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2012 Supreme(Del) 2312
DELHI HIGH COURT
Badar Durrez Ahmed, V.K.Jain, JJ.
Union of India - Appellant
Versus
Yogita Swaroop & Anr. - Resopndent
W.P.(C) 265/2012
Decided On : 13-01-2012
For the Petitioner:Mr R.V.Sinha, For Respondent No.1:Mr S.K.Dubey, For Respondent No.2: Mr Naresh Kaushik
The requirement to supply a copy of the UPSC report in advance to the concerned employee if relied upon for disciplinary action, and the consequences of not providing the report, as established by the Supreme Court.
Headnote:
UPSC Advice - Disciplinary Proceedings - Article 320(3)(c) of the Constitution of India, S.N.Narula vs. Union of India & Others, Civil Appeal No.642 of 2004, Union of India v. T.V. Patel : 2007 (4) SCC 785, Union of India & Others v. S.K.Kapoor: 2011 (4) SCC 589, Union of India v. Y.S.Sadhu, Ex-Inspector : 2008 (12) SCC 30, Managing Director, ECIL, Hyderabad and Another v. B.Karunakar & Ors. : 1993 (4) SCC 727, U.P.State Spinning Co. Ltd. v. R.S.Pandey and Another : 2005 (8) SCC 264 - The court discussed the principles of natural justice and the requirement to supply a copy of the UPSC report in advance to the employee concerned if relied upon for disciplinary action. It also highlighted the distinction between mandatory and non-mandatory provisions of Article 320(3)(c) of the Constitution of India and the consequences of not providing the report to the concerned employee. The court's decision was influenced by the interpretations of previous Supreme Court decisions and the legal principles established in those cases.
Fact of the Case:
The petitioner challenged the order passed by the Central Administrative Tribunal, alleging prejudice due to non-supply of the UPSC advice relied upon in the penalty order. The Tribunal set aside the penalty order, directing reinstatement and fresh disciplinary proceedings.
Finding of the Court:
The court found that the petitioner was prejudiced by the non-supply of the UPSC advice, leading to the quashing of the penalty order. The Tribunal's direction for reinstatement was modified based on relevant Supreme Court decisions.
Issues: Prejudice due to non-supply of UPSC advice, legality of penalty order, and the nature of reinstatement and entitlements.
Ratio Decidendi: The non-supply of UPSC advice to the concerned employee violated principles of natural justice, leading to prejudice and the quashing of the penalty order. The court also clarified the nature of reinstatement and entitlements based on relevant Supreme Court decisions.
Final Decision: The writ petition was disposed of with the direction for the petitioner's reinstatement without back wages and other service benefits, solely for the purpose of completing the departmental proceedings.
Badar Durrez Ahmed, J.
1. In this writ petition, the order dated 14.11.2011 passed in O.A.No.504/2011 by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as “the Tribunal”) is under challenge. The impugned order dated 14.11.2011 is itself a second round of litigation. In the first round, the Tribunal itself had remitted the matter to the Disciplinary Authority for reviewing the case from the angle of proportionality of the penalty.
2. The main plea before the Tribunal in the second round was that the respondent No.1 was prejudiced by non-supply of the UPSC advice dated 18.11.2009, which had been relied upon in the penalty order dated 26.11.2009. On behalf of the petitioner herein, reliance was placed on the decision of the Supreme Court in the case of Union of India v. T.V. Patel : 2007 (4) SCC 785. However, the Tribunal noted that there was a subsequent decision of the Supreme Court in the case of Union of India & Others v. S.K.Kapoor: 2011 (4) SCC 589 in which the decision of Union of India v. T.V.Patel (supra) had been held to be per incuriam. The relevant portion of the decision in Union of India & Others v. S.K.Kapoor (supra), is as under:-
“10. In the aforesaid decision, it has been observed in para 25 that “the provisions of Article 320(3) (c) of the Constitution of India are not mandatory”. We are of the opinion that although Article 320 (3) (c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel’s case is clearly distinguishable.
11. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice.
12. This is also the view taken by this Court in the case of S.N.Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
13. It may be noted that the decision in S.N.Narula (supra) was prior to the decision in T.V.Patel’s case(supra). It is well settled that if a subsequent coordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula’s case (supra was not noticed in T.V.Patel’s case (supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula’s case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.”
3. The Supreme Court in Union of India & Others v. S.K.Kapoor (supra), also observed that although the opinion/advice of the UPSC is not mandatory, if the authorities do consult the UPSC and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Following this decision of the Supreme Court, the Tribunal has come to the conclusion as under:-
“10. Considering the totality of the facts and circumstances of the case and guided by the law laid by Hon'ble Apex Court in S.K.Kapoor’s case (supra), we come to the considered view that the impugned order dated 26.11.2009 is not sustainable in the eyes of law as the applicant has been deprived of the opportunity to represent against the
