely on the report of the UPSC then it
is not necessary to supply the same to the employee concerned.
However, when it is relied upon then the copy of the same may be
supplied in advance to the employee concerned, otherwise, there would
be violation of the principles of natural justice. To arrive at the
said conclusion, reliance was placed upon the decision in S.N.Narula's
case. Proceeding further, the Court held:
"9. It may be noted that the decision in S.N.Narula's case
(supra) was prior to the decision in T.V.Patel's case(supra).
It is well settled that if a subsequent co-ordinate bench of
equal strength wants to take a different view, it can only refer
the matter to a larger bench, otherwise the prior decision of a
co-ordinate bench is binding on the subsequent bench of equal
strength. Since, the decision in S.N.Narula's case (supra) was
not noticed in T.V.Patel's case(supra), the latter decision is a
judgment per incuriam. The decision in S.N.Narula's case
(supra) was binding on the subsequent bench of equal strength
and hence, it could not take a contrary view, as is settled by a
series of judgments of this Court."
16. Learned counsel for the appellant would contend that the two-
Judge Bench in S.K. Kapoor’s case could not have opined that the
decision in T.V. Patel’s case is per incuriam. We have already
noticed two facts pertaining to S.N. Narula (supra), (i) it ws
rendered on 31.1.2004 and (ii) it squarely dealt with the issue
and expressed an opinion. It seems to us that the judgment in
S.N. Narula’s case was not brought to the notice of their
Lordships deciding the lis in T.V. Patel (supra). There cannot
be a shadow of doubt that the judgment in S.N. Narula (supra) is
a binding precedent to be followed by the later Division Bench.
In this context, we may fruitfully refer to the decision in
Union of India v. Raghubir Singh (dead) by L. Rs. And Others
[7], wherein the Constitution Bench has held as follows: -
“We are of opinion that a pronouncement of law by a Division
Bench of this Court is binding on a Division Bench of the same
or a smaller number of Judges, and in order that such decision
be binding, it is not necessary that it should be a decision
rendered by the Full Court or a Constitution Bench of the Court”
17. In Indian Oil Corporation Ltd., v. Municipal Corporation and
Another[8], it has been observed that the Division Bench of the
High Court in Municipal Corpn., Indore v. Ratnaprabha Dhandha[9]
was clearly in error in taking the view that the decision of
this Court in Municipal Corporation, Indore v. Ratna Prabha[10]
was not binding on it. In doing so, the Division Bench of the
High Court did something which even a later co-equal Bench of
this Court did not and could not do.
18. In Chandra Prakash and others v. State of U.P. and another[11],
the Constitution Bench has reiterated the principle that has
already been stated in Raghubir Singh (supra).
19. Thus perceived, it can be stated with certitude that S.N. Narula
(supra) was a binding precedent and when the subsequent decision
in T.V. Patel (supra) is rendered in ignorance or forgetfulness
of the binding authority, the concept of per incurium comes into
play.
20. In this regard, we may usefully refer to a passage from A.R.
Antulay v. R.S. Nayak[12], wherein Sabyasachi Mukharji, J. (as
his Lordship then was) observed thus: -
“....‘Per incuriam’ are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of
some authority binding on the court concerned, so that in such
cases some part of the decision or some step in the reasoning on
which it is based, is found, on that account to be demonstrably
wrong.”
At a subsequent stage of the said decision it has been observed
as follows: -
“.... It is a settled rule that if a decision has been given per
incuriam the court can ignore it.”
21. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors.
[13], while dealing with the issue of ‘per incuriam’, a two-
Judge Bench, after referring to the dictum in Bristol Aeroplane
Co. Ltd. (supra) and certain passages from Halsbury’s Laws of
England and Raghubir Singh (supra), has ruled thus:-
“The analysis of English and Indian Law clearly leads to the
irresistible conclusion that not only the judgment of a larger
strength is binding on a judgment of smaller strength but the
judgment of a co-equal strength is also binding on a Bench of
Judges of co-equal strength. In the instant case, judgments
mentioned in paragraphs 135 and 136 are by two or three judges
of this Court. These judgments have clearly ignored a
Constitution Bench judgment of this Court in Sibbia’s case
(supra) which has comprehensively dealt with all the facets of
anticipatory bail enumerated under Section 438 of Code of
Criminal Procedure Consequently, judgments mentioned in
paragraphs 135 and 136 of this judgment are per incuriam.”
22. Testing on the aforesaid principles it can safely be concluded
that the judgment in T.V. Patel’s case is per incuriam.
23. At this juncture, we would like to give our reasons for our
respectful concurrence with S.K. Kapoor (supra). There is no
cavil over the proposition that the language engrafted in
Article 320(3)(c) does not make the said Article mandatory. As
we find, in the T.V.Patel's case, the Court has based its
finding on the language employed in Rule 32 of the Rules. It is
not in dispute that the said Rule from the very inception is a
part of the 1965 Rules. With the efflux of time, there has been
a change of perception as regards the applicability of the
principles of natural justice. An Inquiry Report in a
disciplinary proceeding is required to be furnished to the
delinquent employee so that he can make an adequate
representation explaining his own stand/stance. That is what
precisely has been laid down in the B.Karnukara's case. We may
reproduce the relevant passage with profit: -
“Hence it has to be held that when the enquiry officer is not
the disciplinary authority, the delinquent employee has a right
to receive a copy of the enquiry officer’s report before the
disciplinary authority arrives at its conclusions with regard to
the guilt or innocence of the employee with regard to the
charges levelled against him. That right is a part of the
employee’s right to defend himself against the charges levelled
against him. A denial of the enquiry officer’s report before the
disciplinary authority takes its decision on the charges, is a
denial of reasonable opportunity to the employee to prove his
innocence and is a breach of the principles of natural justice.”
24. We will be failing in our duty if we do not refer to another
passage which deals with the effect of non-supply of the enquiry
report on the punishment. It reads as follows: -
“[v] The next question to be answered is what is the effect on
the order of punishment when the report of the enquiry officer
is not furnished to the employee and what relief should be
granted to him in such cases. The answer to this question has to
be relative to the punishment awarded. When the employee is
dismissed or removed from service and the inquiry is set aside
because the report is not furnished to him, in some cases the
non-furnishing of the report may have prejudiced him gravely
while in other cases it may have made no difference to the
ultimate punishment awarded to him. Hence to direct
reinstatement of the employee with back-wages in all cases is to
reduce the rules of justice to a mechanical ritual. The theory
of reasonable opportunity and the principles of natural justice
have been evolved to uphold the rule of law and to assist the
individual to vindicate his just rights. They are not
incantations to be invoked nor rites to be performed on all and
sundry occasions. Whether in fact, prejudice has been caused to
the employee or not on account of the denial to him of the
report, has to be considered on the facts and circumstances of
each case. Where, therefore, even after the furnishing of the
report, no different consequence would have followed, it would
be a perversion of justice to permit the employee to resume duty
and to get all the consequential benefits. It amounts to
rewarding the dishonest and the guilty and thus to stretching
the [pic]concept of justice to illogical and exasperating
limits. It amounts to an “unnatural expansion of natural
justice” which in itself is antithetical to justice.”
25. After so stating, the larger Bench proceeded to state that the
court/tribunal should not mechanically set aside the order of
punishment on the ground that the report was not furnished. The
courts/tribunals would apply their judicial mind to the question
and give their reasons for setting aside or not setting aside
the order of punishment. It is only if the court/tribunal finds
that the furnishing of report could have made a difference to
the result in the case then it should set aside the order of
punishment. Where after following the said procedure the
court/tribunal sets aside the order of punishment, the proper
relief that should be granted to direct reinstatement of the
employee with liberty to the authority/ management to proceed
with the enquiry, by placing the employee under suspension and
continuing the enquiry from that stage of furnishing with the
report. The question whether the employee would be entitled to
the back wages and other benefits from the date of dismissal to
the date of reinstatement, if ultimately ordered, should
invariably left to be decided by the authority concerned
according to law, after the culmination of the proceedings and
depending on the final outcome.
26. We have referred to the aforesaid decision in extenso as we find
that in the said case it has been opined by the Constitution
Bench that non-supply of the enquiry report is a breach of the
principle of natural justice. Advice from the UPSC, needless to
say, when utilized as a material against the delinquent officer,
it should be supplied in advance. As it seems to us, Rule 32
provides for supply of copy of advice to the government servant
at the time of making an order. The said stage was in
prevalence before the decision of the Constitution Bench. After
the said decision, in our considered opinion, the authority
should have clarified the Rule regarding development in the
service jurisprudence. We have been apprised by Mr.Raghavan,
learned counsel for the respondent, that after the decision in
S.K.Kapoor's case, the Government of India, Ministry of
Personnel, PG & Pensions, Department of Personnel & Training
vide Office Memorandum dated 06.01.2014 has issued the following
directions:
"4. Accordingly, it has been decided that in all disciplinary
cases where the Commission is to be consulted, the following
procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the
same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine
the same and forward the same to the Charged Officer along with
the Inquiry Report and his tentative reasons for disagreement
with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so
desires, his written representation or submission to the
Disciplinary Authority within fifteen days, irrespective of
whether the Inquiry report/advice of UPSC is in his favour or
not.
(iv) The Disciplinary Authority shall consider the
representation of the Charged Officer and take further action as
prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA)
Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum
has been issued on 05.03.2014, which pertains to supply of copy
of UPSC advice to the Charged Officer. We think it appropriate
to reproduce the same:
"The undersigned is directed to refer to this Department's O.M.
of even number dated 06.01.2014 and to say that it has been
decided, in partial modification of the above O.M. that a copy
of the inquiry report may be given to the Government servant as
provided in Rule 15(2) of Central Secretariat Services
(Classification, Control and Appeal) Rules, 1965. The inquiry
report together with the representation, if any, of the
Government servant may be forwarded to the Commission for
advice. On receipt of the Commission's advice, a copy of the
advice may be provided to the Government servant who may be
allowed to submit his representation, if any, on the
Commission's advice within fifteen days. The Disciplinary
Authority will consider the inquiry report, advice of the
Commission and the representation(s) of the Government servant
before arriving at a final decision."
28. In our considered opinion, both the Office Memoranda are not
only in consonance with the S.K.Kapoor's case but also in
accordance with the principles of natural justice which has been
stated in B.Karunakar's case.
29. In view of the aforesaid, we respectfully agree with the
decision rendered in S.K.Kapoor's case and resultantly decline
to interfere with the judgment and order of the High Court. As
a result, the appeal, being devoid of merit, is dismissed
without any order as to costs.
..............................J
(DIPAK MISRA)
.............................J.
(N.V. RAMANA)
NEW DELHI;
MAY 22, 2014.
-----------------------
[1] AIR 1993 SC 1197
[2] (2007) 4 SCC 785
[3] AIR 1957 SC 912
[4] (1993) 4 SCC 727
[5] (2011) 4 SCC 589
[6] (2011) 4 SCC 591
[7] (1989) 2 SCC 754
[8] AIR 1995 SC 1480
[9] 1989 MPLJ 20
[10] (1976) 4 SCC 622
[11] (2002) 4 SCC 234
[12] (1988) 2 SCC 602
[13] AIR 2011 SC 312 : ( 2011) 1 SCC 694
Rule 32 of the
Central Civil Services (Classification, Control and Appeal) Rules,
1965 (for brevity “the CCS Rules”). The said Rule reads as under:
"32.Supply of copy of Commission's advice.- Whenever the
Commission is consulted as provided in these rules, a copy of
the advice by the Commission and where such advice has not been
accepted, also a brief statement of the reasons for such non-
acceptance, shall be furnished to the Government servant
concerned along with a copy of the order passed in the case, by
the authority making the order."
The respondent while serving as an Assistant Engineer (Civil) in
the Central Public Works Department (CPWD) was proceeded in a
departmental proceeding in respect of two charges which read as
follows:
"(a) 540 bags of cement were got issued for the above stated
work from the Central Stores on 31.3.97. The said Shri
R.P.Singh allowed Shri N.K.Sarin, Junior Engineer to issue 89
bags of cement within 24 hours of receipt of the cement from the
Central Stores without giving any written permission to the
Junior Engineer and without authenticating the said issue of
cement, thereby violating the instructions contained in Para
3(d) of memorandum No.DGW/CON/67 dated 6.5.94.
(b) Out of the above stated lot of 540 bags of cement of
"Superplus Jaypee" brand, 82 bags of cement were found short,
which had been pilfered with connivance of the said Shri
R.P.Singh, Assistant Engineer."
As the delinquent officer refuted the charges, an Inquiry
Officer was appointed to conduct the inquiry and in the inquiry, he
found the charges levelled against the delinquent officer were not
proven and, accordingly, he submitted the Inquiry Report. The
disciplinary authority after expressing the disagreement, called for a
representation from the respondent communicating the Inquiry Report as
well as the opinion for disagreement requiring him to submit his
explanation.
After obtaining the advice from the UPSC, the disciplinary authority
accepted the same, passed an order of punishment and communicated the
same to the respondent along with the advice of UPSC.
4. The said order of punishment was assailed by the respondent
before the tribunal on many a ground and the principal ground
propounded was that the advice of the UPSC was not furnished to him
before imposing the penalty and, therefore, there had been violation
of principles of natural justice. The tribunal negatived the said
stand on the ground that no prejudice was caused to him.
5. Being dissatisfied with the said order, the respondent preferred
the writ petition and the High Court placing reliance mainly on the
decision in State Bank of India and others vs. D.C.Aggarwal and
another[1] came to hold that
non-supply of the copy of advice of UPSC
at the pre-decisional stage did tantamount to violation of principles
of natural justice for making effective representation. It further
observed that non-supply of such material could amount to denial of
fair opportunity of being heard. -
and held that
"We direct the respondents to allow the petitioner to make his
representation in respect of the UPSC advice, which was made
available to him along with the order dated 28.1.2003 imposing
punishment. The representation of the petitioner be duly
considered and the Disciplinary Authority to take a decision
afresh, taking into account the representation with regard to
the disciplinary proceedings within a period of two months."
=
In the case of S.K.Kapoor, the Court accepted the ratio laid
down in the case of T.V.Patel as far as the interpretation of Article
320(3)(c) is concerned and, in that context, it opined that the
provisions contained in the said Article 320(3)(c) of the Constitution
of India are not mandatory. While distinguishing certain aspects, the
Court observed as follows:
"7. We are of the opinion that although Article 320(3)(c) is
not mandatory, if the authorities do consult the Union Public
Service Commission and rely on the report of the commission for
taking disciplinary action, then the principles of natural
justice require that a copy of the report must be supplied in
advance to the employee concerned so that he may have an
opportunity of rebuttal. Thus, in our view, the aforesaid
decision in T.V.Patel's case is clearly distinguishable."
after the decision in
S.K.Kapoor's case, the Government of India, Ministry of
Personnel, PG & Pensions, Department of Personnel & Training
vide Office Memorandum dated 06.01.2014 has issued the following
directions:
"4. Accordingly, it has been decided that in all disciplinary
cases where the Commission is to be consulted, the following
procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the
same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine
the same and forward the same to the Charged Officer along with
the Inquiry Report and his tentative reasons for disagreement
with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so
desires, his written representation or submission to the
Disciplinary Authority within fifteen days, irrespective of
whether the Inquiry report/advice of UPSC is in his favour or
not.
(iv) The Disciplinary Authority shall consider the
representation of the Charged Officer and take further action as
prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA)
Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum
has been issued on 05.03.2014, which pertains to supply of copy
of UPSC advice to the Charged Officer. We think it appropriate
to reproduce the same:
"The undersigned is directed to refer to this Department's O.M.
of even number dated 06.01.2014 and to say that it has been
decided, in partial modification of the above O.M. that a copy
of the inquiry report may be given to the Government servant as
provided in Rule 15(2) of Central Secretariat Services
(Classification, Control and Appeal) Rules, 1965. The inquiry
report together with the representation, if any, of the
Government servant may be forwarded to the Commission for
advice. On receipt of the Commission's advice, a copy of the
advice may be provided to the Government servant who may be
allowed to submit his representation, if any, on the
Commission's advice within fifteen days. The Disciplinary
Authority will consider the inquiry report, advice of the
Commission and the representation(s) of the Government servant
before arriving at a final decision."
28. In our considered opinion, both the Office Memoranda are not
only in consonance with the S.K.Kapoor's case but also in
accordance with the principles of natural justice which has been
stated in B.Karunakar's case.
29. In view of the aforesaid, we respectfully agree with the
decision rendered in S.K.Kapoor's case and resultantly decline
to interfere with the judgment and order of the High Court. As
a result, the appeal, being devoid of merit, is dismissed
without any order as to costs.=
2014 (May.Part) http://judis.nic.in/supremecourt/filename=41544S.K.Kapoor's case, the Government of India, Ministry of
Personnel, PG & Pensions, Department of Personnel & Training
vide Office Memorandum dated 06.01.2014 has issued the following
directions:
"4. Accordingly, it has been decided that in all disciplinary
cases where the Commission is to be consulted, the following
procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the
same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine
the same and forward the same to the Charged Officer along with
the Inquiry Report and his tentative reasons for disagreement
with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so
desires, his written representation or submission to the
Disciplinary Authority within fifteen days, irrespective of
whether the Inquiry report/advice of UPSC is in his favour or
not.
(iv) The Disciplinary Authority shall consider the
representation of the Charged Officer and take further action as
prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA)
Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum
has been issued on 05.03.2014, which pertains to supply of copy
of UPSC advice to the Charged Officer. We think it appropriate
to reproduce the same:
"The undersigned is directed to refer to this Department's O.M.
of even number dated 06.01.2014 and to say that it has been
decided, in partial modification of the above O.M. that a copy
of the inquiry report may be given to the Government servant as
provided in Rule 15(2) of Central Secretariat Services
(Classification, Control and Appeal) Rules, 1965. The inquiry
report together with the representation, if any, of the
Government servant may be forwarded to the Commission for
advice. On receipt of the Commission's advice, a copy of the
advice may be provided to the Government servant who may be
allowed to submit his representation, if any, on the
Commission's advice within fifteen days. The Disciplinary
Authority will consider the inquiry report, advice of the
Commission and the representation(s) of the Government servant
before arriving at a final decision."
28. In our considered opinion, both the Office Memoranda are not
only in consonance with the S.K.Kapoor's case but also in
accordance with the principles of natural justice which has been
stated in B.Karunakar's case.
29. In view of the aforesaid, we respectfully agree with the
decision rendered in S.K.Kapoor's case and resultantly decline
to interfere with the judgment and order of the High Court. As
a result, the appeal, being devoid of merit, is dismissed
without any order as to costs.=
DIPAK MISRA, N.V. RAMANA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6717 OF 2008
UNION OF INDIA & ORS. .......APPELLANTS
VERSUS
R.P.SINGH
......RESPONDENT
J U D G M E N T
Dipak Misra, J.
Calling in question the legal defensibility of the judgment and
order dated 19.01.2007 passed by the High Court of Delhi in
W.P.(C)No.16104 of 2004 whereby it has annulled the judgment and order
dated 28.06.2004 passed by the Central Administrative Tribunal,
Principal Bench, New Delhi (for short “the tribunal”) in O.A.No.1977
of 2003 and the order dated 19.08.2004 declining to entertain the
review, the present appeal has been preferred by special leave.
2. The respondent while serving as an Assistant Engineer (Civil) in
the Central Public Works Department (CPWD) was proceeded in a
departmental proceeding in respect of two charges which read as
follows:
"(a) 540 bags of cement were got issued for the above stated
work from the Central Stores on 31.3.97. The said Shri
R.P.Singh allowed Shri N.K.Sarin, Junior Engineer to issue 89
bags of cement within 24 hours of receipt of the cement from the
Central Stores without giving any written permission to the
Junior Engineer and without authenticating the said issue of
cement, thereby violating the instructions contained in Para
3(d) of memorandum No.DGW/CON/67 dated 6.5.94.
(b) Out of the above stated lot of 540 bags of cement of
"Superplus Jaypee" brand, 82 bags of cement were found short,
which had been pilfered with connivance of the said Shri
R.P.Singh, Assistant Engineer."
3. As the delinquent officer refuted the charges, an Inquiry
Officer was appointed to conduct the inquiry and in the inquiry, he
found the charges levelled against the delinquent officer were not
proven and, accordingly, he submitted the Inquiry Report. The
disciplinary authority after expressing the disagreement, called for a
representation from the respondent communicating the Inquiry Report as
well as the opinion for disagreement requiring him to submit his
explanation. The respondent submitted his explanation and thereafter
the disciplinary authority sought advice from the Union Public Service
Commission (UPSC) by proposing to impose penalty of reduction of pay
by two stages in the time scale of pay of the charged officer for a
period of two years without cumulative effect. The UPSC vide letter
No. F.3/144/2002-SI dated 20.11.02 gave the advice to impose penalty
of reduction of pay by two stages in the time scale of pay of the
charged officer for a period of two years without cumulative effect.
After obtaining the advice from the UPSC, the disciplinary authority
accepted the same, passed an order of punishment and communicated the
same to the respondent along with the advice of UPSC.
4. The said order of punishment was assailed by the respondent
before the tribunal on many a ground and the principal ground
propounded was that the advice of the UPSC was not furnished to him
before imposing the penalty and, therefore, there had been violation
of principles of natural justice. The tribunal negatived the said
stand on the ground that no prejudice was caused to him.
5. Being dissatisfied with the said order, the respondent preferred
the writ petition and the High Court placing reliance mainly on the
decision in State Bank of India and others vs. D.C.Aggarwal and
another[1] came to hold that non-supply of the copy of advice of UPSC
at the pre-decisional stage did tantamount to violation of principles
of natural justice for making effective representation. It further
observed that non-supply of such material could amount to denial of
fair opportunity of being heard. Being of this opinion, the High Court
directed as follows:-
"We direct the respondents to allow the petitioner to make his
representation in respect of the UPSC advice, which was made
available to him along with the order dated 28.1.2003 imposing
punishment. The representation of the petitioner be duly
considered and the Disciplinary Authority to take a decision
afresh, taking into account the representation with regard to
the disciplinary proceedings within a period of two months."
6. We have heard Mr.K.Radhakrishnan, learned counsel assisted by
Mr.W.A.Qadri and Ms.Rekha Pandey for the appellant and Mr.Vasudevan
Raghavan, learned counsel for the respondent.
7. At the very outset, we may state that the facts relating to
seeking of advice from UPSC and the stage of furnishing the same to
the delinquent employee are not in dispute. Thus, the singular
question that emanates for determination is whether the High Court is
justified in issuing the directions which have been reproduced
hereinabove solely on the ground that non-supply of the advice
obtained by the disciplinary authority from the UPSC and acting on the
same amounts to violation of principles of natural justice. Learned
counsel for the appellants has placed reliance on Rule 32 of the
Central Civil Services (Classification, Control and Appeal) Rules,
1965 (for brevity “the CCS Rules”). The said Rule reads as under:
"32.Supply of copy of Commission's advice.- Whenever the
Commission is consulted as provided in these rules, a copy of
the advice by the Commission and where such advice has not been
accepted, also a brief statement of the reasons for such non-
acceptance, shall be furnished to the Government servant
concerned along with a copy of the order passed in the case, by
the authority making the order."
8. Relying upon the aforesaid Rule, it is contended that when the
only prescription in the Rule is that a copy of the advice is to be
furnished at the time of making of the order, it is not obligatory in
law to supply it prior to imposition of punishment requiring a
representation or providing an opportunity of hearing to the
delinquent officer. In support of the said submission, our attention
has been drawn to the decision in Union of India and another vs.
T.V.Patel[2] wherein a two-Judge Bench, appreciating the Rule
position, has held as follows:
"Rule 32 of the Rules deals with the supply of a copy of
Commission's advice. Rules as read as it is mandatory in
character. Rule contemplates that whenever a Commission is
consulted, as provided under the Rules, a copy of the advice of
the Commission and where such advice has not been accepted, also
a brief statement of the reasons for such non-acceptance shall be
furnished to the Government servant along with a copy of the
order passed in the case, by the authority making the order.
Reading of the Rule would show that it contemplates two
situations; if a copy of advice is tendered by the Commission,
the same shall be furnished to the government servant along with
a copy of the order passed in the case by the authority making
the order. The second situation is that if a copy of the advice
tendered by the Commission has not been accepted, a copy of which
along with a brief statement of the reasons for such non-
acceptance shall also be furnished to the government servant
along with a copy of the order passed in the case, by the
authority making the order. In our view, the language employed
in Rule 32, namely "along with a copy of the order passed in the
case, by the authority making the order" would mean the final
order passed by the authority imposing penalty on the delinquent
government servant."
9. Be it noted, in the said case, interpretation placed by this
Court under Article 320(3)(c) of the Constitution in State of U.P.
v. Manbodhan Lal Srivastava[3] has been placed reliance upon and, in
that context, it has been opined thus: -
"In view of the law settled by the Constitution Bench of this
Court in the case of Srivastava (supra) we hold that the
provisions of Article 320(3)(c) of the Constitution of India are
not mandatory and they do not confer any rights on the public
servant so that the absence of consultation or any irregularity
in consultation process or furnishing a copy of the advice
tendered by the UPSC, if any, does not afford the delinquent
government servant a cause of action in a court of law."
10. It is also necessary to mention here that the learned Judges
distinguished the pronouncements in D.C.Aggarwal and another (supra)
and MD, ECIL vs. B.Karunakar[4].
11. Mr.Vasudevan Raghavan, learned counsel for the respondent has
submitted that the said decision has been treated as a per incuriam in
Union of India and others vs. S.K.Kapoor[5] in one aspect as it has
not taken note of the earlier decision in S.N.Narula vs. Union of
India and others[6]. Learned counsel while clarifying the position
has submitted that the decision in Narulas's case has been rendered on
30.01.2004 which is prior to the decision in T.V.Patel's case though
it has been reported later on.
12. In the case of S.N.Narula, the Court took note of the fact that
the proceedings therein were sent for information of the UPSC and the
UPSC had given the advice indicating certain punishment and the said
advice was accepted by the disciplinary authority who, on that basis,
had imposed punishment. Thereafter the Court took note of the factual
score how the disciplinary authority had acted. We think it seemly to
reproduce the same: -
“3. It is to be noticed that the advisory opinion of the Union
Public Service Commission was not communicated to the appellant
before he was heard by the disciplinary authority. The same was
communicated to the appellant along with final order passed in
the matter by the disciplinary authority.”
After so stating, the two-Judge Bench proceeded to opine thus: -
"6. We heard the learned counsel for the appellant and the
learned counsel for the respondent. It is submitted by the
counsel for the appellant that the report of the Union Public
Service Commission was not communicated to the appellant before
the final order was passed. Therefore, the appellant was unable
to make an effective representation before the disciplinary
authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative
Tribunal was correct and the High Court was not justified in
interfering with the order. Therefore, we set aside the
judgment of the Division Bench of the High Court and direct that
the disciplinary proceedings against the appellant be finally
disposed of in accordance with the direction given by the
Tribunal in Paragraph 6 of the order. The appellant may submit
a representation within two weeks to the disciplinary authority
and we make it clear that the matter shall be finally disposed
of by the disciplinary authority within a period of 3 months
thereafter."
13. We will be failing in our duty if we do not take note of the
submission of Mr.W.A.Qadri that the decision is not an authority
because the tribunal had set aside the order of the disciplinary
authority on the ground that it was a non-speaking order. Be that as
it may, when the issue was raised before this Court and there has been
an advertence to the same, we are unable to accept the submission of
Mr. Qadri. The said decision is an authority for the proposition that
the advice of UPSC, if sought and accepted, the same, regard being had
to the principles of natural justice, is to be communicated before
imposition of punishment.
14. In the case of S.K.Kapoor, the Court accepted the ratio laid
down in the case of T.V.Patel as far as the interpretation of Article
320(3)(c) is concerned and, in that context, it opined that the
provisions contained in the said Article 320(3)(c) of the Constitution
of India are not mandatory. While distinguishing certain aspects, the
Court observed as follows:
"7. We are of the opinion that although Article 320(3)(c) is
not mandatory, if the authorities do consult the Union Public
Service Commission and rely on the report of the commission for
taking disciplinary action, then the principles of natural
justice require that a copy of the report must be supplied in
advance to the employee concerned so that he may have an
opportunity of rebuttal. Thus, in our view, the aforesaid
decision in T.V.Patel's case is clearly distinguishable."
15. After so stating the two-Judge Bench opined that when the
disciplinary authority does not rely on the report of the UPSC then it
is not necessary to supply the same to the employee concerned.
However, when it is relied upon then the copy of the same may be
supplied in advance to the employee concerned, otherwise, there would
be violation of the principles of natural justice. To arrive at the
said conclusion, reliance was placed upon the decision in S.N.Narula's
case. Proceeding further, the Court held:
"9. It may be noted that the decision in S.N.Narula's case
(supra) was prior to the decision in T.V.Patel's case(supra).
It is well settled that if a subsequent co-ordinate bench of
equal strength wants to take a different view, it can only refer
the matter to a larger bench, otherwise the prior decision of a
co-ordinate bench is binding on the subsequent bench of equal
strength. Since, the decision in S.N.Narula's case (supra) was
not noticed in T.V.Patel's case(supra), the latter decision is a
judgment per incuriam. The decision in S.N.Narula's case
(supra) was binding on the subsequent bench of equal strength
and hence, it could not take a contrary view, as is settled by a
series of judgments of this Court."
16. Learned counsel for the appellant would contend that the two-
Judge Bench in S.K. Kapoor’s case could not have opined that the
decision in T.V. Patel’s case is per incuriam. We have already
noticed two facts pertaining to S.N. Narula (supra), (i) it ws
rendered on 31.1.2004 and (ii) it squarely dealt with the issue
and expressed an opinion. It seems to us that the judgment in
S.N. Narula’s case was not brought to the notice of their
Lordships deciding the lis in T.V. Patel (supra). There cannot
be a shadow of doubt that the judgment in S.N. Narula (supra) is
a binding precedent to be followed by the later Division Bench.
In this context, we may fruitfully refer to the decision in
Union of India v. Raghubir Singh (dead) by L. Rs. And Others
[7], wherein the Constitution Bench has held as follows: -
“We are of opinion that a pronouncement of law by a Division
Bench of this Court is binding on a Division Bench of the same
or a smaller number of Judges, and in order that such decision
be binding, it is not necessary that it should be a decision
rendered by the Full Court or a Constitution Bench of the Court”
17. In Indian Oil Corporation Ltd., v. Municipal Corporation and
Another[8], it has been observed that the Division Bench of the
High Court in Municipal Corpn., Indore v. Ratnaprabha Dhandha[9]
was clearly in error in taking the view that the decision of
this Court in Municipal Corporation, Indore v. Ratna Prabha[10]
was not binding on it. In doing so, the Division Bench of the
High Court did something which even a later co-equal Bench of
this Court did not and could not do.
18. In Chandra Prakash and others v. State of U.P. and another[11],
the Constitution Bench has reiterated the principle that has
already been stated in Raghubir Singh (supra).
19. Thus perceived, it can be stated with certitude that S.N. Narula
(supra) was a binding precedent and when the subsequent decision
in T.V. Patel (supra) is rendered in ignorance or forgetfulness
of the binding authority, the concept of per incurium comes into
play.
20. In this regard, we may usefully refer to a passage from A.R.
Antulay v. R.S. Nayak[12], wherein Sabyasachi Mukharji, J. (as
his Lordship then was) observed thus: -
“....‘Per incuriam’ are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of
some authority binding on the court concerned, so that in such
cases some part of the decision or some step in the reasoning on
which it is based, is found, on that account to be demonstrably
wrong.”
At a subsequent stage of the said decision it has been observed
as follows: -
“.... It is a settled rule that if a decision has been given per
incuriam the court can ignore it.”
21. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors.
[13], while dealing with the issue of ‘per incuriam’, a two-
Judge Bench, after referring to the dictum in Bristol Aeroplane
Co. Ltd. (supra) and certain passages from Halsbury’s Laws of
England and Raghubir Singh (supra), has ruled thus:-
“The analysis of English and Indian Law clearly leads to the
irresistible conclusion that not only the judgment of a larger
strength is binding on a judgment of smaller strength but the
judgment of a co-equal strength is also binding on a Bench of
Judges of co-equal strength. In the instant case, judgments
mentioned in paragraphs 135 and 136 are by two or three judges
of this Court. These judgments have clearly ignored a
Constitution Bench judgment of this Court in Sibbia’s case
(supra) which has comprehensively dealt with all the facets of
anticipatory bail enumerated under Section 438 of Code of
Criminal Procedure Consequently, judgments mentioned in
paragraphs 135 and 136 of this judgment are per incuriam.”
22. Testing on the aforesaid principles it can safely be concluded
that the judgment in T.V. Patel’s case is per incuriam.
23. At this juncture, we would like to give our reasons for our
respectful concurrence with S.K. Kapoor (supra). There is no
cavil over the proposition that the language engrafted in
Article 320(3)(c) does not make the said Article mandatory. As
we find, in the T.V.Patel's case, the Court has based its
finding on the language employed in Rule 32 of the Rules. It is
not in dispute that the said Rule from the very inception is a
part of the 1965 Rules. With the efflux of time, there has been
a change of perception as regards the applicability of the
principles of natural justice. An Inquiry Report in a
disciplinary proceeding is required to be furnished to the
delinquent employee so that he can make an adequate
representation explaining his own stand/stance. That is what
precisely has been laid down in the B.Karnukara's case. We may
reproduce the relevant passage with profit: -
“Hence it has to be held that when the enquiry officer is not
the disciplinary authority, the delinquent employee has a right
to receive a copy of the enquiry officer’s report before the
disciplinary authority arrives at its conclusions with regard to
the guilt or innocence of the employee with regard to the
charges levelled against him. That right is a part of the
employee’s right to defend himself against the charges levelled
against him. A denial of the enquiry officer’s report before the
disciplinary authority takes its decision on the charges, is a
denial of reasonable opportunity to the employee to prove his
innocence and is a breach of the principles of natural justice.”
24. We will be failing in our duty if we do not refer to another
passage which deals with the effect of non-supply of the enquiry
report on the punishment. It reads as follows: -
“[v] The next question to be answered is what is the effect on
the order of punishment when the report of the enquiry officer
is not furnished to the employee and what relief should be
granted to him in such cases. The answer to this question has to
be relative to the punishment awarded. When the employee is
dismissed or removed from service and the inquiry is set aside
because the report is not furnished to him, in some cases the
non-furnishing of the report may have prejudiced him gravely
while in other cases it may have made no difference to the
ultimate punishment awarded to him. Hence to direct
reinstatement of the employee with back-wages in all cases is to
reduce the rules of justice to a mechanical ritual. The theory
of reasonable opportunity and the principles of natural justice
have been evolved to uphold the rule of law and to assist the
individual to vindicate his just rights. They are not
incantations to be invoked nor rites to be performed on all and
sundry occasions. Whether in fact, prejudice has been caused to
the employee or not on account of the denial to him of the
report, has to be considered on the facts and circumstances of
each case. Where, therefore, even after the furnishing of the
report, no different consequence would have followed, it would
be a perversion of justice to permit the employee to resume duty
and to get all the consequential benefits. It amounts to
rewarding the dishonest and the guilty and thus to stretching
the [pic]concept of justice to illogical and exasperating
limits. It amounts to an “unnatural expansion of natural
justice” which in itself is antithetical to justice.”
25. After so stating, the larger Bench proceeded to state that the
court/tribunal should not mechanically set aside the order of
punishment on the ground that the report was not furnished. The
courts/tribunals would apply their judicial mind to the question
and give their reasons for setting aside or not setting aside
the order of punishment. It is only if the court/tribunal finds
that the furnishing of report could have made a difference to
the result in the case then it should set aside the order of
punishment. Where after following the said procedure the
court/tribunal sets aside the order of punishment, the proper
relief that should be granted to direct reinstatement of the
employee with liberty to the authority/ management to proceed
with the enquiry, by placing the employee under suspension and
continuing the enquiry from that stage of furnishing with the
report. The question whether the employee would be entitled to
the back wages and other benefits from the date of dismissal to
the date of reinstatement, if ultimately ordered, should
invariably left to be decided by the authority concerned
according to law, after the culmination of the proceedings and
depending on the final outcome.
26. We have referred to the aforesaid decision in extenso as we find
that in the said case it has been opined by the Constitution
Bench that non-supply of the enquiry report is a breach of the
principle of natural justice. Advice from the UPSC, needless to
say, when utilized as a material against the delinquent officer,
it should be supplied in advance. As it seems to us, Rule 32
provides for supply of copy of advice to the government servant
at the time of making an order. The said stage was in
prevalence before the decision of the Constitution Bench. After
the said decision, in our considered opinion, the authority
should have clarified the Rule regarding development in the
service jurisprudence. We have been apprised by Mr.Raghavan,
learned counsel for the respondent, that after the decision in
S.K.Kapoor's case, the Government of India, Ministry of
Personnel, PG & Pensions, Department of Personnel & Training
vide Office Memorandum dated 06.01.2014 has issued the following
directions:
"4. Accordingly, it has been decided that in all disciplinary
cases where the Commission is to be consulted, the following
procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the
same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine
the same and forward the same to the Charged Officer along with
the Inquiry Report and his tentative reasons for disagreement
with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so
desires, his written representation or submission to the
Disciplinary Authority within fifteen days, irrespective of
whether the Inquiry report/advice of UPSC is in his favour or
not.
(iv) The Disciplinary Authority shall consider the
representation of the Charged Officer and take further action as
prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA)
Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum
has been issued on 05.03.2014, which pertains to supply of copy
of UPSC advice to the Charged Officer. We think it appropriate
to reproduce the same:
"The undersigned is directed to refer to this Department's O.M.
of even number dated 06.01.2014 and to say that it has been
decided, in partial modification of the above O.M. that a copy
of the inquiry report may be given to the Government servant as
provided in Rule 15(2) of Central Secretariat Services
(Classification, Control and Appeal) Rules, 1965. The inquiry
report together with the representation, if any, of the
Government servant may be forwarded to the Commission for
advice. On receipt of the Commission's advice, a copy of the
advice may be provided to the Government servant who may be
allowed to submit his representation, if any, on the
Commission's advice within fifteen days. The Disciplinary
Authority will consider the inquiry report, advice of the
Commission and the representation(s) of the Government servant
before arriving at a final decision."
28. In our considered opinion, both the Office Memoranda are not
only in consonance with the S.K.Kapoor's case but also in
accordance with the principles of natural justice which has been
stated in B.Karunakar's case.
29. In view of the aforesaid, we respectfully agree with the
decision rendered in S.K.Kapoor's case and resultantly decline
to interfere with the judgment and order of the High Court. As
a result, the appeal, being devoid of merit, is dismissed
without any order as to costs.
..............................J
(DIPAK MISRA)
.............................J.
(N.V. RAMANA)
NEW DELHI;
MAY 22, 2014.
-----------------------
[1] AIR 1993 SC 1197
[2] (2007) 4 SCC 785
[3] AIR 1957 SC 912
[4] (1993) 4 SCC 727
[5] (2011) 4 SCC 589
[6] (2011) 4 SCC 591
[7] (1989) 2 SCC 754
[8] AIR 1995 SC 1480
[9] 1989 MPLJ 20
[10] (1976) 4 SCC 622
[11] (2002) 4 SCC 234
[12] (1988) 2 SCC 602
[13] AIR 2011 SC 312 : ( 2011) 1 SCC 694
