Document Fragment View

Matching Fragments

9. The learned Counsel appearing for the petitioners has relied upon the judgments of the Supreme Court in the cases (i) Punjab National Bank and Ors. v. Kunj Behari Mishra, and (ii) Yoginath d. Gagde v. State of Maharashtra and Ors. in support of his contention that the entire departmental proceedings would stand vitiated on this ground. In the case of Punjab National Bank and Ors. v. Kunj Behari Mishra (supra), the Court held as under 1998-II-LLJ-809 at pp.817, 818 & 819:
16. In Karunakar case the question arose whether after the 42nd Amendment of the Constitution, when the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes decision on the question of guilt of the delinquent. It was sought to be contended that in that case that as the right to show cause against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there was no necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority took the final decision as to whether to impose a penalty or not. Explaining the effect of the 42nd Amendment the Constitution Bench observed that:
All that has happened after the Fortysecond Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives as its conclusion with regard to his guilt or innocence of the charges.
The Court explained that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusion on the basis of the evidence, the enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd Amendment but the right of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself. This was expressed by the Court in the following words: