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CASE NO.:

Appeal (civil) 2067 of 2005

PETITIONER:

Union of India & Anr

RESPONDENT:

T.V. Patel

DATE OF JUDGMENT: 19/04/2007

BENCH:

H.K. SEMA & V.S. SIRPURKAR

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 2067 OF 2007

(Arising out of S.L.P.( C ) No. 11651 of 2005)

WITH

CIVIL APPEAL NO. 2071,2072, 2068, 2069 OF 2007

(Arising out of S.L.P.(C) Nos. 19594, 26333 of 2005, 8470,

10225 and 12656 of 2006 AND C.A. No. 3628 OF 2006)

H.K.SEMA,J.

Leave granted.

These appeals preferred by the Union of India arise

out of a common question of facts and law and they are being

disposed of this common order. The facts are identical. For

the sake of brevity we are taking facts from S.L.P (C) No.

11651 of 2005.

The facts in compendium are as follows:

The respondent was functioning as SDO (Phone) at

Navsari Telephone Exchange. He was found to have been

involved in providing telephone connection in contravention of

the P & T Manual thereby causing huge avoidable financial

loss to the Department. A memorandum and the article of

charges framed against the respondent are coined in identical

in language. A memorandum dated 30.06.1997 along with the

substance of imputation of conduct was served on the

respondent.

The statement of article of charge framed against

the respondent are as follows:-

"That the said Shri T.V. Patel while functioning

as SDOP, Navsari, during the period 1996-96,

deliberately provided seven telephone

connections from Navsari Telephone Exchange

to subscribers of Munsad Village falling within

the local area of Ugat Telephone Exchange,

with ulterior motive and in contravention of

Paras 11(A) & (B) of P&T Manual Vol.XII, Part-

I; and the connections thus irregularly

provided, had to be got closed by the Telecom

District Manager, Valsad. The said Shri T.V.

Patel thereby caused a huge avoidable loss to

the Department by incurring unnecessary

expenditure towards stores and labour. Thus

by his above acts, the said Shri T.V. Patel

committed grave misconduct, failed to

maintain absolute integrity, exhibited lack of

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devotion to duty and acted in a manner

unbecoming of a Government servant, thereby

contravening Rule 3(1)(i), (ii) and (iii) of the

CCS (Conduct) Rules, 1964."

List of documents and prosecution witnesses sought

to be relied during the inquiry were also supplied along with

the article of charge.

During the inquiry the respondent was given an

opportunity of fair hearing and the Inquiry Officer submitted

its report holding that the charges were not proved. The

Disciplinary Authority disagreed with the report and issued a

notice to the respondent providing the reasons for

disagreement and calling upon the respondent to make

representation, if any, by its order dated 1.4.1999. On

4.5.1999, the respondent made a representation to the said

notice. This was rejected.

The Disciplinary Authority, thereafter, sought the

advice of the Union Public Service Commission (UPSC) and

after considering the advice of the UPSC imposed a penalty of

reduction of pay by one stage in the time scale of pay till

30.11.2001, without cumulative effect by an order dated

15.11.2000. A copy of the advice obtained from UPSC was

also sent along with the final order of penalty.

Aggrieved thereby, the respondent filed O.A.No.96 of

2001 challenging the final order passed on 15.11.2000 before

the Central Administrative Tribunal (CAT) Ahmedbad Bench

on various grounds. The Tribunal after considering various

grounds urged before it, set aside the order dated 15.11.2000

passed by the Disciplinary Authority imposing the penalty.

One of the grounds, which persuaded the Tribunal to come to

the aforesaid conclusion, is recorded in paragraph 12 of the

judgment:

"We also note that the copy of UPSC advice

was not made available to the applicant.

Under the circumstances we quash and set

aside of the penalty imposed on the applicant

and direct the respondents to take a decision

after supplying a copy of the UPSC report and

having regard to principles stated in para 10 &

11 above. The OA is allowed with these

directions. No costs."

Aggrieved thereby, the appellant unsuccessfully

filed Special Civil Application being No.17027 of 2004 before

the High Court urging various grounds. The High Court

dismissed the Special Civil Application on the sole ground that

a copy of advice tendered by the UPSC was not supplied to the

delinquent officer to enable him to represent. According to the

High Court, the said advice tendered by the UPSC, a copy of

which should be made available to the delinquent officer so as

to enable him to afford an effective representation to the

punishment proposed and such advice tendered by the UPSC

a copy of which having not been supplied to the delinquent

officer before the order of imposing a penalty was passed,

there is violation of principles of natural justice and vitiates

the inquiry.

Admittedly, in the present case, the UPSC tendered

its advice and a copy of the advice tendered by the UPSC was

sent along with the copy of the final order dated 15.11.2000

imposing the penalty, to the delinquent officer.

The question that calls for determination is as to

whether a copy of the advice tendered by the UPSC is to be

furnished along with the order of penalty or before the passing

of an order imposing final penalty.

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In Swamy's Compilation of CCS CCA Rules, Rule 15

deals with the action on the inquiry report.

Sub-rule (3) of Rule 15 reads as under:

"(3) If the Disciplinary Authority having regard

to its findings on all or any of the articles of

charge is of the opinion that any of the

penalties specified in Clauses (i) to (iv) of Rule

11 should be imposed on the Government

servant, it shall, notwithstanding anything

contained in Rule 16, make an order imposing

such penalty:

Provided 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 any order

imposing any penalty on the Government

servant.

Part IX of the CCS Rules deals with Miscellaneous.

Rule 32 deals with Supply of copy of Commission's advice. It

reads:

"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."

In the aforesaid premises, Mr. B.Datta, learned

ASG, contended that a consultation with the UPSC under

Article 320 (3)(c) is not mandatory and the advice tendered, if

any, by the UPSC is not binding on the Disciplinary Authority.

It is further contended that such advice would not confer any

rights on a pubic servant so that the absence of consultation

or any irregularity in consultation does not afford him a cause

of action in a court of law. He further contended that even

otherwise Rule 32 of the Rules is clear that a copy of such

advice shall be furnished to the delinquent servant along with

a copy of the order passed in the case, by the authority

making the order.

There is substance in the contention of Mr. Datta,

learned ASG.

As already noticed, Rule 32 of the Rules deals with

the supply of a copy of Commision's advice. Rules as read as

it is mandatory in character. Rule contemplates that

whenever a Commission is consulted, as provided under the

Rules, a copy of the advice of 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 along with a copy of the order passed in

the case, by the authority making the order. Reading of the

Rule would show that it contemplates two situations; if a copy

of advice is tendered by the Commission, the same shall be

furnished to the government servant along with a copy of the

order passed in the case by the authority making the order.

The second situation is that if a copy of the advice tendered by

the Commission has not been accepted, a copy of which along

with a brief statement of the reasons for such non-acceptance

shall also be furnished to the government servant along with a

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copy of the order passed in the case, by the authority making

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.

Article 320 of the Constitution deals with the

functions of Public Service Commission and provides that it

shall be the duty of the Union and the State Public Service

Commissions to conduct examinations for appointments to the

services of the Union and the services of the State respectively.

Article 320(3)(c ) reads:-

(a)\005\005\005\005.

(b)\005\005\005\005.

(c) on all disciplinary matters affecting a

person serving under the Government of India

or the Government of a State in a civil

capacity, including memorials or petitions

relating to such matters;

\005\005\005..

\005\005\005..

Provided that the President as respects

the all-India services and also as respects

other services and posts in connection with the

affairs of the Union, and the Governor, as

respects other services and posts in connection

with the affairs of a State, may make

regulations specifying the matters in which

either generally, or in any particular class of

case or in any particular circumstances, it

shall not be necessary for a Public Service

Commission to be consulted.

A Constitution Bench of this Court in the case of

State of U.P. vs Manbodhan Lal Srivastava, 1958 SCR

533, considered the question as to whether the consultation

of the Commission under Article 320(3)(c) is mandatory and

binding on the appropriate authority.

The arguments that the non-compliance of Article

320(3)(c) vitiates the order passed by the appropriate authority

have been repelled by the Court at SCR.pp 543-544:-

"Perhaps, because of the use of word "shall" in

several parts of Art. 320, the High Court was

led to assume that the provisions of Art.

320(3)(c) were mandatory, but in our opinion,

there are several cogent reasons for holding to

the contrary. In the first place, the proviso to

Art. 320, itself, contemplates that the

President or the Governor, as the case may be,

"may make regulations specifying the matters

in which either generally, or in any particular

class of case or in particular circumstances, it

shall not be necessary for a Public Service

Commission to be consulted." The words

quoted above give a clear indication of the

intention of the Constitution makers that they

did envisage certain cases or classes of cases

in which the Commission need not be

consulted. If the provisions of Art. 320 were of

a mandatory character, the Constitution would

not have left it to the discretion of the Head of

the Executive Government to undo those

provisions by making regulations to the

contrary. If it had been intended by the makers

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of the Constitution that consultation with the

Commission should be mandatory, the proviso

would not have been there, or, at any rate, in

the terms in which it stands. That does not

amount to saying that it is open to the

Executive Government completely to ignore the

existence of the Commission or to pick and

choose cases in which it may or may not be

consulted. Once, relevant regulations have

been made, they are meant to be followed in

letter and in spirit and it goes without saying

that consultation with the Commission on all

disciplinary matters affecting a public servant

has been specifically provided for, in order,

first, to give an assurance to the Services that

a wholly independent body, not directly

concerned with the making of orders adversely

affecting public servants, has considered the

action proposed to be taken against a

particular public servant, with an open mind;

and, secondly, to afford the Government

unbiassed advice and opinion on matters

vitally affecting the morale of public services. It

is, therefore, incumbent upon the Executive

Government, where it proposes to take any

disciplinary action against a public servant, to

consult the Commission as to whether the

action proposed to be taken was justified and

was not in excess of the requirements of the

situation.

Secondly, it is clear that the requirement of

the consultation with the Commission does not

extend to making the advice of the

Commission on those matters, binding on the

Government. Of course, the Government, when

it consults the Commission on matters like

these, does it, not by way of a mere formality,

but, with a view to getting proper assistance in

assessing the guilt or otherwise of the person

proceeded against and of the suitability and

adequacy of the penalty proposed to be

imposed. If the opinion of the Commission

were binding on the Government, it may have

been argued with greater force that non-

compliance with the rule for consultation

would have been fatal to the validity of the

order proposed to be passed against a public

servant. In the absence of such a binding

character, it is difficult to see how non-

compliance with the provisions of Art. 320(3)(c)

could have the effect of nullifying the final

order passed by the Government.

Thirdly, Art. 320 or the other articles in

Chapter II of Part XIV of the Constitution deal

with the constitution of the Commission and

appointment and removal of the Chairman or

other members of the Commission and their

terms of service as also their duties and

functions. Chapter II deals with the relation

between Government and the Commission but

not between the Commission and a public

servant. Chapter II containing Art. 320 does

not, in terms, confer any rights or privileges on

an individual public servant nor any

constitutional guarantee of the nature

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contained in Chapter I of that Part,

particularly Art. 311. Article 311, therefore, is

not, in any way, controlled by the provisions of

Chapter II of Part XIV, with particular

reference to Art. 320."

Finally, at page SCR p.547 it was held as under:

"We have already indicated that Art. 320(3)(c)

of the Constitution does not confer any rights

on a public servant so that the absence of

consultation or any irregularity in

consultation, should not afford him a cause of

action in a court of law, or entitle him to relief

under the special powers of a High Court

under Art. 226 of the Constitution or of this

Court under Art. 32. It is not a right which

could be recognized and enforced by a writ. On

the other hand, Art. 311 of the Constitution

has been construed as conferring a right on a

civil servant of the Union or a State, which he

can enforce in a court of law. Hence, if the

provisions of Art. 311, have been complied

with in this case - and it has hot been

contended at any stage that they had not been

complied with - he has no remedy against any

irregularity that the State Government may

have committed. Unless, it can be held, and we

are not prepared to hold, that Art. 320(3)(c) is

in the nature of a rider or proviso to Art. 311,

it is not possible to construe Art. 320(3)(c) in

the sense of affording a cause of action to a

public servant against whom some action has

been taken by his employer."

The decision of the Constitution Bench in

Srivastava (supra) was reiterated by a three Judge Bench of

this Court in the case of Ram Gopal Chaturvedi vs. State

of Madhya Pradesh, 1969 (2) SCC 240, it was held in

paragraph 7 of the judgment as under:-

"It was argued that the impugned order was

invalid as it was passed without consulting the

State Public Service Commission under Article

320(3)(c) of the Constitution. There is no merit

in this contention. The case of State of U.P. v.

M.L. Srivastava 1958 SCR 533 decided that

the provisions of Article 320(3)(c) were not

mandatory and did not confer any rights on

the public servant and that the absence of

consultation with the State Public Service

Commission did not afford him a cause of

action."

Counsel for the respondent contended that non-

supply of a copy of the advice tendered by the UPSC before the

final order was passed deprived the delinquent officer of

making an effective representation and therefore it vitiates the

order. To support his contention he referred to the decision of

this Court rendered in the case of State Bank of India v.

D.C. Aggarwal, (1993) 1 SCC 13, where this Court held that

the disciplinary authority, while imposing punishment, major

or minor, cannot act on material which is neither supplied nor

shown to the delinquent. Imposition of punishment on an

employee, on material which is not only not supplied but not

disclosed to him, cannot be countenanced. Procedural

fairness is as much essence of right and liberty as the

substantive law itself.

He also referred to the decision of this Court in the

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case of Managing Director, ECIL, Hyderabad vs.

B.Karunakar, (1993) 4 SCC 727, where this Court dealt with

the non-furnishing of the inquiry report to the delinquent

officer. The facts of the aforesaid decision are distinguishable

from the facts of the case at hand. The aforesaid decisions are

not relevant for the purpose of adjudication of the case at

hand.

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.

In the view that we have taken we allow these

appeals. The orders of the High Court and the Tribunal, to the

extent indicated above, are set aside. This takes us to

consider as to whether the matter be remitted back to the High

Court or the Tribunal to deal with the other various grounds

raised by the delinquent government officers.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 11651 OF 2005

(Union of India & Anr. v. T.V. Patel)

The Tribunal had elaborately dealt with the

contentions of both sides on merits. The Writ Petition of the

Union of India before the High Court also raised many

grounds to be dealt with on merits. However, the High Court

has only dealt with the question of non-supply of copy of

advice tendered by the UPSC before the passing of the order of

punishment which has already been dealt with by us. SCA

No.17027 of 2004 is now restored to the file of the High Court.

The matter is remitted back to the High Court for disposal on

merit on other grounds urged before the Court.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 19594 OF 2005

(Union of India & Ors. v. Avinash Kumar Srivastava)

In this case also the High Court dismissed the SCA

No. 15316 of 2004 filed by the appellant challenging the order

of CAT. The High Court dismissed the writ petition solely on

the ground of non-supply of copy of advice tendered by the

UPSC to the respondent before the final order was passed.

The respondent did not prefer any writ petition before the High

Court challenging the order of Tribunal. Many grounds were

urged before the Tribunal. However, the Tribunal decided the

issue only on ground of non-supply of copy of the advice

tendered by the UPSC before the final order was passed.

O.A.No.206 of 2004 is restored to the file of the Tribunal and

is remitted back to the Tribunal to consider the other grounds

urged before the Tribunal.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 26333 OF 2005

(Union of India & Ors. v. S.K. Agrawal)

Both the High Court and the Tribunal disposed of

the case only on the ground of non-supply of copy of the

advice tendered by the UPSC to the delinquent officer before

the passing of the final order impinged the principles of

natural justice. The other grounds urged before the Tribunal

in O.A.No.451 of 2003 have not been considered by the

Tribunal. O.A.No.451 of 2003 is restored to the file of the

Tribunal and the matter is remitted back, to consider on

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merits all other grounds urged before the Tribunal.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 8470 OF 2006

(Union of India & Ors. v. P.K. Saha & Anr.)

In this case also the Tribunal has decided solely on

the ground that a copy of the advice tendered by the UPSC has

not been furnished to the delinquent government servant

before the final order was passed. In view of our order,

O.A.No.627 of 2000, is now restored to the file of the Tribunal

and the Tribunal shall now deal with the other grounds urged

before the Tribunal on merits.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 10225 OF 2006

(Union of India & Ors. v. N.J. Paulose)

In this case, both the High Court and Tribunal

disposed of the case solely on the ground of non-supply of a

copy of the advice tendered by the UPSC before the final order

was passed. In view of our order, O.A.No.490 of 2002 is now

restored to the file of the Tribunal and the matter is remitted

back to the Tribunal, to deal with the other grounds urged

before it and pass appropriate orders in accordance with law.

CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO. 12656 OF 2006

(Union of India & Ors. v. V.K. Sajnani)

The respondent has challenged the main order

before the Tribunal by filing O.A.No.208 of 2002. The Tribunal

by an order dated 17.10.2003 considered the entire grounds

on merits and dismissed the petition. Aggrieved thereby, he

filed SCA No.1071 of 2004 urging many grounds. The Division

bench of the High Court by the impugned order set aside the

order of the Tribunal solely on the ground of non-supply of

copy of the advice tendered by the UPSC before the final order

was passed by the authority. The High Court has not decided

other grounds urged before the High Court in SCA No.1071 of

2004. In view of our order, SCA No.1071 of 2004 is now

restored to the file of the High Court. The High Court shall

decide the other grounds urged before the High Court and

dispose of the matter in accordance with law.

CIVIL APPEAL NO. 3628 OF 2006

(Union of India v. Ashok Kumar Tiwari)

In this case, both the High Court and the Tribunal,

disposed of the matter only on the ground of non-supply of

copy of advice tendered by the UPSC before the final order was

passed. In view of our order, O.A.No.271 of 2003, is now

restored to the file of the Tribunal and the matter is remitted

back. The Tribunal shall consider other grounds urged before

it and pass appropriate order in accordance with law.

The appeals are allowed in the above terms. No

costs.