Bombay High Court
Suryakant Dattatray Shinde vs The Union Of India And Ors. on 16 March, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally
2026:BHC-AS:14790-DB
signed by
VIDYA
14.WP4202_2012.DOC
VIDYA SURESH
SURESH AMIN
AMIN Date:
2026.03.27
15:33:36
+0530
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4202 OF 2012
Suryakant Dattatray Shinde ... Petitioner
Versus
The Union of India & Ors. ... Respondents
_________
Mr. Rajeshwar G.Panchal a/w. Mr. Sarang Gundajwar, Mr. Kailas Jadhav and Mr.
Vivekanand G. Panchal for the petitioner.
Mr. Vishal Talsania a/w. Mr. Mohammed Oomar Shaikh i/b. M.V. Kini for
respondent nos. 2 and 3.
__________
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 16 MARCH 2026
Oral Judgment (Per G. S. Kulkarni, J.) :-
1. This petition under Article 226 of the Constitution of India seeks a relief
that the punishment of compulsory retirement dated 28 March, 2011 imposed on
the petitioner by the appellate order, be quashed and set aside and for a further
relief that the respondents be directed to hold and declare that the prior orders
dated 30 March, 2009 issued by respondent no. 3 and order dated 7 November,
2009 issued by respondent no. 2, terminating the petitioner's service be quashed
and set aside and the petitioner be reinstated on the post of Assistant Security
Officer with all consequential benefits. The substantive prayers as made in the
petition are required to be noted, which reads thus:
"a) that this Hon'ble Court be pleased to issue a writ of Certiorari or a
writ in the nature of Certiorari or any other appropriate writ, order or
direction to the respondents to produce the record and proceedings relating
to the impugned order of punishment of compulsory retirement dated
28/3/2011 (Exhibit A Hereto) and after going through the legality and
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validity thereof, be further pleased to quash and set aside the same.
b) that this Hon'ble Court be further pleased to issue a writ of
Mandamus or a writ in the nature of Mandamus or any other appropriate
writ, order or direction tot he respondents to hold and declare that the orders
dated 30/3/2009 issued by the respondent no. 3 (Exhibit 'X') and orders
dated 7/11/2009 issued by respondent no. 2 (Exhibit 'Y') are quashed and
set aside and further order the respondent nos. 2 and 3 to reinstate the
petitioner in his post of Assistant Security Officer with immediate effect;
c) that this Hon'ble Court be further pleased to issue a writ of
Mandamus or a writ in the nature of Mandamus or any other appropriate
writ, order or direction to the respondents to hold that the petitioner be
deemed to be in continuous service and with all consequential benefits, back
wages and continuity of service from the date of order of removal from
service issued by respondent no. 3 (Exhibit 'X' hereto).
2. The relevant facts are required to be noted: The petitioner joined the
service of Mumbai Port Trust, which is arrayed as respondent no. 2. The
petitioner was suspended from service in contemplation of Departmental Enquiry
in 2003. However, on 28 September, 2004 the petitioner was reinstated in
service. In this backdrop, the petitioner stated that another charge sheet was
issued by the respondents containing eight Articles of charges, which are required
to be noted:
"ARTICLE I: Shri Shinde did not inform his superiors about the raid conducted
by the officials of ACB at his residence at Nerul in July, 2003. By
committing the above misconduct, Shri Shinde has violated
Regulation 3(1) of MbPT Employees (Conduct) Regulations
1976.
ARTICLE II: Shri Shinde, being and Assistant Security Officer, failed to follow
proper procedure of lodging police complaint when he came to
know about the illegal activities of S/Shri Narsing Modi, Shaka
Babu, Suleman, Rajaram,and one lady named Lalhan Banu alias
Telwali Bhabi.
By committing the above misconduct, Shri Shinde has violated
Regulation 3(1A) (i) of the MbPT Employees (Conduct)
Regulations, 1976.
ARTICLE III: Shri Shinde proceeded on leave to his native place from 12th
June 1998 to 17th June, 1998 without ensuring that his leave has
been sanctioned by leave sanctioning authority.
By committing the above misconduct, Shri Shinde has violated
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Regulation 3(1A) (ii) of the MbPT Employees (Conduct)
Regulations 1976.
ARTICLE IV: (1) During the 2nd shift of 21st July 2003, Shri hinde was posted
at 'B' Zone and he left the office premises one hour and fifteen
minutes before the closure of duty hours i.e at 2215 hrs.
(2) During the IInd shift of 12th August 2003, Shri Shinde was
posted at 'C' Zone and he deserted his place of duty for nearly
21½ hours i.e. from 1700 hrs to 1930 hrs.
(3) On 20th Sept 2003, Shri Shinde was posted at Port Trust
Hospital and was found missing from his place of duty from 1100
hrs to 1400 hrs and again from 1445 hrs till the end of the shift.
(4) On 6th October, 2003 Shri Shinde did not report for duty at
Port Trust Hospital at the reporting time i.e. 1000 hrs but
reported to the duty place at 1700 hrs i.e right from 1000 hrs to
1700 hrs he was missing from his place of duty.
(5) On 11th October, 2003, Shri Shinde was found missing from
his place of duty from 1330 hrs to 1630 hrs.
(6) on 22nd October, 2003, Shri Shinde was found missing from
his place of duty from 1100 hrs to 1600 hrs.
(7) On 24th October, 2003 shri shinde was found missing from
his place of duty from 1300 hrs to 1630 hrs.
(8) Shri Shinde failed to lodge a complaint with the police when
the wind screen glass of the Security jeep in which he was going
to Frere basin yard (for checking) was damaged by a miscreant
who threw stone at it and ran away;
(9) Shri Shinde had removed Shri A.J. Gosavi Sr. Security Guard
and Shri B.K.Bhalerao, Sr. Security Gurad from their duty points
on 7/4/1999 and 9/4/1999 respectively and took them alongwith
him leaving their duty points unattended.
By committing the above misconducts, Shri Shinde has violated
Regulation 3(1A) (iii) of MBPT Employees (Conduct)
Regulations, 1976.
ARTICLE V: (1) In the case of theft of ball bearings by one Shri Jeetendra
Gupta, Shri Shinde was directed by the CSO to obtain the copy
of panchanama carried out by Customs and forward the same to
Security Head Quarters. However Shri Shinde made considerable
delay in following the above orders.
(2) Shri Shinde had refused to accept a memo wherein Shri
Shinde was requested to furnish the source of funding of the car
as Shri Shinde had earlier stated that the car was purchased by his
father which was being used by him and whether his father gets
income from any source. By committing the above misconducts,
Shri Shinde has violated Regulation 3)1A)(vi) of MbPT
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Employees (Conduct) Regulations, 1976.
ARTICLE VI: (1) Shri Shinde entered Wadala Incinerator Container Yard on
24.09.1997 in a private car with five persons, who were not
holding DEPS.
(2) Shri Shinde while functioning as a Assistant Security Officer
had allowed Dr. (Mrs) Kalpana .S.Shinde and Dr. K.D.Shinde to
use MbPT residential quarters allotted to him at Vineet Nagar
and Telephone No. 3781738 for their personal and commercial
gains. Both the residential quarters and telephone were allotted to
Shri Shinde in his official capacity. Shri Shinde has thus violated
Regulations 17 and 21(a)(v) of MbPT Employees (Allotment and
Occupancy of Residence) Regulations, 1975.
(3) It was noticed on 26.09.1997 at about 1915 hrs. that Shri
Shinde had given his visiting card to one Shri Deepak Bagav, Sr.
Personnel Manager, Indian Express Newspaper Ltd., Mumbai
and advised him that he could pass through the docks at any time
showing his visiting card.
By committing the above misconducts, Shri Shinde has violated
Regulation 3(1A) (xii) of MbPT Employees (Conduct)
Regulations, 1976 and Regulations 17 and 21 (a) (v) of the
MbPT Employees (Allotment and Occupancy of Residence)
Regulations, 1975.
ARTICLE VII: (1) Shri Shinde had remained absent on 31st July 2003 and
submitted C.L application stating reasons for his absence as his
illness. However Shri Shinde was in the High Court on 31st July
2003 for full day in connection with bail application of his
brother Dr. Shinde.
(2) Shri Shinde while submitting the declaration to the CMO for
registration of dependant family members had declared that his
father does not have income from the sources mentioned in the
declaration form but he had stated that the Toyota Cressida car
which he possessed was purchased by his father and given to him
for use.
(3) On 2nd August, 2003 Shri Shinde informed the CSO on
telephone that due to viral fever, he will not able to attend duties
for a week. However Shri Shinde visited Docks in his private car
No. BLB 408 between 1200 hrs to 1430 hrs on 5th August
2003.
(4) On 29th August 2003, Shri Shinde was inside Dock premises
at 1500 hrs and left Docks through Orange Gate No. 1 at about
1505 hrs. However he has recorded his reporting time as 1500
hrs in the combined diary of 'C' Zone at STP.
(5) On 1st September 2003, Shri Shinde has entered the Green
Gate, Indira Dock at about 1505 hrs and passed out of the Docks
through Orange Gate, Princes Dock No. 1 at about 1515 Hrs.
However, he recorded his reporting time as 1500 hrs in the
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combined diary at 'C' Zone at STP.
By committing the above misconduct, Shri Shinde has violated
Regulation 3(1A) (xiii) of MbPT Employees (Conduct)
Regulations 1976.
ARTICLE VIII: Shri Shinde had filed a Writ Petition bearing No. 8077/2003
against the Dy. Chairman and other officers of MbPT. By
committing the above misconduct Shri Shinde has violated
Regulation No. 3 (1A) (xiv) of MbPT Employees (Conduct)
Regulations, 1976 and under section 120 of the Major Port
Trusts Act, 1963."
3. On 5 July, 2005. a criminal case was registered against the petitioner for
the offences punishable under Sections 380, 409, 461 r/w. 120-B, 34 of the
Indian Penal Code in relation to which the petitioner was arrested. He was placed
under suspension. The criminal case, however, resulted into acquittal in view of
the order dated 25 January, 2007 passed by the Metropolitan Magistrate, 16 th
Court, Mumbai in C.C. No. 92/PW/2005. Consequent thereto, on 23 June,
2007, the petitioner was reinstated in service.
4. Insofar as the enquiry under charge sheet in question dated 3 July, 2004 is
concerned, the petitioner denied all the charges levelled against against him in the
reply to the charge sheet dated 1 April, 2008. On 18 October, 2008, the Enquiry
Officer submitted his enquiry report to respondent no. 3 - The Deputy Chairman
of Mumbai Port Trust. On 9 February, 2009, the petitioner submitted his
statement of defence to respondent no. 3. On 30 March, 2009, the Disciplinary
Authority imposed the major punishment of dismissal from service. On 2 May,
2009, the petitioner, being aggrieved by such punishment of dismissal from
service, filed a statutory appeal before the Chairman, Mumbai Port Trust/
respondent no. 2. By an order dated 7 November, 2009, respondent no. 2
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reduced the punishment of dismissal from service to compulsory retirement. On
21 January, 2010, the petitioner filed a Review Application before respondent no.
1 praying for review of the said decision of compulsory retirement. On 28 March,
2011, respondent no. 1 did not review the decision of the Appellate Authority.
On such backdrop, the present petition is filed praying for the reliefs as noted by
us hereinabove.
5. At the outset, we need to observe that the petition was admitted by an
order dated 4 July, 2012 . A co-ordinate Bench of this Court [Dipankar Datta, CJ
(as His Lordship then was) and M.S. Karnik, J.] passed a detailed order dated 4
February, 2022 recording the challenge as raised in the petition and as to whether
the Disciplinary Authority was justified in dismissing the petitioner from service
without forwarding to him a copy of the enquiry report, in which all but one of
the sub-charges is held to be proved. The Court considering the decision of the
Constitution Bench of the Supreme Court in Managing Director ECIL,
Hyderabad, etc. vs. B. Karunakar, etc.1 as also the subsequent decision of the
Supreme Court in Himachal Pradesh State Electricity Board Ltd. vs. Mahesh
Dahiya2 observed that prima facie the petitioner has satisfied the Court that the
matter should be remitted to the Disciplinary Authority. The order dated 4
February, 2022 is required to be noted, which reads thus:
1. The petitioner was employed with the Mumbai Port Trust as an
Assistant Security Officer. Following disciplinary proceedings, he was
dismissed from service. In appeal, the appellate authority reduced the
penalty and imposed the penalty of compulsory retirement. A revision, at
1 AIR 1994 SUPREME COURT 1074
2 (2017) 1 SCC 768
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the instance of the petitioner, having proved abortive, this writ petition has
been instituted challenging the order of the revisional authority.
2. Several points have been urged by Mr. Panchal, learned advocate for
the petitioner to persuade us hold that the disciplinary proceedings stand
vitiated and the order of penalty ought to be interdicted.
3. It appears from the records that the petitioner's Disciplinary Authority,
without furnishing copy of the report of enquiry to the petitioner, recorded
that the said report had been perused and that there was no reason to
disagree with the findings returned by the Enquiry Officer; hence, it was
proposed to dismiss the petitioner from service. Pursuant thereto, the
Disciplinary Authority issued a show cause notice calling upon the
petitioner to explain why he shall not be dismissed from service.
4. At the outset, we need to consider the fundamental point urged by Mr.
Panchal while asserting that the action of the Disciplinary Authority was not
free from bias. It is, whether the Disciplinary Authority was justified in
dismissing the petitioner from service without forwarding to him a copy of
the enquiry report in which all but one of the sub-charges were held to be
proved. Having regard to the law laid down by the Constitution Bench of
the Supreme Court in AIR 1994 SC 1074 (Managing Director ECIL,
Hyderabad, etc. etc. vs. B. Karunakar, etc. etc.) and the decision reported in
(2017) 1 SCC 768 (Himachal Pradesh State Electricity Board Limited vs.
Mahesh Dahiya), the petitioner, prima facie, has satisfied us that the matter
should be remitted to the Disciplinary Authority. However, we refrain from
passing such order today considering the fact that the petitioner did not
raise the point of non-supply of the enquiry report to him either in the
response to the show cause notice issued by the Disciplinary Authority prior
to dismissing the petitioner from service or in the appeal/revision petitions
that were subsequently filed by him. It is only for the first time that this
point has been raised by the petitioner in this writ petition.
5. We have requested Mr. Panchal and Mr. Singh, learned Additional
Solicitor General for the respondent no. 1 to make proper research and
assist us in rendering appropriate justice to the cause espoused before us.
6. The writ petition is heard in part.
7. List the same on Tuesday next (February 8, 2022) at 2.30 p.m."
6. It is on the aforesaid backdrop, the proceedings are before us today. Mr.
Panchal, learned counsel for the petitioner, at the outset, would submit that this is
a clear case where the enquiry report has not been furnished to the petitioner in
terms of the requirements of the law as laid down by the Constitution Bench of
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the Supreme Court in Managing Director ECIL, Hyderabad, etc. vs. B. Karunakar
(supra). He submits that the Constitution Bench has clearly held that whatever is
the nature of punishment, whenever the rules require an inquiry to be held, for
inflicting the punishment, the delinquent employee should have the benefit of
the report of the Inquiry Officer before the disciplinary authority records its
findings on the charges levelled against him. It is submitted that for forming any
opinion in regard to the punishment which is to be imposed, the petitioner ought
to have been granted an opportunity to submit his representation/reply on
enquiry report, in the event such enquiry report records that the charge is proved
against the deliquent/petitioner. It is his submission that in the present case, this
is exactly what has not been followed by respondent no. 2 as clearly seen from the
contents of the memo dated 21 November, 2008 as issued to the petitioner. The
said memo is required to be noted, which reads thus:
No. TM/SHQ/SDS-ASO/3765 Date: 21 Nov 2008
To,
Shri S. D. Shinde
Assistant Security Officer
MbPT Security Organisation.
MEMO:
Attention of Shri S.D. Shinde, Assistant Security Officer, MbPT
Security Organisation, is invited to the charge-sheet issued to him vide
No.TM/SHQ/ASO-SDS/1899 dated 3.7.2004.
2. Shri H.D. Kulkarni, Retd. Railway Manager, MbPT, who was
appointed as Inquiring Authority vide order No.TM/SHQ/DE/ASO/1118
dated 7.5.2005 to inquire into the charges framed against Shri S.D. Shinde,
has submitted his report dated 18.10.2008 (copy enclosed). The Enquiry
Officer has held all the Articles of Charges except Article VI (3) against Shri
Shinde as Proved.
3. On careful consideration of the Inquiring Authority's report and the
evidence on record, I concur with the findings of the Inquiring Authority.
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4. Under Regulation 13(4) of the Mumbai Port Trust Employees
(Classification, Control and Appeal) Regulations, 1976, notice is hereby
given to Shri S.D. Shinde, Assistant Security Officer, MbPT Security
Organisation, that it is proposed to impose on him with immediate effect,
the penalty of dismissal from Port Trust service Shri Shinde is hereby called
upon to submit within 15 days from the date of receipt of this memo, such
representation as he may wish to make on the proposed penalty as
mentioned above on the basis of the evidence adduced during the enquiry.
If no representation is submitted within the period specified, it will be
presumed that Shri Shinde has no representation to make and the proposed
penalty will be imposed upon him without further reference to him.
5. Receipt of the memorandum may be acknowledged.
(A.K. Bal)
Deputy Chairman"
7. Drawing our attention to paragraph 4 of the memo (supra), Mr. Panchal
submits that the contents of paragraph 4 of the aforesaid memo are clearly in the
teeth of the mandatory requirements of law to issue a notice and seek the
petitioner's representation before forming an opinion that the enquiry report
would necessarily conclude that the punishment is required to be imposed on the
petitioner. Mr. Panchal would submit that this position in law has been re-
affirmed by the Supreme Court in a recent decision in the case of State of Uttar
Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow vs.
Ram Prakash Singh3. It is, therefore, his submission that the proceedings be
remanded to the Disciplinary Authority for a fresh decision to be taken by
following due process of law and as per the decision of the Constitution Bench of
the Supreme Court (supra).
8. On the other hand, Mr. Talsania, learned counsel for respondent nos. 2
and 3 has opposed the reliefs while supporting the impugned order of compulsory
3 2025 SCC OnLine SC 891
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retirement passed against the petitioner. He submitted that the memo as issued to
the petitioner would amount to specific compliance of the principles of natural
justice in terms of the requirements as laid down by the Supreme Court in
Managing Director ECIL, Hyderabad, etc. vs. B. Karunakar (supra). In
supporting his contention, he would submit that the petitioner would be required
to show prejudice which was caused to him, failing which the petitioner's
contention cannot be accepted. In support of his submission, Mr. Talsania has
placed reliance on the decision of the Supreme Court in Haryana Financial
Corporation and Anr. vs. Kailash Chandra Ahuja4.
9. We have learned counsel for the parties. We have perused the record. We
find that there is much substance in the contentions as urged on behalf of the
petitioner that it was a mandatory requirement as held by the Constitution Bench
of the Supreme Court in the case of Managing Director ECIL, Hyderabad, etc. vs.
B. Karunakar (supra), that the petitioner necessarily should have been served with
a copy of the enquiry report thereby calling upon the petitioner to submit a
representation on the enquiry report and only thereafter form an opinion on the
nature of the punishment to be imposed, so that the petitioner can be heard on
such punishment.
10. Relevant to the context in hand, the Supreme Court in Himachal Pradesh
State Electricity Board Ltd. vs. Mahesh Dahiya (supra) while considering the
decision of Constitution Bench, held that the delinquent employee should have
4 (2008) 9 SCC 31
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the benefit of the report of the enquiry officer before the disciplinary authority
records its findings on the charges levelled against him. The relevant observations
of the Supreme Court are required to be noted, which reads thus:
"25. The Constitution Bench in Managing Director, ECIL, vs. B. Karunkar
& Ors. after elaborately considering the principle of natural justice in the
context of the disciplinary inquiry laid down following in para 29, 30 (iv)
and (v):
"29. Hence it has to be held that when the enquiry officer is not the
Disciplinary Authority, the delinquent employee has a right to
receive a copy of the enquiry officer's report before the Disciplinary
Authority arrives at its conclusions with regard to the guilt or
innocence of the employee with regard to the charges levelled
against him. That right is a par t of the employee's right to defend
himself against the charges levelled against him. A denial of the
enquiry officer's report before the Disciplinary Authority takes its
decision on the charges, is a denial of reasonable opportunity to the
employee to prove his innocence and is a breach of the principles of
natural justice."
"30. .......(iv). In the view that we have taken, viz., that the right
to make representation to the disciplinary authority against the
findings recorded in the enquiry report is an integral part of the
opportunity of defence against the charges and is a breach of
principles of natural justice to deny the said right, it is only
appropriate that the law laid down in Mohd. Ramzan case should
apply to employees in all establishments whether Government or
non-Government, public or private. This will be the case whether
there are rules governing the disciplinary proceeding or not and
whether they expressly prohibit the furnishing of the copy of the
report or are silent on the subject. Whatever the nature of
punishment, further, whenever the rules require an inquiry to be
held, for inflicting the punishment in question, the delinquent
employee should have the benefit of the report of the enquiry
officer before the disciplinary authority records its findings on the
charges levelled against him. Hence question (iv) is answered
accordingly."
(v). The next question to be answered is what is the effect on the
order of punishment when the report of the enquiry officer is not
furnished to the employee and what relief should be granted to him
in such cases. The answer to this question has to be relative to the
punishment awarded. When the employee is dismissed or removed
from service and the inquiry is set aside because the report is not
furnished to him, in some cases the non-furnishing of the report
may have prejudiced him gravely while in other cases it may have
made no difference to the ultimate punishment awarded to him.
Hence to direct reinstatement of the employee with back-wages in
all cases is to reduce the rules of justice to a mechanical ritual. The
theory of reasonable opportunity and the principles of natural
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justice have been evolved to uphold the rule of law and to assist the
individual to vindicate his just rights. They are not incantations to
be invoked nor rites to be performed on all and sundry occasions.
Whether in fact, prejudice has been caused to the employee or not
on account of the denial to him of the report, has to be considered
on the facts and circumstances of each case. Where, therefore, even
after the furnishing of the report, no different consequence would
have followed, it would be a perversion of justice to permit the
employee to resume duty and to get all the consequential benefits.
It amounts to rewarding the dishonest and the guilty and thus to
stretching the concept of justice to illogical and exasperating limits.
It amounts to an "unnatural expansion of natural justice" which in
itself is antithetical to justice"
26. Present is not a case of not serving the inquiry report before
awarding the punishment rather the complaint has been made that
before sending the inquiry report to the delinquent officer, Disciplinary
Authority has already made up its mind to accept the findings of the
inquiry report and decided to award punishment of dismissal. Both the
learned Single Judge and the Division Bench on the aforesaid premise
came to the conclusion that principle of natural justice have been
violated by the Disciplinary Authority. The Division Bench itself was
conscious of the issue, as to whether, inquiry is to be quashed from the
stage where the Inquiry Officer\Disciplinary Authority has committed
fault i.e. from the stage of Rule 15 of the CCS (CCA) Rules as non-
supply of the report. Following observations have been made in the
impugned judgment by Division Bench in para 21:(Mahesh Dahiya
Case)
"21. Having said so, the core question is - whether the inquiry is
to be quashed from the stage where the Inquiry
Officer/Disciplinary Authority has committed fault, i.e. from the
stage of Rule 15 of the CCS (CCA) Rules, i.e. non-supply of
inquiry report, findings and other material relied upon by the
Inquiry Officer/Disciplinary Authority to the writ writ petitioner-
respondent herein to explain the circumstances, which were made
basis for making foundation of inquiry report or is it a case for
closure of the inquiry in view of the fact that there is not even a
single iota of evidence, prima facie, not to speak of proving by
preponderance of probabilities, that the writ petitioner has
absented himself willfully and he has disobeyed the directions?"
..........
31. Both the learned Single Judge and the Division Bench have heavily
relied on the fact that before forwarding the copy of the report by letter
dated 02.04.2008 the Disciplinary Authority-cum-Whole Time Members
have already formed an opinion on 25.02.2008 to punish the writ petitioner
with major penalty which is a clear violation of principle of natural justice.
We are of the view that before making opinion with regard to punishment
which is to be imposed on a delinquent, the delinquent has to be given an
opportunity to submit the representation/reply on the inquiry report which
finds a charge proved against the delinquent. The opinion formed by the
Disciplinary Authority-cum-Whole Time Members on 25.02.2008 was
formed without there being benefit of comments of the writ petitioner on
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the inquiry report. The writ petitioner in his representation to the inquiry
report is entitled to point out any defect in the procedure, a defect of
substantial nature in appreciation of evidence, any misleading of evidence
both oral or documentary. In his representation any inputs and explanation
given by the delinquent are also entitled to be considered by the Disciplinary
Authority before it embarks with further proceedings as per statutory rules.
We are, thus, of the view that there was violation of principle of natural
justice at the level of Disciplinary Authority when opinion was formed to
punish the writ petitioner with dismissal without forwarding the inquiry
report to the delinquent and before obtaining his comments on the inquiry
report. We are, thus, of the view that the order of the High Court setting
aside the punishment order as well as the Appellate order has to be
maintained.
(emphasis supplied)
11. In the present case, it is quite clear that respondent no. 2 had formed an
opinion on the punishment to be imposed before calling upon the petitioner to
submit his say on the enquiry report. Hence such action on the part of the
disciplinary authority would be required to be held to be contrary to the decision
of the Constitution Bench in Managing Director ECIL, Hyderabad, etc. vs. B.
Karunakar (supra) .
12. Insofar as Mr. Talsania's contention that the test of prejudice was required
to be satisfied, although at the first blush, looked to be attractive, however, on a
deeper scrutiny, the same cannot be accepted considering the clear position in law
as laid down in the recent decision of the Supreme Court in the case of State of
Uttar Pradesh through Principal Secretary, Department of Panchayati Raj,
Lucknow vs. Ram Prakash Singh (supra) wherein the Supreme Court delving on
authoritative pronouncement of the Constitution Bench in Managing Director,
ECIL, Hyderabad (supra), held that the Constitution Bench decision has stood
the test of time, without being overruled in any subsequent decision, hence the
law as laid down by the Constitution Bench continues to bind all Benches of
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lesser strength. The Court accordingly held that considering such clear position
in law, it was difficult for the Court to be guided by the decisions insisting on
application of the 'prejudice' principle in the wake of the Constitution Bench
decision as discussed in paragraph 49 of the judgment. The relevant observations
as made by the Supreme Court are required to be noted, which read thus:
"48. Looked at from a different angle, it is unheard of and simply
unacceptable to us that employers could brazenly disregard the law declared
by the Constitution Bench and/or act in derogation of statutory rules, yet,
argue that no prejudice was caused to the dismissed employee by reason of not
giving him access to the enquiry report. If the answer to question (v) given in
B. Karunakar (supra) is to be regarded as the final word, we are left to wonder
whether it would have at all been necessary for the Constitution Bench to
elaborately discuss the law on the subject, stress on the importance and need
for the enquiry report to be furnished to the delinquent employee and to
introduce a new regime with prospective effect. If the test of 'prejudice' were
to be given primordial importance, the Constitution Bench could have, on the
contrary, simply observed that post 20th November, 1990 [the date on which
Mohd. Ramzan Khan (supra) was decided], if in case report of enquiry in a
particular case were not furnished to the delinquent employee and upon the
matter reaching the tribunal/court for adjudication at a subsequent stage, the
employer is under no obligation to explain why the report has not been
furnished and its action of taking disciplinary action has to be judged and
could be interdicted only in the event the employee, on the touchstone of
'prejudice', were to succeed in proving that he had been denied reasonable
opportunity to defend. The Constitution Bench's careful consideration of
question (i), viz. the need to furnish the enquiry report to a delinquent
employee before disciplinary action is taken being an integral part of natural
justice, the answer thereto would be rendered redundant if such an approach
by the employers is permitted. Allowing employers to circumvent the law
declared by the Constitution Bench and dilution of such declared law
regarding the necessity, nay imperative, to furnish the enquiry report by
interpretative exercises subsequently undertaken by Benches of lesser strength
without bearing in mind other Constitution Bench decisions (we propose to
refer to them briefly, immediately after this discussion) on the effect of breach
of natural justice principles and the consequences that could visit an employee
whose service is terminated if the report were not furnished in the first place is
an unfortunate development which undermines the rule of law.
49. Just as Articles 14, 19 and 21 of the Constitution constitute a
triumvirate of rights of citizens conceived as charters on equality, freedom and
liberty, the trio of decisions of Constitution Benches of this Court in Union of
India v. Tulsiram Patel, Olga Tellis v. Bombay Municipal Corporation and
A.R. Antulay v. R.S. Nayak form the bedrock of natural justice principles
being regarded as part of Article 14 of the Constitution and obviating the
need to demonstrate 'prejudice' if a challenge were laid on the ground of
breach of Article 14. In Tulsiram Patel (supra), it was held that violation of a
principle of natural justice is violation of Article 14. The dictum of the three
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Judge Bench in S.L. Kapoor v. Jagmohan that non-observance of natural
justice is itself prejudice to any man and proof of prejudice, independently of
proof of denial of natural justice is unnecessary, was approved by the
Constitution Bench in Olga Tellis (supra). No prejudice need be proved for
enforcing the Fundamental Rights is the emphatic assertion in A.R. Antulay
(supra).
50. These Constitution Bench decisions have stood the test of time.
Without being overruled in any subsequent decision, the law continues to
bind all Benches of lesser strength. Equally, it cannot be gainsaid that with the
march of time and the progress made in the years since then, nuanced or
refined approaches to applying natural justice principles may be necessary and
appropriate in specific cases. There can be no quarrel with this approach.
However, we find it difficult for us to be guided by the decisions insisting on
application of the 'prejudice' principle in the wake of the aforesaid
Constitution Bench decisions. Accepting such decisions of lesser strength
would signal re-imposition of the legal regime pre-Mohd. Ramzan Khan
(supra) when the employer was under no obligation to furnish the enquiry
report. We are afraid, this could encourage mischievous employers to drain
out its terminated employee by ensuring that copy of the enquiry report is not
furnished."
(emphasis supplied)
13. In the aforesaid circumstances, we are of the clear opinion that it was
necessary for respondent nos. 1 and 2 to follow the mandate of law, namely, to
issue a notice to the petitioner along with enquiry report calling upon the
petitioner to submit his say on the enquiry report and only after consideration of
such contentions which the petitioner may urge in reply to the enquiry report, on
forming an appropriate opinion, a further action of issuance of show cause notice,
in the event any punishment is sought to be imposed, ought to have been
followed. We are, therefore persuaded to accept the contentions as urged on
behalf of the petitioner that the petition needs to be partly allowed by remanding
the proceedings to the disciplinary authority for a fresh procedure to be following
inflicting any punishment, if so warranted.
14. The petition, accordingly, is partly allowed in terms of the following order:
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ORDER
(i) The impugned order dated 30 March, 2009 dismissing the petitioner from service, as modified by the order dated 7 November, 2009 passed by respondent no. 2-Appellate Authority reducing the punishment of dismissal to compulsory retirement, are quashed and set aside.
(ii) The Departmental Enquiry proceedings stand remanded to the disciplinary authority with a direction that within a period of 15 days from the date the copy of this order is available to the petitioner, a notice along with enquiry report be issued to the petitioner calling upon the petitioner to submit his "say"/ contentions on the enquiry report, which be submitted by the petitioner within a period of four weeks from the receipt of show cause notice.
(iii) After the petitioner's say is received and on application of mind to the petitioner's say, the disciplinary authority shall form an opinion for taking further appropriate steps. In the event, the disciplinary authority is of the opinion that a penalty/punishment is proposed to be imposed, in that event, an appropriate show cause notice shall be issued to the petitioner. The petitioner be granted an opportunity to reply to the said show cause notice as also an opportunity of hearing and thereafter an appropriate decision in accordance with law be taken.
(iv) Let this exercise be completed within a period of six months from the date the copy of the order is made available. All contentions of the parties are expressly kept open.
15. Petition is disposed of in the aforesaid terms. No costs.
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