2019 (7) TMI 1007 - SC - Indian Laws

Penalty of removal from service - disagreement with the Inquiry Report - HELD THAT - The requirement of second show cause notice of proposed punishment has been dispensed with. The mandate now is only to apprise the delinquent of the Inquiry Officer s report. There is no necessity of communicating proposed punishment which was specifically contemplated by clause (2) of Article 311 prior to 42nd Amendment. The previous punishments could not be subject matter of the charge sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such punishments have attained finality in the proceedings. The requirement of second show cause notice stands specifically omitted by 42nd Amendment. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material against the delinquent. There is no mandatory requirement of communicating the proposed punishment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. Thus, the non-communication of the previous punishments in the show cause notice will not vitiate the punishment imposed. In the present case, the High Court has set aside the order of punishment on the ground that it violates the principle of natural justice. This Court has not found reasons to set aside the order of punishment whereas in a case where order of punishment has been set aside, the principles of natural justice would warrant that the matter is remitted back to the Disciplinary Authority to consider whether the removal of the delinquent on the basis of charge No. 4 alone can be sustained or not. The order of punishment passed on the basis of uncommunicated reasons of disagreement recorded in respect of charge Nos. 1 and 5 cannot be faulted with. In fact, the argument of Mr. Vishwanathan is that charge No. 4 alone is sufficient to maintain the order of punishment of removal from service. Though, charge No. 4 may be sufficient to inflict punishment but it is not necessary that the charge No. 4 alone will entail punishment of removal from service. While exercising the power of judicial review, it will not be within our jurisdiction to maintain the order of punishment of removal from service in view of findings recorded on charge No. 4 itself. It is for the Disciplinary Authority to inflict punishment as it may consider appropriate after finding the charge No. 4 proved against the delinquent. Since the delinquent has attained the age of superannuation, there cannot be any order of reinstatement or of suspension. In view thereof, the order of punishment dated November 4, 1993 as also the order of the Appellate Authority are set aside and the matter is remanded back to the Disciplinary Authority to consider as to whether it would like to record reasons of disagreement on charge Nos. 1 and 5 and/or impose punishment on the basis of charge No. 4 with which there is no disagreement, as it may consider appropriate - Appeal allowed by way of remand.

Issues Involved:
1. Non-supply of the Inquiry Report before the Disciplinary Authority’s order.
2. Violation of the principles of natural justice due to non-communication of reasons for disagreement with the Inquiry Report.
3. Consideration of past punishments without notice to the delinquent.
4. Applicability of prospective effect of judgments in disciplinary proceedings.
5. Severability of charges and the proportionality of punishment.

Issue-wise Detailed Analysis:

1. Non-supply of the Inquiry Report before the Disciplinary Authority’s order:
The High Court set aside the order of punishment on the ground that the copy of the Inquiry Report was not supplied to the delinquent before the Disciplinary Authority passed an order of punishment. This was deemed a violation of the cardinal principle of natural justice. However, the Supreme Court found that the Constitution Bench judgment in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors. (1993) 4 SCC 727, though quoted by the High Court, had been applied wrongly. The Disciplinary Authority's order was passed before the Supreme Court's judgment in Union of India & Ors. v. Mohd. Ramzan Khan (1991) 1 SCC 588, which laid down the requirement for supplying the Inquiry Report. Since the order was passed before November 20, 1990, the non-supply of the Inquiry Report did not vitiate the order of punishment.

2. Violation of the principles of natural justice due to non-communication of reasons for disagreement with the Inquiry Report:
The High Court set aside the order of removal on the ground that the reasons for disagreement with the Inquiry Report in respect of charge Nos. 1 and 5 were not communicated to the delinquent. The Supreme Court upheld this finding, citing Punjab National Bank & Ors. v. Kunj Behari Misra (1998) 7 SCC 84, which mandates that when the Disciplinary Authority disagrees with the Inquiry Report, the delinquent must be given an opportunity to be heard. The non-communication of the reasons for disagreement was a violation of the principles of natural justice.

3. Consideration of past punishments without notice to the delinquent:
The High Court found that the previous punishment of reversion to Junior Manager Grade was considered without informing the delinquent. The Supreme Court discussed the relevance of past punishments in disciplinary proceedings, noting that the 42nd Constitutional Amendment removed the requirement to issue a notice of proposed punishment. The Court held that while past punishments could not be part of the charge sheet, they could be considered during the punishment stage, provided the delinquent was given a reasonable opportunity to respond.

4. Applicability of prospective effect of judgments in disciplinary proceedings:
The Supreme Court clarified that the judgment in Mohd. Ramzan Khan's case, which required supplying the Inquiry Report, was given prospective effect. Therefore, inquiries concluded before the judgment date (November 20, 1990) would not be affected by this requirement. The Court emphasized that the law laid down in Mohd. Ramzan Khan's case was prospective and did not apply retrospectively.

5. Severability of charges and the proportionality of punishment:
The Supreme Court considered whether the order of punishment could be sustained based on charge No. 4 alone, which was proven and undisputed. The Court noted that while charge No. 4 could justify punishment, it was not for the Court to determine the appropriate punishment. The matter was remanded to the Disciplinary Authority to decide whether to record reasons for disagreement on charge Nos. 1 and 5 or to impose punishment based on charge No. 4 alone.

Conclusion:
The Supreme Court allowed the appeals, setting aside the High Court's orders and remanding the matters to the Disciplinary Authority for reconsideration. The Disciplinary Authority was directed to decide on the appropriate punishment, considering the proven charge and the principles of natural justice. The delinquent, having attained superannuation, was entitled to a decision on back wages and terminal benefits within three months.

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