REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO……………/2010 (Arising out of S.L.P.(C) NO. 19318/2007)

Mohd. Yunus Khan                                                    ... Appellant  

                                                  Versus

State of U.P.  & Ors.                                            ...Respondents

J U D G M E N T  

Dr. B.S. CHAUHAN, J.

1. Leave granted.

The facts of the present case reveal that a person who initiated  

the disciplinary proceedings against the appellant for disobeying his  

own orders; appointed his subordinate as an inquiry officer; appeared  

as a witness in the proceedings to prove the charges of disobedience  

of his orders; accepted the enquiry report; and further passed the order  

of  punishment  -  i.e.  dismissal  of  the  appellant  from  service.  The  

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question does arise as to whether such a course is permissible in law.

2. This appeal has been preferred against the judgment and order  

dated  12th July,  2007  passed  by  the  High  Court  of  Allahabad  

(Lucknow Bench), dismissing the Writ Petition No. 782 of 2007 filed  

by  the  appellant  against  the  judgment  and order  of  the  U.P.  State  

Public  Services  Tribunal,  (hereinafter  referred to  as  the ‘Tribunal’)  

Lucknow dated 25th May, 2007, by which the Tribunal dismissed the  

Claim Petition No. 837 of 2003 filed by the appellant and upheld the  

order  of  dismissal  of  the  appellant  from  service  by  the  Statutory  

Authorities.   

3. Facts  and circumstances  giving rise  to  this  case  are  that  the  

appellant  was  appointed  as  a  Constable  in  the  Provincial  Armed  

Constabulary (hereinafter referred to as `PAC’) on 10th February, 1969  

and promoted to the post of Head Constable vide order dated 5th May,  

1983.   The  appellant  was  posted  with  30th Battalion  PAC  in  G-

Company in the year 2002.  On 29th September, 2002, the appellant  

was on duty as Guard Commander along with another Head Constable  

named Rama Nand.  At around 6.20 A.M., the appellant left his post  

and came back after 25 minutes after having tea and medicine in the  

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canteen.  His departure from his post was duly recorded in the register  

maintained for the purpose by the other guard, Head Constable Rama  

Nand.   The  Dal  Nayak  endorsed  his  comments  in  respect  of  the  

appellant’s absence for the period of 25 minutes and placed it before  

the Commandant on 3rd October, 2002.  The Commandant vide order  

dated  4th October,  2002  imposed  the  punishment  of  10  days  

punishment drill.    Upon protest by the appellant, the Commandant  

enhanced  the  punishment  to  10  days  confinement  in  a  cell.   The  

appellant refused to serve the punishment being not acceptable to him.

4. Refusal to serve the punishment so imposed by the appellant  

was considered to be a serious act of indiscipline and he was placed  

under suspension.  The appellant was served with a chargesheet dated  

2nd December, 2002 indicating that an enquiry was to be held against  

him under  Rule  14(1)  of  the  Uttar  Pradesh  Police  Officers  of  the  

Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter  

referred to as `the Rules 1991).  The appellant submitted his reply to  

the  said  chargesheet  on  11th December,  2002.  The  inquiry  officer  

concluded the enquiry and submitted the report on 28th March, 2003  

with  the  finding  that  the  appellant  was  guilty  of  negligence  and  

disobedience and recommended his removal from service.  

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5. The Disciplinary  Authority  issued a notice dated 31st March,  

2003 to the appellant to show cause as to why his services should not  

be terminated in view of the enquiry report.  The appellant submitted  

his reply to the said show cause on 7th April, 2003.  After considering  

the  same,  the  Commandant  passed  the  order  dated  8th April,  2003  

imposing the punishment of termination from service.  

6. Being aggrieved, the appellant preferred an appeal against the  

order of termination.  However, the said appeal was dismissed by the  

Appellate  Authority  vide  order  dated  25th August,  2003.   The  

appellant challenged the said order of termination before the Tribunal  

by filing Claim Petition No. 837 of 2003.  The Tribunal dismissed the  

said Claim Petition vide judgment  and order dated 25th May,  2007  

recording the finding that the absence from duty for 25 minutes on  

29th September, 2002 was bona fide and permissible under Rule 21 of  

the  Guard  and  Escort  Rules,  however,  not  obeying  the  order  of  

punishment  was  a  case  of  gross  indiscipline  and  thus,  order  of  

termination of his services was justified.   

7. Being aggrieved of the said judgment and order of the Tribunal,  

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the appellant preferred a Writ Petition before the High Court which  

was  dismissed  vide  impugned judgment  and  order  dated  12th July,  

2007 in a cursory manner without considering the issues raised by the  

appellant,  merely on the ground that charge of disobedience of the  

orders of the higher authority stood proved and the enquiry had been  

conducted in accordance with law.  Hence, this appeal.   

8. Shri Tripurari Ray, learned counsel appearing for the appellant  

has raised large number of submissions,  inter-alia, the absence from  

duty for a short - specified period, when other guard is present  on  

duty, is permissible under the Guard and Escort Rules.  The appellant  

had left his duty for only 25 minutes and it was so recorded in the  

register at the spot.  If such an absence is permissible in law, imposing  

the punishment of 10 days’ punishment drill was unwarranted.  More  

so,  it  had  been  awarded  without  giving  a  proper  opportunity  of  

hearing  to  the  appellant.   The  appellant’s  protest  against  such  an  

arbitrary  imposition  of  punishment  could  not  be  the  ground  for  

enhancing the punishment to 10 days confinement in a cell; depriving  

him of his personal liberty was totally unwarranted and uncalled for,  

particularly, in view of the fact that the imposition of  the very first  

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punishment  was  in  contravention  of  the  statutory  rules.   The  

disciplinary  authority  did  not  consider  the  reply  submitted  by  the  

appellant  against  the show cause notice  wherein it  had specifically  

been submitted that in case the Commandant was of the view that his  

orders had been violated,  he should have referred the matter to his  

superior  officer  to transfer  the   disciplinary  proceedings to another  

coordinate officer and that officer should  have conducted the enquiry.  

The  Disciplinary  Authority  himself  appeared  as  a  witness  in  the  

enquiry. Thus, the enquiry itself stood vitiated.  The punishment of  

dismissal  remained disproportionate  to the  proved delinquency;  the  

Appellate  Authority  considered  while  passing  the  order,  the  past  

conduct of the appellant for the purpose of confirming the order of  

punishment passed by the Disciplinary Authority. The appellant’s past  

conduct had never been the part of the chargesheet or the show cause  

notice;  nor had the appellant ever been informed that his past conduct  

was  likely  to  be  considered  at  the  time  of  passing  the  order  of  

punishment.  The High Court failed to consider that, in a case where  

there had been a violation of the statutory provisions, or principles of  

natural justice, power of judicial review required to be exercised. The  

appeal deserves to be allowed.  

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9. Per contra, Shri Ameet Singh, learned counsel appearing for the  

State of U.P.,  has opposed the appeal contending that the appellant  

had  been  the  member  of  a  disciplined  force.  Indiscipline  therein,  

amounts to a very serious misconduct.   Therefore,  it  is intolerable.  

Once the charge of absence and further charge of disobedience stood  

proved, the matter does not deserve to be considered by this Court.  

The appeal lacks merit and is liable to be dismissed.  

10. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

11. An  enquiry  was  initiated  against  the  appellant  by  the  

Commandant,  for  disobedience  of  the  order  of  punishment  by  the  

Commandant himself.  The charge-sheet contained two basic charges  

which read as under:-

“1. Your  duty  was  as  a  Guard  Commander  in  the  Vahini Quarter Guard from 22.9.2002 to 29.9.2002. On  29.9.2002 in the morning at 06.30 a.m., inspection of the   Vahini Quarter Guard was made by the Platoon Officer   of  “G”  Platoon,  when  you  were  found  absent.   With   regard  to  this  absence the  Second Guard Commander   H.C.39074 Rama Nand told that you have gone to take   tea and medicine.  This was mentioned by the Platoon   Officer  “G”  Platoon  in  the  Inspection  Book.   With   regard to this absence your explanation was sought by   the Platoon Officer “G” Platoon, when you did not give   

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satisfactory  explanation  and  you  sought  that  your   explanation  be  placed  before  the  Senanayak,  in  your  explanation you alleged violation of rules and standing  orders by the Platoon Officer “G” Platoon, which was   submitted  by  the  Platoon  Officer  “G”  Platoon  on  3.10.2002 with  his  comments  before  the  Senanayak to  produce you in his chamber.

2. On  4.10.2002  when  you  appeared  before  the   Senanayak in the Orderly Chamber, after the hearing 10   days’ P.D. was awarded to you which you declined. On   this you were punished by the Senanayak for violation of   his order passed in the Orderly Chamber with 10 days   cell punishment, which you the H.C. did not accept and  after saluting the Commandant you voluntarily went out   of the chamber.”  

12. The inquiry officer conducted the enquiry and on its conclusion  

held that the appellant was guilty on both counts. The Disciplinary  

Authority accepted the report and  held that:

“Mohd.  Yunus  Khan  has  been  found  to  be  violating   orders and bleak chances of improvement, not fit to be  retained  in  a  disciplined  force  like  PAC  as  his   continuance in the force will have adverse effect on other   personnel.   He  is  guilty  of  negligence  in  duty,   indiscipline and disobedience of orders.”     

The  Commandant  awarded  the  punishment  -  dismissal  from  

service.  

13. The  Appellate  Authority,  while  affirming  the  said  order  of  

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punishment, considered the past conduct of the appellant wherein it  

had  been  mentioned  that  the  appellant  had  been  given  8  petty  

punishments;  3  censure  entries;  and  a  penalty  of  reversion  for  six  

months from the post of Head Constable to the post of Constable. He  

was also reduced to the lowest pay scale of Rs.975/- for one year after  

he had been found guilty in a departmental enquiry.

14. The  Tribunal  dismissed  the  Claim  Petition  filed  by  the  

appellant,  however,  it  recorded  the  finding that  the  absence of  the  

appellant  for  25  minutes  was  bona  fide  and legally  permissible  in  

view of the provisions of Rule 21  of the Guard and Escort Rules.  

However,  his subsequent  misconduct,  i.e.,  disobedience in carrying  

out the punishment was a serious matter.  The Tribunal also took note  

of the order of the Appellate Authority wherein the past conduct of the  

appellant  had  been  taken  into  consideration.  The  High  Court  

dismissed the Writ Petition without realising the gravity of the legal  

issues involved in the case.  

15. We have to proceed, keeping in mind the trite law that holding  

disciplinary  proceedings  against  a  government  employee  and  

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imposing a punishment on his being found guilty of misconduct under  

the  statutory  rules  is  in  the  nature  of  quasi-judicial  proceedings.  

Though,  the  technical  rules  of  procedure  contained in  the  Code of  

Civil Procedure, 1908  and the provisions of the Indian Evidence Act,  

1872 do not apply in a domestic enquiry, however, the principles of  

natural justice require to be observed strictly.  Therefore, the enquiry  

is to be conducted fairly and reasonably and the enquiry report must  

contain reasons for  reaching the conclusion that  the charge framed  

against the delinquent stood proved against him.  It cannot be an ipse  

dixit  of  the  inquiry  officer.  Punishment  for  misconduct  can  be  

imposed  in  consonance  with  the  statutory  rules  and  principles  of  

natural justice. (See  Bachhittar Singh v. State of Punjab & Anr.,  

AIR 1963 SC 395;  Union of India v. H.C. Goel, AIR 1964 SC 364;  

Anil  Kumar  v.  Presiding  Officer  &  Ors.,  AIR  1985  SC  1121;  

Moni Shankar v. Union of India & Anr. (2008) 3 SCC 484; and  

Union of India & Ors. v.  Prakash Kumar Tandon, (2009) 2 SCC  

541).  

16. The  Tribunal  has  categorically  held  that  absence  of  the  

appellant from duty for such a short span of time was permissible in  

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view of the statutory rules and was bona fide. That finding was not  

challenged by the respondents any further and attained finality. This  

finding of the Tribunal leads us to the questions that in case the first  

punishment of 10 days punishment drill was unwarranted and illegal;  

whether  any  protest  against  such  punishment,  authorised  the  

Commandant to enhance the punishment to 10 days confinement in a  

cell; and whether further disobedience thereof, ought to have enabled  

the Commandant to initiate the disciplinary proceedings against the  

appellant.  These questions have to be considered keeping in mind that  

the appellant  was a member  of disciplined force and the Appellate  

Authority as well as the Tribunal had very heavily relied on the past  

conduct  of  the  appellant  for  considering  the  proportionality  of  the  

punishment, though it had not been a part of the charge-sheet nor was  

the  appellant  informed of  the  same while  issuing the  second show  

cause notice, giving him the opportunity to make his representation  

against the enquiry report.  

17. In Union of India & Ors. v. L.D. Balam Singh,  (2002) 9 SCC  

73, this Court observed as under:

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“….the extent of restrictions necessary to be imposed on  any of the fundamental rights in their application to the   armed forces  and the forces  charged with  the  mainte- nance of public order for the purpose of ensuring proper  discharge of their duties and maintenance of discipline   among them would necessarily depend upon the prevail- ing situation at a given point of time and it would be in- advisable to encase it in a rigid statutory formula. The   Constitution-makers  were  obviously  anxious  that  no  more restrictions should be placed than are absolutely   necessary for ensuring proper discharge of duties and  the maintenance of discipline amongst the armed force  personnel”.          (Emphasis added)   

 18. In  Lt. Col. Prithpal Singh Bedi v. Union of India & Ors.,  

AIR 1982 SC 1413, this Court observed:

“It is one of the cardinal features of our Constitu- tion  that  a  person  by  enlisting  in  or  entering  armed  forces does not cease to be a citizen so as to wholly de- prive him of his rights under the Constitution….        Persons subject to Army Act are citizens of this an- cient land having a feeling of belonging to the civilised   community governed by the liberty-oriented constitution.   Personal liberty makes for the worth of human being and  is a cherished and prized right. Deprivation thereof must   be preceded by an enquiry ensuring fair,  just and rea- sonable procedure and trial”.

19. In R. Viswan & Ors. v. Union of India & Ors., AIR 1983 SC  

658, Constitution Bench of  this Court observed:

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“Morale and discipline are indeed the very soul of an  army and no other consideration, howsoever important,   can outweigh the need to strengthen the morale of the   Armed Forces and to maintain discipline amongst them.  Any  relaxation  in  the  matter  of  morale  and discipline  may prove disastrous and ultimately lead to chaos and   ruination affecting the well being and imperilling the hu- man rights of the entire people of the country”.

20. Thus, the requirements of morale, discipline and justice have to  

be reconciled.  There is no scarcity of examples in history, and we see  

it in day-to-day life also, that even in disciplined forces, forced morale  

and  discipline  without  assured  justice  breeds  defiance  and  

belligerency.  Our Constitution protects not only the life and liberty  

but  also  the  dignity  of  every  person.   Life  convicts  and  hardcore  

criminals deprived of personal liberty are also not wholly denuded of  

their  Constitutional  rights.   Arbitrariness  is  an  anathema  to  the  

principles  of  reasonableness  and  fairness  enshrined  in  our  

constitutional provisions.   The rule of law prohibits the exercise of  

power in an arbitrary manner and/or in a manner that travels beyond  

the boundaries of reasonableness.  Thus, a statutory authority is not  

permitted to act whimsically/arbitrarily.  Its actions should be guided  

by the principles of reasonableness and fairness.  The authority cannot  

be permitted to abuse the law or to use it unfairly.

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21. Rule 13 of the Rules 1991 reads as under:

“Officer  not  competent  to  conduct  disciplinary  proceedings- A gazetted officer of the Police Force who  is either a prosecution witness in the case  or has either   conducted a preliminary enquiry in that case shall not   conduct inquiry in that case under these rules. In case  the said gazetted officer is the Superintendent of Police   himself,  the Deputy Inspector-General concerned shall   be moved to  transfer the case to some other district or  unit as the case may be.”           (Emphasis added)

It  is  evident  from the  aforesaid  rule  that  a  person  who is  a  

witness in a case can neither initiate the disciplinary proceedings nor  

pass an order of punishment.

22. A Constitution Bench of this Court in State of U.P. v. Mohd.  

Noor, AIR 1958 SC 86, rejected a submission made on behalf of the  

State that there was nothing wrong with the Presiding Officer of a  

Tribunal appearing as a witness and deciding the same case, observing  

as under:

“The two roles could not obviously be played by one and  the  same  person…….the  act  of  Shri  B.  N.  Bhalla  in   having  his  own  testimony  recorded  in  the  case  indubitably  evidences  a  state  of  mind  which  clearly   discloses considerable bias against the respondent. If it   shocks our notions of judicial propriety and fair play, as   

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indeed it does, it was bound to make a deeper impression   on the mind of  the respondent  as to the unreality  and   futility of the proceedings conducted in this fashion. We  find ourselves in agreement with the High Court that the   rules of natural  justice were completely discarded and  all canons of fair play were grievously violated by Shri.   B.N. Bhalla continuing to preside over the trial. Decision   arrived at by such process and order founded on such   decision  cannot  possibly  be  regarded  as  valid  or  binding.”

23. A similar view was taken by this Court in Rattan Lal Sharma  

v.  Managing  Committee,  Dr.  Hari  Ram (Co-education)  Higher  

Secondary School  & Ors.,  AIR 1993 SC 2155,  observing that  a  

person  cannot  be  a  witness  in  the  enquiry  as  well  as  the  inquiry  

officer.  

24. The legal maxim “nemo debet esse judex in propria causa” (no  

man shall be a judge in his own cause) is required to be observed by  

all judicial and quasi-judicial authorities as non-observance thereof is  

treated  as  a  violation  of  the  principles  of  natural  justice.  (Vide  

Secretary to Government, Transport Department v. Munuswamy  

Mudaliar & Anr.,  AIR 1988 SC 2232;  Meenglas Tea Estate  v.  

The Workmen, AIR 1963 SC 1719; and Mineral Development Ltd.  

v. The State of Bihar & Anr., AIR 1960 SC 468).  

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25. This  Court  in  A.U.  Kureshi  v.  High  Court  of  Gujarat  &  

Anr., (2009) 11 SCC 84, placed reliance upon the judgment in Ashok  

Kumar Yadav & Ors. v. State of Haryana & Ors., (1985) 4 SCC  

417, and held that no person should adjudicate a dispute which he or  

she  has  dealt  with  in  any  capacity.   The  failure  to  observe  this  

principle  creates  an  apprehension  of  bias  on  the  part  of  the  said  

person. Therefore, law requires that a person should not decide a case  

wherein he is interested.  The question is not whether the person is  

actually biased but whether the circumstances are such as to create a  

reasonable  apprehension  in  the  minds  of  others  that  there  is  a  

likelihood of bias affecting the decision.  

26. The  existence  of  an  element  of  bias  renders  the  entire  

disciplinary proceedings void.  Such a defect cannot be cured at the  

appellate stage even if the fairness of the appellate authority is beyond  

dispute. (Vide:  S. Parthasarthy v. State of Andhra Pradesh, AIR  

1973  SC  2701;  and  Tilak  Chand  Magatram  Obhan  v.  Kamla  

Prasad Shukla & Ors., 1995 Supp. (1) SCC 21).

27. In  Arjun Chaubey v. Union of India & Ors., AIR 1984 SC  

1356, a Constitution Bench of this Court dealt with an identical case  

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wherein  an  employee  serving  in  the  Northern  Railway  had  been  

dismissed  by  the  Deputy  Chief  Commercial  Superintendent  on  a  

charge of misconduct which concerned himself, after considering by  

himself, the explanation given by the employee against the charge and  

after thinking that the employee was not fit to be retained in service.  

It was also considered whether in such a case, the court should deny  

the relief to the employee, even if the court comes to the conclusion  

that  order  of  punishment  stood  vitiated  on  the  ground  that  the  

employee had been guilty of habitual acts of indiscipline/ misconduct.  

This  Court  held  that  the  order  of  dismissal  passed  against  the  

employee stood vitiated as it was in utter disregard of the principles of  

natural justice.  The main thrust of the charges against the employee  

related to his conduct qua the disciplinary authority itself, therefore, it  

was not open to the disciplinary authority to sit in judgment over the  

explanation  furnished  by  the  employee  and  decide  against  the  

delinquent.   No person could be a  judge in  his  own cause and no  

witness could certify that his own testimony was true.  Any one who  

had a personal stake in an enquiry must have kept himself aloof from  

the enquiry.  The court further held that in such a case it could not be  

considered that the employee did not deserve any relief from the court  

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since he was habitually guilty of acts subversive of discipline.  The  

illegality from which the order of dismissal passed by the Authority  

concerned suffered was of a character so grave and fundamental that  

the alleged habitual misbehaviour of the delinquent employee could  

not cure or condone it.   

28. Thus, the legal position emerges that if a person appears as a  

witness in disciplinary proceedings, he cannot be an inquiry officer  

nor can he pass the order of punishment as a disciplinary authority.  

This  rule  has  been  held  to  be  sacred.   An  apprehension  of  bias  

operates as a disqualification for a person to act as adjudicator.  No  

person can be a Judge in his own cause and no witness can certify that  

his own testimony is true.  Any one who has personal interest in the  

disciplinary  proceedings  must  keep  himself  away  from  such  

proceedings.  The violation of the principles of natural justice renders  

the order null and void.  

29. In  the  instant  case,  Shri  Arvind  Kumar  Upadhyaya,  IPS,  

Commandant, 30th PAC Battalion, Gonda,  appeared as a witness and  

proved the disobedience of his orders of imposition of punishment,  

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first as of punishment drill and subsequently of confinement to a cell.  

However, after appearing as a witness in the enquiry, he also passed  

the order of punishment, i.e., dismissal of the appellant from service  

on 8.4.2003.  This issue has been agitated by the appellant throughout  

but  none  of  the  authorities  or  the  courts  below  had  taken  it  into  

consideration.  Appellant has made crystal clear pleadings before this  

Court also in this regard and the same have not been denied in the  

counter affidavit  by the respondents, rather a very vague and evasive  

reply has been filed stating that the disciplinary proceedings had been  

concluded strictly in accordance with law.  

30. An order in violation of the principles of natural justice may be  

void depending on the facts and circumstances of the case. (Vide Raja  

Jagdambika  Pratap  Narain  Singh  v.  Central  Board  of  Direct  

Taxes & Ors., AIR 1975 SC 1816;  Smt. Maneka Gandhi v. Union  

of India & Anr., AIR 1978 SC 597;  Krishan Lal v. State of J & K,  

(1994) 4 SCC 422;  State Bank of Patiala & Ors. v. S.K. Sharma,  

AIR 1996 SC 1669;  Union of  India  & Anr.  v.  M/s.  Mustafa &  

Najibai Trading Co. & Ors., AIR 1998 SC 2526; and Vishnu Dutt  

& Ors.  v. State of Rajasthan & Ors., (2005) 13 SCC 592).  

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31. In  case  the  very  first  order  of  imposition  of  punishment  for  

remaining  absent  from  duty  for  25  minutes  was  bad  in  law,  the  

appellant’s protest against the said punishment could  not be said to be  

unjustified.   In Nawabkhan v. State of Gujarat, AIR 1974 SC 1471,  

this Court dealt with the issue and held as under:

“In  the  present  case,  a  fundamental  right  of  the   petitioner  has  been  encroached  upon  by  the  police   commissioner without due hearing so the Court quashed  it – not killed it then but performed the formal obsequies   of the order which had died at birth. The legal result is   that the accused was never guilty of flouting an order   which never legally existed.”  (Emphasis added)

32. We  are  of  the  considered  opinion  that  the  initiation  of  

disciplinary  proceedings  against  the  appellant  and  the  conclusion  

thereof by the imposition of the punishment by the Commandant, who  

had himself  been a witness, was in flagrant violation of the principles  

of  natural  justice  and  thus,  stood  vitiated.   “Principles  of  natural  

justice  are  to  some minds  burdensome but  this  price-a  small  price  

indeed-has to be paid if we desire a society governed by the rule of  

law.”  All other consequential orders passed in appeal etc. remained  

inconsequential.   More so,  a protest/disobedience  against  an illegal  

order  may  not  be  termed  as  misconduct  in  every  case.   In  an  

appropriate  case,  it  may  be  termed  as  revolting  to  one’s  sense  of  

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justice.  In view of the above, we are of the considered opinion that  

the protest raised by the appellant against the punishment imposed for  

his absence could not give rise to a cause of action for initiating the  

disciplinary proceedings.   

33. The  courts  below  and  the  statutory  authorities  failed  to  

appreciate that if the disciplinary authority wants to consider the past  

conduct of the employee in imposing a punishment, the delinquent is  

entitled  to  notice  thereof  and  generally  the  charge-sheet  should  

contain such an article or at least he should be informed of the same at  

the stage of the show cause notice, before imposing the punishment.

34. This  Court  in  Union  of  India  &  Ors.  v.  Bishamber  Das  

Dogra, (2009) 13 SCC 102, considered the earlier judgments of this  

Court  in  State  of  Assam v.  Bimal  Kumar Pandit,  AIR 1963 SC  

1612; India Marine Service (P) Ltd. v. Their Workmen, AIR 1963  

SC 528; State of Mysore v. K. Manche Gowda, AIR 1964 SC 506;  

Colour-Chem Ltd. v. A.L. Alaspurkar & Ors., AIR 1998 SC 948;  

Director General, RPF v. Ch. Sai Babu, (2003) 4 SCC 331, Bharat  

Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489; and  

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Govt. of A.P. & Ors. v. Mohd. Taher Ali, (2007) 8 SCC 656 and  

came  to  the  conclusion  that  it  is  desirable  that  the  delinquent  

employee  be  informed  by  the  disciplinary  authority  that  his  past  

conduct  could  be  taken  into  consideration  while  imposing  the  

punishment.  However, in case of misconduct of a grave nature, even  

in  the  absence  of  statutory  rules,  the  Authority  may  take  into  

consideration  the  indisputable  past  conduct/service  record  of  the  

delinquent  for  “adding  the  weight  to  the  decision  of  imposing  the  

punishment if the fact of the case so required.”

35. The appellant joined the service on 10.2.1969 and his services  

stood terminated vide order dated 8.4.2003.  Therefore, the benefit of  

service  rendered  by  the  appellant  for  more  than  34  years  stood  

forfeited.  At the time of his removal from service, the appellant was  

54 years of age.  Thus, he had been visited with serious punishment  

on the verge of retirement.

36. In  view  of  the  above,  we  reach  the  following  inescapable  

conclusions:-

I. Absence of appellant from duty as Guard Commander for 25  

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minutes was bona fide and permissible under the statutory rules.

II. Imposition of punishment of punishment drill for 10 days for  

the said absence was unwarranted.

III. Protest  by  the  appellant  against  the  imposition  of  the  said  

punishment  could  not  warrant  enhancement  of  punishment  of  the  

appellant for confinement in cell for ten days.

IV. Disobedience  of  the  enhanced  punishment  could  not,  in  this  

case,  warrant  initiation  of  disciplinary  proceedings  by  the  

Commandant concerned against the appellant.

V. The Commandant could not himself become the Judge of his  

own cause.

VI. The Commandant could not appoint his own subordinate as the  

inquiry officer.

VII. The Commandant could have referred the matter to his superior  

officer for appropriate action in terms of Rules 1991.

VIII. Once  the  Commandant  concerned  appeared  as  a  witness  

himself in the enquiry, he could not pass the order of punishment.   

IX. The  Authority  who  initiated  the  disciplinary  proceedings  

against  the  appellant  became  a  witness  before  the  inquiry  officer  

appointed by him, who is subordinate to him in his office and also  

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accepted  the  enquiry  report  and  passed  the  order  of  punishment.  

Thus, the order of punishment stood vitiated.

X. The Appellate Authority could not consider the past conduct of  

the  appellant  to  justify  the  order  of  punishment  passed  by  the  

disciplinary authority without bringing it to the notice of the appellant.

XI. As the punishment order had been passed in violation of the  

statutory  rules  and  the  principles  of  natural  justice  as  well,  it  is  

rendered null and void.  Thus, it remained inexecutable.

XII.  Past conduct of an employee should not generally be taken into  

account to substantiate the quantum of punishment without bringing it  

to the notice of the delinquent employee.

XIII.   The error of violating the principles of natural justice by the  

Disciplinary Authority has been of such a grave nature that under no  

circumstance  can  the  past  conduct  of  the  appellant,  even  if  not  

satisfactory, be taken into consideration.   

37. In view of the above, we are of the considered opinion that the  

present case is squarely covered by the decision of the Constitution  

Bench in  Arjun Chaubey (supra).  The order of punishment is null  

and void and therefore, cannot be given effect to.  The appeal deserves  

to  be  allowed.   The  appellant  had  already  reached  the  age  of  

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superannuation and no fresh enquiry can be initiated in the matter if  

the earlier proceedings are rendered null and void for the violation of  

the statutory provisions and principles of natural justice.  In the facts  

and circumstances of the case and in order to meet the ends of justice,  

it is desirable that the appellant be paid 50% of the wages from the  

date  of  removal  from service  till  the  date  of  reaching  the  age  of  

superannuation and he be granted retiral benefits in accordance with  

law from the date of his retirement.   

In view of the above, appeal stands disposed of.  No order as to  

costs.

……………………….J. (P. SATHASIVAM)

……….………………J. (Dr. B.S. CHAUHAN)

New Delhi, September  28, 2010  

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