Supreme Court of India
INDU BHUSHAN DWIVEDIversusSTATE OF JHARKHAND AND ANR.
- Citation
- 2010 INSC 348
- Decided
- 5 July 2010
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The consideration of uncommunicated adverse remarks from an employee’s Annual Confidential Report without affording him a hearing violates natural justice and vitiates the dismissal, requiring a fresh determination of the appropriate punishment.
Summary
Indu Bhushan Dwivedi, a Sub‑Divisional Judicial Magistrate, was dismissed from service after a departmental inquiry found two of three charges proved: leaving headquarters without permission and using derogatory language. The High Court’s dismissal recommendation relied on adverse remarks in his Annual Confidential Reports (ACRs) that were never communicated to him, violating his right to a hearing. The Supreme Court held that using uncommunicated ACR remarks without giving the employee an opportunity to explain breaches the rule of audi alteram partem and vitiates the dismissal. Moreover, the charges proved did not warrant dismissal, making the punishment disproportionate. The Court set aside the High Court’s order and directed a fresh consideration of the quantum of punishment, with any adverse ACR remarks to be communicated and the employee allowed to make representations.
Issues considered
- Whether reliance on uncommunicated adverse remarks in the employee's Annual Confidential Reports, without giving him a chance to be heard, violates the principles of natural justice.
- Whether such a violation invalidates the dismissal order passed against the employee.
- Whether the punishment of dismissal is proportionate to the charges proved in the disciplinary inquiry.
- Whether past adverse records can be considered for imposing dismissal without prior notice to the employee.
- Whether the High Court correctly distinguished earlier case law on the consideration of past records.
Legislation cited
- Constitution of Indias. Article 311(2)
Subjects
Service lawdisciplinary inquirynatural justiceaudi alteram partemdismissalcompulsory retirementannual confidential reportproportionalityprejudice
Judgment
[2010] 7 S.C.R. 465
INDU BHUSHAN DWIVEDI A
v.
STATE OF JHARKHAND AND ANR.
(Civil Appeal No. 4888 of 2010)
JULY 05, 2010
B
[G.S. SINGHVI AND C.K. PRASAD, JJ.]
Service Law - Misconduct - Charges of insubordination
and indiscipline against appellant-Judicial Magistrate -
Proved in disciplinary inquiry - High Court recommended C
dismissal of appellant, after taking into consideration his past
adverse record, but without informing him that the same were
being relied upon for deciding the quantum of punishment -
Dismissal challenged as being vitiated due to violation of the
rules of natural justice - A/so, quantum of punishment D
challenged as being totally disproportionate to the charges
found proved against the appellant - Held: Since the un-
communicated adverse remarks contained in the Annual
Confidential Reports of the appellant became foundation of
the decision taken by the High Court to recommend his E
dismissal from service and he was not noticed about the
proposed consideration of those remarks, it must be held that
the appellant was seriously prejudiced -Also, the charges
proved were not that serious which warranted imposition of the
extreme penalty of dismissal from service - High Court F
directed to consider the issue of quantum of punishment
afresh and make fresh recommendation to State Government
after giving an opportunity to the appellant to make
appropriate representation - Natural justice - Rule of audi
alteram partem - Violation of.
The appellant was a Sub-Divisional Judicial
Magistrate. Regular departmental Inquiry was held
against him on three charges, viz. 1) that after having
consumed liquor, he had misbehaved and manhandled
465
466 SUPREME COURT REPORTS [2010] 7 S.C.R.
A an accused and a constable; 2) that he had left the
headquarters without seeking permission from the
Registrar General of the High Court in violation of the
direction contained in an order given by it and 3) that he
had used derogatory words qua the communication sent
B by the High Court.
The first charge was not found to be proved. The
other two charges were however found proved by the
Inquiry Officer. Thereafter, the High Court recommended
the dismissal of appellant from service. The
C recommendation was accepted by the State Government.
Appellant filed writ petition before the Division Bench
of the High Court, contending that the dismissal order
was vitiated due to violation of the rules of natural justice
D because while recommending his dismissal from service,
the High Court had considered un-communicated
adverse remarks recorded in the Annual Confidential
Reports of the appellant without informing him that the
same were being relied upon for deciding the quantum
E of punishment. Another ground taken by the appellant
was that the punishment of dismissal from service was
totally disproportionate to the charges found proved
against him. The Division Bench of the High Court set
aside the punishment of dismissal but imposed upon the
F appellant the punishment of compulsory retirement.
Before this Court, the appellant urged that the action
taken against him was not only against the basics of
natural justice but was wholly arbitrary, unreasonable
and unjustified. The appellant submitted that even if the
G findings recorded by the Inquiry Officer in respect of two
charges are held to be correct, there was no justification
to impose the punishment of dismissal ignoring that in
his long service career he was not found guilty of any
other act of insubordination or indiscipline. The appellant
H argued that when charge no.1, which was extremely
INDU BHUSHAN DWIVEDI v. STATE OF 467
JHARKHAND AND ANR.
serious in nature was not found proved, the High Court A
could not have imposed extreme penalty of dismissal
from service by simply relying upon un-communicated
adverse remarks recorded in his Annual Confidential
Reports.
B
The appellant contended that the Division Bench of
the High Court should have set aside the order which
was subject matter of challenge in the writ petition and
directed the respondents to pass fresh orders after
communicating adverse remarks to the appellant and C
giving him an opportunity to explain his position.
Allowing the appeal, the Court
HELD: 1. One of the basic canons of justice is that
no one can be condemned unheard and no order D
prejudicially affecting any person can be passed by a
public authority without affording him reasonable
opportunity to defend himself or represent his cause. As
a general rule, an authority entrusted with the task of
deciding lis between the parties or empowered to make E
an order which prejudicially affects the rights of any
individual or visits him with civil consequences is duty
bound to act in consonance with the basic rules of
natural justice including the one that material sought to
be used against the concerned person must be
disclosed to him and he should be given an opportunity F
to explain his position. This unwritten right of hearing is
fundamental to a just decision, which forms an integral
part of the concept of rule of law. This right has its roots
in the notion of fair procedure. It draws the attention of
the authority concerned to the imperative necessity of not G
overlooking the cause which may be shown by the other
side before coming to its decision. When it comes to
taking of disciplinary action against a delinquent
employee, the employer is not only required to make the
H
468 SUPREME COURT REPORTS [2010] 7 S.C.R.
A employee aware of the specific imputations of
misconduct but also disclose the material sought to be
used against him and give him a reasonable opportunity
of explaining his position or defending himself. If the
employer uses some material adverse to the employee
B about which the latter is not given notice, the final
decision gets vitiated on the ground of the violation of the
rule of audi alteram partem. Even if there are no statutory
rules which regulate holding of disciplinary enquiry
against a delinquent employee, the employer is duty
c bound to act in consonance with the rules of natural
justice. (Para 18] (488-C-H; 489-A-B]
1.2. However, every violation of the rules of natural
justice may not be sufficient for invalidating the action
taken by the competent authority/employer and the Court
D may refuse to interfere if it is convinced that such
violation has not caused prejudice to the affected person/
employee. (Para 18] (489-8-C]
1.3. While recommending or imposing punishment on
E 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
F required to be given if the final punishment is lesser than
the proposed punishment. [Para 20] (491-0-E]
State of Mysore v. K. Manche Gowda AIR 1964 SC 506
and Managing Director, Uttar Pradesh Warehousing
Corporation and another v. Vijay Narayan Bajpayee (1980)
G 3 sec 459, relied on.
2.1. In the present case, it is not in dispute that
adverse remarks recorded in the Annual Confidential
Reports of the appellant for the years 1988-1989, 1989-
H 1990, 1990-1991 and 1996-1997 were not communicated
INDU BHUSHAN DWIVEDI v. STATE OF 469
JHARKHAND AND ANR.
to him. It can reasonably be presumed that if the adverse A
remarks were communicated to him, the appellant would
have made representation for expunging the same.
However, as the adverse remarks were not
communicated to him, the appellant could not avail that
opportunity. He did not even know what were the adverse B
remarks and who had recorded the same. This Court
cannot speculate about the appellant's fate if the High
Court had informed him that there were adverse remarks
in his Annual Confidential Reports which were being
relied upon for the purpose of determining the quantum c
of punishment and that he can submit his representation
against 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 "the remarks were recorded by the 0
concerned officer without looking into the quality and
quantity of the work done by him and that there was no
complaint from any quarter regarding his conduct and
behaviour. He could have also shown that in the past no
such adverse remark had been entered in his Annual
E
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. F
However, the fact o.f the matter is that the adverse
remarks were not communicated to him and on that
account he could not represent against the same. [Para
22] [491-H; 492-A-F]
G
2.2. In the show cause notice issued to the appellant,
it was not disclosed that the 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 H
470 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 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 the remarks were either unfounded or were
B totally unjustified. He would have surely pleaded that after
1996-1997 no adverse comments were made about his
work, conduct, behaviour and integrity and he had
earned good reports (even the Division Bench of the High
Court had noted that his confidential report for the year
c 2002-2003 was good on all counts). It is thus clear that
the appellant was seriously prejudiced on account of
non-disclosure of the fact that while recommending his
dismissal ·from service,, the High Court had taken into
consideration un-communicated adverse remarks
0 recorded in his four Annual Confidential Reports. [Para
23] [492-G-H; 493-A-C]
2.3. There cannot be two views that being a membe.r
of the subordinate judiciary, the appellant was bound to
comply with the direction given by the High Court to stay
E at the headquarters but singular violation of such
directive or use of intemperate language in representation
were not ~hat serious which warranted imposition of the
extreme penalty of dismissal from service. The adverse,,
remarks recorded in the Annual Confidential Reports of
F the appellant seems to have weighed heavily with the
High Court while recommending his dismissal from
service. [Para 24] [493-F-G]
2.4. Since the un-communicated adverse remarks
contained in the Annual Confidential Reports of the
G appellant became foundation of the decision taken by the
High Court to recommend his dismissal from service and
he was not noticed about the proposed consideration of
those remarks, it must be held that the appellant was
seriously prejudiced. [Para 25] [493-H; 494-A-B]
H
INDU BHUSHAN DWIVEDI v. STATE OF 471
JHARKHAND AN-D·ANR.
2.5. A reading of the representation made by the A
appellant makes it clear that he had only mentioned that
there was no report against his integrity and honesty and
he was never found guilty of any act of insubordination
or indiscipline in his service career. This assertion,
cannot by any stretch of imagination be construed as a s
request by the appellant for consideration of his past
record, as held by the Division Bench of the High Court.
The finding recorded by the Division Bench of the High
Court that the appellant's cause was not prejudiced on
account of ~onsideration of the past adverse record is c
clearly erroneous and unsustainable. [Para 26) (494-C-E)
State of U.P. v. Harish Chandra Singh AIR 1969 SC
1020, distinguished.
Om Kumar v. Union of India (2001) 2 SCC 386; D
Mahindra and Mahindra Ltd. v. N.B. Jarawade (2005) 3 SCC
134 and Hombe Gowda Educational Trust v. State of
Karnataka (2006) 1 SCC 430, referred to.
3. The impugned order of the Division Bench of the
E
High Court is set aside. The High Court shall now
consider the issue of quantum of punishment afresh and
make fresh recommendation to the State Government. If
the High Court still feels that the adverse remarks in the
Annual Confidential Reports of the appellant for the year
1988-1989, 1989-1990, 1990-1991 and 1996-1997 should F
be considered, then such report(s) shall be
communicated to him and he should be given an
opportunity to make appropriate representation. While
making fresh recommendation for imposing the
particular punishment, the High Court is expected to take G
into consideration the good as well as adverse record of
the appellant. The State Government shall pass
appropriate order after receipt of fresh recommendation
from the High Court. [Para 28) (494-G-H; 495-A-C)
H
472 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Case Law Reference:
AIR 1964 SC 506 relied on Para 13
AIR 1969 SC 1020 distinguished Para 13
(2001) 2 sec 386 referred to Para 14
B
(2005) 3 sec 134 referred to Para 14
(2006) 1 sec 430 referred to Para 14
(1980) 3 sec 459 relied on Para 18
c
CIVIL APPELLATE JURISDICTIQN1: Civil Appeal No.
4888 of 2010.
From the Judgment & Order dated 29.3.2007 of the High
C,ourt of Jurisdiction at Jharkhand in Writ Petition (service) No.
D ''2671 of 2006.
Raja Venkatappa Naik, Dr. Sudhakar Chowdhary, N.N.
Jha, S.K. Tandon, Rameshwar Prasad Goyal for the Appellant.
E Manish Kumar Saran, Krishnanand Pandeya for the
Respondents.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
F
2. This is an appeal for setting aside order dated
29.3.2007 passed by the Division Bench of Jharkhand High
Court in Writ Petition No.2671 of 2006 whereby it set aside the
dismissal of the appellant from service but imposed the
G ·punishment of compulsory retirement.
3. The appellant joined service as Munsif in 1982. He was
promoted as Sub-Divisional Judicial Magistrate in 1996. While
he was posted as Sub-Divisional Judicial Magistrate at
Chaibasa, a news item appeared in 'Dainik Jagran' dated
H
INDU BHUSHAN DWIVEDI v. STATE OF 473
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
2.7.2003 suggesting that the appellant had misbehaved and A
manhandled an accused, named, Anup Kumar and Constable
Sheo Pujan Baitha. On the next day, i.e. 3.7.2003, the appellant
made a representation to District and Sessions Judge, West
· Singhbhum at Chaibasa with the request that an inquiry be got
conducted into the matter and appropriate action against the B
person who got published the misleading news.
4. The High Court of Jharkhand took cognizance of the
newspaper report adversely commenting upon the conduct of
the appellant and passed an order dated 5.7.2003 whereby he C
was placed under suspension and his headquarter was fixed
at Chaibasa with a direction,. that he shall not leave the
headquarter without obtaining prior permission from the
Registrar General of the High Court.
5. In the meanwhile, the appellant appears to have D
submitted an application to the District Judge on 4.7.2003 f<;>r.
permission to go to Ranchi for his treatment and also avail
holiday on 6.7.2003. After receiving the order of suspension,
the appellant submitted an application to the Registrar General
of the High Court stating therein that as per the advise of the E
doctor, he has to take complete rest for one month and,
therefore, he is unable to return to Chaibasa. The appellant also
indicated that he would join the headquarters after recovery
from illness. This prayer of the appellant was rejected by the
High Court and he was informed through the District Judge to F
comply with the direction contained in order dated 5.7.2003.
The appellant responded to this communication by sending letter
dated 19.7.2003 to the District Judge wherein he mentioned
that he had to proceed on leave because he was suffering from
acute and uncontrolled loose motions and he had left the G
headquarters after handing over charge and after seeking
permission from the District Judge. He then reiterated his
inability to return to the headquarter and described the direction
contained in the letter of the High Court as merciless which
could not be complied with at the cost of one's life. He also H
474 SUPREME COURT REPORTS [2010] 7 S.O.R.
A claimed that being a suspended employee, he cannot be
compelled to .stay at the headquarters.
6. After five months of his suspension, a regular
departmental inquiry was initiated against the appellant on the
following charges:
8
"Charge No.1
You, Shri lndu Bhushan Dwivedi while functioning as
SDJM, West Singhbhum at Chaibasa was found in
c intoxicated condition on 1st July 2002 (a holiday) in your
residential office when an accused Anup Kumar of a case
no. C/7-60/2001 of the Court of Shri D. Mahapata, Judicial
Magistrate, 1st Class, Chaibasa was produced before you
in your residential office for remand by the Head
D Constable Shri Sheo Pujan Baitha in presence of Office
Clerk Shri Baidyanath Ballav Kath of the Court of Shri D.
Mahapatra.
At the time of production of the said accused Anup
Kumar, you misbehaved and manhandled the accused
E Anup Kumar as well as constable Shri Sheo Pujan Baitha.
The aforesaid action on your part not only reflects on
your reputation, dereliction of duty but also shows the
recklessness and misconduct in the discharge of duties.
F
The aforesaid action on your part is also unbecoming
of a Judicial Officer.
Charge No.2
G You, Shri lndu Bhushan Dwivedi, SDJM, Chaibasa
was placed under suspension by Hon'ble High Court's
order contained in letter No. 05/Apptt. dt. 5.7.2003 fixing
your headquarter at Chaibasa. It was served on you on 5th
July, 2003 by the District & Sessions Judge, West
H Singhbhum at Chaibasa. On 4th July, 2003, you submitted
INDU BHUSHAN DWIVEDI v. STATE OF 475
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
representation applications before the District & Sessions A
Judge, West Singhbhum at Chaibasa to leave the
headquarter on following Sunday i.e. 6th of July, 2003 (for
one day) to proceed to Ranchi which was allowed by the
District & Sessions Judge, West Singhbhµm, Chaibasa.
B
Though during the period of suspension you are not
supposed to attend duty or sign any Attendance Register
but you are supposed to remain in the Headquarters and
cannot leave the Headquarters without any permission of
the competent authority, but you remained absent from
headquarter from 6.7.2003 after making over charge to
0
SDJM, Porahat on 5.7.2003 and you remained out of
headquarter without any information till 10.9.2003.
The aforesaid action on your part and violation of
Court's order amounts insubordination and misconduct. D
Charge No.3.
You, Shri lndu Bhushan Dwivedi, SDJM, Chaibasa
(under suspension) when asked by the District & Sessions
Judge, West Singhbhum at Chaibasa as to why you have E
not returned to headquarter by letter No.2501/G dated 10th
of July, 2003 and to report you submitted reply and used
derogatory words against the Court by your letter No. 5(P)
of 2003 dt. 19th July, 2003 using expression "Merciless
Direction of the Hon'ble Court". F
The aforesaid remarks by you reflects on your
conduct amounting to insubordination, indiscipline and
unbecoming a Judicial Officer.
Shri Dwivedi has been charged of misconduct G
recklessness in discharge of his duties along with
insubordination and for committing the acts most
unbecoming of a responsible Judicial Officer, on the basis
of the above mentioned allegation."
H
476 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 7. The appellant submitted reply and denied all the
charges. After considering the reply, the High Court appointed
District & Sessions Judge, East Singhbhum, Jamshedpur to
conduct regular inquiry. The presenting officer examined 5
witnesses and produced 11 documents to substantiate the
B charges leveled against the appellant, who examined 2
witnesses and produced 17 documents.
8. For the sake of his convenience, the Inquiry Officer
formulated the following points: ·
C (i) Whether Shri Dwivedi was in an intoxicated
condition on 1st July, 2003 in the residential Office
when accused Anup Kumar was produced before
him for remand?
0 (ii) Whether Shri Dwivedi had misbehaved as also
manhandled the accused Anup Kumar and
Constable Sheo Pujan Baitha?
(iii) Whether Shri Dwivedi had left his headquarter
without prior permission from the competent
E authority and without any sufficient cause?
(iv) Whether Shri Dwi\1edi had used derogatory
language/word against the Hon'ble Court by his
Letter No.5(p) 2003 dated 19.7.2003? and
F
(v) Whether Shri Dwivedi had acted in a way which
shows recklessness and misconduct in discharge
of his duties along with insubordination and
indiscipline which is unbecoming of a responsible
Judicial Officer?
G
After analyzing the evidence produced before him, the
Inquiry Officer submitted report dated 4.6.2005 with the
conclusion that charges No.2 and 3 have been proved against
the appellant but charge No.1 has not been proved. While
H dealing with point Nos.1 and 2 which related to charge No.1,
INDU BHUSHAN DWIVEDI v. STATE OF 477
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
the Inquiry Officer referred to the statements of Pravakar Singh A
(A.W.1 ), the Registrar, Civil Courts, Chaibasa, Baidyanath
Ballav Kant (A.W.2), Havildar Sheo Pujan Baitha (A.W.3), the
accused Anup Kumar (A.W.5) and recorded the following
conclusions:
B
"11. From perusal of the record, it appears that there is
some force in the contention of the delinquent because
A.W.2 Baidyanath Ballav Kant has specifically stated that
on the date of occurrence, the delinquent had performed
'Puja' and several persons were present there and after C
'Puja' Prasad was also given to him and two other persons
and this fact has been supported by A.W.1 Prabhakar
Singh. A.W.2 has further stated that the delinquent was not
in an intoxicated condition when the accused was
produced for remand. The said Havildar, A.W.3, has also
nowhere stated in his evidence that the delinquent was in D
an intoxicated state.
12. On careful examination of the evidence oral and
documentary, adduced by the parties and in view of the
aforesaid discussions, I am of the view that the Charge E
No.1 that the delinquent was in an intoxicated condition
when the accused was produced before him for remand,
could not be proved by cogent evidence and similarly, this
has also not been proved that the delinquent had assaulted
the accused Anup Kumar and the Havildar Sheo Pujan F
Baitha. So, the Point No.4(i) and (ii) are decided in favour
of the delinquent."
9. The Inquiry Officer then dealt with other three points and
held that the delinquent (appellant herein) appears to have
managed the medical prescription from the doctors to justify G
non-compliance of the direction given by the High Court not to
leave the headquarter without obtaining permission from the
Registrar General and concluded that his action amounted to
insubordination and indisciplined behaviour unbecoming of a
responsible judicial officer. H
478 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 10. The High Court accepted the inquiry report and
directed that show cause notice be issued to the appellant for
imposition of a major penalty. Accordingly, the Registrar
General of the High Court issued Memo dated 30.6.2005 to
the appellant enclosing therewith a copy of the inquiry report
B and called upon him to show cause as to why a major penalty
such as dismissal from service may not be inflicted upon him.
In his reply dated 22.7.2005, the appellant challenged the
findings recorded by the Inquiry Officer in respect of charges
No.2 and 3 by contending that the same were based on
c erroneous appreciation of evidence and that there was no valid
ground to discard the testimony of the doctor and prescriptions
given by him. The appellant then pleaded that he neither had
the intention nor he could have dared to disobey the direction
given by the High Court. He submitted that non-compliance of
the direction given by the High Court to stay at the headquarters
0
during the period of suspension was due to his illness and
pleaded that he may be pardoned for using the expression
'merciless direction' for the communication sent by the High
Court. He again tendered an unqualified apology for what he
termed as wrong choice of the words. Simultaneously, he
E claimed that there was no adverse report regarding his integrity,
honesty and sincerity and he was never found guilty of any act
of insubordination or indiscipline and pointed out that in the
latest report, the District Judge had commended his work. This
is evinced from para 17 of the appellant's representation, which
F reads thus:
"17. Sir, most humbly and respectfully I submit that in the
entire period of my service there is no report against my
integrity honesty and sincerity. I was never found guilty of
G any act of insubordination or indiscipline ever before in this
entire period of service also that recently proceeding this
susper'lsion my District Judges in their annual report have
commended my work."
H 11. After considering the reply of the appellant, the High
Court recommended his dismissal from service. The State
INDU BHUSHAN DWIVEDI v. STATE OF 479
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
Government accepted the recommendation of the High Court A
and passed order dated 22.2.2006 whereby the appellant was
dismissed from service.
12. The appellant challenged the aforementioned order by
contending that the same is vitiated due to violation of the rules 8
of natural justice because while ·recommending his dismissal
from service, the High Court had considered un-communicated
adverse remarks recorded in the Annual Confidential Report
without informing him that the same were being relied upon for
deciding the quantum of punishment. Another ground taken by C
the appellant was that the punishment of dismissal from service
was totally disproportionate to the charges found proved against
him.
I
13. The Division Bench of the High Court first considered
the question whether the past adverse record could be D
considered for imposing the punishment of dismissal, referred
to the judgment of the Constitution Bench in State of Mysore
v. K. Manche Gowda AIR 1964 SC 506 as also the judgment
in State of UP. v. Harish Chandra Singh AIR 1969 SC 1020
and held that when the High Court proposed the punishment E
of dismissal from service and the appellant hin:iself made a
request in paragraph 17 of his reply that his past record may
be considered, no prejudice can be said to have been caused
to him on account of consideration of the adverse reports.
Paragraphs 21 and 22 of the impugned order which contain F
the reasoning of the High Court on this issue are extracted
below:
"21. Thus, the ratio decided in the above case is where
the past records is considered for awarding lesser
punishment, no notice about the proposal that the past G
records will be considered is necessary. In this case, the
stand taken by the 2nd respondent, namely, the High Court,
the past records were taken into consideration in addition
to the charges proved only to consider if any lesser
punishment than the dismissal could be inflicted, as H
480 SUPREME COURT REPORTS [2010] 7 S.C.R.
A desired by the petitioner. In case, the past records were
not considered by the disciplinary authority, then the then
the petitioner may raise a grievance non-consideration of
his· past records white awarding punishment in spite of his
request. Under those circumstances, the past records as·
B admitted in the counter affidavit filed by the respondent No.
2 have been considered.
22. As indicated above, when specially the petitioner has
made a request in his reply to consider his past records,
while awarding punishment as his past records are good,
c the disciplinary authority was constrained to go into the
past record. But, according to the counter by the
respondent No.2, the past records did not support the
claim of the petitioner that his past records were good. On
the contrary, his past records contained various details
D about his bad records in so many words as mentioned in
the counter. There is no question of consideration of past
records for giving higher punishment than the disciplinary
authority felt while issuing 2nd show cause notice that the
maximum punishment alone, would ,commensurate the
E proved charges. In the aforesaid circumstance, there is no
requirement to mention in the show cause notice regarding
to mention in the show cause notice regarding his past
records. As stated by the counsel for the respondent No.2,
the past r~cords were considered at the instance of th~
F petitioner and also with a view to consider if any lesser
punishment than the dismissal could be inflicted upon the
petitioner. As such the first contention would fail."
14. The Division Bench then considered the appellant's
G plea that the punishment of dismissal was unduly harsh and
disproportionate to the misconduct found proved against him,
referred to the judgments in Om Kumar v. Union.of India (2001)
2 SCC 386, Mahindra and Mahindra Ltd. v. N.B. Jarawade
(2005) 3 SCC 134, Hombe Gowda Educational Trust v. State
H of Kamataka (2006) 1 SCC 430, and held:
INDU BHUSHAN DWIVEDI v. STATE OF 481
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
"Even at the threshold, it should be stated that, the A
disciplinary proceedings were initiated and suspension
order was passed mainly on the basis ofthe report of an
officer in the Civil Court complaining that the delinquent-
petitioner, in an intoxicated condition, assaulted the
· accused who was produced before him for remand as well B
as the constable, who produced before the delinquent.
This is truly a very serious charge. If this charge is proved,
itwould have been a very serious misconduct on the part
of the judicial officer, which would entail him to maximum
punishment. But, in this case, the inquiry officer has not only c
observed the charge is not proved, but also indicatedthat
the delinquent had been falsely implicated at the instance
of the police personnel of the local police station with whom
relationship of delinquent was not cordial. It is true that
merely, because the first charge had been held to be false, D
we cannot hold the other charges do not need any serious
consideration. Other charges also are serious, but it shall
be remembered that they are not so serious as that of the
· . first charge. As indicated above, the petitioner, himself,
requested the disciplinary authority to take into
consideration the past record. There is no dispute in the E
fact tha.t the past records were taken into consideration
where it was recorded as his conduct was not good in
respect of some period. But the show cause reply sent by
the delinquent, dated, 22.07.2005, would irtdicate that he
has specifically ;asked the authority to take into F
consideration all the entire pe~od of service. He further
referred in his show cause that his District Judge,
Chaibasa has commended his work in his annual report.
Admittedly, there is no reference about this in the counter
filed by the respondent No. 2. On the other hand, the G
counsel for the 2nd respondent would submit that his entire
past records are not good.
In view of this, it would be better to look into the relevant
.
entries in his A.C.R. This Court called for the A.C.R. and H
482 SUPREME COURT REPORTS [2010] 7 S.C.R.
A perused the same. The.relevant entry in A.C.R. in respect
of 1988-89, 1989-90, ·1991-92, 1996-97 would show
various adverse remarks, as referred to in the counter.
However, in the counter, there is no mention about the
entries made during the year 2002-2003. As per the entry,
B the District Judge, Chaibasa certified him as a good
officer whic~ is as follows:
Year 2002-2003
Name of Judgeship Chaibasa
c
Reporting Officer /Hon'ble Judge Mr. B.N. Pandey
Knowledge Good
Promptness in dispos<l;I Yes
D
Quality of Judgment Good
Supervision of Business NA
Efficiency Yes
E
Reputation Yes
Attitude towards Colleagues Good behaviour
Relation with Bar & Public Good behaviour
F
Net Result Good Officer
There is no reason as to why the respondent No. 2 has
not chosen to refer to these entries in relation to his good
behaviour. The respondent No. 2 only was particular about
G giving reference about the earlier years in which some
adverse remarks had been passed against him, but in the
later year, as indicated above, he got an entry from the
District Judge in his A.C.R. that his knowledge and
behaviour is good and he was certified as good officer.
H
INDU BHUSHAN DWIVEDI v. STATE OF 483
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
Thus, it is clear while imposing punishment, this aspect has A
not been taken into ~onsideration despite the request made
by the delinquent to take into consideration the recent entry
made by District Judge, Chaibasa commending his work.
Admittedly, the suspension order was issued on
B
05.07.2003. His suspension was not revoked during the
pendency of the inquiry. The inquiry commenced and the
charges have been framed only on 16:12.2003. The
inquiry officer was appointed only on 28.05.2004.
Thereafter inquiry held. The inquiry report was submitted C
on 04.06.2005. Show cause notice wcis issued on
30.06.2005. Show cause reply was sent on 22.07.2005.
Ultimately, dismissal order was passed only on
26.02.2006. Thus, he was facing inquiry from 2003 to
2006. Admittedly, during the said period his suspension
was not revoked and he was continued to be under D
suspension. Thus, he was facing inquiry for two years and
seven months approximately and during that long period,
he was constrained to stay at Chaibasa at Headquarters
as per the direction of this Court. So, this aspect of the
long delay as well as the good conduct certificate obtained E
by the delinquent in the recent past from the District Judge
would be the relevant aspect which ought to have been
taken into consideration by the disciplinary authority, while
imposing punishment. Admittedly, both these aspects have
not been considered." F
15. In the end, the Division Bench concluded that the
punishment of dismissal imposed on the appellant is not
sustainable but declined to set aside the same on the ground
that substantial time has lapsed since the initiation of the inquiry G
and proceeded to impose punishment of compulsory retirement
upon the appellant. This is evinced from paragraphs 34 and 35
of the impugned order, which are extracted below:
· "34. At this stage, we may refer to the powers of this Court
as indicated by the Supreme Court for reviewing the H
484 SUPREME COURT REPORTS [2010] 7 S.C.R.
A punishment imposed upon the delinquent by the
discfpljnary authority. Let us refer to the relevant portion of ·
judgment of the Supreme Court in (2001) 2 SCC 386 [Om
Kumar versus Union of India]
14. The court while reviewing punishment and if it
B
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 extreme and rare cases
where there has been long delay in the time taken
c by the disciplinary proceedings and in the time
taken in the courts, can the court substitute its own
view as to the quantum of punishment.
35. In the light of the above rule, we are vested with the
D .power to review the punishment. As we are of the view that
the Wednesbury principles have been violated in this case,
we are constrained to review the quantum punishment. As
Supreme Court would observe, this Court would normally ·
remit the matter to the disciplinary authority to take a fre~h
E decision as to the quantum of punishment. However, this
Court is no inclined to do the same, as in this case there
has been a long delay .in the time taken by the disciplinary
proceedings as well as in the time taken in this Court. The
proceedings were started in the ye~r. 2003. We are in
F 2007. Therefore, instead of remitting the matter, we
ourselves inclined to review the punishment. In our view,
instead of dismissing the petitioner from service, it would
be appropriate to impose the punishment of compulsory
retirement, which would meet the ends of justice."
G 16. Shri Raja Venkatappa Naik, learned counsel for the
~ppellant reiterated both the grounds taken before the High
Court and urged that the impugned order as also the one
passed by the State Government are liable to be set aside
because the action taken against the appellant is not only
H against the basics of natural justice but is wholly arbitrary,
INDU BHUSHAN DWIVEDI v. STATE OF 485
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
unreasooable and unjustified. Learned counsel emphasized A
that none of the four Annual Confidential Reports mentioned in
parag,·aph 30 of the impugned order were communicated to
the appellant so as to enable him to represent against the
adverse remarks recorded therein and argued that the same
could not have been considered for the purpose of imposing B
the p1,mishment of dismissal without giving him opportunity to
offer his explanation. Learned counsel submitted that even if
the findings recorded by the Inquiry Officer in respect of charges
No.1 and 2 are held. to be correct, there was no justification to
impose the punishment of dismissal ignoring that in his long c
service career of 24 years the appellant was not found guilty
of any other act of insubordination or indiscipline. Learned
counsel argued that when charge No.1, which was extremely
serious in nature was not found proved, the High Court could
not have imposed extreme penalty of dismd issdal from servicke . D.
by simply relying upon un-communicate a verse remar s ·
recorded in his Annual Confidential Reports. Learned counsel
criticized the imposition of the punishment of compulsory
retirement by the Division Bench of the High Court by arguing
that once the Division Bench came to the conclusion that E
punishment of dismissal is vitiated due to non consideration of
the relevant material i.e., the latest Annual Confidential Report
in which the immediate superior of the appellant had
commended his work and conduct, then it should have set aside
the order which was subject matter of challenge in the writ
petition and directed the respondents to pass fresh orders after F
communicating adverse remarks to the appellant and giving
him an opportunity to explain his position.
17. We shall first deal with the question whether
consideration of the past adverse record of the appellant by the G
High Court had the effect of vitiating the ultimate order passed
by the State Government. An exactly similar question was
considered and .answered in affirmative by the Constitution
Bench in State of Mysore v. K. Manche Gowda (supra). The
facts of that case were that while the respondent was holding H
486 SUPREME COURT REPORTS [2010] 7 S.C.R.
A the post of an Assistant to the Additional Development
Commissioner, Planning, Bangalore, the Government of Mysore
appointed Shri G.V.K. Rao (Additional Development
Commissioner) to conduct a departmental enquiry against him
in respect of the false claims for allowances and fabrication of
B vouchers. The Enquiry Officer framed four charges against the
respondent. After holding an enquiry in accordance with relevant
mies, the Enquiry Officer submitted report with the
recommendation that the respondent might be reduced in rank.
However, the government issued a notice to the respondent
c requiring him to show cause as to why he may not be dismissed
from service. After considering his reply, the Government
dismissed the respondent from service. The respondent
challenged his dismissal by filing writ petition under Article 226
of the Constitution of India. The High Court quashed the order
of dismissal on several grounds including the one that the
0
respondent had not been foretold about the proposed
consideration of his past adverse record. This Court approved
the view taken by the High Court and observed:
"Under Art.311 (2) of the Constitution, as interpreted by this
E Court, a Government servant must have a reasonable
opportunity not only to prove that he is not guilty of the
charges leveled against him, but also to establish that the
punishment proposed to be imposed is either not called
for or excessive. The said opportunity is to be a
F reasonable opportunity and, therefore, it is necessary that
the Government servant. must be told of the grounds on
which it is proposed to take such action: see the decision
of this Court in State of Assam v. Bimal Kumar Pandit,
Civil Appeal No.832 of 1962 D/- 12-2-1963 : (AIR 1963
G SC 1612). If the grounds are not given in the notice, it
would be well nigh impossible for him to predicate what
is operating on the mind of the authority concerned in
proposing a particular punishment: h~ would not be in a
position to explain why he does not deserve any
H punishment at all or that the punishment proposed is
INDU BHUSHAN DWIVEDI v. STATE OF 487
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
excessive. If the proposed punishment was mainly based A
upon the previous record of a government servant and
that was not disclosed in the notice, it would mean that
the main reason for the proposed punishment was
withheld from the knowledge of the government servant.
It would be no answer to suggest that every government s
servant must have had knowledge of the fact that his past
record would necessarily be taken into consideration by
the Government in inflicting punishment on him; nor
would it be an adequate answer to say that he knew as a
matter of fact that the earlier punishments were imposed c
on flim or that he knew of his past record. This contention
misse·s the real point, namely, that what the government
servant is entitled to is not the knowledge of certain facts
but the fact that those facts will be taken into consideration
by the Government in inflicting punishment on him. It is not
0
possible for him to know what period of his past record or
what acts or omissions of his in a particular period would
be considered. If that fact was brought to his notice, he
might explain that he had no knowledge of the remarks
of his superior officers, thfit he had adequate explanation E
to offer for the alleged remarks or that his conduct
subsequent to the remarks had been exemplary or at any
rate approved by the superior officers. Even if the
authority concerned took into consideration only the facts
for which he was punished, it would be open to him to put
forward before the said authority many mitigating F
circumstances or some other explanation why those
punishments were given to him or that subsequent to the
punishments he had served to the satisfaction of the
authorities concerned till the time of the present enquiry.
He may have many other explanations. The point is not G
whether his explanation would be acceptable, but whether
he has been given an opportunity to give his explanation.
We cannot accept the doctrine of "presumptive
knowledge" or that of "purposeless enquiry", as their
acceptance will be subversive of the principle of H
· 488 SUPREME COURT REPORTS [2010] 7 S.C.R.
A "reasonable opportunity". We, therefore, hold that it is
incumbent upon the authority to give the government
servant at the second stage reasonable opportunity'fo
show-cause against the proposed punishment and if the
proposed punishment is a/so based on his previous
B punishments or his previous bad record, this should be
included in the second notice so that he may be able to
give an explanation."
(emphasis supplied)
C 18. The proposition laid down in the above noted judgment
represents one of the basic canons of justice that no one can
be condemned unheard and no order prejudicially affecting any
person can be passed by a public authority without affording
him reasonable opportunity to defend himself or represent his
D cause. As a general rule, an authority entrusted with the task
of deciding lis between the parties or empowered to make an
order which prejudicially affects the rights of any individual or
visits him with civil consequences is duty bound to act in
consonance with the basic rules of natural justice including the
E one that material sought to be used against the concerned
person must be disclosed to him and he should be given an
opportunity to explain his position. This unwritten right of
hearing is fundamental to a just decision, which forms an
integral part of the concept of rule of law. This right has its roots
F in· the notion of fair procedure. It draws the attention of the
authority concerned to the imperative necessity of not
overlooking the cause which may be shown by the other side
before coming to its decision. When it comes to taking of
disciplinary action against a delinquent employee, the employer
G is not only required to make the employee aware of the specific
imputations of misconduct but also disclose the material sought
to be used against him and give him a reasonable opportunity
of explaining his position or defending himself. If the employer
uses some material adverse to the employee about which the
H latter is not given notice, the final decision gets vitiated on the
INDU BHUSHAN DWIVEDI v. STATE OF 489
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
ground of the violation of the rule of audi alteram partem. Even A
if there are no statutory rules which regulate holding of
disciplinary enquiry against a delinquent employee, the
employer is duty bound to act in consonance with the rules of
natural justice - Managing Director, Uttar Pradesh
Warehousing Corporation and another v. Vijay Narayan B
Bajpayee (1980) 3 SCC 459. However; every violation of the
rules of natural justice may not be sufficient for invalidating the
action taken by the competent authority/employer and the Court
may refuse to interfere if it is convinced that such violation has
not caused prejudice to the affected person/employee. c
19.'.ln Harish Chandra Singh's case (supra), a three-Judge
Bench of this Court considered a somewhat similar question
in. the backdrop of the fact that even though in the show 1cause
notice, the competent authority had proposed dismissal of the
respondent, after considering his reply, a lesser punishment i.e. D
removal from service was imposed upon him. The respondent
in that case had joined Police Department in 1947. He was
dismissed from service on 21.6.1951 but was reinstated in
January, 1952. He was finally removed from service in.1956.
In the year 1951 itself, punishment of reduction to the lowest E
scale of the post for a period of three years was imposed on
the respondent. In .1955, his pay was reduced for a period of
two years. In the course of service, the respondent had earned
fifteen rewards and commendations. In the departmental inquiry
which led to his removal from serv(.ce in 1956, the respondent .F
was found guilty of three charges of gross negligence in the .
performance of his duty of investigating the cases registered
under various sections of the Indian Penal Code. The trial Court
dismissed the suit filed by the respondent. On appeal,
Additional District Judge, Varanasi decreed the same. The G
High Court confirmed the appellate judgment and dismissed
the second appeal preferred by the State by observing that the
respondent had not been given opportunity to explain the past
punishments which were considered by the Deputy Inspector
General of Police in arriving at his decision to remove the H
490 SUPREME COURT REPORTS [2010] 7 S.C.R.
A respondent from service. While considering the question
whether it was necessary for the concerned authority to give
notice to the respondent as a condition precedent for
consideration of his past punishments, this Court referred to the
factual matrix of the case and held that when the final
B punishment was lesser than the proposed punishment,
consideration of the past adverse record was inconsequential.
The Court referred to the arguments urged on behalf of the State
and observed:
"The learned counsel for the State contends that on the
c facts of this case it is clear that the plaintiff had notice that
his record would be taken into consideration because the
Superintendent of Police had mentioned it towards the end
of his order, a copy of which was supplied to the plaintiff.
In the alternative he contends that if the record is taken into
D consideration for the purpose of imposing a lesser
punishment and· not for the purpose of increasing the
quantum or nature of punishment, then it is not necessary
that it should be stated in the show-cause notice that his
past record would be tak~n into consideration.
E
It seems to us that the learned counsel is right on
both the points. The concluding para of the report of the
Superintendent of Police, which we have set out above,
clearly gave an indication to the plaintiff that his record
F would be considered by the Deputy Inspector General of
Police and we are unable to appreciate what more notice
was required. There is also force in the second p9int urged
by the learned counsel. In State of Mysore v. K. Manche
Gowda (1964) 4 SCR 540 the facts were that the
Government servant was misled by the show-cause notice
G
issued by the Government, and but for the previous record
of the Government servant the Government might not have
imposed the penalty of dismissal on him. This is borne out
by the following observations of Subba Rao, J., as he then
was:
H
INDU BHUSHAN DWIVEDI v. STATE OF 491
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
"In the present case the second show cause notice does A
not mention that the Government intended to take his
previous punishments into consideration in proposing to
dismiss him from service. On the contrary, the said notice
put him ·on the wrong scent, for it told him that it was
proposed to dismiss him from service as the charges B
proved against him were grave. But, a comparison of
paragraphs 3 and 4 of the order of dismissal shows that
but for the previous record of the Government servant, the
Government might not have imposed the penalty of
dismissal on him and might have accepted the c
recommendations of the Enquiry Officer and the Public
Service Commission. This order, therefore, indicates that
the show cause notice did not give the only reason whi~h
influenced the Government to dismiss the respondent from
service."
D
20. An analysis of the two judgments shows that 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 E
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.
21. In the light of the above, we shall now consider whether F
the High Court could have while recommending the appeilant's
dismissal from service taken into consideration un-
communicated adverse Annual Confidential Reports and
whether the Division Bench of the High Court was right in
distinguishing the judgment of the Constitution Bench in G
Manche Gowda's case on the ground that appellant had himself
made a request for consideration of the past record.
22. It is not in dispute that adverse remarks recorded in
the Annual Confidential Reports of the appellant for the years
1988-1989, 1989-1990, 1990-1991 and 1996-1997 were not H
492 SUPREME COURT REPORTS [2010] 7 S.C.R
A communicated to him. It can reasonably be presumed that if
the adverse remarks were communicated to him, the appellant
would have made representation for expunging the same.
However, as the adverse remarks were not communicated to
him, the appellant could not avail that opportunity. He did not
B even know what were the adverse remarks and who had
recorded the same. This Court cannot speculate about the
appellant's fate if the High Court had informed him that there
were adverse remarks in his Annual Confidential Reports which
were being relied upon for the purpose of determining the
c quantum of punishment and that he can submit his
representation against 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 the remarks were recorded by the
u concerned officer without looking into the quality and quantity
of the work done by him and that there was no complaint from
any quarter regarding his conduct and behaviour. 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
E 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. However, the fact of the
matter is that the adverse remarks were not communicated to
F him and on that account he could not represent against the
same.
23. The ratio of Manche Gowda's case is that the past
adverse record of the delinquent employee cannot be
G considered at the stage of imposing punishment unless he is
put to notice and given an opportunity to explain his position.
In the show cause notice issued to the appellant, it was not
disclosed that the High Court had considered the un-
communicated adverse remarks recorded in his Annual
H Confidential Reports for the purpose of forming an opinion that
INDU BHUSHAN DWIVEDI v. STATE OF 493
JHARKHAND AND ANR. [G.S. SINGHVI, J.)
he should be dismissed from service. If the appellant had been A
told about this and given an opportunity to have his say against
the un-communicated adverse remarks, he could have offered
app~opriate explanation and tried to convince the concerned
authority that the remarks were either unfounded or were totally
unjustified. He would have surely pleaded that after 1996-1997 B
no adverse comments were made about his work, conduct,
behaviour and integrity and he had earned good reports (even
the Division Bench of the High Court had noted that his
confidential report for the year 2002-20P3 was good on all
counts). It is thus clear that the appellant was seriously c
prejudiced on account of non-disclosure of the fact that while
recommending his dismissal from service, the High Court had
taken into consideration un-communicated adverse remarks
recorded in his four Annual Confidential Reports.
24. The inquiry was held against the appellant on three D
charges, the most serious of which was that after having
consumed liquor, he had misbehaved and manhandled an
accused and a constable. That charge was not found proved.
The other two charges were that he had left headquarter without
seeking permission from the Registrar General of the High E
Court in violation of the direction contained in order dated
5.7.2003 and that he had used derogatory words (merciless
direction) qua the communication sent by the High Court. There
cannot be two views that being a member of the subordinate
judiciary, the appellant was bound to comply with the direction F
given by the High Court to stay at the headquarters but singular
violation of such directive or use of intemperate language in
representation dated 19.7.2003 were not that serious which
warranted imposition of the extreme penalty of dismissal from
service. In our view, the adverse remarks recorded in the Annual G
Confidential Reports of the appellant seems to have weighed
heavily with the High Court while recommending his dismissal
from service.
25. Since the un-communicated adverse remarks
H
494 SUPREME COURT REPORTS (2010] 7 SC R
A contained in the Annual Confidential Reports of the appellant
became foundation of the decision taken by the High Court to
recommend his dismissal from seNice and he was not noticed
about the proposed consideration of those remarks, it must be
held that the appellant was seriously prejudiced. We have
B mentioned all this only to reinforce the ratio of the judgment in
Manche Gowda's case that consideration of the past adverse
record without giving an opportunity to the delinquent to explain
the same can cause serious prejudice to him.
26. The Division Bench of the High Court clearly misread
C the representation made by the appellant and distinguished the
judgment of the Constitution Bench in Manche Gowda 's case
without any tangible reason. A reading of paragraph 17 of the
representation made by the appellant makes it clear that he had
only mentioned that there was no report against his integrity and
D honesty and he was never found guilty of any act of
insubordination or indiscipline in his service career. This
assertion, cannot by any stretch of imagination be construed
as a request by the appellant for consideration of his past
record. Thus, the finding recorded by the Division Bench of the
E High Court that the appellant's cause was not prejudiced on
account of consideration of the past adverse record is clearly
erroneous and unsustainable.
27. The judgment in Harish Chandra Singh's case is
F clearly distinguishable. At the cost of repetition, we consider it
necessary to obseNe that the three-Judge Bench had not
applied the ratio of Manche Gowda's case because on facts it
was found that the past record had been considered by the
disciplinary authority only for the purpose of imposing a lesser
G punishment on the respondent.
28. For the reasons stated above, the appeal is allowed.
The impugned order of the Division Bench of the High Court is
set aside. The High Court of Jharkhand shall now consider the
issue of quantum of punishment afresh and make fresh
H recommendation to the State Government within a period of
INDU BHUSHAN DWIVEDI v. STATE OF 495
JHARKHAND AND ANR. [G.S. SINGHVI, J.]
four months from the date of receipt/production of copy of this A
order. If the High Court still feels that the adverse remarks in
the Annual Confidential Reports of the appellant for the year
1988-1989, 1989-1990, 1990-1991 and 1996-1997 should be
considered, then such report(s) shall be communicated to him
and he should be give_o an opportunity to make appropriate s
_representation. While making fresh recommendation for
imposing the particular punishment, the High Court is expected
to take into consideration the good as well as adverse record
of the appellant. The State Government shall pass appropriate
order within three months from the date of receipt of fresh c
recommendation from the High Court. The parties are left to
· bear their own cost.
8.8.B. Appeal allowed.
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