UNION OF INDIA AND ORS.versusMOHD. RAMZAN KHAN

                       UNION OF INDIA AND ORS.
A
                                        v.
                          MOHD. RAMZAN KHAN

                             NOVEMBER 20, 1990

B          [RANGANATH MISRA, C.J, P.B. SAWANT AND
                    K. RAMASWAMY, JJ.]

          Constitution of India, 1950-Article 311(2)-Deletion of second
    notice proposing punishments mentioned in Article 3 I I (2 ), by the Forty-
    Second Amendment-Whether delinquent entitled to copy of inquiry
    report before imposing punishment-Non-supply of report-Whether
c   violates rules of natural justice.

          Constitution of India, 1950-Articles 14, JI I-Supply of inquiry
    report in the case of the inquiry officer not being the disciplinary autho-
    rity and non-supply of the report in the case of the inquiry officer being
D   the disciplinary authority~Whether Article 14 attracted.

          In the civil appeals by special leave, the short point for detennina-
    tion was whether with the alteration of the provisions of A11icle 311(2)
    under the Forty-Second Amendment of the Constitution doing away
    with the opportunity of showing cause against the proposed punish-
E   ment, the delinquent has no right to be entitled to a copy of the report of
    inquiry in the disciplinary proceedings.                           ·

          Dismissing the appeals, this Court,

         HELD: 1. The Forty-Second Amendment has deleted the second
F  stage of the inquiry which would commence with the service of a notice
   proposing one of the three punishments mentioned in Art. 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 Art. 311(2) does not bring about
G any material change in regard to requiring the copy of the report to be
   provided to the delinquent. [255H-256C]

       2. Deletion of the second opportunity from the scheme of Art.
  311(2) 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
H second stage of the inquiry in Art. 311(2) has been abolished by amend-

                                        248
                       U.0.1. v. MOHD. RAMZAN                         249

ment, the delinquent is still entitled to represent against the conclusion
                                                                             A
of the Inquiry Officer holding th.at 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 recomen-
dations of the Inquiry Officer in the matter of imposition of punish-
ment, furnishing a copy of the report becomes necessary and to have the
proceeding completed by using some material behind th~ back of the           B
delinquent is a position not countenanced by fair procedure. [257C-F)

     3. While by law application of natural justice could be totally
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 applic-
able to such an inquiry are not affected by the 42nd Amendment.
                                                                             c
Supply of a copy of the inquiry report along with recommendations, 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 Amend-
ment has not brought about any change in this position. [257E-H)             D

      4. Where the disciplinary authority is the Inquiry Officer there is
no report. He becomes the first assessing authority to consider the
evidence directly for finding out whether the delinquent in guilty and
liable to be punished. Even otherwise, the inquiries which are directly
handled by the disciplinary authority and those which are allowed to be      E
handled by the Inquiry Officer can easily be. classified into two
separate groups--0ne, where there is no inquiry report on account of
the fact that the disciplinary authority is the Inquiry Officer and
inquiries where there is a report on account of the fact that an officer
other than the disciplinary authority has been constituted as the
Inquiry Officer. [258A-C)                                                    F

      5. Wherever there has been an Inquiry Officer and he 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 11f such report and will also be entitled to make a       G
representation against it, if he so desires, and non-furnishing of the
report would amount to violation of rules of natural _justice and make
the final order liable to challenge hereafter. [258E-G I

     Khem Chand v. Union of India & Ors., [1958) SCR 1080;
R. Venkata Rao v. Secretary of State for India, 64 IA 55; High Commis-       H
     250         SUPREME COURT REPORTS                (1990) Supp. 3 S.C.R.

4.   sioner for India v. /.M. Lall, 15 IA 225; Secretary of State for India v.
     I.M. Lall, [1945) FCR 103; State of Maharashtra v. Paishankar Ava/-
     tam Joshi & Anr., (1969) 3 SCR 917; Avtar Singh v. Inspector General,
     SLR (1968) SC 131; Union of India v. H.C. Goel, (1964] 4 SCR 718;
     State of Gujarat v. R.G. Teredesai & Anr., (1970) 1 SCR 251; Uttar
     Pradesh Government v. Sabir Hussain, (1975) Suppl. SCR 354;
B    Mazharul Islam Hashmi v. State of U.P. & Anr., [1979) 4 SCC 537,
     referred to.
           Prof. Wade on Administrative Law, referred to.
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 571 of 1985.
                                WITH
C         (Civil Appeal Nos. 5415, 5401, 5434 & 5419 of 1990 and
     839/88, 2581/89, 1447/88, 3480/90, I.A. Nos. 1.3 in C.A. No. 90/89,
     CAS. 1521/82, 942/89, 1508-09/88, 2454-55/82, CMPs. 5959-60/88.)
           From the Judgment and Order dated 26.6.1984 of the Jammu &
     Kashmir High Court in LP.A. (Writ) No. 10of1983.
D          N .S. Hegde, Additional Solicitor General, Arnn Jaitley Addi-
     tional Solicitor General, R.B. Datar, Heman! Sharma, B.K. Prasad,
     Maninder Singh, Ms. Indu Goswamy, A.M. Khanwilkar, P. Parmesh-
     waran, C.V.S. Rao, K.R.R. Pillai, Madan Lokur, Uma Datta, Vrinda
     Dhar, S.K. Agnihotri, T.V.S.N. Chari, M. Veerappa, K.R. Nagaraja,
     Ms. M. Karanjawala, R.F. Nariman, Ms. Urmila Sirur, Ms. Rani
E    Chhabra, R.N. Keshwani, Ms. Sushma Suri and Diwan Balakram for
     the appearing parties.
           The Judgment of the Court was delivered by
          RANGANATH MISRA, C.J. Special leave granted in Special
     Leave Petitions. All the Civil Appeals by special leave are heard
F    together.
           The short point that falls for determination in this bunch of ap-
     peals is as to whether with the alteration of the provisions of Art.
     311(2) under the Forty-Second Amendment of the Constitution doing
     away with the opportunity of showing cause against the proposed
G    punishment, the delinquent has lost his right to be entitled to a copy of
     the report of enquiry in the disciplinary proceedings.

           Sub-Art. (2) of Art. 311 in the original Constitution read thus:

                 "No such person as aforesaid shall be dismissed or
H                removed or reduced in rank until he bas been given a
         U.O.l. v. MOHD. RAMZAN [RANGANATII MISRA. CJ.]                 251

            reasonable opportunity of showing cause against the action
                                                                               A
            proposed to be taken in regard to him;."

The effect of this provision came to be considered by a Constitutio_n
Bench of this Court in Khem Chand v. Union of India & Ors., [1958]
SCR 1080. The learned Chief Justice traced the history of the growth
of the service jurisptudence relating to security of the civil service in      B
the country beginning from the Government of India Act of W15
followed bys. 240 of the Government of India Act of 1935. This Court
on that occasion also noticed the· judgments of the Privy Council in the
cases of R. Venkata Rao v. Secretary of State for India, 64 IA 55, High
Commissioner for India v. J.M. Lall, 75 IA 225 and the judgment of
the Federal Court in Secretary of State for India v. J.M. Lall, [1945]
FCR 103, and summed up the meaning of 'reasonable opportunity'                 c
thus:

                  "The reasonable opportunity envisaged by the provi-
            sion under consideration includes-
                                                                               D
                 (a) an opportunity to deny his guilt and establish his
            innocence, which he can only do if he is told what the
            charges levelled against him are and the allegations on
            which such charges are based;                ·

                  (b) an opportunity to defend himself by cross·exa-           E
            mining the witnesses produced against him and by examin-
            ing himself or any other. witnesses in support of his defence;
            and finally

                 (c) an opportunity to• make his representation· as to
            why the proposed punishment should not be inflicted on             F
            him, which he can on"ly do if the competent authority, after
           the enquiry is over and after applying his mind to the gravity or
           otherwise of the charges proved against the government
           servant tentatively proposed to inflict one of the three
           punishments and communicates the same to the govero-
           ment servant.''          ·                                          G
     The Fifteenth Amendment effective from 6. 10. 1963 brought
about c.hange in sub-Art. (2) which thereafter read as hereunder:

           "No suh• person as aforesaid shall' be· dismissed.or removed
           or reduced in rank except after an• enquiry in which he has         H
    252         SUPREME COURT REPORTS                [1990] Supp. 3 S.C.R.

              · been informed of the charges against him and given a
A               reasonable opportunity of being heard in respect of those
                charges 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
B               adduced during such inquiry."

          After the amendment this Court decided a series of cases
    wherein it indicated that a failure to furnish a copy of the report of the
    Inquiry Officer would result in violation of the guarantee of reason-
    able opportunity: State of Maharashtra v. Paishankar Ava/ram Joshi
    & Anr., [1969] 3 SCR 917; Avtar Singh v. Inspector General, SLR
c   ( 1968) SC 131.

        A Constitution Bench in Union of India v. H.C. Goel, [1964] 4
    SCR 718 proceeded to say:

D               "Article 311 consists of two sub-articles and their effect is
                no longer in doubt. The question about the safeguards pro-
                vided to the public servants in the matter of their dismissal,
                removal or reduction in rank by the Constitutional provi-
                sion contained in Art. 311, has been examined by this court
                on several occasions. It is now well-settled that a public
E               servant who is entitled to the protection of Art. 311 must
                get two opportunities to defend himself. He must have a
                clear notice of the charge which he is called upon to meet
                before the departmental enquiry commences, and after he
                gets such notice and is given the opportunity to offer his
                explanation, the enquiry must be conducted according to
F               the rules and consistently with the requirements of natural
                justice. At the end of the enquiry, the enquiry officer
                appreciates the evidence, records his conclusions and sub-
                mits his report to the Government concerned. That is the
                first stage of the enquiry, and this stage can validly begin
                only after charge has been served on the delinquent public
G               servant.

                After the report is received by the Government, the
                Government is entitled to consider the report and the
                evidence led against the delinquent public servant. The
                Government may agree with the report or may differ,
H               either wholly or parcially, from the conclusions recorded in
        U.0.1. v. MOHD. RAMZAN fRANGANATH MISRA, O.J              253

           the report. If the report makes findings in favour of the A
           public servant, and the Government agrees with the said
           findings, nothing more remains to be done, and the public
           servant who may have been suspended is entitled to rein-
          statement and consequential reliefs. If the report makes
           findings in favour of the public servant and the Govern-
           ment disagree with the said findings and holds that the B
           charges framed against the public servant are prima facie
           proved, the Government should decide provisionally what
           punishment should be imposed on the public servant and
           proceed to issue a second notice against him in that behalf.
           If the enquiry officer makes findings, some of which are in
           favour of the public servant and some against him, the
           Government is entitled to consider the whole matter and if C
           it holds that some or all the charges framed against the
           public servant are, in its opinion, prima facie established
           against him, then also the Government has to decide provi-
           sionally what punishment should be imposed on the public
           servant and give him notice accordingly. It would thus be D
           seen that the object of the second notice is to enable the
           public servant to satisfy the Government on both the
           counts, one that he is innocent of the charges framed
           against him and the other that even if the charges are held
           proved against him, the punishment proposed to be
           inflicted upon him is unduly severe. This position under E
           Art. 311 of the Constitution is substantially similar to the
           position which governed and public servants under s. 240 of
           the Government of India Act, 1935."

      Then came the Forty-Second Amendment of the Constitution
under which the sub-Art. (2) was substantially altered. As amended in    F
1976 the sub-Articles now reads:

           "No such person as aforesai<! shall be dismissed or remo-
           ved or reduced in rank except after an enquiry in which he
           has been informed of the charges against him and given a
           reasonable opportunity of being heard in respect of those     G
           charges.

                 Provided that where it is proposed, after such
           inquiry, to impose upon him any such penalty, such penalty
           may be imposed on the basis of the evidence adduced dur-
           ing such inquiry and it shall not be necessary to give such   H ,
     254          SUPREME COURT REPORTS                  [ 1990] Supp. 3 S.C.R.

                  person any opportunity of making representation on the
A                 penalty proposed:"

     In terms, the omission of the words 'and where it is proposed, after
     such inquiry, to impose on him any other penalty, until he has been
     given a reasonable opportunity of making representation on the
B    penalty proposed, but only on the basis of the evidence adduced dur-
     ing such inquiry' as also the proviso clearly omit the second part of the
     inquiry as envisaged in Goel's case and the concept of 'reasonable
     opportunity' is satisfied by the delinquent being informed of the
     charges and of being heard in respect thereof.
           We may now refer to the rules relating to disciplinary inquiry
c   against government servants. The Central Civil Services (Classifica-
    tion, Control and Appeal) Rules in force are of 1965. In the States they
    have their own Rules but the Rules whether of the Centre or of the
    States have adopted a common pattern. In respect of major penalties
    the procedure in the Rules (See Rule 14) seems to be that the discipli-
    nary authority may himself hold the inquiry into the charges or he may
D   appoint an Inquiry Officer who would conduct the inquiry and submit
    the proceedings of enquiry to the disciplinary authority for being
    finalised. When the disciplinary authority himself inquires into the
    charges there is no occasion for submission of an inquiry report. The
    entire evidence-oral and documentary-along with submissions, if
    any, are available to him to proceed to arrive at final conclusion in the
E   inquiry. Where, however, the disciplinary authority delegates the
    inquiry to another, such Inquiry Officer may furnish a report on the
    basis of the evidence recorded by him and in some cases the Inquiry
    Officer even recommends the punishment to be imposed. In cases
    where the Inquiry Officer merely transmits the records of inquiry pro-
    ceedings to the disciplinary authority there is indeed no distinction to
F   be drawn between the inquiry conducted by the disciplinary authority
    himself of the inquiry officer. This is so on account of the fact that
    there is no further material added to the record at the time of transmis-
    sion to the disciplinary authority.

        Where, however, the Inquiry Officer furnishes a report with or
G without proposal of punishment the report of the Inquiry Officer does
  constitute an additional material which would be taken into account by
  the discip_linary authority in dealing with the matter. In cases where
  punishment is proposed the_re 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 delin-
H quent is all the more pronounced.
            U.0.1. v. MOHD. RAMZAN [RANGANATH MISRA, CJ.]              255

          A Three-Judge Bench of this Court in State of Gujarat v. R.G . . A
    Teredesai & Anr., [1970] 1 SCR 251 has indicated that the Inquiry
    Officer was under no obligation or duty to make any recommendations
    in the matter of punishment to be imposed on the government servant
    against whom the departmental inquiry is held and his function merely
    is to conduct the inquiry in accordance with law and to submit the
    record along with the findings or conclusions on the delinquent
    servant. But if the Inquiry Officer has also made recommendations in
    the matter of punishment, that is likely to affect the mind of the
    punishing authority with regard to penalty or punishment to be
    imposed on such officer which must be disclosed to the delinquent
.   officer. Since such recommendation forms part of the record and con-
    stitutes appropriate material for consideration of the Government, it
'   would be essential that that material should not be withheld from him
                                                                              c
    so that he could while showing cause against the proposed punishment
    make a proper representation. The entire object of supplying a copy of
    the report of the Inquiry Officer is to enable the delinquent officer to
    satisfy the punishing authority that he is innocent of the charges
    framed against him and that even if the charges are held to have been D
    proved the punishment proposed to be inflicted is unduly severe. At
     p. 254 of the Reports Grover, J. speaking for this Court stated:
               "The requirement of a reasonable opportunity, therefore,
               would not be satisfied unless the entire report of the
I              Inquiry Officer including his views in the matter of punish-
               ment are disclosed to the delinquent servant."
                                                                              E.

    Another three-Judge Bench decision of this Court is that of Uttar
    Pradesh Government v. Sabir Hussain, I1975] Suppl. SCR 354 where this
    Court held:
                                                                              F
               "In view of these stark facts the High Court was right in
               holding that the plaintiff (respondent) was not given a
               reasonable opportunity to show cause against the action
               proposed to be taken against him and that the non-supply
               of the copies of the material documents had caused serious
               prejudice to him in making a proper representation."
                                                                              G
    The question which has now to be answered is whether the Forty-
    Second Amendment has brought about any change in the position in
    the matter of supply of a copy of the report and the effect of non-
    supply thereof on the punishment imposed.
                                                                              H
         We have already noticed the position that the Forty-Second
     256         SUPREME COURT REPORTS                [ 1990] Supp. 3 S.C.R.

    Amendment has deleted the second stage of the inquiry which would
A
    commence with the service of a notice proposing one of the three
    punishments mentioned in Art. 311(1) and the delinquent officer
    would represent against the same and on the basis of such representa-
    tion and/or oral hearing granted the disciplinary authority decides
    about the punishment. Deletion of this part from the concept of
B   reasonable opportunity in Art. 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.

          Several pronouncements of this Court dealing with Art. 311(2)
    of the Constitution have laid down the test of natural justice in the
    matter of meeting the charges. This Court on one occasion has stated
c that two phases of the inquiry contemplated under Art. 311(2) prior to
    the 42nd Amendment were judicial. That perhaps was a little stretching
    the position. Even if it does not become a judicial proceeding, there
    can be no dispute that it is a quasi-judicial one. There is a charge and a
    denial followed by an. inquiry at which evidence is led and assessment
D of the material before conclusion is reached. These facts do make the
    matter quasi-judicial and attract the principles of natural justice. As
    this Court rightly pointed out in the Gujarat case, the disciplinary
    authority is very often influenced by the conclusions of the Inquiry
    Officer and even by the recommendations relating to the nature of
    punishment to be inflicted. With the Forty-Second Amendment, the
E delinquent officer is not associated with the disciplinary inquiry
    beyond the recording of evidence and the submissions made on the
                                                                                 I
    basis of the material to assist the Inquiry Officer to come to his conclu-
    sions. In case his conclusions are kept away from the delinquent officer
    and the lnq uiry Officer submits his conclusions with or without recom-
    mendation as to punishment, the delinquent is precluded from know-
F   ing the contents thereof although such material is used against him by
  - the disciplinary authority. The report is an adverse material if the
    Inquiry Officer records a finding of guilt and proposes a punishment so
    far as the delinquent is concerned. In a quasi-judicial matter, if the
    delinquent is being deprived of knowledge of the material against him
    though the same is made available to the punishing authority in the
G matter of reaching his conclusion, rules of natural justice would be
    affected. Prof. Wade has pointed out:

                "The concept of natural justice has existed for many
                centuries and it has crystalised into two rules: that no man
                should be judge in his own cause; and that no men should
H               suffer without first being given a fair hearing. They (the
              U.0.1. v. MOHD. RAMZAN [RANGANATH MISRA, CJ.]               257


                 Courts) have been developing and extending the principles
                                                                                 A
                 of natural justice so as to build up a kind of code of fair
                 administrative procedure to be obeyed by authorities of all
                 kinds. They have done this once again, by assuming that
                 Parliament always intends powers to be exercised fairly."
                                                       (Administrative Law)
                                                                                 B
           This Court in Mazharul Islam Hashmi v. State of U.P. & Anr.,
     [ 1979] 4 sec 537 pointed out:

                 "Every person must know what he is to meet and he must
                 have opportunity of meeting that case. The legislature,
                 however, can exclude operation of these principles expre-
                 ssly or implicity. But in the absence of any such exclusion,    c
                 the principle of natural justice will have to be proved."

            Deletion of the second opportunity from tl)e scheme of Art.
.,
 )
     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 representa-        D
     tion. Even though the second stage of the inquiry in Art. 311(2) has
     been abolished by amendment, the delinquent is still entitled to repre-
     sent against the conclusion of the Inquiry Officer holding that the
     charges or some of the charges are established and holding the delin-
     quent guilty of such charges. For doing away with the effect of the
     enquiry report or to meet the recommendations of the Inquiry Officer        E
     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 ruled out or truncated, nothing has been done
     here which could be taken as keeping natural justice out of the pro-        F
     ceedings and the series of pronouncements of this Court making rules
     of natural justice applicable to such an inquiry are not affected by the
     42nd Amendment. We, therefore, come to the conclusion that supply
     of a copy of the inquiry report along with recommendations, if any, in
     the matter ofproposed punishment to be inflicted would be within the
     rules of natural justice and the delinquent would, therefore, be en-        G
     titled to the supply of a copy thereof. The Forty-Second Amendment
      has not brought about any change in this position.
           At the hearing some argument had been advanced on the basis of
     Art. 14 of the Constitution, namely, that in one set of cases arising out
     of disciplinary proceedings furnishing of the copy of the inquiry report    H
     would be insisted upon while in the other it would not be. This argu-
A
    258          SCPREME COURT REPORTS                [ 1990] Supp. 3 S.C.R.

    men! has no foundation inasmuch as where the disciplinary authority is
                                                                                  ..
    the Inquiry Officer there is no report. He becomes the first assessing
    authority to consider the evidence directly for finding out whether the
    delinquent is guilty and liable to be punished. Even otherwise, the
    inquiries which are directly handled by the disciplinary authority and
    those which are allowed to be handled by the Inquiry Officer can easily
                                                                                  .   ..

B   be classified into two separate groups-one, where there is no inquiry
    report on account of the fact that the disciplinary authority is the
    Inquiry Officer and inquiries where there is a report on account of the
    fact that an officer other than the disciplinary authority has been con-
    stituted as the Inquiry Officer. That itself would be a reasonable clas-
    sification keeping away the application of Art. 14 of the Constitution.

c         There have been several decisions in different High Courts which,
    following the Forty-Second Amendment, have taken the view that it is
    no longer necessary to furnish a copy of the inquiry report to delin.-
    quent officers. Even on some occasions this Court has taken that view.
    Since we have reached a different conclusion the judgments in the
D   different High Courts taking the contrary view must be taken to be no
    longer laying down good law. We have not been shown any decision of
    a coordinate or a larger Bench of this Court taking this view. There-
    fore, the conclusion to the contrary reached by any two-Judge Bench
    in this Court will also no longer be taken to be laying down good law,
    but this shall have prospective application and no punishment imposed
E   shall be open to challenge on this ground.

          We make it clear that wherever there has been an Inquiry Officer
    and he has furnished a report to the disciplinary authority at the con-
    clusion of the inquiry holding the delinquent guilty of all or any of the
    charges with proposal for any particular punishment or not, the delin-
F   quent is entitled to a copy of such report and will also be entitled to       (
    make a representation against it, if he so desires, and non-furnishing of
    the report would amount to violation of rules of natural justice and
    make the final order liable to challenge hereafter.                           r

G
          On the basis of this conclusion, the appeals are dismissed and the
    disciplinary action in every case is set aside. There shall be no order for
    costs. We would clarify that this decision may not preclude the discipli-
    nary authority from revising the proceeding and continuing with it in
                                                                                  1
    accordance with law from the stage of supply of the inquiry report in
    cases where dismissal or removal was the punishment.

                                                          Appeals dismissed.