Gaurav Jerambha Prajapati vs State Of Gujarat
2021 Latest Caselaw 18322 Guj

     C/SCA/14631/2021                              JUDGMENT DATED: 13/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14631 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                      Sd/-

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                            YES

2     To be referred to the Reporter or not ?
                                                                       YES
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                 NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution               NO
      of India or any order made thereunder ?

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                        GAURAV JERAMBHA PRAJAPATI
                                  Versus
                        STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR G M JOSHI, LD. SR. ADVOCATE with MR. JAY M THAKKAR(6677) for
the Petitioner(s) No. 1
 for the Respondent(s) No. 2,3
MR UTKARSH SHARMA, AGP for Respondent State
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 13/12/2021

                              ORAL JUDGMENT

1. Heard learned Sr. Advocate Mr.G. M. Joshi appearing with

learned Advocate Mr.Jay Thakkar on behalf of the petitioner

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and learned AGP Mr.Utkarsh Sharma on behalf of the

respondent Nos.1 to 3.

2. Issue Rule returnable forthwith. Learned AGP waives service

of Rule. With the consent of the parties, the present petition

is taken up for final decision.

3. A very short but interesting and important question arises for

consideration of this Court in this petition. The question being

"in a departmental proceeding, when the Disciplinary

Authority disagrees with the findings of the inquiry officer,

would the charge-sheeted officer be entitled to a copy of

such disagreement, in spite of the Rules governing the

inquiry not specifically requiring the same."

4. Facts leading to filing of the present petition in brief are as

under:-

4.1. That the petitioner was appointed as a Gujarat

Administrative Service, Class-I Officer in the cadre of

Deputy Collector in the year 1993 after the petitioner

cleared the selection process for the same held by the

Gujarat Public Service Commission ("GPSC" for short).

For certain alleged acts of misconduct committed by the

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petitioner between 2002 and 2006, a charge-sheet came

to be issued to the petitioner on 29.11.2012. An Inquiry

Officer had been appointed for inquiring into the charges

levelled against the petitioner, and whereas the Inquiry

Officer vide his report dated 20.5.2015 had exonerated

the petitioner from the charges levelled against him. The

respondent Department vide a communication dated

4.12.2018 had informed the petitioner that the Disciplinary

Authority is not in agreement with the findings of the

Inquiry Officer, and along with the said communication,

tentative reasons for disagreeing with the inquiry report

was submitted to the petitioner with the inquiry report

itself, calling upon the petitioner to make his submissions

on the tentative reasons of disagreement. The petitioner

had vide his reply dated 28.1.2019 inter alia submitted his

explanation as to why the Disciplinary Authority ought not

to have disagreed with the findings of the Inquiry Officer,

and whereas it was requested that communication dated

4.12.2018 i.e. notice of tentative disagreement might be

withdrawn. It appears that after the petitioner had

submitted his reply to the notice of tentative

disagreement, straightaway a second show-cause notice

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dated 19.8.2021 came to be issued to the petitioner,

informing the petitioner that the Disciplinary Authority

proposes to impose a punishment of removal from service

upon the petitioner and whereas the GPSC had also been

consulted on the said aspect and the same had been

assented to by GPSC. A copy of the report of GPSC

dated 12.8.2021 was also forwarded with the second

show-cause notice and whereas the petitioner was called

upon to make his submissions, if he so desires, within a

period of 15 days. It appears that the petitioner, who had

undergone some operation and was on sick leave, had

requested for further time to be granted to reply to the

second show-cause notice. Such communication of the

petitioner dated 4.9.2021 had been replied to by the

Disciplinary Authority on 15.10.2021 and whereas the

petitioner was given seven days' time to submit his reply.

It is at this stage that the petitioner has approached this

Court.

5. Heard learned Sr. Advocate Mr. G. M. Joshi appearing with

learned Advocate Mr. Jay Thakkar for the petitioner, who had

initially assailed the entire departmental proceeding itself and

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whereas later on, the scope of the present petition was

sought to be restricted to the aspect of the petitioner as the

charge-sheeted officer not being provided with a copy of the

findings by the Disciplinary Authority disagreeing with the

findings of the Inquiry Officer. Learned Sr. Advocate Mr.Joshi

would submit that after the petitioner had been issued a

notice dated 4.12.2018, calling upon the petitioner to submit

his views on the tentative reasons on the basis of which the

Disciplinary Authority sought to disagree with the findings of

the Inquiry Officer, and straightaway the petitioner had been

issued with a second show-cause notice along with a copy of

the report of GPSC assenting to the proposal of the

Disciplinary Authority of imposing major penalty upon the

petitioner, sans any reference to the fact as to whether the

disciplinary authority had, in fact, disagreed with the findings

of the Inquiry Officer or not and whereas since it appears that

the Disciplinary Authority had disagreed, yet a copy of such

final disagreement had not been supplied to the present

petitioner. Learned Sr. Advocate Mr.Joshi would submit that

without a copy of the final findings being given to the present

petitioner, the proceedings stand vitiated from that stage.

Learned Sr. Advocate Mr.Joshi would further contend that

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non-supply of the findings on disagreement by the

Disciplinary Authority was in clear breach of the principles of

natural justice and whereas copy thereof ought to have been

supplied to the petitioner before issuance of the second

show-cause notice or even at the stage of second show-

cause notice, and according to the learned Sr. Advocate

Mr.Joshi, bereft of supplying a copy of the findings on

disagreement, the procedure adopted by the Disciplinary

Authority being illegal, this Court may interfere at this stage

and quash the second show-cause notice issued to the

petitioner and direct the Disciplinary Authority to supply a

copy of the findings of disagreement along with the second

show-cause notice. Learned Sr. Advocate Mr.Joshi has

relied upon the decisions of the Hon'ble Supreme Court in

case of Punjab National Bank and Ors. Vs. Kunjbhihari

Mishra, reported in (1998) 7 SCC 84; in case of Lav Nigam

Vs. Chairman and M.D., ITI Limited and Anr., reported in

(2006) 9 SCC 440; and in case of Jiteshkumar Vallabhdas

Chotai Vs. Principal District Judge and Disciplinary

Authority, Rajkot & Anr., reported in 2017(4) GLR 3585.

Relying upon these judgements, learned Sr. Advocate

Mr.Joshi has submitted that non-supply of final findings of

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disagreement by the Disciplinary Authority to the charge-

sheeted officer before issuance or at the stage of issuance of

second show-cause notice would be in breach of principles

of natural justice, and therefore, this Court may interfere with

the departmental proceedings at this stage.

6. As against the same, learned AGP Mr.Utkarsh Sharma has

vehemently submitted on behalf of the respondents that as

such the present petition itself is not maintainable at this

stage, since the matter is at large pending before the

Disciplinary Authority. It was submitted that in case,

according to the petitioner, there was some breach of

procedure or any illegality allegedly committed, then it was

open for the petitioner to make an appropriate application to

the Disciplinary Authority and in case the same was not

considered by the Disciplinary Authority, then after the final

order, if any, being passed it would be open for the petitioner

to bring this issue to the notice of this Court, which would

have the benefit of the views of the Disciplinary Authority on

the issues raised by the petitioner. On merits it has been

submitted by the learned AGP Mr.Sharma that as a matter of

fact, the Disciplinary Authority had considered the tentative

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findings of disagreement vis-a-vis the reply sent by the

petitioner thereto and a decision had been taken and though

such decision was there in the original file, the same had not

been communicated to the petitioner since, according to the

learned AGP, there was no requirement to communicate the

same to the petitioner as per the Rules. Learned AGP would

draw the attention of this Court to Rule 10(2) of the Gujarat

Civil Services (Discipline and Appeal) Rules 1971 and

whereas, according to the learned AGP, while the said Rule

requires recording reasons and findings for disagreement on

each charge by the Disciplinary Authority, there is no

requirement in the Rules to communicate such decision to

the charge-sheeted officer, and therefore, the petitioner was

not supplied a copy thereof. Learned AGP would further

submit that in any case at this stage, the petitioner would be

required to submit before this Court the prejudice that may

be caused to the petitioner on account of non-supply of the

findings of disagreement and only upon such prejudice being

established, this Court may interfere with the inquiry process.

Learned AGP has also attempted to distinguish the

judgements relied upon by the learned Sr. Advocate

Mr.Joshi, more particularly judgements in case of Lav Nigam

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Vs. Chairman and M.D., ITI Limited (supra) and in case of

Jiteshkumar Vallabhdas Chotai (Supra).

7. Heard learned Advocates for respective parties, who have

not submitted anything further.

8. Learned AGP has raised a preliminary objection with regard

to the maintainability of the present petition, more particularly

on the ground that the petition being premature as no final

order has been passed by the Disciplinary Authority, which

would require interference by this Court at this stage. The

present petition has been preferred and the arguments have

been advanced in context of a grievance raised by the

petitioner that before issuance of the second show-cause

notice, the Disciplinary Authority ought to have supplied a

copy of the final findings of the Disciplinary Authority upon

disagreeing with the findings of the inquiry officer.

Undoubtedly, the law with regard to interfering with a

charge-sheet or a show-cause notice is that ordinarily

discretionary jurisdiction available to this Court under Article

226 of the Constitution of India would not be exercised but at

the same time, it is equally well settled that in exceptional

circumstances, the Court would and is empowered to

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interfere with and set aside a charge-sheet or a show-cause

notice, as the case may be. The normal Rule being that a

disciplinary proceeding should be allowed to reach its logical

conclusion and only upon a final order being passed by the

Disciplinary Authority, which would have been scrutinized by

the Appellate Authority, as the case may be, the High Court

would examine the issue. At the same time, when it is found

by the Court that the charge-sheet or the show-cause notice

is wholly without jurisdiction or for some reason illegal, then

the High Court would interfere. Reliance is placed upon the

law laid down by the Hon'ble Supreme Court in this regard in

case of Union Of India And Another vs Kunisetty

Satyanarayana, reported in (2006) 12 SCC 28, more

particularly paragraphs 15 and 16 thereof, which are

reproduced herein below:-

"15.Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.

16.No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

9. Thus, High Court would not refuse to exercise jurisdiction

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merely on the ground that a charge-sheet or a show-cause

notice is challenged and whereas the High Court would

consider the aspect of jurisdiction or illegality and thereafter

decide whether the case requires interference or not. Thus,

the submission of the learned AGP that the petition

challenging the proceedings before a decision has been

taken thereupon by the Disciplinary Authority cannot be

countenanced and hence, the same is rejected.

10. As regards the main aspect for consideration i.e.

whether the Disciplinary Authority is bound to supply a copy

of order of disagreement with the inquiry officer at the stage

of show-cause notice or not, this Court deems it appropriate

to refer to the Rules, which govern the disciplinary

proceedings of the present nature. Disciplinary proceedings

against persons appointed to Civil Services, in connection

with the affairs of the State of Gujarat, whose service

conditions are regulated in accordance with the Rules made

under Article 309 of the Constitution of India are governed by

the "Gujarat Civil Services (Discipline and Appeal) Rules,

1971. Rule 6 sets out the penalties that could be imposed,

whereas Rule 9 sets out the procedure for imposing penalty.

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Rule 10 sets out the action to be taken on inquiry report,

which would be relevant for the present purpose, and hence,

Rule 10 is reproduced herein below:-

"RULE 10 : Action on the Inquiry report

(1) The Disciplinary Authority if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiry Authority for further Inquiry and report and the Inquiry Authority shall thereupon proceed to hold the further Inquiry according to the provisions of rule 9 , as far as may be.

(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Items (1) to (3) of rule 6 should be imposed on the Government servant it shall notwithstanding anything contained in rule 11 make an order imposing such penalty:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.

(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Items (4) to (8) of rule 6 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:

Provided that in every case where it is necessary to consult the commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the commission for its advice and the advice shall be taken into consideration before making an order

C/SCA/14631/2021 JUDGMENT DATED: 13/12/2021

imposing any such penalty as may be imposed on the Government servant."

11. Rule 10(2) governs the field as regards the

disagreement upon inquiry report by the Disciplinary

Authority and whereas the said sub-rule requires the

Disciplinary Authority to record its reason for disagreement

and record its own findings on such charge if the Disciplinary

Authority disagrees with the findings of the inquiry officer.

Undoubtedly as submitted by the learned AGP Mr.Sharma

the Rules do not require a copy of the report of disagreement

to be communicated to the delinquent/charge-sheeted

officer, but at the same time what requires to be considered

is whether the non-requirement of giving a copy of order of

the Disciplinary authority disagreeing with the findings of the

Inquiry Officer could be held to be a procedure which is

permissible or would the procedure be deemed to be

violative of the principles of natural justice. At this stage it

would be profitable to refer to the decision of this Court in

case of Jiteshkumar Vallabhdas Chotai (supra), in which

judgement Coordinate Bench (Coram: N.V. Anjaria, J.) has

read the requirement of giving a notice of tentative

disagreement to the delinquent/charge-sheeted employee

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before the Disciplinary Authority disagrees with the findings

of the inquiry officer. The observations of the Coordinate

Bench are reproduced herein below for better appreciation:-.

"6. Rule 10(2) of the Rules contemplate giving of reasons in the event the disciplinary authority disagrees with the inquiry report exonerating the delinquent-employee. The requirement of giving reasons would indicate that when certain reasons have weighed with the disciplinary authority, the delinquent must be put to notice of those reasons. Keeping the delinquent-employee in dark about the reasons of disagreement but communicating to him that the disciplinary authority had proposed to inflict penalty by not accepting the findings of the inquiry report, would undoubtedly amount to denial of reasonable opportunity.

6.1 Unless the delinquent is made aware as to what reasons and which considerations weighed with the disciplinary authority to take a differing view, the delinquent would be deprived of raising his defence in the context of the findings of inquiry report which had exonerated him, in general and would be further denied the opportunity to properly put-forth his case about the proposed penalty in particular. Opportunity to reply to and explain the reasons of disagreement, and an opportunity in respect of proposed penalty constitute two different sets of opportunities and cannot be combined into a one notice. They are the two stages of defence to be made available to the delinquent in law.

6.2 When a disciplinary authority disagrees with the findings in the inquiry report that the charge was not proved, wanting to come to a contrary conclusion for its own reasons, at that stage, the delinquent becomes entitled to a fresh opportunity to show cause in respect of the reasons which the disciplinary authority has been holding for itself to treat the delinquent guilty. A renewed procedure of communicating the tentative reasons of disagreement, consideration of the defence of the petitioner, weighing and comparing the reasons recorded by the inquiry officer vis-a-vis the petitioner's case as well as the view of the disciplinary authority and thereafter if the disciplinary authority is not satisfied with the explanation of the petitioner, to proceed with a notice with regard to the proposed penalty, becomes imperative so as to meet with the natural justice. It could be said that another and separate stage arrives in the departmental inquiry proceedings when the disciplinary authority

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differs with the findings of the inquiry officer and the conclusion of exonerating the delinquent. The principles of natural justice therefore assumes significance with an added emphasis to make the opportunity to petitioner to defend his case, reasonable, adequate and effective.

9. Summing up, not giving a show cause notice by Disciplinary Authority when it opted to disagree with the findings of inquiry officer wanting to take a view that the charges against the petitioner were proved, was such kind of breach of natural justice which by itself lead to a prejudice to the petitioner. It was obligatory in law for the disciplinary authority to supply the tentative reasoning of disagreement asking the petitioner to show cause thereon, thereby, giving a due and reasonable opportunity of defence and purge the prejudice caused to the petitioner. It was only after considering the reply of the petitioner-delinquent that the Disciplinary Authority could have decided in respect of the penalty. Non-issuance of notice by the disciplinary authority in respect of the tentative findings recorded by him against the inquiry report, was vitiative to the inquiry as well as the ultimate penalty imposed on the petitioner, and it is from the said stage that the inquiry stood vitiated."

12. The Court in case of Jiteshkumar Vallabhdas Chotai

(Supra) was concerned with the stage of departmental

inquiry when the Disciplinary Authority had intended to

disagree with the findings of the Inquiry Officer. The Court

has held that at that stage it was imperative that the

Disciplinary Authority should provide the tentative reasons

for disagreement to the delinquent and whereas the Court

has held that non-supply of reasons would be per se

prejudicial to the delinquent.

12.1.In the instant case we are concerned with a situation

where the Disciplinary Authority having provided the

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tentative reasons for disagreeing with the findings of the

Inquiry Officer, and after the delinquent submits his

objections thereupon, would the delinquent be entitled to

the final report of disagreement by the Disciplinary

Authority before or at the stage of issuance of second

show-cause notice.

13. Thus, the issue in the present case would be as to,

since the rule does not require for supplying of copy of the

final report of disagreement by the Disciplinary Authority

when the Disciplinary Authority seeks to disagree with the

findings of the inquiry officer, whether such requirement is to

be read into the sub-rule or not. Rule 10 of the Discipline

and Appeal Rules lays down the procedure for initiation of a

disciplinary proceeding against an employee and also the

procedure for conduct of a departmental inquiry and the

procedure for imposition of a penalty, as the case may be.

The procedural rules are framed to ensure that the right

available to a person employed in civil capacity under the

State, as in the present case, as enshrined in Article 311(2)

of the Constitution of India is given effect to and not to be in

any manner violated. Article 311(2) as it stands today after

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the 42nd amendment effected in the year 1976 reads as

under:-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

(1) xxx

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those 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 during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:"

14. It would be pertinent to note that prior to amendment,

Article 311(2) of the Constitution of India ensured that no

such person as aforesaid shall be dismissed or removed or

reduced in rank until he has been given a reasonable

opportunity of showing cause against the penalty proposed

to be taken. That by way of 15th Amendment to the

Constitution in the year 1963, Article 311(2) had been

amended as follows:-

"No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which has been informed of the charges against him and given 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

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penalty proposed, but only on the basis of the evidence adduced during such inquiry."

15. Thus, as it stands today, Article 311(2) mandates that

before a person employed in civil capacity is dismissed,

removed or reduced in rank an inquiry is required to be held,

where the person is informed of the charges levelled against

him and he shall be given a reasonable opportunity of being

heard in respect of those charges. At this stage, we are

concerned with the import of the words "given a reasonable

opportunity of being heard in respect of those charges." This

clarification is required since the proviso to Article 311(2)

inter alia envisages that the person concerned is not required

to be given an opportunity of making a representation on the

penalty proposed.

16. In context of a departmental proceeding, in the

considered opinion of this Court, reasonable opportunity

would mean that the delinquent/charge-sheeted employee

gets an opportunity at every stage to represent to the

authority concerned that he may be exonerated of the

charges levelled, even after evidence has been adduced.

The words "reasonable opportunity" in the present context

has to be given the widest possible connotation since the

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standard of proof in a departmental inquiry is

"preponderance of probability". In a departmental inquiry

the delinquent can be held guilty if the material on record

including the evidence adduced would to a greater extent

suggest to the probability that the delinquent had committed

the misconduct as alleged in the charge-sheet.

17. In the considered opinion of this Court, since the

department is required to prove on basis of a high degree of

probability only, that the delinquent is guilty of the charges

levelled against him, therefore, the delinquent is entitled to,

at every stage, be given an opportunity to rebut such a

probability. Since probability, though not mere probability but

an overwhelming probability, is the standard of proof as

against actual evidence or evidence beyond reasonable

doubt, therefore, the term "reasonable opportunity"

appearing in Article 311(2) of the Constitution has to be

interpreted in its widest possible amplitude, so as to ensure

that the delinquent gets opportunity to rebut the probability at

every stage where a conclusion with regard to the guilt of the

delinquent is established. The Disciplinary Authority

disagreeing with the findings of the Inquiry Officer being one

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such stage where the Disciplinary Authority holds the

charges against the delinquent as proved, the report of the

Disciplinary Authority is to be provided to the delinquent

before or at the stage of second show-cause notice so as to

provide an opportunity to the delinquent to represent against

such findings by the Disciplinary Authority. Thus, whether

the inquiring authority or the Disciplinary Authority or the

appellate authority, as the case may be, would hold the

charges levelled against an employee as proved on the basis

of "preponderance of probability" then the employee has to

be given the maximum possible opportunity to rebut such

probability, which in the considered opinion of this Court

would be in consonance with the term 'reasonable

opportunity' as envisaged in Article 311(2) of the Constitution

of India.

18. The scope of Article 311 post the 42nd Amendment is

explained by the Hon'ble Apex Court in case of Punjab

National Bank vs. K. K. Verma, reported in (2010) 13 SCC

494, more particularly paragraphs 31 32, 33 and 34 thereof.

"31. In Karunakar's case (supra), another Constitution Bench has referred to Tulsiram Patel in paragraph 13 and then explained the legal position in this behalf in paragraph 25 as

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follows:-

"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 42nd Amendment."

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.

33. Counsel for the respondent relied upon the judgment in State of Maharashtra v. B. K. Takkamore & Ors. [AIR 1967 SC 1353] to submit that if the impugned order can be sustained excluding the disputed charge, this Court should not interfere. In our view, it is not possible for us to pre-judge the issue in the present case. As seen from the order of Disciplinary Authority quoted above, the appellant has considered it to be a serious charge and therefore the respondent ought to have been given the opportunity to challenge the adverse finding of the Disciplinary Authority where it differed from the inquiry officer to establish his innocence."

34. It was then submitted that non supply of inquiry report is inconsequential if the employee does not show as to how he is prejudiced thereby. Karunakar (supra), S. K. Singh v. Central Bank of India & Ors. [1996 (6) SCC 415] and Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja [2008 (9) SCC 31] were relied upon in support. There cannot be any grievance with respect to the proposition. In the present case however, we are concerned with a situation where the finding of

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the inquiry officer on a charge has been reversed by the Disciplinary Authority, which was not the case in any of the three cases. Besides, by not giving the inquiry report and the adverse order of the disciplinary authority, the respondent was denied the opportunity to represent before the finding of guilt was arrived at and thereby he was certainly prejudiced. (emphasis supplied)

19. The Hon'ble Supreme Court has in context of an

inquiry report observed that the right to represent against the

findings in the inquiry report to prove one's innocence is not

disturbed by the said amendment. In the present case, the

issue is not with regard to the inquiry report and it is with

regard to the report of disagreement by the Disciplinary

Authority against the findings of the inquiry officer. In the

considered opinion of this Court the proposition of law as laid

down by the Hon'ble Supreme Court would not in any way be

diluted even if it is contended that it was not the inquiry

report but the findings of the Disciplinary Authority

disagreeing with the inquiry authority, which were not

provided to the delinquent/charge-sheeted officer. In the

considered opinion of this Court both the inquiry report as

well as the report of the Disciplinary Authority disagreeing

with the findings of the inquiry officer stand on equal footing.

The right given to the employee is to represent against the

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findings, the findings may be of the inquiry authority or the

report of disagreement by the Disciplinary Authority. If the

Inquiry Officer or the Disciplinary Authority, as the case may

be, after disagreeing with the Inquiry Officer holds the

charge/s levelled against the employee as proved, it is at this

stage, the employee is given a right to represent against the

findings and as laid down by the Hon'ble Supreme Court

such right to represent against the findings is not disturbed

by the 42nd Amendment.

20. In any case, since the 42nd Amendment to the

Constitution has revoked the right available to an employee

to plead for either no penalty or lesser penalty although the

conclusion regarding guilt is accepted, under such

circumstances, the employee upon conclusion of the inquiry

and before issuance of the order of penalty is called upon to

make his representation and if the very document upon

which the Disciplinary Authority relies upon is not given to

the delinquent when he is called upon to represent against

the same, then undoubtedly the requirement of giving

reasonable opportunity as envisaged in Article 311 would be

rendered otiose. Furthermore, the Hon'ble Apex Court has

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also held in the above judgement that upon non-supply of the

adverse order passed by the Disciplinary Authority the

delinquent was certainly prejudiced.

21. The Hon'ble Apex Court in case of S. P. Malhotra Vs.

Punjab National Bank, reported in (2013) 7 SCC 251 had

an occasion to explain the decision of Punjab National

Bank and Ors. Vs. Kunjbhihari Mishra (supra):

"10. In Canara Bank & Ors. v. Shri Debasis Das & Ors., AIR 2003 SC 2041, this Court explained the ratio of the judgment in Kunj Behari Misra (supra), observing that it was a case where the disciplinary authority differed from the view of the Inquiry Officer. "In that context, it was held that denial of opportunity of hearing was per se violative of the principles of natural justice."

22. Both the judgements referred to herein above clearly

lay down the proposition that non-furnishing of adverse order

of Disciplinary Authority, whereby the Disciplinary Authority

has disagreed with the findings of the inquiry officer was per

se prejudicial to the employee concerned. The underlying

aspect being that the delinquent/charge-sheeted employee in

a departmental proceeding is entitled to a copy of the report

of the Disciplinary Authority disagreeing with the findings of

the inquiry officer before the second show-cause notice is

issued to him, calling upon him to represent against the

C/SCA/14631/2021 JUDGMENT DATED: 13/12/2021

findings therein.

23. Thus in the considered opinion of this Court, the

delinquent in a departmental proceedings is entitled to be

given a copy of the order of the Disciplinary Authority

whereby the Disciplinary Authority disagrees with the

findings of the Inquiry Officer before a finding of guilt is

arrived at. This would be in consonance with the

requirement of affording a reasonable opportunity as

envisaged under Article 311(2) of the Constitution of India.

24. In view of the above discussion, to ensure that the

delinquent is afforded a reasonable opportunity in a

departmental proceedings, more particularly when the

Disciplinary Authority disagrees with the findings of the

Inquiry Officer, the requirement of giving a copy of such

report of disagreement by the Disciplinary Authority to the

delinquent is required to be read into Rule 10(2) of the

Gujarat Civil Services (Discipline and Appeal) Rules 2002.

25. In view of the discussion and reasoning herein above,

this Court arrives at the following conclusion:-

25.1.Providing a copy of the report of the Disciplinary

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Authority where the Disciplinary Authority disagrees with

the findings of the inquiry officer is in adherence to the

principle of reasonable opportunity as envisaged in Article

311(2) of the Constitution of India;

25.2.Requirement to provide a copy of the final report of

disagreement by the Disciplinary Authority along with

reasons for disagreement and findings of each charge

where the Disciplinary Authority disagrees with the

findings of the inquiry officer is read into Rule 10(2) of the

Gujarat Civil Services (Discipline and Appeal) Rules 1971.

26. In view of the conclusion arrived at herein above, the

present petition succeeds. The notices dated 19.8.2021 and

15.10.2021 are quashed and set aside. The Disciplinary

Authority is directed to issue a fresh show-cause notice to

the present petitioner inter alia with a copy of the report

whereby the Disciplinary Authority has disagreed with the

findings of the inquiry officer and along with the same afford

a reasonable opportunity to the petitioner to represent

against the findings therein, if he so desires. The

departmental proceedings to continue in accordance with law

from that stage.

C/SCA/14631/2021 JUDGMENT DATED: 13/12/2021

27. The petition stands allowed to the aforesaid extent.

Rule is made absolute accordingly.

Sd/-

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL