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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: R.   G. TEREDESAI & ANR.

DATE OF JUDGMENT: 10/04/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1969 AIR 1294            1970 SCR  (1) 251  1969 SCC  (2) 128

ACT: Constitution  of  India  Art.  311  (2)-Failure  to  provide recommendations of the Enquiring Officers as to  punishment- If   vitiates  enquiry-Natural   Justice,   Principles-Civil Services (Classification, Control and Appeal) Rules, r. 55.

HEADNOTE: As  there was omission to supply to the first  respondent  a copy  of the recommendations of the Enquiry officer  in  the matter  of  punishment  (although  a  copy  of  his   report containing his findings on various charges was supplied) the first  respondent  filed a writ petition in the  High  Court challenging  the order of the State Government removing  him from  its service.  The first respondent contended that  the omission   amounted   to  failure  to   provide   reasonable opportunity  of  making representation against  the  penalty proposed within the meaning of Art. 311(2) of the  Constitu- tion.   The High Court held that proceedings  were  vitiated from  the  stage  of  the  show  cause  notice  relating  to punishment, and set aside the order of removal, but  liberty was given to the State Government to issue fresh show  cause notice  regarding the proposed punishment.   Dismissing  the State’s appeal, this Court; HELD :-The requirement of a reasonable opportunity could not be satisfied unless the entire report of the Enquiry Officer including  his  views  in  the  matter  of  punishment  were disclosed to the delinquent servant. [254 E]  The Enquiry Officer is under no obligation or duly to  make any  recommendations  in  the matter  of  punishment  to  be imposed on the servant against whom the departmental enquiry is  held, and his function merely is to conduct the  enquiry in  accordance with law and to submit the record along  with his findings or conclusions on the delinquent servant.   But if  the Enquiry Officer has,, also made  recommendations  in the matter of punishment that is likely to, affect the  mind of  the  punishing  authority  with  regard  to  penalty  or punishment  to  be  imposed  on such  officer,  it  must  be disclosed   to   the   delinquent   officer.    Since   such recommendations  form  part  of the  record  and  constitute appropriate material for consideration of the Government  it

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would be essential that that material should not be withheld from  him so that he could, while showing cause against  the proposed  punishment,  make, a proper  representation.   The entire  object  of  supplying a copy of the  report  of  the Enquiry  Officer  is  to enable the  delinquent  officer  to satisfy  the punishing authority that he is innocent of  the charges framed against him and that even if the charges ’are held  to  have  been proved the punishment  proposed  to  be inflicted is unduly severe. [253 H-254 D] Union  of India v. H.C. Goel, [1964] 4 S.C.R. 718,  referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No: 961 of 1966. Appeal  by special leave from the judgment and  order  dated March  18, 1965 of the Gujarat High Court in  Special  Civil Application No. 580 of 1961. 252 R.   H.  Dhebar,  S. K. Dholakia and S. P.  Nayar,  for  the appellant. G.   L. Sanghi and A. G. Ratnaparkhi, for respondent No. 1. M.   S.  K.  Sastri, R. H. Dhebar and R.  N.  Sachthey,  for respondent No. 2. The Judgment of the Court was delivered by Grover,  J.  This is an appeal by special  leave  against  a judgment  of  the Gujarat High Court.  The  sole  point  for determination  is  whether omission to supply to  the  first respondent  a  copy of the recommendations  of  the  Enquiry Officer in the matter of punishment, although a copy of  his report  containing his findings on the various  charges  was supplied,  amounted  to  a  failure  to  provide  reasonable opportunity  of making a representation against the  penalty proposed   within  the  meaning  of  Art.  311(2)   of   the Constitution. The  first  respondent joined the Baroda  State  Service  in 1937.  He was absorbed as a Sales Tax Officer, Class III  in the  former State of Bombay after merger.  In December  1962 he was served with a charge-sheet containing allegations  of attempt  to obtain illegal gratification from certain  cloth dealers.   A departmental enquiry was held and on March  15, 1964 he was dismissed from service.  He challenged the order of  dismissal  by means of a civil -suit.  In May  1958  the City Civil Court decreed the suit holding that the order  of dismissal  was illegal.  He was reinstated with effect  from October 10, 1958.  He was, however, suspended with immediate effect  as a fresh enquiry was proposed to be  held  against him  under  Rule 55 of the Civil  Services  (Classification, Control and Appeal) Rules.  A fresh charge-sheet was  served on  him containing the same allegations as on  the  previous occasion.   In December 1959 a notice was served on  him  by the Government calling upon him to show cause why punishment of  removal  should not be imposed on him.  Along  with  the show  cause  notice  the  report  of  the  Enquiry   Officer containing  his  findings  was sent  to  him.   The  Enquiry Officer had also made certain recommendations regarding  the punishment  which in his opinion should be inflicted on  the first   respondent.   No  copy  of  these   recommendations, however,  was  furnished  to  him.  In  March  1960  it  was proposed that the first respondent be allocated to the State of Gujarat in view of the bifurcation of the erstwhile State of Bombay.  In September 1960 he was removed from service by an  order  passed  by  the  State  Government.   The   first respondent  then  filed  a petition under Art.  226  of  the

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Constitution challenging the order of removal. One of the points which was raised before the High Court was that the failure to send a copy of the report of the Enquiry                             253 Officer  containing  his recommendations in  the  matter  of punishment   vitiated  the  proceedings.   The  High   Court expressed  the  view that since the recommendations  were  a part  of the appropriate material for the  consideration  of the Government in the -matter of imposition of punishment on the  first  respondent, he was entitled to a copy  of  those recommendations at the time when he was called upon to  show cause.   It was consequently hold that the proceedings  were vitiated from the stage of the show cause notice relating to punishment.   The order of removal was set aside but it  was made clear that the Government would be at liberty to  issue a fresh show cause notice regarding the proposed  punishment and to take appropriate proceedings from that stage onwards, if  it  chose  to do so.  The State has  filed  the  present appeal. Learned counsel for the State urged that the Enquiry Officer was  not  required  to make  any  recommendation  about  the punishment ’which was to be imposed on the first  respondent on the charges against him which had been found to have been proved.   It  was  pointed out that the  sole  duty  of  the Enquiry  Officer was to give his conclusions or findings  on the charges which he was called upon to enquire into and the recommendations  which he made in the matter  of  punishment were  wholly redundant and irrelevant.  For that  reason  it was  not at all necessary that the first  respondent  should have been supplied a copy of the recommendations relating to punishment.   In this connection reference has been made  to the  Bombay  Civil Services Conduct, Discipline  and  Appeal Rules  wherein  the procedure has been laid  down  when  -an order  of dismissal, removal or reduction in rank has to  be passed  on a member of the service.  According to  the  Rule the  proceedings  shall  contain sufficient  record  of  the evidence  and  a statement of the findings and  the  grounds thereof.   There  are similar provisions in Rule 55  of  the Civil Services (Classification, Control and Appeal) Rules. In  Union of India v. H. C. Goel(1).  It has  been  observed that unless the statutory rules or the specific order  under which an officer is appointed to hold an inquiry so requires the Enquiry Officer need not make any recommendations as  to the  punishment  which  may be  imposed  on  the  delinquent officer  in  case the charges framed against  him  are  held proved at the enquiry; if however, the Enquiry Officer makes any  recommendations  the  said  recommendations,  like  his findings  on  the  merits, are  intended  merely  to  supply appropriate   material   for  the   consideration   of   the Government.   Neither the findings, nor the  recommendations are  binding on the Government.  Now although it is  correct that  the Enquiry Officer is under no obligation or duty  to make any (1)  [1964] 4 S.C.R. 718. 254 recommendations in the matter of punishment to be imposed on the  servant against whom the departmental enquiry is  held, and  his  function  merely  is to  conduct  the  enquiry  in accordance with law and to submit the record along with  his findings  or conclusions on the various charges  which  have been  preferred against the delinquent servant.  But if  the Enquiry  Officer  proceeds to recommend  that  a  particular penalty or punishment should be imposed in the light of  his findings ’or conclusions the question is whether the officer concerned should be informed about his recommendations.   In

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other  words  since such recommendations form  part  of  the record and constitute appropriate material for consideration of  the Government it would be essential that that  material should  not  be withheld from him so that  he  could,  while showing  cause  against  the proposed,  punishment,  make  a proper  representation.   The entire object of  supplying  a copy  of the report of the Enquiry Officer is to enable  the delinquent  officer to satisfy the punishing authority  that he  is innocent of the charges framed against him  and  that even  if  the  charges  are held to  have  been  proved  the punishment  proposed to be inflicted is unduly  severe.   If the  Enquiry  Officer has also made recommendations  in  the matter  of punishment that is likely to affect the  mind  of the  punishing  authority  even with regard  to  penalty  or punishment  to be imposed on such officer.  The  requirement of  a  reasonable  opportunity,  therefore,  would  not   be satisfied  unless the entire report of the  Enquiry  Officer including  his  views  in  the  matter  of  punishment   are disclosed to the delinquent servant. We  have  no manner of doubt that the decision of  the  High Court must be upheld in the above view of the matter.   The, appeal fails and it is dismissed with costs. Y.P.                                                  Appeal dismissed.. 255