JUDGMENT
Akil Kureshi, J.
1. In this petition, the main issue that is required to be considered is whether the Disciplinary Authority can rely upon the advice rendered by the Gujarat Public Service Commission (hereinafter to be referred to as “GPSC” for short) without supplying a copy thereof to the delinquent Government servant.
2. Facts leading to the present petition are as follows:
2.1 The petitioner was initially appointed as District Inspector, Land Records Class-II as a direct recruit on 16.8.79 under the administrative control of the Settlement Commissioner and Director of Land Records, Gujarat State. In the year 1990, the petitioner was promoted to the post of Superintendent of Land Records (Class I). While holding the said post, a chargesheet came to be issued against the petitioner on 11.11.02. In the said chargesheet, there were three charges levelled against the petitioner. First charge levelled against the petitioner was that on different occasions, the petitioner had committed serious irregularities and had tampered with the record in the results of the candidates in the departmental examinations held in May 1993 and November 1993 when the petitioner was working as Assistant Settlement Commissioner. The chargesheet described different instances which had come to the light of the authorities where the candidates were declared passed though they had actually failed. It was also alleged that the petitioner had tampered with the answer-sheets, mark-sheets and the final result sheets of the said examinations.
Second charge levelled against the petitioner in the said chargesheet was that the petitioner had given two grace marks to a candidate who had secured 48 marks and was thus declared passed after adding the grace marks which was contrary to the instructions.
Third charge against the petitioner was consequential to charge No. 1 and it was alleged that the petitioner had committed gross irregularities in conduct of the examination and had committed acts of doubtful integrity in order to pass 23 candidates unauthorisedly.
It was thus alleged that the petitioner had committed grave misconduct and breached the provisions of rules 3(1)(i) and of the Gujarat Civil Services (Conduct) Rules 1971.
To correct certain typographical error in the chargesheet dated 11.11.02, with the details of which this Court is not concerned, a corrigendum dated 24.3.03 came to be issued.
2.2 Upon conclusion of the oral inquiry, the Inquiry Officer submitted his report on 30th July 2003. The Inquiry Officer concluded that the charge articles 1 and 3 levelled against the petitioner stand proved. The Inquiry Officer, however, found that the second charge against the petitioner was not proved.
2.3 A copy of the Inquiry Officer’s report was supplied to the petitioner along with communication dated 27.8.03. In the said communication dated 27.8.03, it was conveyed to the petitioner that the Disciplinary Authority agrees with the findings of the Inquiry Officer regarding the conclusion that charges Nos. 1 and 3 are proved and that charge No. 2 against the petitioner is not proved. The petitioner was given time for 15 days to represent against the Inquiry Officer’s report.
2.4 The petitioner represented against the Inquiry Officer’s report on 3rd September, 2003.
2.5 The Disciplinary Authority by its impugned order dated 11.9.04 imposed punishment of reverting the petitioner from the post of Superintendent of Land Records, Class-I to the feeder cadre post of Office Superintendent, Class II for a period of five years. It was further provided that upon completion of the above period of 5 years, the petitioner shall be reposted on his original post in Class-I and his pay will be fixed at the same stage where it was prior to the order of punishment. It was further provided that his seniority in Class-I would be maintained.
2.6 Along with the said order of punishment passed by the Disciplinary Authority on 11.9.04, the petitioner was also supplied with a copy of the advise of the GPSC dated 14.6.04.
2.7 In the order of punishment dated 11.9.04, it was recorded that the charge articles 1 & 3 levelled against the petitioner were proved. Considering the seriousness of the misconduct, it was decided to revert the petitioner to the lower post in the feeder cadre of Class II from the present position for a period of two years and to be placed in the same pay-scale which the petitioner was receiving on the date of punishment upon completion of the said period of penalty while preserving his seniority in the Class-I post. It was further recorded that the proposal was sent to the GPSC. The GPSC vide its communication dated 14.6.04 disagreed with the proposal of the Government and advised that instead of reversion for a period of two years, penalty of reverting the petitioner for a period of five years be imposed. It is also noted that the Government has taken into account the advise of GPSC and upon acceptance of the advise, the above punishment of reverting the petitioner to the lower post in Class-II category for a period of five years is imposed, as mentioned above.
3. Being aggrieved by the said order of penalty dated 11.9.04, the petitioner has filed the present petition. Though in the petition several grounds have been raised for challenging the order of penalty dated 11.9.04, learned counsel for the petitioner, however, submitted that one of the grounds that the petitioner has raised in this petition for challenging the order of penalty is that the Disciplinary Authority has taken into account the advise of the GPSC for imposing the said punishment without supplying a copy thereof to the petitioner. Counsel for the petitioner submitted that if this ground is accepted by the Court, it would not be necessary to go into other grounds raised by the petitioner in order to challenge the impugned order and that the matter shall have to be remanded to the Disciplinary Authority to proceed further from the stage of supplying a copy of the advise of the GPSC and to permit the petitioner to make his representation with regard to the contents thereof. He, therefore, submitted that without prejudice to his other contentions raised in this petition, the petitioner would be confining the entire challenge to the impugned order of penalty only on one ground at this stage. He submitted that the petitioner, however, would reserve liberty to raise other contentions in future, if need so arises.
4. Counsel for the petitioner submitted that it is not in dispute that the Government sought and obtained advise of GPSC and that such advise was rendered by the GPSC in its communication dated 16.4.04. He also submitted that from the impugned order of penalty itself it is obvious that the advise of the GPSC was taken into account by the Government while passing the final order of punishment. He, therefore, submitted that the advise of GPSC was an important material which was collected by the Disciplinary Authority behind the back of the petitioner and without giving any opportunity to the petitioner to meet with such material the same was also relied upon.
4.1 Counsel for the petitioner submitted that the advise of the GPSC carries great significance and binding effect on the Government. He pointed out that as per Article 323 of the Constitution of India, in cases where the advise of the State Public Public Service Commissions are not accepted by the Government, reasons for such non-acceptance are to be laid before Legislature of the State. He submitted that as per the provisions of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, the State Government is bound to consult GPSC before imposing any punishment on the petitioner and when such consultation has resulted into enhancement of punishment on the petitioner compared to the one which was proposed by the Government, it is all the more necessary that a copy of the advise of the GPSC ought to have been supplied to the petitioner to enable him to make his representation with respect to the same.
4.2 Counsel for the petitioner submitted that on the basis of the decision of the Hon’ble Supreme Court in the case of State Bank of Inida v. D.C.Aggarwal reported AIR 1993 SC 1197, Government of India had issued a circular providing that advise of the Central Vigilance Commissioner should also be supplied to the delinquent officer along with the Inquiry Officer’s report to give an opportunity to make a representation against Inquiry Officer’s finding and the CVC’s advise if he desires to do so.
4.3 Counsel for the petitioner placed reliance on the decision of a Division Bench of this High Court dated 30th December, 2004 rendered in Special Civil Application No. 17027 of 2004 (Bharat Sanchar Nigam Ltd v. T.V. Patel) whereby the Division Bench was pleased to uphold the decision of the Central Administrative Tribunal, Ahmedabad which interfered with the departmental proceedings on the ground that the UPSC advise was not supplied to the delinquent Government servant before passing the final order of punishment. Counsel for the petitioner pointed out that the provisions of Central Civil Services (Discipline and Appeal) Rules, in so far as the requirement of consultation with the UPSC is concerned are in pari materia with the provisions of Gujarat Civil Services (Discipline & Appeal) Rules pertaining to the requirement of consultation with the GPSC.
4.4 Counsel for the petitioner also placed reliance on the Division Bench decision of this Court dated 8th December 2004 rendered in Special Civil Application No. 15316 of 2004 (Union of India v. Avinash Kumar Srivastava) wherein also similar issue was involved and the Division Bench upheld the view of the Central Administrative Tribunal, Ahmedabad that penalty order could not have been validly passed against the delinquent Government servant without supplying a copy of the advise of the UPSC.
5. On the other hand, learned AGP Mr. Hasurkar has sought to support the decision of the Government. It is contended that through a validly held departmental inquiry, charges against the petitioner were proved. Considering the gravity of the charges, the Government decided to impose the punishment which should not be interfered with. It was contended that there was no need to supply the copy of the advise of the GPSC and that the respondents have not breached any of the rules or regulations or the requirements of natural justice. It was further contended that even if it is found that the copy of the advise ought to have been supplied to the petitioner, before setting aside the order of penalty, the petitioner has to establish the prejudice caused to him on account of non-supply of such advise.
6. The main question that is required to be decided in the present case, therefore, is whether the Government erred in imposing the punishment on the petitioner by order dated 11.9.04 without supplying a copy of the advise of GPSC and if yes, what would be the appropriate course of action that this Court should adopt in the present case.
7. Before dealing with the rival submissions to come to the correct conclusion in this regard, it would be useful to take note of relevant provisions of law having bearing on the outcome of the issues involved.
8. Article 311(1) of the Constitution provides that no person who is a member of the Civil Service of the Union or an all India service or a Civil Service of a State or holds the civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Article 311(2) of the Constitution provides that no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Proviso to Article 311(2) provides that where it is proposed after such inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. Further proviso to Article 311(2) of the Constitution makes the provisions of the said clause inapplicable under certain circumstances which this Court is not concerned in the present petition.
8.1 The manner and method of conducting disciplinary inquiry against the State Government servants is laid down in the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter to be referred to as the said Rules for short). Rule 9 of the said Rules provides procedure for imposing major penalties. It provides, inter alia, that when the inquiry is conducted by the Inquiry Officer appointed by the Disciplinary Authority after the conclusion of the inquiry, a report shall be prepared and the Inquiry Authority shall forward it to the Disciplinary Authority. The record of inquiry shall include the report prepared by it, written statement of defence if any submitted by the Government servant, oral and documentary evidence produced in course of that enquiry, written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry and orders, if any, made by the Disciplinary Authority and the Inquiry Authority in regard to the inquiry. Rule 10 of the said Rules provides for action to be taken on the Inquiry Report. The said rule provides, inter alia, that if the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in items (4) to (8) of Rule 6 (i.e. major penalties) should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed. It is further provided that in every case where it is necessary to consult the Commission, the record of inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government servant. Sub-rule (4) of rule 10 of the said Rules reads as follows:-
“(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of that opinion that any of the penalties specified in terms (4) to (8) of Rule 6 should be imposed on the Government servant, it shall make an order imposing such penalty, it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making, an order imposing any such penalty as may be imposed on the Government Servant.”
At this stage, it would also be useful to notice provisions of rule 15(4) of the Central Civil Services (Classification, Conduct and Appeal) Rules which makes similar provisions for imposing major penalties on the Government servant governed by the said rules and also provides for consultation with the Union Public Service Commission whenever it is necessary. It requires that the Disciplinary Authority shall take into consideration such advise of UPSC before making an order imposing any such penalty on the Government servant. Rule 15(4) of the CCS (CCA) Rules reads as follows:-
“15(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it it necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.”
8.2 Article 311(2) of the Constitution provides, inter alia, that it shall be the duty of the State Commission to present annually to the Governor of the State a report as to the work done by the Commission and the Governor shall on receipt of such report cause a copy thereof together with a memorandum explaining, as respects the cases, if any where the advice of the Commission was not accepted, the reason for such non-acceptance to be laid before the Legislature of the State. Article 323 of the Constitution reads as follows:-
“323. Reports of Public Service commission :(1) It shall be the duty of the Union Commission to present annually to the President a report as to the work done by the Commission and on receipt of such report the President shall cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reason for such noncompliance to be laid before each House of Parliament.
(2) It shall be the duty of a State Commission to present annually to the Governor of the State a report as to the work done by the Commission, and it shall be the duty of a Joint commission to present annually to the Governor of each of the States the needs of which are served by the Joint Commission a report as to the work done by the Commission in relation to the State, and in in either case the Governor shall, on receipt of such report, cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the Legislature of the State.”
8.3 From the rule position, it can be seen straightway that in cases where the State Government is required to consult the GPSC before imposing any punishment, the Government is required to consult the Commission and take into consideration the advice that is rendered by the Commission. Under sub-rule (4) of rule 10 of the said Rules, it is incumbent upon the Government to take into consideration the advice of the GPSC in every case where it is necessary to consult the Commission before imposing any punishment on the Government servant. Similar is the situation with respect to the Central Government employees also where sub-rule (4) of rule 15 of the CCS (CCA) Rules casts such a duty on the Government to take into consideration the advice rendered by the UPSC before imposing any penalty on the Government servant in cases where it is necessary to consult the Commission. For obtaining such an advice, the Government has to send to the Pubic Service Commission the record of inquiry.
As noted earlier, the Government has to take into consideration the advice of the Public Service Commission rendered under sub-rule (4) of the rule 10 of the said Rules and as per Article 323 of the Constitution in cases where the advice of the Commission has not been accepted, the same has to be placed before the Legislature of the State along with the memorandum explaining, as respects the cases, where the advice of the Commission was not accepted and reasons for such non-acceptance. Thus the advice of the GPSC carries considerable weight with the Government and the same cannot be ignored lightly. It can thus be seen that the advice of GPSC would carry substantial persuasive value with the Government and it would form an important factor for the Government in arriving at the conclusion regarding the guilt or otherwise of the Government servant and the punishment to be imposed upon him. It is, therefore, not possible to argue that the advice of the GPSC would not weigh with the Government in coming to the final conclusion regarding the punishment to be imposed on the Government servant. As a matter of fact, in the present case, it has come on record that on its side, the Government proposed that a punishment of reverting the petitioner on the lower post for a period of two years be imposed upon him. This proposal of the Government, however, was not agreed to by the GPSC and the GPSC in its advice dated 14.6.04 conveyed to the Government that considering the gravity of the charges proved against the petitioner, instead of reverting the petitioner to the lower post for a period of two years, the GPSC advises imposition of penalty of reverting the petitioner to the lower post for a period of five years. From the impugned order of penalty, it is also clear that the Government accepted the said advise of the GPSC and ultimately imposed the punishment of reverting the petitioner to the lower post for a period of five years instead of two years as originally proposed by the Government. It is thus clear that the advice of the GPSC was taken into account by the Government, the same was accepted and acted upon and the Government changed its view with respect to the final punishment to be imposed on the petitioner and enhanced the proposed punishment of reversion for a period of two years to the punishment of reversion of the petitioner for a period of five years to the lower post. The question therefore, that calls for consideration is whether the Government erred in imposing the said punishment on the petitioner without supplying a copy of the advice of the GPSC to the delinquent Government servant and without giving him an opportunity to make his representation with respect to the same.
9. Before proceeding further to take note of the various decisions of the Hon’ble Supreme Court which would have bearing on this aspect of the matter, it would be useful to notice various stages through which Article 311(2) of the Constitution has undergone legislative amendments. Article 311 as originally enacted was in the following terms:-
“311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State–
(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 against the action proposed to be taken in regard to him:
Provided that this clause shall not apply —
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or
(c) where the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be shall be final.”
By the Constitution (Fifteenth Amendment) Act, 1963, clauses (2) and (3) of Article 311 were substituted by the following clauses :
“(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry:
Provided that this clause shall not apply —
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”
The Constitution (Forty-second Amendment) Act, 1976 made certain amendments in the substituted clause (2) of Article 311 with effect from 3rd January 1977. The amended Article 311 reads as follows:-
“311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State — (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 except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
Provided further that this clause shall not apply —
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”
10. The provision of Article 311(2) of the Constitution as it stands after the Forty-second Amendment Act provides that no such person as aforesaid [i.e. as mentioned in Article 311(1)] shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Proviso to Article 311(2) provides that where it is proposed after such inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
11. The vital question, therefore, that requires consideration is whether after the Forty-second Amendment in the Constitution, and in particular in Article 311(2) of the Constitution, it was necessary to supply a copy of the advise of the GPSC to the petitioner or whether the punishment could have been imposed on the petitioner without supplying him the copy of such advice of the GPSC on the basis of which the Government enhanced the proposed punishment of reversion for a period of two years to the lower post to that of reversion for a period of five years to the lower post.
11.1 As noted earlier, there is no dispute about the fact that the Government did seek and obtain advise of the GPSC with respect to the punishment to be imposed on the petitioner. There is also no dispute about the fact that such advice was taken into account and also acted upon by the Government for enhancing the proposed punishment. The question is, whether the procedure adopted by the Government would satisfy the requirement of law where proviso to Article 311(2) provides that penalty may be imposed on the Government on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
12. In the case of Khem Chand v. Union of India, reported in AIR 1958 SC 300, the Hon’ble Supreme Court considered the question of reasonable opportunity to be afforded to a Government servant before he is dismissed, removed or reduced in rank. In para 19 of the said decision, the Hon’ble Supreme Court made the following observations :
“19. To summarise: the reasonable opportunity envisaged by the provision under consideration includes-
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant. In short the substance of the protection provided by rules, like r.55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in s. 240(3) of the Government of India Act, 1935 so as to give a statutory protection to the government servants and has now been incorporated in Art. 311(2) so as to convert the protection into a constitutional safeguard.”
It is of course true that the said decision was rendered when the Constitutional amendments in Article 311(2) were not brought into force pursuant to Forty-second Amendment Act.
13. In the decision of State of Gujarat v. R.G. Teredesai reported in AIR 1969 SC 1294, the Hon’ble Supreme Court observed that it is correct that the Enquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions, the question is whether the employee concerned should be informed about his recommendations. In other words, since such recommendations form part of the record and constitute appropriate material for consideration of the Government, it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment make a proper representation. The Hon’ble Supreme Court further observed that the entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved, the punishment proposed to be inflicted is unduly severe. If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer, the requirement of a reasonable opportunity therefore would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant. While observing so, the Hon’ble Supreme Court rejected the contention on behalf of the Government that supplying of part of Enquiry Officer’s report and withholding of that part relating to punishment would not vitiate the enquiry.
14. In the case of State Bank of India v. D.C. Aggarwal reported in AIR 1993 SC 1197, the Hon’ble Supreme Court affirmed the decision of the High Court which had allowed the petition of the Bank employee by setting aside the order of punishment which was passed after taking into account the recommendations of the Central Vigilance Commission without supplying a copy thereof to the delinquent Bank employee. The Hon’ble Supreme Court observed that the order is vitiated not because of mechanical exercise of power or for non-supply of Enquiry Report, but for relying and acting on material which was not only irrelevant, but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. The Hon’ble Supreme Court further observed that non-supply of CVC recommendation which was prepared behind the back of respondent without his participation and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguards and contrary to fair and just inquiry. The Hon’ble Supreme Court turned down the contention on behalf of the Bank that copy of the CVC recommendation is a privileged communication and cannot be forwarded to the officer by observing that may be the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him, High Court did not commit any error in quashing the order.
15. In the case of Union of India v. Tulsiram Patel, AIR 1985 SC 1416, the Hon’ble Supreme Court examined the effect of Forty-second Amendment Act on the second proviso to Article 311(2) of the Constitution which permitted the Government to dispense with the procedure of conducting deputational inquiry under certain circumstances. The Hon’ble Supreme Court was considering the group of petitions wherein Government servants concerned were dismissed or removed from service without holding any inquiry and they had not been informed about the charges nor they have been given any opportunity of being heard in respect of those charges and the penalty of dismissal or removal, as the case may be, had been imposed upon them under one or other of the three clauses of the second proviso to Article 311(2) of the Constitution. While considering the said group of petitions, the Hon’ble Supreme Court also examined the effect of the Amendments in Article 311 of the Constitution of India brought about by Forty-second Amendment Act. The Hon’ble Supreme Court noted the observations made by the Supreme Court in the case of Khem Chand v. Union of India ( supra), but having regard to the changes brought about in Article 311(2) of the Constitution pursuant to Fortysecond Amendment Act, found that the key words of the second proviso govern each and every clause of that proviso and leaves no scope for any kind of opportunity to be given to a Government servant and the phrase “this clause shall not apply” is mandatory and not directory. The Hon’ble Supreme Court observed that it is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an enquiry under Article 311(2) or from giving any kind of opportunity to the concerned Government servant.
16. In the case of Union of India v. Mohd. Ramzan Khan reported in AIR 1991 SC 471, the Hon’ble Supreme Court examined the question of effect of non-supply of copy of the Enquiry Officer’s report to the Government servant before imposing the order of punishment on him. The Hon’ble Supreme Court considered the effect of amendment in Article 311(2) pursuant to Forty-second Amendment Act. The Hon’ble Supreme Court observed that in case the conclusions of the Enquiry Officer are kept away from the delinquent officer and the Enquiry Officer submits his conclusions with or without recommendations as to punishment, a delinquent is precluded from knowing the contents thereof although such material is used against him by the Disciplinary Authority. The report is an adverse material if the Enquiry Officer records a finding of guilt and proposes a punishment, so far as delinquent is concerned. In quasi-judicial matters if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching to his conclusion, rules of natural justice would be affected. In conclusion, the Hon’ble Supreme Court made the following observations :
“15. Deletion of the second opportunity from the scheme of Art. 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.”
17. In the case of Managing Director, ECIL v. B.Karunakar, AIR 1994 SC 1074, the Hon’ble Supreme Court considered various issues arising as a fall out of its decision in the case of Mohd.Ramzan Khan (supra). The Hon’ble Supreme Court considered the question such as, whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or against him, whether the report of the Enquiry Officer is required to be furnished to the delinquent employee even when the punishment imposed is other than major punishment of dismissal, removal or reduction in rank, whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise? The Hon’ble Supreme Court took note of the decision in the case of Union of India v. Tulsiram Patel (supra) but observed that in the said decision the Court has not dealt with the procedure to be followed by the Disciplinary Authority after the Inquiry Officer’s report is received by it. His Lordship Hon’ble Mr. Justice P.B.Sawant speaking for himself and for Hon’ble Mr. Justice M.N.Venkatachaliah, CJI and Hon’ble Mr Justice S.Mohan and Hon’ble B.P.Jeevan Reddy, made the following observations:-
“The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry officer and the representation of the employee against it.”
The Hon’ble Supreme Court further observed that “what is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage, viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the Inquiry officer’s Report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.”
17.1 On the basis of the above observations, the Hon’ble Supreme Court came to the conclusion that non-supply of Inquiry Officer’s report before the Disciplinary Authority takes its decision would breach the requirement of reasonable opportunity. It further held that the delinquent employee will be entitled to a copy of the report even if the the statutory rules do not permit the furnishing of the report or are silent on the subject. The Hon’ble Supreme Court also held that it would be necessary to supply a copy of the Inquiry Officer’s report notwithstanding the nature of punishment being other than removal, dismissal or reduction in rank. The Hon’ble Supreme Court also held that since the employee would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report as a waiver of his right.
17.2 Having thus concluded that non-supply of the Inquiry Officer’s report to the delinquent would be in breach of the principles of natural justice, the Hon’ble Supreme Court held that in every case where such breach has been committed, it would not be appropriate to direct reinstatement of the employee with backwages in all cases and only when the Court comes to the conclusion that non-supply of the report would have made the difference to the result that the order of punishment should be set aside with liberty to the authority to proceed further with the inquiry from that stage.
17.3 Agreeing with the above view of rest of the Hon’ble Judges rendering the decision, Hon’ble Mr. Justice K.Ramaswamy gave separate reasons. Following observations were made in para 20 of the said decision :
“20. The findings or recommended punishment by the enquiry officer are likely to affect the mind of the disciplinary authority in his concluding the guilt or penalty to be imposed. The delinquent is, therefore, entitled to meet the reasoning, controvert the conclusions reached by the enquiry officer or is entitled to explain the effect of the evidence recorded. Unless the copy of the report is supplied to him, he would be in dark to know the findings, reason in support thereof or nature of the recommendation on penalty. He would point out all the factual or legal errors committed by the enquiry officer. He may also persuade the disciplinary authority that the finding is based on no evidence or the relevant material evidence was not considered or overlooked by the enquiry officer in coming to the conclusions, with a view to persuade the disciplinary authority to disagree with the enquiry officer and to consider his innocence of the charge, or even that the guilt as to the misconduct has not been established on the evidence on records or disabuse the initial impression formed in the minds of the disciplinary authority on consideration of the enquiry report.Even if the disciplinary authority comes to the conclusion that charge or charges is/are proved, the case may not warrant imposition of any penalty. He may plead mitigating or extenuating circumstances to impose no punishment or a lesser punishment. For this purpose the delinquent needs reasonable opportunity or fair play in action. The supply of the copy of the report is neither an empty formality, nor a ritual, but aims to digress the direction of the disciplinary authority from his derivative conclusions from the report to the palliative path of fair consideration.”
The Hon’ble Supreme Court further observed that even prior to the Constitution Forty-second Amendment Act, the entire proceedings was considered as an integral whole and on receipt of the report of the enquiry officer the disciplinary authority was required to consider the record and to arrive at a provisional conclusions thereon, a show cause notice with proposed punishment was as part of the reasonable opportunity envisaged under Article 311(2). It was further observed that section 44 of the Fortysecond Amendment Act done away with supply of the copy of the report on the proposed punishment but was not intended to deny fair, just and reasonable opportunity to the delinquent, but to be a reminder to the disciplinary authority that he is still not absolved of his duty to consider the material on records, the evidence along with the report, but before he does so, he must equally accord to the delinquent, a fair and reasonable opportunity of his say on the report when the disciplinary authority seeks to rely thereon.
His Lordship negatived the contention on behalf of the Government that the report is not the evidence adduced during such inquiry envisaged under proviso to Article 311(2) and observed that what was meant by “evidence” in the proviso to Article 311(2) is the totality of the material collected during the enquiry including the report of the enquiry officer forming part of that material. It was further observed that when reliance is sought to be placed by the disciplinary authority on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both. It was further observed that the enquiry officer is a delegate of the Disciplinary Authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer and non supply of copy of the report to the delinquent would cause him grave prejudice. Observations made in para 24 and 25 need to be noted :
“24. It is now well settled law that the proceedings must be just, fair and reasonable and negation thereof offend Arts.14 and 21. It is well settled law that principle of natural justice are integral part of Art. 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. the enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post mortem certificate with purifying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Arts.14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Govt./management that the report is not evidence adduced during such enquiry envisaged under proviso to Art. 311(2) is also devoid of substance. It is settled law that Evidence Act has no application to the enquiry conducted during the disciplinary proceedings.The evidence adduced is not in strict conformity with Indian Evidence Act, though the essential principle of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Art. 311(2) is the totality of the material collected during the enquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed, by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both.”
xxxx xxxx
“25. ……. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the enquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K.George’s case (AIR 1969 SC 198, renders no assistance.”
18. From the above judicial pronouncement, it can be seen that though after the Constitution Forty-second Amendment, the delinquent Government servant no longer has a right to make a representation with respect to the proposed punishment, his right of representation before the Disciplinary Authority concludes the issue of his guilt and imposes suitable punishment is not taken away. The right of the delinquent Government servant to make his representation with respect to the charges levelled against him as well as punishment to be imposed upon him as one single integrated exercise is still available and not altered in any manner by the constitutional changes in Article 311 of the Constitution.Prior to Forty-second Amendment in the Constitution, the delinquent Government servant had the right to make a representation on the proposed punishment before the Disciplinary Authority could conclude the issue of quantum of punishment also. After the Forty-second Amendment, this right has been taken away. Does that mean, however, that the Government can seek and take into account some other material not disclosed to the delinquent Government servant and decide the quantum of punishment to be imposed upon him? As noted earlier, Article 311(2) after its amendment pursuant to the Forty-second Amendment Act provides that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. The advice of the the GPSC therefore would be evidence adduced during such inquiry and if penalty is imposed on the basis of such evidence, it must be disclosed to the Government servant before the same can be relied upon.
19. As noted earlier, the Government under the statutory rules was under obligation to consult the GPSC and seek its advice before imposing any punishment upon the petitioner. Such an advice was in fact, sought from the GPSC. The Constitution requires that when advice of GPSC is disregarded by the Government, the same needs to be tabled before the State Legislature together with reasons for disagreeing with the advice of the GPSC. In the present case, not only was the advise taken into consideration, but the proposed punishment was enhanced pursuant to the advice of the GPSC. Thus, the advise of the GPSC formed a vital material which the Government took into consideration before imposing punishment on the petitioner. Under no circumstances, withholding of such an advice from the delinquent Government servant can be countenanced. The advice of the GPSC would carry formidable weight with the Government.
20. In view of the above discussion, I find that the Government gravely erred in law in passing the impugned order of penalty against the petitioner without supplying a copy of the advice of GPSC and taking the same into consideration and thereby denying the petitioner the opportunity to meet with the issues arising therein. I find considerable force in the submission of the learned advocate for the petitioner that under somewhat similar circumstances, a Division Bench of this Court had held that no valid order of punishment could have been passed on the Government servant who has not been supplied with a copy of the advice of the UPSC. I also agree with the contention of the learned advocate for the petitioner that the provisions in rule 10(4) of the said Rules are pari materia with the provisions of rule 15(4) of the CCS(CCA) Rules and the ratio of the decision of the Division Bench in the case of Bharat Sanchar Nigam Ltd. v. T.V. Patel (supra) and Union of India v. Avinash Kumar Srivastava (supra) would be applicable to the present case.
21. As mentioned above, the Government had initially proposed the punishment of reverting the petitioner to the lower post for a period of two years which punishment was enhanced upon acceptance of the advice of the GPSC. The prejudice to the petitioner by non-supply of the copy of the GPSC advise is writ large on the face of the record. The impugned order of punishment, therefore, shall have to be quashed and set aside.
22. Accordingly, the impugned order dated 11.9.04 is hereby quashed and set aside. It will, however, be open for the Government to proceed further with the departmental proceedings from the stage of supply of the copy of the advice of the GPSC to the petitioner to make representation with respect to the same. Counsel for the petitioner submitted that while the petitioner makes such a representation, he would like to take additional ground with respect to non-supply of essential documents to him. Without expressing any opinion on the validity of such a request, I am sure the Government will dispose of such a request also in accordance with law. The petition is accordingly allowed. Rule is made absolute to the above extent with no order as to costs.