RERPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4888 OF 2010

(Arising out of SLP(C) No. 23781 of 2007)

Indu Bhushan Dwivedi …….Appellant

Versus

State of Jharkhand and another …….Respondents

J U D G M E N T

G.S. Singhvi, J.

1.Leave granted.

2.This is an appeal for setting aside order dated 29.3.2007 passed by the

Division Bench of Jharkhand High Court in Writ Petition No.2671 of 2006

whereby it set aside the dismissal of the appellant from service but imposed

the punishment of compulsory retirement.

3.The appellant joined service as Munsif in 1982. He was promoted as

Sub-Divisional Judicial Magistrate in 1996. While he was posted as Sub-

Divisional Judicial Magistrate at Chaibasa, a news item appeared in `Dainik

Jagran’ dated 2.7.2003 suggesting that the appellant had misbehaved and

manhandled an accused, named, Anup Kumar and Constable Sheo Pujan

Baitha. On the next day, i.e. 3.7.2003, the appellant made a representation

to District and Sessions Judge, West Singhbhum at Chaibasa with the

request that an inquiry be got conducted into the matter and appropriate

action against the person who got published the misleading news.

4.The High Court of Jharkhand took cognizance of the newspaper report

adversely commenting upon the conduct of the appellant and passed an order

dated 5.7.2003 whereby he was placed under suspension and his headquarter

was fixed at Chaibasa with a direction that he shall not leave the headquarter

without obtaining prior permission from the Registrar General of the High

Court.

5.In the meanwhile, the appellant appears to have submitted an

application to the District Judge on 4.7.2003 for permission to go to Ranchi

for his treatment and also avail holiday on 6.7.2003. After receiving the

order of suspension, the appellant submitted an application to the Registrar

2

General of the High Court stating therein that as per the advise of the doctor,

he has to take complete rest for one month and, therefore, he is unable to

return to Chaibasa. The appellant also indicated that he would join the

headquarters after recovery from illness. This prayer of the appellant was

rejected by the High Court and he was informed through the District Judge

to comply with the direction contained in order dated 5.7.2003. The

appellant responded to this communication by sending letter dated 19.7.2003

to the District Judge wherein he mentioned that he had to proceed on leave

because he was suffering from acute and uncontrolled loose motions and he

had left the headquarters after handing over charge and after seeking

permission from the District Judge. He then reiterated his inability to return

to the headquarter and described the direction contained in the letter of the

High Court as merciless which could not be complied with at the cost of

one’s life. He also claimed that being a suspended employee, he cannot be

compelled to stay at the headquarters.

6.After five months of his suspension, a regular departmental inquiry

was initiated against the appellant on the following charges:

“Charge No.1

You, Shri Indu Bhushan Dwivedi while functioning as SDJM,

West Singhbhum at Chaibasa was found in intoxicated

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condition on 1

st

July 2002 (a holiday) in your residential office

when an accused Anup Kumar of a case no. C/7-60/2001 of the

Court of Shri D. Mahapata, Judicial Magistrate, Ist Class,

Chaibasa was produced before you in your residential office for

remand by the Head Constable Shri Sheo Pujan Baitha in

presence of Office Clerk Shri Baidyanath Ballav Kath of the

Court of Shri D. Mahapatra.

At the time of production of the said accused Anup

Kumar, you misbehaved and manhandled the accused Anup

Kumar as well as constable Shri Sheo Pujan Baitha.

The aforesaid action on your part not only reflects on

your reputation, dereliction of duty but also shows the

recklessness and misconduct in the discharge of duties.

The aforesaid action on your part is also unbecoming of a

Judicial Officer.

Charge No.2

You, Shri Indu Bhushan Dwivedi, SDJM, Chaibasa was

placed under suspension by Hon’ble High Court’s order

contained in letter No. 05/Apptt. dt. 5.7.2003 fixing your

headquarter at Chaibasa. It was served on you on 5

th

July, 2003

by the District & Sessions Judge, West Singhbhum at Chaibasa.

On 4

th

July, 2003, you submitted representation applications

before the District & Sessions Judge, West Singhbhum at

Chaibasa to leave the headquarter on following Sunday i.e. 6

th

of July, 2003 (for one day) to proceed to Ranchi which was

allowed by the District & Sessions Judge, West Singhbhum,

Chaibasa.

Though during the period of suspension you are not

supposed to attend duty or sign any Attendance Register but

you are supposed to remain in the Headquarters and cannot

leave the Headquarters without any permission of the

competent authority, but you remained absent from headquarter

from 6.7.2003 after making over charge to SDJM, Porahat on

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5.7.2003 and you remained out of headquarter without any

information till 10.9.2003.

The aforesaid action on your part and violation of Court’s

order amounts insubordination and misconduct.

Charge No.3.

You, Shri Indu Bhushan Dwivedi, SDJM, Chaibasa

(under suspension) when asked by the District & Sessions

Judge, West Singhbhum at Chaibasa as to why you have not

returned to headquarter by letter No.2501/G dated 10

th

of July,

2003 and to report you submitted reply and used derogatory

words against the Court by your letter No. 5(P) of 2003 dt. 19

th

July, 2003 using expression “Merciless Direction of the

Hon’ble Court”.

The aforesaid remarks by you reflects on your conduct

amounting to insubordination, indiscipline and unbecoming a

Judicial Officer.

Shri Dwivedi has been charged of misconduct

recklessness in discharge of his duties along with

insubordination and for committing the acts most unbecoming

of a responsible Judicial Officer, on the basis of the above

mentioned allegation.”

7.The appellant submitted reply and denied all the charges. After

considering the reply, the High Court appointed District & Sessions Judge,

East Singhbhum, Jamshedpur to conduct regular inquiry. The presenting

officer examined 5 witnesses and produced 11 documents to substantiate the

charges leveled against the appellant, who examined 2 witnesses and

produced 17 documents.

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8.For the sake of his convenience, the Inquiry Officer formulated the

following points:

(i)Whether Shri Dwivedi was in an intoxicated condition on

1

st

July, 2003 in the residential Office when accused

Anup Kumar was produced before him for remand?

(ii)Whether Shri Dwivedi had misbehaved as also

manhandled the accused Anup Kumar and Constable

Sheo Pujan Baitha?

(iii)Whether Shri Dwivedi had left his headquarter without

prior permission from the competent authority and

without any sufficient cause?

(iv)Whether Shri Dwivedi had used derogatory

language/word against the Hon’ble Court by his Letter

No.5(p) 2003 dated 19.7.2003? and

(v)Whether Shri Dwivedi had acted in a way which shows

recklessness and misconduct in discharge of his duties

along with insubordination and indiscipline which is

unbecoming of a responsible Judicial Officer?

After analyzing the evidence produced before him, the Inquiry

Officer submitted report dated 4.6.2005 with the conclusion that charges

No.2 and 3 have been proved against the appellant but charge No.1 has not

been proved. While dealing with point Nos.1 and 2 which related to charge

No.1, the Inquiry Officer referred to the statements of Pravakar Singh

(A.W.1), the Registrar, Civil Courts, Chaibasa, Baidyanath Ballav Kant

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(A.W.2), Havildar Sheo Pujan Baitha (A.W.3), the accused Anup Kumar

(A.W.5) and recorded the following conclusions:

“11.From perusal of the record, it appears that there is some

force in the contention of the delinquent because A.W.2

Baidyanath Ballav Kant has specifically stated that on the date

of occurrence, the delinquent had performed ‘Puja’ and several

persons were present there and after ‘Puja’ Prasad was also

given to him and two other persons and this fact has been

supported by A.W.1 Prabhakar Singh. A.W.2 has further stated

that the delinquent was not in an intoxicated condition when the

accused was produced for remand. The said Havildar, A.W.3,

has also nowhere stated in his evidence that the delinquent was

in an intoxicated state.

12.On careful examination of the evidence oral and

documentary, adduced by the parties and in view of the

aforesaid discussions, I am of the view that the Charge No.1

that the delinquent was in an intoxicated condition when the

accused was produced before him for remand, could not be

proved by cogent evidence and similarly, this has also not been

proved that the delinquent had assaulted the accused Anup

Kumar and the Havildar Sheo Pujan Baitha. So, the Point

No.4(i) and (ii) are decided in favour of the delinquent.”

9.The Inquiry Officer then dealt with other three points and held that the

delinquent (appellant herein) appears to have managed the medical

prescription from the doctors to justify non-compliance of the direction

given by the High Court not to leave the headquarter without obtaining

permission from the Registrar General and concluded that his action

amounted to insubordination and indisciplined behaviour unbecoming of a

responsible judicial officer.

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10.The High Court accepted the inquiry report and directed that show

cause notice be issued to the appellant for imposition of a major penalty.

Accordingly, the Registrar General of the High Court issued Memo dated

30.6.2005 to the appellant enclosing therewith a copy of the inquiry report

and called upon him to show cause as to why a major penalty such as

dismissal from service may not be inflicted upon him. In his reply dated

22.7.2005, the appellant challenged the findings recorded by the Inquiry

Officer in respect of charges No.2 and 3 by contending that the same were

based on erroneous appreciation of evidence and that there was no valid

ground to discard the testimony of the doctor and prescriptions given by

him. The appellant then pleaded that he neither had the intention nor he

could have dared to disobey the direction given by the High Court. He

submitted that non-compliance of the direction given by the High Court to

stay at the headquarters during the period of suspension was due to his

illness and pleaded that he may be pardoned for using the expression

‘merciless direction’ for the communication sent by the High Court. He

again tendered an unqualified apology for what he termed as wrong choice

of the words. Simultaneously, he claimed that there was no adverse report

regarding his integrity, honesty and sincerity and he was never found guilty

of any act of insubordination or indiscipline and pointed out that in the latest

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report, the District Judge had commended his work. This is evinced from

para 17 of the appellant’s representation, which reads thus:

“17.Sir, most humbly and respectfully I submit that in the

entire period of my service there is no report against my

integrity honesty and sincerity. I was never found guilty of any

act of insubordination or indiscipline ever before in this entire

period of service also that recently proceeding this suspension

my District Judges in their annual report have commended my

work.”

11.After considering the reply of the appellant, the High Court

recommended his dismissal from service. The State Government accepted

the recommendation of the High Court and passed order dated 22.2.2006

whereby the appellant was dismissed from service.

12.The appellant challenged the aforementioned order by contending that

the same is vitiated due to violation of the rules of natural justice because

while recommending his dismissal from service, the High Court had

considered un-communicated adverse remarks recorded in the Annual

Confidential Report without informing him that the same were being relied

upon for deciding the quantum of punishment. Another ground taken by the

appellant was that the punishment of dismissal from service was totally

disproportionate to the charges found proved against him.

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13.The Division Bench of the High Court first considered the question

whether the past adverse record could be considered for imposing the

punishment of dismissal, referred to the judgment of the Constitution Bench

in State of Mysore v. K. Manche Gowda AIR 1964 SC 506 as also the

judgment in State of U.P. v. Harish Chandra Singh AIR 1969 SC 1020

and held that when the High Court proposed the punishment of dismissal

from service and the appellant himself made a request in paragraph 17 of his

reply that his past record may be considered, no prejudice can be said to

have been caused to him on account of consideration of the adverse reports.

Paragraphs 21 and 22 of the impugned order which contain the reasoning of

the High Court on this issue are extracted below:

“21.Thus, the ratio decided in the above case is where the

past records is considered for awarding lesser punishment, no

notice about the proposal that the past records will be

considered is necessary. In this case, the stand taken by the 2

nd

respondent, namely, the High Court, the past records were

taken into consideration in addition to the charges proved only

to consider if any lesser punishment than the dismissal could be

inflicted, as desired by the petitioner. In case, the past records

were not considered by the disciplinary authority, then the then

the petitioner may raise a grievance non-consideration of his

past records white awarding punishment in spite of his request.

Under those circumstances, the past records as admitted in the

counter affidavit filed by the respondent No. 2 have been

considered.

22.As indicated above, when specially the petitioner has

made a request in his reply to consider his past records, while

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awarding punishment as his past records are good, the

disciplinary authority was constrained to go into the past

record. But, according to the counter by the respondent No.2,

the past records did not support the claim of the petitioner that

his past records were good. On the contrary, his past records

contained various details about his bad records in so many

words as mentioned in the counter. There is no question of

consideration of past records for giving higher punishment than

the disciplinary authority felt while issuing 2

nd

show cause

notice that the maximum punishment alone, would

commensurate the proved charges. In the aforesaid

circumstance, there is no requirement to mention in the show

cause notice regarding to mention in the show cause notice

regarding his past records. As stated by the counsel for the

respondent No.2, the past records were considered at the

instance of the petitioner and also with a view to consider if any

lesser punishment than the dismissal could be inflicted upon the

petitioner. As such the first contention would fail.”

14.The Division Bench then considered the appellant’s plea that the

punishment of dismissal was unduly harsh and disproportionate to the

misconduct found proved against him, referred to the judgments in Om

Kumar v. Union of India (2001) 2 SCC 386, Mahindra and Mahindra

Ltd. v. N.B. Jarawade (2005) 3 SCC 134, Hombe Gowda Educational

Trust v. State of Karnataka (2006) 1 SCC 430, and held:

“Even at the threshold, it should be stated that, the disciplinary

proceedings were initiated and suspension order was passed

mainly on the basis of the report of an officer in the Civil Court

complaining that the delinquent-petitioner, in an intoxicated

condition, assaulted the accused who was produced before him

for remand as well as the constable, who produced before the

11

delinquent. This is truly a very serious charge. If this charge is

proved, it would have been a very serious misconduct on the

part of the judicial officer, which would entail him to maximum

punishment. But, in this case, the inquiry officer has not only

observed the charge is not proved, but also indicated that the

delinquent had been falsely implicated at the instance of the

police personnel of the local police station with whom

relationship of delinquent was not cordial. It is true that merely,

because the first charge had been held to be false, we cannot

hold the other charges do not need any serious consideration.

Other charges also are serious, but it shall be remembered that

they are not so serious as that of the first charge. As indicated

above, the petitioner, himself, requested the disciplinary

authority to take into consideration the past record. There is no

dispute in the fact that the past records were taken into

consideration where it was recorded as his conduct was not

good in respect of some period. But the show cause reply sent

by the delinquent, dated, 22.07.2005, would indicate that he has

specifically asked the authority to take into consideration all the

entire period of service. He further referred in his show cause

that his District Judge, Chaibasa has commended his work in

his annual report. Admittedly, there is no reference about this in

the counter filed by the respondent No. 2. On the other hand,

the counsel for the 2

nd

respondent would submit that his entire

past records are not good.

In view of this, it would be better to look into the relevant

entries in his A.C.R. This Court called for the A.C.R. and

perused the same. The relevant entry in A.C.R. in respect of

1988-89, 1989-90, 1991-92, 1996-97 would show various

adverse remarks, as referred to in the counter. However, in the

counter, there is no mention about the entries made during the

year 2002-2003. As per the entry, the District Judge, Chaibasa

certified him as a good officer which is as follows:

Year 2002-2003

Name of Judgeship Chaibasa

Reporting Officer /Hon'ble

Judge

Mr. B.N. Pandey

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Knowledge Good

Promptness in disposal Yes

Quality of Judgment Good

Supervision of Business NA

Efficiency Yes

Reputation Yes

Attitude towards

Colleagues

Good behaviour

Relation with Bar &

Public

Good behaviour

Net Result Good Officer

There is no reason as to why the respondent No. 2 has not

chosen to refer to these entries in relation to his good

behaviour. The respondent No. 2 only was particular about

giving reference about the earlier years in which some adverse

remarks had been passed against him, but in the later year, as

indicated above, he got an entry from the District Judge in his

A.C.R. that his knowledge and behaviour is good and he was

certified as good officer.

Thus, it is clear while imposing punishment, this aspect has not

been taken into consideration despite the request made by the

delinquent to take into consideration the recent entry made by

District Judge, Chaibasa commending his work.

Admittedly, the suspension order was issued on 05.07.2003.

His suspension was not revoked during the pendency of the

inquiry. The inquiry commenced and the charges have been

framed only on 16.12.2003. The inquiry officer was appointed

only on 28.05.2004. Thereafter inquiry held. The inquiry report

was submitted on 04.06.2005. Show cause notice was issued on

30.06.2005. Show cause reply was sent on 22.07.2005.

Ultimately, dismissal order was passed only on 26.02.2006.

Thus, he was facing inquiry from 2003 to 2006. Admittedly,

during the said period his suspension was not revoked and he

was continued to be under suspension. Thus, he was facing

inquiry for two years and seven months approximately and

during that long period, he was constrained to stay at Chaibasa

13

at Headquarters as per the direction of this Court. So, this

aspect of the long delay as well as the good conduct certificate

obtained by the delinquent in the recent past from the District

Judge would be the relevant aspect which ought to have been

taken into consideration by the disciplinary authority, while

imposing punishment. Admittedly, both these aspects have not

been considered.”

15.In the end, the Division Bench concluded that the punishment of

dismissal imposed on the appellant is not sustainable but declined to set

aside the same on the ground that substantial time has lapsed since the

initiation of the inquiry and proceeded to impose punishment of compulsory

retirement upon the appellant. This is evinced from paragraphs 34 and 35 of

the impugned order, which are extracted below:

“34.At this stage, we may refer to the powers of this Court as

indicated by the Supreme Court for reviewing the punishment

imposed upon the delinquent by the disciplinary authority. Let

us refer to the relevant portion of judgment of the Supreme

Court in (2001) 2 SCC 386 [Om Kumar versus Union of India]

14.The court while reviewing punishment and if it is

satisfied that Wednesbury principles are violated, it has

normally to remit the matter to the administrator for a

fresh decision as to the quantum of punishment. Only in

extreme and rare cases where there has been long delay

in the time taken by the disciplinary proceedings and in

the time taken in the courts, can the court substitute its

own view as to the quantum of punishment.

35.In the light of the above rule, we are vested with the

power to review the punishment. As we are of the view that the

Wednesbury principles have been violated in this case, we are

14

constrained to review the quantum punishment. As Supreme

Court would observe, this Court would normally remit the

matter to the disciplinary authority to take a fresh decision as to

the quantum of punishment. However, this Court is no inclined

to do the same, as in this case there has been a long delay in the

time taken by the disciplinary proceedings as well as in the time

taken in this Court. The proceedings were started in the year

2003. We are in 2007. Therefore, instead of remitting the

matter, we ourselves inclined to review the punishment. In our

view, instead of dismissing the petitioner from service, it would

be appropriate to impose the punishment of compulsory

retirement, which would meet the ends of justice.”

16.Shri Raja Venkatappa Naik, learned counsel for the appellant

reiterated both the grounds taken before the High Court and urged that the

impugned order as also the one passed by the State Government are liable to

be set aside because the action taken against the appellant is not only against

the basics of natural justice but is wholly arbitrary, unreasonable and

unjustified. Learned counsel emphasized that none of the four Annual

Confidential Reports mentioned in paragraph 30 of the impugned order were

communicated to the appellant so as to enable him to represent against the

adverse remarks recorded therein and argued that the same could not have

been considered for the purpose of imposing the punishment of dismissal

without giving him opportunity to offer his explanation. Learned counsel

submitted that even if the findings recorded by the Inquiry Officer in respect

of charges No.1 and 2 are held to be correct, there was no justification to

15

impose the punishment of dismissal ignoring that in his long service career

of 24 years the appellant was not found guilty of any other act of

insubordination or indiscipline. Learned counsel argued that when charge

No.1, which was extremely serious in nature was not found proved, the High

Court could not have imposed extreme penalty of dismissal from service by

simply relying upon un-communicated adverse remarks recorded in his

Annual Confidential Reports. Learned counsel criticized the imposition of

the punishment of compulsory retirement by the Division Bench of the High

Court by arguing that once the Division Bench came to the conclusion that

punishment of dismissal is vitiated due to non consideration of the relevant

material i.e., the latest Annual Confidential Report in which the immediate

superior of the appellant had commended his work and conduct, then it

should have set aside the order which was subject matter of challenge in the

writ petition and directed the respondents to pass fresh orders after

communicating adverse remarks to the appellant and giving him an

opportunity to explain his position.

17.We shall first deal with the question whether consideration of the past

adverse record of the appellant by the High Court had the effect of vitiating

the ultimate order passed by the State Government. An exactly similar

16

question was considered and answered in affirmative by the Constitution

Bench in State of Mysore v. K. Manche Gowda (supra). The facts of that

case were that while the respondent was holding the post of an Assistant to

the Additional Development Commissioner, Planning, Bangalore, the

Government of Mysore appointed Shri G.V.K. Rao (Additional

Development Commissioner) to conduct a departmental enquiry against him

in respect of the false claims for allowances and fabrication of vouchers.

The Enquiry Officer framed four charges against the respondent. After

holding an enquiry in accordance with relevant rules, the Enquiry Officer

submitted report with the recommendation that the respondent might be

reduced in rank. However, the government issued a notice to the respondent

requiring him to show cause as to why he may not be dismissed from

service. After considering his reply, the Government dismissed the

respondent from service. The respondent challenged his dismissal by filing

writ petition under Article 226 of the Constitution of India. The High Court

quashed the order of dismissal on several grounds including the one that the

respondent had not been foretold about the proposed consideration of his

past adverse record. This Court approved the view taken by the High Court

and observed:

“Under Art.311(2) of the Constitution, as interpreted by this

Court, a Government servant must have a reasonable

17

opportunity not only to prove that he is not guilty of the charges

leveled against him, but also to establish that the punishment

proposed to be imposed is either not called for or excessive.

The said opportunity is to be a reasonable opportunity and,

therefore, it is necessary that the Government servant must be

told of the grounds on which it is proposed to take such action:

see the decision of this Court in State of Assam v. Bimal Kumar

Pandit, Civil Appeal No.832 of 1962 D/- 12-2-1963 : (AIR

1963 SC 1612). If the grounds are not given in the notice, it

would be well nigh impossible for him to predicate what is

operating on the mind of the authority concerned in proposing a

particular punishment: he would not be in a position to explain

why he does not deserve any punishment at all or that the

punishment proposed is excessive. If the proposed punishment

was mainly based upon the previous record of a government

servant and that was not disclosed in the notice, it would mean

that the main reason for the proposed punishment was withheld

from the knowledge of the government servant. It would be no

answer to suggest that every government servant must have had

knowledge of the fact that his past record would necessarily be

taken into consideration by the Government in inflicting

punishment on him; nor would it be an adequate answer to say

that he knew as a matter of fact that the earlier punishments

were imposed on him or that he knew of his past record. This

contention misses the real point, namely, that what the

government servant is entitled to is not the knowledge of

certain facts but the fact that those facts will be taken into

consideration by the Government in inflicting punishment on

him. It is not possible for him to know what period of his past

record or what acts or omissions of his in a particular period

would be considered. If that fact was brought to his notice, he

might explain that he had no knowledge of the remarks of his

superior officers, that he had adequate explanation to offer for

the alleged remarks or that his conduct subsequent to the

remarks had been exemplary or at any rate approved by the

superior officers. Even if the authority concerned took into

consideration only the facts for which he was punished, it

would be open to him to put forward before the said authority

many mitigating circumstances or some other explanation why

those punishments were given to him or that subsequent to the

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punishments he had served to the satisfaction of the authorities

concerned till the time of the present enquiry. He may have

many other explanations. The point is not whether his

explanation would be acceptable, but whether he has been

given an opportunity to give his explanation. We cannot accept

the doctrine of “presumptive knowledge” or that of

“purposeless enquiry”, as their acceptance will be subversive of

the principle of “reasonable opportunity”. We, therefore, hold

that it is incumbent upon the authority to give the government

servant at the second stage reasonable opportunity to show-

cause against the proposed punishment and if the proposed

punishment is also based on his previous punishments or his

previous bad record, this should be included in the second

notice so that he may be able to give an explanation.”

(emphasis supplied)

18.The proposition laid down in the above noted judgment represents one

of the basic canons of justice that no one can be condemned unheard and no

order prejudicially affecting any person can be passed by a public authority

without affording him reasonable opportunity to defend himself or represent

his cause. As a general rule, an authority entrusted with the task of deciding

lis between the parties or empowered to make an order which prejudicially

affects the rights of any individual or visits him with civil consequences is

duty bound to act in consonance with the basic rules of natural justice

including the one that material sought to be used against the concerned

person must be disclosed to him and he should be given an opportunity to

explain his position. This unwritten right of hearing is fundamental to a just

decision, which forms an integral part of the concept of rule of law. This

19

right has its roots in the notion of fair procedure. It draws the attention of

the authority concerned to the imperative necessity of not overlooking the

cause which may be shown by the other side before coming to its decision.

When it comes to taking of disciplinary action against a delinquent

employee, the employer is not only required to make the employee aware of

the specific imputations of misconduct but also disclose the material sought

to be used against him and give him a reasonable opportunity of explaining

his position or defending himself. If the employer uses some material

adverse to the employee about which the latter is not given notice, the final

decision gets vitiated on the ground of the violation of the rule of audi

alteram partem. Even if there are no statutory rules which regulate holding

of disciplinary enquiry against a delinquent employee, the employer is duty

bound to act in consonance with the rules of natural justice – Managing

Director, Uttar Pradesh Warehousing Corporation and another v. Vijay

Narayan Bajpayee (1980) 3 SCC 459. However, every violation of the

rules of natural justice may not be sufficient for invalidating the action taken

by the competent authority/employer and the Court may refuse to interfere if

it is convinced that such violation has not caused prejudice to the affected

person/employee.

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19.In Harish Chandra Singh’s case (supra), a three-Judge Bench of this

Court considered a somewhat similar question in the backdrop of the fact

that even though in the show cause notice, the competent authority had

proposed dismissal of the respondent, after considering his reply, a lesser

punishment i.e. removal from service was imposed upon him. The

respondent in that case had joined Police Department in 1947. He was

dismissed from service on 21.6.1951 but was reinstated in January, 1952.

He was finally removed from service in 1956. In the year 1951 itself,

punishment of reduction to the lowest scale of the post for a period of three

years was imposed on the respondent. In 1955, his pay was reduced for a

period of two years. In the course of service, the respondent had earned

fifteen rewards and commendations. In the departmental inquiry which led

to his removal from service in 1956, the respondent was found guilty of

three charges of gross negligence in the performance of his duty of

investigating the cases registered under various sections of the Indian Penal

Code. The trial Court dismissed the suit filed by the respondent. On appeal,

Additional District Judge, Varanasi decreed the same. The High Court

confirmed the appellate judgment and dismissed the second appeal preferred

by the State by observing that the respondent had not been given opportunity

to explain the past punishments which were considered by the Deputy

21

Inspector General of Police in arriving at his decision to remove the

respondent from service. While considering the question whether it was

necessary for the concerned authority to give notice to the respondent as a

condition precedent for consideration of his past punishments, this Court

referred to the factual matrix of the case and held that when the final

punishment was lesser than the proposed punishment, consideration of the

past adverse record was inconsequential. The Court referred to the

arguments urged on behalf of the State and observed:

“The learned counsel for the State contends that on the facts of

this case it is clear that the plaintiff had notice that his record

would be taken into consideration because the Superintendent

of Police had mentioned it towards the end of his order, a copy

of which was supplied to the plaintiff. In the alternative he

contends that if the record is taken into consideration for the

purpose of imposing a lesser punishment and not for the

purpose of increasing the quantum or nature of punishment,

then it is not necessary that it should be stated in the show-

cause notice that his past record would be taken into

consideration.

It seems to us that the learned counsel is right on both the

points. The concluding para of the report of the Superintendent

of Police, which we have set out above, clearly gave an

indication to the plaintiff that his record would be considered

by the Deputy Inspector General of Police and we are unable to

appreciate what more notice was required. There is also force

in the second point urged by the learned counsel. In State of

Mysore v. K. Manche Gowda (1964) 4 SCR 540 the facts were

that the Government servant was misled by the show-cause

notice issued by the Government, and but for the previous

record of the Government servant the Government might not

have imposed the penalty of dismissal on him. This is borne

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out by the following observations of Subba Rao, J., as he then

was:

“In the present case the second show cause notice

does not mention that the Government intended to

take his previous punishments into consideration in

proposing to dismiss him from service. On the

contrary, the said notice put him on the wrong

scent, for it told him that it was proposed to

dismiss him from service as the charges proved

against him were grave. But, a comparison of

paragraphs 3 and 4 of the order of dismissal shows

that but for the previous record of the Government

servant, the Government might not have imposed

the penalty of dismissal on him and might have

accepted the recommendations of the Enquiry

Officer and the Public Service Commission. This

order, therefore, indicates that the show cause

notice did not give the only reason which

influenced the Government to dismiss the

respondent from service.”

20.An analysis of the two judgments shows that while recommending or

imposing punishment on an employee, who is found guilty of misconduct,

the disciplinary/competent authority cannot consider his past adverse record

or punishment without giving him an opportunity to explain his position and

considering his explanation. However, such an opportunity is not required

to be given if the final punishment is lesser than the proposed punishment.

21.In the light of the above, we shall now consider whether the High

Court could have while recommending the appellant’s dismissal from

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service taken into consideration un-communicated adverse Annual

Confidential Reports and whether the Division Bench of the High Court was

right in distinguishing the judgment of the Constitution Bench in Manche

Gowda’s case on the ground that appellant had himself made a request for

consideration of the past record.

22.It is not in dispute that adverse remarks recorded in the Annual

Confidential Reports of the appellant for the years 1988-1989, 1989-1990,

1990-1991 and 1996-1997 were not communicated to him. It can

reasonably be presumed that if the adverse remarks were communicated to

him, the appellant would have made representation for expunging the same.

However, as the adverse remarks were not communicated to him, the

appellant could not avail that opportunity. He did not even know what were

the adverse remarks and who had recorded the same. This Court cannot

speculate about the appellant’s fate if the High Court had informed him that

there were adverse remarks in his Annual Confidential Reports which were

being relied upon for the purpose of determining the quantum of punishment

and that he can submit his representation against the same. If the appellant

was made aware that the adverse remarks relate to his work, conduct or

behaviour, he may have represented and successfully demonstrated that the

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remarks were recorded by the concerned officer without looking into the

quality and quantity of the work done by him and that there was no

complaint from any quarter regarding his conduct and behaviour. He could

have also shown that in the past no such adverse remark had been entered in

his Annual Confidential Report. If the remarks contained adverse reflection

on his integrity, the appellant could have represented that the same were

unfounded or were made due to bias or prejudice. He may have shown that

his integrity was beyond doubt and he had discharged his duties sincerely

and to the satisfaction of his superiors. However, the fact of the matter is

that the adverse remarks were not communicated to him and on that account

he could not represent against the same.

23.The ratio of Manche Gowda’s case is that the past adverse record of

the delinquent employee cannot be considered at the stage of imposing

punishment unless he is put to notice and given an opportunity to explain his

position. In the show cause notice issued to the appellant, it was not

disclosed that the High Court had considered the un-communicated adverse

remarks recorded in his Annual Confidential Reports for the purpose of

forming an opinion that he should be dismissed from service. If the

appellant had been told about this and given an opportunity to have his say

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against the un-communicated adverse remarks, he could have offered

appropriate explanation and tried to convince the concerned authority that

the remarks were either unfounded or were totally unjustified. He would

have surely pleaded that after 1996-1997 no adverse comments were made

about his work, conduct, behaviour and integrity and he had earned good

reports (even the Division Bench of the High Court had noted that his

confidential report for the year 2002-2003 was good on all counts). It is thus

clear that the appellant was seriously prejudiced on account of non-

disclosure of the fact that while recommending his dismissal from service,

the High Court had taken into consideration un-communicated adverse

remarks recorded in his four Annual Confidential Reports.

24.The inquiry was held against the appellant on three charges, the most

serious of which was that after having consumed liquor, he had misbehaved

and manhandled an accused and a constable. That charge was not found

proved. The other two charges were that he had left headquarter without

seeking permission from the Registrar General of the High Court in

violation of the direction contained in order dated 5.7.2003 and that he had

used derogatory words (merciless direction) qua the communication sent by

the High Court. There cannot be two views that being a member of the

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subordinate judiciary, the appellant was bound to comply with the direction

given by the High Court to stay at the headquarters but singular violation of

such directive or use of intemperate language in representation dated

19.7.2003 were not that serious which warranted imposition of the extreme

penalty of dismissal from service. In our view, the adverse remarks

recorded in the Annual Confidential Reports of the appellant seems to have

weighed heavily with the High Court while recommending his dismissal

from service.

25.Since the un-communicated adverse remarks contained in the Annual

Confidential Reports of the appellant became foundation of the decision

taken by the High Court to recommend his dismissal from service and he

was not noticed about the proposed consideration of those remarks, it must

be held that the appellant was seriously prejudiced. We have mentioned all

this only to reinforce the ratio of the judgment in Manche Gowda’s case

that consideration of the past adverse record without giving an opportunity

to the delinquent to explain the same can cause serious prejudice to him.

26.The Division Bench of the High Court clearly misread the

representation made by the appellant and distinguished the judgment of the

Constitution Bench in Manche Gowda’s case without any tangible reason.

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A reading of paragraph 17 of the representation made by the appellant

makes it clear that he had only mentioned that there was no report against

his integrity and honesty and he was never found guilty of any act of

insubordination or indiscipline in his service career. This assertion, cannot

by any stretch of imagination be construed as a request by the appellant for

consideration of his past record. Thus, the finding recorded by the Division

Bench of the High Court that the appellant’s cause was not prejudiced on

account of consideration of the past adverse record is clearly erroneous and

unsustainable.

27.The judgment in Harish Chandra Singh’s case is clearly

distinguishable. At the cost of repetition, we consider it necessary to

observe that the three-Judge Bench had not applied the ratio of Manche

Gowda’s case because on facts it was found that the past record had been

considered by the disciplinary authority only for the purpose of imposing a

lesser punishment on the respondent.

28.For the reasons stated above, the appeal is allowed. The impugned

order of the Division Bench of the High Court is set aside. The High Court

of Jharkhand shall now consider the issue of quantum of punishment afresh

and make fresh recommendation to the State Government within a period of

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four months from the date of receipt/production of copy of this order. If the

High Court still feels that the adverse remarks in the Annual Confidential

Reports of the appellant for the year 1988-1989, 1989-1990, 1990-1991 and

1996-1997 should be considered, then such report(s) shall be communicated

to him and he should be given an opportunity to make appropriate

representation. While making fresh recommendation for imposing the

particular punishment, the High Court is expected to take into consideration

the good as well as adverse record of the appellant. The State Government

shall pass appropriate order within three months from the date of receipt of

fresh recommendation from the High Court. The parties are left to bear their

own cost.

………………….…….…J.

[G.S. Singhvi]

……………….…………J.

[C.K. Prasad]

New Delhi

July 5, 2010.

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