State of Gujarat Vs. R. G. Teredesai
& ANR [1969] INSC 107 (10 April 1969)
10/04/1969 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.
CITATION: 1969 AIR 1294 1970 SCR (1) 251 1969
SCC (2) 128
ACT:
Constitution of India Art. 311 (2)-Failure to
provide recommendations of the Enquiring Officers as to punishment If vitiates
enquiry-Natural Justice, Principles-Civil Services (Classification, Control and
Appeal) Rules, r. 55.
HEADNOTE:
As there was omission to supply to the first
respondent a copy of the recommendations of the Enquiry officer in the matter
of punishment (although a copy of his report containing his findings on various
charges was supplied) the first respondent filed a writ petition in the High
Court challenging the order of the State Government removing him from its
service. The first respondent contended that the omission amounted to failure
to provide reasonable opportunity of making representation against the penalty
proposed within the meaning of Art. 311(2) of the Constitution. The High Court
held that proceedings were vitiated from the stage of the show cause notice
relating to punishment, and set aside the order of removal, but liberty was
given to the State Government to issue fresh show cause notice regarding the
proposed punishment. Dismissing the State's appeal, this Court;
HELD :-The requirement of a reasonable
opportunity could not be satisfied unless the entire report of the Enquiry
Officer including his views in the matter of punishment were disclosed to the
delinquent servant. [254 E] The Enquiry Officer is under no obligation or duly
to make any recommendations in the matter of punishment to be imposed on the
servant against whom the departmental enquiry is held, and his function merely
is to conduct the enquiry in accordance with law and to submit the record along
with his findings or conclusions on the delinquent servant. But if the Enquiry
Officer has,, also made recommendations in the matter of punishment that is
likely to, affect the mind of the punishing authority with regard to penalty or
punishment to be imposed on such officer, it must be disclosed to the
delinquent officer. Since such recommendations form part of the record and
constitute appropriate material for consideration of the Government it would be
essential that that material should not be withheld from him so that he could,
while showing cause against the proposed punishment, make, a proper
representation. The entire object of supplying a copy of the report of the
Enquiry Officer is to enable the delinquent officer to satisfy the punishing
authority that he is innocent of the charges framed against him and that even
if the charges 'are held to have been proved the punishment proposed to be
inflicted is unduly severe. [253 H-254 D] Union of India v. H.C. Goel, [1964] 4
S.C.R. 718, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No: 961 of 1966.
Appeal by special leave from the judgment and
order dated March 18, 1965 of the Gujarat High Court in Special Civil
Application No. 580 of 1961.
252 R. H. Dhebar, S. K. Dholakia and S. P.
Nayar, for the appellant.
G. L. Sanghi and A. G. Ratnaparkhi, for
respondent No. 1.
M. S. K. Sastri, R. H. Dhebar and R. N.
Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave against a judgment of the Gujarat
High Court. The sole point for determination is whether omission to supply to
the first respondent a copy of the recommendations of the Enquiry Officer in
the matter of punishment, although a copy of his report containing his findings
on the various charges was supplied, amounted to a failure to provide
reasonable opportunity of making a representation against the penalty proposed
within the meaning of Art. 311(2) of the Constitution.
The first respondent joined the Baroda State
Service in 1937. He was absorbed as a Sales Tax Officer, Class III in the
former State of Bombay after merger. In December 1962 he was served with a
charge-sheet containing allegations of attempt to obtain illegal gratification
from certain cloth dealers. A departmental enquiry was held and on March 15,
1964 he was dismissed from service. He challenged the order of dismissal by
means of a civil -suit. In May 1958 the City Civil Court decreed the suit
holding that the order of dismissal was illegal. He was reinstated with effect
from October 10, 1958. He was, however, suspended with immediate effect as a
fresh enquiry was proposed to be held against him under Rule 55 of the Civil
Services (Classification, Control and Appeal) Rules. A fresh charge-sheet was
served on him containing the same allegations as on the previous occasion. In
December 1959 a notice was served on him by the Government calling upon him to
show cause why punishment of removal should not be imposed on him. Along with
the show cause notice the report of the Enquiry Officer containing his findings
was sent to him. The Enquiry Officer had also made certain recommendations
regarding the punishment which in his opinion should be inflicted on the first
respondent. No copy of these recommendations, however, was furnished to him. In
March 1960 it was proposed that the first respondent be allocated to the State
of Gujarat in view of the bifurcation of the erstwhile State of Bombay. In
September 1960 he was removed from service by an order passed by the State
Government. The first respondent then filed a petition under Art. 226 of the
Constitution challenging the order of removal.
One of the points which was raised before the
High Court was that the failure to send a copy of the report of the Enquiry 253
Officer containing his recommendations in the matter of punishment vitiated the
proceedings. The High Court expressed the view that since the recommendations
were a part of the appropriate material for the consideration of the Government
in the -matter of imposition of punishment on the first respondent, he was
entitled to a copy of those recommendations at the time when he was called upon
to show cause. It was consequently hold that the proceedings were vitiated from
the stage of the show cause notice relating to punishment. The order of removal
was set aside but it was made clear that the Government would be at liberty to
issue a fresh show cause notice regarding the proposed punishment and to take
appropriate proceedings from that stage onwards, if it chose to do so. The
State has filed the present appeal.
Learned counsel for the State urged that the
Enquiry Officer was not required to make any recommendation about the
punishment 'which was to be imposed on the first respondent on the charges
against him which had been found to have been proved. It was pointed out that
the sole duty of the Enquiry Officer was to give his conclusions or findings on
the charges which he was called upon to enquire into and the recommendations
which he made in the matter of punishment were wholly redundant and irrelevant.
For that reason it was not at all necessary that the first respondent should
have been supplied a copy of the recommendations relating to punishment. In
this connection reference has been made to the Bombay Civil Services Conduct,
Discipline and Appeal Rules wherein the procedure has been laid down when -an
order of dismissal, removal or reduction in rank has to be passed on a member
of the service. According to the Rule the proceedings shall contain sufficient
record of the evidence and a statement of the findings and the grounds thereof.
There are similar provisions in Rule 55 of the Civil Services (Classification,
Control and Appeal) Rules.
In Union of India v. H. C. Goel (1). It has
been observed that unless the statutory rules or the specific order under which
an officer is appointed to hold an inquiry so requires the Enquiry Officer need
not make any recommendations as to the punishment which may be imposed on the
delinquent officer in case the charges framed against him are held proved at
the enquiry; if however, the Enquiry Officer makes any recommendations the said
recommendations, like his findings on the merits, are intended merely to supply
appropriate material for the consideration of the Government. Neither the
findings, nor the recommendations are binding on the Government. Now although
it is correct that the Enquiry Officer is under no obligation or duty to make
any (1) [1964] 4 S.C.R. 718.
254 recommendations in the matter of
punishment to be imposed on the servant against whom the departmental enquiry
is held, and his function merely is to conduct the enquiry in accordance with
law and to submit the record along with his findings or conclusions on the
various charges which have been preferred against the delinquent servant. But
if the Enquiry Officer proceeds to recommend that a particular penalty or
punishment should be imposed in the light of his findings 'or conclusions the
question is whether the officer concerned should be informed about his
recommendations. In other words since such recommendations form part of the
record and constitute appropriate material for consideration of the Government
it would be essential that that material should not be withheld from him so
that he could, while showing cause against the proposed, punishment, make a
proper representation. The entire object of supplying a copy of the report of
the Enquiry Officer is to enable the delinquent officer to satisfy the
punishing authority that he is innocent of the charges framed against him and
that even if the charges are held to have been proved the punishment proposed
to be inflicted is unduly severe. If the Enquiry Officer has also made
recommendations in the matter of punishment that is likely to affect the mind
of the punishing authority even with regard to penalty or punishment to be
imposed on such officer. The requirement of a reasonable opportunity,
therefore, would not be satisfied unless the entire report of the Enquiry
Officer including his views in the matter of punishment are disclosed to the
delinquent servant.
We have no manner of doubt that the decision
of the High Court must be upheld in the above view of the matter. The, appeal
fails and it is dismissed with costs.
Y.P. Appeal dismissed..
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