Judgment:
A. Pasayat, J.
1.This is the second journey of the petitioner to this Court. In the earlier writ application i.e. OJ.C. No. 3512 of 1987 disposed of on January 11, 1990, the petitioner, an erstwhile employee of the Talcher Unit of Fertiliser Corporation of India (for short 'the F.C.I.'), had assailed the order directing his removal by way of dismissal in a disciplinary proceeding initiated against him under Rule 23 of the Fertiliser Corporation of India Limited Employees (Conduct, Discipline and Appeal) Rules, 1972 (for short 'the Rules'). After delineating the jurisdiction of this Court under Article 226 of the Constitution of India in matters of disciplinary action, it was observed that departmental authorities are the sole Judges of facts and if there is some legal evidence on which their conclusion is based, adequacy or reliability of that evidence is not a matter that can be permitted to be canvassed before High Court in a proceeding under Article 226. The scope for interference was limited to cases of total absence of evidence. While exercising power under Article 226, adequacy or otherwise of penalty imposed, if any, is not open to be examined. It was observed that the position was slightly different in the petitioner's case because of two aspects; the first related to existence of a forum for review as provided under Rule 35. The reviewing authority, it was noticed, has jurisdiction to consider the adequacy, existence or otherwise of material in justification of penalty imposed. There is no fetter in its power to make in depth analysis and evaluation of evidence. The petitioner was, therefore, permitted to make a motion before the reviewing authority by a representation. The time limit within which the review application was to be made was fixed. Secondly, it was noticed that notwithstanding the deletion of Article 311(2) of the Constitution in a given case, a charged official is entitled to an opportunity to make submissions relating to the nature of penalty impossible. Necessity for affording of an opportunity relating to penalty was highlighted with reference to a decision of the apex Court in Union of India v. E. Bashyan 1988-II-LLJ-249. Undisputedly the petitioner made a representation. The direction in the earlier case was since the petitioner was aware of charged allegation and offence thereon, it was open to him to make representation relating to the desirability, quantum and nature of penalty to be imposed, if any. The appropriate authority was directed to deal with and dispose of the representation in accordance with law. The disciplinary authority by the impugned order (Annexure-8), rejected the representation. Apart from discussing the evidence recorded in respect of each charge, a specific finding was given in respect of the challenge of the petitioner that there was violation of principles of natural justice. The reviewing authority was of the view that such allegations were already agitated before this Court and have been considered, and there was no direction given to the Board for consideration of such contention. Further it was concluded that the petitioner had been afforded reasonable opportunity to defend himself, including the facility of defence assistant and there was no violation of principles of natural justice. There was also no violation of Rules 24 and 25 of the Rules as alleged by the petitioner. There is no provision in the Rules for supply of copy of the enquiry report to the charged officer before imposition of penalty. The same was supplied along with the order of imposition of penalty and the same had been assailed in an appeal before the appellate authority. With these observations, it was concluded that there was no denial of reasonable opportunity.
2. The main plank of argument of Mr. B. Pal, learned counsel for the petitioner, is that the judgment of this Court has been misinterpreted and misconstrued and the reviewing authority had not applied its mind to the contentions raised by the petitioner relating to the violation of the principles of natural justice in its proper perspective. It is submitted that the enquiry report forms the basic material which the disciplinary authority takes into consideration for holding the delinquent guilty, and hence if it is not made available to him till the axe falls, it could not be said to be in furtherance of the principle of natural justice. Reliance is placed on Bashyan's case (supra) to prop the contention. The stand of the Corporation and its functionaries on the other hand is that there has been no violation of principles of natural justice. According to them, on a reading of the judgment in the earlier writ application in its entirety, it is crystal clear that the Court closed the matter so far as factual findings are concerned, but permitted the petitioner to file a representation relating to adequacy or otherwise of the penalty imposed. This aspect has been considered by the reviewing authority. This Court did not set aside punishment imposed on the ground of non-supply of enquiry report and therefore that matter cannot be re-agitated in the present writ application.
3. On consideration of rival submission, we find that the stand of the Corporation is prevaricating. From the order passed by the reviewing authority (Annexure-8 to the writ application), it is clear that question of adequacy of penalty alone was not considered by it. The entire materials in support of the order of punishment have been analysed. Therefore, it cannot be said that the direction in the judgment was construed to be limited to adequacy or otherwise of the penalty. So far as the real purport of the judgment is concerned, we find that the petitioner was permitted to avail a statutorily prescribed forum of review. No fetters were laid down and in fact it was observed that the petitioner was free to ventilate his grievance as regards desirability, quantum and nature of the penalty to be imposed, if any. The plea that the Court did not feel the necessity for quashing the proceeding on the ground of non-supply of enquiry report also does not hold water. A passing reference was made to Bashyan's case (supra) to highlight the desirability for affording opportunity to the delinquent before imposition of penalty, and the stage at which the inquiry report was to be supplied. An additional fact has also been brought to our notice by the petitioner. One Shri Sachindananda Mohapatra who figures very prominently in the proceeding against the petitioner, had moved this Court questioning the legality of termination order passed by the authorities. One of the main planks of his argument in this Court was that the enquiry report was not supplied before penalty was inflicted and was made available along with the order of punishment. This Court accepted that the same amounted to violation of principles of natural justice. The order of removal was set aside and the matter was remitted back to the disciplinary authority to give opportunity to the petitioner to have his say on the enquiry report. The judgment is dated December 18, 1991 in the case of Sachidananda Mohapatra v. F.C.I. and Ors. (O.J.C. No. 489 of 1988)
4. Supply of enquiry report along with the recommendation, if any, in the matter of proposed punishment to be inflicted could be en-compassed by the rules of natural justice and the delinquent would, therefore, be entitled to supply of copy thereof. (See State of Gujarat v. R.G. Teradesai and Ors., A.I.R. 1969 S. C. 1294) (para-5). From the observation made by the apex Court in the said case, it is crystal clear that even if there is no recommendation relating to punishment, furnishing a copy of the enquiry report before imposing punishment is mandated by the rules of natural justice. The apex Court observed in para-8 that whenever there has been an enquiring officer and he has furnished a report to the disciplinary authority at the conclusion of the enquiry holding the delinquent guilty of any or all the charges with proposal for any particular punishment or not, delinquent is entitled to a copy of such report and also entitled to make representation against it if he so desires. Non-furnishing of the report would amount to violation of rules of natural justice and that would make the final order liable to challenge. Similar view was also expressed in State of Maharashtra v. Bhaichankar Avalram Joshi and Anr. (A.I.R. 1969 S.C. 1302). The purpose of supply of enquiry report is not merely to show cause against the proposed punishment but also to become aware of factors which may influence the mind of the disciplinary authority. The object of supplying copy is two fold namely; (i) to persuade the disciplinary authority to agree that he is innocent of the charges, and (ii) if the charges are held to be proved, the punishment proposed is unduly severe and harsh. In that background, even if under the Regulations second opportunity to show cause against the proposed punishment is not necessary, yet other substantive right of the delinquent officer to justify his innocence before the disciplinary authority is a part of natural justice of which he cannot be deprived. The reviewing authority rejected the plea of the petitioner primarily on the ground that the rules did not prescribe supply of copy of enquiry report before imposition of penalty. According to it the supply along with the order imposing penalty was sufficient. Such view is indefensible. Accordingly, we set aside the order of removal and remit the matter back to the disciplinary authority to give an opportunity to the petitioner to make submissions with regard to the enquiry report, a copy of which has been already served on him, and thereafter to dispose of the proceeding in accordance with law, as expeditiously as practicable.
5. The writ application is allowed to the extent indicated above. No costs.
D.P. Mohaputra, J.
6. I agree