Signed by: BHABAGRAHI JHANKAR v. Union of India & Ors.

Judgment

-17.12.2024 Dr. S.K. Panigrahi, J.

1. Through this Writ Petition, the petitioner challenges the petitioner seeks to challenge the Charge Order of removal dated 26.04.2010, issued by the Commandant, CISF Unit, GOM Gua. The petitioner also contests the Order dated 26.04.2010 passed by the DIG, CISF Unit, RSP, Rourkela (“Appellate Authority”), as well as the subsequent Order dated

30.09.2010, issued by IG CISF-ES HQ, Patna (“Revisional Authority”), wherein the punishment of removal from service was upheld. I. FACTUAL MATRIX OF THE CASE:

2. The brief fact of the case in brevity remains:- Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 (i) The petitioner joined the Central Industrial Security Force (CISF) as a Constable and was posted at CISF Unit GOM Gua. During his tenure, he was issued a charge memorandum dated 21.01.2010 by the Commandant of CISF Unit R.S.P. Rourkela (Opposite Party No. 5), under Rule 36 of the CISF Rules. The charge memorandum, based on a complaint lodged by Dr. N.K. Jha, Deputy Commandant of CISF Unit GOM Gua, alleged that the petitioner engaged in misbehavior, used foul language, and threatened fellow CISF personnel during an incident on 02.01.2010. The incident occurred when the petitioner was taken outside the chamber of the Deputy Commandant, at which point he allegedly threatened to shoot them and used abusive language. (ii) Subsequently, an inquiry was conductedon the following count of charges: a. Charge I: The petitionerwas charged with gross misconduct, indiscipline, and misbehavior for using unparliamentary language and threatening Dr. N.K. Saha, Deputy Commandant of CISF Unit GOM Gua, on 02.01.2010. The petitioner is also alleged to have threatened other CISF personnel with violence, stating that he would shoot them when they attempted to remove him from the Deputy Commandant’s chamber. b. Charge II: The petitioner was again charged with gross misconduct and indiscipline for threatening Constable V.K. Singh of CISF Unit GOM Gua on 07.01.2010, at approximately 1800 hours. The threat was allegedly made over an issue regarding the tracing of the petitioner’s medical records. During a confrontation in the Company office, the

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 petitioner is said to have threatened to beat Constable Singh with a shoe. c. Charge III: The petitioner was charged with inculcating a pattern of indiscipline, having been awarded four separate punishments for various acts of indiscipline in the past. Despite these previous disciplinary actions, he failed to amend his behavior, demonstrating a persistent disregard for authority and proving himself to be incorrigible. (iii) The inquiry concluded on 28.03.2010, during which eight witnesses were examined. The petitioner was found guilty of all charges. Consequently, the final order, dated 26.04.2010, confirmed the inquiry report and directed the petitioner’s removal from service/ with effect from the same date. (iv) Aggrieved by this decision, the petitioner filed an appeal on 24.05.2010, which was rejected by Opposite Party No. 4 in an order dated 20/22.07.2010, upholding removal order. The petitioner subsequently filed a revision petition on 10.08.2010, which was also rejected in an order dated 30.09.2010. II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions. (i) Under Article 311(2) of the Constitution of India, before the imposition of a major penalty, a second show cause notice ought to be issued to the charged officer. However, the petitioner submits that such an Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 opportunity was never afforded to him, rendering the punishment imposed upon him vitiated. (ii) It is further contended that there was a clear violation of the principles of natural justice, as the petitioner was not permitted to cross-examine certain witnesses produced on behalf of the prosecution. (iii) Additionally, the petitioner asserts that the evidence provided by the eight witnesses during the inquiry was not supplied to him, and as such, the proceedings are vitiated. The petitioner has been terminated from service, and given the nature of the evidence and materials on record, the punishment imposed is shockingly disproportionate to the alleged misconduct. (iv) Furthermore, the petitioner contends that although the order rejecting his appeal, was passed on 20th or 22nd July 2010, the same was signed with a backdated signature, i.e., 20th March 2010. This clearly reflects a lack of application of mind by the authority in question. In light of this, the petitioner submits that the entire proceeding stands vitiated. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

4. (i) Learned counsel for the State/Opposite Partiesearnestly made the following submissions in support of his contentions:- The inquiry against the petitioner was conducted in accordance with the established rules, and there has been no infirmity, irregularity, or violation of the principles of natural justice in the conduct of the proceedings. The petitioner was provided ample opportunities to defend his case and cross-examine the prosecution witnesses (PWs). Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 Out of the eight PWs examined, the petitioner cross-examined five of them, but chose not to cross-examine the remaining three witnesses (PWs-6, 7, and 9), and he acknowledged this by signing the respective statements of these witnesses. (ii) Following the 42nd amendment to Article 311 of the Constitution of India, the provision for the issuance of a second show cause notice for representation against the proposed punishment was abolished. As per the existing rules, a copy of the inquiry report was served to the petitioner on 01.04.2010, providing him an opportunity to submit his representation, if any, within 15 days. The petitioner submitted his representation on 14.04.2010, which was duly considered by the disciplinary authority. After reviewing the representation and the evidence in the case files, the disciplinary authority found the petitioner guilty of all three charges and imposed the punishment of “Removal from service” via the final order dated 26.04.2010. Therefore, the petitioner’s contention in this regard is baseless and intended to mislead the Court. (iii) All the documents listed in the charge memo were duly supplied to the petitioner along with the charge memo on 23.01.2010, and the petitioner acknowledged receipt of these documents. Additionally, copies of statements from all eight PWs recorded during the inquiry were also provided to the petitioner on the same day after the statements were completed. (iv) The three charges leveled against the petitioner, which were proven during the inquiry, are serious in nature, particularly within the context Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 of the armed forces like CISF. Furthermore/ the petitioner’s past record/ which includes four separate punishments for previous instances of indiscipline, clearly indicates his failure to reform his behavior. Despite repeated disciplinary actions, the petitioner once again engaged in serious misconduct, this time involving his Unit Commander, which reflects an incorrigible tendency towards indiscipline. (v) In light of this, the petitioner rendered himself unfit for continued service in the CISF, making his removal from service inevitable. The punishment imposed by the disciplinary authority, which was subsequently confirmed by the appellate and revisional authorities, is just, fair, and proportionate to the severity of the charges proven against the petitioner. (vi) The petitioner, aggrieved by the punishment, filed an appeal on

25.05.2010 before the appellate authority, the DIG CISF Unit RSP Rourkela. After a thorough review of the case files and the grounds raised in the appeal, the appellate authority concluded that the charges against the petitioner had been conclusively proven through a properly constituted departmental inquiry. The punishment awarded to the petitioner was appropriate considering the gravity of the proven charges. As a result, the appeal was rejected as meritless by the appellate authority in its order dated 20.07.2010. (vii) Regarding the petitioner’s objection to the date under the signature of the appellate authority in the appellate order (which was erroneously written as 20/03 instead of 20/07), it is clarified that this was a typographical mistake and does not invalidate the order, which was Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 indeed passed on 20.07.2010. This error in the date cannot absolve the petitioner of the proven charges. (viii) The charges against the petitioner were proven in a duly constituted departmental inquiry, and the petitioner was given reasonable opportunities to defend himself, which he availed. His conduct throughout the inquiry was inconsistent and incompatible with the discipline expected of a CISF personnel. The punishment imposed by the disciplinary authority is proportionate to the gravity of the offense committed. The actions taken by the respondents have not violated any legal rights of the petitioner or any provisions of the Constitution of India. Therefore, the actions of the respondent authorities are in accordance with the existing rules and are sustainable in the eyes of the law. Any leniency in such a case would severely undermine the discipline and morale of the force. Consequently, the writ petition has no merit and should be dismissed in the interest of justice. IV. EXAMINATION OF THE LEGAL MATRIX:

6. I have heard the representations of the counsels appearing for the respective parties at length. First of all, it is trite in law that the power of judicial review exercised by a Court or a Tribunal against the orders of a departmental inquiry committee is only limited to ensuring that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55

7. In B.C. Chaturvedi vs. Union of India,1 the Supreme Court also held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. The relevant excerpt is produced hereinbelow: “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of 1(1995) 6 SCC 749 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. person would reached,

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel, this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. xxxxxxxxx

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 with cogent reasons in support thereof.” (Emphasis supplied)

8. When an inquiry is conducted on the charges of misconduct by an employee of the state, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with. A 3-Judge Bench of the Supreme Court stated as under in State of Andhra Pradesh v ChitraVenkataRao:2 “21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723: (1964) 3 SCR 25: (1964) 2 LLJ 150]. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental inquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental inquiry against a public servant. The Court is concerned to determine whether the inquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the 2(1975) 2 SCC 557 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a for a writ under Article 226.”(Emphasis proceeding Supplied)

9. In Om Kumar & Others vs. Union of India,3 the Supreme Court had also after considering the Wednesbury Principles and the doctrine of proportionality held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority, and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or the other of the well-known principles known as “Wednesbury Principles” namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether thedecision was one 3(2001) 2 SCC 386 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 which no reasonable person could have taken. The Apex held as following: “In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, [1987] 4 SCC 611, this Court referred to ’proportionality’ in the quantum of punishment but the Court observed that the punishment was ’shockingly’ disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749, this Court stated that the court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. issue of fundamental Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as ’arbitrary’ under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing Court freedoms nor of because no discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment.”(Emphasis supplied) Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55

10. Now, with the above principles in mind, we shall consider the arguments of the counsel for the petitioners, one by one, against the arguments of the counsel for the Opp. Parties. V. COURT’S ANALYSIS AND REASONING:

11. Heard rival contentions and perused the documents on record.

12. The petitioner’s primary argument is that under Article 311(2) of the Constitution of India, before the imposition of a major penalty, a second show cause notice ought to be issued to the charged officer. However, the petitioner submits that such an opportunity was never afforded to him, rendering the punishment imposed upon him vitiated. Now, this contention would have substantiated in early 1970s. However, 42nd Constitutional Amendment made this contention futile by omitting the provision.

13. The 42nd Constitutional Amendment deleted the following words appearing in clause (2) of Article 311 of the Constitution of India, which reads as under: “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 penalty proposed, but only on the basis of the evidence adduced during such inquiry.”

14. A perusal of such omitted provisions would show that an opportunity was required to be given to submit a representation on penalty proposed but such requirement had been omitted by 42ndConstitutional Amendment. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55

15. The jurisprudence surrounding the issuance of a second show cause notice in disciplinary proceedings prior to the imposition of punishment has been comprehensively examined by the Supreme Court in State Bank of India and Ors. v. Mohammad Badruddin.4The court held that requirement of second show cause notice of proposed punishment has been dispensed with. The mandate now is only to apprise the delinquent of the Inquiry Officer’s report. There is no necessity of communicating proposed punishment which was specifically contemplated by clause (2) of Article 311 prior to 42ndAmendment.The pertinent excerpts from the judgment, encompassing seminal cases that have significantly shaped the jurisprudence surrounding the concept of a second show cause, are detailed herein: “18. A perusal of such omitted provisions would show that an opportunity was required to submit a representation on penalty proposed but such requirement had been omitted by 42nd Constitutional Amendment. This Court in Mohd.Ramzan case considered the effect of amendment and held as under: to be given “9. Where, however, the Inquiry Officer furnishes a report with or without proposal of punishment the report of the Inquiry Officer does constitute an additional material which would be taken into account by the disciplinary authority in dealing with the matter. In cases where punishment is proposed there is an assessment of the material and a tentative conclusion is reached for consideration of the disciplinary authority and that action is one where the prejudicial material against the delinquent is all the more pronounced. xxxxxx 4(2019) 16 SCC 69 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55

12. We have already noticed the position that the Forty- second Amendment has deleted the second stage of the inquiry which would commence with the service of a notice proposing one of the three punishments mentioned in Article 311(1) and the delinquent officer would represent against the same and on the basis of such representation and/or oral hearing granted the disciplinary authority decides about the punishment. Deletion of this part from the concept of reasonable opportunity in Article 311(2), in our opinion, does not bring about any material change in regard to requiring the copy of the report to be provided to the delinquent. xxxxxx

15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.”

19. Later, the Constitution Bench in B. Karunakar affirmed the said judgment to hold that it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed. The Court held as under: “19. In Mohd.Ramzan Khan case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505] the question squarely fell for consideration before a Bench of three learned Judges of this Court, viz., that although on account of the Forty- second Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer’s report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him in the report before the disciplinary authority took its own decision with regard to the guilt or otherwise of the employee by taking into consideration the said report. The Court held that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non-furnishing of the report amounts to a violation of the rules of natural justice. xxxxxx Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55

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 Forty-second Amendment. xxxxxx

29.Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

30. (iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan in all establishments whether Government or non-Government, should apply employees Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against is answered accordingly.” him. Hence question (iv) (Emphasis supplied) ……

21. The omission of the words from clause (2) of Article 311 of the Constitution reproduced above completely changes the requirement of serving notice in respect of the proposed punishment. The amended provisions of Article 311 of the Constitution of India have been considered in Mohd. Ramzan’s case and later in B. Karunakar’s case. The judgment of this Court in Nicholas Piramal India Limited arises out of an Award passed by the Labour Court under the Industrial Disputes Act, 1947. The jurisdiction of the Labour Court is much wider where the punishment can be reviewed by the Labour Court in terms of Section 11-A of the said Act.” (Emphasis supplied)

16. The Supreme Court in Punjab National Bank and Others v. K.K. Verma,5 has taken the same view that right to represent against the proposed penalty has been taken away by the 42nd Amendment. It was so held: “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 5 (2010) 13 SCC494 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 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.”

17. The requirement for a second show cause notice regarding the proposed punishment has been explicitly dispensed with. Under the current framework, the only obligation is to inform the delinquent employee of the Inquiry Officer’s report. The need to communicate the proposed punishment, which was previously required under clause (2) of Article 311 before the 42nd Amendment, is no longer necessary. The amendment has simplified the disciplinary process by eliminating this step, focusing solely on notifying the employee of the findings in the Inquiry Officer’s report.

18. The petitioner’s counsel further contends that/ in a disciplinary proceeding, the past conduct of the accused should not be considered and that only the charges specified in the present charge memo ought to be examined. However, this contention is misplaced. The Supreme Court has repeatedly held that, where relevant, the prior record and past conduct of the accused may indeed be taken into account in disciplinary proceedings, provided they bear on the present charges and are not extraneous to the matter under consideration.

19. The prior penalties imposed upon the petitioner shall be pertinent in determining the punishment in subsequent disciplinary proceedings. The issue of whether an employee’s past misconduct may be considered in later disciplinary actions is well-settled and has been definitively Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 18:01:55 addressed by the Supreme Court in Central Industrial Security Force v. Abrar Ali,6 wherein it was held as follows: “Charge No. 3 was that the Respondent had become habitual in committing indiscipline and disorderliness. A reference was made to two major penalties of deduction of pay and one minor punishment of reduction of seven days salary earlier. The Disciplinary Authority found that the Respondent did not improve in spite of being punished earlier. The High Court agreed with the contention of the Respondent and held that a fresh inquiry cannot be initiated into a misconduct for which a delinquent had already suffered a penalty. The High Court found that any penalty imposed under Charge No. 3 would amount to double jeopardy. We disagree with the finding of the High Court as we are of the view that the Respondent was not being tried again for previous misconduct. As the Respondent did not improve in spite of being punished earlier and had indiscipline and disorderliness, the become habitual Disciplinary Authority rightly found Charge No. 3 as proved. The desirability of continuance of the Respondent was considered on the basis of his past conduct which does not amount to double jeopardy. In any event, past conduct of a delinquent employee can be taken into consideration while imposing penalty.”

20. Then in Union of India v. Bishamber Das Dogra,7the Supreme Court held as following: “30. ...... But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.”