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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: E. BASHYAN.

DATE OF JUDGMENT11/03/1988

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) OJHA, N.D. (J)

CITATION:  1988 AIR 1000            1988 SCR  (3) 209  1988 SCC  (2) 196        JT 1988 (1)   627  1988 SCALE  (1)578

ACT:      Constitution  of  India:  Article  311(2)  Disciplinary Authority-Failure  to  supply  copy  of  report  of  Enquiry officer to  delinquent before recording finding about guilt- Whether violative  of principles  of natural  justice-Matter referred to a larger Bench.      Administrative Law:  Natural Justice  Enquiry officer’s report-Supply of  to delinquent  by  Disciplinary  Authority before final order-Necessity for-Matter referred to a larger Bench.

HEADNOTE: %      The enquiry  officer’s report was not made available to the respondent  before the disciplinary authority passed the final order  recording the finding of guilt against him. The Central  Administrative  Tribunal  held  in  favour  of  the respondent.      In the  special leave petition it was contended for the Union of  India that  the only  authority which  really  and actually holds  the delinquent  guilty need  not afford  any opportunity to  him before  finding of guilt is recorded and the material on which the authority acts.      Referring the  matter  to  a  larger  Bench  the  Court observed:      In the  event of  failure to  furnish the report of the Enquiry officer  the delinquent  is deprived  of crucial and critical material  which is  taken into  account by the real authority who  holds him  guilty  namely.  the  Disciplinary Authority. He  is the  real authority  because  the  Enquiry officer does  no more  than act  as a delegate and furnishes the relevant material including his own assessment regarding the guilt  to assist  the Disciplinary  Authority who  alone records the effective finding in the sense that the findings recorded by  the Enquiry  officer standing by themselves are lacking in force and effectiveness. Non-supply of the report would  therefore   constitute  violation  of  principles  of natural justice and accordingly will be tantamount to denial of reasonable  opportunity within the meaning of Article 333 (2) of the Constitution. [214B-C]      There can  be  glaring  errors  and  omissions  in  the

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report. Or it may 210 have been  based on  no evidence or rendered in disregard of or by  overlooking evidence.  if  the  report  is  not  made available to  the delinquent.  this crucial  material  which enters into  the consideration of the Disciplinary Authority never comes  to be  known to  the delinquent  and he gets no opportunity to  point out  such  errors  and  omissions  and disabuse the mind of the Disciplinary Authority before he is held guilty  or condemned.  Serving a copy of enquiry report on the  delinquent to  enable him to point out anomalies, if any,  before   finding  about   guilt  is  recorded  by  the Disciplinary Authority is altogether a different matter from serving a  second show cause notice to enable the delinquent in the  context of the measure of the penalty to be imposed, which has  been dispensed with by virtue of the amendment to Art. 311(2) by 42nd Amendment of the Constitution. [211E-H]      Since the  question whether  it is  the  right  of  the delinquent to pursuade the Authority which makes up its mind as regards  the guilt  of the delinquent that such a finding is not  warranted in  the light of the Keport of the Enquiry officer was  not directly  in issue  and  has  neither  been presented nor discussed in all its ramifications in C.A. No. 537 of  1988 (Union  of India & Ors. v. M. Sivagnam) decided on February  8, 1988  by a Bench comprising of three Judges? and the  Secretary. Central Board of Excise & Customs & Ors. v. K.S. Mahalingam, (1986 (1) SCALE 1308) decided by a Bench of two  Judges, relied on by the petitioners to contend that the  point   is  directly   or  at  any  rate  by  necessary implication covered  in their favour, the matter is referred to a larger bench on considerations of propriety. [214D-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 2725 of 1988      From the  Judgment and  order dated  12.11.1987 of  the Central Administrative  Tribunal. New  Bombay in  Tr. Appln. No. 1 of 1986      G. Rama  Swamy, Additional  Solicitor General, A. Subba Rao and P. Parmeshwaran for the Petitioners.      Urmila Sirur for the Respondent.      The following order of the Court was delivered by      THAKKAK, J:  This matter  raises a  question  of  mega- importance viz.  whether failure  to supply  a copy  of  the Report of  the Enquiry  officer to the delinquent before the Disciplinary Authority makes up 211 his mind  and records  the finding  of guilt  as against him would  constitute   violation  of   Article  311(2)  of  the Constitution of India and violation of principles of natural justice. This  question appears  to be  resintegra so far as this Court  is concerned  notwithstanding the  contention of the learned  counsel for  the petitioner  to  the  contrary. Counsel contends  that the  point is directly or at any rate by necessary implication covered in the petitioners’ favour. Reliance in  this connection is placed on an order passed by a Bench  comprising of three Hon’ble Judges of this Court in C.A. No.  537 of  1988 and  on an  order passed  by a  Bench comprising of  two Hon’ble  Judges  of  this  Court  in  the Secretary, Central Board of Excise and Customs & Ors v. K.S. Mahalingam 1986  (1) Scale  1308. The  facts of  both  these matters reveal  that the  Enquiry officer’s  report was  not made available  to the  delinquent before  the  Disciplinary

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Authority passed  the final  order recording  the finding of guilt against  him. But  in the  aforesaid two  judgments to which our attention has been called, the sole issue in focus was regarding  the necessity for serving a second show cause notice  as   regards  the  measure  of  penalty  before  the imposition of  the penalty  in the  context of  the argument that such  a notice is no more essential in view of the 42nd Amendment of the Constitution.      Now   an    Enquiry   officer    merely    makes    his recommendations, by  his report in the light of the evidence recorded by  him and  the submissions  urged before him. The tentative view  expressed by  the Enquiry Officer may or may not be  accepted by  the Disciplinary  Authority. It  is the Disciplinary Authority who makes up his mind on the basis of the report  and reaches  the conclusion  whether or  not the delinquent  is   guilty.  He  may  or  may  not  accept  the recommendations and  may or  may not  accept the report. The disciplinary Authority  builds his  final conclusion  on the basis of  his own assessment of evidence taking into account the reasoning  articulated in  the Enquiry  officer’s Report and the  recommendations made  therein. If the report is not made available  to the  delinquent,  this  crucial  material which enters  into the  consideration  of  the  Disciplinary Authority never  comes to  be known to the delinquent and he gets no  opportunity whatsoever  to have  a say in regard to this critical  material  at  any  point  of  time  till  the Disciplinary Authority  holds him  guilty or  condemns  him. Such would  be the  consequence even  if the Enquiry officer has  found   him  to   be  blameless   and  recommended  his exoneration in case the Disciplinary Authority has disagreed with the  Enquiry Report.  There can  be glaring  errors and omissions in  the report.  Or it  may have  been based on no evidence or  rendered in  disregard  of  or  by  overlooking evidence. Even  so, the  delinquent will have no opportunity to point out to the Disciplinary 212 Authority about  such errors  and omissions and disabuse the mind of  the Disciplinary  Authority before the axe falls on him and  he is  punished. It appears to us to be a startling proposition to  advance that the only authority which really and  actually   holds  him   guilty  need   not  afford  any opportunity to the person against whom such finding of guilt is recorded and the material on which he acts.      It needs  to be  highlighted that serving a copy of the enquiry report  on the delinquent to enable him to point out anomalies, if  any, therein  before the axe falls and before finding  about   guilt  is   recorded  by  the  Disciplinary Authority is  altogether a  different matter  from serving a second show  cause notice  to enable  the delinquent  in the context of the measure of the penalty to be imposed.      It appears  to us that the Report of an Enquiry officer is akin to a Report submitted by the Commissioner for taking accounts in  a partnership  suit to  the  Court  wherein  he summarises  the  evidence  and  expresses  his  opinion  and records his tentative findings for the benefit of the Court. The Report  of the  Commissioner  is  no  doubt  taken  into account  by   the  Court  but  then  the  Court  builds  its conclusion only  after making  available the  Report to  the parties and  after hearing the parties on the Commissioner’s Report. It would be a startling proposition to propound that the  Court   can  accept   or  reject   the  Report  of  the Commissioner with  or  without  modification,  without  even showing the  same to  the parties  or  without  hearing  the parties in the context of the report.      The true  legal position  in  regard  to  the  findings

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recorded by  an Enquiry  officer and the legal effect of his report as  spelled-out by  us hereinabove is buttressed by a decision rendered  by a  Constitution Bench of this Court in Union of  India v.  H. C.  Goel, [1964]  4 SCR 718 a quarter century ago  wherein the  following  proposition  have  been enunciated:           (1)  the Enquiry officer holds the enquiry against                the  delinquent   as  a   delegate   of   the                Government;           (2)   the object  of the  enquiry  by  an  Enquiry                officer is  to enable  the Government to hold                an investigation into 1.   In a  case like  the present  one where  the  power  to      dismiss or remove vests unto the Disciplinary Authority      and the  Enquiry Report  is required to be submitted to      the Disciplinary  Authority (and not to the Government)      the propositions will be applicable to the Disciplinary      Authority. 213                the charges  framed against  a delinquent, so                that  the   Government  can,  in  due  course                consider  the  evidence  adduced  and  decide                whether the said charges are proved or not;           (3)   "the findings on the merits" recorded by the                Enquiry officer are intended merely to supply                appropriate material for the consideration of                the Government.  Neither the findings nor the                recommendations are binding on the Government                as held  in  A.N.  D’silva  Union  of  India,                [1962] (Suppl) (1) SCR 968.           (4)   The enquiry  report along  with the evidence                recorded by  the Enquiry  officer  constitute                the material  on  which  the  Government  has                ultimately to  act. That  is the only purpose                of the  enquiry  and  the  report  which  the                Enquiry Officer makes as a result thereof. It is thus evident that the findings recorded by the Enquiry officer become  infused with life only when the Disciplinary Authority applies  his mind to the material which inter alia consists of the report of the Enquiry officer along with the evidence and the record etc. If therefore the basic material comprising of  the report  of the  Enquiry officer which has been taken  into consideration by the Disciplinary Authority for holding  that the  delinquent is  guilty as per the view expressed by  his delegate  namely, Enquiry  Officer, is not made available  to the delinquent till the axe falls on him, can it  be said  that the principles of Natural Justice have been complied  with? Can  it be said that the delinquent had an opportunity  to address  the  mind  of  the  Disciplinary Authority who  alone in  reality found  him guilty? Since it cannot be  so asservated  it will be difficult to resist the conclusion that  principles of  natural  justice  have  been violated and  the  delinquent  has  been  denied  reasonable opportunity.      It is  no doubt  true that  when the Constitution Bench rendered the  aforesaid decision in H.C. Goel’s case Article 311(2) had  not yet been amended. However, that makes little difference.  By  virtue  of  the  amendment  what  has  been dispensed with  is merely  the notice  in the context of the measure of  penalty proposed to be imposed. 1 he opportunity required  to   be  given  to  a  delinquent  which  must  be reasonable opportunity compatible with principles of Natural Justice has  not been  dispensed with  by virtue of the said amendment. Therefore  the view  taken in  the context of the contention that the Discipli-

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214 nary  Authority  need  not  afford  an  opportunity  to  the delinquent in  regard to  the measure of the punishment will not hold  good in the context of the present argument in the background of  the non-supply  of the  report of the Enquiry officer. In  the event  of the failure to furnish the report of the Enquiry officer the delinquent is deprived of crucial and critical  material which  is taken  into account  by the real authority who holds him guilty namely, the Disciplinary Authority. He  is the  real authority  because  the  Enquiry officer does  no more  than act  as a delegate and furnishes the relevant material including his own assessment regarding the guilt  to assist  the Disciplinary  Authority who  alone records the effective finding in the sense that the findings recorded by  the Enquiry  officer standing by themselves are lacking in force and effectiveness. Non-supply of the report would  therefore   constitute  violation  of  principles  of Natural Justice and accordingly will be tantamount to denial of reasonable  opportunity within  the  meaning  of  Article 311(2) of the Constitution.      The question  arising in this matter is not with regard to the  giving of  notice limited  to the  question of  what penalty should be imposed. The question is whether it is the right of  the delinquent  to persuade  the  Authority  which makes up  its mind  as regards  the guilt  of the delinquent that such  a finding  is not  warranted in  the light of the Report of  the Enquiry  officer. The  decision on this point will affect  millions of  employees in service today as also those who  may enter  Government service hereafter for times to come.  The matter  thus needs  careful  consideration  in depth,  and  if  necessary  at  length.  As  this  Bench  is comprised of two Judges, we do not consider it proper on our part to  pass any  order in  regard to  the present petition though prima  facie we  are not  inclined to  grant leave in view of  the two  recent decisions  cited before  us. In any view of  the matter we do not think that it is proper on our part to  pass any  order notwithstanding  the fact  that  it appears to  us that  this question was not directly in issue and has  neither been  presented nor  discussed in  all  its ramifications in the aforesaid two matter.      In fact  this proposition has not been discussed at all in these  judgments. It  is therefore  futile on the part of the petitioners  to contend  that the  point is  covered and concluded in their favour. Even so we prefer to be guided by considerations of propriety and refer the matter to a larger bench. We  also wish to place on record that merely granting leave in  a matter  like this  will serve  no better purpose than prolonging  the misery of all concerned. It may be that after ten  years the appeal is dismissed. It may happen that the employee may die 215 meanwhile.  It   may  also   happen  that   the   order   of reinstatement may  be confirmed  after ten  years.  In  that event the  public exchequer  will have spent lakhs of rupees without taking any work from the employee. With the pendency of an  appeal on  this point  hundreds of allied matters may have to be admitted and tagged on to the present matter. The point therefore  deserves to be settled at this stage itself by a larger Bench.      Learned Counsel for the respondents-caveator prays that if the  Court is  inclined to  consider this  question after granting special leave, the petitioner should be directed to pay the  past arrears  and continue to pay the salary to the respondent   who    has   succeeded   before   the   Central Administrative Tribunal. This question also, in our opinion,

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should better be dealt with by the larger Bench before which this matter  is placed  as per the directions of the Hon’ble Chief Justice.  We accordingly refer this matter to a larger Bench. The  office shall  seek directions of the Hon’ble the Chief Justice in this behalf P.S.S. 216