MANAGING DIRECTOR ECIL HYDERABAD Vs. B KARUNAKAR

JUDGEMENT

(1.) This group of matters is at the instance of various parties, viz. Union of India, Public Sector Corporations, Public Sector Banks, State governments and two private parties. By an order dated 5/08/1991 in Managing Director, Electronic Corporation of India v. B. Karunakar a three Judge bench of this court referred that matter to the chief justice for being placed before a larger bench, for the bench found a conflict in the two decisions of this court, viz. , Kailash Chander Asthana v. State of U. P. and Union of India v. Mohd. Ramzan Khan both delivered by the benches of three learned Judges. Civil Appeal No. 3056 of 1991 arising out of Special Leave Petition (Civil) No. 12103 of 1991 along with the other matters in which the same question of law is in issue, has, therefore, been referred to this bench,

(2.) The basic question of law which arises in these matters is whether the report of the enquiry officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions:

(3.) In order to appreciate fully the significance of the basic question, it is necessary to refer briefly to the genesis of the law on the subject of furnishing the report of the enquiry officer/authority to the delinquent employee. In this country, the law on the subject has developed along two paths, viz. , the statute and the principles of natural justice. We may first refer to the statutory development of the law. It is not necessary to refer to the law prior to the Public Servants [inquiries] Act, 1850 which for the first time made uniform, the law regulating inquiries into the behaviour of public servants who were not removable fr. om their appointments without the sanction of the government. It provided for a formal and publicinquiry into the imputations of misbehaviour against the public servant. Either the government, if it thought fit conducted the prosecution or left it to the accuser to conduct it after requiring him to furnish reasonable security. The Act also provided that the inquiry may be committed either to the court, Board or any other authority to which the accused public servant was subordinate, or to any other person or persons to be specially appointed as Commissioners for the purpose. Section 25 of the Act, however, saved the authority of the government for suspending or removing any such public servant for any cause without an inquiry under the Act. While the said Act continued to be on the statute book, the government of India Act, 1919 was enacted and Ss. (2 of Section 96-B of that Act authorised the secretary of State in council to make rules for regulating the classification of the civil services, the methods of their recruitments, their conditions of service, pay and allowances and discipline and conduct. In pursuance of these powers, the Civil Services Classification Rules, 1920 were framed and Rule XIV of the said Rules provided that without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, in all cases in which the dismissal, removal or reduction in rank of any officer is ordered, the order shall, except when it is based on facts or conclusions established at a judicial trial, or when the officer concerned has absconded with the accusations hanging over him, be preceded by a properly recorded departmental inquiry. At such an inquiry, a definite charge in writing had to be framed in respect of each offence and explained to the accused. The evidence in support of it and any evidence which the accused may adduce in his defence had to be recorded in his presence and his defence had to be taken down in writing. Each of the charges framed had to be discussed and the finding had to be recorded on each charge. However, there was no provision made in the Rules for hearing the delinquent officer against the action proposed to be taken on the basis of the finding arrived at in the inquiry. All that Rule XVI of the Rules provided was that any officer against whom an order was passed and who thought himself wronged thereby would be entitled to prefer at least one appeal against such order. These rules were followed by the Civil Services (Classification, Control and Appeal) Rules, 1930 also framed under Section 96-B of the government of India Act, 1919. Rule 55 thereof contained the same provisions as those contained in Rule XIV of 1920 Rules and made no difference to the earlier position of law on the subject. It cannot, therefore, be gainsaid that the seeds of the law on the subject were laid by Section 240 (3) of the government of India Act, 1935 [the 'goi Act']. It stated that the civil servant shall not be dismissed or reduced in rank until he had been given "reasonable opportunity to show cause against action proposed to be taken in regard to him". The expression "against action proposed to be taken" was uniformly interpreted by the courts to mean the stage atwhich the disciplinary authority had arrived at its tentative conclusion with regard to the guilt of and the punishment to be awarded to, the employee. The expression "reasonable opportunity to show cause" was accordingly interpreted to mean an opportunity at that stage to represent to the authority against the tentative findings both with regard to the guilt and the proposed punishment. It was, therefore, held that in order that the employee had an effective opportunity to show cause against the finding of guilt and the punishment proposed, he should, at that stage be furnished with a copy of the findings of the inquiring authority. It is in this context that the furnishing of the enquiry officer's report at that stage was held to be obligatory. It is, however, necessary to note that though the provisions of Section 240 (3) of the government of India Act stated that they would apply only when the employee was sought to be dismissed or reduced in rank which were the major punishments, the same were interpreted to mean that they would also apply when the employee was sought to be removed.