Special Leave Petition Civil No 2725 of 1988 From the Judgment and order dated 12111987 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 3112 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 CA 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 vs KS Mahalingam  The facts of both these matters reveal that the Enquiry officer s report was not made available to the delinquent before the Disciplinary 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 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 vs H C Goel  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 AN 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 HC Goel s case Article 3112 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 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 3112 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 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


Summary:
The High Court has no power under article 226 of the Constitu tion to issue a writ of certiorari in order to quash an error of fact even though it may be apparent on the face of the record
It can do so only where the error is one of law and that is apparent on the face of the record
Any error of law or fact which it can correct as a court of appeal or revision cannot be a ground for the exercise of its power under that Article
Hari Vishnu Kamath vs Syed Ahmed Ishaque and others 1955 I SCR 1104 relied on
Queen vs James Bolton 1841 1 Queen s Bench 66 King vs Nat Bell Liquors Limited  Rex vs Northumberland Compensation Appeal Tribunal 1951 1 KB 711 and Rex vs Northumberland Compensation Appeal Tribunal   referred to
The jurisdiction of the High Court under article 226 of the Constitution is limited to seeing that the judicial or quasi judicial tribunals or administrative bodies exercising quasi judicial powers do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act
So long as the hierarchy of officers and Appellate authorities created by a statute function within their ambit the manner in which they do so can be no ground for interference
The powers of judicial supervision of the High Court under article 227 Of the Constitution are not greater than those under article 226 and must be limited to seeing that the tribunal functions within the limits of its authority
Waryam Singh and another vs Amarnath and another   referred to
Consequently where the High Court in exercise of its powers under articles 226 and 227 Of the Constitution interfered with 1241 certain orders made by the Excise Appellate Authority under the Assam Excise Act as being in excess of its jurisdiction on the ground that they were vitiated by errors of fact apparent on the face of the record such interference was without jurisdiction and the orders passed by the High Court must be set aside
Held further that where an appellate Authority as in the instant case is constituted the highest authority by the statute for deciding as between the claims of rival parties its powers cannot be circumscribed nor can it be held to have acted in excess of its powers or without jurisdiction on considerations foreign to the statute or the rules
Raman and Raman Ltd vs The State of Madyas 1956 SCR 256 referred to
In the absence of anything to show that the appellate Authority had contravened any rules of natural justice which must be understood in the context of the  rules laid down by the statute itself it would be wrong to say that there has been a failure of natural justice simply because the view it took of the matter might not be acceptable to another tribunal
New Prakask Transport Co Ltd vs New Suwarna Transport Co Ltd  relied on
The question whether an administrative authority functions merely in an administrative or quasi judicial capacity must be determined on an examination of the statute and its rules under which it acts and there can be no doubt on such examination that the Authorities mentioned in section 9 of the Eastern Bengal and Assam Excise Act 1910 as amended by Assam Act 23 Of 1953 are no mere administrative bodies and their orders are therefore amenable to the powers of control and supervision vested in the High Court by articles 226 and 227 Of the Constitution