Union Of India & Ors vs S.K.Kapoor

Union of India & Others ..Appellants

versus

S.K. Kapoor ..Respondent

O R D E R

Heard learned counsel for the parties.

This Appeal has been filed against the impugned

judgment and order dated 25th April, 2005 passed by the High

Court of Gujarat at Ahmedabad in Special Civil Application

No.7201 of 2005.

It appears that the respondent had been charge

sheeted for absence without leave and a dismissal order was

passed against him on 01.11.2001.

The respondent approached the Central Administrative

Tribunal, Ahmedabad Bench, which by its order dated 20th

July, 2004 quashed the dismissal order and directed the

authorities to proceed from the stage of making available a

copy of the Report of the Union Public Service Commission.

Being aggrieved by the order of the Tribunal, the

appellants herein filed a writ petition in the High Court of

Gujarat at Ahmedabad being Special Civil Application

No.7201 of 2005, which has been dismissed by the impugned

order. Hence, this appeal.

We have perused the impugned order and find no

infirmity in the same.

It is a settled principle of natural justice that if

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any material is to be relied upon in departmental

proceedings, a copy of the same must be supplied in advance

to the charge sheeted employee so that he may have a chance

to rebut the same.

Mr. Qadri, learned counsel for the appellant

submitted that the copy of the Report of the Union Public

Service Commission was supplied to the respondent-employee

along with the dismissal order. He submitted that this is

valid in view of the decision of this Court in Union of

India vs. T.V.Patel, (2007) 4 SCC 785.

We do not agree.

In the aforesaid decision, it has been observed in

para 25 that 'the provisions of Article 320(3)(c) of the

Constitution of India are not mandatory'. We are of the

opinion that although Article 320(3)(c) is not mandatory, if

the authorities do consult the Union Public 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 view, the aforesaid

decision in T.V.Patel's case is clearly distinguishable.

There may be a case where the report of the Union

Public Service Commission is not relied upon by the

disciplinary authority and in that case it is certainly not

necessary to supply a copy of the same to the concerned

employee. However, if it is relied upon, then a copy of the

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same must be supplied in advance to the concerned employee,

otherwise, there will be violation of the principles of

natural justice.

This is also the view taken by this Court in the

case of S.N.Narula vs. Union of India & Others, Civil

Appeal No.642 of 2004 decided on 30th January, 2004.

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-

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 in

T.V.Patel's case(supra), the latter decision is a judgment

per incuriam. The decision in S.N.Narula's case (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.

For the aforesaid reasons, this appeal is dismissed.

Parties shall bear their own costs.

...........................J. [MARKANDEY KATJU]

NEW DELHI; ...........................J. MARCH 16, 2011 [GYAN SUDHA MISRA]