TMI Blog2014 (5) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... Dipak Misra And N.V. Ramana , JJ. For the Appellant: K. Radhakrishnan , Sr. Adv., W.A. Qadri , Rekha Pandey , A. Deb Kumar and Sushma Suri , Advs. For the Respondents: Vasudevan Raghavan , Adv. JUDGMENT Dipak Misra , J. 1. Calling in question the legal defensibility of the judgment and order dated 19.01.2007 passed by the High Court of Delhi in W.P.(C) No. 16104 of 2004 whereby it has annulled the judgment and order dated 28.06.2004 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short the tribunal ) in O.A. No. 1977 of 2003 and the order dated 19.08.2004 declining to entertain the review, the present appeal has been preferred by special leave. 2. The Respondent while serving as an Assistant Engineer (Civil) in the Central Public Works Department (CPWD) was proceeded in a departmental proceeding in respect of two charges which read as follows: (a) 540 bags of cement 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 withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or making effective representation. It further observed that non-supply of such material could amount to denial of fair opportunity of being heard. Being of this opinion, the High Court directed as follows: We direct the Respondents to allow the Petitioner to make his representation in respect of the UPSC advice, which was made available to him along with the order dated 28.1.2003 imposing punishment. The representation of the Petitioner be duly considered and the Disciplinary Authority to take a decision afresh, taking into account the representation with regard to the disciplinary proceedings within a period of two months. 6. We have heard Mr. K. Radhakrishnan, learned Counsel assisted by Mr. W.A. Qadri and Ms. Rekha Pandey for the Appellant and Mr. Vasudevan Raghavan, learned Counsel for the Respondent. 7. At the very outset, we may state that the facts relating to seeking of advice from UPSC and the stage of furnishing the same to the delinquent employee 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the order. In our view, the language employed in Rule 32, namely along with a copy of the order passed in the case, by the authority making the order would mean the final order passed by the authority imposing penalty on the delinquent government servant. 9. Be it noted, in the said case, interpretation placed by this Court Under Article 320(3)(c) of the Constitution in State of U.P. v. Manbodhan Lal Srivastava AIR 1957 SC 912 has been placed reliance upon and, in that context, it has been opined thus: In view of the law settled by the Constitution Bench of this Court in the case of Srivastava (supra) we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court 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 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 3 months thereafter. 13. We will be failing in our duty if we do not take note of the submission of Mr. W.A. Qadri that the decision is not an authority because the tribunal had set aside the order of the disciplinary authority on the ground that it was a non-speaking order. Be that as it may, when the issue was raised before this Court and there has been an advertence to the same, we are unable to accept the submission of Mr. Qadri. The said decision is an authority for the proposition that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of punishment. 14. In the case of S.K. Kapoor , the Court accepted the ratio laid down in the case of T.V. Patel as far as the interpretation of Article 320(3)(c) is concerned and, in that context, it opined that the provisions contained in the said Article 320(3)(c) of the Constitution of India are not mandatory. While distinguishing certain aspects, the Court observed as follows: 7. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead) by L.Rs. and Ors. (1989) 2 SCC 754, wherein the Constitution Bench has held as follows: We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. 17. In Indian Oil Corporation Ltd. v. Municipal Corporation and Anr. AIR 1995 SC 1480, it has been observed that the Division Bench of the High Court in Municipal Corporation, Indore v. Ratnaprabha Dhandha 1989 MPLJ 20 was clearly in error in taking the view that the decision of this Court in Municipal Corporation, Indore v. Ratna Prabha (1976) 4 SCC 622 was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co-equal Bench of this Court did not and could not do. 18. In Chandra Prakash and Ors. v. State of U.P. and Anr. (2002) 4 SCC 234, the Constitution Bench has reiterated the principle that has already been stated in Raghubir Singh (supra). 19. Thus perceived, it can be stated with certitude t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le mandatory. As we find, in the T.V. Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is what precisely has been laid down in the B. Karunakar's case. We may reproduce the relevant passage with profit: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing of report could have made a difference to the result in the case then it should set aside the order of punishment. Where after following the said procedure the court/tribunal sets aside the order of punishment, the proper relief that should be granted to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from that stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement, if ultimately ordered, should invariably left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. 26. We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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