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CASE NO.: Appeal (civil)  2067 of 2005

PETITIONER: Union of India & Anr

RESPONDENT: T.V. Patel

DATE OF JUDGMENT: 19/04/2007

BENCH: H.K. SEMA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.        2067       OF 2007 (Arising out of S.L.P.( C ) No. 11651 of  2005) WITH CIVIL APPEAL NO. 2071,2072, 2068, 2069 OF 2007 (Arising out of S.L.P.(C) Nos. 19594, 26333 of 2005, 8470,  10225 and 12656 of 2006 AND C.A. No. 3628 OF 2006)

H.K.SEMA,J.

               Leave granted.

               These appeals preferred by the Union of India arise  out of a common question of facts and law and they are being  disposed of this common order.  The facts are identical.  For  the sake of brevity we are taking facts from S.L.P (C) No.  11651 of 2005.                 The facts in compendium are as follows:                 The respondent was functioning as SDO (Phone) at  Navsari Telephone Exchange. He was found to have been  involved in providing telephone connection in contravention of  the P & T Manual thereby causing huge avoidable financial  loss to the Department.  A memorandum and the article of  charges framed against the respondent are coined in identical  in language. A memorandum dated 30.06.1997 along with the  substance of imputation of conduct was served on the  respondent.                 The statement of article of charge framed against  the respondent are as follows:- "That the said Shri T.V. Patel while functioning  as SDOP, Navsari, during the period 1996-96,  deliberately provided seven telephone  connections from Navsari Telephone Exchange  to subscribers of Munsad Village falling within  the local area of Ugat Telephone Exchange,  with ulterior motive and in contravention of  Paras 11(A) & (B) of P&T Manual Vol.XII, Part- I; and the connections thus irregularly  provided, had to be got closed by the Telecom  District Manager, Valsad.  The said Shri T.V.  Patel thereby caused a huge avoidable loss to  the Department by incurring unnecessary  expenditure towards stores and labour.  Thus  by his above acts, the said Shri T.V. Patel  committed grave misconduct, failed to  maintain absolute integrity, exhibited lack of

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devotion to duty and acted in a manner  unbecoming of a Government servant, thereby  contravening Rule 3(1)(i), (ii) and (iii) of the  CCS (Conduct) Rules, 1964."                                            List of documents and prosecution witnesses sought  to be relied during the inquiry were also supplied along with  the article of charge.                  During the inquiry the respondent was given an  opportunity of fair hearing and the Inquiry Officer submitted  its report holding that the charges were not proved.  The  Disciplinary Authority disagreed with the report and issued a  notice to the respondent providing the reasons for  disagreement and calling upon the respondent to make  representation, if any, by its order dated 1.4.1999.  On  4.5.1999, the respondent made a representation to the said  notice.  This was rejected.                  The Disciplinary Authority, thereafter, sought the  advice of the Union Public Service Commission (UPSC) and  after considering the advice of the UPSC imposed a penalty of  reduction of pay by one stage in the time scale of pay till  30.11.2001, without cumulative effect by an order dated  15.11.2000.  A copy of the advice obtained from UPSC was  also sent along with the final order of penalty.                   Aggrieved thereby, the respondent filed O.A.No.96 of  2001 challenging the final order passed on 15.11.2000 before  the Central Administrative Tribunal (CAT) Ahmedbad Bench  on various grounds.  The Tribunal after considering various  grounds urged before it, set aside the order dated 15.11.2000  passed by the Disciplinary Authority imposing the penalty.  One of the grounds, which persuaded the Tribunal to come to  the aforesaid conclusion, is recorded in paragraph 12 of the  judgment: "We also note that the copy of UPSC advice  was not made available to the applicant.   Under the circumstances we quash and set  aside of the penalty imposed on the applicant  and direct the respondents to take a decision  after supplying a copy of the UPSC report and  having regard to principles stated in para 10 &  11 above.  The OA is allowed with these  directions.  No costs."                                         Aggrieved thereby, the appellant unsuccessfully  filed Special Civil Application being No.17027 of 2004 before  the High Court urging various grounds.  The High Court  dismissed the Special Civil Application on the sole ground that  a copy of advice tendered by the UPSC was not supplied to the  delinquent officer to enable him to represent.  According to the  High Court, the said advice tendered by the UPSC, a copy of  which should be made available to the delinquent officer so as  to enable him to afford an effective representation to the  punishment proposed and such advice tendered by the UPSC  a copy of which having not been supplied to the delinquent  officer before the order of imposing a penalty was passed,  there is violation of principles of natural justice and vitiates  the inquiry.                  Admittedly, in the present case, the UPSC tendered  its advice and a copy of the advice tendered by the UPSC was  sent along with the copy of the final order dated 15.11.2000  imposing the penalty, to the delinquent officer.                   The question that calls for determination is as to  whether a copy of the advice tendered by the UPSC is to be  furnished along with the order of penalty or before the passing  of an order imposing final penalty.

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               In Swamy’s Compilation of CCS CCA Rules, Rule 15  deals with the action on the inquiry report.                   Sub-rule (3) of Rule 15 reads as under: "(3) If the Disciplinary Authority having regard  to its findings on all or any of the articles of  charge is of the opinion that any of the  penalties specified in Clauses (i) to (iv) of Rule  11 should be imposed on the Government  servant, it shall, notwithstanding anything  contained in Rule 16, make an order imposing  such penalty:  

       Provided that in every case where it is  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 any order  imposing any penalty on the Government  servant.                                  Part IX of the CCS Rules deals with Miscellaneous.   Rule 32 deals with Supply of copy of Commission’s advice.  It  reads: "Whenever the Commission is consulted as  provided in these rules, a copy of the advice by  the Commission and where such advice has  not been accepted, also a brief statement of the  reasons for such non-acceptance, shall be  furnished to the Government servant  concerned along with a copy of the order  passed in the case, by the authority making  the order."                                      In the aforesaid premises, Mr. B.Datta, learned  ASG, contended that a consultation with the UPSC under  Article 320 (3)(c) is not mandatory and the advice tendered, if  any, by the UPSC is not binding on the Disciplinary Authority.   It is further contended that such advice would not confer any  rights on a pubic servant so that the absence of consultation  or any irregularity in consultation does not afford him a cause  of action in a court of law.   He further contended that even  otherwise Rule 32 of the Rules is clear that a copy of such  advice shall be furnished to the delinquent servant along with  a copy of the order passed in the case, by the authority  making the order.                    There is substance in the contention of Mr. Datta,  learned ASG.                 As already noticed, Rule 32 of the Rules deals with  the supply of a copy of Commision’s advice.  Rules as read as  it is mandatory in character.  Rule contemplates that  whenever a Commission is consulted, as provided under the  Rules, a copy of the advice of the Commission and where such  advice has not been accepted, also a brief statement of the  reasons for such non-acceptance shall be furnished to the  Government servant along with a copy of the order passed in  the case, by the authority making the order.  Reading of the  Rule would show that it contemplates two situations; if a copy  of advice is tendered by the Commission, the same shall be  furnished to the government servant along with a copy of the  order passed in the case by the authority making the order.   The second situation is that if a copy of the advice tendered by  the Commission has not been accepted, a copy of which along  with a brief statement of the reasons for such non-acceptance  shall also be furnished to the government servant along with a

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copy of the order passed in the case, by the authority making  the order.   In our view, the language employed in Rule 32,  namely "along with a copy of the order passed in the case, by  the authority making the order" would mean the final order  passed by the authority imposing penalty on the delinquent  government servant.                 Article 320 of the Constitution deals with the  functions of Public Service Commission and provides that it  shall be the duty of the Union and the State Public Service  Commissions to conduct examinations for appointments to the  services of the Union and the services of the State respectively.                 Article 320(3)(c ) reads:-                 (a)\005\005\005\005.                 (b)\005\005\005\005. (c) on all disciplinary matters affecting a  person serving under the Government of India  or the Government of a State in a civil  capacity, including memorials or petitions  relating to such matters;                   \005\005\005..                 \005\005\005..         Provided that the President as respects  the all-India services and also as respects  other services and posts in connection with the  affairs of the Union, and the Governor, as  respects other services and posts in connection  with the affairs of a State, may make  regulations specifying the matters in which  either generally, or in any particular class of  case or in any particular circumstances, it  shall not be necessary for a Public Service  Commission to be consulted.   

              A Constitution Bench of this Court in the case of   State of U.P.    vs    Manbodhan Lal Srivastava, 1958 SCR  533, considered the question as to whether  the consultation  of the Commission under Article 320(3)(c) is mandatory and  binding on the appropriate authority.                 The arguments that the non-compliance of Article  320(3)(c) vitiates the order passed by the appropriate authority  have been repelled by the Court at SCR.pp 543-544:- "Perhaps, because of the use of word "shall" in  several parts of Art. 320, the High Court was  led to assume that the provisions of Art.  320(3)(c) were mandatory, but in our opinion,  there are several cogent reasons for holding to  the contrary. In the first place, the proviso to  Art. 320, itself, contemplates that the  President or the Governor, as the case may be,  "may make regulations specifying the matters  in which either generally, or in any particular  class of case or in particular circumstances, it  shall not be necessary for a Public Service  Commission to be consulted." The words  quoted above give a clear indication of the  intention of the Constitution makers that they  did envisage certain cases or classes of cases  in which the Commission need not be  consulted. If the provisions of Art. 320 were of  a mandatory character, the Constitution would  not have left it to the discretion of the Head of  the Executive Government to undo those  provisions by making regulations to the  contrary. If it had been intended by the makers

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of the Constitution that consultation with the  Commission should be mandatory, the proviso  would not have been there, or, at any rate, in  the terms in which it stands. That does not  amount to saying that it is open to the  Executive Government completely to ignore the  existence of the Commission or to pick and  choose cases in which it may or may not be  consulted. Once, relevant regulations have  been made, they are meant to be followed in  letter and in spirit and it goes without saying  that consultation with the Commission on all  disciplinary matters affecting a public servant  has been specifically provided for, in order,  first, to give an assurance to the Services that  a wholly independent body, not directly  concerned with the making of orders adversely  affecting public servants, has considered the  action proposed to be taken against a  particular public servant, with an open mind;  and, secondly, to afford the Government  unbiassed advice and opinion on matters  vitally affecting the morale of public services. It  is, therefore, incumbent upon the Executive  Government, where it proposes to take any  disciplinary action against a public servant, to  consult the Commission as to whether the  action proposed to be taken was justified and  was not in excess of the requirements of the  situation.        Secondly, it is clear that the requirement of  the consultation with the Commission does not  extend to making the advice of the  Commission on those matters, binding on the  Government. Of course, the Government, when  it consults the Commission on matters like  these, does it, not by way of a mere formality,  but, with a view to getting proper assistance in  assessing the guilt or otherwise of the person  proceeded against and of the suitability and  adequacy of the penalty proposed to be  imposed. If the opinion of the Commission  were binding on the Government, it may have  been argued with greater force that non- compliance with the rule for consultation  would have been fatal to the validity of the  order proposed to be passed against a public   servant. In the absence of such a binding  character, it is difficult to see how non- compliance with the provisions of Art. 320(3)(c)  could have the effect of nullifying the final  order passed by the Government.          Thirdly, Art. 320 or the other articles in  Chapter II of Part XIV of the Constitution deal  with the constitution of the Commission and  appointment and removal of the Chairman or  other members of the Commission and their  terms of service as also their duties and  functions. Chapter II deals with the relation  between Government and the Commission but  not between the Commission and a public  servant. Chapter II containing Art. 320 does  not, in terms, confer any rights or privileges on  an individual public servant nor any  constitutional guarantee of the nature

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contained in Chapter I of that Part,  particularly Art. 311. Article 311, therefore, is  not, in any way, controlled by the provisions of  Chapter II of Part XIV, with particular  reference to Art. 320."                  Finally, at page SCR p.547 it was held as under: "We have already indicated that Art. 320(3)(c)  of the Constitution does not confer any rights  on a public servant so that the absence of  consultation or any irregularity in  consultation, should not afford him a cause of  action in a court of law, or entitle him to relief  under the special powers of a High Court  under Art. 226 of the Constitution or of this  Court under Art. 32. It is not a right which  could be recognized and enforced by a writ. On  the other hand, Art. 311 of the Constitution  has been construed as conferring a right on a  civil servant of the Union or a State, which he  can enforce in a court of law. Hence, if the  provisions of Art. 311, have been complied  with in this case - and it has hot been  contended at any stage that they had not been  complied with - he has no remedy against any  irregularity that the State Government may  have committed. Unless, it can be held, and we  are not prepared to hold, that Art. 320(3)(c) is  in the nature of a rider or proviso to Art. 311,  it is not possible to construe Art. 320(3)(c) in  the sense of affording a cause of action to a  public servant against whom some action has  been taken by his employer."         The decision of the Constitution Bench in  Srivastava (supra) was reiterated by a three Judge Bench of  this Court in the case of Ram Gopal Chaturvedi   vs.  State  of Madhya Pradesh, 1969 (2) SCC 240, it was held in  paragraph 7 of the judgment as under:- "It was argued that the impugned order was  invalid as it was passed without consulting the  State Public Service Commission under Article  320(3)(c) of the Constitution.  There is no merit  in this contention.  The case of State of U.P.  v.   M.L. Srivastava 1958 SCR 533 decided that  the provisions of Article 320(3)(c) were not  mandatory and did not confer any rights on  the public servant and that the absence of  consultation with the State Public Service  Commission did not afford him a cause of  action."                     Counsel for the respondent contended that non- supply of a copy of the advice tendered by the UPSC before the  final order was passed deprived the delinquent officer of  making an effective representation and therefore it vitiates the  order.  To support his contention he referred to the decision of  this Court rendered in the case of State Bank of India   v.   D.C. Aggarwal, (1993) 1 SCC 13, where this Court held that  the disciplinary authority, while imposing punishment, major  or minor, cannot act on material which is neither supplied nor  shown to the delinquent.  Imposition of punishment on an  employee, on material which is not only not supplied but not  disclosed to him, cannot be countenanced.  Procedural  fairness is as much essence of right and liberty as the  substantive law itself.                 He also referred to the decision of this Court in the

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case of Managing Director, ECIL, Hyderabad   vs.   B.Karunakar,  (1993) 4 SCC 727, where this Court dealt with   the non-furnishing of the inquiry report to the delinquent  officer.   The facts of the aforesaid decision are distinguishable  from the facts of the case at hand.  The aforesaid decisions are  not relevant for the purpose of adjudication of the case at  hand.                  In view of the law settled by the Constitution Bench  of this Court in the case of Srivastava (supra) we hold that  the provisions of Article 320(3)(c) of the Constitution of India  are not mandatory and they do not confer any rights on the  public servant so that the absence of consultation or any  irregularity in consultation process or furnishing a copy of the  advice tendered by the UPSC, if any, does not afford the  delinquent government servant a cause of action in a court of  law.                   In the view that we have taken we allow these  appeals.  The orders of the High Court and the Tribunal, to the  extent indicated above, are set aside.  This takes us to  consider as to whether the matter be remitted back to the High  Court or the Tribunal to deal with the other various grounds  raised by the delinquent government officers.    

CIVIL APPEAL ARISING OUT OF  S.L.P.(C) NO. 11651 OF 2005 (Union of India & Anr. v. T.V. Patel)

               The Tribunal had elaborately dealt with the  contentions of both sides on merits.  The Writ Petition of the  Union of India before the High Court also raised many  grounds to be dealt with on merits.   However, the High Court  has only dealt with the question of non-supply of copy of  advice tendered by the UPSC before the passing of the order of  punishment which has already been dealt with by us.  SCA  No.17027 of 2004 is now restored to the file of the High Court.   The matter is remitted back to the High Court for disposal on  merit on other grounds urged before the Court.  

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 19594 OF 2005 (Union of India & Ors. v. Avinash Kumar Srivastava)  

               In this case also the High Court dismissed the SCA  No. 15316 of 2004 filed by the appellant challenging the order  of CAT.  The High Court dismissed the writ petition solely on  the ground of non-supply of copy of advice tendered by the  UPSC to the respondent before the final order was passed.   The respondent did not prefer any writ petition before the High  Court challenging the order of Tribunal.  Many grounds were  urged before the Tribunal.  However, the Tribunal decided the  issue only on ground of non-supply of copy of the advice  tendered by the UPSC before the final order was passed.   O.A.No.206 of 2004 is restored to the file of the Tribunal and  is remitted back to the Tribunal to consider the other grounds  urged before the Tribunal.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 26333 OF 2005 (Union of India & Ors. v. S.K. Agrawal)

               Both the High Court and the Tribunal disposed of  the case only on the ground of non-supply of copy of the  advice tendered by the UPSC to the delinquent officer before  the passing of the final order impinged the principles of  natural justice.  The other grounds urged before the Tribunal  in O.A.No.451 of 2003 have not been considered by the  Tribunal.  O.A.No.451 of 2003 is restored to the file of the  Tribunal and the matter is remitted back, to consider on

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merits all other grounds urged before the Tribunal.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 8470  OF 2006 (Union of India & Ors. v. P.K. Saha & Anr.)

               In this case also the Tribunal has decided solely on  the ground that a copy of the advice tendered by the UPSC has  not been furnished to the delinquent government servant  before the final order was passed.  In view of our order,  O.A.No.627 of 2000, is now restored to the file of the Tribunal  and the Tribunal shall now deal with the other grounds urged  before the Tribunal on merits.       

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 10225 OF 2006 (Union of India & Ors. v. N.J. Paulose)

               In this case, both the High Court and Tribunal  disposed of the case solely on the ground of non-supply of a  copy of the advice tendered by the UPSC before the final order  was passed.  In view of our order, O.A.No.490 of 2002 is now  restored to the file of the Tribunal and the matter is remitted  back to the Tribunal, to deal with the other grounds urged  before it and pass appropriate orders in accordance with law.   

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 12656 OF 2006 (Union of India & Ors. v. V.K. Sajnani)

               The respondent has challenged the main order  before the Tribunal by filing O.A.No.208 of 2002.  The Tribunal  by an order dated 17.10.2003 considered the entire grounds  on merits and dismissed the petition.  Aggrieved thereby, he  filed SCA No.1071 of 2004 urging many grounds.  The Division  bench of the High Court by the impugned order set aside the  order of the Tribunal solely on the ground of non-supply of  copy of the advice tendered by the UPSC before the final order  was passed by the authority.  The High Court has not decided  other grounds urged before the High Court in SCA No.1071 of  2004.  In view of our order, SCA No.1071 of 2004 is now  restored to the file of the High Court.  The High Court shall  decide the other grounds urged before the High Court and  dispose of the matter in accordance with law.      CIVIL APPEAL NO. 3628 OF 2006 (Union of India v. Ashok Kumar Tiwari)

               In this case, both the High Court and the Tribunal,  disposed of the matter only on the ground of non-supply of  copy of advice tendered by the UPSC before the final order was  passed.  In view of our order, O.A.No.271 of 2003, is now  restored to the file of the Tribunal and the matter is remitted  back.  The Tribunal shall consider other grounds urged before  it and pass appropriate order in accordance with law.                      The appeals are allowed in the above terms.  No  costs.