G H STATE BANK OF INDIA & ORS. versus MOHAMMAD BADRUDDIN on 16 July 2019

1. The Division Bench by impugned order set aside theorder of punishment on the ground that copy of the Inquiry Reportwas not supplied to the delinquent, before the DisciplinaryAuthority passed an order of punishment, but was supplied alongwith the order of punishment, therefore, there is completeviolation of cardinal principle of natural justice. In *Mohd. RamzanKhan case (case relied on by Division Bench) laid down thatwherever Inquiry Officer has furnished a report to the DisciplinaryAuthority at the conclusion of the inquiry holding the delinquentguilty of all or any of the charges with proposal for any particularpunishment or not, the delinquent is entitled to a copy of suchreport and will also be entitled to make a representation againstit. A non-furnishing of the report would amount to violation ofrules of natural justice and make the final order liable to challengehereafter. However, the said judgment itself has been given ABCD

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Aprospective effect i.e. the inquiries concluded prior to thejudgment dated November 20, 1990 will not be affected by thelaw laid down in the said judgment. Since the order of punishmentwas passed by the Disciplinary Authority prior to November 20,1990, therefore, the same could not be set aside only for thereason that the copy of the Inquiry Report was not supplied toBthe delinquent. Consequently, the order of the High Court inLPA No. 261 of 2007 is set aside and the order of punishment ofreversion to the post of Junior Management Grade at the loweststage, as modified by the Appellate Authority, is ordered to berestored. [Paras 4, 5 and 7] [1021-E-H; 1022-F]CManaging Director, ECIL, Hyderabad & Ors. v. B.Karunakar & Ors. (1993) 4 SCC 727 : [1993] 2 Suppl.SCR 576; Union of India & Ors. v. Mohd. Ramzan Khan(1991) 1 SCC 588 : [1990] 3 Suppl. SCR 248 – heldinapplicable.

DCivil Appeal No. 5604/2019

2.1 The previous punishments could not be subject matterof the charge-sheet as it is beyond the scope of inquiry to beconducted by the Inquiry Officer as such punishments haveattained finality in the proceedings. The requirement of secondEshow cause notice stands specifically omitted by 42[nd] Amendmentof the Constitution of India. Therefore, the only requirement nowis to send a copy of Inquiry Report to the delinquent to meet theprinciple of natural justice being the adverse material againstthe delinquent. There is no mandatory requirement ofFcommunicating the proposed punishment which was specificallycontemplated by clause (2) of Art. 311 of the Constitution priorto 42nd Constitutional amendment. Therefore, there cannot beany bar to take into consideration previous punishments in theconstitutional scheme as interpreted by this Court. Thus, thenon-communication of the previous punishments in the showGcause notice will not vitiate the punishment imposed.[Paras 23 and 24] [1031-E-H; 1032-A]

2.2 The findings recorded by the Division Bench that theorder of punishment passed on the basis of uncommunicatedreasons of disagreement recorded in respect of charge Nos. 1H

and 5 cannot be faulted with. The High Court has set aside theorder of punishment on the ground that it violates the principleof natural justice. Though, charge No. 4 may be sufficient toinflict punishment but it is not necessary that charge No. 4 alonewill entail punishment of removal from service. While exercisingthe power of judicial review, it will not be within jurisdiction ofthis Court to maintain the order of punishment of removal fromservice in view of findings recorded on charge No. 4 itself. It isfor the Disciplinary Authority to inflict punishment as it mayconsider appropriate after finding the charge No. 4 proved againstthe delinquent. [Paras 28 and 29] [1033-F-H; 1034-A-C]

2.3 Since the delinquent has attained the age ofsuperannuation, there cannot be any order of reinstatement or ofsuspension. In view thereof, the order of punishment datedNovember 4, 1993 as also the order of the Appellate Authorityare set aside and the matter is remanded back to the DisciplinaryAuthority to consider as to whether it would like to record reasonsof disagreement on charge Nos. 1 and 5 and/or impose punishmenton the basis of charge No. 4 with which there is no disagreement,as it may consider appropriate. [Para 32] [1035-D-E]

P.D. Agrawal v. State Bank of India & Ors. (2006) 8SCC 776 : [2006] 1 Suppl. SCR 454; ManagingDirector, ECIL, Hyderabad & Ors. v. B. Karunakar &Ors. (1993) 4 SCC 727 : [1993] 2 Suppl. SCR 576

– followed.

Punjab National Bank and Others v. K. K. Verma (2010)13 SCC494 : [2010] 11 SCR 311;Union of India &Ors. v. Mohd. Ramzan Khan (1991) 1 SCC 588 :[1990] 3 Suppl. SCR 248; Punjab National Bank &Ors. v. Kunj Behari Misra (1998) 7 SCC 84 :[1998] 1 Suppl. SCR 22 – relied on.

State of Orissa & Ors. v. Bidyabhushan MohapatraAIR 1963 SC 779 : [1963] Suppl. SCR 648;NicholasPiramal India Limited v. Harisingh (2015) 8 SCC 272– distinguished State of Mysore v. K. Manche Gowda AIR 1964 SC–506 : [1964] SCR 540 held inapplicable.

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AGovt. of A.P. & Ors. v. Mohd. Taher Ali(2007) 8 SCC656 : [2007] 10 SCR 929 ; Union of India & Ors. v.Bishamber Das Dogra(2009) 13 SCC 102

– referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5604of 2019

FFrom the Judgment and Order dated 18.04.2017 of the High Courtof Jharkhand at Ranchi in L.P.A. No. 258 of 2007

With

Civil Appeal No. 5605 of 2019.

K.V. Vishwanathan, Sr. Adv., Sanjay Kapur, AOR Ms. MeghaGKarnwal, Harshal Narayan, Ms. Shubhra Kapur, Kauser Husain, Advs.for the Appellants.

Sanjeev Kumar Choudhary, Ms. Shradha Choudhary, AniruddhaP. Mayee, Advs. for the Respondent.

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The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. Leave granted.

2. The present civil appeals arise out of an order passed by theHigh Court of Jharkhand at Ranchi on April 18, 2017, whereby the intracourt appeals filed by the respondent Mohammad Badruddin wereallowed and the orders of punishment were set aside. The respondentwas granted all consequential benefits including back wages.

3. The High Court has dealt with two appeals arising out of twoseparate writ petitions imposing separate punishments.

4. Firstly, we take up Civil Appeal arising out of Special LeavePetition (Civil) No. 20770 of 2017. The said appeal is directed againstan order passed by the High Court in Letters Patent Appeal No. 261 of2007 wherein the Appellate Authority altered the punishment ofcompulsory retirement in terms of Rule 49(1) of the State Bank of India(Supervising Staff) Service Rules[1] to one of reversion to the post ofJunior Management Grade at the lowest stage vide order dated October12, 1988. Such order became the subject matter of challenge in C.W.J.C.No. 444 of 1989. The writ petition was dismissed but the letters patentappeal was allowed. The Division Bench set aside the order of punishmenton the ground that copy of the Inquiry Report was not supplied to thedelinquent before the Disciplinary Authority passed an order ofpunishment, but was supplied along with the order of punishment,therefore, there is complete violation of cardinal principle of natural justice.

5. We find that the Constitution Bench judgment reported inManaging Director, ECIL, Hyderabad & Ors. v. B. Karunakar &Ors.[2] though quoted by the High Court, had been applied wrongly. TheDisciplinary Authority has passed an order of punishment on August 12,1988 i.e. before this Court in Union of India & Ors. v. Mohd. RamzanKhan[3] laid down that wherever Inquiry Officer has furnished a reportto the Disciplinary Authority at the conclusion of the inquiry holding thedelinquent guilty of all or any of the charges with proposal for anyparticular punishment or not, the delinquent is entitled to a copy of suchreport and will also be entitled to make a representation against it. Anon-furnishing of the report would amount to violation of rules of natural 1‘Rules’.

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Ajustice and make the final order liable to challenge hereafter. However,the said judgment itself has given prospective effect i.e. that the inquiriesconcluded prior to the judgment dated November 20, 1990 will not beaffected by the law laid down in the said judgment.

6. The judgment in Mohd. Ramzan case was approved by theBConstitution Bench in B. Karunakar, wherein it was held as under:

“34. However, it cannot be gainsaid that while Mohd. RamzanKhan case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16ATC 505] made the law laid down there prospective in operation,while disposing of the cases which were before the Court, theCCourt through inadvertence gave relief to the employees concernedin those cases by allowing their appeals and setting aside thedisciplinary proceedings. The relief granted was obviously perincuriam. The said relief has, therefore, to be confined only to theemployees concerned in those appeals. The law which is expresslymade prospective in operation there, cannot be appliedDretrospectively on account of the said error. It is now well settledthat the courts can make the law laid down by them prospectivein operation to prevent unsettlement of the settled positions, toprevent administrative chaos and to meet the ends of justice. Inthis connection, we may refer to some well-known decisions onEthe point.”

7. Since the order of punishment was passed by the DisciplinaryAuthority prior to November 20, 1990, therefore, the same could not beset aside only for the reason that the copy of the Inquiry Report was notsupplied to the delinquent. Consequently, the order of the High Court inFLPA No. 261 of 2007 is set aside and the order of punishment of reversionto the post of Junior Management Grade at the lowest stage, as modifiedby the Appellate Authority, is ordered to be restored.

8. In view of the aforesaid, Civil Appeal arising out of SpecialLeave Petition (Civil) No. 20770 of 2017 is allowed.

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9. The Civil Appeal arising out of Special Leave Petition (Civil)No. 20488 of 2017, is directed against an order passed by the HighCourt in Letters Patent Appeal No. 258 of 2007 arising out of C.W.J.C.No. 2310 of 1995 filed by the respondent Mohammad Badruddin. Thechallenge in the writ petition is to an order dated November 4, 1993 by H

which the respondent was inflicted penalty of removal from service.The Division Bench set aside the order of removal on the ground ofviolation of principle of natural justice as the reasons of disagreement inrespect of charge Nos. 1 and 5 were not communicated to the delinquent.

10. The memo of charge was served upon the respondent(delinquent) on June 13, 1989 in respect of the following five charges:

“CHARGE-1.

On 15.12.1983, he opened a Savings Bank Account No. 11945 ina fake name viz. Shri Ajit Kumar Agrawal and also verified theforged signature appearing on the relative account opening form.He thus showed gross negligence in opening the said accountthrough which a series of frauds involving Rs.2,52,000/- wereperpetrated, causing the Bank a pecuniary loss of the same amount.The list of fraudulent payment manipulated through the saidaccount is given in Annexure ‘A’.

CHARGE-2.

He passed the following payments (a to k) from different SavingsBank Accounts although the relative instruments had not beenposted in the concerned accounts:- Moreover, the balance of account no. 10586 at the time of makingpayments mentioned against b, c, d, e and f was Rs.875.44 only.All the aforementioned payments turned out to be fraudulent once.Had he cared to refer to the concerned ledgers before passingthe instruments, frauds amounting to Rs.1,12,000/- could have beenaverted.

CHARGE-3

He passed the aforementioned payment without satisfying himselfthat the relative instruments were in order in every particular andthereby violated the instructions contained in para 3(c), Chapter2of the Bank’s Book of Instructions, Volume-II.

CHARGE-4

On the following dates (a to g of the charge sheet) while checkingthe Clean Cash Book, he failed to notice that the figures of SavingsBank Account appearing therein did not tally with those of Savings A

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1024SUPREME COURT REPORTS

ABank Summary Day Book. His perfunctory checking of the CleanCash Book resulted in suppression of frauds amounting toRs.70,000/-.

CHARGE-5

He has thus not only failed to discharge his duties with devotionand diligence, much against Rule 32(4) of State Bank of India(Supervising Staff) Service Rules but also caused a heavypecuniary loss to the Bank.”

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11. The Inquiry Officer in his Report dated February 5, 1992 heldthat charge Nos. 1, 2, 3 and 5 were not proved against the delinquentCthough charge No. 4 stands proved. The Disciplinary Authority disagreedwith the findings in respect of charge Nos. 1 and 5 and held as under:

“(i) The appellant failed to discharge his duties with devotion anddiligence; D(ii) The appellant failed to interview the depositor before openingSavings Bank Account No. 11945 and he also did not ensurecompletion of particulars by the depositors on the reverse side ofthe Account Opening – cum – Specimen signature form, as aresult a fake Savings Bank Account in the name of Shri Ajit KumarAgrawal was opened through which a series of frauds involvingERs.2,52,000/- were perpetrated. The said action indicated grossnegligence which caused substantial financial loss to the Bank.

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(iii) The appellant was found guilty of perfunctory checking of CleanCash Book which resulted in suppression of frauds amounting toRs.70,000/-. As a Branch Manager, he also failed to notice all theFfigures of Savings Bank Account appearing in the Clean CashBook did not tally with the figures shown in the summary of SavingsBank day books on several dates. Had he carefully checked theClean Cash Book, the difference would have come to light on thesame day.”

G12. On the basis of the findings recorded and keeping in viewpunishment of reversion to Junior Manager Grade at the lowest stageearlier, the delinquent was inflicted penalty of removal from service interms of Rule 67(g) of the Rules. The appeal against such order ofpunishment was dismissed on March 8, 1995. The writ petition wasdismissed by the learned Single Bench on June 15, 2007. But in an intraH

court appeal, the Division Bench set aside the order passed by the learnedSingle Bench as also the order of punishment imposed by the DisciplinaryAuthority. The Division Bench relied upon Punjab National Bank &Ors. v. Kunj Behari Misra[4] to hold that the order of punishment standsvitiated as the reasons for disagreement with the Inquiry Report havenot been supplied to the delinquent. The Bank is in appeal before thisCourt against such order passed by the Division Bench.

13. Learned counsel for the appellants submitted that the delinquentfaced Departmental Inquiry on five charges. There is no disagreementin respect of the findings recorded on charge No. 4. The charge No. 4is a grave and independent charge and, therefore, the order of punishmentwill not warrant interference as the order of removal from service onsuch charge alone cannot be said to be disproportionate to the misconduct.The reliance is placed upon Constitution Bench judgment in the case ofState of Orissa & Ors. v. Bidyabhushan Mohapatra[5] and P.D.Agrawal v. State Bank of India & Ors.[6] to contend that in view ofprinciple of severability of charges, the order of punishment will notwarrant interference in exercise of the power of judicial review vestedwith the High Court under Article 226 of the Constitution of India. Anotherreason which weighed with the High Court was that previous punishmentof reversion to the Junior Manager in the lowest grade was taken intoconsideration though the delinquent was not made aware of such fact inthe proceedings. It is contended that such reasoning is not tenable inview of judgment of this Court in Govt. of A.P. & Ors. v. Mohd. TaherAli[7] as also in Union of India & Ors. v. Bishamber Das Dogra[8]. It isalso argued that since the allegation against the delinquent relates togross negligence of fraud and fraudulent conduct while dealing with theaffairs of the Bank, therefore, such delinquent who was entrusted notonly with public money but also with the money of customers, does notwarrant any indulgence.

14. On the other hand, learned counsel for the delinquent reliesupon the Constitution Bench judgment of this Court in State of Mysorev. K. Manche Gowda[9] to contend that before the past punishment is 4(1998) 7 SCC 84

5AIR 1963 SC 779

6(2006) 8 SCC 776

7(2007) 8 SCC 656

8(2009) 13 SCC 102

9AIR 1964 SC 506

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Ataken into consideration, the delinquent has to be made aware of suchfact. The reliance is on the following:

“8. BeforeTop of Form we close, it would be necessary to makeone point clear. It is suggested that the past record of a governmentservant, if it is intended to be relied upon for imposing a punishment,Bshould be made specific charge in the first stage of the enquiryitself and, if it is not so done, it cannot be relied upon after theenquiry is closed and the report is submitted to the authority entitledto impose the punishment. An enquiry against a government servantis one continuous process, though for convenience it is done intwo stages. The report submitted by the Enquiry Officer is onlyCrecommendatory in nature and the final authority which scrutinizesit and imposes punishment is the authority empowered to imposethe same. Whether a particular person has a reasonable opportunityor not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decideDwhether such previous record can be made the subject matter ofcharge at the first stage of the enquiry. But, nothing in law preventsthe punishing authority from taking that fact into considerationduring the second stage of the enquiry, for essentially it relatesmore to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given aEreasonable opportunity to know that fact and meet the same.”

15. Learned counsel also relied upon the judgment in NicholasPiramal India Limited v. Harisingh[10 ]to support the said argumentthat the past record could not be taken into consideration without noticeto the delinquent, therefore, the punishment of removal by taking intoFconsideration previous punishments, is not tenable.

16. The argument of Mr. Vishwanathan, learned senior counselfor the appellants is that the Constitution Bench judgment in K. MancheGowda is in respect of provisions of Article 311 as they existed prior toamendment of the said provision by the 42[nd] Constitutional Amendment.GThe reliance is placed upon Mohd. Ramzan Khan’s caseas affirmedby the Constitution Bench in B. Karunakar’s case to contend that afterthe constitutional amendment, no notice of the proposed punishment isrequired to be served. Therefore, the ratio of the judgment relating to 10(2015) 8 SCC 272H

pre 42[nd] constitutional amendment will not be applicable to the postamendment proceedings.

17. We have heard the learned counsel for the parties and findmerit in the arguments raised by Mr. Vishwanathan, learned seniorcounsel for the appellants, to some extent. The 42[nd] ConstitutionalAmendment deleted the following words appearing in clause (2) ofArticle 311 of the Constitution of India, which reads as under:

“and where it is proposed, after such inquiry to impose on him anysuch penalty, until he has been given a reasonable opportunity ofmaking representation on the penalty proposed, but only on thebasis of the evidence adduced during such inquiry.”

18. A perusal of such omitted provisions would show that anopportunity was required to be given to submit a representation on penaltyproposed but such requirement had been omitted by 42[nd] ConstitutionalAmendment. This Court in Mohd. Ramzan case considered the effectof amendment and held as under:

“9. Where, however, the Inquiry Officer furnishes a report withor without proposal of punishment the report of the Inquiry Officerdoes constitute an additional material which would be taken intoaccount by the disciplinary authority in dealing with the matter. Incases where punishment is proposed there is an assessment ofthe material and a tentative conclusion is reached for considerationof the disciplinary authority and that action is one where theprejudicial material against the delinquent is all the morepronounced.

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12. We have already noticed the position that the Forty-secondAmendment has deleted the second stage of the inquiry whichwould commence with the service of a notice proposing one ofthe three punishments mentioned in Article 311(1) and thedelinquent officer would represent against the same and on thebasis of such representation and/or oral hearing granted thedisciplinary authority decides about the punishment. Deletion ofthis part from the concept of reasonable opportunity in Article311(2), in our opinion, does not bring about any material change in AB

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regard to requiring the copy of the report to be provided to thedelinquent.

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15. Deletion of the second opportunity from the scheme of Article311(2) of the Constitution has nothing to do with providing of acopy of the report to the delinquent in the matter of making hisrepresentation. Even though the second stage of the inquiry inArticle 311(2) has been abolished by amendment, the delinquentis still entitled to represent against the conclusion of the InquiryOfficer holding that the charges or some of the charges areestablished and holding the delinquent guilty of such charges. Fordoing away with the effect of the enquiry report or to meet therecommendations of the Inquiry Officer in the matter of impositionof punishment, furnishing a copy of the report becomes necessaryand to have the proceeding completed by using some materialbehind the back of the delinquent is a position not countenancedby fair procedure. While by law application of natural justice couldbe totally ruled out or truncated, nothing has been done here whichcould be taken as keeping natural justice out of the proceedingsand the series of pronouncements of this Court making rules ofnatural justice applicable to such an inquiry are not affected bythe Forty-second Amendment. We, therefore, come to theconclusion that supply of a copy of the inquiry report along withrecommendation, if any, in the matter of proposed punishment tobe inflicted would be within the rules of natural justice and thedelinquent would, therefore, be entitled to the supply of a copythereof. The Forty-second Amendment has not brought about anychange in this position.”

19. Later, the Constitution Bench in B. Karunakar affirmed thesaid judgment to hold that it was no longer necessary to issue a notice tothe delinquent employee to show cause against the punishment proposed.The Court held as under:

“19. In Mohd. Ramzan Khan case [(1991) 1 SCC 588 : 1991SCC (L&S) 612 : (1991) 16 ATC 505] the question squarelyfell for consideration before a Bench of three learned Judgesof this Court, viz., that although on account of the Forty-second Amendment of the Constitution, it was no longer

necessary to issue a notice to the delinquent employee to showcause against the punishment proposed and, therefore, tofurnish a copy of the enquiry officer’s report along with thenotice to make representation against the penalty, whether itwas still necessary to furnish a copy of the report to him toenable him to make representation against the findingsrecorded against him in the report before the disciplinaryauthority took its own decision with regard to the guilt orotherwise of the employee by taking into consideration thesaid report. The Court held that whenever the enquiry officeris other than the disciplinary authority and the report of theenquiry officer holds the employee guilty of all or any of thecharges with proposal for any punishment or not, thedelinquent employee is entitled to a copy of the report to enablehim to make a representation to the disciplinary authorityagainst it and the non-furnishing of the report amounts to aviolation of the rules of natural justice.

25. While the right to represent against the findings in the report ispart of the reasonable opportunity available during the first stageof the inquiry viz., before the disciplinary authority takes intoconsideration the findings in the report, the right to show causeagainst the penalty proposed belongs to the second stage whenthe disciplinary authority has considered the findings in the reportand has come to the conclusion with regard to the guilt of theemployee and proposes to award penalty on the basis of itsconclusions. The first right is the right to prove innocence.The second right is to plead for either no penalty or a lesserpenalty although the conclusion regarding the guilt isaccepted. It is the second right exercisable at the second stagewhich was taken away by the Forty-second Amendment.

29. Hence it has to be held that when the enquiry officer is not thedisciplinary authority, the delinquent employee has a right to receivea copy of the enquiry officer’s report before the disciplinaryauthority arrives at its conclusions with regard to the guilt or AB

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innocence of the employee with regard to the charges levelledagainst him. That right is a part of the employee’s right to defendhimself against the charges levelled against him. A denial of theenquiry officer’s report before the disciplinary authority takes itsdecision on the charges, is a denial of reasonable opportunity tothe employee to prove his innocence and is a breach of theprinciples of natural justice.

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30. (iv) In the view that we have taken, viz., that the right to makerepresentation to the disciplinary authority against the findingsrecorded in the enquiry report is an integral part of the opportunityof defence against the charges and is a breach of principles ofnatural justice to deny the said right, it is only appropriate that thelaw laid down in Mohd. Ramzan case should apply to employeesin all establishments whether Government or non-Government,public or private. This will be the case whether there are rulesgoverning the disciplinary proceeding or not and whether theyexpressly prohibit the furnishing of the copy of the report or aresilent on the subject. Whatever the nature of punishment, further,whenever the rules require an inquiry to be held, for inflictingthe punishment in question, the delinquent employee shouldhave the benefit of the report of the enquiry officer beforethe disciplinary authority records its findings on the chargeslevelled against him. Hence question (iv) is answeredaccordingly.”

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20. In K. Manche Gowda’s case, the Inquiry OfficerFrecommended that the delinquent may be reduced in rank. But whileserving show cause notice after the report of the Inquiry Officer, theDisciplinary Authority proposed punishment of dismissal from service.The order of punishment considered the previous punishments imposedupon the delinquent to come to the conclusion that the delinquent is unfitto continue in Government service and, therefore, he was ordered to beGdismissed from service. It was, in these circumstances, the Court orderedthat the past conduct can be taken into consideration during the secondstage of inquiry, which essentially relates more to the domain ofpunishment rather than to that of guilt. An opportunity should be givento the delinquent to know that fact and meet the same.

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21. The omission of the words from clause (2) of Article 311 ofthe Constitution reproduced above completely changes the requirementof serving notice in respect of the proposed punishment. The amendedprovisions of Article 311 of the Constitution of India have been consideredin Mohd. Ramzan’s case and later in B. Karunakar’s case. Thejudgment of this Court in Nicholas Piramal India Limited arises outof an Award passed by the Labour Court under the Industrial DisputesAct, 1947. The jurisdiction of the Labour Court is much wider wherethe punishment can be reviewed by the Labour Court in terms ofSection 11-A of the said Act.

22. This Court in Punjab National Bank and Others v. K. K.Verma[11] has taken the same view that right to represent against theproposed penalty has been taken away by the 42[nd] Amendment. It wasso held:

“32. Thus, the right to represent against the findings in the inquiryreport to prove one’s innocence is distinct from the right to representagainst the proposed penalty. It is only the second right to representagainst the proposed penalty which is taken away by the 42ndAmendment. The right to represent against the findings in thereport is not disturbed in any way. In fact, any denial thereof willmake the final order vulnerable.”

23. Thus, the requirement of second show cause notice of proposedpunishment has been dispensed with. The mandate now is only to apprisethe delinquent of the Inquiry Officer’s report. There is no necessity ofcommunicating proposed punishment which was specifically contemplatedby clause (2) of Article 311 prior to 42[nd] Amendment.

24. The previous punishments could not be subject matter of thecharge sheet as it is beyond the scope of inquiry to be conducted by theInquiry Officer as such punishments have attained finality in theproceedings. The requirement of second show cause notice standsspecifically omitted by 42[nd] Amendment. Therefore, the only requirementnow is to send a copy of Inquiry Report to the delinquent to meet theprinciple of natural justice being the adverse material against thedelinquent. There is no mandatory requirement of communicating theproposed punishment. Therefore, there cannot be any bar to take intoconsideration previous punishments in the constitutional scheme as 11(2010) 13 SCC 494

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Ainterpreted by this Court. Thus, the non-communication of the previouspunishments in the show cause notice will not vitiate the punishmentimposed.

25. In Kunj Behari Misra, it is categorically held that when theInquiry Report is in favour of the delinquent officer but the DisciplinaryBAuthority proposes to differ with such conclusions then that Authoritymust give the delinquent an opportunity of being heard, for otherwise hewould be condemned unheard. The Court held as under:

“17. These observations are clearly in tune with the observationsin Bimal Kumar Pandit case [AIR 1963 SC 1612 : (1964) 2 SCRC1 : (1963) 1 LLJ 295] quoted earlier and would be applicable atthe first stage itself. The aforesaid passages clearly bring out thenecessity of the authority which is to finally record an adversefinding to give a hearing to the delinquent officer. If the enquiryofficer had given an adverse finding, as per Karunakar case[(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704]Dthe first stage required an opportunity to be given to the employeeto represent to the disciplinary authority, even when an earlieropportunity had been granted to them by the enquiry officer. Itwill not stand to reason that when the finding in favour of thedelinquent officers is proposed to be overturned by the disciplinaryEauthority then no opportunity should be granted. The first stage ofthe enquiry is not completed till the disciplinary authority hasrecorded its findings. The principles of natural justice woulddemand that the authority which proposes to decide against thedelinquent officer must give him a hearing. When the enquiringofficer holds the charges to be proved, then that report has to beFgiven to the delinquent officer who can make a representationbefore the disciplinary authority takes further action which maybe prejudicial to the delinquent officer. When, like in the presentcase, the enquiry report is in favour of the delinquent officer butthe disciplinary authority proposes to differ with such conclusions,Gthen that authority which is deciding against the delinquent officermust give him an opportunity of being heard for otherwise hewould be condemned unheard. In departmental proceedings, whatis of ultimate importance is the finding of the disciplinary authority.”

26. The judgment of this Court in Bidyabhushan Mohapatra’sHcase is not applicable to the facts of the present case as in the aforesaid case, the High Court has held that the findings of the Tribunal on charges1(a) and 1(e) were vitiated because it had failed to observe the rules ofnatural justice. In the present case, the delinquent has not been apprisedof reasons of disagreement which were required to be communicated tothe delinquent in view of the judgment of this Court in Kunj BehariMisra’s case prior to the stage of imposing punishment. Since the reasonsof disagreement were not communicated, the order of removal fromservice would be in realm of conjectures as to whether punishment ofremoval would be sustainable on charge No. 4 alone. The judgmentreferred to is only in respect of punishment which is the second stageafter recording of finding of the guilt. In the present case, the pre-requisite condition of communicating reasons of disagreement has notbeen complied with, which is leading to finding of guilt. Therefore, thejudgment is not applicable to the facts of the present case.

27. In P.D. Agrawal’s case, the delinquent was in appeal againstan order whereby the action against the delinquent was maintained. ThisCourt in P.D. Agrawal’s case held as under:

“50. We are, therefore, of the opinion that charge 2 being severable,this Court can proceed on the basis that the charges against theappellant in respect of charge 2 were not proved.

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54. For the reasons aforementioned, we are of the opinion that itis not a fit case where this Court should exercise its discretionaryjurisdiction under Article 136 of the Constitution. This appeal is,therefore, dismissed. However, in the facts and circumstances ofthis case, there shall be no order as to costs.”

28. In the present case, the High Court has set aside the order ofpunishment on the ground that it violates the principle of natural justice.This Court has not found reasons to set aside the order of punishmentwhereas in a case where order of punishment has been set aside, theprinciples of natural justice would warrant that the matter is remittedback to the Disciplinary Authority to consider whether the removal ofthe delinquent on the basis of charge No. 4 alone can be sustained ornot.

29. In view of the said judgment, the findings recorded by theDivision Bench that the order of punishment passed on the basis of A

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Auncommunicated reasons of disagreement recorded in respect of chargeNos. 1 and 5 cannot be faulted with. In fact, the argument of Mr.Vishwanathan is that charge No. 4 alone is sufficient to maintain theorder of punishment of removal from service. Though, charge No. 4may be sufficient to inflict punishment but it is not necessary that thecharge No. 4 alone will entail punishment of removal from service. WhileBexercising the power of judicial review, it will not be within our jurisdictionto maintain the order of punishment of removal from service in view offindings recorded on charge No. 4 itself. It is for the DisciplinaryAuthority to inflict punishment as it may consider appropriate after findingthe charge No. 4 proved against the delinquent.

C

30. It is admitted that the delinquent has attained the age ofsuperannuation. Though, the parties are at variance on the date ofsuperannuation but the fact remains that in view of the finding on chargeNo. 4 proved against the delinquent to which there was no disagreement,we find that the order of the High Court granting consequential benefits Dto the delinquent is not justified. However, the question required to beexamined is what are the options available at this stage.

31. In B. Karunakar case, the Constitution Bench examined thequestion as to what should be the order if the principle of natural justicehas not been applied with and the order of punishment stands vitiated onEthat account. The Court held that if the order of punishment standsvitiated, the proper relief is to direct reinstatement with liberty to themanagement to proceed with the inquiry, by placing the employee undersuspension and continuing the inquiry from the stage of furnishing himwith the report. The question of back wages and other benefits shouldinvariably be left to be decided by the authority concerned according toFlaw, after the culmination of the proceedings and depending upon thefinal outcome. The Court held as under:

“31. …….It is only if the Court/Tribunal finds that the furnishingof the report would have made a difference to the result in thecase that it should set aside the order of punishment. Where afterfollowing the above procedure, the Court/Tribunal sets aside theorder of punishment, the proper relief that should be granted is todirect reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee G

under suspension and continuing the inquiry from the stage offurnishing him with the report. The question whether the employeewould be entitled to the back-wages and other benefits from thedate of his dismissal to the date of his reinstatement if ultimatelyordered, should invariably be left to be decided by the authorityconcerned according to law, after the culmination of theproceedings and depending on the final outcome. If the employeesucceeds in the fresh inquiry and is directed to be reinstated, theauthority should be at liberty to decide according to law how itwill treat the period from the date of dismissal till the reinstatementand to what benefits, if any and the extent of the benefits, he willbe entitled. The reinstatement made as a result of the setting asideof the inquiry for failure to furnish the report, should be treated asa reinstatement for the purpose of holding the fresh inquiry fromthe stage of furnishing the report and no more, where such freshinquiry is held. That will also be the correct position in law.”

32. Since the delinquent has attained the age of superannuation,there cannot be any order of reinstatement or of suspension. In viewthereof, the order of punishment dated November 4, 1993 as also theorder of the Appellate Authority are set aside and the matter is remandedback to the Disciplinary Authority to consider as to whether it would liketo record reasons of disagreement on charge Nos. 1 and 5 and/or imposepunishment on the basis of charge No. 4 with which there is nodisagreement, as it may consider appropriate.

33. In view of the aforesaid, Civil Appeal arising out of SpecialLeave Petition (Civil) No. 20488 of 2017 is allowed. Since, admittedlythe delinquent has attained the age of superannuation, we direct theDisciplinary Authority to pass an appropriate order within three monthsof the receipt of copy of this judgment in respect of payment of backwages as well as terminal benefits, if any, payable to the delinquent.

34. With the said directions and liberty, the appeals stand disposedof.

Kalpana K. Tripathy

Appeals disposed of.

A

B

C

D

E

F

G

H