REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   5604     OF 2019 (ARISING OUT OF SLP (C) NO. 20488 OF 2017           

STATE BANK OF INDIA & ORS.                ......APPELLANTS

          Versus

MOHAMMAD BADRUDDIN                            …...RESPONDENT

W I T H

CIVIL APPEAL NO.  5605  OF 2019 (ARISING OUT OF SLP (C) NO. 20770 OF 2017

J U D G M E N T    

HEMANT GUPTA, J  .

Leave granted.   

2. The present civil appeals arise out of an order passed by the High

Court of Jharkhand at Ranchi on April 18, 2017, whereby the intra court

appeals  filed by the  respondent  Mohammad Badruddin  were  allowed

and the  orders  of  punishment  were  set  aside.   The  respondent  was

granted all consequential benefits including back wages.   

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3. The  High  Court  has  dealt  with  two  appeals  arising  out  of  two

separate writ petitions imposing separate punishments.   

4. Firstly, we take up Civil Appeal arising out of Special Leave Petition

(Civil) No. 20770 of 2017.  The said appeal is directed against an order

passed by  the  High Court  in  Letters  Patent  Appeal  No.  261 of  2007

wherein the Appellate Authority altered the punishment of compulsory

retirement in terms of Rule 49(1) of the State Bank of India (Supervising

Staff)  Service  Rules1 to  one  of  reversion  to  the  post  of  Junior

Management Grade at the lowest stage vide order dated October 12,

1988.  Such order became the subject matter of challenge in C.W.J.C.

No. 444 of 1989.  The writ petition was dismissed but the letters patent

appeal  was  allowed.     The  Division  Bench  set  aside  the  order  of

punishment  on  the  ground  that  copy  of  the  Inquiry  Report  was  not

supplied to the delinquent before the Disciplinary Authority passed an

order  of  punishment,  but  was  supplied  along  with  the  order  of

punishment, therefore, there is complete violation of cardinal principle

of natural justice.

5. We  find  that  the  Constitution  Bench  judgment  reported  in

Managing Director, ECIL,  Hyderabad & Ors.  v.  B. Karunakar &

Ors.2 though quoted by the High Court, had been applied wrongly.  The

Disciplinary Authority has passed an order of punishment on August 12,

1988 i.e. before this Court in Union of India & Ors. v. Mohd. Ramzan

1  ‘Rules’. 2  (1993) 4 SCC 727

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Khan3 laid down that wherever Inquiry Officer has furnished a report to

the Disciplinary Authority at the conclusion of the inquiry holding the

delinquent  guilty  of  all  or  any  of  the  charges  with  proposal  for  any

particular punishment or not, the delinquent is entitled to a copy of such

report and will also be entitled to make a representation against it.  A

non-furnishing of the report would amount to violation of rules of natural

justice and make the final order liable to challenge hereafter.  However,

the  said  judgment  itself  has  given  prospective  effect  i.e.  that  the

inquiries concluded prior to the judgment dated November 20, 1990 will

not be affected by the law laid down in the said judgment.   

6. The  judgment  in  Mohd.  Ramzan case  was  approved  by  the

Constitution Bench in B. Karunakar, wherein it was held as under:  

“34. However,  it  cannot  be  gainsaid  that  while Mohd. Ramzan Khan case [(1991) 1 SCC 588 :  1991 SCC (L&S) 612 :  (1991) 16 ATC 505] made the law laid down there prospective in operation, while disposing of the cases which were  before  the  Court,  the  Court  through  inadvertence gave relief to the employees concerned in those cases by allowing  their  appeals  and  setting  aside  the  disciplinary proceedings. The relief granted was obviously per incuriam. The said relief  has,  therefore, to be confined only to the employees concerned in those appeals.  The law which is expressly made prospective in operation there, cannot be applied retrospectively on account of  the said error.  It  is now  well  settled  that  the  courts  can  make  the  law  laid down  by  them  prospective  in  operation  to  prevent unsettlement  of  the  settled  positions,  to  prevent administrative chaos and to meet the ends of justice. In this connection, we may refer to some well-known decisions on the point.”

7. Since  the  order  of  punishment  was  passed  by  the  Disciplinary

Authority prior to November 20, 1990, therefore, the same could not be

3  (1991) 1 SCC 588

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set aside only for the reason that the copy of the Inquiry Report was not

supplied to the delinquent.  Consequently, the order of the High Court in

LPA  No.  261  of  2007  is  set  aside  and  the  order  of  punishment  of

reversion to the post of Junior Management Grade at the lowest stage,

as modified by the Appellate Authority, is ordered to be restored.   

8. In view of the aforesaid, Civil Appeal arising out of Special Leave

Petition (Civil) No. 20770 of 2017 is allowed.   

9. The Civil  Appeal arising out of Special Leave Petition (Civil)  No.

20488 of 2017, is directed against an order passed by the High Court in

Letters Patent Appeal No. 258 of 2007 arising out of C.W.J.C. No. 2310 of

1995 filed by the respondent Mohammad Badruddin.   The challenge in

the writ petition is to an order dated November 4, 1993 by which the

respondent was inflicted penalty of removal from service.  The Division

Bench  set  aside  the  order  of  removal  on  the  ground  of  violation  of

principle of natural justice as the reasons of disagreement in respect of

charge Nos. 1 and 5 were not communicated to the delinquent.   

10. The memo of charge was served upon the respondent (delinquent)

on June 13, 1989 in respect of the following five charges:  

“CHARGE-1.  On  15.12.1983,  he  opened  a  Savings  Bank  Account  No. 11945 in a fake name viz. Shri Ajit Kumar Agrawal and also verified  the  forged  signature  appearing  on  the  relative account opening form. He thus showed gross negligence in opening the said account through which a series of frauds involving Rs.2,52,000/- were perpetrated, causing the Bank a pecuniary loss of the same amount.  The list of  fraudulent payment manipulated through the said account is given in Annexure 'A'.  

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CHARGE-2.  He passed the following  payments  (a  to  k)  from different Savings  Bank  Accounts  although  the  relative  instruments had not been posted in the concerned accounts:- Moreover, the balance of account no. 10586 at the time of making payments mentioned against b,  c,  d,  e and f  was Rs.875.44 only. All the aforementioned payments turned out to  be  fraudulent  once.  Had  he  cared  to  refer  to  the concerned  ledgers  before  passing  the  instruments,  frauds amounting to Rs.1,12,000/- could have been averted.  

CHARGE-3  He passed the aforementioned payment without satisfying himself that the relative instruments were in order in every particular and thereby violated the instructions contained in para  3(c),  Chapter2  of  the  Bank's  Book  of  Instructions, Volume-II.  

CHARGE-4 On the following dates (a to g of  the charge sheet) while checking the Clean Cash Book, he failed to notice that the figures of Savings Bank Account appearing therein did not tally  with  those of  Savings  Bank Summary Day Book.  His perfunctory  checking  of  the  Clean  Cash  Book  resulted  in suppression of frauds amounting to Rs.70,000/-.  

CHARGE-5  He  has  thus  not  only  failed  to  discharge  his  duties  with devotion  and diligence,  much  against  Rule  32(4)  of  State Bank  of  India  (Supervising  Staff)  Service  Rules  but  also caused a heavy pecuniary loss to the Bank.”

11. The Inquiry Officer in his Report dated February 5, 1992 held that

charge Nos. 1, 2, 3 and 5 were not proved against the delinquent though

charge No. 4 stands proved.  The Disciplinary Authority disagreed with

the findings in respect of charge Nos. 1 and 5 and held as under:  

“(i) The appellant failed to discharge his duties with devotion and diligence;  

(ii)  The  appellant  failed  to  interview  the  depositor  before opening Savings Bank Account No. 11945 and he also did not ensure completion of particulars by the depositors on the

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reverse  side  of  the  Account  Opening  –  cum  –  Specimen signature form, as a result a fake Savings Bank Account in the name of Shri  Ajit  Kumar Agrawal was opened through which  a  series  of  frauds  involving  Rs.2,52,000/-  were perpetrated.  The  said  action  indicated  gross  negligence which caused substantial financial loss to the Bank.  

(iii)The appellant was found guilty of perfunctory checking of Clean  Cash  Book  which  resulted  in  suppression  of  frauds amounting  to  Rs.70,000/-.  As  a  Branch  Manager,  he  also failed  to  notice  all  the  figures  of  Savings  Bank  Account appearing  in  the  Clean  Cash  Book  did  not  tally  with  the figures shown in the summary of Savings Bank day books on several  dates.  Had  he  carefully  checked  the  Clean  Cash Book, the difference would have come to light on the same day.”

12. On  the  basis  of  the  findings  recorded  and  keeping  in  view

punishment of reversion to Junior Manager Grade at the lowest stage

earlier, the delinquent was inflicted penalty of removal from service in

terms of  Rule 67(g)  of  the Rules.   The appeal  against  such order of

punishment was dismissed on March 8,  1995.  The writ  petition was

dismissed by the learned Single Bench on June 15, 2007.  But in an intra

court  appeal,  the  Division  Bench  set  aside  the  order  passed  by  the

learned Single Bench as also the order of punishment imposed by the

Disciplinary Authority.  The Division Bench relied upon Punjab National

Bank  &  Ors.  v.  Kunj  Behari  Misra4 to  hold  that  the  order  of

punishment stands vitiated as the reasons for disagreement with the

Inquiry Report have not been supplied to the delinquent.  The Bank is in

appeal  before  this  Court  against  such  order  passed  by  the  Division

Bench.

4  (1998) 7 SCC 84

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13. Learned counsel for the appellants submitted that the delinquent

faced Departmental Inquiry on five charges.  There is no disagreement

in respect of the findings recorded on charge No. 4.  The charge No. 4 is

a  grave  and  independent  charge  and,  therefore,  the  order  of

punishment will not warrant interference as the order of removal from

service on such charge alone cannot be said to be disproportionate to

the  misconduct.   The  reliance  is  placed  upon  Constitution  Bench

judgment in the case of  State of Orissa & Ors.  v.  Bidyabhushan

Mohapatra5 and  P.D. Agrawal  v.  State Bank of India & Ors.6 to

contend that in view of principle of severability of charges, the order of

punishment will  not  warrant  interference in  exercise of  the power  of

judicial  review  vested  with  the  High  Court  under  Article  226  of  the

Constitution  of  India.   Another  reason  which  weighed  with  the  High

Court was that previous punishment of reversion to the Junior Manager

in the lowest grade was taken into consideration though the delinquent

was not made aware of such fact in the proceedings.  It is contended

that such reasoning is not tenable in view of judgment of this Court in

Govt. of A.P. & Ors. v. Mohd. Taher Ali7 as also in Union of India &

Ors.  v.  Bishamber  Das  Dogra8.   It  is  also  argued  that  since  the

allegation against the delinquent relates to gross negligence of fraud

and  fraudulent  conduct  while  dealing  with  the  affairs  of  the  Bank,

therefore,  such  delinquent  who  was  entrusted  not  only  with  public

5  AIR 1963 SC 779 6  (2006) 8 SCC 776 7  (2007) 8 SCC 656 8  (2009) 13 SCC 102

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money but also with the money of customers,  does not warrant any

indulgence.   

14. On the other hand, learned counsel for the delinquent relies upon

the Constitution Bench judgment of this Court in State of Mysore v. K.

Manche Gowda9 to contend that before the past punishment is taken

into consideration, the delinquent has to be made aware of such fact.

The reliance is on the following:  

“8.   Before we close,  it  would be necessary to make one point  clear.  It  is  suggested  that  the  past  record  of  a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is  closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory  in  nature  and  the  final  authority  which scrutinizes  it  and  imposes  punishment  is  the  authority empowered  to  impose  the  same.  Whether  a  particular person  has  a  reasonable  opportunity  or  not  depends,  to some extent, upon the nature of the subject-matter of the enquiry.  But  it  is  not  necessary  in  this  case  to  decide whether  such  previous  record  can  be  made  the  subject matter  of  charge  at  the  first  stage  of  the  enquiry.  But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry,  for  essentially  it  relates  more  to  the  domain  of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same.”

15. Learned  counsel  also  relied  upon  the  judgment  in  Nicholas

Piramal India Limited  v.  Harisingh10 to support the said argument

that the past record could not be taken into consideration without notice

9  AIR 1964 SC 506 10   (2015) 8 SCC 272

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to the delinquent, therefore, the punishment of removal by taking into

consideration previous punishments, is not tenable.     

16. The argument of Mr. Vishwanathan, learned senior counsel for the

appellants  is  that  the  Constitution  Bench  judgment  in  K.  Manche

Gowda is in respect of provisions of Article 311 as they existed prior to

amendment of the said provision by the 42nd Constitutional Amendment.

The reliance is placed upon  Mohd. Ramzan Khan’s case as affirmed

by the Constitution Bench in B. Karunakar’s case to contend that after

the constitutional amendment, no notice of the proposed punishment is

required to be served.  Therefore, the ratio of the judgment relating to

pre 42nd constitutional  amendment will  not  be applicable  to the post

amendment proceedings.

17. We have heard the learned counsel for the parties and find merit

in the arguments raised by Mr. Vishwanathan, learned senior counsel for

the  appellants,  to  some extent.   The 42nd Constitutional  Amendment

deleted the following words appearing in clause (2) of Article 311 of the

Constitution of India, which reads as under:

“and where it is proposed, after such inquiry to impose on him any such penalty, until he has been given a reasonable opportunity  of  making  representation  on  the  penalty proposed,  but  only  on the basis  of  the evidence adduced during such inquiry.”

18. A  perusal  of  such  omitted  provisions  would  show  that  an

opportunity  was  required  to  be  given  to  submit  a  representation  on

penalty  proposed  but  such  requirement  had  been  omitted  by  42nd

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Constitutional  Amendment.   This  Court  in  Mohd.  Ramzan case

considered the effect of amendment and held as under:

“9. Where,  however,  the  Inquiry  Officer  furnishes  a  report with  or  without  proposal  of  punishment  the  report  of  the Inquiry Officer does constitute an additional material which would be taken into account by the disciplinary authority in dealing  with  the  matter.  In  cases  where  punishment  is proposed  there  is  an  assessment  of  the  material  and  a tentative  conclusion  is  reached  for  consideration  of  the disciplinary  authority  and  that  action  is  one  where  the prejudicial  material  against  the  delinquent  is  all  the more pronounced.

xx xx xx

12. We  have  already  noticed  the  position  that  the  Forty- second  Amendment  has  deleted  the  second  stage  of  the inquiry which would commence with the service of a notice proposing one of the three punishments mentioned in Article 311(1)  and  the delinquent  officer  would  represent  against the same and on the basis of such representation and/or oral hearing granted the disciplinary authority decides about the punishment.  Deletion  of  this  part  from  the  concept  of reasonable opportunity in Article 311(2), in our opinion, does not bring about any material change in regard to requiring the copy of the report to be provided to the delinquent.

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15. Deletion of the second opportunity from the scheme of Article  311(2)  of  the  Constitution  has  nothing  to  do  with providing of  a copy of  the report  to the delinquent in the matter  of  making  his  representation.  Even  though  the second  stage  of  the  inquiry  in  Article  311(2)  has  been abolished by amendment, the delinquent is still  entitled to represent  against  the  conclusion  of  the  Inquiry  Officer holding  that  the  charges  or  some  of  the  charges  are established  and  holding  the  delinquent  guilty  of  such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report  becomes  necessary  and  to  have  the  proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally

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ruled out or truncated, nothing has been done here which could  be  taken  as  keeping  natural  justice  out  of  the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are  not  affected  by  the  Forty-second  Amendment.  We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter  of  proposed  punishment  to  be  inflicted  would  be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.”

19. Later, the Constitution Bench in  B. Karunakar affirmed the said

judgment to hold that it was no longer necessary to issue a notice to the

delinquent employee to show cause against the punishment proposed.

The Court held as under:

“19.  In Mohd. Ramzan Khan case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505] the question squarely fell for consideration before a Bench of three learned Judges of  this  Court,  viz.,  that  although on account  of  the Forty- second  Amendment  of  the  Constitution,  it  was  no  longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer's report along with the  notice  to  make  representation  against  the  penalty, whether it was still necessary to furnish a copy of the report to  him to  enable  him to  make representation  against  the findings  recorded  against  him  in  the  report  before  the disciplinary authority took its own decision with regard to the guilt  or  otherwise  of  the  employee  by  taking  into consideration the said report. The Court held that whenever the enquiry  officer  is  other  than the disciplinary  authority and  the  report  of  the  enquiry  officer  holds  the  employee guilty  of  all  or  any  of  the  charges  with  proposal  for  any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non-furnishing of the  report  amounts  to  a  violation  of  the  rules  of  natural justice.  

xx xx xx

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25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the  first  stage  of  the  inquiry  viz.,  before  the  disciplinary authority takes into consideration the findings in the report, the  right  to  show  cause  against  the  penalty  proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is  to  plead for either  no penalty  or  a  lesser  penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.

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29.  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  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.

30. (iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the  opportunity  of  defence  against  the  charges  and  is  a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should  apply  to  employees  in  all  establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or  not and whether  they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever  the  rules  require  an  inquiry  to  be  held,  for inflicting  the  punishment  in  question,  the  delinquent employee  should  have  the  benefit  of  the  report  of  the

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enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.”

(Emphasis supplied)

20. In  K. Manche Gowda’s  case, the Inquiry Officer recommended

that the delinquent may be reduced in rank.  But while serving show

cause  notice  after  the  report  of  the  Inquiry  Officer,  the  Disciplinary

Authority proposed punishment of dismissal from service.  The order of

punishment  considered  the  previous  punishments  imposed  upon  the

delinquent  to  come to  the  conclusion  that  the  delinquent  is  unfit  to

continue in Government service and, therefore, he was ordered to be

dismissed  from  service.   It  was,  in  these  circumstances,  the  Court

ordered that the past conduct can be taken into consideration during

the  second  stage  of  inquiry,  which  essentially  relates  more  to  the

domain  of  punishment  rather  than  to  that  of  guilt.   An  opportunity

should be given to the delinquent to know that fact and meet the same.

21. The omission of the words from clause (2) of Article 311 of the

Constitution reproduced above completely changes the requirement of

serving notice in respect of the proposed punishment.  The amended

provisions  of  Article  311  of  the  Constitution  of  India  have  been

considered  in  Mohd.  Ramzan’s  case  and  later  in  B.  Karunakar’s

case. The judgment of this Court in  Nicholas Piramal India Limited

arises out of an Award passed by the Labour Court under the Industrial

Disputes Act, 1947.  The jurisdiction of the Labour Court is much wider

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where the punishment can be reviewed by the Labour Court in terms of

Section 11-A of the said Act.

22. This Court in Punjab National Bank and Others v. K. K. Verma11

has taken the same view that right to represent against the proposed

penalty has been taken away by the 42nd Amendment. It was so held:  

“32. Thus, the right to represent against the findings in the inquiry report to prove one's innocence is distinct from the right to represent against the proposed penalty. It is only the second  right  to  represent  against  the  proposed  penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way.  In  fact,  any denial  thereof  will  make the final order vulnerable.”

23. Thus,  the requirement  of  second show cause notice  of  proposed

punishment  has  been dispensed  with.   The  mandate  now is  only  to

apprise  the  delinquent  of  the  Inquiry  Officer’s  report.   There  is  no

necessity  of  communicating  proposed  punishment  which  was

specifically  contemplated  by  clause  (2)  of  Article  311  prior  to  42nd

Amendment.

24. The  previous  punishments  could  not  be  subject  matter  of  the

charge sheet as it is beyond the scope of inquiry to be conducted by the

Inquiry  Officer  as  such  punishments  have  attained  finality  in  the

proceedings.   The  requirement  of  second  show  cause  notice  stands

specifically  omitted  by  42nd Amendment.  Therefore,  the  only

requirement now is to send a copy of Inquiry Report to the delinquent to

meet the principle of natural justice being the adverse material against

11 (2010) 13 SCC 494

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the delinquent.  There is no mandatory requirement of communicating

the proposed punishment. Therefore, there cannot be any bar to take

into consideration previous punishments in the constitutional scheme as

interpreted by this Court. Thus, the non-communication of the previous

punishments in the show cause notice will not vitiate the punishment

imposed.

25. In  Kunj  Behari  Misra,  it  is  categorically  held  that  when  the

Inquiry Report is in favour of the delinquent officer but the Disciplinary

Authority proposes to differ with such conclusions then that Authority

must give the delinquent an opportunity of being heard, for otherwise

he would be condemned unheard.  The Court held as under:

“17.  These  observations  are  clearly  in  tune  with  the observations  in Bimal  Kumar  Pandit  case [AIR  1963  SC 1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier and would be applicable at  the first  stage itself.  The aforesaid passages  clearly  bring  out  the  necessity  of  the  authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] the first stage required  an  opportunity  to  be  given  to  the  employee  to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The  first  stage  of  the  enquiry  is  not  completed  till  the disciplinary  authority  has  recorded  its  findings.  The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give  him a  hearing.  When the  enquiring  officer  holds  the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary  authority  takes  further  action  which  may  be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer

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but  the disciplinary  authority  proposes  to  differ  with  such conclusions,  then  that  authority  which  is  deciding  against the delinquent officer must give him an opportunity of being heard  for  otherwise  he  would  be  condemned  unheard.  In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.”

26. The judgment of this Court in Bidyabhushan Mohapatra’s case

is not applicable to the facts of  the present case as in the aforesaid

case,  the  High  Court  has  held  that  the  findings  of  the  Tribunal  on

charges 1(a) and 1(e) were vitiated because it had failed to observe the

rules of natural justice.  In the present case, the delinquent has not been

apprised  of  reasons  of  disagreement  which  were  required  to  be

communicated to the delinquent in view of the judgment of this Court in

Kunj Behari Misra’s case prior to the stage of imposing punishment.

Since the reasons of disagreement were not communicated, the order of

removal from service would be in realm of conjectures as to whether

punishment of removal would be sustainable on charge No. 4 alone. The

judgment  referred  to  is  only  in  respect  of  punishment  which  is  the

second stage after recording of finding of the guilt.  In the present case,

the pre-requisite condition of communicating reasons of disagreement

has  not  been  complied  with,  which  is  leading  to  finding  of  guilt.

Therefore,  the judgment is  not applicable to the facts of  the present

case.   

27. In P.D. Agrawal’s case, the delinquent was in appeal against an

order whereby the action against the delinquent was maintained.  This

Court in P.D. Agrawal’s case held as under:

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“50.  We  are, therefore, of the opinion that charge 2 being severable,  this  Court  can  proceed  on  the  basis  that  the charges against the appellant in respect of charge 2 were not proved.

xx xx xx

54. For the reasons aforementioned, we are of the opinion that  it  is  not  a  fit  case where  this  Court  should  exercise  its discretionary jurisdiction under Article 136 of the Constitution. This appeal is, therefore, dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.”

 28. In  the present  case,  the High Court  has set  aside the order of

punishment on the ground that it violates the principle of natural justice.

This Court has not found reasons to set aside the order of punishment

whereas in a case where order of punishment has been set aside, the

principles of natural justice would warrant that the matter is remitted

back to the Disciplinary Authority to consider whether the removal of

the delinquent on the basis of charge No. 4 alone can be sustained or

not.

29. In view of the said judgment, the findings recorded by the Division

Bench  that  the  order  of  punishment  passed  on  the  basis  of

uncommunicated reasons of disagreement recorded in respect of charge

Nos.  1  and  5  cannot  be  faulted  with.   In  fact,  the  argument  of  Mr.

Vishwanathan is that charge No. 4 alone is sufficient to maintain the

order of  punishment of  removal from service.   Though, charge No. 4

may be sufficient to inflict punishment but it is not necessary that the

charge  No.  4  alone  will  entail  punishment  of  removal  from  service.

While exercising the power of judicial review, it will not be within our

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jurisdiction to maintain the order of punishment of removal from service

in  view  of  findings  recorded  on  charge  No.  4  itself.   It  is  for  the

Disciplinary  Authority  to  inflict  punishment  as  it  may  consider

appropriate  after  finding  the  charge  No.  4  proved  against  the

delinquent.   

30.  It  is  admitted  that  the  delinquent  has  attained  the  age  of

superannuation.   Though,  the parties  are at  variance on the date of

superannuation  but  the  fact  remains  that  in  view  of  the  finding  on

charge  No.  4  proved  against  the  delinquent  to  which  there  was  no

disagreement,  we  find  that  the  order  of  the  High  Court  granting

consequential benefits to the delinquent is not justified.  However, the

question required to be examined is what are the options available at

this stage.   

31. In  B.  Karunakar  case,  the  Constitution  Bench  examined  the

question as to what should be the order if the principle of natural justice

has not been applied with and the order of punishment stands vitiated

on that account.  The Court held that if the order of punishment stands

vitiated, the proper relief is to direct reinstatement with liberty to the

management  to  proceed  with  the  inquiry,  by  placing  the  employee

under  suspension  and  continuing  the  inquiry  from  the  stage  of

furnishing him with the report.  The question of back wages and other

benefits  should  invariably  be  left  to  be  decided  by  the  authority

concerned according to law, after the culmination of  the proceedings

and depending upon the final outcome.  The Court held as under:  

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“31.   …….It  is  only  if  the  Court/Tribunal  finds  that  the furnishing of the report would have made a difference to the result  in  the  case  that  it  should  set  aside  the  order  of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee  with  liberty  to  the  authority/management  to proceed  with  the  inquiry,  by  placing  the  employee  under suspension  and  continuing  the  inquiry  from  the  stage  of furnishing  him with  the  report.  The  question  whether  the employee  would  be  entitled  to  the  back-wages  and other benefits from the date of  his  dismissal  to  the date of  his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the  final  outcome.  If  the  employee  succeeds  in  the  fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be  entitled.  The  reinstatement  made  as  a  result  of  the setting aside of the inquiry for failure to furnish the report, should  be  treated  as  a  reinstatement  for  the  purpose  of holding the fresh inquiry  from the stage of  furnishing the report and no more, where such fresh inquiry is held.  That will also be the correct position in law.”

32. Since  the  delinquent  has  attained  the  age  of  superannuation,

there cannot be any order of reinstatement or of suspension.  In view

thereof, the order of punishment dated November 4, 1993 as also the

order  of  the  Appellate  Authority  are  set  aside  and  the  matter  is

remanded back to the Disciplinary Authority to consider as to whether it

would like to record reasons of disagreement on charge Nos. 1 and 5

and/or impose punishment on the basis of charge No. 4 with which there

is no disagreement,  as it may consider appropriate.

33. In view of the aforesaid, Civil Appeal arising out of Special Leave

Petition  (Civil)  No.  20488 of  2017 is  allowed.   Since,  admittedly  the

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delinquent  has  attained  the  age  of  superannuation,  we  direct  the

Disciplinary Authority to pass an appropriate order within three months

of the receipt of copy of this judgment in respect of payment of back

wages as well as terminal benefits, if any, payable to the delinquent.   

34. With the said directions and liberty, the appeals stand disposed of.

………...…………..........................J.       (L. Nageswara Rao)

….……….….................................J.       (Hemant Gupta)

New Delhi, July 16, 2019.

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