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2016 DIGILAW 1695 (GUJ)

Pravinchandra Thakarlal Jadav v. State of Gujarat

2016-08-09

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a dismissed employee of the Panchayat, has prayed for the following reliefs: "8(A) Your Lordship be pleased to admit the special civil application (B) Your Lordship be pleased to issue appropriate writ order or direction which the Hon'ble Court may deem fit and be pleased to quash and set aside the punishment order passed by the res No. 1 dtd 12/10/2007 which is annex at annexure 'A' to the present petition. (c) Pending admission, hearing and final disposal of this petition, directing the respondent to stay the order of pension cut and not recover any amount from the family pension of the petitioner, (D) such other and further relief in the necessary and interest of justice be granted." 2. The facts giving rise to this writ application may be summarized as under: 2.1 The writ applicant joined the services of the Bharuch District Panchayat on 7th April 1962 as a 'Junior Clerk'. He was posted at the Primary Health Centre, Valiya, District : Bharuch. 2.2 In the year 1977, he was promoted to the post of 'Senior Clerk'. 2.3 On 7th December 1993, he was served with a departmental chargesheet alleging misappropriation to the tune of Rs. 525/- and gross negligence in discharge of his duties. 2.4 On 3rd January 1994, he filed a detailed defence statement denying all the charges levelled against him in the chargesheet. 2.5 On issue of the departmental chargesheet, the writ applicant was placed under suspension. 2.6 The department also thought fit to lodge a First Information Report being C.R. No. I-271 of 1993 with the Rajpipla Police Station for the offence punishable under Section 409 of the Indian Penal Code. At the end of the investigation, chargesheet was filed against the writ applicant for the offence of criminal misappropriation punishable under Section 409 of the Indian Penal Code. The filing of the chargesheet culminated in a Criminal Case No. 459 of 1995 in the Court of the Judicial Magistrate, First Class, Rajpipla. 2.7 The J.M.F.C., Rajpipla, at the end of the trial, held the writ applicant guilty of the offence and passed an order of conviction and sentenced him to suffer rigorous imprisonment for one year and fine of Rs. 2,000/-. 2.7 The J.M.F.C., Rajpipla, at the end of the trial, held the writ applicant guilty of the offence and passed an order of conviction and sentenced him to suffer rigorous imprisonment for one year and fine of Rs. 2,000/-. 2.8 Being dissatisfied with the judgment and order of conviction passed by the trial Court, the writ applicant preferred the Criminal Appeal No. 6 of 2004 in the Court of the learned Sessions Judge. 2.9 The learned Additional Sessions Judge, Bharuch, camp at Rajpipla, by the judgment and order dated 28th July 2005 allowed the appeal and quashed and set aside the judgment and order of conviction passed by the trial Court. 2.10 So far as the departmental inquiry is concerned, an Inquiry Officer was appointed and at the end of the inquiry, he reached to the conclusion that the charges stood proved against the writ applicant. The Panchayat, thereafter, transferred all the papers of the inquiry to the State Government. 2.11 The State Government vide order dated 12th October 2007 imposed a penalty of forfeiture of pension for all times to come and also ordered recovery of Rs. 1166.50 from the writ applicant. 2.12 Being dissatisfied, this writ application has been filed. 3. It appears from the materials on record that although the report of Inquiry Officer is dated 16th December 1996, yet the same was kept in a sealed cover since the criminal prosecution was pending against the writ applicant. The authority concerned thought fit to open the sealed cover in 2006 i.e. almost after a period of ten years from the date of the conclusion of the inquiry. It also appears that the writ applicant attained superannuation on 31st October 2001. 4. Mr. Pandit, the learned counsel appearing for the writ applicant vehemently submitted that the impugned order passed by the State Government imposing the penalty of forfeiture of pension for all times to come by way of punishment is absolutely illegal. Mr. Pandit pointed out that in the entire impugned order, there is no reference of the judgment and order of acquittal passed by the Sessions Court. According to him, the same is suggestive of the fact that the Government failed to consider the effect of the acquittal. He further submitted that the Sessions Court acquitted the writ applicant honourably. Mr. Pandit pointed out that in the entire impugned order, there is no reference of the judgment and order of acquittal passed by the Sessions Court. According to him, the same is suggestive of the fact that the Government failed to consider the effect of the acquittal. He further submitted that the Sessions Court acquitted the writ applicant honourably. The writ applicant was not acquitted by giving the benefit of doubt, but it was a clean acquittal. According to him, the effect of the same should have been considered by the State Government. 5. Mr. Pandit submitted that in the impugned order, it has been stated that a show cause notice was issued to the writ applicant calling upon him to show cause as to why an appropriate penalty should not be imposed by way of punishment. He further clarified that at no point of time, his client had received any such show cause notice. According to him, it is incorrect to state in the impugned order that although a show cause notice was issued, yet no reply was filed by the delinquent. 6. Mr. Pandit further submitted that the impugned order is a non-speaking order. No reasons have been assigned. There is no discussion as regards the findings recorded by the Inquiry officer. According to him, the defence statement has also not been considered by the State Government before passing the impugned order. 7. Mr. Pandit also submitted that the State Government ought to have consulted the Gujarat Public Service Commission as provided in the rules. He would submit that Article 320 of the Constitution makes it obligatory for the State Government to consult the Gujarat Public Service Commission before inflicting any penalty by way of punishment. 8. Mr. Pandit submitted that his client had put in almost thirty nine years of unblemished service. The departmental chargesheet was issued in the year 1993 and the writ applicant was placed under suspension. Sometime thereafter, the order of suspension was revoked and the writ applicant was permitted to resume his service. He continued in service till the date he attained superannuation i.e. 31st October 2001. However, the inquiry continued and in the year 2006, the inquiry report was supplied to the writ applicant. For a period of ten years, the inquiry report was kept in the sealed cover since the criminal prosecution was pending. According to Mr. He continued in service till the date he attained superannuation i.e. 31st October 2001. However, the inquiry continued and in the year 2006, the inquiry report was supplied to the writ applicant. For a period of ten years, the inquiry report was kept in the sealed cover since the criminal prosecution was pending. According to Mr. Pandit, if such was the reason, then the effect of the judgment and order of acquittal passed by the Sessions Court should have been considered by the Government. 9. According to Mr. Pandit, the case is one of no evidence and the findings recorded by the Inquiry Officer could be termed as perverse. 10. Mr. Pandit submitted that even if everything as alleged is believed to be true, then the punishment imposed could be termed as shockingly disproportionate. He submitted that the 'doctrine of proportionality' be invoked and an appropriate order in that regard be passed. 11. On the other hand, this writ application has been vehemently opposed by Mr. Swapneshwar Goutam, the learned Assistant Government Pleader appearing for the State respondent and Ms. Mandavia, the learned advocate appearing for the Panchayat. The learned counsel appearing for the respondents vehemently submitted that no error, not to speak of any error of law could be said to have been committed by the State Government in passing the impugned order. It has been submitted that the acquittal in the criminal prosecution has no bearing or relevance so far as the departmental proceedings are concerned. According to them, the standard of proof in both these cases would be totally different. The standard of proof in a criminal case is beyond the reasonable doubt. But for the domestic inquiry, it has to prove the preponderance of probability. The scope of both the proceedings are quite distinct, exclusive and independent of each other. They submitted that it is not mandatory or obligatory in all cases to consult the Gujarat Public Service Commission before imposing the penalty by way of punishment. The mere failure to consult the Gujarat Public Service Commission by itself would not vitiate the impugned order. 12. The learned counsel for the respondents submitted that the allegations levelled against the writ applicant are quite of a serious nature and they have been found to have been proved in the course of the inquiry applying the principles of 'preponderance of probability'. 12. The learned counsel for the respondents submitted that the allegations levelled against the writ applicant are quite of a serious nature and they have been found to have been proved in the course of the inquiry applying the principles of 'preponderance of probability'. They submitted that a show cause notice was issued before the final order of punishment came to be passed. However, they were unable to produce the copy of the same. 13. The learned counsel for the respondents submitted that having regard to the nature of the allegations, the penalty imposed could be said to be just and proper and the 'doctrine of proportionality' will have no application. They submitted that there being no merit in this writ application, the same may be rejected. 14. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the State Government committed any error in passing the impugned order. 15. Let me first deal with the submission as regards the impugned order being a non-speaking order. According to the learned counsel appearing for the writ applicant, there is no discussion worth the name in the impugned order, and therefore, the impugned order deserves to be quashed. I am not impressed by the submission of the learned counsel. In this connection, I may profitably refer to the decision of the Supreme Court in the case of State of Madras v. Srinivasan, AIR 1966 SC 1827 . The Division Bench of the Supreme Court, speaking through Gajendragadkar, C.J., made the following observations in connection with the question as to how the disciplinary order should speak: "In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penalty on the delinquent officer we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate." 16. In another decision, the Supreme Court in the case of Tara Chanel v. Delhi Municipality [ AIR 1977 SC 567 ], speaking through Jaswant Singh J., made the following observations: "While it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case, we think, has to be judged in the light of its own facts and circumstances." 17. In view of the two decision referred to above, it is difficult for me to accept the submission that the disciplinary authority is required to record elaborate reasons while agreeing with the report of the Inquiry Officer. 18. The above takes me to consider the submission as regards the judgment and order of acquittal passed by the Sessions Court. In this connection, some clarification is necessary. I take notice of the fact that the departmental inquiry was initiated on two counts. First, on the charge of misappropriation of a particular amount, and secondly, lack of goodfaith and devotion towards duty. In this connection, some clarification is necessary. I take notice of the fact that the departmental inquiry was initiated on two counts. First, on the charge of misappropriation of a particular amount, and secondly, lack of goodfaith and devotion towards duty. The findings recorded by the Inquiry Officer are to the effect that the delinquent indulged in the financial irregularities i.e. misappropriation and had failed to maintain the books of account, vouchers, receipts, etc in a proper manner. Thus, not only the criminal misappropriation was alleged, but even negligence in discharging of his duties was alleged. The criminal prosecution for the offence punishable under Section 409 of the Indian Penal Code as such had nothing to do with the negligence in maintaining the books of account, receipts, vouchers, etc. Keeping this in mind, let me look into the law on this issue. In a very recent pronouncement of the Supreme Court in the case of S. Bhaskar Reddy and another v. Superintendent of Police and another [ (2015) 2 SCC 365 ], the Supreme Court examined the order of dismissal passed against S. Bhaskar Reddy under Rule 9(ix) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. The order of dismissal was unsuccessfully challenged before the Tribunal. The matter reached to the High Court of Andhra Pradesh. As S. Bhaskar Reddy failed even before the High Court, the matter was carried to the Supreme Court. One of the contentions before the Supreme Court was that the Tribunal and High Court had erred in not considering the undisputed fact that the appellants were honourably acquitted. It was argued that the charges in both the proceedings were almost similar. The Supreme Court while upholding the contention held as under: "21. It is an undisputed fact that the charges in the criminal case and the Disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPC and SC/ST (POA) Act. Our attention was drawn to the said judgment which is produced at Exh. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the Disciplinary proceeding are similar. Our attention was drawn to the said judgment which is produced at Exh. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the Disciplinary proceeding are similar. From perusal of the charge sheet issued in the disciplinary proceedings and the enquiry report submitted by the Enquiry Officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under 3(1)(x) of SC/ST (POA) Act and under Sections 307 and 302 read with Section 34 of the IPC. The law declared by this Court with regard to honourable acquittal of an accused for criminal offences means that they are acquitted for want of evidence to prove the charges. 22. The meaning of the expression "honourable acquittal" was discussed by this Court in detail in the case of Deputy General of Police & Anr. v. S. Samuthiram [ 2013 (1) SCC 598 , the relevant para from the said case reads as under:- "24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted." (Emphasis laid by this Court) After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in the case of Joginder Singh v. Union Territory of Chandigarh [ 2015(2) SCC 377 ]. 23. Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr [ (1999) 3 SCC 670 ] (supra), this Court has held as under:- "34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles there from". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. 35. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case." (emphasis supplied) 24. Further, in the case of G.M. Tank v. State of Gujarat and Ors [ 2006 (5) SCC 446 ] (supra), this Court held as under:- "20.......... Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. 30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law......... It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of [pic]difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." (emphasis laid by this Court) 25. The High Court has not considered and examined this legal aspect of the matter while setting aside the impugned judgment and order of the Tribunal. The Tribunal has also not considered the same. We have examined this important factual and legal aspect of the case which was brought to our notice in these proceedings and we hold that both the High Court and Tribunal have erred in not considering this important undisputed fact regarding honourable acquittal of the appellants on the charges in the criminal case which are similar in the disciplinary proceedings. 26. 26. We have answered the alternative legal contention urged on behalf of the appellants by accepting the judgment and order of the Sessions Judge, in which case they have been acquitted honourably from the charges which are more or less similar to the charges levelled against the appellants in the Disciplinary proceedings by applying the decisions of this Court referred to supra. Therefore, we have to set aside the orders of dismissal passed against the appellants by accepting the alternative legal plea as urged above having regard to the facts and circumstances of the case. " Thus, what weighed with the Supreme Court was the fact that the appellants were acquitted honourably from the charges which were more or less the same to the charges levelled against them in the disciplinary proceedings. 19. As pointed out by me above that in the case in hand the criminal prosecution was for the offence punishable under Section 409 of the Indian Penal Code, whereas the departmental proceedings were not only on the ground of misappropriation, but also of negligence in discharge of his duties. 20. There is a consensus about the legal position that the proceedings in a criminal case and departmental proceedings can go on simultaneously. The basis of this proposition is that the proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. In the departmental proceedings, factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. However, in certain exceptional circumstances, where departmental proceedings and the criminal case are based on the same set of facts and evidence, the departmental proceedings may be deferred till the conclusion of the criminal trial so that the employee or the accused may not be seriously prejudiced in his defence. This aspect of the matter has been dealt with in Delhi Cloth and General Mills Ltd. v. Kushal Bhon, AIR 1960 SC 806 ; Tata Off Mills Co. Ltd. v. Workmen, AIR 1965 SC 155 ; Jang Bahadur Singh v. Baij Nath Tewari, AIR 1969 SC 30 ; Kusheshwar Dubey v. Bharat Cooking Coal Ltd. (1988) 4 SCC 319 ; Nelson Motis v. Union of India, (1992) 4 SCC 711 ; State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 ; Depot Manager. AP SRTC v. Mohd. Ltd. v. Workmen, AIR 1965 SC 155 ; Jang Bahadur Singh v. Baij Nath Tewari, AIR 1969 SC 30 ; Kusheshwar Dubey v. Bharat Cooking Coal Ltd. (1988) 4 SCC 319 ; Nelson Motis v. Union of India, (1992) 4 SCC 711 ; State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 ; Depot Manager. AP SRTC v. Mohd. Yusuf Miya., (1997) 2 SCC 699 and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, 1999 (3) SCC 679 . 21. The conclusions which are deducible from the above decisions have been stated in para 22 of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another [supra] as follows: "(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest." 22. The learned counsel appearing for the respondents made a reference to the decisions of the Supreme Court in the Depot Manager, Andhra Pradesh Road Transport Corporation v. Mohd. The learned counsel appearing for the respondents made a reference to the decisions of the Supreme Court in the Depot Manager, Andhra Pradesh Road Transport Corporation v. Mohd. Yousuf Miya etc. [ AIR 1997 SC 2232 ], Nelson Motis (supra) as well as State of Rajasthan v. B.K. Meena and others (supra) to make a point that the scope and object of the departmental inquiry and the criminal trial are entirely different and, therefore, even if a person has been finally acquitted of the criminal charge, he cannot be forced on the department after his removal from service. There is no doubt that the legal position with regard to the nature of the two types of proceedings is quite distinct and different. The crux and gamut of all the above decisions on the point is that an offence generally implies infringement of public, as distinguished from mere private rights punishable under the criminal law. When a trial for criminal offence is conducted. it should be in accordance with the proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of a departmental inquiry. The inquiry in a departmental proceeding relates to the conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The inquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental inquiry has to be conducted expeditiously so as to effectuate the efficiency in the public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from standard point of the Evidence Act. The evidence required in the departmental inquiry is not regulated by the Evidence Act. 23. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from standard point of the Evidence Act. The evidence required in the departmental inquiry is not regulated by the Evidence Act. 23. The approach and objective in the criminal proceedings and departmental proceedings, as said above, are altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offence registered against him is established and if established, what sentence should be imposed upon him. Obviously, the standard of proof, the mode of inquiry and the rules governing the inquiry and trial in both the cases are entirely distinct and different. With a view to maintain discipline, transparency and the efficiency in the public service, the right of the disciplinary authority to punish the employee independent of the result of the criminal charge has to be conceded. It is also necessary that the departmental proceedings are conducted and completed as expeditiously as possible. It is in the interest of administration, which demands that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. 24. However, the principles discussed above should not be applied like a straight-jacket formula. At times, the Court may find that the judgment of acquittal passed by a competent Criminal Court has some bearing and the effect of the same may have to be looked into with a view to do complete justice. In the case in hand, I have noticed that the appellate Court i.e. the Sessions Court, while allowing the criminal appeal filed by the writ applicant herein, has discussed vital issues in details having a direct bearing so far as the charges which were leveled in the departmental inquiry is concerned. I have also noticed that the Sessions Court considered both the oral as well as the documentary evidence on record and reached to the conclusion that no case worth the name was made out so far as the charge of misappropriation was concerned. I have also noticed that the Sessions Court considered both the oral as well as the documentary evidence on record and reached to the conclusion that no case worth the name was made out so far as the charge of misappropriation was concerned. The findings recorded by the Sessions Court also have some bearing so far as the maintenance of the Registers, Records, Vouchers, etc is concerned. When the authority concerned thought fit to wait for almost a decade before looking into the inquiry report of the Inquiry Officer since the prosecution was pending, then it was expected of the concerned authority to at least look into the judgment and satisfy itself whether it had any bearing so far as the departmental inquiry was concerned. As I have said any principle of law should not be applied mechanically and the facts of each case must be looked into minutely. I am of the view that no harm would have befalled upon the State Government in considering the judgment. 25. The above takes me to deal with the contention as regards the failure to issue the second show cause notice with a view to give a reasonable opportunity to the writ applicant as a delinquent as regards the punishment. I take notice of the fact that in the impugned order, it has been stated that a show cause notice was issued to the writ applicant calling upon him to explain why having regard to the provisions of Rule 6(2) of the Gujarat Civil Services (Pension) Rules, 2002, the pensionary benefits should not be forfeited for all times to come. However, according to the State, despite the receipt of such show cause notice, the writ applicant failed to respond to the same. This statement in the impugned order has been seriously disputed by the writ applicant. According to the learned counsel appearing for the writ applicant, no such final show cause as sought to be indicated in the impugned order was ever issued, and if issued, then the writ applicant at no point of time was in receipt of the same. 26. In para 3.6 of the petition, this point has been raised. I also take notice of the fact that no affidavit-in-reply has been filed by any of the respondents controverting the averments made in para 3.6 referred to above. 26. In para 3.6 of the petition, this point has been raised. I also take notice of the fact that no affidavit-in-reply has been filed by any of the respondents controverting the averments made in para 3.6 referred to above. In the course of the hearing of this matter, I inquired with the learned Assistant Government Pleader as well as the learned advocate appearing for the Panchayat to show me the copy of the show cause notice said to have been issued, as indicated in the impugned order. None of the learned counsel was able to show me any copy of the show cause notice nor any proof that the same was issued and was served upon the writ applicant. 27. On the contrary, the submission canvassed on behalf of the respondents is that assuming for the moment that no such show cause notice was issued for the purpose of giving an opportunity of hearing to the delinquent employee on the point of punishment, the same would not vitiate the impugned order or render the same illegal. The submission is that in view of the 42nd Amendment in Article 311 of the Constitution with effect from 31st January 1977, it is not obligatory to issue the second show cause notice. To put it in other words, according to the learned counsel appearing for the respondents, under Article 311 of the Constitution, prior to its amendment by the Constitution (42nd Amendment) Act, 1976, the delinquent official was required to be afforded a reasonable opportunity to show cause against the action proposed to be taken against him. On conclusion of the inquiry, if the disciplinary authority is of the opinion that any major penalty should be imposed on the government servant, then the State Government shall give the government servant, a notice stating the penalty proposed to be imposed on him calling upon him to submit within the specified time such representation, as he may wish to make on the proposed penalty on the basis of evidence adduced during the inquiry. The need to give such an opportunity of making the representation on the penalty proposed was dispensed with by the 42nd Amendment with effect from 3rd January 1977. 28. The need to give such an opportunity of making the representation on the penalty proposed was dispensed with by the 42nd Amendment with effect from 3rd January 1977. 28. Thus, the question that falls for my consideration is whether the omission or failure on the part of the disciplinary authority to issue the show cause notice at the second stage could be said to have rendered the impugned order vulnerable and liable to be quashed and set aside. 29. In the case of State of Mysore v. K. Manche Gowda [ AIR 1964 SC 506 ], the Supreme Court held that under Article 311(2) of the Constitution, a Government Servant must have a reasonable opportunity not only to prove that he is not guilty of the charges leveled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment, he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment is mainly based upon the previous record of the Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him, nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. This contention misses the real point, namely, that what the government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. The Court cannot accept the doctrine of 'presumptive knowledge' or that of 'purposeless enquiry', as their acceptance will be subversive of the principle of 'reasonable opportunity'. 30. It is true that the decision of the Supreme Court in the case of K. Manche Gowda (supra) was prior to the 42nd Amendment in Article 311(2) of the Constitution. However, the deletion of second opportunity from the scheme of Article 311(2) of the Constitution has something to do only so far as the imposition of penalty by way of punishment is concerned. The deletion of second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do so far as the right of the delinquent to present his case before the disciplinary authority as regards the findings recorded by the Inquiry Officer are concerned. In this regard, I may profitably quote the decision of the Supreme Court in the case of Union of India v. Mohd. Ramzan Khan [ 1991 (1) SCC 588 ]. In this regard, I may profitably quote the decision of the Supreme Court in the case of Union of India v. Mohd. Ramzan Khan [ 1991 (1) SCC 588 ]. The short point that fell for determination before the Supreme Court was whether with the alteration of the provisions of Article 311(2) under the 42nd Amendment of the Constitution doing away with the opportunity of showing cause against the proposed punishment, the delinquent had lost his right to be entitled to a copy of the report of inquiry in the disciplinary proceedings. I may quote the observations of the Supreme Court from paras 3 to 18 as under: "3. Sub-Art. (2) of Art. 311 in the original Constitution read thus: "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;" The effect of this provision came to be considered by a Constitution Bench of this Court in Khem Chand v. Union of India, 1958 SCR 1080 : ( AIR 1958 SC 300 ). The learned Chief Justice traced the history of the growth of the service jurisprudence relating to security of the civil service in the country beginning from the Government of India Act of 1915 followed by S.240 of the Government of India Act of 1935. This Court on that occasion also noticed the judgments of the Privy Council in the cases of R. Venkata Rao v. Secretary of State for India, (1937) 64 Ind App 55 : ( AIR 1937 PC 31 ) High Commissioner for India v. 1. M. Lall (1948) 75 Ind App 225 : ( AIR 1948 PC 121 ) and the judgment of the Federal Court in Secretary of State for India v. 1. H. Lall 1945 FCR 103 : (AIR 1945 FC 47), and summed up the meaning of 'reasonable opportunity' thus: "The reasonable opportunity envisaged by the provision under consideration includes- (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally. (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposed to inflict one of the three punishments and communicates the same to the government servant." 4. The Fifteenth Amendment effective from 6-10-1963 brought about change in Sub-Art (2) which thereafter read as hereunder: "No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry 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 by a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry." 5. After the amendment this Court decided a series of cases wherein it indicated that a failure to furnish a copy of the report of the Inquiry Officer would result in violation of the guarantee of reasonable opportunity' State of Maharashtra v. Bhaishankar Avalram Joshi (1969) 3 SCR 917 : AIR 1969 SC 1302 ; Avtar Singh v. Inspector General 1968 Serv LR 131 (SC). 6. A Constitution Bench in Union of India v. H.C. Goel (1964) 4 SCR 718 : ( AIR 1964 SC 364 ) proceeded to say (at p. 367 of AIR): "Article 311 consists of two sub-articles and their effect is no longer in doubt. The question about the safeguards provided to the public servants in the matter of their dismissal, removal or reduction in rank by the Constitutional provision contained in Art. 311, has been examined by this court on, several occasions. It is now well-settled that a public servant who is entitled to the protection of Art. 311 must get two opportunities to defend himself. He must have a clear notice of the charge which he is called upon to meet before the departmental enquiry commences, and after he gets such notice and is given the opportunity to offer his explanation, the enquiry must be conducted according to the rules and consistently with the requirements of natural justice. He must have a clear notice of the charge which he is called upon to meet before the departmental enquiry commences, and after he gets such notice and is given the opportunity to offer his explanation, the enquiry must be conducted according to the rules and consistently with the requirements of natural justice. At the end of the enquiry, the enquiry officer appreciates the evidence, records his conclusions and submits his report to the Government concerned. That is the first stage of the enquiry, and this stage can validly begin only after charge has been served on the delinquent public servant. After the report is received by the Government, the Government is entitled to consider the report and the evidence led against the delinquent public servant. The Government may agree with the report or may differ, either wholly or partially, from the conclusions recorded in the report. If the report makes findings in favour of the public servant, and the Government agrees with the said findings, nothing More remains to be done, and the public servant who may have been suspended is entitled to reinstatement and consequential reliefs. If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf. If the enquiry officer makes findings, some of which are in favour of the public servant and some against him, the Government is entitled to consider the whole matter and if it holds that some or all the charges framed against the public servant are, in its opinion, prima facie established against him, then also the Government has to decide provisionally what punishment should be imposed on the public servant and give him notice accordingly. It would thus be seen that the object of the second notice is to enable the public servant to satisfy the Government on both the counts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him, the punishment proposed to be inflicted upon him is unduly severe. This position under Art. 311 of the Constitution is substantially similar to the position which governed the public servants under S. 240 of the Government of India Act, 1935." 7. Then came the Forty-Second Amendment of the Constitution under which the sub-Art. (2) was substantially altered. As amended in 1976 the sub-article now reads: "No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry 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:" In terms, the omission of the words 'and where it is proposed, after such inquiry, to impose on him any other 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' as also the proviso clearly omit the second part of the inquiry as envisaged in Goel's case ( AIR 1964 SC 364 ) and the concept of 'reasonable opportunity is satisfied by the delinquent being informed of the charges and of being heard in respect thereof. 8. We may now refer to the rules relating to disciplinary inquiry against government servants. The Central Civil Services (Classification, Control and Appeal) Rules in force are of 1965. In the States they have their own Rules but the Rules whether of the Centre or of the States have adopted a common pattern. In respect of major penalties, the procedure in the Rules (see Rule 14) seems to be that the disciplinary authority may himself hold the inquiry into the charges or he may appoint an Inquiry Officer who would conduct the inquiry and submit the proceedings of enquiry to the disciplinary authority for being finalised. When the disciplinary authority himself inquires into the charges there is no occasion for submission of an inquiry report. The entire evidence - oral and documentary - along with submissions, if any, are available to him to proceed to arrive at final conclusions in the inquiry. When the disciplinary authority himself inquires into the charges there is no occasion for submission of an inquiry report. The entire evidence - oral and documentary - along with submissions, if any, are available to him to proceed to arrive at final conclusions in the inquiry. Where, however, the disciplinary authority delegates the inquiry to another, such Inquiry Officer may furnish a report on the basis of the evidence recorded by him and in some cases the Inquiry Officer even recommends the punishment to be imposed. In cases where the Inquiry Officer merely transmit the records of inquiry proceedings to the disciplinary authority there is indeed no distinction to be drawn between the inquiry conducted by the disciplinary authority himself or the inquiry officer. This is so on account of the fact that there is no further material added to the record at the time of transmission to the disciplinary authority. 9. Where, however, the Inquiry Officer furnishes a report with or without proposal of punishment the report of the Inquiry Officer does constitute an additional material which would be taken into account by the disciplinary authority in dealing with the matter. In cases where punishment is proposed there is an assessment of the material and a tentative conclusion is reached for consideration of the disciplinary authority and that action is one where the prejudicial material against the delinquent is all the more pronounced. 10. A Three-Judge Bench of this Court in State of Gujarat v. R.G. Teredesai, (1970) 1 SCR 251 : ( AIR 1969 SC 1294 ) has indicated that the Inquiry Officer was under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the government servant against whom the departmental inquiry is held and his function merely is to conduct the inquiry in accordance with law and to submit the record along with the findings or conclusions on the delinquent servant. But if the Inquiry Officer has also made. recommendations in the matter of punishment, that is likely to affect the mind of the punishing authority with regard to penalty or punishment to be imposed on such officer which must be disclosed to the delinquent officer. But if the Inquiry Officer has also made. recommendations in the matter of punishment, that is likely to affect the mind of the punishing authority with regard to penalty or punishment to be imposed on such officer which must be disclosed to the delinquent officer. Since such recommendation forms part of the record and constitutes appropriate material for consideration of the Government, it would be essential that that material should not be withheld from him so that he could while showing cause against the proposed punishment make a proper representation. The entire object of supplying a copy of the report of the Inquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. At p. 254 (of SCR) : (at p. 1296 of AIR) of the Reports Grover, J. speaking for this Court stated: "The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Inquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant." Another three-Judge Bench decision of this Court is that of Uttar Pradesh Government v. Sabir Hussain, (1975) Suppl. SCR 354: ( AIR 1975 SC 2045 ) where this Court held (at p.2049 of AIR): "In view of these stark facts the High Court was right in holding that the plaintiff (respondent) was not given a reasonable opportunity to show cause against the action proposed to be taken against him and that the non-supply of the copies of the material documents had caused serious prejudice to him in making a proper representation." 11. 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 on the punishment imposed. 12. We have already noticed the position that the Forty-Second Amendment has deleted the second stage of the inquiry which would commence with the service of a notice proposing one of the three punishments mentioned in Art. 311 (1) and the delinquent officer would represent against the same and on the basis of such representation and/or oral hearing granted the disciplinary authority decides about the punishment. Deletion of this part from the concept of reasonable opportunity in Art. 311(2), in our opinion, does not bring about any material change in regard to requiring the copy of the report to be provided to the delinquent. 13. Several pronouncements of this Court dealing with Art. 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 Art. 311(2) prior to the 42nd amendment were Judicial. That perhaps was a little stretching the position. Even if it 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 facets do make the matter quasi-judicial and attract the, principles of natural justice. As this Court rightly pointed out in the Gujarat case ( AIR 1969 SC 1294 ), 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 recommendation 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 an 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: "The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. Prof. Wade has pointed out: "The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly." (Administrative Law) 14. This Court in Mazharul Islam Hashmi v. State of U.P., (1979) 4 SCC 537 : ( AIR 1979 SC 1237 ) 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." 15. Deletion of the second opportunity from the scheme of Art.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 Art.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 or some of the charges are established and holding the delinquent guilty of such charges. For doing away 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 proceeding 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. 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 recommendations, 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. 16. At the hearing some argument had been advanced on the basis of Art. 14 of the Constitution, namely, that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be. This argument has no foundation inasmuch as where the disciplinary authority is the Inquiry Officer there is not report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Even otherwise, the inquiries which are directly handled by the disciplinary authority and those which are allowed to be handled by the Inquiry Officer can easily be classified into two separate groups - one, where there is no inquiry report on account of the fact that the disciplinary authority is the Inquiry Officer and inquiries where there is a report on account of the fact that an officer other than the disciplinary authority has been constituted as the Inquiry Officer. That itself would be a reasonable classification keeping away the application of Art. 14 of the Constitution. 17. There have been several decisions in different High Courts which, following the Forty-Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger Bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two-Judge Bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground. 18. We make it clear that wherever 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." 31. To say that the delinquent need not be heard by the disciplinary authority on the point of penalty or punishment is different than saying that the delinquent need not be heard at all by the disciplinary authority so far as the findings recorded by the Inquiry Officer are concerned. Ordinarily, after the departmental chargesheet is issued, the delinquent would file his reply to the same. Thereafter, an Inquiry Officer would be appointed and he would conduct the inquiry and file his report. The disciplinary authority, thereafter, would consider the findings recorded by the Inquiry Officer and proceed to take an appropriate decision as regards the guilt of the delinquent. I am of the firm view that a delinquent has a right either by way of a representation in writing or by way of a personal hearing to say something as regards the findings recorded by the Inquiry Officer are concerned. He should have a right to convince the disciplinary authority that no case is made out and the findings recorded by the Inquiry Officer are based on either 'no evidence' or 'perverse'. He should have a right to convince the disciplinary authority that no case is made out and the findings recorded by the Inquiry Officer are based on either 'no evidence' or 'perverse'. To this extent, it is obligatory on the part of the disciplinary authority to issue a notice to the delinquent along with a copy of the inquiry report with a view to give him an opportunity to meet with the findings recorded by the Inquiry Officer. Thereafter, the disciplinary authority need not hear the delinquent on the point of penalty. 32. In the case in hand, it appears that no such opportunity was given to the writ applicant and straight-way the order of dismissal came to be passed by the State Government forfeiting the pensionary benefits for all times to come. 33. The above takes me to deal with the fourth contention canvassed on behalf of the writ applicant as regards the omission or failure to consult the Gujarat Public Service Commission before passing the impugned order. The submission is that nowhere in the impugned order, it has been stated that the Gujarat Public Service Commission was consulted by the State Government, as provided under Article 320 of the Constitution and the failure to do so has rendered the impugned order illegal and liable to quashed and set aside. 34. It is well settled that the consultation with the Public Service Commission has laid down by Article 320(3)(c) of the Constitution is not mandatory and non-compliance with the said provisions does not vitiate order passed against a government servant. The Supreme Court in the State of U.P. and another v. Manbodhan Lal Srivastava [ AIR 1957 SC 912 ], has held that Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution or of the Supreme Court under Article 32 of the Constitution. It is not a right which could be recognized and enforced by a writ. It is not a right which could be recognized and enforced by a writ. The Supreme Court further held that it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Article 320(3)(c) could have the effect of nullifying the final order of dismissal from service passed by the Government. 35. In Major U.R. Bhatt v. Union of India [ AIR 1962 SC 1344 ], their Lordships of the Supreme Court held that the Article 320(3)(c) of the Constitution of India (which is substantially the same as Section 266 of the Government of India Act 1935) is not mandatory and it does not confer any rights on the public servant, and the absence of consultation with the Public Service Commission or any irregularity in consultation does not afford him a cause of action in a Court of law. Article 311 of the Constitution is not controlled by Article 320. 36. In Ram Gopal Chaturvedi v. State of Madhya Pradesh [ 1970 (1) LLJ 367 (SC)], the Supreme Court once again reiterated that the provisions of Article 320(3)(c) are not mandatory and do not confer any rights on the public servant to challenge the termination of service on the ground of absence of consultation with the State Public Service Commission. Thus, in view of the settled law, the argument as regards absence of consultation with the Gujarat Public Service Commission stands rejected outright. 37. In view of the aforesaid discussion, I am inclined to remit this matter to the State Government for fresh consideration after giving an opportunity of hearing to the delinquent. The State Government shall consider the judgment and order of acquittal passed by the Sessions Court and also hear the writ applicant so far as the findings recorded by the Inquiry Officer are concerned. 38. The State Government shall consider the judgment and order of acquittal passed by the Sessions Court and also hear the writ applicant so far as the findings recorded by the Inquiry Officer are concerned. 38. Let me clarify that the legal controversy on the question whether the expression, "reasonable opportunity" in Article 311(2) of the Constitution includes or not has been settled by the Supreme Court in the case of S. Kapur Singh v. Union of India [ AIR 1960 SC 493 ] holding that an opportunity of making an oral representation not being in our view a necessary postulate of an opportunity of showing cause within the meaning of Article. However, in the peculiar facts of the case, I have thought fit to direct the State Government to give personal hearing to the writ applicant and thereafter pass a fresh order in accordance with law. 39. The authority concerned shall fix a particular date and inform about the same to the writ applicant in writing well-in-advance. The writ applicant shall personally remain present before the authority concerned and make his submissions as regards the findings recorded by the Inquiry Officer. He may also point out other relevant aspects of the matter including his service record. 40. Let the entire exercise be undertaken at the earliest and completed within a period of two months from the date of the receipt of this order. 41. It is needless to clarify that if the writ applicant is dissatisfied in any manner with the fresh order that the State Government may pass, then it shall be open for him to challenge the same before this Court in accordance with law. 42. With the above observations and directions, this writ application is disposed of. Direct service is permitted.