Union of India v. T.V. Patel, (SC) BS129261
SUPREME COURT OF INDIA

Before:- H.K. Sema and V.S. Sirpurkar, JJ.

Civil Appeal No. 2067 of 2007 (Arising out of SLP(C) No. 11651 of 2005). D/d. 19.4.2007.

Union of India and another - Appellants

Versus

T.V. Patel - Respondent

WITH Civil Appeal Nos. 2071, 2072, 2068, 2070 & 2069 of 2007 (Arising out of SLP(C) Nos. 19594, 26333 of 2005, 8470 of 10225 and 12656 of 2005 and C.A. No. 3628 of 2006).

For the Appellants :- B. Datta and Vikas Singh, ASGs., Mrs. Vimla Sinha, Satyakam Prakash, V.K. Verma, Ms. Sandhya Goswami, B.V. Balaram Das, Advocates.

For the Respondent in C.A. No. 2068 of 2007 :- Sumeer Kumar Shirvastava, Mrs. Nanda Sinha and S.K. Verma, Advocates.

For the Respondent in C.A. Nos. 2069 of 2007 :- Vijay Panjwani, Advocate.

For the Respondent in C.A. No. 2071 of 2007 :- Nikhil Majithia and Prashant Kumar, Advocates.

For the Respondent in C.A. No. 2072 of 2007 :- V.N. Raghupathy and Ranji Thomas, Advocates.

For the Respondent in C.A. No. 2067 of 2007 :- T.V. Patel, in-person.

A. Constitution of India, Article 320(3)(c) - Department enquiry - Non-supply of copy of advice tendered by the UPSC before the passing of order of punishment - Provisions of Article 320(3)(c) of the Constitution are not mandatory - They do not confer any rights on the public servant - 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 court of law - Matter remitted back. 1958 SCR 533 relied.

[Paras 17 to 20]

B. Central Civil Services (Conduct), Rules, 1963, Rule 32, Term "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.

[Para 15]

Cases Referred :-

State of U.P. v. Manbodhan Lal Srivastava, 1958 SCR 533.

Ram Gopal Chaturvedi v. State of Madhya Pradesh, 1969(2) SCC 240.

State of U.P. v. M.L. Srivastava, 1958 SCR 533.

State Bank of India v. D.C. Aggarwal, 1993(1) SCT 225 : 1993(1) SCC 13.

Managing Director, ECIL, Hyderabad v. B. Karunakar, 1994(1) SCT 319 : 1993(4) SCC 727.

JUDGMENT

H.K. Sema, J. - Leave granted.

2. 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 SLP(C) No. 11651 of 2005.

3. The facts in compendium are as follows :-

4. The statement of articles of charges framed against the respondent are as follows :-

5. List of documents and prosecution witnesses sought to be relied during the inquiry were also supplied along with the article of charge.

6. 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.

7. 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.

8. 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) Ahmedabad 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:

9. 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.

10. 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.

11. 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.

12. 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 :

Part IX of the CCS Rules deals with Miscellaneous. Rule 32 deals with Supply of copy of Commission's advice. It reads :

13. 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 public 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.

14. There is substance in the contention of Mr. Datta, learned ASG.

15. As already noticed, Rule 32 of the rules deals with the supply of a copy of Commission'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 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.

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

17. A Constitution Bench of this Court in the case of State of U.P. v. 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.

18. 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 :-

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

19. 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 v. State of Madhya Pradesh, 1969(2) SCC 240, it was held in paragraph 7 of the judgment as under :-

20. 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) SCT 225 : 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.

21. He also referred to the decision of this Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, 1994(1) SCT 319 : 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 fact of the case at hand. The aforesaid decisions are not relevant for the purpose of adjudication of the case at hand.

22. 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) 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 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 SLP (C) No. 11651 of 2006 (Union of India and another 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 SLP(C) No. 19594 of 2005 (Union of India and others 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 SLP(C) No. 26333 of 2005 (Union of India and others v. S.K. Agarwal)

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 merits all other grounds urged before the Tribunal.

Civil Appeal Arising out of SLP(C) No. 8470 of 2006 (Union of India and others v. P.K. Shah and another)

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 SLP(C) No. 10225 of 2006 (Union of India and others 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 SLP(C) No. 12656 of 2006 (Union of India and others 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 decided the other grounds urged before the High Court and disposed 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.

Appeals allowed.