IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:1658/2007 Decided on:16.4.2009 Ravinder Kumar. …Petitioner. Versus Union of India and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : Mr.R.R. Rahi, Advocate. For the Respondents : Mr. Janesh Mahajan, Central Government Counsel. Rajiv Sharma, J. The departmental proceedings were initiated against the petitioner under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Inquiry Officer was appointed. He submitted the report to the Disciplinary Authority. The Disciplinary Authority issued a show cause notice to the petitioner on 22.9.2004 whereby penalty of dismissal from service was proposed. He was permitted to make representation against the proposed penalty within fifteen days from the date of receipt of the notice. He filed reply to the show cause notice which was received by the Disciplinary Authority on 10.10.2004. The Disciplinary Authority imposed the penalty of dismissal vide order dated 16.10.2004. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 Mr. R.R. Rahi, Advocate has strenuously argued that the copy of the inquiry report was not supplied to the petitioner which has caused serious prejudice to the petitioner. He also contended that the show cause notice has been issued on 22.9.2004 without due application of mind. Mr. Janesh Mahajan, Central Government Counsel has supported the issuance of order dated 16.10.2004. I have heard the learned counsel for the parties and perused the record carefully. It is evident from the record that the disciplinary proceedings were initiated against the petitioner. Two charges were framed against him. In show cause notice dated 22.9.2004, the following observation has been made by the Disciplinary Authority: “The article of charges, I & II framed against him have been proved by the Enquiry Officer beyond doubt. No. 8468188 CT (GD) Ravinder Kumar has also admitted all the charges framed against him during the proceeding of enquiry.” It shows as if the petitioner had admitted all the charges framed against him during the inquiry proceedings. However, a bare perusal of the inquiry report shows that the petitioner had only admitted the article of charge No.II and has not admitted article of charge No.I directly. In view of this categorical finding given at page 8 of the inquiry report, the finding recorded to the contrary by the Disciplinary Authority in the show cause notice dated 22.9.2004 is illegal. It is apparent that the Disciplinary Authority has not read the inquiry report carefully. He had not applied his independent mind to see the veracity of the contents of the inquiry report. The second infirmity in the proceedings is that the petitioner has not been given the copy of the inquiry report. It is settled law by now that the 3 Disciplinary Authority has to supply the copy of the inquiry report to the delinquent to enable him to make representation against the same. The purpose of enabling the delinquent to make representation is to point out deficiencies/shortcomings or infraction of any rules during the course of the inquiry. The non-supply of the copy of the inquiry report to the petitioner has seriously prejudiced him. The supply of inquiry report is basic ingredient of the principles of natural justice. Their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others, (1993) 4 SCC 727 have held as under: “The reason why the right to receive the report of the enquiry 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 enquiry 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 required that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is 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 enquiry 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 4 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 enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry 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 enquiry 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 conclusions. 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 enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. The position in law can also be looked at from a slightly different angle. Article 311 (2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him.” The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by over looking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that “where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on 5 the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”, it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the enquiry officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrived at its conclusion with regard to his guilt or innocence of the charges.” The petitioner filed reply to the show cause notice dated 22.9.2004. The copy of the same was received by the Disciplinary Authority on 6 10.10.2004. The reply filed by the petitioner to the show cause notice has not been taken into consideration by the Disciplinary Authority at length. It was necessary for the Disciplinary Authority to give due weightage to the reply of the petitioner to the show cause notice. He has also erred in law while passing the impugned order dated 13.10.2004 whereby he has held the petitioner guilty of both the charges. The petitioner had admitted only charge No.II and not charge No.I as is evident from the inquiry report, as noticed above. The order dated 13.10.2004 is not a speaking/reasoned order. Their Lordships of the Hon’ble Supreme Court in Roop Singh Negi versus Punjab National Bank & Others, 2009 (1) Scale, 284 have held that the order passed by the Disciplinary Authority must be speaking/reasoned. The reason for the order passed by the Disciplinary Authority to be speaking/self contained is that the same are appellable. Their Lordships have held as under: “Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned.” The upshot of the above discussion is that: i) the Disciplinary Authority has not applied its mind at the time of issuance of show cause notice; ii) the petitioner has not been supplied with the copy of inquiry report which has seriously prejudiced the petitioner; and iii) The order dated 13.10.2004 is a non-speaking order. Accordingly, the writ petition is allowed. Annexure R-3 dated 16.10.2004 is quashed and set aside. However, the liberty is reserved to the respondents to proceed in the matter in accordance with law after 7 supplying the copy of the inquiry report to the petitioner to enable him to make representation. There shall, however, be no order as to costs. 16.4.2009 (Rajiv Sharma ), J. *awasthi*