TMI Blog1986 (4) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court were not justified in holding that the order of dismissal was vitiated as the respondent was not given a second opportunity to make representation against the punishment of dismissal before the same was imposed on him. In the circumstances, we set aside the judgment of the Division Bench of the High Court but, as in disposing the appeal the Division Bench has not considered the judgment of the learned Single Judge on merits of the case, we send the case back on remand to the Division Bench for the disposal of the appeal on merits after giving the parties an opportunity of being heard. This appeal is allowed - C.A. 1279 OF 1986 - - - Dated:- 23-4-1986 - M.M. DUTT AND A.P. SEN, JJ. JUDGMENT The Special Leave Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980 came to the finding that both the charges framed against the respondent were proved. In view of the said finding, the Collector of Customs by his said order dismissed the respondent from service. Being aggrieved by the order of dismissal, the respondent preferred an appeal against the same to the Chief Vigilance Officer, Central Board of Excise and Customs. The Appellate Authority elaborately considered the facts and circumstances of the case and by its order dated July 8, 1981 upheld the finding of the Disciplinary Authority that the charges against the respondent were proved. The Appellate Authority, however, altered the penalty of dismissal to one of compulsory retirement of the respondent from service. The respondent filed a Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h notice to show cause against the punishment to be proposed by him. Hence this appeal by the appellants. It thus appears that the Division Bench as also the learned Single Judge of the High Court took the view that the order of dismissal was vitiated as the Disciplinary Authority failed to give to the respondent an opportunity to show cause against the punishment of dismissal before the same was imposed on him. Both the Division bench and the learned Single Judge of the High Court have completely overlooked the fact that the Constitution (Forty-Second Amendment) Act, 1976 has deleted from clause (2) of Article 311 of the Constitution the requirement of a reasonable opportunity of making representation on the proposed penalty and, furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant. Clause (ix) of Rule 11 referred to in Rule 15(4) is the penalty of dismissal. It is, therefore, clear that the respondent cannot claim a second opportunity to show cause against the punishment either under Article 311(2) of the Constitution or under Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The question was also considered by a five-Judge Bench of this Court in Union of India v. Tulsi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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