M. J. NINAMA v. POST MASTER GENERAL AHMEDABAD — 1984 DIGILAW 48 (GUJ)

R. C. MANKAD, J. ( 1 ) PETITIONER who was Upper Division Clerk in the Posts and Telegraphs Department was removed from service by an order dated December 19 1981 passed by the Director Postal Services (HQ) Gujarat Circle Ahmedabad (hereinafter referred to as the Disciplinary Authority ). In the appeal preferred by the petitioner the Post Master General Ahmedabad by his order dated August 13 1982 agreed with the finding of guilt recorded by the Disciplinary Authority but modified the penalty from removal to that of compulsory retirement from service. The petitioner has by this petition under Article 226 of the Constitution of India challenged the findings recorded by the Disciplinary Authority and the Appellate Authority and the punishment imposed on him on several grounds. One of the grounds raised by the petitioner is that he was denied reasonable opportunity of being heard in respect of the charges levelled against him on account of failure on the part of the Disciplinary Authority to supply him copy of the report of the Enquiry Officer and reasons recorded by him for disagreeing with the findings recorded by the Enquiry Officer. Since in nay opinion for the reasons which I shall presently state the petitioner must succeed on this ground I do not consider if necessary to set out or deal with other grounds raised in this petition. ( 2 ) THE petitioner was given chargesheet dated April 16 1977 wherein it was alleged that on November 6/7 1976 the petitioner had demanded bribe of Rs. 800/- from one Kanjibhai Zalabhai Ninama of village Jab-Chitaria for getting appointment order of his son Badabhai Kanjibhai Ninama (herein-after referred to as Ninama) and threatened that appointment order would be cancelled if the said amount was not paid. He repeated his demand when he met Ninama and accepted Rs. 650/- from him as part of the bribe amount on November 15 1976 He demanded accepted the balance of the amount of Rs. 150/- as bribe from Ninama in the afternoon of November 17 1976 near the office of the Post Master General at Ahmedabad. It is alleged that before giving this amount of Rs. 150/- Ninama had approached Central Bureau of Investigation and a trap was laid to apprehend the petitioner when he accepted amount of Rs. 150/ -. It is alleged that the petitioner accepted currency notes of Rs. It is alleged that before giving this amount of Rs. 150/- Ninama had approached Central Bureau of Investigation and a trap was laid to apprehend the petitioner when he accepted amount of Rs. 150/ -. It is alleged that the petitioner accepted currency notes of Rs. 150/- to which phenolphthalein powder was applied in presence of the Panch witnesses and put these currency notes in his pocket in the presence of one of the Panchas who had accompanied Ninama when Ninama went to pay this amount to the petitioner. Thereafter a raid was carried out and the amount of Rs. 150/- was recovered from the petitioner. Disciplinary proceedings founded on the above charges were initiated against the petitioner. The Disciplinary Authority appointed Enquiry Officer to record evidence and submit his findings on the basis of suck evidence. The Department led evidence to prove the charges levelled against the petitioner. Petitioner also examined two witnesses to prove his defence that Rs. 150/- which he received from Ninama on November 17 1976 as stated above were paid towards loan of Rs. 300 which Ninama had taken from him. The Enquiry Officer by his report Annexure `b dated September 26 1978 held that the charges framed against the petitioner were not proved. The Disciplinary Authority however by his order dated December 22 1978 remitted the matter to the Enquiry Officer mainly to record a specific finding whether the document Exhibit D-1 alleged to be a receipt or promissory note dared August 12 1978 executed by Ninama was genuine or not. The Enquiry Officer again by his report Annexure `c dated March 12 1979 recorded a finding that the petitioner was not guilty of the charges levelled against him. The Disciplinary Authority however again remitted the matter to the Enquiry Officer for farther enquiry. The Disciplinary Authority directed the Enquiry Officer to send the document Exhibit D-1 to the Hand-writing Expert for examination and obtain his opinion regarding the genuineness of the signature purported to be of Ninama on the document. The document was sent to the Hand-writing Expert and after he gave his opinion he was examined as a witness. In the opinion of the Hand-writing Expert signature appearing below the document Exhibit D-1 was not that of Ninama. The document was sent to the Hand-writing Expert and after he gave his opinion he was examined as a witness. In the opinion of the Hand-writing Expert signature appearing below the document Exhibit D-1 was not that of Ninama. The Enquiry Officer however after appreciating the evidence on record by his report Annexure `d dated October 6 1981 again held that the charges framed against the petitioner were not proved. It appears that copies of the reports submitted by the Enquiry Officer to the Disciplinary Authority were not supplied to the petitioner. After the last report Annexure `d was submitted by the Enquiry Officers the Disciplinary Authority on appreciation of the evidence on record disagreed with the findings recorded by the Enquiry Officer. He saw no reason to discard the evidence of the Hand-writing Expert and held that the document Exhibit D-1 which was alleged to be receipt of the promissory note executed by Ninama was not proved to have been executed by him. In his view theory of loan was an after thought and it was concocted to explain away receipt of Rs. 150/- from Ninama on November 17 1976 in presence of a Panch witness. The Disciplinary Authority for the reasons recorded in his order Annexure `e dated December 19 1981 held the charge framed against the petitioner proved beyond the shadow of doubt and imposed penalty of removal from service on the petitioner. It may be mentioned here that before recording the finding of guilt the Disciplinary Authority had not heard the petitioner. As already pointed out above copies of the reports submitted by the Enquiry Officer were not supplied to the petitioner nor was he given any opportunity to make representation to the Disciplinary Authority against the reasons which weighed with the Disciplinary Authority in disagreeing with the Endings recorded by the Enquiry Officer. Copy of the order Annexure `e was supplied to the petitioner after it was passed by the Disciplinary Authority. He was also supplied copy of the findings recorded by the Enquiry Officer before he approached the Post Master General Gujarat Circle Ahmedabad who was the Appellate Authority by way of appeal. The Appellate Authority however by his order dated August 13 1982 agreed with the findings recorded by the Disciplinary Authority and held that the charges levelled against the petitioner were proved. The Appellate Authority however by his order dated August 13 1982 agreed with the findings recorded by the Disciplinary Authority and held that the charges levelled against the petitioner were proved. However so far as penalty was concerned it was reduced from that of removal from service to that of compulsory retirement from service from the date of the order of the Disciplinary Authority. ( 3 ) NOW it is in the background of the above Acts that the question arises whether the petitioner could be said to have been afforded reasonable opportunity as contemplated by Article 311 (2) of the Constitution. Article 311 in so far as is relevant for our purpose reads as follows:311 (1 ). No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:provided that where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. IT is contended on behalf of the respondents that in via of the first proviso to sub-article (2) of Article 311 it was not necessary for the Disciplinary Authority to give any further opportunity of making representation It is urged that it was necessary to give such an opportunity before the amendment of sub-article (2) by the Constitution (Fortysecond Amendment) Act 1976 By amendment of Article 311. (2) Government servant is now denied opportunity to make representation at the second stage of enquiry against the penalty proposed to be imposed on him. It is submitted that it was in view of the amendment of Article 311 (2) that there was corresponding amendment of Rule 15 of the Central Civil Services (Classification Control and Appeal) Rules 1965 (hereinafter referred to as the Rules ). It is submitted that it was in view of the amendment of Article 311 (2) that there was corresponding amendment of Rule 15 of the Central Civil Services (Classification Control and Appeal) Rules 1965 (hereinafter referred to as the Rules ). Rule 15 after its amendment reads as under:15 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 for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 as far as may be. (2) The disciplinary authority shall if it disagrees with the findings of the inquiring authority on any article of charge record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. (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 penalties specified in clauses (i) to (iv) of Rule 11 should be imposed on the Government servant it shall notwithstanding anything contained in Rule 16 make an order imposing such penalty : provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant. It is submitted that sub-rule (4) of Rule 15 clearly provides that it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed. Therefore before recording its findings on the charges framed against the Government servant the Disciplinary Authority is not required either to furnish a copy of the Enquiry Officers report or to give any further opportunity of making representation against the charges framed to the Government servant. It is submitted that after receipt of the report of the Enquiry Officer all that the Disciplinary Authority to do is to consider the report and arrive at a final conclusion without giving any further opportunity to the Government servant either in regard to the merit of the charges or in regard to the proposed penalty to be imposed on him. It is submitted that amendment of Article 311 (2) and corresponding amendment of Rule 15 of the Rules expressly exclude opportunity of representation at the second stage or the stage at which the Disciplinary Authority considers the Enquiry Officers report and records its own final conclusion and to that extent the right of reasonable opportunity as contained in the said Article before its amendment is curtailed. It is urged that the petitioner is seeking to re-introduce the position which obtained before the amendment of Article 311 (2) through the back door when he urges that he should have been supplied with a copy of the findings or the report of the Enquiry Officer and that he should have been heard or given an opportunity of making representation before the Disciplinary Authority before the said authority came to the final conclusion in regard to the charges framed against him. ( 4 ) IT is further submitted that the petitioner had made written submissions before the Enquiry Officer and the record of entire proceedings before the Enquiry Officer including the written submissions made by the petitioner before him were before the Disciplinary Authority when it appreciated the evidence on record and came to the final conclusion that the charges levelled against the petitioner were proved. Since the written submissions made by the petioner were already before the Disciplinary Authority it was not necessary to give him any further opportunity of being heard or to make representation to the Disciplinary Authority. ( 5 ) IN order to appreciate rival contentions it is necessary to go into the historical background of Article 311 (2) before its amendment by the Fort-second Amendment Act. This sub-article (2) in so far as it is relevant read as under prior to its amendment by the Fifteenth Amendment Act 1963 which came into force from June 1 1963 (2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. AFTER amendment of Article 311 by the Fifteenth Amendment Act 1963 sub-article (2) thereof in so far as it is relevant read as under : (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry to impose on him any such penalty until he has been given a reasonable opporunity of making representation on the penalty proposed but only on the basis of the evidence adduced during such inquiry. ( 6 ) THE aforesaid sub-article (2) as it existed prior to October 6 1963 came up for consideration before the Supreme Court in Khemchand v. Union of India AIR 1958 SC 300 . Dealing With this sub-article the Supreme Court observed as under:it is true that the provision does not in terms refer to different stages at which opportunity is to be given to the Officer concerned. All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given in opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one it is quite obviously necessary that the government servant should have the opportunity to say if that be his case that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe then he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment. ACCORDING to this decision expression reasonable opportunity of Showing cause against the action proposed to be taken included an opportunity to show cause against the guilt of the government servant concerned. This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being heard in respect of the charges in the course of the inquiry contemplated by the amended sub-article (2) as amended by Fifteenth Amendment Act 1963 It would appear that the amendment in 1963 was made principally to put in clearer language the result of the judicial decisions construing Section 240 (3) of the Government of India Act 1935 and Article 311 (2) before its amendment by the Fifteenth Amendment Act 1963 The expression reasonable opportunity used in sub-article (2) before its amendment in 1963 was construed in terms to refer to a stage when after such inquiry as may be necessary and after the punishing authority being satisfied of the guilt of the delinquent government servant provisionally proposed the action to be taken against him. But in answer to the show-cause notice the Government servant was held entitled also to show cause against his guilt on the merits. Even though in the earlier inquiry if any the Government servant had been given an opportunity of showing cause against his guilt the second opportunity provided by the statute us held to be mandatory. The right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his statutory right and that is implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant. ( 7 ) ARTICLE 311 (2) before its amendment by Fifteenth Amendment Act 1963 had again come up for consideration before the Supreme Court in Bachhiter Singh v. State of Punjab and Another AIR 1963 SC 395 . The Supreme Court held that departmental enquiry held against Government servant cannot be divided into (a) the enquiry (which involved a decision of the question whether the allegations made against the servant were true or not) and (b) taking action (that is in case the allegations were found to be true whether the servant should be punished or not and if so in what manner and if so divided first point cannot be treated as involving decision on the evidence and described as judicial while the latter is purely administrative decision liable to be changed by the State. Departmental proceedings taken against a Government servant are not divisible. There is just one continuous proceeding though there are two stages in it. Be first is coming to a conclusion on the evidence as to whether the charges Alleged against the Government servant are established or not and the second is reached only if it is found that they are so established. That stage deals with the action to be taken against the Government servant concerned. Both these stages are equally judicial. Therefore latter stage of proceeding is no less judicial than the earlier one. Consequently any action decided to be taken against a Government servant found guilty of misconduct is a judicial order and as such it cannot be varied at the will of the authority who is empowered to impose the punishment. Both these stages are equally judicial. Therefore latter stage of proceeding is no less judicial than the earlier one. Consequently any action decided to be taken against a Government servant found guilty of misconduct is a judicial order and as such it cannot be varied at the will of the authority who is empowered to impose the punishment. Indeed the very object with which notice is required to be given on the question of punishment is to ensure that it will be such as would be justified upon the charges established and upon the other attendant circumstances of the case. The Supreme Court held that it is wholly erroneous to characterise the taking of action against a person found guilty of any charge at a departmental enquiry as an administrative order. ( 8 ) THE question whether in order to afford reasonable opportunity as required by Article 311 (2) of the Constitution it was necessary on the part of the Disciplinary Authority to provide the delinquent with a copy of the report of the Enquiry Officer came up for consideration before the Supreme Court in State of Maharashtra v. B. A. Joshi AIR 1969 SC 1300. This is a case arising under Article 311 (2) before its amendment by the Fifteenth Amendment Act 1963 The High Court in that case had held that failure on the part of the competent authority to provide the plaintiff appellant in that case with a copy of the report of the Enquiry Officer amounted to denial of reasonable opportunity contemplated by Article 311 (2) of the Constitution. Dealing with the above question the Supreme Court observed as follows:it seems to us that the High Court came to a correct conclusion. The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion and if the report was against him he would have put such arguments or material as he could to dissuade the Inspector General from accepting the report of the Enquiry Officer. Moreover as pointed by the High Court the Inspector General of Prisons had the report before him and the tentative conclusions arrived at by the Enquiry Officer were bound to influence him and in depriving the plaintiff of a copy of the report he was handicapped in not knowing what material was influencing the Inspector General of Prisons. AS observed by Gajendragadkar J. as he then was in Union of India v. H. C. Goel 1964 SCR 718 = ( AIR 1964 SC 364 ) the enquiry report alone with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer and the report he makes as a result of the said enquiry. IT is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case but it would be in very rare cases indeed in which it could be said that the Government servant is not prejudiced by the non-supply of the report of the Enquiry Officer. IT is thus clear from the decision of the Supreme Court that delinquent government servant must be held to have been denied reasonable opportunity if he is not furnished with the Enquiry Officers report which the Disciplinary Authority has taken into consideration. It is not disputed that this position remained unchanged after the amendment of Article 311 (2) by the Fifteenth Amendment Act 1963 ( 9 ) HOWEVER the question is whether by amendment of Article 311 (2) by the Constitution (Fortysecond Amendment) Act 1976 the concept of reasonable opportunity has under-gone any change and if so to what extent. It is not disputed that this position remained unchanged after the amendment of Article 311 (2) by the Fifteenth Amendment Act 1963 ( 9 ) HOWEVER the question is whether by amendment of Article 311 (2) by the Constitution (Fortysecond Amendment) Act 1976 the concept of reasonable opportunity has under-gone any change and if so to what extent. By this amendment the words and where it is proposed after such inquiry to impose on him any such penalty until he has been given a reasonable opportunity of making representation on the penalty proposed but only on the basis of the evidence adduced during such inquiry have been omitted and for the words provided that this clause shall not apply following have been substituted namely :provided that where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:provided further that this clause shall not apply. . . . It was in view of this amended Article 311 (2) that Rule 15 of the rules was amended. Amended Article 311 (2) and Rule 15 have already been reproduced hereinbefore. It was urged on behalf of the respondents that provisions of Rule 15 of the Rules are amended to make it consistent with the amended provision of Article 311 (2) of the Constitution. It was submitted that in cases where an Enquiry Officer is appointed such officer after completion of the procedure of evidence is required to hear the presenting officer if any appointed and the delinquent Government servant in regard to their respective cases. The Government servant may if he so desires make written submissions. After giving such an opportunity of hearing report is submitted by the Enquiry Officer to the Disciplinary Authority. It was submitted that under these circumstances the question of the Disciplinary Authority giving further opportunity to the delinquent at the stage when it takes up the case against him for consideration does not arise. It was submitted that the very purpose of amending Article 311 (2) of the Constitution is to deny the Government servant second opportunity. It was submitted that under these circumstances the question of the Disciplinary Authority giving further opportunity to the delinquent at the stage when it takes up the case against him for consideration does not arise. It was submitted that the very purpose of amending Article 311 (2) of the Constitution is to deny the Government servant second opportunity. In support of this contention reliance was placed upon a decision of the Supreme Court in the case of State of Assam v. Bimal Kumar Pandit AIR 1963 SC 1612 and my attention was drawn to paragraph 7 of the judgment which reads as under:article 311 (1) provides inter alia that no person covered by the said sub-article shall be dismissed or removed by an authority subordinate to that by which he was appointed. We are not concerned with this sub-article in the present appeal. Article 311 (2) provides that no such person as specified in Article 311 (1) shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It is now well settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opprotunities before disciplinary action is finally taken against him. An enquiry must be conducted according to the rules prescribed in that behalf and consistently with the requirements of natural justice. At this enquiry the public officer concerned would be entitled to test the evidence adduced against him by cross-examination where necessary and lead his own evidence. In other words at this first stage of the proceedings he is entitled to have an opportunity to defend himself. When the enquiry is over and the enquiring officer submits his report the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings in the report are against the public officer and the dismissing authority agrees with the said findings a stage is reached for giving another opportunity to the public officer to show why disciplinary action should not be taken against him. If the findings in the report are against the public officer and the dismissing authority agrees with the said findings a stage is reached for giving another opportunity to the public officer to show why disciplinary action should not be taken against him. In issuing the second notice the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer 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 dismissing authority issues the second notice. There is no doubt that in response to this notice the public officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words the second opportunity enables the public officer 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 substantiating his innocence the action proposed to be taken against him is either unduly severe or not called for. This position is not in dispute. Relying on the above observations of the Supreme Court it was contended that Article 311 (2) before its amendment by Forty-second Amendment Act contemplated two opportunities and second opportunity consisted of giving an opportunity of showing cause against the proposed penalty. It was submitted that when such an opportunity was given the Government servant was entitled to show cause not only against the proposed penalty but also in regard to the tentative findings arrived at by the Enquiry Officer. It was submitted that the purpose of amendment of Article 311 (2) is to reduce two opportunities contemplated by the said Article to one opportunity and the Government servant stands denied of the second opportunity to which the Supreme Court has adverted to in paragraph 6 extracted above. ( 10 ) ARTICLE 311 (2) before its amendment provided for giving reasonable opportunity of being heard in respect of the charges levelled against the delinquent Government servant and another opportunity of making representation in regard to the proposed punishment. ( 10 ) ARTICLE 311 (2) before its amendment provided for giving reasonable opportunity of being heard in respect of the charges levelled against the delinquent Government servant and another opportunity of making representation in regard to the proposed punishment. There was a clear distinction beween two opportunities to be given to the Government servant. Where-as first is an opportunity of being heard in respect of the charges levelled against the Government servant second opportunity is only an opportunity to make representation in regard to the penalty imposed. By the amendment obligation to afford opportunity of making representation in regard to the proposed penalty is taken away. However obligation to afford reasonable opportunity of being heard against the charges levelled continues without any curtailment even after the amendment of Article 311 (2 ). Before the amendment of Article 311 (2) the Government servant had to be given an opportunity of being heard in respect of the charges levelled against him as well as the penalty at the final stage. The only change which is made now is that he need not be heard on the question of penalty. However the obligation to hear him on the charges levelled against him still remains. In my opinion therefore there is no change whatsoever as a result of the amendment of Article 311 (2) by the Forty-second Amendment Act so far as the obligation to hear the delinquent Government servant on. the charges levelled against him is concerned it is only at the final stage when the Disciplinary Authority in appreciation of evidence on record and after affording opportunity to the delinquent of being heard comes to the conclusion that delinquent is guilty of the charges framed against him and that it is a case for imposing punishment that he is not required to hear the delinquent. In other words it is only at the final stage of imposing penalty that the Disciplinary Authority is not required to hear the delinquent. However the obligation to hear the delinquent before he reaches the conclusion regarding the charges framed against him is not done away with by the amendment. In my opinion therefore the decision of the Supreme Court referred to above would still apply to the cases arising after the amendment of Article 311 (2 ). However the obligation to hear the delinquent before he reaches the conclusion regarding the charges framed against him is not done away with by the amendment. In my opinion therefore the decision of the Supreme Court referred to above would still apply to the cases arising after the amendment of Article 311 (2 ). The principles laid down by the Supreme Court regarding reasonable opportunity to be given to the delinquent in regard to the charges levelled against him would be applicable at the stage when the Disciplinary Authority takes up the case against the delinquent for consideration after receiving the report of the Enquiry Officer. ( 11 ) IT is important to bear in mind that it is before the decision-making authority that the delinquent must get an opportunity of being heard or make representation. There cannot be division of responsibility of hearing by the Enquiry Officer and decision by the Disciplinary Authority. If the argument advanced on behalf of the respondents is accepted it would mean that where the Disciplinary Authority appoints Enquiry Officer requirement of affording reasonable opportunity under Article 311 (2) would be met if the delinquent is given such an opportunity before the Enquiry Officer. According to the respondents the delinquent is given opportunity to test the evidence led against him on behalf of the Department by crossexamination of the witnesses examined on behalf of the Department to lead his defence evidence and to make comments on the evidence on record by making oral or written submissions. This opportunity it is submitted must be considered to be reasonable opportunity as contemplated under the amended Article 311 (2 ). As pointed out above it is urged that there is no question of giving second opportunity before the Disciplinary Authority after the Enquiry Officer submits his report in view of the amendment of Article 311 (2 ). I am unable to accept this submission. As discussed above amendment of Article 311 (2) has not brought about any change so far as the requirement of affording reasonable opportunity against the charges levelled is concerned. There-fore though the delinquent is now not entitled to be heard on the proposed penalty he is still entitled to be heard on the charges levelled against him. As discussed above amendment of Article 311 (2) has not brought about any change so far as the requirement of affording reasonable opportunity against the charges levelled is concerned. There-fore though the delinquent is now not entitled to be heard on the proposed penalty he is still entitled to be heard on the charges levelled against him. The Supreme Court has in the decision referred to above held that the Disciplinary Authority was required to hear the delinquent in two points namely (i) charges levelled against him; and (ii) proposed punishment. In view of the amendment it is now not required to hear him on the second point but it is under an obligation to hear him on the first point. Before amendment of sub-article (2) of Article 311 the Disciplinary Authority had to hear the delinquent on both the points at one stage that is at the stage when the matter came up to be heard for consideration. However now he is required to hear him on the question of charges levelled against him. It is before decision-making authority that the delinquent must get the opportunity of being heard so far as the charges levelled against him are concerned. ( 12 ) THE view which I am inclined to take derives support from the decision of the Supreme Court in G. Nageswara Rao v. A. P. S. R. I. Corporation AIR 1959 SC 308 . In that case under the relevant provisions of the Motor Vehicles Act and the Rules made thereunder where a scheme was proposed the State Government was enjoined to approve or modify the scheme after holding an enquiry and after giving an opportunity of being heard to the objectors personally or theirs representatives and representatives of the State Transport Undertaking. The officer who received objections of the parties and heard them personally or through their representatives was the Secretary of the Transport Department. Under the Motor Vehicles Act and the rules framed there-under duty was cast on the State Government to give personal hearing. The procedure prescribed by the rules imposed a duty on the Secretary to hear and the Chief Minister to decide. The Supreme Court observed that this divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. If one person hears and another decides then personal hearing becomes an empty formality. The procedure prescribed by the rules imposed a duty on the Secretary to hear and the Chief Minister to decide. The Supreme Court observed that this divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. If one person hears and another decides then personal hearing becomes an empty formality. As observed by the Supreme Court in Khemchands Case (supra) judicial approach was required to be made in a proceeding under Article 311. In Bachhitar Singhs Case (supra) also as observed above the Supreme Court held that both the stages of the proceedings under Article 311 namely (i) stage dealing with charges and (ii) stage dealing with imposition of penalty are judicial. Now under sub-article (1) of Article 311 the Government servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed. The officer to whom the task of holding enquiry is entrusted by the appointing authority has no power to dismiss or remove Government servant against whom he holds an enquiry. There-fore the decision whether or not to dismiss or remove rests on the appointing authority or the Disciplinary Authority. It is the Disciplinary Authority which has to record a finding on the charges levelled against the delinquent Government servant and ultimately to impose appropriate penalty if it holds the delinquent Government servant guilty. If the proceedings under Article 311 are judicial reasonable opportunity which is contemplated thereunder must be afforded to the delinquent before the Disciplinary Authority with whom the decision rests. In my opinion therefore it is incumbent upon the Disciplinary Authority to hear the delinquent Government servant on the charges levelled against him. As observed by the Supreme Court in G. Nageswara Raos Case (supra) division of responsibility between the Enquiry Officer and the Disciplinary Authority namely duty on the Enquiry Officer to hear and the Disciplinary Authority to decide as urged on behalf of the respondents would be destructive of the concept of judicial hearing and defeat the object of giving reasonable opportunity to the delinquent Government servant. ( 13 ) AS observed by the Supreme Court in State of Maharashtra v. B. A. Joshi (supra) unless the report of the Enquiry Officer was furnished to the delinquent he would not be aware whether the Enquiry Officer reported in his favour or against him. ( 13 ) AS observed by the Supreme Court in State of Maharashtra v. B. A. Joshi (supra) unless the report of the Enquiry Officer was furnished to the delinquent he would not be aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour in his representation to the Disciplinary Authority he would have utilised its reasoning to dissuade the authority from coming to contrary conclusion and if the report was against him he would have put such arguments or material as he could to dissuade the authority from accepting the report of the Enquiry Officer. The report of the Enquiry Officer was before the Disciplinary Authority and tentative conclusions arrived at by the Enquiry Officer were bound to influence him and in depriving the delinquent of the copy of the Report he was handicapped in not knowing what material was influencing the Disciplinary Authority. Again as observed by the Supreme Court Union of India v. R. C. Goel AIR 1964 SC 368 the enquiry report alone with the evidence regarded constituted the material on which the Disciplinary Authority has ultimately to act. That is the only purpose of the enquiry held by the competent authority and report it makes as a result of the said inquiry. It is therefore obvious that the Enquiry Officers report whether it is in favour of the delinquent or against him is material on. which the Disciplinary Authority acts. That being the position in order to afford reasonble opportunity as contemplated under Article 311 (2) he must be furnished with a copy of the Enquiry Officers report. This would be the position notwithstanding the amendment of Article 311 (2) by the Forty-second Amendment Act Copy of the Enquiry Officers report has to be furnished to the delinquent Government servant to afford him reasonable opportunity to establish that the charges levelled against him are baseless or are not proved. This has nothing directly to do with the punishment which the Disciplinary Authority proposed to impose I am therefore unable to see how the decision of the Supreme Court in the State of Assam v. Bimal Kumar (supra) can be of any assistance to the respondents. Similar view has been taken by the Karnataka High Court in Mahabaleshwar P. Naik v. State of Karnataka 19 2 Lab. I. C. 696. Similar view has been taken by the Karnataka High Court in Mahabaleshwar P. Naik v. State of Karnataka 19 2 Lab. I. C. 696. The question of furnishing a copy of the report would no doubt arise only in a case where an Enquiry Officer is appointed by the Disciplinary Authority. It is not as though that there is obligation in every case that the Disciplinary Authority should appoint Enquiry Officer. The Disciplinary Authority can always hold an enquiry without authorising an Enquiry Officer to make any enquiry into the charges. However it is common practice to appoint an Enquiry Officer by a Disciplinary Authority. What the Supreme Court has emphasised in the aforesaid decisions is that after the Disciplinary Authority receives findings from the Enquiry Officer it has to arrive at a tentative finding on consideration of the Enquiry Officers report and thereafter give an opportunity of making representation to the delinquent Government servant. What is emphasised is that the findings arrived at by the Disciplinary Authority at the stage after considering the Enquiry Officers report would be tentative finding and before taking final decision the Disciplinary Authority has to give an opportunity of being heard to the delinquent Government servant to have his say in regard to the tentative findings that the Disciplinary Authority has arrived at. The findings referred to above are with regard to the charges levelled against the delinquent Government servant and any punishment which is proposed to be imposed on him. Therefore whether the Disciplinary Authority agrees or disagrees with the findings he has to reach a tentative conclusion and inform the delinquent Government servant about such conclusion and give him an opportunity of being heard before arriving at the final conclusion. This right of representation at that stage cannot be effectively exercised unless the delinquent is furnished with copy of the report of the Enquiry Officer. In may opinion in case the Disciplinary Authority disagrees with the findings recorded by the Enquiry Officer it would also be necessary to furnish to the delinquent reasons for doing so so that the delinquent can meet with them in the representation which he may make to the Disciplinary Authority. Unless the report of the Enquiry Officer and the reasons for disagreement with the Enquiry Officers findings are supplied the delinquent will not be able to make a pointed and meaningful representation. It. Unless the report of the Enquiry Officer and the reasons for disagreement with the Enquiry Officers findings are supplied the delinquent will not be able to make a pointed and meaningful representation. It. is no doubt true that the Disciplinary Authority is not required to hold an enquiry at which evidence of witnesses viva voice is to be recorded if at an earlier stage there has been fair and full enquiry before the Enquiry Officer; but it is difficult to agree with the submission made on behalf of the respondents that after receipt of the report of the Enquiry Officer by the Disciplinary Authority the delinquent has no right whatsoever to make representation against the charges levelled against him before the Disciplinary Authority. There is only one continuous enquiry till the Disciplinary Authority takes a final decision in regard to the charges levelled against the delinquent Government servant though there are no doubt stages of inquiry such as framing of charges reply to the charges recording of the evidence report of the Enquiry Officer tentative conclusions by the Disciplinary Authority final conclusion by the Disciplinary Authority and imposition of punishment. It is only in the last stage of the enquiry namely imposition of the punishment that delinquent Government servant is not required to be heard under the amended provisions of Article 311 (2 ). However till that last stage is reached the delinquent must be afforded reasonable opportunity of being heard so far as the charges levelled against him are concerned. And as observed above he could not be said to have been afforded such reasonable opportunity if he is not furnished with a copy of the Enquiry Officers report and is not given opportunity of making representation against the tentative findings recorded by the Disciplinary Authority whether it agrees or disagrees with the findings of the Enquiry Officer. ( 14 ) RULE 15 of the Rules on which reliance is placed by the respondents also contemplates different stages after receipt of the Enquiry Officers report. The disciplinary Authority if itself is not enquiring authority is empowered for the reasons to be recorded in writing to remit the case to the enquiring authority and report under sub-rule (1) of Rule 15. The disciplinary Authority if itself is not enquiring authority is empowered for the reasons to be recorded in writing to remit the case to the enquiring authority and report under sub-rule (1) of Rule 15. Under sub-rule (2) if the Disciplinary Authority disagrees with the finding of the enquiring authority all or any of the articles of charge it has to record reasons for such dis-agreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. It is after recording this finding that next stage of imposing penalty comes in and under proviso to the sub-rule (3) of Rule 15 in case it is necessary to consult the Union Public Service Commission it is required to impose penalty after taking into consideration the advice given by the Union Public Service Commission. Sub-rule (4) of Rule 15 amongst other things provides that it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed. The question of imposing penalty as pointed out above would arise only after the Disciplinary Authority comes to a final conclusion and obtains the advice of the Union Public Service Commission in case it is necessary to do so. And it is only at that stage that even under Rule 15 the Disciplinary Authority is not required to hear the delinquent Government servant. Rule 15 which is made consistent with amended Article 311 (2) does not in any way take away the right of the delinquent Government servant to make representation against the charges levelled against him before the Disciplinary Authority. As already pointed out above it is the Disciplinary Authority which can take the final decision in the matter and unless the delinquent has an opportunity to make representation before the decision-making authority on the charges levelled against him he could not be said to have been afforded reasonable opportunity as contemplated under Article 311 (2 ). ( 15 ) IN my opinion therefore the petitioner must succeed on the two grounds mentioned above. Admittedly he has not been furnished with a copy of the Enquiry Officers report. He has also not been supplied with the tentanary Authority and the reasons for its disagreement with the finding recorded by the Enquiry Officer. ( 15 ) IN my opinion therefore the petitioner must succeed on the two grounds mentioned above. Admittedly he has not been furnished with a copy of the Enquiry Officers report. He has also not been supplied with the tentanary Authority and the reasons for its disagreement with the finding recorded by the Enquiry Officer. He has not been given any opportunity of making representation to the Disciplinary Authority even as regards the charges levelled against him. It must therefore be held that he has not been afforded reasonable opportunity as contemplated by Article 311 of the Constitution. Under the circumstances the order of removal passed by the Disciplinary Authority must be held to be illegal. It has been held by this Court in Hasmukhbhai Dhanjibha Zaveri v. R. Pathasarthy 12 Guj. L. R. 128 that the vice that attaches to an order passed in contravention of the rules of natural justice cannot be cured ex post factory by affording to the person affected thereby an opportunity to represent this case after the order is passed. An order made in breach of the principles of natural justice is void and an opportunity given to the affected person to represent his case after such an order is made cannot have the effect of resuscitating a stillborn order. Applying the ratio of the above decision to the facts of the instant case it must be held that no life can be infused in the order passed by the Disciplinary Authority which is void by supplying to the petitioner copies of the Enquiry Officers report and the Disciplinary Authoritys order containing reasons recorded by it in disagreeing with the findings recorded by the Enquiry Officer before he approached the Appellate Authority and giving him an opportunity to represent his case before the Appellate Authority. Therefore the appellate order passed by the Post Master General will be of no consequence and the action taken against the petitioner of compulsorily retiring him from service must also be held to be illegal and void. It is however made clear that the proceedings upto the stage of Enquiry Officers last report Annexure `d dated October 6 1982 are not held to be illegal. It is only the orders passed by the Disciplinary Authority and the Appellate Authority which are held to be illegal and void. It is however made clear that the proceedings upto the stage of Enquiry Officers last report Annexure `d dated October 6 1982 are not held to be illegal. It is only the orders passed by the Disciplinary Authority and the Appellate Authority which are held to be illegal and void. ( 16 ) IN the view which I am taking the petitioner shall have to be reinstated in service and the status quo ante as it existed before the passing of the impugned order Annexure `e dated December 19 1981 by the Disciplinary Authority shall have to be restored. It is stated before me that the petitioner was suspended from service from November 27 1976 to April 10 1978 It is stated that the suspension order was withdrawn and the petitioner was allowed to resume duty with effect from April 10 1978 The petitioner was therefore in regular service from April 10 1978 to December 19 1981 the date on which the Disciplinary Authority removed him from service. The petitioner shall therefor have to be reinstated in service with effect from December 19 1981 The next question which is required to be considered is with regard to salary or the arrears of salary for the period from December 19 1981 to the date on which the petitioner is reinstated in service. There is absolutely no material or evidence on record on the basis of which this question can be decided. There are no details regarding pension and other retirement benefits received by the petitioner on his being compulsorily retired from service under the order passed by the Post Master General in appeal. There is also no evidence whether or not the petitioner was gainfully employed after he was made to compulsorily retire and if he was so employed what was his income. Therefore the question of salary and/or arrears of salary will have to be left to the competent authority for decision after making inquiry and after giving opportunity of being heard to the petitioner. It will be open to the competent authority to make adjustment in regard to pension and retirement benefits and income if any earned by the petitioner after he was made to compulsorily retire from service and pay the balance of the arrears of salary to the petitioner. It will be open to the competent authority to make adjustment in regard to pension and retirement benefits and income if any earned by the petitioner after he was made to compulsorily retire from service and pay the balance of the arrears of salary to the petitioner. The competent authority shall examine this question and pass appropriate order in this regard within three months from the receipt of the writ of this court. ( 17 ) IN the result this petition is partly allowed. The impugned order Annexure `e dated December 19 1981 passed by the Director Postal Services Gujarat Circle Disciplinary Authority and the order Annexure `g dated August 13 1982 passed by the Post Master General Appellate Authority are quashed and set aside. Petitioner is reinstated in service and status quo ante which existed before the passing of the order Annexure `e of the Disciplinary Authority is restored. The respondents are directed to pay the arrears of salary for the period from December 1981 to the date of the petitioners reinstatement in service within three months from the date of the receipt of the writ of this Court. They are further directed that in case it is decided to continue the inquiry against the petitioner from the. stage of Enquiry Officers report in the light of the observations made in this judgment such enquiry shall be completed within three months from the receipt of the writ of this Court. ( 18 ) RULE made absolute to the extent stated above with costs. Rule made absolute. .