Mushlim Khan vs Dakshin Haryana Bijli Vitran Nigam Limited and Others

Mukul Mudgal, C.J.—This reference in the present case arises in the context of the disciplinary authority agreeing with the findings of the Enquiry Officer and issuing a show cause notice to the delinquent official proposing punishment as well. The order of Reference reads as under:

xx xx xx xx With 42nd Amendment, the provision of providing of an opportunity to delinquent against the proposed punishment only was done away with. But the said amendment does not change the position which existed prior thereto. It only means that it is not necessary to give notice on the proposed punishment. In Karunakar ''s case (supra), it was further held that all Rules of the State and the Public Sector Undertakings, which deny an opportunity to the delinquent before accepting the findings of the Inquiry Officer, including a right to receive a copy of the Inquiry Report before order of punishment is passed by the competent authority, are against the principles of natural justice. It was held to the following effect:

Hence the incidental questions raised above may be answered as follows:

[1] Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.

In view of the said principles, the findings recorded by the Division Bench of this Court in Ramesh Kumar ''s case (supra) that Rule 7 (6) framed in 1987, continues to be static, seems to be not correct. In fact, Rule 7(6) of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 or Haryana State Electricity Board Employees (Punishment and CWP No. 4149 of 2007 (20) Appeal) Regulations, 1990, as applicable, appears to be is in tune with the principles of law laid down in Mohd. Ramzan ''s case and Karunakar''s case (supra). The said cases dealt with the effect of amendment doing away with an opportunity to the proposed punishment. The Rules do not deny an opportunity to the delinquent to receive a copy of the inquiry report and to submit its representation. In any case, the principles of natural justice commands the Disciplinary Authority to communicate the inquiry report. The Rules further contemplate that the representation received in response to show cause notice is to be taken into consideration before final order is passed. Merely because the Disciplinary Authority has not used the word "tentative" with the agreement along with the findings of the Inquiry Officer, will not materially change the nature and effect of the show cause notice. What is implicit in issuing of the show cause notice, if not expressly stated will not make the show cause notice as vitiated in law. In view of the above, we deem it appropriate to refer the matter to the Larger Bench, for authoritative decision on the following question:

Whether the agreement recorded by the Disciplinary Authority in the show cause notice with the findings of the Inquiry Officer, violates the principles of natural justice?

Let the papers of the case be put up before the Hon ''ble the Chief Justice, for appropriate orders.

Counsel for the petitioner has stated that in the meanwhile, judgment of the Hon''ble Supreme Court in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja (2008) 2 SCC (L&S) 789 has been rendered and the relevant paragraphs of the said judgment read as under:

From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice." Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.

In the instant case, no finding has been recorded by the High Court that prejudice had been caused to the delinquent employee, the writ petitioner. According to the High Court, such prejudice is "writ large". In our view, the above observation and conclusion is not in consonance with the decisions referred to above, including a decision of the Constitution Bench in B. Karunakar. The view of the High Court hence, canmnot be upheld. The impugned order, therefore, deserves to be set aside and is accordingly set aside.

Since the High Court has not considered the second question, namely, whether failure to supply the report of the inquiry officer had or had not resulted in prejudice to the delinquent employee, ends of justice would be met with if we remit the matter to the High Court to decide the said question.

Learned Counsel for the petitioner has argued that the agreement recorded by the disciplinary authority with the findings of the Enquiry Officer and to propose punishment shows that the disciplinary authority has already applied its mind and the show cause notice issued was illusory and a mere formality. It is contended that it is only after reply of the delinquent official is considered by the disciplinary authority, the findings of the Enquiry Officer can be accepted by the disciplinary authority giving rise to the proposal of punishment. Counsel for the respondent-Nigam has countered this plea by submitting that by the very nature of things, the order of the disciplinary authority issued to the delinquent official while enclosing a copy of the enquiry report and recording its agreement with the finding and asking the official why punishment should not be imposed are tenative in nature. He submitted that the real and final order was to be passed only after affording an opportunity to the petitioner, which in this case was done.

We are of the view that when the disciplinary authority sends a copy of the enquiry report to the delinquent official, the agreement with the enquiry report is tentative. The final concurrence can only be recorded by the disciplinary authority after affording an opportunity of hearing to the delinquent employee on the findings of the Enquiry Officer. The factum of issuance of show cause notice inviting the delinquent employee to submit his response itself suggests that the agreement recorded therein is tentative and on sufficient cause shown, the delinquent authority is at liberty to take a decision which is just, fair and reasonable and not necessarily the same which the Enquiry Officer has proposed.

In view of the above, all the four writ petitions i.e. Civil Writ Petition Nos. 4149 of 2007, 16029 of 2006, 5920 of 2007 and 11725 of 2007, will be placed before the Hon''ble Single Judge on August 09, 2010 to decide the writ petitions on merit in view of the above and in view of the judgment of the Supreme Court in Kailash Chand Ahuja''s case (supra).