IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1327 of 2008. Reserved on: 12.12.2008. Decided on: 24.12.2008. Orender Singh. … … … Petitioner. Versus State of Himachal Pradesh and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Sanjeev Bhushan, Advocate. For Respondents: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, Judge: Brief facts necessary for the adjudication of this petition are that the disciplinary proceedings were initiated against the petitioner. The Inquiry Officer was appointed. He was served with a show cause notice on 5.11.2006. The copy of inquiry report was annexed with this show cause notice. He filed reply to the show cause notice initially on 16.11.2006 and thereafter by way of supplementary reply on 22.11.2006. He was terminated by the Disciplinary Authority on 2.12.2006. He Whether reporters of local papers may be allowed to see the judgment? No. - 2 - preferred an appeal against order dated 2.12.2006. The appeal was rejected by the Appellate Authority on 8.3.2007. The mercy petition preferred by the petitioner was also rejected. Mr. Sanjeev Bhushan has strenuously argued that the orders dated 2.12.2006 and 8.3.2007 are not sustainable in the eyes of law. He has strenuously argued that his client should have been supplied with the copy of inquiry report before the disciplinary authority has made up its mind to impose penalty upon the petitioner. He has strenuously relied upon Managing Director, ECIL, Hyderabad and Others versus B. Karunakar and Others (1993) 4 SCC 727. The learned Senior Additional Advocate General has supported the impugned orders. I have heard the learned counsel for the parties and gone through the documents filed with the petition carefully. Mr. Sanjeev Bhushan has taken me through the copy of show cause notice dated 5.11.2006. The disciplinary authority without supplying the copy of inquiry report to the petitioner had come to the conclusion that the petitioner was careless, derelict in duties, indisciplined and irresponsible. He was called upon to file reply to the show cause notice within 7 days why he should not be removed/terminated from service. It is settled law by now on the basis of definitive law laid down by their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and Others versus B. Karunakar and Others (1993) 4 SCC 727 that the copy of inquiry report has to be supplied to an employee before the disciplinary authority makes up his mind to impose penalty. The purpose of supplying the copy of inquiry report is to enable an individual to represent against the short-comings, deficiencies and - 3 - violation of mandatory rules during the course of departmental inquiry. Their Lordships of the Hon’ble Supreme Court have held in Managing Director, ECIL, Hyderabad and Others versus B. Karunakar and Others (1993) 4 SCC 727 as under:- “The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which - 4 - is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” The petitioner has taken a specific ground in the petition that he was not supplied with the copy of inquiry report as per law laid down by their Lordships of the Hon’ble Supreme Court in the case (supra). The copy of inquiry report was to be supplied to the petitioner before the disciplinary authority made up its mind to impose any of the major penalties. In the present case, the disciplinary authority without supplying the copy of inquiry report to enable the petitioner to make representation against the same has made up its mind to remove/terminate him from service. This course adopted by the disciplinary authority has seriously prejudiced the petitioner. The respondent-State has not denied in its reply that the copy of inquiry - 5 - report was not supplied to the petitioner before the disciplinary authority had made up its mind to impose the penalty. The petitioner filed reply to show cause notice dated 5.11.2006 on 16.11.2006 and by way of supplementary reply on 22.11.2006. Thereafter without taking into consideration the reply filed by the petitioner, his services were terminated on 2.12.2006. It was necessary for the disciplinary authority to look into each and every point urged by the petitioner in his reply to the show cause notice. Merely stating that he has perused the reply will not meet the requirement of the principles of natural justice. The purpose of issuing show cause notice is to have point of view of the delinquent. This is very important aspect of fairness and cannot be brushed aside and taken lightly by the disciplinary authority. It is also well settled by now that the order passed by the disciplinary authority, imposing a penalty upon an employee, must be a speaking order. In the present case, the order whereby the penalty has been imposed upon the petitioner is a non-speaking order. Mr. Sharma strenuously argued that since order dated 2.12.2006 has been up-held by the appellate authority vide his order dated 8.3.2007, there is no violation of the principles of natural justice. This submission of Mr. Sharma is liable to be rejected. It is settled law that if the order is bad in law at the initial stage, it will not be cured/ratified by an appellate order. In the present case, since the order has been passed imposing penalty of termination of the petitioner in violation of the principles of natural justice, the order will not get ratified on the basis of order dated 8.3.2007. - 6 - Their Lordships of Hon’ble Supreme Court in Institute of Chartered Accountants of India v. L.K. Ratna and others, AIR 1987 SC 71 have held as under:- “It is then urged by learned counsel for the appellant that the provision of an appeal under S. 22-A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council, and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under S. 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council, Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on "Administrative Law". But as that learned author observes, "in principle there ought to be an observance of natural justice equally at both stages", and "If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial." And he makes reference to the observations of Megarry J. in Leary v. National Union of Vehicle Builders (1971) 1 Ch. 34. Treating with another aspect of the point, that learned Judge said: - 7 - "If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless. have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body." The view taken by Megarry J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall (1974) 42 DLR (3d) 323. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practitioners Disciplinary Committee, (1974) 1. NZLR 29 and so was the Court of Appeal of New Zealand in Reid v. Rowley (1977) 2 NZLR 472. But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may - 8 - cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. "Not all the King's horses and all the King's men" can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing, and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision' it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.” The upshot of above discussion is that the petitioner ought to have been supplied with the copy of inquiry report before the disciplinary - 9 - authority has made up its mind to impose penalty of termination/removal from service. The action of the disciplinary authority not to supply the petitioner with the copy of inquiry report has seriously prejudiced him. The disciplinary authority for the first time has annexed the copy of inquiry report with the show cause notice dated 5.11.2006. The inquiry report was to be supplied before issuing the show cause notice dated 5.11.2006. The impugned order dated 2.12.2006 whereby penalty of termination has been imposed upon the petitioner is a non-speaking order. The reply filed by petitioner to the show cause notice dated 5.11.2006 has not been taken into consideration. In view of the observations made hereinabove, the writ petition is partly allowed. Impugned orders dated 5.11.2006, Annexure P-7, Annexure P-10 dated 2.12.2006, Annexure P-13 dated 8.3.2007 alongwith Annexure P-15 dated 10.7.2007 are quashed and set aside. The respondents shall now start the proceedings afresh by supplying the petitioner with the copy of inquiry report. He will be permitted to make a representation against the inquiry report and thereafter taking into consideration the reply filed by him to the inquiry report the disciplinary authority shall make up its mind what penalty, if any, is to be imposed upon the petitioner. There shall, however, be no order as to costs. December 24, 2008. (Rajiv Sharma) (sck). Judge.