Gujarat High Court
Pokar Ram Verma S/O Ajmeri Ramverma vs Union Of India on 9 July, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/16113/2012 JUDGMENT DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16113 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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POKAR RAM VERMA S/O AJMERI RAMVERMA
Versus
UNION OF INDIA & ANR.
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Appearance:
HIMANSHI R BALODI(8919) for the Petitioner(s) No. 1
MR HARSHEEL SHUKLA For MR SHUSHIL R SHUKLA(5603) for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 09/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present petition is filed by the petitioner challenging the order dated 03.02.2011 passed by the learned Central Administrative Tribunal, Ahmedabad Bench ("the Tribunal" for short) in the Original Application No.219 of 2008.
2. The short issue involved in the present writ petition is as to whether the non-supply of the Advice of the Union Public Service Commission (UPSC) can be fatal to the punishment order passed against the present petitioner or not. In this regard, Mr.M.S.Rao, learned advocate for the petitioner has placed reliance on the decisions rendered by the Supreme Court in the cases of Union of India vs. S.K. Kapoor, (2011) 4 S.C.C. 589, Union of India and others vs. R.P. Singh, (2014) 7 S.C.C. 340; and S.N. Narula vs. Union of India and others , (2011) 4 S.C.C. 591.
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3. The facts leading to the filing of the present petition are that a charge sheet was issued on 13.06.2004 for holding a departmental inquiry for two charges relating to the failure in properly examining the tender offers by the petitioner. The petitioner accordingly, filed his detailed representation on 13.10.2004 and Inquiry Officer was appointed on 10.06.2005. After holding a regular departmental proceedings, the Inquiry Officer vide order dated 03.09.2005, held the charges as proved. It appears that two charges are split into three charges by the Inquiry Officer. The Inquiry Officer's report was supplied to the petitioner by the Disciplinary Authority on 19.12.2005. The petitioner made a representation and the CVC's Advice was sought by the communication dated 04.05.2006. Accordingly, it appears that the UPSC's Advice was also sought by the Disciplinary Authority. Accordingly, the UPSC on 25.05.2007 filed a detailed report pointing out that since the charges establish that the petitioner has committed grave misconduct, the ends of justice would be met if 5% cut in monthly pension, otherwise admissible to Mr.P.R.Verma, which is imposed upon the petitioner for 2 years by placing reliance upon the said Advice by the impugned order dated 29.05.2007. The Disciplinary Authority imposed the punishment of 5% cut in monthly pension for 2 years supplied Advice of UPSC along with the order of penalty.
4. Mr. M.S. Rao, learned advocate for the petitioner, has submitted that the said contention of non-supply of the UPSC Advice appears not to have been taken before the Tribunal and the judgments of the Supreme Court in the cases of Union of India vs. S.K. Kapoor (supra), Union of India vs. R.P. Singh (supra); and S.N.Narula vs. Union of India (supra) were not cited however, since the action of the Disciplinary Authority is against the settled legal precedent by the Supreme Court, the impugned order of the Tribunal as well as the punishment order may be set aside.
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5. Per contra learned advocate Mr. Shukla, for the respondents urged that the writ petition may be rejected as the impugned order is precisely passed. He has submitted that the judgment, on which the reliance is placed, will not apply to the facts of the present case. Thus, it is urged that the petition may be rejected. It is further submitted that in case this Court observes to set aside the impugned final order dated 03.02.2011, the matter may be remanded back to the Disciplinary Authority.
6. We have heard the learned advocates appearing for the respective parties at length.
7. The issue, as mentioned hereinabove, is pertaining to non-supply of the UPSC Advice in advance by the Disciplinary Authority before imposing the punishment of 5% cut in monthly pension for a period of 2 years vide order dated 29.06.2008.
8. The afore-noted facts which are not in dispute, that some charges, were proved and some, were partly proved however, the Disciplinary Authority disagreed with the same and, issued notice to the petitioner along with the inquiry report. The petitioner filed his representation. Meanwhile, the petitioner reached the age of superannuation on 30.06.2004. Accordingly, the Disciplinary Authority, by the order dated 26.12.2005, imposed a punishment of cut in pension on permanent basis of 20%. A bare perusal of the impugned order will reveal that while passing the aforesaid order of cut in pension on permanent basis of 20%, the Disciplinary Authority has wilfully placed reliance on the Advice of UPSC, which was tendered vide letter dated 05.05.2005 and accordingly, the charges were proved and partly proved against the present petitioner.
9. It is not in dispute that the UPSC has tendered a detailed Advice, which is relied upon while passing the punishment order. At this stage, we Page 3 of 8 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:47 IST 2025 NEUTRAL CITATION C/SCA/16113/2012 JUDGMENT DATED: 09/07/2025 undefined may refer to the observations of the Supreme Court in the case of R.P. Singh (supra), wherein an analogous issue of non-supply of Advice by the Disciplinary Authority has been considered by the Supreme Court has held thus:
"13. We will be failing in our duty if we do not take note of the submission of Mr.W.A.Qadri that the decision is not an authority because the tribunal had set aside the order of the Disciplinary Authority on the ground that it was a non-speaking order. Be that as it may, when the issue was raised before this Court and there has been an advertence to the same, we are unable to accept the submission of Mr. Qadri. The said decision is an authority for the proposition that the Advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of punishment.
14. In the case of S.K.Kapoor, the Court accepted the ratio laid down in the case of T.V.Patel as far as the interpretation of Article 320(3)(c) is concerned and, in that context, it opined that the provisions contained in the said Article 320(3)(c) of the Constitution of India are not mandatory. While distinguishing certain aspects, the Court observed as follows:
"7. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable."
15. After so stating the two-Judge Bench opined that when the Disciplinary Authority does not rely on the report of the UPSC then it is not necessary to supply the same to the employee concerned. However, when it is relied upon then the copy of the same may be supplied in advance to the employee concerned, otherwise, there would The violation of the principles of natural justice. To arrive at the said conclusion, reliance was placed upon the decision in S.N.Narula's case. Proceeding further, the Court held:
"9. It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
16. Learned counsel for the appellant would contend that the two-Judge Bench in S.K. Kapoor s case could not have opined that the decision in T.V. Patel s case is per incuriam. We have already noticed two facts pertaining to S.N. Narula (supra), (i) it ws rendered on 31.1.2004 and (ii) it squarely dealt with the issue and expressed an opinion. It seems to us that the judgment in S.N. Narula s case was not brought to the notice of their Lordships deciding the lis in T.V. Patel (supra). There cannot be a shadow of doubt that the judgment in S.N. Narula (supra) is a binding precedent to be Page 4 of 8 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:47 IST 2025 NEUTRAL CITATION C/SCA/16113/2012 JUDGMENT DATED: 09/07/2025 undefined followed by the later Division Bench. In this context, we may fruitfully refer to the decision in Union of India V/s. Raghubir Singh (dead) by L. Rs. And Others, (1989) 2 SCC 754, wherein the Constitution Bench has held as follows: "We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court"
17. In Indian Oil Corporation Ltd. V/s. Municipal Corporation and Another, AIR 1995 SC 1480, it has been observed that the Division Bench of the High Court in Municipal Corpn., Indore V/s. Ratnaprabha Dhandha, 1989 MPLJ 20, was clearly in error in taking the view that the decision of this Court in Municipal Corporation, Indore V/s. Ratna Prabha, (1976) 4 SCC 622, was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co-equal Bench of this Court did not and could not do.
19. Thus perceived, it can be stated with certitude that S.N. Narula (supra) was a binding precedent and when the subsequent decision in T.V. Patel (supra) is rendered in ignorance or forgetfulness of the binding authority, the concept of per incurium comes into play.
20. In this regard, we may usefully refer to a passage from A.R. Antulay V/s. R.S. Nayak, (1988) 2 SCC 602, wherein Sabyasachi Mukharji, J. (as his Lordship then was) observed thus: -
"... Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
At a subsequent stage of the said decision it has been observed as follows: -
"... It is a settled rule that if a decision has been given per incuriam the court can ignore it."
22. Testing on the aforesaid principles it can safely be concluded that the judgment in T.V. Patel s case is per incuriam.
23. At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor (supra). There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in the T.V.Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is what precisely has been laid down in the B.Karnukara's case. We may reproduce the relevant passage with profit "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 part of the employee s right to defend Page 5 of 8 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:47 IST 2025 NEUTRAL CITATION C/SCA/16113/2012 JUDGMENT DATED: 09/07/2025 undefined 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."
24. We will be failing in our duty if we do not refer to another passage which deals with the effect of non-supply of the enquiry report on the punishment. It reads as follows: -
"[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 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 [pic]concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."
25. After so stating, the larger Bench proceeded to state that the court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The courts/tribunals would apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment. It is only if the court/tribunal finds that the furnishing of report could have made a difference to the result in the case then it should set aside the order of punishment. Where after following the said procedure the court/tribunal sets aside the order of punishment, the proper relief that should be granted to direct reinstatement of the employee with liberty to the authority/ management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from that stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement, if ultimately ordered, should invariably left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.
26. We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of Advice to the government servant at the time of making an order. The said stage was in prevalence Page 6 of 8 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:47 IST 2025 NEUTRAL CITATION C/SCA/16113/2012 JUDGMENT DATED: 09/07/2025 undefined before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence. We have been apprised by Mr.Raghavan, learned counsel for the respondent, that after the decision in S.K.Kapoor's case, the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training vide Office Memorandum dated 06.01.2014 has issued the following directions:
"4. Accordingly, it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the Advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/Advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum has been issued on 05.03.2014, which pertains to supply of copy of UPSC Advice to the Charged Officer. We think it appropriate to reproduce the Same:
"The undersigned is directed to refer to this Department's O.M. of even number dated 06.01.2014 and to say that it has been decided, in partial modification of the above O.M. that a copy of the inquiry report may be given to the Government servant as provided in Rule 15(2) of Central Secretariat Services (Classification, Control and Appeal) Rules, 1965. The inquiry report together with the representation, if any, of the Government servant may be forwarded to the Commission for Advice. On receipt of the Commission's Advice, a copy of the Advice may be provided to the Government servant who may be allowed to submit his representation, if any, on the Commission's Advice within fifteen days. The Disciplinary Authority will consider the inquiry report, Advice of the Commission and the representation(s) of the Government servant before arriving at a final decision."
28. In our considered opinion, both the Office Memoranda are not only in consonance with the S.K.Kapoor's case but also in accordance with the principles of natural justice which has been stated in B.Karunakar's case."
10. Thus, the Supreme Court, after considering the judgments in the cases of S.N. Narula (supra) and S.K. Kapoor (supra), has agreed with the Page 7 of 8 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:47 IST 2025 NEUTRAL CITATION C/SCA/16113/2012 JUDGMENT DATED: 09/07/2025 undefined decision rendered in S.K. Kapoor (supra) by holding the Advice of the UPSC, which was relied upon by the Disciplinary Authority while imposing the punishment on the delinquent is required to be supplied in advance. It is categorically recorded in paragraph No.14, that in case the Advice of the UPSC is relied upon, the copy of the same may be supplied in advance to the employee concerned, otherwise there would be violation of principles of natural justice.
11. Accordingly, we direct the respondents to accordingly revise the pension of the petitioner and also refund the amount, which is already deducted from the pension of the petitioner. The said amount along with the arrears shall be paid within a period of 6 (six) weeks from the date of receipt of a certified copy of the present order. We further clarify that in the event the amount is not paid, within the limitation as prescribed by us, the same shall further carry an interest of 9% per annum.
12. We may further clarify that as the petitioner has already retired way back in the year 2004 and, almost 21 years have passed, there would be no question of remanding the matter to the Disciplinary Authority.
12. The writ petition is allowed. The impugned punishment order dated 29.06.2007, and the judgment and order passed by the Tribunal dated 03.02.2011 in O.A No.219 of 2008 are quashed and set aside.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(R. T. VACHHANI, J)
MVP/7
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