Judgement

M. M. DUTT, J.:- The Special Leave Petition filed by the appellants was heard upon notice to the respondent, who appeared before us in person. As arguments have been made by both sides at the hearing of the Special Leave Petition, we proceed to dispose of the appeal after granting such leave.

2. The only question that is involved in this appeal is whether it is necessary to give a second show cause notice against the punishment before the same was imposed on the respondent and to furnish him with a copy of the report of Inquiry Officer in view of the amendment of Cl. (2) of Art. 311 of the Constitution of India by the Constitution (Forty-Second Amendment) Act, 1976 and the consequential change brought about in Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules. 1965 Indeed, the notice of the Special Leave Petition that was served on the respondent was confined only to the said question.

3. The respondent, K. S. Mahalingam. was the Examiner of Madras Customs House. While he was acting in that capacity, a charge sheet was served on him containing two articles of charge alleging misconduct involving lack of integrity and lack of devotion to duty and conduct unbecoming of a Government servant. The respondent submitted his defence, inter alia, denying the charges. The Inquiry Officer held that both the articles of charge were established. The Disciplinary Authority, namely, the Collector of Customs, Madras, examined the report of the Inquiry Officer and by his order dated May 15, 1980 came to the finding that both the charges framed against the respondent were proved. In view of the said finding, the Collector of Customs by his said order dismissed the appellant from service. Being aggrieved by the order of dismissal, the respondent preferred an appeal against the same to the Chief Vigilance Officer, Central Board of Excise and Customs. The Appellate Authority elaborately considered the facts and circumstances of the case and by its order dated July 8, 1981 upheld the finding of the Disciplinary Authority that the charges against the respondent were proved. The Appellate Authority, however, altered the penalty of dismissal to one of compulsory retirement of the respondent from service.

4. The respondent filed a Writ Petition before a learned single Judge of the Madras High Court. The learned Judge, upon a review of the materials on record, came to the conclusion that there was no evidence of lack of integrity or lack of devotion to duty or conduct unbecoming of a Government servant as alleged in the charges levelled against the respondent. Further, the learned Judge took the view that as no opportunity was given to the respondent to show cause against the punishment before the same was imposed by the Disciplinary Authority and as no copy of the Inquiry Officers report was supplied to him, the order of dismissal was vitiated. Accordingly, the learned Judge by his order dated September 7, 1985 quashed the order of dismissal and directed reinstatement of the respondent in service.

5. The appellants preferred an appeal before a Division Bench of the High Court. The Division Bench by its judgment dated September 13, 1985 agreed with the learned single Judge that the respondent was deprived of an opportunity to show cause against the punishment imposed on him by the Disciplinary Authority. In that view of the matter, the Division Bench did not consider the findings of the learned Judge on merits. The Division Bench modified the order of the learned single Judge by setting aside the direction for reinstatement of the respondent in service and permitting the Disciplinary Authority to proceed further with the disciplinary proceedings against the respondent from the stage of giving a fresh notice to show cause against the punishment to be proposed by him. Hence this appeal by the appellants.

6. It thus appears that the Division Bench as also the learned single Judge of the High Court took the view that t