Holding

Non‑supply of the Enquiry Officer's report before a finding of guilt is likely a violation of natural justice and Article 311(2), but the question was referred to a larger bench for a definitive ruling.

Summary

The Supreme Court examined whether a disciplinary authority must furnish the delinquent with a copy of the Enquiry Officer's report before recording a finding of guilt, as required by Article 311(2) of the Constitution and the principles of natural justice. The Court observed that the Enquiry Officer acts as a delegate and his report is crucial material for the disciplinary authority's decision; denying the delinquent access to this report deprives him of a reasonable opportunity to contest the evidence. Citing earlier decisions, the Court held that non‑supply of the report likely violates natural justice and Article 311(2), even after the 42nd Amendment which only dispensed with the second show‑cause notice for penalty. However, the bench did not pronounce a final decision and, deeming the question of great importance, referred the matter to a larger bench for consideration. Consequently, the special leave petition was not disposed and was sent to a larger bench.

Issues considered

Whether failure to provide the delinquent with a copy of the Enquiry Officer's report before the disciplinary authority records a finding of guilt violates Article 311(2) of the Constitution.
Whether such non‑supply contravenes the principles of natural justice.

Legislation cited

Constitution of Indias. 311(2)

Subjects

Article 311Natural JusticeDisciplinary ProceedingsEnquiry ReportGovernment EmployeesDue ProcessSpecial Leave PetitionLarger Bench

Judgment

~:,
,.

) y
UNION OF INDIA & ORS.
v.
A
E. BASHYAN
_,.
MARCH 11, 1988

"' [M.P. THAKKAR AND N.D. OJHA, JJ.] B
' ,,,..i,
Constitution of India: Article 311(2) Disciplinary Authority-

-~ Failure to supply copy of report of Enquiry Officer to delinquent be'fore
recording finding about guilt-Whether violative of principles of natural
justice-Matter referred to a larger Bench.

Law: Natural Justice Enquiry Officer's report- c
l SupplyAdministrative
of to delinquent by Disciplinary Authority before final order-
Necessity for-Matter referred to a larger Bench.

The enquiry officer's report was not made available to the respon-
dent before the disciplinary authority passed the final order recording D
the finding of guilt against him. The Central Administrative Tribunal
held in favour of the respondent.

In the special leave petition it was contended for the Union of
India that the only_ authority which really and actually holds the delin-
quent guilty need not afford any opportunity to him before finding of E
guilt is recorded and the material on which the authority acts.

Referring the matter to a larger Bench the Court observed:

In the event of failure to furnish the report of the Enquiry Officer
the delinquent is deprived of crucial and critical material which is taken F
into account by the real authority who holds him guilty namely, the
Disciplinary Authority. He is the real authority because the Enquiry
Officer does no more than act as a delegate and furnishes the relevant
material including his own assessment regarding the guilt to assist the
Disciplinary Authority who alone records the effective finding in the
sense that the findings recorded by the Enquiry Officer standing by G
themselves are lacking in force and effectiveness. Non-supply of the
report would therefore constitute violation of principles of natural
justice and accordingly will be tantamount to denial of reasonable oppor-
tunity within the meaning of Article 311(2) of the Constitution. [2148-C]

There can be glaring errors and omissions in the report. Or it may -H

209
··-ll

210 SUPREME COURT REPORTS [19881 3 S.C.R.
y
A haYe been based on no evidence or rendered in disregard of or by
O\'erlooking evidence. If the report is not made available to the delin-
quent. 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 to point out such errors and omissions and
disabuse the mind of the Disciplinary Authority before he is held guilty
B or condemned. Serving a copy or enquiry report on the delinquent to
enable him to point out anomalies, if any, 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, which bas been
dispensed with by virtue of the amendment to Art. 311(2) by 42nd
-
Amendment of the Constitution. [21 JE-HI
c
Since the question whether it is the right of the delinquent to
pursuade the Authority which makes up its mind as regards the guilt of
the delinquent that such a finding is not warranted in the light of the
Report of the Enquiry Officer was not directly in issue and has neither
D been presented nor discussed in all its ramifications in C.A. No. 537 of
1988 (Union of India & Ors. v. M. Sivagnam) decided on February 8.
1988 by a Bench comprising of three Judges, and the Secretary. Central
'Board of Excise & Customs & Ors. v. K.S. Mahalingam, (1986 (I)
SCALE 1308) decided by a Bench of t\j'.O Judges, relied on by the peti-
tioners to contend that the point is directly or at any rate by necessary
E implication covered in their favour, the matter is rcfe.rred to a larger ,•
bench on considerations of propriety. [2140-GJ

CIVIL APPELLATE JURISDICTION: Special Leave Peti-
tion (Civil) No. 2725·of 1988

F From the Judgment and Order dated 12.11.1987 of the Central
Administrative Tribunal. New Bombay in Tr. Appln. No. 1of1986

G. Rama Swamy, Additional Solicitor General, A. Subba Rao
and P. Parmeshwaran for the Petitioners.

G Urmila Sirur for the Respondent.

The following Order of the Court was delivered by

THAKKAR, J: This matter raises. a question of mega-impor-
tance viz. whether failure to supply a copy of the Report of the Enquiry 'j
H Officer to the delinquent before the Disciplinary Authority makes up \-.
U.0.1. v. E. BASHYAN [THAKKAR, Jd 211
'' y his mind and records the finding of guilt as against him would consti-
A
tute violation of Article 311(2) of the Constitution of India and viola-

' lion of principles of natural justice. This question appears to be res-
integra so far as this Court is concerned notwithstanding the conten-
ti on of the learned counsel for the petitioner to the contrary. Counsel

' contends that the point is directly or at any rate by necessary implica-
tion covered in the petitioners' favour. Reliance in this connection is B
placed on an order passed by a Bench comprising of three Hon'ble
A 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 Secret-
ary, Central Board of Excise and Customs & Ors. v. K.S. Mahalingam.

,\ 1986 (1) Scale 1308. The facts of both these matters reveal that the
Enquiry Officer's report was not made available to the delinquent
c
~
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 regard-
ing 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 argument that such a notice is no more essential in view of the D
42nd Amendment of the Constitution.

Now an Enquiry Officer merely makes his recommendations, by
his report in the light of the evidence recorded by him and the submis-
~-
sions urged before him. The tentative view expressed by the Enquiry
=f
..I, Officer may or may not be accepted by the Disciplinary Authority. It is E
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
'·-
• -f '·
account the reasoning articulated in the Enquiry Officer's Report and F
the recommendations made therein. If the report is not made available
to the delinquent, this crucial material which enters into the considera-
tion 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 conse- G
quence 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
-J delinquent will have no opportunity to point out to the Disciplinary H
'
212 SUPREME COURT REPORTS [1988] 3 S.C.R.

A 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.
B
It needs to be highligted thdt 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 ~
C measure of the penalty to be imposed.

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 part-
nership suit to the Court wherein he summarises the evidence. and
expresses his opinion and records his tentative findings for the benefit
D 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 Commissioner's Report. It would be a startling proposi-
tion to propound that the Court can accept or reject the Report of the
Commissioner with or without modification, without even showing the >.
E same to the parties or without hearing the parties in the context of the I
report.

The true legal position in regard to the findings recorded by an
Enquiry Officer and the legal effect of his report as spelled-out by us
hereinabove is buttressed by a decision rendered by a Constitution '\
F Bench of this Court in Union of India v. H.C. Goel, [1964] 4 SCR 718 a 1
quarter century ago wherein the following proposition have been
enunciated:

(1) the Enquiry Officer holds the enquiry against the delin-
quent as a delegate of the Government;'
G
(2) the object of the enquiry by an Enquiry Officer is to
enable the Government' to hold an investigation into }-
1. In a case like the present one where the power to dismiss or remove vests unto the
Disciplinary Authority and the Enquiry Report is required to be submitted to the
Disciplinary Authority (and not to the Government) the propositions will be appli-
H cable to the Disciplinary Authority.
U.0.1. v. E. BASHYAN [TIIAKKAR, J.[ 213

the charges framed against a delinquent, so that the
Government can'i~d.1F course consider the evidence A
adduced and decide whether the said charges are
proved or not;

(3) "the findings on the merits" recorded by the Enquiry
Officer are intended merely to supply appropriate B
material for the consideration of the Government.
Neither the findings nor the recommendations arc
binding on the Government as held in A.N. D'silva v.
Union of India, [1962] (Suppl) (1) SCR 968.

(4) The enquiry report along with the evidence recorded
by the Enquiry Officer constitute the material on which c
the Government has ultimately to act. That is the only
purpose of the enquiry and the report which the En-
quiry Officer makes as a result thereof.

It is thus evident that the findings recorded by the Enquiry Officer o
become infused with life only wh~n the Disciplinary Authority applies
his mind to the material which inter alia consists of the report of the
Enquiry Officer along with the evidence and the record etc. If there-
fore the basic material comprising of the report of the Enquiry Officer
,J.. which has been taken into consideration by the Disciplinary Authority
for holding that the delinquent is guilty as per the view expressed by E
his delegate namely, Enquiry Officer, is not made available to the
delinquent till the axe falls on him, can it be said that the principles of
Natural Justice have been complied with? Can it be said that the delin-
quent had an opportunity to address•the mind of the Disciplinary
· Authority who alone in reality found him guilty? Since it cannot be so
·i asservated it will be difficult to resist the conclusion that principles of F
' natural justice have been violated and the delinquent has been denied
reasonable opprotunity.

It is no doubt true that when the Constitution Bench rendered
the aforesaid decision in H.C. Gael's case Article 311(2) had not yet
been amended. However, that makes little difference. By virtue of the G
, amendment what has been dispensed with is merely the notice in the
~ context of the measure of penalty proposed to be imposed. The
opportunity required to be given to a delinquent which must be
reasonable opportunity compatible with principles of Natural-Justice
has not been dispensed with by virtue of the said amendment. There-
fore the view taken in the context of the contention that the Discipli- H
214 SUPREME COURT REPORTS I1988] 3 S.C.R.
nary Authority need not afford an opportunity to the delinquent in
y
A regard to the measure of the puhi~hment will not liold good in the
context of the present argument in the background of the non-supply
of the report of the Enquiry Officer. In the event of the failure to
furnish the report of the Enquiry Officer the delinquent is deprived of
crucial and critical material which is taken into account by the real
B authority who holds him guilty namely, the Disciplinary Authority. He
is the real authority because the Enquiry Officer does no more than act -"'·
as a delegate and furnishes the relevant material including his own
assessment regarding the guilt to assist the Disciplinary Authority who
alone records the effective finding in the sense that the findings re:
corded by the Enquiry Officer standing by themselves are lacking in
force and effectiveness. Non-supply of the report would therefore
c constitute violation of principles of Natural Justice and accordingly ...
will be tantamount to denial of reasonable opportunity within the \ \j
meaning of Article 311(2) of the Constitution.

The question arising in this matter is not with regard to the giving
D of notice limited to th~ question of }Vhat penalty should be imposed.
The question is whether it is the right of the delinquent to persuade the
Authority which make$ up its mind as regards the guilt of the delin-
quent that such a finding is not warranted in the light of the Report of
the Enquiry Officer. The decision on this point will affect millions of
employees in service today as also those who may enter Government
E service hereafter for times to come. The matter thus needs careful
consideration in depth, and if necessary at length. As this Bench is
comprised of two Judges, we do not consider it proper on our part to
pass any order in regard to the present petition though prima facie we
are not inclined to grant leave in view of the two recent decisions cited
before us. In any view of the matter we do not think that it is proper on
F our part to pass any order notwithstanding the fact that it appears to us
that this question was not directly in issue and has neither been pre-
sented nor discussed in all its ramifications in the aforesaid two
matters.

In fact this proposition has not been discussed at all in these
G judgments: It is therefore futile on the part of the petitioners to con-
tend that the point is covered and concluded in their favour. Even so
we prefer to be guided by considerations of propriety and refer the I-.
matter to a larger bench. We also wish to place on record that merely
granting leave in a matter like this will serve no better purpose than
prolonging the misery of all concerned. It may be that after ten years
H the appeal is dismissed. It may happen that the employee may die
U.0.1. v. E. BASHYAN [THAKKAR, J.[ 215

r confirmed It
meanwhile. may also happen that the order of reinstatement may be A
after ten years. In that event the public exchequer will have
spent lakhs of rupees without taking any work from the employee.
With the pendency of an appeal on this point hundreds of allied mat-
ters may have to be admitted and tagged on to the present matter. The
point therefore deserves to be settled at this stage itself by a larger' B
Bench.

Learned Counsel for the respondents-caveator prays that if the
Court is inclined to consider this question after granting special leave,
the petitioner should be directed to pay the past arrears and continue
1- to pay the salary to the respondent who has succeeded before the .
"\ Central Administrative Tribunal. This question also, in our opinion, C
~ should better be dealt with by the larger Bench before which this
· · matter is placed as per the directions of the Hon'ble Chief Justice. We
accordingly refer this matter to a larger Bench. The office shall seek
directions of the Hon 'ble the Chief Justice in this behalf. ·
D
P.S.S.