Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
E. BASHYAN.
DATE OF JUDGMENT11/03/1988
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
OJHA, N.D. (J)
CITATION:
1988 AIR 1000 1988 SCR (3) 209
1988 SCC (2) 196 JT 1988 (1) 627
1988 SCALE (1)578
ACT:
Constitution of India: Article 311(2) Disciplinary
Authority-Failure to supply copy of report of Enquiry
officer to delinquent before recording finding about guilt-
Whether violative of principles of natural justice-Matter
referred to a larger Bench.
Administrative Law: Natural Justice Enquiry officer’s
report-Supply of to delinquent by Disciplinary Authority
before final order-Necessity for-Matter referred to a larger
Bench.
HEADNOTE:
%
The enquiry officer’s report was not made available to
the respondent before the disciplinary authority passed the
final order recording the finding of guilt against him. The
Central Administrative Tribunal held in favour of the
respondent.
In the special leave petition it was contended for the
Union of India that the only authority which really and
actually holds the delinquent guilty need not afford any
opportunity to him before finding of guilt is recorded and
the material on which the authority acts.
Referring the matter to a larger Bench the Court
observed:
In the event of failure to furnish the report of the
Enquiry officer the delinquent is deprived of crucial and
critical material which is taken into account by the real
authority who holds him guilty namely. the Disciplinary
Authority. He is the real authority because the Enquiry
officer does no more than act as a delegate and furnishes
the relevant material including his own assessment regarding
the guilt to assist the Disciplinary Authority who alone
records the effective finding in the sense that the findings
recorded by the Enquiry officer standing by themselves are
lacking in force and effectiveness. Non-supply of the report
would therefore constitute violation of principles of
natural justice and accordingly will be tantamount to denial
of reasonable opportunity within the meaning of Article 333
(2) of the Constitution. [214B-C]
There can be glaring errors and omissions in the
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report. Or it may
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have been based on no evidence or rendered in disregard of
or by overlooking evidence. if the report is not made
available to the delinquent. this crucial material which
enters into the consideration of the Disciplinary Authority
never comes to be known to the delinquent and he gets no
opportunity to point out such errors and omissions and
disabuse the mind of the Disciplinary Authority before he is
held guilty or condemned. Serving a copy of enquiry report
on the delinquent to enable him to point out anomalies, if
any, before finding about guilt is recorded by the
Disciplinary Authority is altogether a different matter from
serving a second show cause notice to enable the delinquent
in the context of the measure of the penalty to be imposed,
which has been dispensed with by virtue of the amendment to
Art. 311(2) by 42nd Amendment of the Constitution. [211E-H]
Since the question whether it is the right of the
delinquent to pursuade the Authority which makes up its mind
as regards the guilt of the delinquent that such a finding
is not warranted in the light of the Keport of the Enquiry
officer was not directly in issue and has neither been
presented nor discussed in all its ramifications in C.A. No.
537 of 1988 (Union of India & Ors. v. M. Sivagnam) decided
on February 8, 1988 by a Bench comprising of three Judges?
and the Secretary. Central Board of Excise & Customs & Ors.
v. K.S. Mahalingam, (1986 (1) SCALE 1308) decided by a Bench
of two Judges, relied on by the petitioners to contend that
the point is directly or at any rate by necessary
implication covered in their favour, the matter is referred
to a larger bench on considerations of propriety. [214D-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 2725 of 1988
From the Judgment and order dated 12.11.1987 of the
Central Administrative Tribunal. New Bombay in Tr. Appln.
No. 1 of 1986
G. Rama Swamy, Additional Solicitor General, A. Subba
Rao and P. Parmeshwaran for the Petitioners.
Urmila Sirur for the Respondent.
The following order of the Court was delivered by
THAKKAK, J: This matter raises a question of mega-
importance viz. whether failure to supply a copy of the
Report of the Enquiry officer to the delinquent before the
Disciplinary Authority makes up
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his mind and records the finding of guilt as against him
would constitute violation of Article 311(2) of the
Constitution of India and violation of principles of natural
justice. This question appears to be resintegra so far as
this Court is concerned notwithstanding the contention of
the learned counsel for the petitioner to the contrary.
Counsel contends that the point is directly or at any rate
by necessary implication covered in the petitioners’ favour.
Reliance in this connection is placed on an order passed by
a Bench comprising of three Hon’ble Judges of this Court in
C.A. No. 537 of 1988 and on an order passed by a Bench
comprising of two Hon’ble Judges of this Court in the
Secretary, Central Board of Excise and Customs & Ors v. K.S.
Mahalingam 1986 (1) Scale 1308. The facts of both these
matters reveal that the Enquiry officer’s report was not
made available to the delinquent before the Disciplinary
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Authority passed the final order recording the finding of
guilt against him. But in the aforesaid two judgments to
which our attention has been called, the sole issue in focus
was regarding the necessity for serving a second show cause
notice as regards the measure of penalty before the
imposition of the penalty in the context of the argument
that such a notice is no more essential in view of the 42nd
Amendment of the Constitution.
Now an Enquiry officer merely makes his
recommendations, by his report in the light of the evidence
recorded by him and the submissions urged before him. The
tentative view expressed by the Enquiry Officer may or may
not be accepted by the Disciplinary Authority. It is the
Disciplinary Authority who makes up his mind on the basis of
the report and reaches the conclusion whether or not the
delinquent is guilty. He may or may not accept the
recommendations and may or may not accept the report. The
disciplinary Authority builds his final conclusion on the
basis of his own assessment of evidence taking into account
the reasoning articulated in the Enquiry officer’s Report
and the recommendations made therein. If the report is not
made available to the delinquent, this crucial material
which enters into the consideration of the Disciplinary
Authority never comes to be known to the delinquent and he
gets no opportunity whatsoever to have a say in regard to
this critical material at any point of time till the
Disciplinary Authority holds him guilty or condemns him.
Such would be the consequence even if the Enquiry officer
has found him to be blameless and recommended his
exoneration in case the Disciplinary Authority has disagreed
with the Enquiry Report. There can be glaring errors and
omissions in the report. Or it may have been based on no
evidence or rendered in disregard of or by overlooking
evidence. Even so, the delinquent will have no opportunity
to point out to the Disciplinary
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Authority about such errors and omissions and disabuse the
mind of the Disciplinary Authority before the axe falls on
him and he is punished. It appears to us to be a startling
proposition to advance that the only authority which really
and actually holds him guilty need not afford any
opportunity to the person against whom such finding of guilt
is recorded and the material on which he acts.
It needs to be highlighted that serving a copy of the
enquiry report on the delinquent to enable him to point out
anomalies, if any, therein before the axe falls and before
finding about guilt is recorded by the Disciplinary
Authority is altogether a different matter from serving a
second show cause notice to enable the delinquent in the
context of the measure of the penalty to be imposed.
It appears to us that the Report of an Enquiry officer
is akin to a Report submitted by the Commissioner for taking
accounts in a partnership suit to the Court wherein he
summarises the evidence and expresses his opinion and
records his tentative findings for the benefit of the Court.
The Report of the Commissioner is no doubt taken into
account by the Court but then the Court builds its
conclusion only after making available the Report to the
parties and after hearing the parties on the Commissioner’s
Report. It would be a startling proposition to propound that
the Court can accept or reject the Report of the
Commissioner with or without modification, without even
showing the same to the parties or without hearing the
parties in the context of the report.
The true legal position in regard to the findings
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recorded by an Enquiry officer and the legal effect of his
report as spelled-out by us hereinabove is buttressed by a
decision rendered by a Constitution Bench of this Court in
Union of India v. H. C. Goel, [1964] 4 SCR 718 a quarter
century ago wherein the following proposition have been
enunciated:
(1) the Enquiry officer holds the enquiry against
the delinquent as a delegate of the
Government;
(2) the object of the enquiry by an Enquiry
officer is to enable the Government to hold
an investigation into
1. In a case like the present one where the power to
dismiss or remove vests unto the Disciplinary Authority
and the Enquiry Report is required to be submitted to
the Disciplinary Authority (and not to the Government)
the propositions will be applicable to the Disciplinary
Authority.
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the charges framed against a delinquent, so
that the Government can, in due course
consider the evidence adduced and decide
whether the said charges are proved or not;
(3) "the findings on the merits" recorded by the
Enquiry officer are intended merely to supply
appropriate material for the consideration of
the Government. Neither the findings nor the
recommendations are binding on the Government
as held in A.N. D’silva Union of India,
[1962] (Suppl) (1) SCR 968.
(4) The enquiry report along with the evidence
recorded by the Enquiry officer constitute
the material on which the Government has
ultimately to act. That is the only purpose
of the enquiry and the report which the
Enquiry Officer makes as a result thereof.
It is thus evident that the findings recorded by the Enquiry
officer become infused with life only when the Disciplinary
Authority applies his mind to the material which inter alia
consists of the report of the Enquiry officer along with the
evidence and the record etc. If therefore the basic material
comprising of the report of the Enquiry officer which has
been taken into consideration by the Disciplinary Authority
for holding that the delinquent is guilty as per the view
expressed by his delegate namely, Enquiry Officer, is not
made available to the delinquent till the axe falls on him,
can it be said that the principles of Natural Justice have
been complied with? Can it be said that the delinquent had
an opportunity to address the mind of the Disciplinary
Authority who alone in reality found him guilty? Since it
cannot be so asservated it will be difficult to resist the
conclusion that principles of natural justice have been
violated and the delinquent has been denied reasonable
opportunity.
It is no doubt true that when the Constitution Bench
rendered the aforesaid decision in H.C. Goel’s case Article
311(2) had not yet been amended. However, that makes little
difference. By virtue of the amendment what has been
dispensed with is merely the notice in the context of the
measure of penalty proposed to be imposed. 1 he opportunity
required to be given to a delinquent which must be
reasonable opportunity compatible with principles of Natural
Justice has not been dispensed with by virtue of the said
amendment. Therefore the view taken in the context of the
contention that the Discipli-
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214
nary Authority need not afford an opportunity to the
delinquent in regard to the measure of the punishment will
not hold good in the context of the present argument in the
background of the non-supply of the report of the Enquiry
officer. In the event of the failure to furnish the report
of the Enquiry officer the delinquent is deprived of crucial
and critical material which is taken into account by the
real authority who holds him guilty namely, the Disciplinary
Authority. He is the real authority because the Enquiry
officer does no more than act as a delegate and furnishes
the relevant material including his own assessment regarding
the guilt to assist the Disciplinary Authority who alone
records the effective finding in the sense that the findings
recorded by the Enquiry officer standing by themselves are
lacking in force and effectiveness. Non-supply of the report
would therefore constitute violation of principles of
Natural Justice and accordingly will be tantamount to denial
of reasonable opportunity within the meaning of Article
311(2) of the Constitution.
The question arising in this matter is not with regard
to the giving of notice limited to the question of what
penalty should be imposed. The question is whether it is the
right of the delinquent to persuade the Authority which
makes up its mind as regards the guilt of the delinquent
that such a finding is not warranted in the light of the
Report of the Enquiry officer. The decision on this point
will affect millions of employees in service today as also
those who may enter Government service hereafter for times
to come. The matter thus needs careful consideration in
depth, and if necessary at length. As this Bench is
comprised of two Judges, we do not consider it proper on our
part to pass any order in regard to the present petition
though prima facie we are not inclined to grant leave in
view of the two recent decisions cited before us. In any
view of the matter we do not think that it is proper on our
part to pass any order notwithstanding the fact that it
appears to us that this question was not directly in issue
and has neither been presented nor discussed in all its
ramifications in the aforesaid two matter.
In fact this proposition has not been discussed at all
in these judgments. It is therefore futile on the part of
the petitioners to contend that the point is covered and
concluded in their favour. Even so we prefer to be guided by
considerations of propriety and refer the matter to a larger
bench. We also wish to place on record that merely granting
leave in a matter like this will serve no better purpose
than prolonging the misery of all concerned. It may be that
after ten years the appeal is dismissed. It may happen that
the employee may die
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meanwhile. It may also happen that the order of
reinstatement may be confirmed after ten years. In that
event the public exchequer will have spent lakhs of rupees
without taking any work from the employee. With the pendency
of an appeal on this point hundreds of allied matters may
have to be admitted and tagged on to the present matter. The
point therefore deserves to be settled at this stage itself
by a larger Bench.
Learned Counsel for the respondents-caveator prays that
if the Court is inclined to consider this question after
granting special leave, the petitioner should be directed to
pay the past arrears and continue to pay the salary to the
respondent who has succeeded before the Central
Administrative Tribunal. This question also, in our opinion,
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should better be dealt with by the larger Bench before which
this matter is placed as per the directions of the Hon’ble
Chief Justice. We accordingly refer this matter to a larger
Bench. The office shall seek directions of the Hon’ble the
Chief Justice in this behalf
P.S.S.
216