2010 Supreme(SC) 502

2010 (5) Supreme 161
SUPREME COURT OF INDIA
G.S. Singhvi and C.K. Prasad, JJ.
Indu Bhushan Dwivedi — Appellant
versus
State of Jharkhand and another — Respondents
Civil Appeal No. 4888 of 2010
(Arising out of SLP(C) No. 23781 of 2007)
Decided on : 5-7-2010

IMPORTANT POINTS
1.While recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment.
2.Past adverse record of the delinquent employee cannot be considered at the stage of imposing punishment unless he is put to notice and given an opportunity to explain his position.

Headnote:Service Law- Appeal for setting aside order passed by Division Bench of High Court in Writ Petition whereby it set aside the dismissal of the appellant from service but imposed punishment of compulsory retirement- No dispute that adverse remarks recorded in the Annual Confidential Reports of the appellant were not communicated to him- Appellant did not even know what were adverse remarks and who had recorded the same- If the appellant was made aware that the adverse remarks relate to his work, conduct or behaviour, he may have represented and successfully demonstrated that remarks were recorded by the concerned officer without looking into quality and quantity of the work done by him and that there was no complaint from any quarter regarding his conduct and behavior- He could have also shown that in the past no such adverse remark had been entered in his Annual Confidential Report- If the remarks contained adverse reflection on his integrity, the appellant could have represented that the same were unfounded or were made due to bias or prejudice- He may have shown that his integrity was beyond doubt and he had discharged his duties sincerely and to the satisfaction of his superiors- In the show cause notice issued to appellant, it was not disclosed that High Court had considered the un-communicated adverse remarks recorded in his Annual Confidential Reports for the purpose of forming an opinion that he should be dismissed from service- If the appellant had been told about this and given an opportunity to have his say against the un-communicated adverse remarks, he could have offered appropriate explanation and tried to convince the concerned authority that remarks were either unfounded or were totally unjustified-Hence held that appellant was seriously prejudiced on account of non-disclosure of the fact that while recommending his dismissal from service, High Court had taken into consideration un-communicated adverse remarks recorded in his four Annual Confidential Reports-Finding recorded by Division Bench of High Court that appellant’s cause was not prejudiced on account of consideration of the past adverse record held clearly erroneous and unsustainable- Impugned order of Division Bench of High Court set aside-Appeal allowed. (Paras 20 to 28)

       Facts of the Case :

       Present Appeal has been filed for setting aside order passed by Division Bench of High Court in Writ Petition whereby it set aside the dismissal of the appellant from service but imposed punishment of compulsory retirement.

       Findings of the Court :

       No dispute that adverse remarks recorded in the Annual Confidential Reports of the appellant were not communicated to him. Appellant did not even know what were adverse remarks and who had recorded the same- If the appellant was made aware that the adverse remarks relate to his work, conduct or behaviour, he may have represented and successfully demonstrated that remarks were recorded by the concerned officer without looking into quality and quantity of the work done by him and that there was no complaint from any quarter regarding his conduct and behavior. He could have also shown that in the past no such adverse remark had been entered in his Annual Confidential Report. If the remarks contained adverse reflection on his integrity, the appellant could have represented that the same were unfounded or were made due to bias or prejudice. He may have shown that his integrity was beyond doubt and he had discharged his duties sincerely and to the satisfaction of his superiors. In the show cause notice issued to appellant, it was not disclosed that High Court had considered the un-communicated adverse remarks recorded in his Annual Confidential Reports for the purpose of forming an opinion that he should be dismissed from service. If the appellant had been told about this and given an opportunity to have his say against the un-communicated adverse remarks, he could have offered appropriate explanation and tried to convince the concerned authority that remarks were either unfounded or were totally unjustified. Hence held that appellant was seriously prejudiced on account of non-disclosure of the fact that while recommending his dismissal from service, High Court had taken into consideration un-communicated adverse remarks recorded in his four Annual Confidential Reports. Finding recorded by Division Bench of High Court that appellant’s cause was not prejudiced on account of consideration of the past adverse record was held clearly erroneous and unsustainable. Impugned order of Division Bench of High Court was set aside. Appeal was allowed.

       Result : Appeal allowed.