JUDGMENT 1. - The petitioner who joined Government service as Patwari, was served with a memorandum dated 4.4.88 issued under rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, whereby an enquiry was proposed against the petitioner in respect of 4 charges levelled against him. The petitioner submitted a reply to the charge sheet in the month of September, 88 and denied that charges. By an order dated 15.11.88 the Sub Divisional Officer, Beawar was appointed as Enquiry Officer. This, according to the petitioner was done without application of mind to the reply filed by the petitioner. Evidence of the department as well as defence were recorded by the Enquiry Officer. The petitioner has, of course, alleged that statement of some witnesses were recorded ex parte without any justification. The petitioner submitted written arguments on 12.6.89 and at the same time made request to the Collector for change of the enquiry. This request was turned down by the Collector (Land records), Ajmer vide letter dated 1.3.90. The Enquiry Officer submitted a report and on the basis of that report the Collector, Ajmer passed an order dated 14.8.91 and imposed a penalty of dismissal from service on the petitioner. The petitioner has asserted that a copy of the enquiry report was not made available to him before passing of the order of punishment. 2. The petitioner has challenged the order of punishment on several grounds. He has asserted that the enquiry has not been held by a legally appointed Enquiry Officer. He was not given opportunity of defending himself and above all a copy of the enquiry report was not made available to the petitioner before passing of the order of punishment. He was not given any opportunity to make representation against the enquiry officer. He has stated that on 25.7.91 Collector of Ajmer had given him opportunity of personal hearing. During course of hearing he had brought to the notice of the Collector the pronouncement of the Supreme Court in Union of India v. Mohd. Ramjan Khan and also of this Court in Tej Karan Jain v. State of Rajasthan to the effect that it is necessary to furnish a copy of enquiry report to the delinquent before an order of punishment can legally be passed, but both the decisions have been ignored by the Collector, Ajmer in passing the order of punishment. 3. Ramjan Khan and also of this Court in Tej Karan Jain v. State of Rajasthan to the effect that it is necessary to furnish a copy of enquiry report to the delinquent before an order of punishment can legally be passed, but both the decisions have been ignored by the Collector, Ajmer in passing the order of punishment. 3. This writ petition was admitted on 28.8.91 and having regard to the main contention raised on behalf of the petitioner that copy of enquiry report was not given to him before passing the order of punishment, notice was given to the learned additional Government Advocate. 4. I have heard the learned Counsel for the petitioner and learned Dy. Government Advocate. The main argument which has been advanced by the learned Counsel for the petitioner is that the order of punishment passed against the petitioner is liable to be quashed because it has been issued in violation of the provision contained in Article 311 of the Constitution of India, rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rule, 1958 as well as the principles of natural justice. Shri Samdaria, learned Counsel for the petitioner has vehemently argued that under the scheme of rule 16 as it stands even after amendment made in the year 1983, it is obligatory for the disciplinary authority to give a copy of the enquiry report to the delinquent employee before an order of major punishment can be passed. He has placed reliance on the decision of the Supreme Court in Union of India v. Mohd. Ramjan Khan, AIR 1991 SC 471 and Tej Karan Jain v. State of Rajasthan, 1991 (1) Western Law Cases (Raj.) 102. 5. Article 311 provided for issue of second show cause notice containing a proposal for punishment to be imposed on the delinquent employee after the conclusion of the enquiry. This provision was deleted by virtue of 42nd Constitutional Amendment Act, 1977. Similar amendment was made under rule 16 (10) by notification dated 21.6.83. 5. Article 311 provided for issue of second show cause notice containing a proposal for punishment to be imposed on the delinquent employee after the conclusion of the enquiry. This provision was deleted by virtue of 42nd Constitutional Amendment Act, 1977. Similar amendment was made under rule 16 (10) by notification dated 21.6.83. I have discussed the entire question at length in Tej Karan Jain's case (supra) the following question was posed in Tej Karan Jain's case:- "Can it be said that by virtue of amendment of rule 16(10) the requirement of giving a copy of the inquiry report or the findings of the inquiring officer and giving of an opportunity to the delinquent employee to make his representation against such findings or the report stands excluded by implication." While answering the aforesaid question, the Scheme of Article 311 was examined and then it was observed. "So far as Article 3,11(2) of the Constitution of India is concerned, even after amendment, it guarantees a reasonable opportunity to the delinquent employee to show cause against the charges levelled against him during the course of inquiry. What meaning should be scribed to this term 'reasonable opportunity' and what is the extent and scope of the same ? The report of the inquiry officer constitutes a very important material, on which the ultimate findings of the disciplinary authority rest. The inquiry officer inquires into the charges, records the evidence and the charging officer is permitted to produce witnesses, cross examine the witnesses and challenge the evidence during inquiry, but the inquiry does not conclude at that stage. The inquiry concludes only after the material is considered by the disciplinary authority. This material includes the inquiry Officer's report and the record containing findings on the charges. In fact, in large number of cases, the disciplinary authority does not hold this inquiry, but delegates this function to some other officer. The inquiry Officer records the oral as well as documentary evidence. The delinquent is entitled to rebut the evidence produced by the department before the inquiry officer. He can produce his own evidence oral as well as documentary. It is for the inquiry officer to consider the material and then record a finding as to whether the charge is established or not. The delinquent is entitled to rebut the evidence produced by the department before the inquiry officer. He can produce his own evidence oral as well as documentary. It is for the inquiry officer to consider the material and then record a finding as to whether the charge is established or not. The disciplinary authority has to act on the report of the inquiry officer, which constitutes a part and parcel of the record of inquiry. If he disagrees with the report of the inquiry officer, reasons have to be recorded by it as per the requirement of Rule 16(9) and also Rule 16(12). If the inquiry officer submits a report, which is adverse to AIR 1991 SC 471 2 1991 (1) Western Law Cases (Raj.) 102. the delinquent, certainly it constitutes a material, which is always open to be used by the disciplinary authority against the delinquent. In State of Assam v. Vimal Kumar Pandit, AIR 1991 SC 471 , their Lordships of the Supreme Court held that the disciplinary authority has to consider the inquiry officer's report before recording its own finding on the charges. In State of Maharashtra v. Bhai Shanker Avatram Joshi and others, AIR 1969 SC 1302 and also in Narain Mishra v. State of Orrisa, 1969 SLR 657 the Supreme Court held that if the disciplinary authority wanted to rely on the charges, of which the delinquent was acquitted with warning that the same was going to be used against him, it was all against the principles of fair play and natural justice. The delinquent ought to have been appraised of the intention of the disciplinary authority to ignore the findings of the inquiry officer and give him an adequate opportunity of defending himself. From the above observations of the Supreme Court, it is clear that if the inquiry officer submits a report and that report is against the charged officer, since the report constitutes material, the charged officer must have an opportunity to make his representation against the report. With such an opportunity he may be able to satisfy the disciplinary authority that the inquiry Officer's report does not contain proper appreciation of evidence or that it has ignored the material evidence or that the factors which are favourable to him have not been considered or that the conclusions drawn by the inquiry officer about the charges are not correct. Even if the report is favourable, it may not bring out all points. At times, the inquiry officer may ignore the important points supporting the delinquent. The disciplinary authority itself may not be in a position to fully appreciate such points and if opportunity is not afforded to the delinquent, serious prejudice would be caused. It would offend the principles of natural justice. Thus where ever the report is adverse to the delinquent or where ever the disciplinary authority records reasons for disagreement with the report, the disciplinary authority must comply with the principles of natural justice by giving a copy of the report to the delinquent and give him an opportunity of making his representation against the inquiry report or the reasons for disagreement. Article 311 as it stands amended or Rule 16(10) after its amendment only excludes giving of second show cause notice against the proposed penalty. In my opinion, it does not by implication exclude the requirement of supply of copy of adverse material, namely, the inquiry report and/or the findings of the inquiry officer, which is nothing but a requirement of the principles of natural justice. It is no doubt true that the disciplinary authority is not required to hold an inquiry at which evidence of witnesses viva voce is to be recorded if at the earlier stage there has been fair and full inquiry before the inquiry officer, but I am not persuaded to agree with the submission of the learned Additional Government Advocate that after receipt of the report of inquiry officer by the disciplinary authority, the delinquent has no right whatsoever to make representation against the charges levelled against him before the disciplinary authority. The departmental proceedings continue till the disciplinary authority takes a final decision in respect of the charges levelled against the delinquent. The proceedings conclude only when final order is passed by the disciplinary authority after recording its finding on the charges levelled against the Government servant as required by Rule 16(9) of 1958. The order of punishment can be passed by the disciplinary authority on the basis of its findings. It is only at the stage of passing of final order of punishment that the delinquent is not required to be heard as per amended Article 311(2) of the Constitution of India and Rule 16(10) of 1958 Rules. The order of punishment can be passed by the disciplinary authority on the basis of its findings. It is only at the stage of passing of final order of punishment that the delinquent is not required to be heard as per amended Article 311(2) of the Constitution of India and Rule 16(10) of 1958 Rules. However, till the 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 there would be a clear denial of opportunity of hearing if he is not given an opportunity of making representation against the findings recorded by the disciplinary authority. This is possible only if the report of the inquiry officer which contains findings on the charges levelled against the delinquent is made available to him." 6. 1 further observed, the question about supply of copy of inquiry report had come up for consideration before a learned single judge of this Court in Ram Singh v. RSRTC, 1986 (1) Judicial Surveyor 129 (per A.K. Mathur, J.). Learned Single Judge held that even though there was no specific requirement of the Standing Order that a report of the inquiry officer should be made available to the delinquent, requirements of principles of natural justice warranted that such report should be made available to him. 7. This question has been examined by their lordships of the Supreme Court in Union of India v. Mohd. Ramjan Khan, J.T. 1990 (4) SC 456 The question regarding requirement of supply of copy of the report has been formulated in the following words in para 11 of the said judgment : "The question which has now to be answered is whether the Forty-second Amendment has brought about any change in the position in the matter of supply of a copy of the report and the effect of non-supply thereof one the punishment imposed. After considering various decisions of the Supreme Court, their Lordships concluded that deletion of the requirement of second show cause notice is immaterial and then proceeded to make the following observations: "Several pronouncements of this Court dealing with Article 311(2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This court on one occasion has stated that two phases of the inquiry contemplated under Article 311(2) prior to the 42nd amendment were judicial. This court on one occasion has stated that two phases of the inquiry contemplated under Article 311(2) prior to the 42nd amendment were judicial. That perhaps was a little stretching the position. Even if it 1 1986 (l) Judicial Surveyor 129 2 J.T. 1990 (4) SC 456 does not become a judicial proceeding there can be no dispute that it is a quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facts do make the matter quasi-judicial and attract the principles of natural justice. As this court lightly pointed out in the Gujarat case, the disciplinary authority is very often influenced by the conclusions of the inquiry officer and even by the recommendations relating to the nature of punishment to be inflicted. With the forty-second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendations as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is as adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge, of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof. Wade has pointed out : (Administrative Law) This court in Mazharut Islam Hasmi v. State of U.P. and Anr., 1979 (4) SCC 537 pointed out: "Every person must know what he is to meet and he must have opportunity of meeting that case. The legislature however, can exclude operation of these principles expressly or implicitly. Prof. Wade has pointed out : (Administrative Law) This court in Mazharut Islam Hasmi v. State of U.P. and Anr., 1979 (4) SCC 537 pointed out: "Every person must know what he is to meet and he must have opportunity of meeting that case. The legislature however, can exclude operation of these principles expressly or implicitly. But in the absence of any such exclusion, the principle of natural justice will have to be proved." "Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges of some of the charges are established and holding the delinquent guilty of such charges. For doing away 1 1979 (4) SCC 537 with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceedings completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an Inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the Inquiry report along with commendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would therefore, be entitled to the supply of a copy thereof. We, therefore, come to the conclusion that supply of a copy of the Inquiry report along with commendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would therefore, be entitled to the supply of a copy thereof. The Forty Second Amendment has not brought about any change in this position." The Court further observed "We make it clear that where ever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter." 8. This question has also been examined by a learned Single Judge of this Court in M.K. Soni v. State of Rajasthan, SBCWP No. 4191/89 D/-on 4.12.1990. (Raj.) at Jodhpur (per M.R. Calla, J.). After taking note of the decision of the Hon'ble Supreme Court in Mohd. Ramjan Khan's case, Calla, J. has held that the order of punishment passed without giving copy of inquiry report and affording an opportunity of making representation to the delinquent Government servant is violative of the principles of natural justice and is, therefore, liable to be set aside. In that case, the Court has categorical held that the law laid down in Mohd. Ramjan Khan's case will apply to all cases where punishment is under challenge, but will not apply to the cases where punishment has become final. 9. While dealing with the question about applicability of these principles in an enquiry held under rule 16 of 1958, Rules it has been observed that, "Though the decision in Mohd. Ramjan Khan's case dealt with the scope of Article 311(2) of the Constitution of India after its amendment by 42nd Constitution Amendment Act and a provision like Rule 16(10) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was not under consideration before their Lordships of the Supreme Court, I am of the view that the principles laid down in Mohd. Ramjan Khan's case are fully applicable to the inquiries held under Rule 16 of 1958 Rules. Rule 16 had been amended by notification dated 21.6.1983 only with a view to bring it in conformity with the provisions of Article 1 SBCWP No. 4191/89 D/- on 4.12.1990 (Raj.) 311(2) of the Constitution of India after its amendment by 42nd Constitution Amendment Act. Rule 14 of 1958 Rules specifies several types of penalties, minor as well major, which may be imposed on a Government servant for good and sufficient reasons to be recorded in writing. Rule 16 lays down the procedure, which has to be followed before the order imposing any of the major penalties under Rule 14 could be passed. Article 311 of the Constitution no doubt deals with only 3 types of punishment, namely, dismissal, removal or reduction in rank, but when supply of copy of inquiry report has been held to be sine qua non for compliance of the requirements or reasonable opportunity or the principles of natural justice, it must be held that for imposing any of the major penalties specified in Rule 14, when inquiry is held under Rule 16, it is obligatory for the disciplinary authority to furnish a copy of the findings of the inquiry officer or the inquiry report to the delinquent and give him an opportunity of making his representation against such findings and/or report. This implicit requirement of the principles of natural justice to supply a copy of inquiry report is also born out from the language of Rule 16(12) of 1958 Rules. A plain reading of -Rule 10(12) quoted here in above shows that the order passed by the disciplinary authority is required to be communicated to the Government servant. The disciplinary authority is also required to supply copy of report of the Inquiring Authority and where the disciplinary authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him...... The words 'unless they have already been supplied to him are very vital. From these words, it can be inferred that in the scheme of Rule 16, there is a requirement to supply copy of the inquiry report prior to the passing of order. The words 'unless they have already been supplied to him are very vital. From these words, it can be inferred that in the scheme of Rule 16, there is a requirement to supply copy of the inquiry report prior to the passing of order. The reasons for disagreement are also required to be supplied to the delinquent Government servant. 10. Thus it must be held that Rule 16(10) of 1958 Rules as it stands amended by notification dated 21.6.1983 does not. exclude the requirement of supply of copy of the inquiry report and/or findings of the inquiry officer to the delinquent Government servant and an opportunity to him to make representation against the same before final order is passed by the disciplinary authority. The disciplinary authority is under an obligation to consider such representation of the delinquent Government servant before passing the order of punishment. 11. In the light of the decision which has been referred herein above it has to be held that supply of copy of enquiry report and giving of opportunity to make representation against the findings recorded by the enquiry officer are mandatory requirement of law and the principles of natural justice. No major penalty specified either in Articles 311 or under rule 14 of 1958 Rules can be imposed without compliance of the aforesaid requirement. 12. In the present case equity report has been not made available to the petitioner and he was not given opportunity of making representation before passing of the order of punishment on 14.8.91. The order of punishment is, therefore, liable to be declared illegal.The writ petition is allowed. The order dated 14.3.91 is declared illegal and is hereby quashed. The petitioner shall be entitled to get all consequential benefits. It shall, however, be open to the respondents to pass an appropriate order in accordance with law after giving copy of enquiry report to the petitioner and after giving him an opportunity to make representation against findings recorded by the enquiry officer. Parties are left to bear their own costs.Case law discussed. *******