UNION OF INDIA & ORS.versusR.P. SINGH

                   (2014] 6 S.C.R. 351


                 UNION OF INDIA & ORS.                         A
                             v.
                        R.P. SINGH
              (Civil Appeal No.6717 of 2008)
                      MAY 22, 2014
                                                               B
        [DIPAK MISRA AND N.V. RAMANA, JJ.]

    Service Law:

     Central Civil Services (Classification, Control and       c
Appeal) Rules, 1965 - Rule 32 - Supply of copy of
Commission's advice - Disciplinary Authority obtaining
advice from Union Public Service Commission (UPSC) and
acting on the same and thereafter, penalty imposed on
employee - Non-supply of advice to the employee before         o
awarding punishment - Effect of - Held: Amounts to violation
of principles of natural justice - UPSC advice is to be
communicated before imposition of punishment - Rule 32
provides for supply of copy of advice to government servant
at the time of making an order - Said stage was prevailing     E
earlier - Authority should have clarified the Rule regarding
development in the service jurisprudence - Doctrines/
Principles.

     Per incuriam - Concept of - Held:. When subsequent
decision is rendered in ignorance or forgetfulness of the      F
binding authority, the concept of per incuriam comes into
play.

    Departmental proceedings were initiated against
respondent-employee. The Inquiry Officer submitted the         G
Inquiry report stating that charges leveled against the
delinquent officer were not proved. The Disciplinary
Authority did not agree and sought advice from the Union
Public Service Commission by proposing to impose
                            351                                H
    352       SUPREME COURT REPORTS           [2014] 6 S.C.R.


A   penalty of reduction of pay. The Disciplinary Authority
    accepted the advice from UPSC and passed the order of
    punishment and thereafter, communicated it to the
    respondent along with. the advice of UPSC. The
    respondent challenged the order before the Tribunal on
s   the ground that he was not furnished the advice of UPSC
    before imposing the punishment, thus, there was
    violation of principles of· natural justice. The Tribunal
    dismissed the application of the respondent holding that
    no prejudice was caused to him. The High· Court set
c   aside the order passed by the Tribunal and issued
    directions to the appel;Jnts to consider the representation
    of the respondents.

          Dismissing the appeal, the Court

D     HELD: 1.1. The submission that the decision in * S.N.
  Narula's case is not an authority because the tribunal had
  set aside the order of the disciplinary authority on the
  ground that it was a non-speaking order cannot be
  accepted. The *S.N. Narula's case is an authority for the
E proposition that the advice of Union Public Service
  Commission, if sought and accepted, the same, regard
  being had to the principles of natural justice, is to be
  communicated ~~(.ore im11osition of punishment. [Para
    13] [361-F-H]   -
F       *S.N. Narula v. Union of India and others (2011) 4 SCC
    591 - relied on.

       1.2. As regards the submission that the two-Judge
    Bench ** S.K. Kapoor's case could not have opined that
G the decision in £ T. V. Patel's case is per incuriam, cannot
   pe accepted. The judgment in S.N. Narula's case was not .
 · brought to the notice of the Bench deciding the lis in T. \I.
   Patel case. There cannot be a shadow of doubt that the
   judgment in S.N. Narula is a binding precedent to be
H followed by the later Division Bench, and when the
            UNION OF INDIA v. R.P. SINGH                353

subsequent decision in £T. V. Patel case is rendered in A
ignorance or forgetfulness of the binding authority, the
concept of per incurium comes into play. Testing on the
said principles it can safely be concluded that the
judment in T.V. Patel's case is per incuriam. [Para 16, 19,
22] [363-B-D; 364-C; 365-D]                                 B

    *S.N. Narula v. Union of India and others (2011) 4 SCC.
591 - relied on.

    £Union of India and another v. .T. V. Patel (2007) 4 SCC
785 - per incuriam.                                             C

    **Union of India and others vs. S. K. Kapoor 2011 (3) SCR
906: (2011) 4 sec 589 - reiterated.

     Union of India v. Raghubir Singh (dead) by L.Rs and      ;
others 19.89 (3) SCR 316: (1989) 2 SCC 754; Indian Oil 0
Corporation Ltd., v. Municipal Corporation and Another 1995
(3) SCR 246: AIR 1995 SC 1480; Municipal Corpn., Indore
v. Ratnaprabha Dhandha 1989 MPLJ 20; Municipal
Corporation, Indore v. Ratna Prabha 1977 ( 1 ) SCR 1017:
(1976) 4 SCC 622; Chandra Prakash and others v. State of E
U.P. and another 2002 ( 2 ) SCR 913: (2002) 4 sec 234;
A.R. Antulay v. R.S. Nayak 1988 (1) Suppl. SCR 1: (1988)
2 SCC 602; Siddharam Satlingappa Mhetre v. State of
Maharashtra and Ors 2010 (15 ) SCR 201: AIR 2011 SC 312
- referred to.                              .... ·-         F

    1.3. The language engrafted in Art. 320(3)(c) of the
Constitution does not make the said Article mandatory.
However, in T. V. Patel's case, the Court based its finding
on the language employed in Rule 32 of the Central Civil G
Services (Classification, Control and Appeal) Rules, 1965.
The said Rule from the very inception is a part of the 1965
Rules. With the efflux of time, there has been a change
of perception as regards the applicability of the principles
of natural justice. An Inquiry Report in a disciplinary H
    354     SUPREME COURT REPORTS             [2014] 6 S.C.R.


A  proceeding is required to be furnished to the delinquent
   employee so that he can make an adequate
   representation explaining his own stand/stance. This was
   precisely laid down in the ££ B. Karunakar's case
   wherein, the Constitution Bench opined that non-supply
B of the enquiry report is a breach of the principle of natural
  justice. Advice from the UPSC, when utilized as a material
   against the delinquent officer, it should be supplied in
   advance. Rule 32 provides for supply of copy of advice
   to the government servant at the time of making an order.
c .Jhe said stage was in prevalence before the decision of
   the Constitution Bench. After the said decision, the
   authority should have clarified the Rule regarding
   development in the service jurisprudence. [Para 23, 26)
   [365-E-G; 367-F-G; 368-A]

D        1.4. After the decision in S.K.Kapoor's case, the
    Government of India, Ministry of Personnel, PG &
    Pensions, Department of Personnel & Training issued
    Office Memorandum dated 06.01.2014 and thereafter,
    Office Memorandum on 05.03.2014, which states that a
E copy of the Commission's advice be provided to the
    government servant and his representation thereon be
    considered by the Disciplinary Authority before arriving
  . at the final decision. Both the Office Memoranda are, thus,
    not only in consonance with the S.K. Kapoor's case but
F also in accordance with the principles of natural justice
    which has been stated in 8. Karunakar's case. [Paras 26,
    27, 28) [368-B-G; 369-C-D)

        ££MO, ECIL v. B. Karunakar1993 (2) Suppl. SCR
G   576:(1993) 4 sec 727 - relied on.

         State Bank of India and others v. 0. C. Aggarwal and
    another 1992 (1) Suppl SCR 956:AIR 1993 SC 1197; State
    of U.P. v. Manbodhan Lal Srivastava 1958 SCR 533: AIR
    1957 SC 912 - referred to.
H
            UNION OF INDIA v. RP. SINGH                    355

                      Case Law Reference:                          A
  1992 (1) Suppl SCR 956         Referred to     Para 5, 10
  1958 SCR 533                   Referred to     Para 9
  1993 (2) Suppl. SCR 576        Relied on       Para 10           B
  c2011 > 4 sec 591              Relied on       Para 13,19
  1989 (3) SCR 316               Referred to     Para 16,18
  1995 (3) SCR 246               Referred to     Para 17
                                                                   c
  1989 MPLJ 20                   Referred to     Para 17
  1977 (1) SCR 1017              Referred to     Para 17
  2002 (2) SCR 913               Referred to     Para 18
  1988 (1) Suppl. SCR1           Referred to     Para 20           D

  2010 (15) SCR 201              Referred to     Para 21
  2007 (5) SCR 373               Per incuriam Para 22
  2011 (3) SCR 906               Relied on       Para 23           E
     CIVIL APPELLATE JURISDICTION :Civil Appeal No.6717
of 2008.

      From The Judgment and Order dated 19.01.2007 in Writ
Petition (Civil) No. 16104 of 2004 of the High Court of Delhi at   F
New Delhi.

   K. Radhakrishnan, W.A. Qadri, Rekha Pandey, A. Deb
Kumar, Sushma Suri for the Appellants.
                                                                   G
    Vasudevan Raghavan for the Respondent.

    The Judgment of the Court was delivered by

    DIPAK MISRA, J. 1. Calling in question the legal
defensibility of the judgment and order dated 19.01.2007           H
    356       SUPREME COURT REPORTS                [2014] 6 S.C.R.


A   passed by the High Court of Delhi in W.P.(C)No.16104 of 2004
    whereby it has annulled the judgment and order dated
    28.06.2004 passed by the Central Administrative Tribunal,
    Principal Bench, New pelhi (for short "the tribunal") in
    O.A.No.1977 of 2003 and the order dated 19.08.2004 declining
B . to entertain the review, the present appeal has been preferred
    by special leave.

         2. The respondent while serving as an Assistant Engineer
    (Civil) in the Central Public Works Department (CPWD) was
C   proceeded in a departmental proceeding in respect of two
    charges which read as follows:

         "(a) 540 bags of cement were got issued for the above
       · stated work from the Central Stores on 31.3.97. The said
         Shri R.P.Singh allowed Shri N.K.Sarin, Junior Engineer to
D        issue 89 bags of cement within 24 hours of receipt of the
         c~ment from the Central Stores without giving any written
         permission to the Junior Engineer and without
         authenticating the said issue of cement, thereby violating .
         the instructions contained in Para 3(d) of memorandum
E        No.DGW/CON/67 dated 6.5.94.

          (b) Out of the above stated lot of 540 bags of cement of
          "Superplus Jaypee" brand, 82 bags of cement were found
          short, which had been pilfered with connivance of the said
          Shri RP.Singh, Assistant Engineer."
F
         3. As the delinquent officer refuted the charges, an Inquiry
    Officer was appointed to conduct the inquiry and in the inquiry,
    he found the charges levelled against the delinquent officer
    were not proven and, accordingly, he submitted the Inquiry
G   Report. The disciplinary authority after expressing the
    disagreement, called for a representation from the respondent
    communicating the Inquiry Report as well as the opinion for
    disagreement requiring him to submit his explanation. The
    respondent submitted his explanation and thereafter the
H   disciplinary authority sought advice from the Union Public
              UNION OF INDIA v. R.P. SINGH                    357
                   [DIPAK MISRA, J.]
 Service Commission (UPSC) by proposing to impose penalty A
 of reduction of pay by two stages in the time scale of pay of
 the charged officer for a period of two years without cumulative
 effect. The UPSC vide letter No. F.3/144/2002-SI dated
 20.11.02 gave the advice to impose penalty of reduction ot pay
 by two stages in the time scale of pay of the charged officer B
 for a period of two years without cumulative effect. After
.obtaining the advice from the UPSC, the disciplinary authority
 accepted the same, passed an order of punishment and
 communicated the same to the respondent along with the
 advice of UPSC.                                                  c
      4. The said order of punishment was assailed by the
respondent before the tribunal on many a ground and the
principal ground propounded was that the advice of the UPSC
was not furnished to him before imposing the penalty and,
therefore, there had been violation of principles of natural          D·
justice. The tribunal negatived the said stand on the ground that
no prejudice was caused to him.

     5. Being dissatisfied with the said order, the respondent
preferred the writ petition and the High Court placing reliance       E
mainly on the decision in State Bank of India and others vs.
D. C.Aggarwal and another1 came to hold that non-supply of the
copy of advice of UPSC at the pre-decisional stage did
tantamount to violation of principles of natural justice for making
effective representation. It further observed that non-supply of      F
such material could amount to denial of fair opportunity of being
heard. Being of this opinion, the High Court directed as follows:-

      "We direct the respondents to allow the petitioner to make
      his representation in respect of the UPSC advice, which
      was made available to him along with the order dated            G
      28.1.2003 imposing punishment. The representation of the
      petitioner be duly considered and the Disciplinary Authority
      to take a decision afresh, taking into account the

1.   AIR 1993 SC 1197.                                                H
    358       SUPREME COURT REPORTS                 [2014] 6 S.C.R.


A         representation with regard to the disciplinary proceedings
          within a period of two months."

        6. We have heard Mr.K.Radhakrishnan, learned counsel
    assisted by Mr.W.A.Qadri and Ms.Rekha Pandey for the
    appellant and Mr.Vasudevan Raghavan, learned counsel for the
8
    respondent.

         7. At the very outset, we may state that the facts relating
    to seeking of advice from UPSC and the stage of furnishing
    the same to the delinquent employee are not in dispute. Thus,
C   the singular question that emanates for determination is whether
    the High Court is justified in issuing the directions which have
    been reproduced hereinabove solely on the ground that non-
    supply of the advice obtained by the disciplinary authority from
    the UPSC and acting on the same amounts to violation of
D   principles of natural justice. Learned counsel for the appellants
    has placed reliance on Rule 32 of the Central Civil Services
    (Classification, Control and Appeal) Rules, 1965 (for brevity "the
    CCS Rules"). The said Rule reads as under:

          "32.Supply of copy of Commission's advice.- Whenever
E
          the Commission is consulted as provided in these rules,
          a copy of the advice by the Commission and where such
          advice has not been accepted, also a brief statement of
          the reasons for such non-acceptance, shall be furnished
          to the Government servant concerned along with a copy
F         of the order passed in the case, by the authority making
          the order."

         8. Relying upon the aforesaid Rule, it is contended that
    when the only prescription in the Rule is that a copy of the advice
G   is to be furnished at the time of making of the order, it is not
    obligatory in law to supply it prior to imposition of punishment
    requiring a representation or providing an opportunity of
    hearing to the delinquent officer. In support of the said
    submission, our attention has been drawn to the decision in
H
              UNION OF INDIA v. R.P. SINGH                    359
                   [DIPAK MISRA, J.]
Union of India and another vs. T. V.Patef2wherein a two-Judge A
Bench, appreciating the Rule position, has held as follows:

     "Rule 32 of the Rules deals with the supply of a copy of
     Commission's advice. Rules as read as it is mandatory in
     character. Rule contemplates that whenever a Commission          B
     is consulted, as provided under the Rules, a copy of the
     advice of the Commission and where such advice has not
     been accepted, also a brief statement of the reasons for
     such non-acceptance shall be furnished to the Government
     servant along with a copy of the order passed in the case,       C
     by the authority making the order. Reading of the Rule
     would show that it contemplates two situations; if a copy
     of advice is tendered by the Commission, the same shall
     be furnished to the government servant along with a copy
     of the order passed in the case by the authority making the
     order. The second situation is that if a copy of the advice      D
     tendered by the Commission has not been accepted, a
     copy of which along with a brief statement of the reasons
     for such non-acceptance shall also be furnished to the
     government servant along with a copy of the order passed
     in the case, by the authority making the order. In our view,     E
     the language employed in Rule 32, namely "along with a
     copy of the order passed in the case, by the authority
     making the order" would mean the final order passed by
     the authority imposing penalty on the delinquent government
      ~~nt."                                                          F

     9. Be it noted, in the said case, interpretation placed by
this Court under Article 320(3)(c) of the Constitution in State of
U.P. v. Manbodhan Lal Srivastava 3 has been placed reliance
upon and, in that context, it has been opined thus: -              G

      "In view of the law settled by the Constitution Bench of this
      Court in the case of Srivastava (supra) we hold that the

2.   c2007) 4 sec 785.
3.   AIR 1957 SC 912.                                                 H
    360         SUPREME COURT REPORTS                [2014] 6 S.C.R.


A         provisions of Article 320(3)(c) of the Constitution of India
          are not mandatory and they do not confer any rights on the
          public servant so that the absence of consultation or any
          irregularity in consultation process or furnishing a copy of
          the advice tendered by the UPSC, if any, does hot afford
          the delinquent government servant a cause of action in a
8
          court of law."

         10. It is also necessary to mention here that the learned
     Judges distinguished the pronouncements in D.C.Aggarwal
    .and another (supra) and MD, ECIL vs. B.Karunakar4.
c
          11. Mr.Vasudevan Raghavan, learned counsel for the
    respondent has submitted that the said decision has been
    treated as a per incuriam in Union of India and others vs.
    S. K. Kapoor° in one aspect as it has not taken note of the earlier    .,
o   decision in S.N.Narula vs. Union of India and others 6 . Learned
    counsel while clarifying the position has submitted that the
    decision in Naru/as's case has been rendered on 30.01.2004
    which is prior to the decision in T. V.Patel's case though it has
    been reported later on.
E        12. In the case of S.N.Narula, the Court took note of the
    fact that the proceedings therein were sent for information of
    the UPSC and the UPSC had given the advice indicating
    certain punishment and the said advice was accepted by the
    disciplinary authority who, on that basis, had imposed
F   punishment. Thereafter the Court took note of the factual score
    how the disciplinary authority had acted. We think it seemly to
    reproduce the same: -

          "3. It is to be noticed that the advisory opinion of the Union
G         Public Service Commission was not communicated to the
          appellant before he was heard by the disciplinary authority.

    4.    (1993) 4 sec 727.
    5.    (2011) 4 sec 589.
H   6.    (2011) 4 sec 591.
            UNION OF INDIA v. R.P. SINGH                    361
                 [DIPAK MISRA, J.]
    The samewas communicated to the appellant along with A
    final order passed in the matter by the disciplinary·
    authority."

     After so stating, the two-Judge Bench proceeded to opine
thus: -                                                            B
    "6. We heard the learned counsel for the appellant and the
    learned counsel for the respondent. It is submitted by the
    counsel for the appellant that the report of the Union Public
    Service Commission was not communicated to the
    appellant before the final order was passed. Therefore, the C
    appellant was unable to make an effective representation
    before the disciplinary authority as regards the punishment         •
    imposed.

     7. We find that the stand taken by the Central 0
     Administrative Tribunal was correct and the High Court was
     not justified in interfering with the order. Therefore, we set
     aside the judgment of the Division Bench of the High Court
     and direct that the disciplinary proceedings against the
     appellant be finally disposed of in accordance with the E
     direction given by the Tribunal in Paragraph 6 of the order.
     The appellant may submit a representation within two
     weeks to the disciplinary authority and we make it clear that
     the matter shall be finally disposed of by the disciplinary
     authority within a period of 3 months thereafter."
                                                                    F
     13. We will be failing in our duty if we do not take note of
the submission of Mr.W.A.Qadri that the decision is not an
authority because the tribunal had set aside the order of the
disciplinary authority on the ground that it was a non-speaking
order. Be that as it may, when the issue was raised before this G
Court and there has been an advertence to the same, we are
unable to accept the submission of Mr. Qadri. The said decision
is an authority for the proposition that the advice of UPSC, if
sought and accepted, the same, regard being had to the
principles of natural justice, is to be communicated before H
    362       SUPREME COURT REPORTS                   [2014] 6 S.C.R.


A   imposition of punishment.

          14. In the case of S.K.Kapoor, the Court accepted the ratio
    laid down in the case of T. V.Patel as far as the interpretation
    of Article 320(3)(c) is concerned and, in that context, it opined
    that the provisions contained in the said Article 320(3)(c) of the
8
    Constitution of India are not mandatory. While distinguishing
    certain aspects, the Court observed as follows:

          "7. We are of the opinion that although Article 320(3)(c) is
          not mandatory, if the authorities do consult the Union Public
C         Service Commission and rely on the report of the
          commission for taking disciplinary action, then the
          principles of natural justice require that a copy of the report
          must be supplied in advance to the employee concerned
          so that he may have an opportunity of rebuttal. Thus, in our
D         view, the aforesaid decision in T.V.Patel'3 case is clearly
          distinguishable."

         15. After so stating the two-Judge Bench opined that when
    the disciplinary authority does not rely on the report of the UPSC
E   then it is not necessary to supply the same to the employee
    concerned. However, when it is relied upon then the copy of
    the same may be supplied in advance to the employee
    concerned, otherwise, there would be violation of the principles
    of natural justice. To arrive at the said conclusion, reliance was
    placed upon the decision in S.N.Naru/a's case. Proceeding
F   further, the Court held:

          "9. It may be noted that the decision in S.N.Narula's case
          (supra) was prior to the decision in T.V.Patel's
          case(supra). It is well settled that if a subsequent co-
G         ordinate bench of equal strength wants to take a different
          view, it can only refer the matter to a larger bench,
          otherwise the prior decision of a co-ordinate bench is
          binding on the subsequent bench of equal strength. Since,
          the decision in S.N.Narula's case (supra) was not noticed
H         in T.V.Patel's case(supra), the latter decision is a
              UNION OF INDIA v. R.P. SINGH                     363
                   [DIPAK MISRA, J.]
     judgment per incuriam. The decision in S.N.Narula's case            A
     (supra) was binding on the subsequent bench of equal
     strength and hence, it could not take a contrary view, as
     is settled by a series of judgments of this Court."

       16. Learned cou11sel for the appellant would contend that         B
 the two-Judge Bench in S.K. Kapoor's case could not have
·opined that the decision in T. V. Patel's case is per incuriam.
 We have already noticed two facts pertaining to S.N. Narula
 (supra), (i) it ws rendered on 31.1.2004 and (ii) it squarely dealt
 with the issue and expressed an opinion. It seems to us that            C
 the judgment in S.N. Narula's case was not brought to the notice
 of their Lordships deciding the lis in T. V. Patel (supra). There
 cannot be a shadow of doubt that the judgment in S.N. Narula
 (supra) is a binding precedent to be followed by the later
 Division Bench. In this context, we may fruitfully refer to the
 decision in Union of India v. Raghubir Singh (dead) by L. Rs.           D
 And Others 7 , wherein the Constitution Bench has held as
 follows: -
                                                                   '••
      "We are of opinion that a pronouncement of law by a
      Division Bench of this Court is binding on a Division Bench        E
      of the same or a smaller number of Judges, and in order
      that such decision be binding, it is not necessary that it
      should be a decision rendered by the Full Court or a
      Constitution Bench of the Court"
                                                                         F
      17. In Indian Oil Corporation Ltd., v. Municipal
Corporation and Another8, it has been observed that the
Division Bench of the High Court in Municipal Corpn., Indore
v. Ratnaprabha Dhandha 9 was clearly in error in taking the
view that the decision of this Court in Municipal Corporation,
Indore v. Ratna Prabha 10 was not binding on it. In doing so,            G
7. (1989) 2 sec 754.
8.   AIR 1995 SC 1480.
9.   1989 MPLJ 20.
 10. (1976) 4 sec 522.
                                                                         H
    364     1 SUPREME COURT REPORTS                  [2014] 6 S.C.R.


A   the Division Bench of the High Court did something which even
    a later co-equal Bench of this Court did not and could not do.

       18. In Chandra Prakash and others v. State of U.P. and
  another11 , the Constitution Bench has reiterated the principle
B that has already been stated in Raghubir Singh (s,upra).
          19. Thus perceived, it·can be stated with certitude that S.N.
  Narula (supra) was a binding precedent and when the
  subsequent decision in T. V. Patel (supra) is rendered in
  ignorance or forgetfulness of the binding authority, the concept
C of per incurium comes into play.
         20. In this regard, we may usefully refer to a passage from
    AR. Antulay v. R.S. Nayak 12 , wherein Sabyasachi Mukharji,
    J. (as his Lordship then was) observed thus: -
D         ".... 'Per incuriam' are those deci$ions given in ignorance
          or forgetfulness of some inconsistent statutory provision or -
          of some authority binding on the court concerned, so that
          in such cases sor:ne part of the decision or some step in
          the reasoning on which it is based, is found, on that account
E         to be demonstrably wrong."
        At a subsequent stage of the said decision it has been
    observed as follows: -
         ".... It is a settled rule that if a decision has been given per
F   incuriam the court can ignore it."
         21. In Siddharam Satlingappa Mhetre v. State of
    Maharashtra and Ors. 13 , while dealing with the issue of 'per
    incuriam', a two-Judge Bench, after referring to the dictum in
    Bristol Aeroplane Co. Ltd. (supra) and certain passages from
9   Ha/sbury's Laws of England and Raghubir Singh (supra), has
    ruled thus:-

    11. (2002) 4 sec 234.
    12. (1988) 2 sec 602.
H   13. AIR 2011SC312: (2011) 1sec694.
            UNION OF INDIA v. R.P. SINGH                     365
                 [DIPAK MISRA, J:]
     "The analysis of English and Indian Law clearly leads to        A
     the irresistible conclusion that not only the judgment of a
     larger strength is binding on a judgment of smaller strength
     but the judgment of a co-equal strength is also binding on
     a Bench of Judges of co-equal strength. In the instant
     case, judgments mentioned in paragraphs 135 and 136             B
     are by two or three judges of this Court. These judgments
     have clearly ignored a Constitution Bench judgment of this
     Court in Sibbia's case (supra) which has comprehensively
     dealt with all the facets of anticipatory bail enumerated
     under Section 438 of Code of Criminal Procedure                 c
     Consequently, judgments mentioned in paragraphs 135
     and 136 of this judgment are per incuriam."

      22. Testing on the aforesaid principles it can safely be
:concluded that the judgment in T. V. Patel's case is per
 incuriam.                                                           D
     23. At this juncture, we would like to give our reasons for
our respectful concurrence with S.K. Kapoor (supra). There is
no cavil over the proposition that the language engrafted in
Article 320(3){c) does not make the said Article mandatory. As       E
we find, in the T. V.Pate/'s case, the Court has based its finding
on the language employed in Rule 32 of the Rules. It is not in
dispute that the said Rule from the very inception is a part of
the 1965 Rules. With the efflux of time, there has been a change
of perception as regards the applicability of the principles of      F
natural justice. An Inquiry Report in a disciplinary proceeding
is required to be furnished to the delinquent employee so that
he can make an adequate represe,ntation explaining his own
stand/stance. That is what precisely has been laid down in the
B.Karnukara's case. We may reproduce the relevant passage            G
with profit: -

     "Hence it has to be held that when the enquiry officer is
     not the disciplinary authority, the delinquent employee has
     a right to receive a copy of the enquiry officer's report
     before the disciplinary authority arrives at its conclusions    H
                366       SUPREME COURT REPORTS                [2014] 6 S.dR.


            A         with regard to the guilt or innocence of the employee with
                      regard to the charges levelled against him. That right is a
                      part of the employee's right to defend himself against the
                      charges levelled against him. A denial of the enquiry
                      officer's report before the disciplinary authority takes its
            B         decision on the charges, is a denial of reasonable
                      opportunity to the employee to prove his innocence and
                      is a breach of the principles of natural justice."

                   24. We will be failing in our duty if we do not refer to
              another passage which deals with the effect of non-supply of
            C the enquiry report on the punishment. It reads as follows: -

                      "[v] The next question to be answered is what is the effect
                      on the order of punishment when the report of the enquiry
                      officer is not furnished to the employee and what relief
            D         should be granted to him in such cases. The answer to this
                      question has to be relative to the punishment awarded.
                      When the employee is dismissed or removed from service
                      and the inquiry is set aside because the report is not
                      furnished to him, in some cases the non-furnishing of the
            E         report may have prejudiced him gravely while in other
                      cases it may have made no difference to the ultimate
                      punishment awarded Jg him. Hence to direct reinstatement
                      of the employee with back-wages in all cases is to" reduce
                      the rules of justice to a mechanical ritual. The theory of
            F         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. 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 account of the denial to
            G
                      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 and to get all the
            H



·.;.,,.;.
               UNION OF INDIA v. R.P. SINGH                       367
                    [DIPAK MISRA, J.]
          consequential benefits. It amounts to rewarding the A
          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."
                                                                          B
         25. After so stating, the larger Bench proceeded to state
    that the court/tribunal should not mechanically set aside the
    order of punishment on the ground that the report was not
    furnished. The courts/tribt.mals would apply their judicial mind
    to the question and give their reasons for setting aside or not
    setting aside the order of punishment. It is only if the court/
                                                                          c
    tribunal finds that the furnishing of report could have made a
    difference to the result in the case then it should set aside the
    order of punishment. Where after following the said procedure
    the court/tribunal sets aside the order of punishment, the proper
    relief that should be granted to direct reinstatement of the D
    employee w!th liberty to the authority/ management to proceed
    with the enquiry, by placing the employee under suspension and
    continuing the enquiry from that stage of furnishing with the
    report. The question whether the employee would be entitled
    to the back wages and other benefits from the date of dismissal E
    to the date of reinstatement, if ultimately ordered, should
    invariably left to be decided by the authority concerned
    according to law, after the culmination of the proceedings and
    depending on the final outcome.                            ..
                                                                          F
          26. We have referred to ttre aforesaid decision in extenso
    as we find that in the said case it has been opined by the
    Constitution Bench that non-supply of the enquiry report is a
    breach of the principle of natural justice. Advice from the UPSC,
    needless to say, when utilized as a material against the G
    delinquent officer, it should be supplied in advance. As it seems
  , to us, Rule 32 provides for supply of copy of advice to the
· . government servant at t'1e time of making an order. The said
    stage was in prevalence before the decision of the Constitution
    Bench. After the said decision, in our considered opinion, the
                                                                          H
    368       SUPREME COURT REPORTS                 [2014) 6 S.C.R.


A authority should have clarified the Rule regarding development
  in the service jurisprudence. We have been apprised by
  Mr.Raghavan, learned counsel for the respondent, that after the
  decision in S.K.Kapoor.'s case, the Government of .India,
  Ministry of Personnel, PG & Pensions, Department of
B Personnel & Training vide Office Memorandum dated
  06.01.2014 has issued the following directions:

          "4. Accordingly, it has been decided that in all disciplinary
          cases where the Commission is to be consulted, the
          foll~ing procedure may be adopted :-

          (i) On receipt of the Inquiry Report, the DA may examine
          the same and forward it to the Commission with his
          observations;

0         (ii) On receipt of the Commission's report, the DA will
          examine the same and forward the same to the Charged·
          Officer along with the Inquiry Report and his tentative
          reasons for disagreement with the Inquiry Report and/or
          the advice of the UPSC;
E         (iii) The Charged Officer shall be required to submit, if he
          so desires, his written representation or submission to the
          Disciplinary Authority within fifteen days, irrespective of
          whether the Inquiry reportiadvice of UPSC is in his favour
          or not.
F
          (iv) The Disciplinary Authority shall consider the
          representation of the Charged Officer and take further
          action as prescribed in sub-rules 2(A) to (4) of Rule 15 of
          CCS (CCA) Rules, 1965.
G        27. After the said Office Memorandum, a further Office
    Memorandum has been issued on 05.03.2014, which pertains
    to supply of copy of UPSC advice to the Charged Officer. We
    think it appropriate to reproduce the same:

H         'The undersigned is directed to refer to thi~ Department'~
                  UNION OF INDIA v. R.P. SINGH               369
                       [DIPAK MISRA, J.]

      Q.M. of even number dated .Q6.01.2014 and to say that it A         ·
      tias been decided, in partial modification of the above O.M; .
      that    a
              copy of the inquiry report may be given to the
      Government servant as provided in Rule 15(2) of Central
      Secretariat Services {Classification, Control and Appeal)
      Rules, 1965. The inquiry report together with the B
      representation, if any, of the Government servant may be
      forwarded to the Commission for advice. On receipt of the
      Commission's advice, a copy of the advice may be
      provided to the Government servant who may be allowed
      to submit his representation, if any, on the Commission's - c
      advice within fifteen days. The Disciplinary Authority will
      consider the inquiry report, advice of the Commission and
      the representation(s} of. the Government servant before
      arriving at a final decision."

     28. In our considered opinion, !Joth the Office Memoranda D
are not only in consonance with the S.K.Kapoor's case but
also in accordance with the principles of natural justice which
has been stated in B.Karunakar's case.

      29. In view qf the aforesaid, we respectfully agree with the   E
decision rendered in S.K.Kapoof's case and resultantly
decline to interfere·with the judgment and order of the High
Court. As a result, the appeal, being devoid of merit, is
dismissed without'any order as to costs.
                                                                     F
Nidhi Jai,,                                      Appeal dismissed.