Full Judgment Text
RERPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4888 OF 2010
(Arising out of SLP(C) No. 23781 of 2007)
Indu Bhushan Dwivedi …….Appellant
Versus
State of Jharkhand and another …….Respondents
J U D G M E N T
G.S. Singhvi, J.
1. Leave granted.
2. This is an appeal for setting aside order dated 29.3.2007 passed by the
Division Bench of Jharkhand High Court in Writ Petition No.2671 of 2006
whereby it set aside the dismissal of the appellant from service but imposed
the punishment of compulsory retirement.
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3. The appellant joined service as Munsif in 1982. He was promoted as
Sub-Divisional Judicial Magistrate in 1996. While he was posted as Sub-
Divisional Judicial Magistrate at Chaibasa, a news item appeared in `Dainik
Jagran’ dated 2.7.2003 suggesting that the appellant had misbehaved and
manhandled an accused, named, Anup Kumar and Constable Sheo Pujan
Baitha. On the next day, i.e. 3.7.2003, the appellant made a representation
to District and Sessions Judge, West Singhbhum at Chaibasa with the
request that an inquiry be got conducted into the matter and appropriate
action against the person who got published the misleading news.
4. The High Court of Jharkhand took cognizance of the newspaper report
adversely commenting upon the conduct of the appellant and passed an order
dated 5.7.2003 whereby he was placed under suspension and his headquarter
was fixed at Chaibasa with a direction that he shall not leave the headquarter
without obtaining prior permission from the Registrar General of the High
Court.
5. In the meanwhile, the appellant appears to have submitted an
application to the District Judge on 4.7.2003 for permission to go to Ranchi
for his treatment and also avail holiday on 6.7.2003. After receiving the
order of suspension, the appellant submitted an application to the Registrar
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General of the High Court stating therein that as per the advise of the doctor,
he has to take complete rest for one month and, therefore, he is unable to
return to Chaibasa. The appellant also indicated that he would join the
headquarters after recovery from illness. This prayer of the appellant was
rejected by the High Court and he was informed through the District Judge
to comply with the direction contained in order dated 5.7.2003. The
appellant responded to this communication by sending letter dated 19.7.2003
to the District Judge wherein he mentioned that he had to proceed on leave
because he was suffering from acute and uncontrolled loose motions and he
had left the headquarters after handing over charge and after seeking
permission from the District Judge. He then reiterated his inability to return
to the headquarter and described the direction contained in the letter of the
High Court as merciless which could not be complied with at the cost of
one’s life. He also claimed that being a suspended employee, he cannot be
compelled to stay at the headquarters.
6. After five months of his suspension, a regular departmental inquiry
was initiated against the appellant on the following charges:
“Charge No.1
You, Shri Indu Bhushan Dwivedi while functioning as SDJM,
West Singhbhum at Chaibasa was found in intoxicated
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st
condition on 1 July 2002 (a holiday) in your residential office
when an accused Anup Kumar of a case no. C/7-60/2001 of the
Court of Shri D. Mahapata, Judicial Magistrate, Ist Class,
Chaibasa was produced before you in your residential office for
remand by the Head Constable Shri Sheo Pujan Baitha in
presence of Office Clerk Shri Baidyanath Ballav Kath of the
Court of Shri D. Mahapatra.
At the time of production of the said accused Anup
Kumar, you misbehaved and manhandled the accused Anup
Kumar as well as constable Shri Sheo Pujan Baitha.
The aforesaid action on your part not only reflects on
your reputation, dereliction of duty but also shows the
recklessness and misconduct in the discharge of duties.
The aforesaid action on your part is also unbecoming of a
Judicial Officer.
Charge No.2
You, Shri Indu Bhushan Dwivedi, SDJM, Chaibasa was
placed under suspension by Hon’ble High Court’s order
contained in letter No. 05/Apptt. dt. 5.7.2003 fixing your
th
headquarter at Chaibasa. It was served on you on 5 July, 2003
by the District & Sessions Judge, West Singhbhum at Chaibasa.
th
On 4 July, 2003, you submitted representation applications
before the District & Sessions Judge, West Singhbhum at
th
Chaibasa to leave the headquarter on following Sunday i.e. 6
of July, 2003 (for one day) to proceed to Ranchi which was
allowed by the District & Sessions Judge, West Singhbhum,
Chaibasa.
Though during the period of suspension you are not
supposed to attend duty or sign any Attendance Register but
you are supposed to remain in the Headquarters and cannot
leave the Headquarters without any permission of the
competent authority, but you remained absent from headquarter
from 6.7.2003 after making over charge to SDJM, Porahat on
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5.7.2003 and you remained out of headquarter without any
information till 10.9.2003.
The aforesaid action on your part and violation of Court’s
order amounts insubordination and misconduct.
Charge No.3.
You, Shri Indu Bhushan Dwivedi, SDJM, Chaibasa
(under suspension) when asked by the District & Sessions
Judge, West Singhbhum at Chaibasa as to why you have not
th
returned to headquarter by letter No.2501/G dated 10 of July,
2003 and to report you submitted reply and used derogatory
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words against the Court by your letter No. 5(P) of 2003 dt. 19
July, 2003 using expression “Merciless Direction of the
Hon’ble Court”.
The aforesaid remarks by you reflects on your conduct
amounting to insubordination, indiscipline and unbecoming a
Judicial Officer.
Shri Dwivedi has been charged of misconduct
recklessness in discharge of his duties along with
insubordination and for committing the acts most unbecoming
of a responsible Judicial Officer, on the basis of the above
mentioned allegation.”
7. The appellant submitted reply and denied all the charges. After
considering the reply, the High Court appointed District & Sessions Judge,
East Singhbhum, Jamshedpur to conduct regular inquiry. The presenting
officer examined 5 witnesses and produced 11 documents to substantiate the
charges leveled against the appellant, who examined 2 witnesses and
produced 17 documents.
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8. For the sake of his convenience, the Inquiry Officer formulated the
following points:
(i) Whether Shri Dwivedi was in an intoxicated condition on
st
1 July, 2003 in the residential Office when accused
Anup Kumar was produced before him for remand?
(ii) Whether Shri Dwivedi had misbehaved as also
manhandled the accused Anup Kumar and Constable
Sheo Pujan Baitha?
(iii) Whether Shri Dwivedi had left his headquarter without
prior permission from the competent authority and
without any sufficient cause?
(iv) Whether Shri Dwivedi had used derogatory
language/word against the Hon’ble Court by his Letter
No.5(p) 2003 dated 19.7.2003? and
(v) Whether Shri Dwivedi had acted in a way which shows
recklessness and misconduct in discharge of his duties
along with insubordination and indiscipline which is
unbecoming of a responsible Judicial Officer?
After analyzing the evidence produced before him, the Inquiry
Officer submitted report dated 4.6.2005 with the conclusion that charges
No.2 and 3 have been proved against the appellant but charge No.1 has not
been proved. While dealing with point Nos.1 and 2 which related to charge
No.1, the Inquiry Officer referred to the statements of Pravakar Singh
(A.W.1), the Registrar, Civil Courts, Chaibasa, Baidyanath Ballav Kant
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(A.W.2), Havildar Sheo Pujan Baitha (A.W.3), the accused Anup Kumar
(A.W.5) and recorded the following conclusions:
“11. From perusal of the record, it appears that there is some
force in the contention of the delinquent because A.W.2
Baidyanath Ballav Kant has specifically stated that on the date
of occurrence, the delinquent had performed ‘Puja’ and several
persons were present there and after ‘Puja’ Prasad was also
given to him and two other persons and this fact has been
supported by A.W.1 Prabhakar Singh. A.W.2 has further stated
that the delinquent was not in an intoxicated condition when the
accused was produced for remand. The said Havildar, A.W.3,
has also nowhere stated in his evidence that the delinquent was
in an intoxicated state.
12. On careful examination of the evidence oral and
documentary, adduced by the parties and in view of the
aforesaid discussions, I am of the view that the Charge No.1
that the delinquent was in an intoxicated condition when the
accused was produced before him for remand, could not be
proved by cogent evidence and similarly, this has also not been
proved that the delinquent had assaulted the accused Anup
Kumar and the Havildar Sheo Pujan Baitha. So, the Point
No.4(i) and (ii) are decided in favour of the delinquent.”
9. The Inquiry Officer then dealt with other three points and held that the
delinquent (appellant herein) appears to have managed the medical
prescription from the doctors to justify non-compliance of the direction
given by the High Court not to leave the headquarter without obtaining
permission from the Registrar General and concluded that his action
amounted to insubordination and indisciplined behaviour unbecoming of a
responsible judicial officer.
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10. The High Court accepted the inquiry report and directed that show
cause notice be issued to the appellant for imposition of a major penalty.
Accordingly, the Registrar General of the High Court issued Memo dated
30.6.2005 to the appellant enclosing therewith a copy of the inquiry report
and called upon him to show cause as to why a major penalty such as
dismissal from service may not be inflicted upon him. In his reply dated
22.7.2005, the appellant challenged the findings recorded by the Inquiry
Officer in respect of charges No.2 and 3 by contending that the same were
based on erroneous appreciation of evidence and that there was no valid
ground to discard the testimony of the doctor and prescriptions given by
him. The appellant then pleaded that he neither had the intention nor he
could have dared to disobey the direction given by the High Court. He
submitted that non-compliance of the direction given by the High Court to
stay at the headquarters during the period of suspension was due to his
illness and pleaded that he may be pardoned for using the expression
‘merciless direction’ for the communication sent by the High Court. He
again tendered an unqualified apology for what he termed as wrong choice
of the words. Simultaneously, he claimed that there was no adverse report
regarding his integrity, honesty and sincerity and he was never found guilty
of any act of insubordination or indiscipline and pointed out that in the latest
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report, the District Judge had commended his work. This is evinced from
para 17 of the appellant’s representation, which reads thus:
“17. Sir, most humbly and respectfully I submit that in the
entire period of my service there is no report against my
integrity honesty and sincerity. I was never found guilty of any
act of insubordination or indiscipline ever before in this entire
period of service also that recently proceeding this suspension
my District Judges in their annual report have commended my
work.”
11. After considering the reply of the appellant, the High Court
recommended his dismissal from service. The State Government accepted
the recommendation of the High Court and passed order dated 22.2.2006
whereby the appellant was dismissed from service.
12. The appellant challenged the aforementioned order by contending that
the same is vitiated due to violation of the rules of natural justice because
while recommending his dismissal from service, the High Court had
considered un-communicated adverse remarks recorded in the Annual
Confidential Report without informing him that the same were being relied
upon for deciding the quantum of punishment. Another ground taken by the
appellant was that the punishment of dismissal from service was totally
disproportionate to the charges found proved against him.
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13. The Division Bench of the High Court first considered the question
whether the past adverse record could be considered for imposing the
punishment of dismissal, referred to the judgment of the Constitution Bench
in State of Mysore v. K. Manche Gowda AIR 1964 SC 506 as also the
judgment in State of U.P. v. Harish Chandra Singh AIR 1969 SC 1020
and held that when the High Court proposed the punishment of dismissal
from service and the appellant himself made a request in paragraph 17 of his
reply that his past record may be considered, no prejudice can be said to
have been caused to him on account of consideration of the adverse reports.
Paragraphs 21 and 22 of the impugned order which contain the reasoning of
the High Court on this issue are extracted below:
“21. Thus, the ratio decided in the above case is where the
past records is considered for awarding lesser punishment, no
notice about the proposal that the past records will be
nd
considered is necessary. In this case, the stand taken by the 2
respondent, namely, the High Court, the past records were
taken into consideration in addition to the charges proved only
to consider if any lesser punishment than the dismissal could be
inflicted, as desired by the petitioner. In case, the past records
were not considered by the disciplinary authority, then the then
the petitioner may raise a grievance non-consideration of his
past records white awarding punishment in spite of his request.
Under those circumstances, the past records as admitted in the
counter affidavit filed by the respondent No. 2 have been
considered.
22. As indicated above, when specially the petitioner has
made a request in his reply to consider his past records, while
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awarding punishment as his past records are good, the
disciplinary authority was constrained to go into the past
record. But, according to the counter by the respondent No.2,
the past records did not support the claim of the petitioner that
his past records were good. On the contrary, his past records
contained various details about his bad records in so many
words as mentioned in the counter. There is no question of
consideration of past records for giving higher punishment than
nd
the disciplinary authority felt while issuing 2 show cause
notice that the maximum punishment alone, would
commensurate the proved charges. In the aforesaid
circumstance, there is no requirement to mention in the show
cause notice regarding to mention in the show cause notice
regarding his past records. As stated by the counsel for the
respondent No.2, the past records were considered at the
instance of the petitioner and also with a view to consider if any
lesser punishment than the dismissal could be inflicted upon the
petitioner. As such the first contention would fail.”
14. The Division Bench then considered the appellant’s plea that the
punishment of dismissal was unduly harsh and disproportionate to the
misconduct found proved against him, referred to the judgments in Om
Kumar v. Union of India (2001) 2 SCC 386, Mahindra and Mahindra
Ltd. v. N.B. Jarawade (2005) 3 SCC 134, Hombe Gowda Educational
Trust v. State of Karnataka (2006) 1 SCC 430, and held:
“Even at the threshold, it should be stated that, the disciplinary
proceedings were initiated and suspension order was passed
mainly on the basis of the report of an officer in the Civil Court
complaining that the delinquent-petitioner, in an intoxicated
condition, assaulted the accused who was produced before him
for remand as well as the constable, who produced before the
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delinquent. This is truly a very serious charge. If this charge is
proved, it would have been a very serious misconduct on the
part of the judicial officer, which would entail him to maximum
punishment. But, in this case, the inquiry officer has not only
observed the charge is not proved, but also indicated that the
delinquent had been falsely implicated at the instance of the
police personnel of the local police station with whom
relationship of delinquent was not cordial. It is true that merely,
because the first charge had been held to be false, we cannot
hold the other charges do not need any serious consideration.
Other charges also are serious, but it shall be remembered that
they are not so serious as that of the first charge. As indicated
above, the petitioner, himself, requested the disciplinary
authority to take into consideration the past record. There is no
dispute in the fact that the past records were taken into
consideration where it was recorded as his conduct was not
good in respect of some period. But the show cause reply sent
by the delinquent, dated, 22.07.2005, would indicate that he has
specifically asked the authority to take into consideration all the
entire period of service. He further referred in his show cause
that his District Judge, Chaibasa has commended his work in
his annual report. Admittedly, there is no reference about this in
the counter filed by the respondent No. 2. On the other hand,
nd
the counsel for the 2 respondent would submit that his entire
past records are not good.
In view of this, it would be better to look into the relevant
entries in his A.C.R. This Court called for the A.C.R. and
perused the same. The relevant entry in A.C.R. in respect of
1988-89, 1989-90, 1991-92, 1996-97 would show various
adverse remarks, as referred to in the counter. However, in the
counter, there is no mention about the entries made during the
year 2002-2003. As per the entry, the District Judge, Chaibasa
certified him as a good officer which is as follows:
Year 2002-2003
Name of Judgeship Chaibasa
Reporting Officer /Hon'ble
Judge
Mr. B.N. Pandey
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Knowledge Good
Promptness in disposal Yes
Quality of Judgment Good
Supervision of Business NA
Efficiency Yes
Reputation Yes
Attitude towards
Colleagues
Good behaviour
Relation with Bar &
Public
Good behaviour
Net Result Good Officer
There is no reason as to why the respondent No. 2 has not
chosen to refer to these entries in relation to his good
behaviour. The respondent No. 2 only was particular about
giving reference about the earlier years in which some adverse
remarks had been passed against him, but in the later year, as
indicated above, he got an entry from the District Judge in his
A.C.R. that his knowledge and behaviour is good and he was
certified as good officer.
Thus, it is clear while imposing punishment, this aspect has not
been taken into consideration despite the request made by the
delinquent to take into consideration the recent entry made by
District Judge, Chaibasa commending his work.
Admittedly, the suspension order was issued on 05.07.2003.
His suspension was not revoked during the pendency of the
inquiry. The inquiry commenced and the charges have been
framed only on 16.12.2003. The inquiry officer was appointed
only on 28.05.2004. Thereafter inquiry held. The inquiry report
was submitted on 04.06.2005. Show cause notice was issued on
30.06.2005. Show cause reply was sent on 22.07.2005.
Ultimately, dismissal order was passed only on 26.02.2006.
Thus, he was facing inquiry from 2003 to 2006. Admittedly,
during the said period his suspension was not revoked and he
was continued to be under suspension. Thus, he was facing
inquiry for two years and seven months approximately and
during that long period, he was constrained to stay at Chaibasa
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at Headquarters as per the direction of this Court. So, this
aspect of the long delay as well as the good conduct certificate
obtained by the delinquent in the recent past from the District
Judge would be the relevant aspect which ought to have been
taken into consideration by the disciplinary authority, while
imposing punishment. Admittedly, both these aspects have not
been considered.”
15. In the end, the Division Bench concluded that the punishment of
dismissal imposed on the appellant is not sustainable but declined to set
aside the same on the ground that substantial time has lapsed since the
initiation of the inquiry and proceeded to impose punishment of compulsory
retirement upon the appellant. This is evinced from paragraphs 34 and 35 of
the impugned order, which are extracted below:
“34. At this stage, we may refer to the powers of this Court as
indicated by the Supreme Court for reviewing the punishment
imposed upon the delinquent by the disciplinary authority. Let
us refer to the relevant portion of judgment of the Supreme
Court in (2001) 2 SCC 386 [Om Kumar versus Union of India]
14. The court while reviewing punishment and if it is
satisfied that Wednesbury principles are violated, it has
normally to remit the matter to the administrator for a
fresh decision as to the quantum of punishment. Only in
extreme and rare cases where there has been long delay
in the time taken by the disciplinary proceedings and in
the time taken in the courts, can the court substitute its
own view as to the quantum of punishment.
35. In the light of the above rule, we are vested with the
power to review the punishment. As we are of the view that the
Wednesbury principles have been violated in this case, we are
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constrained to review the quantum punishment. As Supreme
Court would observe, this Court would normally remit the
matter to the disciplinary authority to take a fresh decision as to
the quantum of punishment. However, this Court is no inclined
to do the same, as in this case there has been a long delay in the
time taken by the disciplinary proceedings as well as in the time
taken in this Court. The proceedings were started in the year
2003. We are in 2007. Therefore, instead of remitting the
matter, we ourselves inclined to review the punishment. In our
view, instead of dismissing the petitioner from service, it would
be appropriate to impose the punishment of compulsory
retirement, which would meet the ends of justice.”
16. Shri Raja Venkatappa Naik, learned counsel for the appellant
reiterated both the grounds taken before the High Court and urged that the
impugned order as also the one passed by the State Government are liable to
be set aside because the action taken against the appellant is not only against
the basics of natural justice but is wholly arbitrary, unreasonable and
unjustified. Learned counsel emphasized that none of the four Annual
Confidential Reports mentioned in paragraph 30 of the impugned order were
communicated to the appellant so as to enable him to represent against the
adverse remarks recorded therein and argued that the same could not have
been considered for the purpose of imposing the punishment of dismissal
without giving him opportunity to offer his explanation. Learned counsel
submitted that even if the findings recorded by the Inquiry Officer in respect
of charges No.1 and 2 are held to be correct, there was no justification to
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impose the punishment of dismissal ignoring that in his long service career
of 24 years the appellant was not found guilty of any other act of
insubordination or indiscipline. Learned counsel argued that when charge
No.1, which was extremely serious in nature was not found proved, the High
Court could not have imposed extreme penalty of dismissal from service by
simply relying upon un-communicated adverse remarks recorded in his
Annual Confidential Reports. Learned counsel criticized the imposition of
the punishment of compulsory retirement by the Division Bench of the High
Court by arguing that once the Division Bench came to the conclusion that
punishment of dismissal is vitiated due to non consideration of the relevant
material i.e., the latest Annual Confidential Report in which the immediate
superior of the appellant had commended his work and conduct, then it
should have set aside the order which was subject matter of challenge in the
writ petition and directed the respondents to pass fresh orders after
communicating adverse remarks to the appellant and giving him an
opportunity to explain his position.
17. We shall first deal with the question whether consideration of the past
adverse record of the appellant by the High Court had the effect of vitiating
the ultimate order passed by the State Government. An exactly similar
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question was considered and answered in affirmative by the Constitution
Bench in State of Mysore v. K. Manche Gowda (supra). The facts of that
case were that while the respondent was holding the post of an Assistant to
the Additional Development Commissioner, Planning, Bangalore, the
Government of Mysore appointed Shri G.V.K. Rao (Additional
Development Commissioner) to conduct a departmental enquiry against him
in respect of the false claims for allowances and fabrication of vouchers.
The Enquiry Officer framed four charges against the respondent. After
holding an enquiry in accordance with relevant rules, the Enquiry Officer
submitted report with the recommendation that the respondent might be
reduced in rank. However, the government issued a notice to the respondent
requiring him to show cause as to why he may not be dismissed from
service. After considering his reply, the Government dismissed the
respondent from service. The respondent challenged his dismissal by filing
writ petition under Article 226 of the Constitution of India. The High Court
quashed the order of dismissal on several grounds including the one that the
respondent had not been foretold about the proposed consideration of his
past adverse record. This Court approved the view taken by the High Court
and observed:
“Under Art.311(2) of the Constitution, as interpreted by this
Court, a Government servant must have a reasonable
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opportunity not only to prove that he is not guilty of the charges
leveled against him, but also to establish that the punishment
proposed to be imposed is either not called for or excessive.
The said opportunity is to be a reasonable opportunity and,
therefore, it is necessary that the Government servant must be
told of the grounds on which it is proposed to take such action:
see the decision of this Court in State of Assam v. Bimal Kumar
Pandit, Civil Appeal No.832 of 1962 D/- 12-2-1963 : (AIR
1963 SC 1612). If the grounds are not given in the notice, it
would be well nigh impossible for him to predicate what is
operating on the mind of the authority concerned in proposing a
particular punishment: he would not be in a position to explain
why he does not deserve any punishment at all or that the
punishment proposed is excessive. If the proposed punishment
was mainly based upon the previous record of a government
servant and that was not disclosed in the notice, it would mean
that the main reason for the proposed punishment was withheld
from the knowledge of the government servant. It would be no
answer to suggest that every government servant must have had
knowledge of the fact that his past record would necessarily be
taken into consideration by the Government in inflicting
punishment on him; nor would it be an adequate answer to say
that he knew as a matter of fact that the earlier punishments
were imposed on him or that he knew of his past record. This
contention misses the real point, namely, that what the
government servant is entitled to is not the knowledge of
certain facts but the fact that those facts will be taken into
consideration by the Government in inflicting punishment on
him. It is not possible for him to know what period of his past
record or what acts or omissions of his in a particular period
would be considered. If that fact was brought to his notice, he
might explain that he had no knowledge of the remarks of his
superior officers, that he had adequate explanation to offer for
the alleged remarks or that his conduct subsequent to the
remarks had been exemplary or at any rate approved by the
superior officers. Even if the authority concerned took into
consideration only the facts for which he was punished, it
would be open to him to put forward before the said authority
many mitigating circumstances or some other explanation why
those punishments were given to him or that subsequent to the
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punishments he had served to the satisfaction of the authorities
concerned till the time of the present enquiry. He may have
many other explanations. The point is not whether his
explanation would be acceptable, but whether he has been
given an opportunity to give his explanation. We cannot accept
the doctrine of “presumptive knowledge” or that of
“purposeless enquiry”, as their acceptance will be subversive of
the principle of “reasonable opportunity”. We, therefore, hold
that it is incumbent upon the authority to give the government
servant at the second stage reasonable opportunity to show-
cause against the proposed punishment and if the proposed
punishment is also based on his previous punishments or his
previous bad record, this should be included in the second
notice so that he may be able to give an explanation.”
(emphasis supplied)
18. The proposition laid down in the above noted judgment represents one
of the basic canons of justice that no one can be condemned unheard and no
order prejudicially affecting any person can be passed by a public authority
without affording him reasonable opportunity to defend himself or represent
his cause. As a general rule, an authority entrusted with the task of deciding
lis between the parties or empowered to make an order which prejudicially
affects the rights of any individual or visits him with civil consequences is
duty bound to act in consonance with the basic rules of natural justice
including the one that material sought to be used against the concerned
person must be disclosed to him and he should be given an opportunity to
explain his position. This unwritten right of hearing is fundamental to a just
decision, which forms an integral part of the concept of rule of law. This
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right has its roots in the notion of fair procedure. It draws the attention of
the authority concerned to the imperative necessity of not overlooking the
cause which may be shown by the other side before coming to its decision.
When it comes to taking of disciplinary action against a delinquent
employee, the employer is not only required to make the employee aware of
the specific imputations of misconduct but also disclose the material sought
to be used against him and give him a reasonable opportunity of explaining
his position or defending himself. If the employer uses some material
adverse to the employee about which the latter is not given notice, the final
decision gets vitiated on the ground of the violation of the rule of audi
alteram partem . Even if there are no statutory rules which regulate holding
of disciplinary enquiry against a delinquent employee, the employer is duty
bound to act in consonance with the rules of natural justice – Managing
Director, Uttar Pradesh Warehousing Corporation and another v. Vijay
Narayan Bajpayee (1980) 3 SCC 459. However, every violation of the
rules of natural justice may not be sufficient for invalidating the action taken
by the competent authority/employer and the Court may refuse to interfere if
it is convinced that such violation has not caused prejudice to the affected
person/employee.
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19. In Harish Chandra Singh’s case (supra), a three-Judge Bench of this
Court considered a somewhat similar question in the backdrop of the fact
that even though in the show cause notice, the competent authority had
proposed dismissal of the respondent, after considering his reply, a lesser
punishment i.e. removal from service was imposed upon him. The
respondent in that case had joined Police Department in 1947. He was
dismissed from service on 21.6.1951 but was reinstated in January, 1952.
He was finally removed from service in 1956. In the year 1951 itself,
punishment of reduction to the lowest scale of the post for a period of three
years was imposed on the respondent. In 1955, his pay was reduced for a
period of two years. In the course of service, the respondent had earned
fifteen rewards and commendations. In the departmental inquiry which led
to his removal from service in 1956, the respondent was found guilty of
three charges of gross negligence in the performance of his duty of
investigating the cases registered under various sections of the Indian Penal
Code. The trial Court dismissed the suit filed by the respondent. On appeal,
Additional District Judge, Varanasi decreed the same. The High Court
confirmed the appellate judgment and dismissed the second appeal preferred
by the State by observing that the respondent had not been given opportunity
to explain the past punishments which were considered by the Deputy
22
Inspector General of Police in arriving at his decision to remove the
respondent from service. While considering the question whether it was
necessary for the concerned authority to give notice to the respondent as a
condition precedent for consideration of his past punishments, this Court
referred to the factual matrix of the case and held that when the final
punishment was lesser than the proposed punishment, consideration of the
past adverse record was inconsequential. The Court referred to the
arguments urged on behalf of the State and observed:
“The learned counsel for the State contends that on the facts of
this case it is clear that the plaintiff had notice that his record
would be taken into consideration because the Superintendent
of Police had mentioned it towards the end of his order, a copy
of which was supplied to the plaintiff. In the alternative he
contends that if the record is taken into consideration for the
purpose of imposing a lesser punishment and not for the
purpose of increasing the quantum or nature of punishment,
then it is not necessary that it should be stated in the show-
cause notice that his past record would be taken into
consideration.
It seems to us that the learned counsel is right on both the
points. The concluding para of the report of the Superintendent
of Police, which we have set out above, clearly gave an
indication to the plaintiff that his record would be considered
by the Deputy Inspector General of Police and we are unable to
appreciate what more notice was required. There is also force
in the second point urged by the learned counsel. In State of
Mysore v. K. Manche Gowda (1964) 4 SCR 540 the facts were
that the Government servant was misled by the show-cause
notice issued by the Government, and but for the previous
record of the Government servant the Government might not
have imposed the penalty of dismissal on him. This is borne
23
out by the following observations of Subba Rao, J., as he then
was:
“In the present case the second show cause notice
does not mention that the Government intended to
take his previous punishments into consideration in
proposing to dismiss him from service. On the
contrary, the said notice put him on the wrong
scent, for it told him that it was proposed to
dismiss him from service as the charges proved
against him were grave. But, a comparison of
paragraphs 3 and 4 of the order of dismissal shows
that but for the previous record of the Government
servant, the Government might not have imposed
the penalty of dismissal on him and might have
accepted the recommendations of the Enquiry
Officer and the Public Service Commission. This
order, therefore, indicates that the show cause
notice did not give the only reason which
influenced the Government to dismiss the
respondent from service.”
20. An analysis of the two judgments shows that while recommending or
imposing punishment on an employee, who is found guilty of misconduct,
the disciplinary/competent authority cannot consider his past adverse record
or punishment without giving him an opportunity to explain his position and
considering his explanation. However, such an opportunity is not required
to be given if the final punishment is lesser than the proposed punishment.
21. In the light of the above, we shall now consider whether the High
Court could have while recommending the appellant’s dismissal from
24
service taken into consideration un-communicated adverse Annual
Confidential Reports and whether the Division Bench of the High Court was
right in distinguishing the judgment of the Constitution Bench in Manche
Gowda’s case on the ground that appellant had himself made a request for
consideration of the past record.
22. It is not in dispute that adverse remarks recorded in the Annual
Confidential Reports of the appellant for the years 1988-1989, 1989-1990,
1990-1991 and 1996-1997 were not communicated to him. It can
reasonably be presumed that if the adverse remarks were communicated to
him, the appellant would have made representation for expunging the same.
However, as the adverse remarks were not communicated to him, the
appellant could not avail that opportunity. He did not even know what were
the adverse remarks and who had recorded the same. This Court cannot
speculate about the appellant’s fate if the High Court had informed him that
there were adverse remarks in his Annual Confidential Reports which were
being relied upon for the purpose of determining the quantum of punishment
and that he can submit his representation against the same. If the appellant
was made aware that the adverse remarks relate to his work, conduct or
behaviour, he may have represented and successfully demonstrated that the
25
remarks were recorded by the concerned officer without looking into the
quality and quantity of the work done by him and that there was no
complaint from any quarter regarding his conduct and behaviour. He could
have also shown that in the past no such adverse remark had been entered in
his Annual Confidential Report. If the remarks contained adverse reflection
on his integrity, the appellant could have represented that the same were
unfounded or were made due to bias or prejudice. He may have shown that
his integrity was beyond doubt and he had discharged his duties sincerely
and to the satisfaction of his superiors. However, the fact of the matter is
that the adverse remarks were not communicated to him and on that account
he could not represent against the same.
23. The ratio of Manche Gowda’s case is that the past adverse record of
the delinquent employee cannot be considered at the stage of imposing
punishment unless he is put to notice and given an opportunity to explain his
position. In the show cause notice issued to the appellant, it was not
disclosed that the High Court had considered the un-communicated adverse
remarks recorded in his Annual Confidential Reports for the purpose of
forming an opinion that he should be dismissed from service. If the
appellant had been told about this and given an opportunity to have his say
26
against the un-communicated adverse remarks, he could have offered
appropriate explanation and tried to convince the concerned authority that
the remarks were either unfounded or were totally unjustified. He would
have surely pleaded that after 1996-1997 no adverse comments were made
about his work, conduct, behaviour and integrity and he had earned good
reports (even the Division Bench of the High Court had noted that his
confidential report for the year 2002-2003 was good on all counts). It is thus
clear that the appellant was seriously prejudiced on account of non-
disclosure of the fact that while recommending his dismissal from service,
the High Court had taken into consideration un-communicated adverse
remarks recorded in his four Annual Confidential Reports.
24. The inquiry was held against the appellant on three charges, the most
serious of which was that after having consumed liquor, he had misbehaved
and manhandled an accused and a constable. That charge was not found
proved. The other two charges were that he had left headquarter without
seeking permission from the Registrar General of the High Court in
violation of the direction contained in order dated 5.7.2003 and that he had
used derogatory words (merciless direction) qua the communication sent by
the High Court. There cannot be two views that being a member of the
27
subordinate judiciary, the appellant was bound to comply with the direction
given by the High Court to stay at the headquarters but singular violation of
such directive or use of intemperate language in representation dated
19.7.2003 were not that serious which warranted imposition of the extreme
penalty of dismissal from service. In our view, the adverse remarks
recorded in the Annual Confidential Reports of the appellant seems to have
weighed heavily with the High Court while recommending his dismissal
from service.
25. Since the un-communicated adverse remarks contained in the Annual
Confidential Reports of the appellant became foundation of the decision
taken by the High Court to recommend his dismissal from service and he
was not noticed about the proposed consideration of those remarks, it must
be held that the appellant was seriously prejudiced. We have mentioned all
this only to reinforce the ratio of the judgment in Manche Gowda’s case
that consideration of the past adverse record without giving an opportunity
to the delinquent to explain the same can cause serious prejudice to him.
26. The Division Bench of the High Court clearly misread the
representation made by the appellant and distinguished the judgment of the
Constitution Bench in Manche Gowda’s case without any tangible reason.
28
A reading of paragraph 17 of the representation made by the appellant
makes it clear that he had only mentioned that there was no report against
his integrity and honesty and he was never found guilty of any act of
insubordination or indiscipline in his service career. This assertion, cannot
by any stretch of imagination be construed as a request by the appellant for
consideration of his past record. Thus, the finding recorded by the Division
Bench of the High Court that the appellant’s cause was not prejudiced on
account of consideration of the past adverse record is clearly erroneous and
unsustainable.
27. The judgment in Harish Chandra Singh’s case is clearly
distinguishable. At the cost of repetition, we consider it necessary to
observe that the three-Judge Bench had not applied the ratio of Manche
Gowda’s case because on facts it was found that the past record had been
considered by the disciplinary authority only for the purpose of imposing a
lesser punishment on the respondent.
28. For the reasons stated above, the appeal is allowed. The impugned
order of the Division Bench of the High Court is set aside. The High Court
of Jharkhand shall now consider the issue of quantum of punishment afresh
and make fresh recommendation to the State Government within a period of
29
four months from the date of receipt/production of copy of this order. If the
High Court still feels that the adverse remarks in the Annual Confidential
Reports of the appellant for the year 1988-1989, 1989-1990, 1990-1991 and
1996-1997 should be considered, then such report(s) shall be communicated
to him and he should be given an opportunity to make appropriate
representation. While making fresh recommendation for imposing the
particular punishment, the High Court is expected to take into consideration
the good as well as adverse record of the appellant. The State Government
shall pass appropriate order within three months from the date of receipt of
fresh recommendation from the High Court. The parties are left to bear their
own cost.
………………….…….…J.
[G.S. Singhvi]
……………….…………J.
[C.K. Prasad]
New Delhi
July 5, 2010.