IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5173/2008 Decided on:6.9.2010 _____________________________________________ Hem Parkash. …Petitioner. Versus Himachal Road Transport Corporation and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents: Mr. Adarsh Sharma, Advocate. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner was appointed as a Conductor in the respondent-corporation on 1.8.1978. He was promoted to the post of Clerk on 1.1.1979. Disciplinary proceedings were initiated against him vide memorandum dated 6.10.1983 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Regional Manager (Inquiry) was appointed as Inquiry Officer. He furnished the report to the Disciplinary Authority on 21.8.1995. The Disciplinary Authority issued memorandum to the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 petitioner on 9.2.1996. The copy of the inquiry report was supplied to the petitioner alongwith the memorandum dated 9.2.1996. The Disciplinary Authority provisionally concurred with the findings recorded by the Inquiry Officer. He provisionally came to the conclusion that the petitioner was not fit person to be retained in service and proposed to impose on him the penalty of dismissal from service. Petitioner was granted 15 days time to make a representation against the memorandum dated 9.2.1996. The Disciplinary Authority imposed the penalty of removal from service upon the petitioner vide order dated 12.5.1998. 2. Mr. Dilip Sharma has strenuously argued that his client ought to have been supplied with the copy of the inquiry report before the issuance of memorandum dated 9.2.1996. He then contended that as per established procedure, petitioner was required to be heard and only thereafter the disciplinary authority could either concur or disagree with the findings of the Inquiry Officer and come to a conclusion to impose the penalty upon the petitioner. 3. Mr. Adarsh Sharma has vehemently argued that the petitioner was not prejudiced by the non-supply of the copy of inquiry report. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Inquiry Officer furnished the inquiry report to the Disciplinary Authority on 21.8.1995. The copy of the inquiry report 3 for the first time has been enclosed with the memorandum dated 9.2.1996. The copy of the inquiry report ought to have been supplied to the petitioner to enable him to point out deficiencies/discrepancies and flaws in the inquiry conducted against him. He could also point out infraction of the mandatory provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 under which the inquiry was initiated and completed. The Disciplinary Authority in the instant case without supplying the copy of the inquiry report to the petitioner has concurred with the findings of the Inquiry Officer and thereafter provisionally came to a conclusion that the petitioner was not fit person to be retained in service and penalty of removal from service was contemplated. Petitioner had been afforded opportunity to make a representation within a period of 15 days against the memorandum dated 9.2.1996. He submitted the detailed representation on 20.2.1996 6. In the case in hand, the Court after going through the entire evidence placed on record is of the firm view that the petitioner has definitely been prejudiced by non-supply of the inquiry report to the petitioner. There is no merit in the contention of Mr. Adarsh Sharma that the petitioner has been supplied with the copy of memorandum dated 9.2.1996 against which he was permitted to make a representation. The procedure adopted by the Disciplinary Authority was contrary to law. The copy of the inquiry report was required to be supplied to the petitioner before 4 the Disciplinary Authority could concur or disagree with the findings of the Inquiry Officer. It was only after the receipt of the comments/representation of the petitioner on the inquiry report; the Inquiry Officer could form its opinion to impose the penalty. 7. Their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and Others versus B. Karunakar and Others (1993) 4 SCC 727 have held that supplying the copy of the inquiry report to the delinquent is integral part of the reasonable opportunity. Their Lordships have further held that non-supply of the copy of the inquiry report amounts to violation of Articles 14 and 21 of the Constitution of India and principles of natural justice. Their Lordships have held as under: “26. 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 5 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 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. 29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice” 6 8. The Disciplinary Authority is required to impose the penalty after taking into consideration the nature of imputation, gravity of misconduct, previous record etc. The Disciplinary Authority is also required to look into whether the penalty proposed is proportionate to the alleged misconduct or not. In case these requirements are not complied with, it will amount to violation of Articles 14 and 16 of the Constitution of India. 9. Accordingly, the petition is allowed. Annexure A-23 dated 12.5.1998 is quashed and set aside. Respondents are directed to reinstate the petitioner. However, it is made clear that it shall be open to the Disciplinary Authority to put the petitioner under suspension and to continue the inquiry from the stage of supplying him with the copy of inquiry report dated 21.8.1995 . No costs. (Rajiv Sharma), Judge 6.9.2010 *awasthi*