# INDU BHUSHAN DWIVEDI v. STATE OF JHARKHAND AND ANR - **Citation:** [2010] 7 S.C.R. 465 - **Court:** Supreme Court of India - **Decided:** 2010-07-05 - **Case number:** Civil Appeal No. 4888 of 2010 - **Bench:** G.S. Singhvi, C.K. Prasad - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indu-bhushan-dwivedi-v-state-of-jharkhand-and-anr-26914 - **Pages:** 31 ## Headnote A B Service Law - Misconduct - Charges of insubordination and indiscipline against appellant-Judicial Magistrate - Proved in disciplinary inquiry - High Court recommended C dismissal of appellant, after taking into consideration his past adverse record, but without informing him that the same were being relied upon for deciding the quantum of punishment - Dismissal challenged as being vitiated due to violation of the rules of natural justice - A/so, quantum of punishment D challenged as being totally disproportionate to the charges found proved against the appellant - Held: Since the uncommunicated adverse remarks contained in the Annual Confidential Reports of the appellant became foundation of the decision taken by the High Court to recommend his E dismissal from service and he was not noticed about the proposed consideration of those remarks, it must be held that the appellant was seriously prejudiced -Also, the charges proved were not that serious which warranted imposition of the extreme penalty of dismissal from service - High Court F directed to consider the issue of quantum of punishment afresh and make fresh recommendation to State Government after giving an opportunity to the appellant to make appropriate representation - Natural justice - Rule of audi alteram partem - Violation of. The appellant was a Sub-Divisional Judicial Magistrate. Regular departmental Inquiry was held against him on three charges, viz. 1) that after having consumed liquor, he had misbehaved and manhandled 465 466 SUPREME COURT REPORTS [2010] 7 S.C.R. A an accused and a constable; 2) that he had left the headquarters without seeking permission from the Registrar General of the High Court in violation of the direction contained in an order given by it and 3) that he had used derogatory words qua the communication sent B by the High Court. The first charge was not found to be proved. The other two charges were however found proved by the Inquiry Officer. Thereafter, the High Court recommended the dismissal of appellant from service. The C recommendation was accepted by the State Government. Appellant filed writ petition before the Division Bench of the High Court, contending that the dismissal order was vitiated due to violation of the rules of natural justice D because while recommending his dismissal from service, the High Court had considered un-communicated adverse remarks recorded in the Annual Confidential Reports of the appellant without informing him that the same were being relied upon for deciding the quantum E of punishment. Another ground taken by the appellant was that the punishment of dismissal from service was totally disproportionate to the charges found proved against him. The Division Bench of the High Court set aside the punishment of dismissal but imposed upon the F appellant the punishment of compulsory retirement. Before this Court, the appellant urged that the action taken against him was not only against the basics of natural justice but was wholly arbitrary, unreasonable and unjustified. The appellant submitted that even if the G findings recorded by the Inquiry Officer in respect of two charges are held to be correct, there was no justification to impose the punishment of dismissal ignoring that in his long service career he was not found guilty of any other act of insubordination or indiscipline. The appellant H argued that when charge no.1, which was extremely INDU BHUSHAN DWIVEDI v. STATE OF 467 JHARKHAND AND ANR. serious in nature was not found proved, the High Court A could not have imposed extreme penalty of dismissal from service by simply relying upon un-communicated adverse remarks recorded in his Annual Confidential Reports. B The appellant contended that the Division Bench of the High Court should have set aside the order which was subject matter of challenge in the writ petition and directed the respondents to pass fresh orders after communicating adverse remarks to the appellant and C giving him an opportu ## Text _Characters 0–39,941 of 58,631. This is a partial read: ask again with offset=39941 for what follows._ [2010] 7 S.C.R. 465 INDU BHUSHAN DWIVEDI v. STATE OF JHARKHAND AND ANR. (Civil Appeal No. 4888 of 2010) JULY 05, 2010 [G.S. SINGHVI AND C.K. PRASAD, JJ.] A B Service Law - Misconduct - Charges of insubordination and indiscipline against appellant-Judicial Magistrate - Proved in disciplinary inquiry - High Court recommended C dismissal of appellant, after taking into consideration his past adverse record, but without informing him that the same were being relied upon for deciding the quantum of punishment - Dismissal challenged as being vitiated due to violation of the rules of natural justice - A/so, quantum of punishment D challenged as being totally disproportionate to the charges found proved against the appellant - Held: Since the uncommunicated adverse remarks contained in the Annual Confidential Reports of the appellant became foundation of the decision taken by the High Court to recommend his E dismissal from service and he was not noticed about the proposed consideration of those remarks, it must be held that the appellant was seriously prejudiced -Also, the charges proved were not that serious which warranted imposition of the extreme penalty of dismissal from service - High Court F directed to consider the issue of quantum of punishment afresh and make fresh recommendation to State Government after giving an opportunity to the appellant to make appropriate representation - Natural justice - Rule of audi alteram partem - Violation of. The appellant was a Sub-Divisional Judicial Magistrate. Regular departmental Inquiry was held against him on three charges, viz. 1) that after having consumed liquor, he had misbehaved and manhandled 465 466 SUPREME COURT REPORTS [2010] 7 S.C.R. A an accused and a constable; 2) that he had left the headquarters without seeking permission from the Registrar General of the High Court in violation of the direction contained in an order given by it and 3) that he had used derogatory words qua the communication sent B by the High Court. The first charge was not found to be proved. The other two charges were however found proved by the Inquiry Officer. Thereafter, the High Court recommended the dismissal of appellant from service. The C recommendation was accepted by the State Government. Appellant filed writ petition before the Division Bench of the High Court, contending that the dismissal order was vitiated due to violation of the rules of natural justice D because while recommending his dismissal from service, the High Court had considered un-communicated adverse remarks recorded in the Annual Confidential Reports of the appellant without informing him that the same were being relied upon for deciding the quantum E of punishment. Another ground taken by the appellant was that the punishment of dismissal from service was totally disproportionate to the charges found proved against him. The Division Bench of the High Court set aside the punishment of dismissal but imposed upon the F appellant the punishment of compulsory retirement. Before this Court, the appellant urged that the action taken against him was not only against the basics of natural justice but was wholly arbitrary, unreasonable and unjustified. The appellant submitted that even if the G findings recorded by the Inquiry Officer in respect of two charges are held to be correct, there was no justification to impose the punishment of dismissal ignoring that in his long service career he was not found guilty of any other act of insubordination or indiscipline. The appellant H argued that when charge no.1, which was extremely INDU BHUSHAN DWIVEDI v. STATE OF 467 JHARKHAND AND ANR. serious in nature was not found proved, the High Court A could not have imposed extreme penalty of dismissal from service by simply relying upon un-communicated adverse remarks recorded in his Annual Confidential Reports. B The appellant contended that the Division Bench of the High Court should have set aside the order which was subject matter of challenge in the writ petition and directed the respondents to pass fresh orders after communicating adverse remarks to the appellant and C giving him an opportunity to explain his position. Allowing the appeal, the Court HELD: 1. One of the basic canons of justice is that no one can be condemned unheard and no order D prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause. As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make E an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the concerned person must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots F in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of not G overlooking the cause which may be shown by the other side before coming to its decision. When it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the H 468 SUPREME COURT REPORTS [2010] 7 S.C.R. A employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee B about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty c bound to act in consonance with the rules of natural justice. (Para 18] (488-C-H; 489-A-B] 1.2. However, every violation of the rules of natural justice may not be sufficient for invalidating the action taken by the competent authority/employer and the Court D may refuse to interfere if it is convinced that such violation has not caused prejudice to the affected person/ employee. (Para 18] (489-8-C] 1.3. While recommending or imposing punishment on E an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not F required to be given if the final punishment is lesser than the proposed punishment. [Para 20] (491-0-E] State of Mysore v. K. Manche Gowda AIR 1964 SC 506 and Managing Director, Uttar Pradesh Warehousing Corporation and another v. Vijay Narayan Bajpayee (1980) G 3 sec 459, relied on. 2.1. In the present case, it is not in dispute that adverse remarks recorded in the Annual Confidential Reports of the appellant for the years 1988-1989, 1989H 1990, 1990-1991 and 1996-1997 were not communicated INDU BHUSHAN DWIVEDI v. STATE OF 469 JHARKHAND AND ANR. to him. It can reasonably be presumed that if the adverse A remarks were communicated to him, the appellant would have made representation for expunging the same. However, as the adverse remarks were not communicated to him, the appellant could not avail that opportunity. He did not even know what were the adverse remarks and who had recorded the same. This Court cannot speculate about the appellant's fate if the High Court had informed him that there were adverse remarks B in his Annual Confidential Reports which were being relied upon for the purpose of determining the quantum c of punishment and that he can submit his representation against the same. If the appellant was made aware that the adverse remarks relate to his work, conduct or behaviour, he may have represented and successfully demonstrated that "the remarks were recorded by the 0 concerned officer without looking into the quality and quantity of the work done by him and that there was no complaint from any quarter regarding his conduct and behaviour. He could have also shown that in the past no such adverse remark had been entered in his Annual Confidential Report. If the remarks contained adverse reflection on his~integrity, the appellant could have represented that the same were unfounded or were made due to bias or prejudice. He may have shown that his integrity was beyond doubt and he had discharged his duties sincerely and to the satisfaction of his superiors. However, the fact o.f the matter is that the adverse remarks were not communicated to him and on that account he could not represent against the same. [Para E F 22] [491-H; 492-A-F] 2.2. In the show cause notice issued to the appellant, it was not disclosed that the High Court had considered the un-communicated adverse remarks recorded in his Annual Confidential Reports for the purpose of forming G an opinion that he should be dismissed from service. If H 470 SUPREME COURT REPORTS [2010] 7 S.C.R. A the appellant had been told about this and given an opportunity to have his say against the un-communicated adverse remarks, he could have offered appropriate explanation and tried to convince the concerned authority that the remarks were either unfounded or were B totally unjustified. He would have surely pleaded that after 1996-1997 no adverse comments were made about his work, conduct, behaviour and integrity and he had earned good reports (even the Division Bench of the High Court had noted that his confidential report for the year c 2002-2003 was good on all counts). It is thus clear that the appellant was seriously prejudiced on account of non-disclosure of the fact that while recommending his dismissal ·from service,, the High Court had taken into consideration un-communicated adverse remarks 0 recorded in his four Annual Confidential Reports. [Para 23] [492-G-H; 493-A-C] 2.3. There cannot be two views that being a membe.r of the subordinate judiciary, the appellant was bound to comply with the direction given by the High Court to stay E at the headquarters but singular violation of such directive or use of intemperate language in representation were not ~hat serious which warranted imposition of the extreme penalty of dismissal from service. The adverse,, remarks recorded in the Annual Confidential Reports of F the appellant seems to have weighed heavily with the High Court while recommending his dismissal from service. [Para 24] [493-F-G] 2.4. Since the un-communicated adverse remarks contained in the Annual Confidential Reports of the G appellant became foundation of the decision taken by the High Court to recommend his dismissal from service and he was not noticed about the proposed consideration of those remarks, it must be held that the appellant was seriously prejudiced. [Para 25] [493-H; 494-A-B] H INDU BHUSHAN DWIVEDI v. STATE OF 471 JHARKHAND AN-D·ANR. 2.5. A reading of the representation made by the A appellant makes it clear that he had only mentioned that there was no report against his integrity and honesty and he was never found guilty of any act of insubordination or indiscipline in his service career. This assertion, cannot by any stretch of imagination be construed as a s request by the appellant for consideration of his past record, as held by the Division Bench of the High Court. The finding recorded by the Division Bench of the High Court that the appellant's cause was not prejudiced on account of ~onsideration of the past adverse record is c clearly erroneous and unsustainable. [Para 26) (494-C-E) State of U.P. v. Harish Chandra Singh AIR 1969 SC 1020, distinguished. Om Kumar v. Union of India (2001) 2 SCC 386; D Mahindra and Mahindra Ltd. v. N.B. Jarawade (2005) 3 SCC 134 and Hombe Gowda Educational Trust v. State of Karnataka (2006) 1 SCC 430, referred to. 3. The impugned order of the Division Bench of the High Court is set aside. The High Court shall now consider the issue of quantum of punishment afresh and make fresh recommendation to the State Government. If the High Court still feels that the adverse remarks in the Annual Confidential Reports of the appellant for the year 1988-1989, 1989-1990, 1990-1991 and 1996-1997 should E F be considered, then such report(s) shall be communicated to him and he should be given an opportunity to make appropriate representation. While making fresh recommendation for imposing the particular punishment, the High Court is expected to take G into consideration the good as well as adverse record of the appellant. The State Government shall pass appropriate order after receipt of fresh recommendation from the High Court. [Para 28) (494-G-H; 495-A-C) H 472 SUPREME COURT REPORTS [2010] 7 S.C.R. A Case Law Reference: AIR 1964 SC 506 relied on Para 13 AIR 1969 SC 1020 distinguished Para 13 B (2001) 2 sec 386 referred to Para 14 (2005) 3 sec 134 referred to Para 14 (2006) 1 sec 430 referred to Para 14 (1980) 3 sec 459 relied on Para 18 c CIVIL APPELLATE JURISDICTIQN1: Civil Appeal No. 4888 of 2010. From the Judgment & Order dated 29.3.2007 of the High C,ourt of Jurisdiction at Jharkhand in Writ Petition (service) No. D ''2671 of 2006. Raja Venkatappa Naik, Dr. Sudhakar Chowdhary, N.N. Jha, S.K. Tandon, Rameshwar Prasad Goyal for the Appellant. E Manish Kumar Saran, Krishnanand Pandeya for the Respondents. F The Judgment of the Court was delivered by G.S. SINGHVI, J. 1. Leave granted. 2. This is an appeal for setting aside order dated 29.3.2007 passed by the Division Bench of Jharkhand High Court in Writ Petition No.2671 of 2006 whereby it set aside the dismissal of the appellant from service but imposed the G ·punishment of compulsory retirement. H 3. The appellant joined service as Munsif in 1982. He was promoted as Sub-Divisional Judicial Magistrate in 1996. While he was posted as Sub-Divisional Judicial Magistrate at Chaibasa, a news item appeared in 'Dainik Jagran' dated INDU BHUSHAN DWIVEDI v. STATE OF 473 JHARKHAND AND ANR. [G.S. SINGHVI, J.] 2.7.2003 suggesting that the appellant had misbehaved and A manhandled an accused, named, Anup Kumar and Constable Sheo Pujan Baitha. On the next day, i.e. 3.7.2003, the appellant made a representation to District and Sessions Judge, West · Singhbhum at Chaibasa with the request that an inquiry be got conducted into the matter and appropriate action against the B person who got published the misleading news. 4. The High Court of Jharkhand took cognizance of the newspaper report adversely commenting upon the conduct of the appellant and passed an order dated 5.7.2003 whereby he C was placed under suspension and his headquarter was fixed at Chaibasa with a direction that he shall not leave the ,. headquarter without obtaining prior permission from the Registrar General of the High Court. 5. In the meanwhile, the appellant appears to have D submitted an application to the District Judge on 4.7.2003 f<;>r. permission to go to Ranchi for his treatment and also avail holiday on 6.7.2003. After receiving the order of suspension, the appellant submitted an application to the Registrar General of the High Court stating therein that as per the advise of the E doctor, he has to take complete rest for one month and, therefore, he is unable to return to Chaibasa. The appellant also indicated that he would join the headquarters after recovery from illness. This prayer of the appellant was rejected by the High Court and he was informed through the District Judge to F comply with the direction contained in order dated 5.7.2003. The appellant responded to this communication by sending letter dated 19.7.2003 to the District Judge wherein he mentioned that he had to proceed on leave because he was suffering from acute and uncontrolled loose motions and he had left the G headquarters after handing over charge and after seeking permission from the District Judge. He then reiterated his inability to return to the headquarter and described the direction contained in the letter of the High Court as merciless which could not be complied with at the cost of one's life. He also H 474 SUPREME COURT REPORTS [2010] 7 S.O.R. A claimed that being a suspended employee, he cannot be compelled to .stay at the headquarters. 6. After five months of his suspension, a regular departmental inquiry was initiated against the appellant on the 8 following charges: c D E F "Charge No.1 You, Shri lndu Bhushan Dwivedi while functioning as SDJM, West Singhbhum at Chaibasa was found in intoxicated condition on 1st July 2002 (a holiday) in your residential office when an accused Anup Kumar of a case no. C/7-60/2001 of the Court of Shri D. Mahapata, Judicial Magistrate, 1st Class, Chaibasa was produced before you in your residential office for remand by the Head Constable Shri Sheo Pujan Baitha in presence of Office Clerk Shri Baidyanath Ballav Kath of the Court of Shri D. Mahapatra. At the time of production of the said accused Anup Kumar, you misbehaved and manhandled the accused Anup Kumar as well as constable Shri Sheo Pujan Baitha. The aforesaid action on your part not only reflects on your reputation, dereliction of duty but also shows the recklessness and misconduct in the discharge of duties. The aforesaid action on your part is also unbecoming of a Judicial Officer. Charge No.2 G You, Shri lndu Bhushan Dwivedi, SDJM, Chaibasa was placed under suspension by Hon'ble High Court's order contained in letter No. 05/Apptt. dt. 5.7.2003 fixing your headquarter at Chaibasa. It was served on you on 5th July, 2003 by the District & Sessions Judge, West H Singhbhum at Chaibasa. On 4th July, 2003, you submitted INDU BHUSHAN DWIVEDI v. STATE OF 475 JHARKHAND AND ANR. [G.S. SINGHVI, J.] representation applications before the District & Sessions A Judge, West Singhbhum at Chaibasa to leave the headquarter on following Sunday i.e. 6th of July, 2003 (for one day) to proceed to Ranchi which was allowed by the District & Sessions Judge, West Singhbhμm, Chaibasa. Though during the period of suspension you are not supposed to attend duty or sign any Attendance Register but you are supposed to remain in the Headquarters and cannot leave the Headquarters without any permission of B the competent authority, but you remained absent from 0 headquarter from 6.7.2003 after making over charge to SDJM, Porahat on 5.7.2003 and you remained out of headquarter without any information till 10.9.2003. The aforesaid action on your part and violation of Court's order amounts insubordination and misconduct. D Charge No.3. You, Shri lndu Bhushan Dwivedi, SDJM, Chaibasa (under suspension) when asked by the District & Sessions Judge, West Singhbhum at Chaibasa as to why you have E not returned to headquarter by letter No.2501/G dated 10th of July, 2003 and to report you submitted reply and used derogatory words against the Court by your letter No. 5(P) of 2003 dt. 19th July, 2003 using expression "Merciless Direction of the Hon'ble Court". F The aforesaid remarks by you reflects on your conduct amounting to insubordination, indiscipline and unbecoming a Judicial Officer. Shri Dwivedi has been charged of misconduct G recklessness in discharge of his duties along with insubordination and for committing the acts most unbecoming of a responsible Judicial Officer, on the basis of the above mentioned allegation." H 476 SUPREME COURT REPORTS [2010] 7 S.C.R. A 7. The appellant submitted reply and denied all the charges. After considering the reply, the High Court appointed District & Sessions Judge, East Singhbhum, Jamshedpur to conduct regular inquiry. The presenting officer examined 5 witnesses and produced 11 documents to substantiate the B charges leveled against the appellant, who examined 2 witnesses and produced 17 documents. 8. For the sake of his convenience, the Inquiry Officer formulated the following points: · C (i) Whether Shri Dwivedi was in an intoxicated condition on 1st July, 2003 in the residential Office when accused Anup Kumar was produced before him for remand? 0 (ii) Whether Shri Dwivedi had misbehaved as also manhandled the accused Anup Kumar and Constable Sheo Pujan Baitha? E F G (iii) Whether Shri Dwivedi had left his headquarter without prior permission from the competent authority and without any sufficient cause? (iv) Whether Shri Dwi\1edi had used derogatory language/word against the Hon'ble Court by his Letter No.5(p) 2003 dated 19.7.2003? and (v) Whether Shri Dwivedi had acted in a way which shows recklessness and misconduct in discharge of his duties along with insubordination and indiscipline which is unbecoming of a responsible Judicial Officer? After analyzing the evidence produced before him, the Inquiry Officer submitted report dated 4.6.2005 with the conclusion that charges No.2 and 3 have been proved against the appellant but charge No.1 has not been proved. While H dealing with point Nos.1 and 2 which related to charge No.1, INDU BHUSHAN DWIVEDI v. STATE OF 477 JHARKHAND AND ANR. [G.S. SINGHVI, J.] the Inquiry Officer referred to the statements of Pravakar Singh A (A.W.1 ), the Registrar, Civil Courts, Chaibasa, Baidyanath Ballav Kant (A.W.2), Havildar Sheo Pujan Baitha (A.W.3), the accused Anup Kumar (A.W.5) and recorded the following conclusions: "11. From perusal of the record, it appears that there is some force in the contention of the delinquent because A.W.2 Baidyanath Ballav Kant has specifically stated that B on the date of occurrence, the delinquent had performed 'Puja' and several persons were present there and after C 'Puja' Prasad was also given to him and two other persons and this fact has been supported by A.W.1 Prabhakar Singh. A.W.2 has further stated that the delinquent was not in an intoxicated condition when the accused was produced for remand. The said Havildar, A.W.3, has also nowhere stated in his evidence that the delinquent was in D an intoxicated state. 12. On careful examination of the evidence oral and documentary, adduced by the parties and in view of the aforesaid discussions, I am of the view that the Charge E No.1 that the delinquent was in an intoxicated condition when the accused was produced before him for remand, could not be proved by cogent evidence and similarly, this has also not been proved that the delinquent had assaulted the accused Anup Kumar and the Havildar Sheo Pujan F Baitha. So, the Point No.4(i) and (ii) are decided in favour of the delinquent." 9. The Inquiry Officer then dealt with other three points and held that the delinquent (appellant herein) appears to have managed the medical prescription from the doctors to justify G non-compliance of the direction given by the High Court not to leave the headquarter without obtaining permission from the Registrar General and concluded that his action amounted to insubordination and indisciplined behaviour unbecoming of a responsible judicial officer. H 478 SUPREME COURT REPORTS [2010] 7 S.C.R. A 10. The High Court accepted the inquiry report and directed that show cause notice be issued to the appellant for imposition of a major penalty. Accordingly, the Registrar General of the High Court issued Memo dated 30.6.2005 to the appellant enclosing therewith a copy of the inquiry report B and called upon him to show cause as to why a major penalty such as dismissal from service may not be inflicted upon him. In his reply dated 22.7.2005, the appellant challenged the findings recorded by the Inquiry Officer in respect of charges No.2 and 3 by contending that the same were based on c erroneous appreciation of evidence and that there was no valid ground to discard the testimony of the doctor and prescriptions given by him. The appellant then pleaded that he neither had the intention nor he could have dared to disobey the direction given by the High Court. He submitted that non-compliance of 0 the direction given by the High Court to stay at the headquarters during the period of suspension was due to his illness and pleaded that he may be pardoned for using the expression 'merciless direction' for the communication sent by the High Court. He again tendered an unqualified apology for what he termed as wrong choice of the words. Simultaneously, he E claimed that there was no adverse report regarding his integrity, honesty and sincerity and he was never found guilty of any act of insubordination or indiscipline and pointed out that in the latest report, the District Judge had commended his work. This is evinced from para 17 of the appellant's representation, which F reads thus: "17. Sir, most humbly and respectfully I submit that in the entire period of my service there is no report against my integrity honesty and sincerity. I was never found guilty of G any act of insubordination or indiscipline ever before in this entire period of service also that recently proceeding this susper'lsion my District Judges in their annual report have commended my work." H 11. After considering the reply of the appellant, the High Court recommended his dismissal from service. The State INDU BHUSHAN DWIVEDI v. STATE OF 479 JHARKHAND AND ANR. [G.S. SINGHVI, J.] Government accepted the recommendation of the High Court A and passed order dated 22.2.2006 whereby the appellant was dismissed from service. 12. The appellant challenged the aforementioned order by contending that the same is vitiated due to violation of the rules 8 of natural justice because while ·recommending his dismissal from service, the High Court had considered un-communicated adverse remarks recorded in the Annual Confidential Report without informing him that the same were being relied upon for deciding the quantum of punishment. Another ground taken by C the appellant was that the punishment of dismissal from service was totally disproportionate to the charges found proved against him. I 13. The Division Bench of the High Court first considered the question whether the past adverse record could be D considered for imposing the punishment of dismissal, referred to the judgment of the Constitution Bench in State of Mysore v. K. Manche Gowda AIR 1964 SC 506 as also the judgment in State of UP. v. Harish Chandra Singh AIR 1969 SC 1020 and held that when the High Court proposed the punishment E of dismissal from service and the appellant hin:iself made a request in paragraph 17 of his reply that his past record may be considered, no prejudice can be said to have been caused to him on account of consideration of the adverse reports. Paragraphs 21 and 22 of the impugned order which contain F the reasoning of the High Court on this issue are extracted below: "21. Thus, the ratio decided in the above case is where the past records is considered for awarding lesser punishment, no notice about the proposal that the past G records will be considered is necessary. In this case, the stand taken by the 2nd respondent, namely, the High Court, the past records were taken into consideration in addition to the charges proved only to consider if any lesser punishment than the dismissal could be inflicted, as H A B c D E F 480 SUPREME COURT REPORTS [2010] 7 S.C.R. desired by the petitioner. In case, the past records were not considered by the disciplinary authority, then the then the petitioner may raise a grievance non-consideration of his· past records white awarding punishment in spite of his request. Under those circumstances, the past records as· admitted in the counter affidavit filed by the respondent No. 2 have been considered. 22. As indicated above, when specially the petitioner has made a request in his reply to consider his past records, while awarding punishment as his past records are good, the disciplinary authority was constrained to go into the past record. But, according to the counter by the respondent No.2, the past records did not support the claim of the petitioner that his past records were good. On the contrary, his past records contained various details about his bad records in so many words as mentioned in the counter. There is no question of consideration of past records for giving higher punishment than the disciplinary authority felt while issuing 2nd show cause notice that the maximum punishment alone, would ,commensurate the proved charges. In the aforesaid circumstance, there is no requirement to mention in the show cause notice regarding to mention in the show cause notice regarding his past records. As stated by the counsel for the respondent No.2, the past r~cords were considered at the instance of th~ petitioner and also with a view to consider if any lesser punishment than the dismissal could be inflicted upon the petitioner. As such the first contention would fail." 14. The Division Bench then considered the appellant's G plea that the punishment of dismissal was unduly harsh and disproportionate to the misconduct found proved against him, referred to the judgments in Om Kumar v. Union.of India (2001) 2 SCC 386, Mahindra and Mahindra Ltd. v. N.B. Jarawade (2005) 3 SCC 134, Hombe Gowda Educational Trust v. State H of Kamataka (2006) 1 SCC 430, and held: INDU BHUSHAN DWIVEDI v. STATE OF 481 JHARKHAND AND ANR. [G.S. SINGHVI, J.] "Even at the threshold, it should be stated that, the A disciplinary proceedings were initiated and suspension order was passed mainly on the basis ofthe report of an officer in the Civil Court complaining that the delinquentpetitioner, in an intoxicated condition, assaulted the · accused who was produced before him for remand as well as the constable, who produced before the delinquent. This is truly a very serious charge. If this charge is proved, itwould have been a very serious misconduct on the part B of the judicial officer, which would entail him to maximum punishment. But, in this case, the inquiry officer has not only c observed the charge is not proved, but also indicatedthat the delinquent had been falsely implicated at the instance of the police personnel of the local police station with whom relationship of delinquent was not cordial. It is true that merely, because the first charge had been held to be false, D we cannot hold the other charges do not need any serious consideration. Other charges also are serious, but it shall be remembered that they are not so serious as that of the · . first charge. As indicated above, the petitioner, himself, requested the disciplinary authority to take into consideration the past record. There is no dispute in the E fact tha.t the past records were taken into consideration where it was recorded as his conduct was not good in respect of some period. But the show cause reply sent by F the delinquent, dated, 22.07.2005, would irtdicate that he has specifically ;asked the authority to take into consideration all the entire pe~od of service. He further referred in his show cause that his District Judge, Chaibasa has commended his work in his annual report. Admittedly, there is no reference about this in the counter filed by the respondent No. 2. On the other hand, the G counsel for the 2nd respondent would submit that his entire past records are not good. In view of this, it would be better to look into the relevant entries in his A.C.R. This Court called for the A.C.R. and H . 482 SUPREME COURT REPORTS [2010] 7 S.C.R. A perused the same. The.relevant entry in A.C.R. in respect of 1988-89, 1989-90, ·1991-92, 1996-97 would show various adverse remarks, as referred to in the counter. However, in the counter, there is no mention about the entries made during the year 2002-2003. As per the entry, B the District Judge, Chaibasa certified him as a good officer whic~ is as follows: c D E F G H Year 2002-2003 Name of Judgeship Chaibasa Reporting Officer /Hon'ble Judge Mr. B.N. Pandey Knowledge Good Promptness in dispos