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TMI Blog2014 (5) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... nt were got issued for the above stated work from the Central Stores on 31.3.97. The said Shri R.P. Singh allowed Shri N.K. Sarin, Junior Engineer to issue 89 bags of cement within 24 hours of receipt of the cement from the Central Stores without giving any written permission to the Junior Engineer and without authenticating the said issue of cement, thereby violating the instructions contained in Para 3(d) of memorandum No. DGW/CON/67 dated 6.5.94. (b) Out of the above stated lot of 540 bags of cement of "Superplus Jaypee" brand, 82 bags of cement were found short, which had been pilfered with connivance of the said Shri R.P. Singh, Assistant Engineer. 3. As the delinquent officer refuted the charges, an Inquiry Officer was appointed to conduct the inquiry and in the inquiry, he found the charges levelled against the delinquent officer were not proven and, accordingly, he submitted the Inquiry Report. The disciplinary authority after expressing the disagreement, called for a representation from the Respondent communicating the Inquiry Report as well as the opinion for disagreement requiring him to submit his explanation. The Respondent submitted his explanation and thereafter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee are not in dispute. Thus, the singular question that emanates for determination is whether the High Court is justified in issuing the directions which have been reproduced hereinabove solely on the ground that non-supply of the advice obtained by the disciplinary authority from the UPSC and acting on the same amounts to violation of principles of natural justice. Learned Counsel for the Appellants has placed reliance on Rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for brevity "the CCS Rules"). The said Rule reads as under: 32. Supply of copy of Commission's advice. Whenever the Commission is consulted as provided in these rules, a copy of the advice by the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the Government servant concerned along with a copy of the order passed in the case, by the authority making the order. 8. Relying upon the aforesaid Rule, it is contended that when the only prescription in the Rule is that a copy of the advice is to be furnished at the time of making of the order, it is not obligatory in law to supply it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. 10. It is also necessary to mention here that the learned Judges distinguished the pronouncements in D.C. Aggarwal and Anr. (supra) and MD, ECIL v. B. Karunakar (1993) 4 SCC 727. 11. Mr. Vasudevan Raghavan, learned Counsel for the Respondent has submitted that the said decision has been treated as a per incuriam in Union of India and Ors. v. S.K. Kapoor (2011) 4 SCC 589 in one aspect as it has not taken note of the earlier decision in S.N. Narula v. Union of India and Ors. (2011) 4 SCC 591. Learned Counsel while clarifying the position has submitted that the decision in Narula's case has been rendered on 30.01.2004 which is prior to the decision in T.V. Patel's case though it has been reported later on. 12. In the case of S.N. Narula, the Court took note of the fact that the proceedings therein were sent for information of the UPSC and the UPSC had given the advice indicating certain punishment and the said advice was accepted by the disciplinary authority who, on that basis, had imposed punishment. Thereafter the Court took note of the factual score how the disciplinary authority had acted. We think it seemly to reproduce the same: 3. It is to be noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable. 15. After so stating the two-Judge Bench opined that when the disciplinary authority does not rely on the report of the UPSC then it is not necessary to supply the same to the employee concerned. However, when it is relied upon then the copy of the same may be supplied in advance to the employee concerned, otherwise, there would be violation of the principles of natural justice. To arrive at the said conclusion, reliance was placed upon the decision in S.N. Narula's case. Proceeding further, the Court held: 9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case (supra). It is well settled that if a subsequent co-ordinate bench of equal strength w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perceived, it can be stated with certitude that S.N. Narula (supra) was a binding precedent and when the subsequent decision in T.V. Patel (supra) is rendered in ignorance or forgetfulness of the binding authority, the concept of per incurium comes into play. 20. In this regard, we may usefully refer to a passage from A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602, wherein Sabyasachi Mukharji, J. (as his Lordship then was) observed thus: ...'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. At a subsequent stage of the said decision it has been observed as follows: ...It is a settled rule that if a decision has been given per incuriam the court can ignore it. 21. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. AIR 2011 SC 312 : (2011) 1 SCC 694, while dealing with the issue of 'per incuriam', a two-Judge Bench, after referring to the dictum in Bristol Aeroplane Company Ltd. (supra) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. We will be failing in our duty if we do not refer to another passage which deals with the effect of non-supply of the enquiry report on the punishment. It reads as follows: [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence. We have been apprised by Mr. Raghavan, learned Counsel for the Respondent, that after the decision in S.K. Kapoor's case, the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training vide Office Memorandum dated 06.01.2014 has issued the following directions: 4. Accordingly, it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted: (i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations; (ii) On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC; (iii) The Charged Officer shall be required to submit, if he so desires, his written repr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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