IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 1641/2007 Reserved on: 27.6.2008 Decided on.:2.7.2008 Ashok Kumar Gupta. …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. K.D. Shreedhar, Advocate with Mr. Ramakant Sharma, Advocate. For the respondents : Mr. Sandeep Sharma, Assistant Solicitor General of Indian for respondent No. 1. Mr. Shrawan Dogra, Advocate for respondents No.2 to 4. Rajiv Sharma, J. The brief facts necessary for the disposal of the writ petition are that the departmental proceedings were initiated against the petitioner vide memorandum dated 30th June, 2006. The petitioner submitted reply to the memorandum dated 30th June, 2006 on 6th July, 2006. He was put under suspension vide order dated 29th May, 2006. The inquiry Officer was appointed by the disciplinary authority and he submitted his report to the Director on 2nd November, 2006. The copy of the inquiry report was 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 forwarded to the petitioner on 8.11.2006. He made a detailed representation against the inquiry report dated 2nd November, 2006. In his representation he has taken as many as 25 grounds for the consideration of the disciplinary authority. The disciplinary authority vide memorandum dated 27th September, 2007 has imposed penalty of ‘compulsory retirement’ upon the petitioner. The petitioner has laid challenge to this memorandum dated 27th September, 2007. Mr. K.D. Shreedhar, Advocate had strenuously argued that there is violation of the principles of natural justice by the employer since the representation made by the petitioner against the inquiry report has not been taken into consideration in the manner in which it ought to have been as per the definitive law laid down by the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 SCC 727. He also contended that the memorandum dated 27th September, 2007 passed by the competent authority has also resulted in denial of right of appeal to the petitioner against the memorandum dated 27th September, 2007. Mr. Shrawan Dogra, Advocate appearing on behalf of the employer had strenuously argued that there is no violation of the principles of natural justice as contended by Mr. K.D. Shreedhar since according to him though in memorandum dated 27th September, 2007 minor details have not been taken into consideration as made in the representation but by and large the contents of the representation have been taken note of by the disciplinary authority. I have heard the learned counsel for the parties and have also perused the pleadings carefully. What emerges from the facts as gathered from the pleadings of the parties is that the disciplinary proceedings were initiated against the 3 petitioner as noticed above and the Inquiry officer was appointed. The Inquiry Officer has submitted the report to the disciplinary authority on 2nd November, 2006. Consequently, the Director forwarded the copy of the inquiry report to the petitioner to enable him to make representation against the same within 15 days on 8.11.2006. He submitted detailed representation against the inquiry report on 22.11.2006. According to him, a Government Officer more than 70 years of old as on 1st July of the year of his empanelment, could not be appointed as Inquiry Officer as per the guidelines issued by the Central Vigilance Commission Circular letter No. 98/MSC/23 dated 16th September, 1999. The age of the Inquiry Officer as per the representation was more than 70 years. It was further contended by him in his representation that there was violation of rule 14 of the CCS (CCA) Rules, 1965 since the Inquiry Officer has failed to conduct the proceedings in accordance with the procedure laid down therein. According to him important documents asked for were not supplied to him during the course of the inquiry. His further grievance as per the contents of the representation was that the witnesses whose names did not figure in the memorandum were also examined which has resulted in miscarriage of justice. Mr. K.D. Shreedhar had strenuously argued that the petitioner had pointed out infraction of the mandatory provisions of the CCS (CCA) Rules, 1965 as well as the violation of the principles of the natural justice by the Inquiry Officer. According to him, the Inquiry Officer has set out a new case which was not projected even in the memorandum issued to him on 30.6.2006. I have also gone through the representation dated 22.11.2006 made by the petitioner minutely. It is now well settled as per the definitive law laid down by the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and 4 others versus B. Karunakar and others, (1993) 4 SCC 727 that the copy of the inquiry report is supplied to an employee to enable him to make a representation against the report to point out deficiencies/shortcomings and infraction of the provisions of the rules during the course of the inquiry. In the present case, the petitioner has pointed out the shortcomings/deficiencies by filing representation to the inquiry report. He had raised as many as 25 grounds to assail the inquiry report. Their Lordships in Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 SCC 727 have held as under: “The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it 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 5 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. It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not 6 even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings. It is in the background that the main contention of Shri K.D. Shreedhar has to be considered. It is clear from the contents of memorandum dated 27th September, 2007 that the representation made by the petitioner against the inquiry report has not been considered in the manner in which it ought to have been as per the law laid down by the Hon’ble Supreme Court as cited above. There is only bald observation that the representation made against the inquiry report has been considered. How and in what manner it has been considered is not borne out from the record. The disciplinary authority was bound to apply its mind on the ground raised in the representation of the petitioner against the inquiry report. The disciplinary authority was bound to take into consideration each ground raised by the petitioner in his representation against the inquiry report to see whether there was any shortcomings/defects or infraction of the mandatory provisions of the procedural law. The very purpose of making the representation against the inquiry report will be rendered nugatory/ otiose if the same is not considered in a right perspective as has happened in the present case. The petitioner has been prejudiced by non-consideration of his representation by the disciplinary authority while imposing the penalty of compulsory retirement on 27th September, 2007. Their Lordships of the Hon’ble Supreme Court in latest judgment in Rabindra Singh versus Financial Commissioner, Co-op. Punjab, 2008 (8) Scale 242 have held that where the principles of natural justice are to 7 be complied with, non-affording of opportunity itself caused prejudice. Their Lordships have held as under: “Admittedly, partition had been effected between the parties by metes and bounds. He could at least in the final decree proceedings, raise several objections as regards allotment of lands. He did not get such an opportunity. Where principles of natural justice are required to be complied with, non affording of an opportunity itself causes prejudice.” The contention of Mr. Dogra that the representation made by the petitioner has been considered as per the law deserves rejection. As noticed above, the representation made by the petitioner has not been considered in lawful manner. Consequently, in view of the observations made hereinabove, the writ petition is allowed. The impugned Annexure P-13 dated 27th September, 2007 is quashed and set aside. The respondents are directed to consider the representation made by the petitioner against the inquiry report as per the 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 within a period of 8 weeks from today. Since the memorandum dated 27th September, 2007 has been quashed and set aside, the petitioner will be deemed to be in service, however, it will be open to the management to take appropriate steps against the petitioner in accordance with law from the stage the petitioner’s representation is to be considered afresh against the inquiry report onwards. It will be open to the management to put the petitioner under suspension till the representation made by him against the inquiry report is decided in accordance with law. It is clarified before parting with the judgment that the contention of Mr. K.D. Shreedhar that even the memorandum dated 27th September, 2007 has not been passed by the 8 competent authority and his client has been deprived of the right of filing the appeal against the penalty, has not been considered at this stage. There shall be no order as to costs. July 2, 2008 (Rajiv Sharma ), J. *awasthi*