Holding

The principles of natural justice were complied with as the employees were given the tentative decision and an opportunity to make representations; therefore, the dismissal was upheld.

Summary

Two senior translators of the Bombay High Court were accused of demanding bribes after a complaint by an advocate. An enquiry officer found them not guilty, but the disciplinary authority disagreed, issued a tentative decision, sought their explanations, and ultimately dismissed them. The appellants contended that they were denied a personal hearing and that natural justice was violated. The Supreme Court examined the Bombay High Court (Discipline and Appeal) Rules 7 and 8 and held that furnishing the tentative decision and allowing the employees to submit representations satisfied the principles of natural justice. Relying on precedents (Punjab National Bank v. Kuni Behari Misra and Yoginath D. Bagde v. State of Maharashtra), the Court found no infirmity in the disciplinary authority’s process and upheld the dismissal. The appeals were dismissed.

Issues considered

Whether the disciplinary authority must grant a personal hearing to an employee when it disagrees with the enquiry officer's findings.
Whether the principles of natural justice were violated in the dismissal of the appellants.
Whether the Bombay High Court (Discipline and Appeal) Rules require a fresh hearing before a final decision is taken.
Whether the penalty of dismissal was proportionate in the absence of conclusive evidence.

Legislation cited

Constitution of Indias. Article 309, s. Article 311(2)

Subjects

disciplinary proceedingsnatural justicepersonal hearingenquiry officerBombay High Court (Discipline and Appeal) Rulesdismissalservice lawcorruption

Judgment

J.A. NAIKSA TAM A
v.
PROTHONOTARY & SENIOR MASTER, HIGH COURT OF BOMBAY
AND ORS.

OCTOBER 7, 2004
B
[K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]

Service Law:

Disciplinary proceedings-Disciplinary authority not agreeing with C
findings of Inquiry Officer-Opportunity of personal hearing-High Court
employees-Demanding illegal gratification-Inquiry Officer found the
employees not guilty of charge-Disciplinary authority disagreeing with the
saidfirzding and concluding that employees were guilty-Order ofdisciplinary
authority furnished to employees and their explanation sought as to why penalty D
ofdismissal from service be not imposed-Their explanation not accepted and
order of removal from service passed-Plea that in the event of disciplinary
authority disagreeing with findings of inquiry officer, delinquent employees
should have been given personal hearing-Held, on facts, copy of tentative
decision of disciplinary authority having been given to employees and they
having furnished their detailed explanation, principles of natural justice have E
been fully complied with, and there is no infraction of rules nor is there any
infirmity in the decision-Bombay High Court (Discipline and Appeal) Rules-
rr. 7 and 8.

Punjab National Bank and Ors. v. Kuni Behari Misra etc., (1998) 7 SCC F
84 and Yoginath D. Bagde v. State of Maharashtra and Anr., [1999) 7 SCC
739, referred to.

CIVIL APPELLATE J~RISDICTION : Civil Appeal No. 4395 of
2002.

From the Judgment and Order dated 23.1.2001 of the Bombay High G
Court in W.P. No. 1441 of 2000.

V.N. Ganpule, Nitin S. Tambwekar, B.S. Sai, C.R. Iyer and Varinder
Kumar Sharma with him for the Appellants.
287 II
288 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A U.U. Lalit, S.S. Shinde, Arun Pednekar, Prasenjit Keswani, Nitin Sangra,
S.V. Deshpande and Mukesh K. Giri with him for the Respondents.

The following Order of the Court was delivered :

ORDER
B
Delay condoned in SLP (C) Nos.1243-1244 of 2003 and leave granted
in both Special Leave Petition (c) No.1241 of2003 and Special Leave Petition
(c) Nos.1243-1244 of 2003.

These appeals have been preferred against the impugned final judgment
C of the Division Bench dated 22nd December, 1999 of the High Court of
Bombay in the Writ Petitions filed by the two employees of the High Court
of Bombay, who were dismissed from service. The appellants were working
as senior translators in the office of the Chief Translator of the High Court.
In July, 1997 one Ms. Vasanti Joshi, who was practicing as an advocate in
the Bombay Courts filed a complaint alleging that the translators working in
D the office of the Chief Translator had been indulging in corrupt practices and
for obtaining official translation of the documents these translators had been
demanding illegal gratification. Pursuant to the complaint, the High Court
directed an inquiry by the Prothonotary & Senior Master of the High Court
and he examined some of the witnesses and based on the information collected
E by the Prothonotary & Senior Master, disciplinary proceedings were initiated
against these two appellants.

An Additional Registrar of the High Court was appointed as an Enquiry
Officer. The appellants were given opportunity to submit their written
representations before the Enquiry Officer. The gist of allegation levelled
F against these two appellants was that Ms. Vasanti Joshi gave three documents
in Marathi and one document in Gujarati for being translated into English
and the appellants in both the appeals demanded a sum ofRs.650 and Rs.350
as bribe. The Enquiry Officer, after a detailed enquiry, found that these
appellants were not guilty of the charge framed against them. The report was
G placed before the disciplinary authority and the disciplinary authority disagreed
with the findings of the Enquiry Officer and came to the cqnclusion that
these 3ppellants were guilty of having demanded the illegal gratification
from the complainant. A copy of the tentative decision was furnished to these
appellants and they were asked to give explanation as to why the report given
by the Enquiry Officer shall be accepted. Pursuant to that notice, the appellants
H herein gave a detailed explanation and they prayed that the report of the
J.A. NAIKSATAM 1•. PROTHONOTARY & SENIOR MASTER, HIGH COURT OF BOMBAY 289

Enquiry Officer may be accepted and the proceedings be dropped against A
them. It may be mentioned that the appellants did not seek for a personal
hearing at that juncture. After the receipt of the explanation, the disciplinary
authority passed an order disagreeing with the report submitted by the Enquiry
Officer and the copy of that order was furnished to the appellants and sought
their explanation as to why they shall not be imposed with penalty of dismissal B
from service. The appellants again gave their explanation and the same was
not accepted and they were removed from service. Aggrieved by the same,
the appellants filed separate writ petitions and in the writ petitions the pleas
raised by the appellants were not accepted by the court. However, the learned
Advocate General, who appeared before the High Court of Bombay pointed
out that the petitioners were entitled to file a review application against the C
imposition of penalty. The appellants thereafter filed a review application
before the High Court and the same was dismissed on 28th March, 2000 by
the then Acting Chief Justice of the High Court of Bombay. Aggrieved by the
same, the impugned writ petitions were filed by the appellants, which were
dismissed by the High Court, as stated earlier.
D
We have heard the learned ~'.!nior counsel for the appellants and the
learned senior counsel for the respondents. The counsel for the appellants
raised a plea that there was no evidence on record to hold that the appellants
were guilty of having demanded illegal gratification from the complainant-
Ms. Vasanti. We have gone through the evidence available on record and the E
findings of disciplinary authority and we are satisfied that cogent and
convincing reasons are given as to why the report of the Enquiry Officer was
not accepted.

The learned counsel for the appellants contended that as per the Bombay
High Court (Discipline and Appeal) Rules (for short 'the Bombay rules'), the F
appellants were entitled to get a copy of the report of the Enquiry Officer and
they should have been heard before the same was accepted or rejected by the
disciplinary authority. The contention was that by virtue of rule 8, according
to the appellants' counsel, though the report of the enquiry officer was
furnished, the appellants were not given an effective opportunity to place
their arguments against this and it was contended that even before the issuance G
of show cause notice, and the disciplinary authority had made up his mind
and had already taken a decision disagreeing with the enquiry officer and
seeking an explanation from the delinquent officers was only an empty
formality and there was thus serious violation of principles of natural justice.

H
290 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A The relevant rule of the Bombay rules reads as follows:

"8. Action on the inquiry report :-( 1) The disciplinary authority, if it
is not itself the inquiring authority may, for reasons to be recorded by
it in writing, remit the case to the inquiring authority who shall
thereupon proceed to hold the further inquiry according to the
B provisions of rule 7 of these Rules as far as ma/ be.

(2) The disciplinary authority shall if it is not the enquiring authority,
consider the record of the inquiry and record its findings on each
charge. If it disagrees with the findings of the inquiring authority
on any article of charge, it shall record its reasons for such
C disagreement.
(3) If the' disciplinary authority having regard to its findings on all
or any of the articles of charge is of the opinion that any of the
minor penalties should be imposed on the High Court servant, it
shall notwithstanding anything contained in rule 10 of these Rules
D on the basis of the evidence adduced during the inquiry held
under rule 7 determine what penalty; if any, should be imposed
on the High Court servant and make an order imposing such
penalty.

(4) (i) If the disciplinary authority, having regard to its findings on
E all or any of the articles of charge is of the opinion that any of .....
the minor penalties should be imposed on the High Court servant,
it shall- ·

(a) Furnish to the High Court servant, a copy of the report of the
inquiry held by it and its findings on each article of charge, or
F where the inquiry has been held by it and its findings on each
article of charge, or where the inquiry has been held by an
inquiring authority appointed by it a copy of the report, of such
authority and a statement of its findings on each article ofcharge
expressly stating whether or not it agrees with the finding of the
inquiring authority, together with brief reasons for its
G disagreement, if any, with the findings of the inquiring authority;
and
(b) give to the High Court servant a notice stating the penalty
proposed to be imposed on him and calling upon him to submit
within fifteen days of receipt of the notice or such further time
H
J.A. NAIK.SATAM 1•. PROTHONOTARY & SENIOR MASTER, HIGH COURT OF BOMBAY 29 J

as may be allowed such representation as he may wish to make A
on the proposed penalty on the basis of the evidence adduced
during the inquiry held under rule 7 of these Rules.

(Emphasis supplied)

(ii) The disciplinary authority shall after considering the representation, B'
if any, made by the High Court servant determine what penalty, i:i.
any, should be imposed on the High Court servant and make such
order as it may deem fit."

As per Rule 8 of the Bombay Rules,. if the disciplinary authority is not
agreeing with the reasons given by the enquiry officer it would be open to C
the disciplinary authority to hold further enquiry in accordance with the
provisions of Rule 7 and Rule 8(2) shows that if the disciplinary authority
disagrees with the findings of the enquiry officer on any of the articles of
charge he shall record him reasons for such disagreement. Sub-rule 4(i)(a) of
Rule 8 of the Bombay rules further shows that the copy of the report of the
enquiry officer and his finding on each article of charge together with brief D
reasons shall be given to the delinquent employee. The rule further says that
the disciplinary authority shall give its reasons for disagreeing with the decision
of the enquiry officer. The counsel for the appellants contended that even if
the rule does not specifically says that the delinquent employee should be
given personal hearing when it disagree with the enquiry officer, the same E
shall be read into the provision and the delinquent employee shall be given
an opportunity of personal hearing before a final decision is taken in the
matter. In this connection, reliance was placed on the decision of this Court
in the case of Punjab National·Bank and Ors. v. Kuni Behari Misra etc.,
[1998] 7 SCC 84. In this case Court was interpreting the Regulation 7 of the
Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, F
1977. The said regulation states that the disciplinary authority if it disagrees
with the findings of the enquiry officer he can give his reasons for such
disagreement and can record its own findings if the evidence on record is
sufficient for that purpose. Even though the regulation did not contemplate
of giving a fresh opportunity to the delinquent employee, this Court, while G
interpreting the said regulation held that:

"The result of the aforesaid discussion would be that the principles of
natural justice have to be read into Regulation 7(2). As a result thereof,
whenever the disciplinary authority disagrees with the enquiry
authority on any article of charge, then before it records its own H
292 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A findings on such charge, it must record its tentative reasons for such
disagreement and give to the delinquent officer an opportunity to
represent before it records its findings. The report of the enquiry
officer containing its findings will have to be conveyed and the
delinquent officer will have an opportunity to persuade the disciplinary
authority to accept the favourable conclusion of the enquiry officer.
B The principles of natural justice, as we have already observed, require
the authority which has to take a final decision and can impose a
penalty, to give an opportunity to the officer charged of misconduct
to file a representation before the disciplinary authority records its
findings on the charges framed against the officer."

C The same view was expressed by this Court in the case of Yoginath D. Bagde
v. State of Maharashtra and Anr., [1998] 7 SCC 739, and in paragraph 31
this Court has held:

"In view of the above, a delinquent employee has the right of hearing
not only during the enquiry proceedings conducted by the enquiry
D officer into the charges levelled against him but also at the stage at
which those findings are considered by the disciplinary authority and
the latter, namely, the disciplinary authority forms a tentative opinion
that it does not agree with the findings records by the enquiry officer.
If the findings recorded by the enquiry officer are in favour of the
E delinquent and it has been held that the charges are not proved, it is
all the more necessary to give an opportunity of hearing to the
delinquent employee before reversing those findings. The formation
of opinion should be tentative and not final. It is at this stage that the
delinquent employee should be given an opportunity of hearing after
he is informed of the reasons on the basis of which the disciplinary
F authority has proposed to disagree with the findings of the enquiry
officer. This is in consonance with the requirement of Article 311(2)
of the Constitution as it provides that a person shall not be dismissed
or removed or reduced in rank except after an enquiry in which he
has been informed of the charges against him and given a reasonable
G opportunity of being heard in respect of those charges. So long as a
final decision is not taken in the matter, the enquiry shall be deemed
to be pending. Mere submission of findings to the disciplinary authority
does not bring about the closure of .the enquiry proceedings. The
enquiry proceedings would come to ;m end only when the findings
have been considered by the disciplinary authority and the charges
H
J.A. NAIKSATAM 1•. PROTHONCTARY & SENIOR MASTER, HIGH COURT OF BOMBAY 293

are either held to be not proved or found to be proved and in that A
event punishment is inflicted upon the delinquent. That being so, the
"right to be heard" would be available to the delinquent up to the
final stage. This right being a constitutional right of the employee
cannot be taken away by any legislative enactment or service rule
including rules made under Article 309 of the Constitution."
B
Relying on these decisions, the counsel for the appellants contended that
after the receipt of the report from the enquiry officer, the disciplinary authority
should have given notices to the appellants with its tentative conclusion and
an opportunity be given to the delinquent before the report of the enquiry
officer is reversed by the disciplinary authority. It was also argued that the C
appellants should have been heard by the disciplinary authority before such
a decision was rendered. Even though the rule as such does not contemplate
of giving an opportunity of being given to the delinquent appellants before
the disciplinary authority takes a final decision to disagree with the reasons
given by the enquiry officer, such a provision could be read into the rule but
even then the appellants cannot be heard to say that there shall be a personal 0
hearing by the disciplinary authority. In the instant case, the appellants were
given a copy of the tentative decision of the disciplinary authority and the
appellants furnished detailed explanation and we are of the view that the
principles of natural justice have been fully complied with and we do not find
any infraction of rules or infirmity in the said decision.

The counsel further contended that from the tentative decision it could
be spelt out that the disciplinary authority had already taken a final decision
in the matter and the details have been given therein and the opportunity
which was given to the appellants was only an exercise in futility. We are not
inclined to accept this contention. It is true that the disciplinary authority f
gave its reasons for disagreement with the report of the Enquiry Officer and
the appellants had given their fullfledged explanation and if at all the
disciplinary authority gave detailed tentative decision before seeking
explanation from the appellants, it enabled them to give an effective
representation and the principles of natural justice were fully complied with
and it cannot be said that the appellants were not being heard in the matter. Q

Lastly, it was contended that the punishments imposed on the appellants
are disproportionate as there was no evidence at all to prove that these
appellants received any illegal gratification. It was prayed that the appellants
are innocent and the drastic punishment of dismissal should not have been H
294 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A imposed on them. In view of the present day situation of rampant corruption
in public life, the High Court rightly imposed the punishment of dismissal on
erring officers. In the result, we are not inclined to interfere with the findings
arrived at by the High Court as the High Court considered all aspects before
imposing such a penalty on the appellants. The appeals are dismissed
B accordingly. No costs.

R.P. Appeals dismissed.