Patna High Court - Orders
Rajeshwar Prasad vs The State Of Bihar And Ors on 29 November, 2022
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.822 of 2015
In
Civil Writ Jurisdiction Case No.6225 of 2011
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Rajeshwar Prasad S/o- Kuldip Mahto, R/o Village- Durgapur, P.S.- Giriyak,
District- Nalanda, Correspondence Address- C/o Anand Kumar Sinha Adv,
Mohalla- Salempur, Paijawapar, Ward No. 1, Barh,District- Patna.
... ... Appellant/s
Versus
1. The State Of Bihar and Ors
2. The Administrator, Bihar State Transport Corporation Limited, Bihar, Patna.
3. The Administration Chief, B.S.T.C. Ltd. Bihar Patna.
4. The Travellor Manager, Cum- Special Officer B.S.T.C. Ltd. Head Office,
Patna Bihar.
5. The Sub-Divisional Account Officer, Muzaffarpur Depot, Muzaffarpur.
6. The Superintendent, Sitamarhi, Depot, Sitamarhi.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Binit Kumar, Advocate
Mr. U.B. Roy, Advocate
Mr. P.K. Verma, Senior Advocate
For the Respondent/s : Mr. Anand Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
12 29-11-2022In the instant LPA, appellant has assailed the order of the learned Single Judge dated 19.01.2015 passed in C.W.J.C No 6255 of 2011. The appellant was appointed as a conductor with the respondent Corporation in the year 1979. He was alleged to have committed misdeed while discharging his duties in not issuing tickets to the number of passengers. During inspection by the Inspecting Squad the appellant was caught and Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 2/20 he could not give his explanation in not issuing tickets to passengers. On the other hand, passengers were stated to have purchased tickets from the Inspecting Squad. Based on these allegations appellant was placed under suspension on 06.02.2009 and he was charge-sheeted in a disciplinary inquiry 03.03.2009. The appellant is stated to have submitted his reply and was not satisfied by the Disciplinary Authority. Thus Disciplinary Authority proceeded to appoint inquiring and presenting officers to hold the inquiry on the alleged charges.
The Inquiring Officer is stated to have submitted his report on 20.08.2009 in holding that the charges levelled against the appellant were proved. Thereafter disciplinary authority proceeded to issue second show cause notice and on receipt of reply proceeded to impose the penalty of dismissal from service on 21.01.2010. Feeling aggrieved and dissatisfied with the order of dismissal dated 21.01.2010, the appellant has filed CWJC No. 6225 of 2011, the learned Single Judge rejected the writ petition, hence the present L.P.A. On 15.11.2022 the following order was passed:
We have noticed that appellant-
Rajeshwar Prasad was a Conductor with the respondent-Bihar State Transport Corpo- ration. He has been dismissed from service on 21.01.2010 vide Office Order No. 74 contained in Memo No. 669 issued by the Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 3/20 Administrator, Bihar State Transport Corporation, Patna. The appellant is the holder of the post of Conductor whether he is workman and it falls under the definition of Section 2(s) of the Industrial Disputes Act, 1947 or not? Section 2(s) reads as un- der:-
"(s) workman means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, dis-charged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person.
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the po-lice service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages ex- ceeding 59[ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, func-
tions mainly of a managerial nature. "
Therefore, prima facie we found that writ application under Article 226 of Constitution is not maintainable. However, it is necessary to examine with reference to various provisions of Industrial Disputes Act, 1947 read with respondent corpora- tion bye law or statute governing the Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 4/20 employees of the respon-
dent corporation. Therefore, respondent corporation counsel is hereby directed to furnish relevant statute of the respondent corporation so as to analyze what is the relationship of employer and employee. Further, he is hereby directed to produce Bihar Act, 17 of 2019 by which State of Bihar is stated to have adopted certain provisions of state amendments notified by the Andhra Pradesh. State counsel is hereby directed to apprise this Court in respect of the aforesaid issue on the next date of hearing. Relist this matter on 29.11.2022 Today learned counsel for the respondent could not apprise as to how writ petition is maintainable or not maintainable?
At this juncture he has pointed out para-4 of the counter affidavit filed in the writ petition. If the learned Single Judge has failed to consider the contention of the respondent corporation relating to non-maintainability of the writ petition.
Pursuant to the aforesaid para-4 of the counter affidavit in that event Corporation had remedy of filing review petition before the learned Single Judge or filing L.P.A. On the other hand Corporation have accepted the order of the learned Single Judge.
At threshold writ petition should have been rejected for want of jurisdiction, in view of the fact that appellant was a Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 5/20 conductor and falls under the definition of Sub Section (s) of Section 2 of the Industrial Dispute Act, 1947. The appellant without exhausting remedy under Industrial Dispute Act, 1947 directly approached in filing writ petition. At this juncture we would have directed the appellant to invoke remedy under the Industrial Dispute Act, 1947, however having regard to the fact that appellant was dismissed from service in the year 2010 and writ petition is of the year 2011 and L.P.A is of the year 2015.
Therefore, we thought of giving quietus to the litigation in L.P.A. Further we have noticed that impugned order of dismissal dated 21.01.2010 is not a speaking order. Order of dismissal dated 21.01.2010 reads as under:
fcgkj jkT; iFk ifjogu fuxe dk;kZy; vkns"k la[;k&71 fnukad 21-01-2010 ,l0Vh0iz0ds0m0¼lh0,l0½psd&01@09 Jh jkts"oj izlkn] laokgd *fuyafcr* lhekr<h izfr'Bku] eqtQ~Qjiqj izeaMy dks futh vkfFkZd ykHk ds fy, fuxe jktLo dk xou djus] dnkpkj ,oa yksd lsod in dk nq:i;ksx djus ds vkjksiksa ds fy, dk;kZy; vkns"k la[;k&99 fnukad 06-02-09 lalwfpr Kkikad&427 fnukad 06-02-09 }kjk Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 6/20 fuyafcr dj Kkikad & 742 fnukad 03-03-09 }kjk vkjksi&i= fuxZr dj foHkkxh; dk;Zokgh pyk;h x;h FkhA ftlesa bUgsa viuk i{k j[kus dks iwjk ekSdk fn;k x;kA bl foHkkxh; dk;Zokgh esa buds fo:) yxk;s x;s vkjksiksa dks izekf.kr ik;k x;k gSA vr% bUgsa vius cpko dk vafre ekSdk nsrs gq, lapkyu inkf/kdkjh ds }kjk fn;s x;s earO; dh Nk;k izfr layXu dj Kkikad & 4132 fnukad 24-11-09 }kjk f}rh; dkj.k i`PNk fd;k x;kA budk f}rh; dkj.k i`PNk esa izkIr Li"Vhdj.k larks"kizn ugha gksus ds dkj.k vLohd`r fd;k x;k gSA buds lsok bfrgkl ls Li"V gS fd fofHkUu izdkj ds vfu;ferrkvksa ,oa vuq"kklughurk ds vkjksi esa iwoZ esa vusd ckj nafMr fd;s tk pqds gS] ftlls Li"V gS fd laokgd vuq"kklughurk n"kkZus] vfu;ferrk cjrus ,oa fuxe dks gkuh igqWpkus ds vknh gSA mijksDr ds vkyksd esa Jh jkts"oj izlkn] laokgd *fuyafcr* lheke<h izfr"Bku] eqtQ~Qjiqj izeaMy dks lsok esa cus jgus dk dksbZ vkSfpR; ugha jg tkrk gS ,oa budk laok esa cus jguk fuxe fgr esa ugha gSA vr% bUgsa rRdky ds izHkko ls budh lsok fuxe dh lsok ls c[kkZLr *fMlfel* fd;k tkrk gS rFkk 1- fuyacu vo/kh esa feys thou&;kiu HkRrk ds vfrfjDr dqN Hkh Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 7/20 ns; ugha gksxkA 2- bUgsa c[kkZLrxh dh fLFkfr esa entitled jkf"k ds vfrfjDr dqN Hkh ns;k ughsa gksxkA g0@& iz"kkld Kkikad %&669 fnukad %& 21-01-2010 izfrfyfi%& forh; lykgdkj lg eq[; ys[kk inkf/kdkjh@lapkyu eq[;@iz'kkld ds lfpo@iz'kk[kk inkf/kdkjh] lkekU;@vfrfjDr izfrlfgr izeaMyh; izca/kd eqtQ~Qjiqj@izfr"Bku v/kh{kd] lhrke<h rFkk lacaf/kr O;fDr dks lwpukFkZ ,oa vko";d dkjZokbZ gsrq izsf"krA g0@& iz"kkld Kki la[;k%&236 eqt0@fnukad %& 23-1-2010 izfrfyfi%& izeaMyh; ys[kk inkf/kdkjh eqtQ~Qjiqj] izfr"Bkku v/kh{kd lhrke<h ,oa lacaf/kr O;fDr dks lwpukFkZ ,oa vko";d dkjokbZ gsrq vxzlkfjrA g0@& izeaMyh; izca/kd Perusal of the dismissal order it is crystal clear that Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 8/20 Disciplinary Authority has not applied his mind. Disciplinary Authority is exercising quasi-judicial function under the standing orders called Bihar State Road Transport Corporation vide the Industrial Employment (Standing Orders Act, 1946).
Item no. 3 of the standing order is in respect of the workman shall classified as "Permanent workman is also a workman".
Item no. 22 relates to punishment for misconduct sub clause (8) is relating to discharge or dismissal from service (II) it reads as under:
In awarding punishment, the Chairman/Managing Director/Divisional Manager/Work Manager/Regional Works Manager or any competent authority may take into account the gravity of misconduct, previous records/if any, of the employee and any other extenuating or, aggravating circumstances that may exist.
In the present case, Disciplinary Authority has resorted to impose penalty of dismissal from service in such circumstances it was bounden duty of the Disciplinary Authority to pass reasoned order, since he is exercising quasi-judicial function under the standing orders of the respondent Corporation. At this stage it is relevant to take note of Apex Court decision in the case of "Kranti Associates (P) Ltd. v. Masood Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 9/20 Ahmed Khan, (2010) 9 SCC 496, it is held as under:
47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-
making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 10/20 the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision- making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 11/20 reasons for the decision is of the essence and is virtually a part of "due process".
In the light of the principle laid down by the Apex Court and reading of dismissal order it is crystal clear that dismissal order is not a speaking order. Any orders which are subjected to judicial review must be reasoned order, in order to ascertain the mind of the authority.
Further Apex Court in the case of Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732 Apex Court reiterated that the decision or the quasi-judicial authorities were to be reasoned one.
In the light of these facts and circumstances, the appellant has made out a prima facie case so as to interfere with the order of dismissal dated 21.01.2010 read with the order of the learned Single Judge dated 19.01.2015 passed in C.W.J.C No. 6255 of 2011.
Accordingly they are set aside. The matter is remanded to the Disciplinary Authority to pass a fresh order after due consideration of each and every relevant material and Disciplinary Authority is hereby directed to pass a fresh speaking order within a period of three months from the date of receipt of this order. The intervening period from the date of dismissal dated 21.01.2010 till passing of fresh order is required Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 12/20 to be regulated, depending upon the final order to be passed. In this regard Disciplinary Authority is hereby directed to pass a separate speaking order whether appellant is entitled to any monetary service benefits during the period of 21.01.2010 till passing of fresh order in the disciplinary proceedings. In the light of Apex Court's decisions in the case of ECIL v. B. Karunakar, (1993) 4 SCC 727 read with Chairman-cum-
Managing Director, Coal India Limited & Ors. V. Ananta Saha and Others reported in (2011) 5 SCC 142 and the State of Uttar Pradesh and Others vs. Prabhat Kumar, 2022 LiveLaw (SC) 736
46.K. RAMASWAMY, J.-- I have had the benefit of reading the draft judgment of my learned brother P.B. Sawant, J. While broadly agreeing with his interpretation of Article 311(2), I disagree with his conclusion that the application of Mohd. Ramzan Khan [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 :
(1991) 16 ATC 505] ratio to him and his companions was per incuriam. To deal with certain aspects which would flow from our judgment in this batch too, I feel it expedient to express my views. Since my learned brother has critically examined in extenso the historical development and the interpretation given to Section 240(3) of the Government of India Act, 1935 and Article 311(2) of the Constitution of India vis-a-vis the Constitution (Fifteenth Amendment) Act, 1963 and the Constitution (Forty-second Amendment) Act, 1976, I would desist to Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 13/20 tread the path once over. For continuity of thought, I would broadly sketch the scope of the phrase "reasonable opportunity of being heard" at an inquiry into a charge and the action proposed to be taken against a member of a civil service or holder of a civil post engrafted in Article 311 of the Constitution and the concept of the principles of natural justice embedded as its part at an inquiry into the charges against an employee or workman/officer of an authority under Article 12 of the Constitution, a workman/officer of an employer compendiously called "the delinquent" as the same principles are applicable to them all. Before doing so it is necessary to state facts in brief in some sample cases.
47. The respondent B. Karunakar in the main appeal while working as a Senior Technical Officer, was served on December 27, 1986 with a Memorandum of Charges setting out the misconduct said to have been committed by him, with details thereof that he had unauthorisedly sold T.V. sets. The enquiry officer appointed in this behalf conducted the inquiry, recorded the evidence, giving him adequate opportunity to rebut the evidence. On March 13, 1987 the enquiry officer submitted his report finding that the respondent acted fraudulently and dishonestly in conducting the business of the appellant company and acted thereby prejudicially to the interest of the company. On its consideration and agreeing with the findings, the disciplinary authority, by proceedings dated April 27, 1987, removed him from service and on appeal it was confirmed. The Single Judge of Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 14/20 the Andhra Pradesh High Court dismissed his writ petition but on appeal, the Division Bench, by judgment dated March 29, 1991 relying on the Union of India v. Mohd. Ramzan Khan [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505] allowed it. In this case the rules framed by the company do not require the supply of the copy of the report to the delinquent. In Civil Appeal No. 4148 of 1991 Union of India v. A.J. Shah the respondent, while working as T.T.E. in S.E. Railway, was found to have collected excess amounts from the passengers. The enquiry officer, after giving an opportunity to the respondent, submitted his report and the disciplinary authority agreeing with the findings of guilt recorded by the enquiry officer, reverted him to the grade of Ticket Collector in the pay scale of Rs 950-1500 fixing his initial pay as Rs 950. The CAT at Cuttack set it aside as the enquiry report was not supplied to him holding that it resulted in denial of opportunity and violates the principles of natural justice. In Civil Appeal No. ... of 1993 (arising out of SLP (C) No. 13813 of 1992) State of M.P. v. A. Sheshagiri Rao the respondent, while working as Executive Engineer, was suspended by order dated July 21, 1983. On October 21, 1983 he was served with a charge-sheet. After conducting an inquiry the enquiry officer submitted his report and the disciplinary authority while agreeing with the findings of guilt, reverted him by an order dated October 21, 1987 as an Asstt. Engineer. It was set aside by the Tribunal, holding that non-supply of the enquiry report was denial of opportunity under Article 311(2) and it violates the Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 15/20 principle of natural justice. In C.A. No. ... of 1993 (arising out of SLP (C) No. 17484 of 1991) Union of India v. Mohammed Naimulla the respondent was working as an electrical fitter. On March 11, 1983 a charge-sheet was issued. The enquiry officer had given him reasonable opportunity and after completing the inquiry submitted his report that the charges were proved against the respondent. The disciplinary authority by an order dated April 29, 1988 removed him from service. On appeal, it was confirmed. The Tribunal set aside the order. In all these cases the enquiry report was not supplied. In C.A. No. 302 of 1992, Bank of India v. Vinodchandra Balkrishan Pandit the respondent was served with a charge-sheet on August 10, 1982 accusing him of having committed misconduct by taking illegal gratification in his discharge of official duties. The enquiry officer after giving full opportunity found him to have received illegal gratification in the stated instances and was guilty of the charges. The disciplinary authority agreed with the findings of the enquiry officer; removed him from service by supplying him a copy of the enquiry report along with the order of removal as required under Regulation 9 of the Bank of India Employees (Disciplinary Appeal) Regulations, 1976. Following the Ramzan Khan case [(1991) 1 SCC 588 :
1991 SCC (L&S) 612 : (1991) 16 ATC 505] the order was set aside. These facts have been stated with a view to illustrate that Ramzan Khan [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505] ratio was applied by the Courts/Tribunals to the cases where rules are either absent, or Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 16/20 statutory rules were amended after Constitution (Forty-second Amendment) Act, 1976, omitting the obligation to supply a copy of the enquiry report. The Banking Regulations enjoins to supply it along with the order when served.
48. It is settled law that the disciplinary authority, by whatever name called, has power and jurisdiction to inquire into the misconduct by himself or by his delegate and to impose the penalty for proved misconduct of a delinquent. It is a condition precedent that the charge-sheet, statement of facts in support thereof and the record, if any, need to be supplied to the delinquent. The record, if bulky and not having been supplied, an opportunity for inspection and to have copies thereof at his expenses, be given as per rules, regulations or standing orders. The delinquent must be given reasonable opportunity to submit his written statement. In case he denies the charges and claims for inquiry, disciplinary authority or the enquiry officer, if appointed, shall conduct the inquiry. The department should examine the witness or prove the documents to establish the charge of the imputed misconduct. The delinquent shall be given an opportunity to cross-examine the witnesses, if he so desires to examine himself and to examine his witnesses in rebuttal. After giving an opportunity of being heard the enquiry officer should consider the entire records and the evidence and should submit his report to the disciplinary authority with reasons and findings or conclusions in support of the proof or disproof of each of the charge or charges, as the case may be. He shall transmit the record of inquiry and Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 17/20 his report to the disciplinary authority.
In Khem Chand v. Union of India [1958 SCR 1080 : AIR 1958 SC 300 : (1958) 1 LLJ 167] it was held thus:
49."If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. If the purpose of this provision is to give the Government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case."
Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 18/20
50. In Bachhittar Singh v. State of Punjab [AIR 1963 SC 395 : 1962 Supp (3) SCR 713] another Constitution Bench held that the departmental proceedings taken against the Government servant are not divisible into two compartments. There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges raised against the Government servant have been established or not and the second is reached only if it is found that they are established. That stage deals with the action to be taken against the Government servant concerned. Therefore, from the stage of service of the charge-sheet till the imposition of punishment was considered to be a continuous whole process consisting of the proof of the charge and imposition of the punishment on the proved charge. In Dr M.N. Dasanna v. State of A.P. [(1973) 2 SCC 378 at 383 : 1973 SCC (L&S) 521] a Bench of three Judges held that the inquiry consists of recording evidence, admitting documents and generally completing the records upon which the finding would be based. It is only after all the material has been placed on record by both the sides, the stage of recording a finding would arise. In Khardah Co. Ltd. v. Their Workmen [(1964) 3 SCR 506 : AIR 1964 SC 719 : (1963) 2 LLJ 452] a Bench of three Judges held that it is the duty of the enquiry officer to record clearly and precisely his conclusions and to indicate briefly the reasons therefor, so that the Industrial Tribunal can judge whether they are basically erroneous or perverse. In that case since the reasons were not specifically recorded the Court quashed the order of Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 19/20 termination. In Union of India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 :
(1964) 1 LLJ 38] another Constitution Bench held that the enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act, i.e. only the purpose for the inquiry held by the competent officer and the report on which he makes as a result of the said inquiry. The non-supply of the copy of the report contravenes the principle of reasonable opportunity envisaged under Article 311(2) and also violates the principle of natural justice. If the dismissal order is based on no evidence then the order of dismissal is clearly illegal. In State of Maharashtra v. B.A. Joshi [(1969) 1 SCC 804 : (1969) 3 SCR 917] this Court held that the report of the enquiry officer is bound to influence the disciplinary authority; to deprive the plaintiff of a copy of the report was a handicap to the delinquent as he was not knowing what material had influenced the disciplinary authority. Therefore, it was held that it would be in a rare case in which it can be said that the Government servant was not prejudiced by the non-supply of the report of the enquiry officer. Accordingly the finding of the High Court holding that non-
supply of the report violates the principles of natural justice and the statutory provision was upheld by a Bench of three Judges. In State of Gujarat v. R.G. Teredesai [(1969) 2 SCC 128 : (1970) 1 SCR 251] a Bench of three Judges held that the enquiry officer was under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental inquiry was Patna High Court L.P.A No.822 of 2015(12) dt.29-11-2022 20/20 held. Its function was merely to conduct the inquiry in accordance with the law and to submit the record along with his findings or conclusions on the delinquent. If the enquiry officer has also made recommendation in the matter of punishment, that is likely to affect the mind of the punishing authority with regard to the penalty or punishment to be imposed on such officer, it must be disclosed to the delinquent. Since such recommendation form part of the record and constitutes appropriate material for consideration, it would be essential that the 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 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.
With the above observation, the present L.P.A stands allowed in part.
(P. B. Bajanthri, J) ( Purnendu Singh, J) aditya/minu U