UOI v. Yogita Swaroop and Anr

BADAR DURREZ AHMED, J

V.K.JAIN, J JANUARY 13, 2012 'sn'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on 13.01.2012 + W.P.(C) 265/2012 UNION OF INDIA … Petitioner versus YOGITA SWAROOP & ANR. … Respondents Advocates who appeared in this case: For the Petitioner : Mr R.V.Sinha For Respondent No.1 : Mr S.K.Dubey For Respondent No.2 : Mr Naresh Kaushik CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR. JUSTICE V.K.JAIN BADAR DURREZ AHMED (ORAL) 1. In this writ petition, the order dated 14.11.2011 passed in O.A.No.504/2011 by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as "the Tribunal") is under challenge. The impugned order dated 14.11.2011 is itself a second round of litigation. In the first round, the Tribunal itself had remitted the matter to the Disciplinary Authority for reviewing the case from the angle of proportionality of the penalty. 2. The main plea before the Tribunal in the second round was that the respondent No.1 was prejudiced by non-supply of the UPSC advice dated 18.11.2009, which had been relied upon in the penalty order dated 26.11.2009. On behalf of the petitioner herein, reliance was placed on the decision of the Supreme Court in the case of Union of India v. T.V.Patel: 2007 (4) SCC 785. However, the Tribunal noted that there was a subsequent decision of the Supreme Court in the case of Union of India & Others v. S.K.Kapoor: 2011 (4) SCC 589 in which the decision of Union of India v. T.V.Patel (supra) had been held to be per incuriam. The relevant portion of the decision in Union of India & Others v. S.K.Kapoor (supra), is as under:- "10. In the aforesaid decision, it has been observed in para 25 that "the provisions of Article 320(3) (c) of the Constitution of India are not mandatory". We are of the opinion that although Article 320 (3) (c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel"s case is clearly distinguishable. 11. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. 12. This is also the view taken by this Court in the case of S.N.Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004. 13. It may be noted that the decision in S.N.Narula (supra) was prior to the decision in T.V.Patel"s case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula"s case (supra was not noticed in T.V.Patel"s case (supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula"s case(supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court." 3. The Supreme Court in Union of India & Others v. S.K.Kapoor (supra), also observed that although the opinion/advice of the UPSC is not mandatory, if the authorities do consult the UPSC and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Following this decision of the Supreme Court, the