Holding

Non‑furnishing of the enquiry report does not ipso facto vitiate disciplinary proceedings; the employee must show real prejudice, and the disciplinary authority may consider past conduct when imposing punishment.

Summary

The case concerned a CISF security guard who repeatedly deserted his post and was removed from service after a departmental enquiry. The High Court had set aside the removal on the ground that the enquiry report was not furnished to the employee and he was not given a chance to object, also holding that his past misconduct could not be considered. The Supreme Court examined whether failure to provide the enquiry report automatically vitiates disciplinary action and whether past conduct can be taken into account when imposing punishment. It held that non‑furnishing of the report does not per se invalidate the proceedings; the employee must prove actual prejudice. Moreover, the disciplinary authority may consider an employee’s past conduct, especially in cases of grave indiscipline, provided the employee is informed. Applying these principles to the facts—repeated desertion, no explanation, and gross violation of discipline—the Court restored the removal order. The appeal was allowed and the High Court judgments were set aside.

Issues considered

Whether the delinquent employee must establish actual prejudice when the enquiry report is not supplied before imposing punishment.
Whether the disciplinary authority’s consideration of the employee’s past conduct vitiates the order of punishment.

Subjects

service lawdisciplinary proceedingsnatural justicedoctrine of prejudicepast conductCISFabsenteeismremoval from service

Judgment

(2009] 9 S.C.R. 828

+
A UNION OF INDIA & ORS.
v.
BISHAMBER DAS DOGRA
(Civil Appeal No. 7087 of 2002)

MAY 26, 2CJ9
8
[DR. MUKUNDAKAM SHARMA AND DR. 8.S.
CHAUHAN, JJ.]

Service law - Dismissal from service - Employee-
C security guard in CISF not completed six years in service but
deserted the LINE five times - Dismissal from service by
disciplinary authority - Set aside by courts below holding that
enquiry report not furnished, employee not given opportunity
to file objections and past conduct taken into consideration
o while imposing punishment -Justification of- Held:Not
justified - Non-furnishing of enquiry report to delinquent .....
employee would not ipso facto vitiate disciplinary proceedings
- Employee has to establish that real prejudice was caused
to him by not furnishing enquiry report - Disciplinary authority
E may take into consideration past conduct of delinquent
employee for imposing punishment - On facts, no !-•
explanation for repeated misconduct or absenteeism - It was
gross violation of discipline - Employee did not explain as
to what prejudice caused to him by non-furnishing of enquiry
F report nor that there was failure of justice - Also application
for leave not submitted - Thus, .order of High Court set aside
and that of disciplinary authority restored.

The questions which arose for consideration in this
appeal are whether the delinquent employee is not
G supposed to establish de-facto prejudice in case the
enquiry report is not supplied to him before awarding
·. •P.U.n·i~hment; and whether the order of punishment would
. be v.itiated if the Disciplinary Authority takes into
. consideration the past conduct of the delinquent
H 828 .
UNION OF INDIA & ORS. v. BISHAMBER DAS 829
DOG RA
-+
employee for the purpose of punishment? A

Allowing the appeal, the Court

HELD:1.1. In the instant case, the issues relate to the
observance of the principles of natural justice as the
delinquent employee may not get an opportunity to make B
the representation against the findings of fact recorded
t by the Enquiry Officer against him and also for the
proposed punishment by the disciplinary authority.
Principles of natural justice cannot be put into a strait-
jacket formulae and its observance would depend upon G
the fact situation of each case. Therefore, the application
of the principles of natural justice has to be understood
with reference to the relevant facts and circumstances of
a particular case. [Para 9] [836-C-E]
D

- ., 1.2. An order is required to be examined on the
touchstone of doctrine of prejudice. (Para 11] (837-A-B]

1.3. In case the enquiry report had not been made
available to the delinquent employee it would not ipso
facto vitiate the disciplinary proceedings as it would E
depend· upon the facts and circumstances of the case
and the delinquent employee has to establish _that real
~ prejudice has been caused to him by not furnishing the
• enquiry report to him. [Para 16] [839-F-G]
F
Chairman, Board of Mining Examination and Chief
Inspector of Mines & Anr. v. Ramjee AIR 1977 SC 965; Dr.
Umrao Singh Choudhary v. State of Madhya Pradesh & Anr.
(1994) 4 SCC ~28; Syndicate Bank & Ors. v. Venaktesh
Gururao Kurati JT (2006) 2 SC 73; Managing Director, EGIL G
~·

" v. B. Karunakar (1993) 4 SCC 727; Union of India v. Mohd.
Ramzan Khan, AIR 1991 SC 471; Haryana Financial
Corporation v. Kai/ash Chandra Ahuja (2008) 9 SCC. 31;
State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364; S.K.
Singh v. Central Bank oflndia & Ors. (1996) 6 SCC 415; State
H
830 SUPREME COURT REPORTS [2009] 9 S.C.R.
-t
-A of U.P. v. Harendra Arora & Anr. AIR 2001 SC 2315; Aligarh
Muslim University v. Mansoor Ali Khan (2000) 7 SCC 529;
M.C. Mehta v. Union of India & Ors. (1999) 6 SCC 237; -S.L.
Kapoor v. Jagmohan AIR 1981 SC 136, referred to.

2. It is desirable that delinquent employee may be
B
informed by the disciplinary authority that his past
conduct would be taken into consideration while
imposing the punishment. But in case of misconduct of -+
..,
grave nature or indiscipline, even in absence of statutory
rules, the authority may take into consideration the
c 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. [Para 25] /

[842-E-G]

D State of Assam v. Bimal Kumar AIR 1963 SC 1612;
Sta(e of Mysore v. Manche Gowda AIR 1964 SC 506; India ¥ ...
Manne Service (P) Ltd. v. Their Workmen (1963) 3 SCR 575;
Director General, RPF v. Ch. Sai Babu (2003) 4 SCC 331;
Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 \
'
E SCC 489; 'Govt. of A.P. & Ors. v. Mohd. Taher Ali (2007) 8 r-
SCC 656 and Colour-Chem Ltd. v. A.L. Alaspurkar & Ors. \.
t
,AIR 1998 SC '948, relied on.
~
3. Habitual absenteeism means gross violation of /

discipline.[Para 26] [842-G]
F
Bum & Co. Ltd. v. Wanness AIR 1959 SC 529 and L&T
Komatsu Ltd. v. N. Udayakumar, (2008) 1 SCC 224, relied
on.

G _4.1. Respondent-employee has not completed the )II. -.,
service of six years and had been imposed punishment
three times for remaining absent from duty. On the fourth
occasion when he remained absent for 10 days without
leave, the disciplinary proceedings were initiated against
him. [Para 27] [843-A-B]
H
UNION OF INDIA & ORS. v. BISHAMBER DAS 831
DOG RA

4.2. The show cause notice could not be served upon A
him for the reason that he again deserted the LINE and
returned back after 50 days. Therefore the disciplinary
proceedings could not be concluded expeditiously. The
respondent submitted the reply to the show cause notice
and the material on record reveal that during the B
pendency of the enquiry he further deserted the LINE for
10 days. There is nothing on record to show any
explanation for such repeated· misconduct or
absenteeism. The court/tribunal must keep in mind that
such indiscipline is intolerable so far as the disciplined c
force is concerngd. The respondent was a guard in CISF.
No attempt had ever been made at any stage by the
respondent-employee to explain as to what prejudice has
been caused to him by non-furnishing of the enquiry
report. Nor he ever submitted that such a course resulted
0
- in failure of justice. More so, the respondent-employee
had never denied at any stage that he had not been
punished three times before initiation of the disciplinary
proceedings and deserted the LINE twice even after
issuance of the show cause notice in the instant case:
No explanation could be furnished by the respondent- E
employee as under what circumstances he did not even
consider it proper to submit the application for leave.
Rather, the respondent thought that he had a right to
desert the LINE at his sweet will. It was a case of gross
violation of discipline. Appeal filed by the respondent F
employee was decided by the Statutory Appellate
Authority giving cogent reasons. The facts of the case did
not present special features warranting· any interference
· by the Court .in limited exercise of its powers of judicial
review. In such a fact situation, that the High Court G
should not have interfered with the punishment order
passed by the disciplinary authority on such
technicalities. The impugned judgment and order of the
Division Bench of the High Court and Single Judge of
H
832 SUPREME COURT REPORTS [2009) 9 S.C.R.

A High Court are set aside and the order of punishment
imposed by the _statutory authority is restored. [Paras 28
and 29) (843-B-H; 844-A-B]

Case Law Reference:

B AIR 1977 SC 965 Referred to. Para 10

(1994) 4 sec 328 Referred to. Para 10

JT (2006) 2 SC 73 Referred to. Para 10 ..
(1993) 4 sec 121 Referred to. Para 11
c
AIR 1991 SC 471 Referred to. Para 11

- (2008) 9 sec 31 Referred to. Para 12

(1996) 3 sec 364 Referred to. Para 13
D 1~
(1996) s sec 415 Referred to. Para 14 ,.
~'

AIR 2001 SC 2315 Referre~ to. Para 14

(2000) 1 sec 529 Referred to. Para 15
E (1999) 6 sec 237 ~Referred to. Para 15

AIR 1981 SC 136 Referred to. Para 15

AIR 1963 SC 1612 Relied on. Para 17 ~

AIR 1964 SC 506 Relied on. Para 18
"
F
(1963) 3 SCR 575 Relied on. Para 19

(2003) 4 sec 331 Relied on. Para 20

(2005) 2 sec 489 Relied on. Para 21
G _J
(2001) 8 sec 656 Relied on. Para 22
;.__
-•
AIR 1998 SC 948 Relied on. Para 24

AIR 1959 SC 529 Relied on. Para 26
H
~
UNION OF INDIA & ORS. v. BISHAMBER DAS 833
-( DOG RA
t
(200B) 1 sec 224 Relied on. Para 26 A

_,\ CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7087 of 2002.

From the Judgment & Order dated 31.01.2002 of the High
Court of Calcutta in FMAT 1370 of 1992. 8

SWA Qadri, Sunita Sharma, S.N. Terdol and Sushma Suri
+- for the Appellants.
:;;;;;;( Dinesh Kumar Garg and B.S. Billowria for the c
Respondents.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This Appeal has been filed
against the Judgment and Order of the Division Bench of the D
Calcutta High Court dated 31st January, 2002 in FMAT No.
)I
1370 of 1992 by which it affirmed the judgment and order dated
16th July, 1991 of the learned Single Judge passed in Civil
Order No.3885 W of 1987 setting aside the order of punishment
of removal awarded by the Disciplinary Authority to the E
respondent employee.

2. The facts and circumstances giving rise to this appeal
--I are that respondent joined the service as Security guard in
Central Industrial Security Force (CISF) in August, 1980. He
remained absent from duty without seeking permission or leave, F
thus, vide order dated 12th August, 1984, he was awarded the
entry of censure for the same. Respondent was again punished
for remaining absent from duty for three days vide Order dated
22nd July, 1985 withholding one annual increment for two years.
~ .....
The respondent again absented himself from duty from 31st G
August, 1985 to 8th September, 1985 i.e. for six days for which
vide Order dated 5th September, 1985, he was imposed the
punishment of withholding of one annual increment for three
years. The respondent again deserted the LINE for the period
-
H
834 SUPREME COURT REPORTS [2009) 9 S.C.R. _
"'

A from 6.3.1986 to 16.3.1986 i.e. 10 days for which he was
+
issued a Show Cause Notice under Rule 34 of CISF Rules on
22/24.3.1986. The said notice could not be served upon him
as the respondent again deserted the LINE for a period of 50
days, from 21.3.1986 to 10.5.1986 and joined the service on
B 11th May, 1986. Therefore, he could be served the show-cause
notice dated 22/24.3.1986 on 15th May, 1986..Jhe respondent
submitted his reply to the show cause notice. However, as it
was not found satisfactory, a regular departmental enquiry was -+
initiated against him. During the pendency of the enquiry, the
c respondent again deserted the LI NE for 11 days from 6.6.1986
to 16.6.1986. The Enquiry Officer concluded the enquiry and
submitted the report which was accepted by the Disciplinary
Authority who vide order dated _17 .6.1986 imposed the
punishment of removal from service. While passing the
punishment Order, the Disciplinary authority also took into
D
consideration the past conduct of the respondent.
'l<
3. Being aggrieved, the respondent preferred the Statutory
Appeal which was dismissed by the Appellate Authority vide
order dated 19.10.1986 observing that the respondent had not
E completed six years in service but had deserted the LINE five
times. Thus no lenient view was permissible.

4. Being aggrieved, the respondent-employee preferred
the revision before the Statutory Authority. However, during the t-

F pendency of the said revision, he filed Writ Petition No. 3885
of 1987 before the Calcutta High Court. The learned Single
Judge vide Judgment and Order dated 16.7.1991 allowed the
writ petition, quashing the order of punishment on the ground
that the copy of the enquiry report was not furnished and the
respondent employee was not given the opportunity to file the
G
objections to the same. More so, his past conduct could not !
have been taken into consideration while imposing the
.~
-
punishment.

5. Aggrieved, the present appellants filed F.M.A.T. No.
·H
_. I UNION OF INDIA & ORS. v. BISHAMBER DAS 835
DOGRA [DR. B.S. CHAUHAN, J.]
-Ii·
1370 of 1992 before the Calcutta High Court which was A
dismissed by the Division Bench by Judgment and Order dated
31st January, 2002. Hence, this appeal.

6. Shri SWA Qadri, learned counsel appearing for the
appellants has submitted that the respondent employee B
remained absent from duty without any justification or leave for
more than five times within a short span of less than six years
in service. Even during the pendency of the enquiry, he
remained absent two times; firstly for 50 days and secondly for
11 days. Thus, the enquiry could not be concluded
expeditiously. It is not necessary that in every case, non
c
furnishing the copy of the enquiry report to the delinquent
employee is always fatal. It is necessary for such employee to
establish that non-furnishing of the copy of the enquiry report
has caused prejudice to him. More so, the delinquent employee
had been repeatedly absenting himself without any justification 0
time and again. There could be no prohibition for taking into
" consideration his past conduct while imposing the punishment,
for the reason, that it merely fortifies the reasons to impose the
punishment. Punishment order was passed in 1986, a period
of about 23 years has lapsed. The order of the High Court if E
enforced, would be a reward for deserting the LINE time and
again by a member of the disciplined force. Therefore, the
appeal deserves to be allowed.
-1
7. On the contrary, Shri D.K. Garg, learned counsel F
appearing for the respondent employee has submitted that as
there has been violation of the principles of natural justice while
holding the enquiry, the judgments and orders passed by the
High Court do not require any interference. The past conduct
of the respondent employee could not be taken into
G
_,\ consideration while imposing the punishment as it becomes
"
violative of the principles of natural justice. Therefore, the
appeal is liable to be dismissed.

8. We have considered the rival submission made by the
H
836 SUPREME COURT REPORTS (2009] 9 S.C.R.

A learned counsel for the parties and perused the record. In view
of the submission made by learned counsel for the parties, only
two ·questions arise for our consideration:

(1) Whether the delinquent employee is not supposed
to establish de-facto prejudice in case the enquiry
B
report is not supplied to him before awarding
punishment?
-+
(2) Whether the order of punishment would be vitiated
if the Disciplinary Authority takes into consideration
c the past conduct of the delinquent employee for the
purpose of punishment?

9. In fact both these issues relate to the obseNance of the
principles of natural justice as the delinquent employee may not
D get an opportunity to make the representation against the
findings of fact recorded by the Enquiry Officer against him and
also for the proposed punishment by the disciplinary authority. ~

Principles of natural justice cannot be put into a strait-jacket
form'uate and its observance would depend upon the fact
situation of each case. Therefore, the application of the
E
principles of natural justice has to be understood with reference
to the relevant facts and circumstances of a particular case.

10. In Chairman, Board of Mining Examination and Chief ~
Inspector of Mines & Anr. v. Ramjee, AIR 1977 SC 965, this
F Court has obseNed t~at natural justice is not an unruly horse,
no lurking landmine, nor a judicial cure-all. If fairness is shown
by the decision-maker to the man proceeded against the form,
features and the fundamentals of such essential processual
propriety being conditioned by.the facts and circumstances of
G each situation, no breach of natural justice can be complained
of. In Dr. Umrao Singh Choudhary v. State of Madhya Pradesh +- '
&Anr. (1994) 4 SCC 328, this Court held that the principles of
natural justice do not supplant the law, but supplement the law.
In Syndicate Bank & Ors. v. Venaktesh Gururao Kurati JT
H (2006) 2 SC 73, it was held :
UNION OF INDIA & ORS. v. BISHAMBER DAS 837
DOGRA [DR. B.S. CHAUHAN, J.]

"To sustain the allegation of violation of principles of natural A
justice, one must establish that prejudice has been caused
to him for non-observance of principles of natural justice."

11. It is settled legal position that an order is required to
be, examined on the touchstone of doctrine of prejudice. A 8
Constitution Bench of this Court in Managing Director, ECIL
v. 8. Karunakar (1993) 4 SCC 727, considered the issue at
length and after taking into consideration its earlier judgment
in Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471,
came to the conclusion that furnishing the copy of the enquiry C
report and consideration of the employee's reply to the same
by the disciplinary authority constitute an integral part of the
enquiry. The second stage follows the enquiry so carried out
and it consists of the issuance of the notice to show cause
against the proposed penalty and of considering the reply to
the notice and deciding upon the penalty. Thus, It is the right of D
the employee to get the oriportunity to make a representation
against the findings in the enquiry report. However, the Court
further held that the theory of reasonable opportunity and the
principles of natural justice have been evolved to uphold the rule
of law and to assist the individual to vindicate his just rights. E
The Court further observed as under:

"They are not incantations to be invoked nor rites to be
- performed on all and sundry occasions. Whether in fact,
prejudice has been caused to the employee or not on F
account of the denial to him of the report, has to be
considered on the facts and circumstances of each case.
Where, therefore, even after the furnishing of the report, no
different consequence would have followed, it would be a
perversion of justice to permit the employee to resume duty G
and to get all the consequential benefits. It amounts to
rewarding the dishonest and the guilty and thus to
stretching the concept of justice to illogical and
exasperating limits. It amounts to an "unnatural expansion .
of natural justice" which in itself is antithetical to justice.
H
838 SUPREME COURT REPORTS [2009] 9 S.C.R.

A ........................ It is only if the Courtrrribunal finds that -+
the furnishing of the report would have made a difference
to the result in the case that it should set aside the order
of punishment." (Emphasis added)

B 12. In Haryana Financial Corporation v. Kai/ash Chandra
Ahuja (2008) 9 SCC 31, this Court applied the law laid down
in B. Karunakar case (supra) G1nd observed as under:

"It is also clear that non-supply of report of the inquiry officer -+
is in the breach of natural justice. But it is equally clear that
c failure to supply a report of the inquiry officer to the
delinquent employee would not ipso facto result in the
proceedings being declared null and void and the order
of punishment non est and ineffective. It is for the
de/inqqent employee to plead and prove that non-supply
D Qf St.JCh report had caused prejudice and resulted In
misoarriage of jqstioe. If he is un~ble to satisfy the court
on that point, the order of punishment cannot automatically
be set aside." (Emphasis added).

E 13. In State Sank of Patiala v. S.K. Sharma (1996) 3 SCC
364, this Court emphasized on the application of doctrine of
prejudice and held that unless it is established that non-furnishing
the copy of the enquiry report to the delinquent employee has
caused prejudice to him, the Court shall not interfere with the
order of punishment for the reason that in such an eventuality
F setting aside the order may not be in the interest of justice
rather it may be tantamount to negation thereof. This court held
as under:-

"Justice means justice between both the parties. The
G interests of justice equally demand that the guilty should
be punished and that technicalities and irregularities which
do not occasion failure of justice are not allowed to defeat
the ends ofjustice. Principles of natural justice are but the
means to achieve the ends of justice. They cannot be
H perverted to achieve the very opposite end. That would be
UNION OF INDIA & ORS. v. BISHAMBER DAS 839
DOGRA [DR. 8.S. CHAUHAN, J.]

a counter-productive exercise." (Emphasis added). A

14. Similar view had been reiterated in S.K. Singh v.
Central Bank of India & Ors. (1996) 6 SCC 415, State of U.P.
v. Harendra Arora & Anr., AIR 2001 SC 2315.

15. In Aligarh Muslim University v. Mansoor Ali Khan, 8
(2000) 7 SCC 529, this Court considered the judgment in M.C.
Mehta v. Union of India & Ors. (1999) 6 SCC 237 wherein it
~
has been held that an order passed in violation of natural justice
need not be set aside in exercise of the writ jurisdiction unless
it is shown that non-observance has caused prejudice to the c
person concerned for the reason that quashing the order may
revive another order which itself is illegal or unjustified. This
Court also considered the judgment in S.L. Kapoor v.
Jagmohan AIR 1981 SC 136, wherein it has been held that in
a peculiar circumstance observance of the principles of natural D
justice may merely be an empty formality as if no other
conclusion may be possible on admitted or indisputable facts.
In such a fact-situation, the order does not require to be
quashed if passed in violation of natural justice. The Court
came to the conclusion that a person complaining non- E
observance of the principles of natural justice must satisfy that
some real prejudice has been caused to him for the reason that
there is no such thing as a merely technical infringement of
-f
natural justice.

16. Thus, in view of the above, we are of the considered F
opinion that in case the enquiry report had not been made
available to the delinquent employee it would not ipso facto
vitiate the disciplinary proceedings as it would depend upon
the facts and circumstances of the case and the delinquent
employee has to establish that real prejudice has been caused G
to him by not furnishing the enquiry report to him.

17. This Court in State of Assam v. Bimal Kumar, AIR
1963 SC 1612 considered the issue as to whether while
imposing the punishment it is permissible to take into H
840 SUPREME COURT REPORTS [2009] 9 S.C.R.

.;-
A consideration the past conduct of an employee if it is not so
mentioned in the second show cause notice. The Court
observed that while issuing second show cause ·notice, the
disciplinary authority naturally has to come to a tentative or
provisional conclusion about the guilt of the charged employee
B as well as about the punishment which would meet the
requirement of justice in his case, and it is only after reaching
conclusions in both these matters provisionally that the
disciplinary authority issues the second notice. The delinquent
employee is entitled to show cause not only against the action
c proposed to be taken against him but also against the validity
or correctness of the findings recorded by the Enquiry Officer
and provisionally accepted by the disciplinary authority. Thus,
it enables the delinquent to cover the whole ground and to plead
that no case had been made out against him for taking any
disciplinary action and then to urge that if he fails in
D
substantiating his innocence, the action proposed to be taken
against him is either unduly ..;evere or not called for.

18. In State of Mysore v. Manche Gowda, AIR 1964 SC
506, this Court held that the disciplinary authority should inform
E the delinquent employee that it is likely to take into consideration
the past conduct of the employee while imposing the
punishment unless the proved charge against the delinquent is
so grave that it may independently warrant the proposed ~-

punishment. Though his previous record may not be subject
F matter of the charge at the first instance.
19 .. In India Marine Service (P) Ltd. v. Their Workmen,
(1963) 3 SCR 575, this Court while considering the similar
issue held as under :

G "It is true that the last sentence suggests that the past -~

record of Bose has also been taken into consideration. But
it does not follow from this that that was the effective reason
for dismissing him. The Managing Director having arrived
at the conclusion that Bose's services must be terminated
H
-. UNION OF INDIA & ORS. v. BISHAMBER DAS
DOGRA [DR. B.S. CHAUHAN, J.]
841

A
in the interest of discipline, he added one sentence to
give additional weight to the decision already arrived at.
Upon this view, it would follow that the Tribunal was not
competent to go behind the finding of the Managing
Director and consider for itself the evidence adduced
before him. The order of the Tribunal quashing the B
dismissal of Bose and directing his re-instatement is,
therefore, set aside as being contrary to law." (Emphasis
~ added)

20. Similarly in Director General, RPF v. Ch. Sai Babu,
(2003) 4 SCC 331, this Court held as under:
c
"Normally, the punishment imposed by a disciplinary
authority should not be disturbed by the High Court or a
tribunal except in appropriate cases that too only after
reaching a conclusion that the punishment imposed is D
grossly or shockingly disproportionate, after examining all
the relevant factors including the nature of charges proved
against, the past conduct, penalty imposed earlier, the
nature of duties assigned having due regard to their
---I
sensitiveness, exactness expected of and discipline E
required to be maintained, and the department/
establishment in which the delinquent person concerned
works." (Emphasis added)
.,..
21. In Bharat Forge Co. Ltd, v. Uttam Manohar Nakate,
F
(2005) 2 SCC 489, this Court reiterated the similar view
observing as under :

"In the facts and circumstances of the case and having
regard to the past conduct of the respondent as also his
_. conduct during the domestic enquiry proceedings, we G
·- cannot say that the quantum of punishment imposed upon
the respondent was wholly disproportionate to his act of
misconduct or otherwise arbitrary." (Emphasis added)

"",A· 22. In Govt. of A.P. & Ors. v. Mohd. Taher Ali (2007) 8
H
842 SUPREME COURT REPORTS [2009] 9 S.C.R. ......
...
A SCC 656, this Court rejected the contention that unless the past
conduct is a part of charge-sheet, it cannot be taken into
consideration while imposing the punishment observing that
"there can be no hard and fast rule that merely because the
earlier misconduct has not been mentioned in the charge
B sheet it cannot be taken into consideration by the punishing
authority. Consideration of the earlier misconduct is often
necessary only to reinforce the opinion of the said authority."
-t
23. In fact in this case the argument had been advanced
that if the disciplinary authority wanted to consider the past
c service record of the employee, it should be a part of charge- ,
sheet. Though in K. Manche Gowda (supra), this Court said that
it should be so indicated in the second show cause notice only ,._
for the purpose of imposing punishment. Thus it is not
necessary that it should be a part of the charge sheet.
D
24. In Colour-Chem Ltd. v. A.L. Alaspurkar & Ors., AIR ~
1998 SC 948, this Court considered the statutory rules which
itself provided as what can be taken into consideration while
imposing the punishment and it also referred to the
E consideration of the past record of the employee.

25. In view of the above, it is evident that it is desirable
that delinquent employee may be informed by the disciplinary
authority that his past conduct would be taken into consideration
,.
+-
while imposing the punishment. But in case of misconduct of
F grave nature or indiscipline, even in 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.
G ..:
·~
26. It is settled legal preposition that habitual absenteeism
means gross violation of discipline [vide Burn & Co. Ltd. v.
Wormess, AIR 1959 SC 529; and L& T Komatsu Ltd. v. N.
~--

Udayakumar, (2008) 1 SCC 224)].
H
UNION OF INDIA & ORS. v. BISHAMBER DAS 843
DOGRA [DR. B.S. CHAUHAN, J.]
--!

27. The instant case is required to be examined in the light A
of aforesaid settled legal prepositions. Admittedly, the
respondent employee has not completed the service of six
years and had been imposed punishment three times for
remaining absent from duty. On the fourth occasion when he
. remained absent for 10 days without leave, the disciplinary B
proceedings were initiated against him.
-t
28. The show cause notice could not be served upon him
for the reason that he again deserted the LINE and returned
back after 50 days. Therefore the disciplinary proceedings could
not be concluded expeditiously. The respondent submitted the
c
reply to the show cause notice and the material on record reveal
... -
that during the pendency of the enquiry he further deserted the
LINE for 10 days. There is nothing on record to show any
explanation for such .repeated misconduct or absenteeism. The
Court/Tribunal must keep in mind that such indiscipline is D
f intolerable so far as the disciplined force is concerned. The
respondent was a guard in CISF. No attempt had ever been
made at any stage by the respondent-employee to explain as
to what prejudice has been caused to him by non-furnishing of
~ the enquiry report. Nor he ever submitted that such a course E
has resulted in failure of justice. More so, the respondent
employee had never denied at any stage that he had not been
..
-
punished three times before initiation of the disciplinary
proceedings and deserted the LINE twice even after issuance
of the show cause notice in the instant case. No explanation F
could be furnished by the respondent-employee as under what
circumstances he has not even consider it proper to submit the
application for leave. Rather, the respondent thought that he had
-·
{

i a right to desert the LINE at his sweet will. It was a case of

--"
~
4
gross violation of discipline. Appeal filed by the respondent
employee was decided by the Statutory Appellate Authority
G

giving cogent reasons. The facts of the case did not present
special features warranting any interference by the Court in
limited exercise of its powers of judicial review. In such a fact
'\
situation, we are of the view that the High Court should not have H
844 SUPREME COURT REPORTS [2009] 9 S.C.R.

A interfered with the punishment order passed by the disciplinary
authority on such technicalities.

29. In view of the above, the appeal succeeds and is
allowed. The impugned judgment and order of the Division
Bench of the High Court dated 31.1.2002 in FMAT No.1370
8
of 1992 and judgment and order dated 16.7.1991 of the
learned Single Judge passed in Civil Order No.3885 W of
1987 are hereby set aside and the order of punishment
imposed by the statutory authority is hereby restored. No costs.

C N.J. Appeal allowed.

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