UNION OF INDIA Vs. E BASHYAN

JUDGEMENT

(1.) This matter raises a question of mega-importance viz. whether failure to supply a copy of the Report of the Enquiry Officer to the delinquent before the Disciplinary Authority makes up his mind and records the finding of guilt as against him would constitute violation of Art. 311(2) of the Constitution of India and violation of principles of natural justice. This question appears to be res integra so far as this Court is concerned notwithstanding the contention of the learned counsel for the petitioner to the contrary. Counsel contends that the point is directly or at any rate by necessary implication covered in the petitioners favour. Reliance in this connection is placed on an order passed by a Bench comprising of three Hon'ble Judges of this Court in C.A. No. 537 of 1988 and on an order passed by a Bench comprising of two Hon'ble Judges of this Court in the Secy. Central Board of Excise and Customs v. K. S. Mahalingam (1986) 1 Scale 1308 : (AIR 1987 SC 1919). The facts of both these matters reveal that the Enquiry Officer's report was not made available to the delinquent before the Disciplinary Authority passed the final order recording the finding of guilt against him. But in the aforesaid two judgments to which our attention has been called, the sole issue in focus was regarding the necessity for serving a second show cause notice as regards the measure of penalty before the imposition of the penalty in the context of the agrument that such a notice is no more essential in view of the 42nd Amendment of the Constitution.

(2.) Now an Enquiry Officer merely makes his recommendations, by his report in the light of the evidence recorded by him and the submissions urged before him. The tentative view expressed by the Enquiry Officer may or may not be accepted by the Disciplinary Authority. It is the Disciplinary Authority who makes up his mind on the basis of the report and reaches the conclusion whether or not the delinquent is guilty. He may or may not accept the recommendations and may or may not accept the report. The Disciplinary Authority builds his final conclusion on the basis of his own assessment of evidence taking into account, the reasoning articulated in the Enquiry Officers Report and the recommendations made therein. If the report is not made available to the delinquent, this crucial material which enters into the consideration of the Disciplinary Authority never comes to be known to the delinquent and he gets no opportunity whatsoever to have a say in regard to this critical material at any point of time till the Disciplinary Authority holds him guilty or condemns him. Such would be the consequence even if the Enquiry Officer has found him to be blameless and recommended his exoneration in case the Disciplinary Authority has disagreed with the Enquiry Report. There can be glaring errors and omissions in the report. Or it may have been based on no evidence or rendered in disregard of or by overlooking evidence. Even, so the delinquent will have no opportunity to point out to the Disciplinary Authority about such errors and omissions and disabuse the mind of the Disciplinary Authority before the axe falls on him and he is punished. It appears to us to be a startling proposition to advance that the only authority which really and actually holds him guilty need not afford any opportunity to the person against whom such finding of guilt is recorded and the material on which he acts. It needs to be highlighted that serving a copy of the enquiry report on the delinquent to enable him to point out anomalies, if any, therein before the axe falls and before finding about guilt is recorded by the Disciplinary Authority is altogether a different matter from serving a second show cause notice to enable the delinquent in the context of the measure of the penalty to be imposed.

(3.) It appears to us that the Report of an Enquiry Officer is akin to a Report submitted by the Commissioner for taking accounts in a partnership suit to the Court wherein he summarises the evidence and expresses his opinion and records his tentative findings for the benefit of the Court. The Report of the Commissioner is no doubt taken into account by the Court but then the Court builds its conclusion only after making available the Report to the parties and after hearing the parties on the Commissioners Report. It would be a startling proposition to propound that the Court can accept or reject the Report of the Commissioner with or without modification, without even showing the same to the parties or without hearing the parties in the context of the report.